Lalman vs State Of U.P. And Others
2014 Latest Caselaw 1434 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
									     A.F.R
 
RESERVED
 

 
Court No. - 16
 

 
Case :- WRIT - A No. - 72516 of 2005
 

 
Petitioner :- Lalman
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Satyendra Narayan Singh,D.P. Singh,Rajeev Trivedi
 
Counsel for Respondent :- C.S.C.,V.Singh
 

 
Hon'ble Vivek Kumar Birla, J.

1. The present petition has been filed challenging the termination order dated 10.10.2005 passed by the Executive Engineer, Nalkup Khand, Mahrajganj, respondent no.2 on the ground that a legal advice of the Senior Prosecuting Officer and the District Government Counsel was received that the petitioner can be terminated from service and the salary drawn by him (for a certain period) is liable to be recovered from him. Accordingly in pursuance to the letter of the District Magistrate dated 20.09.2005, the petitioner, who was working as 'Seench Pravekshak' was removed from service and further direction to recover the salary withdrawn by him was also made. Aforesaid order was passed in the background that the petitioner was convicted in S.T. No.230 of 1990 (State of U.P. vs. Lalman), under Sections 307 and 452 IPC and he was detained in Gorakhpur jail from 16.01.1992 to 26.01.1992.

2.The facts in brief are that the petitioner was temporarily appointed as Tube-bell Operator in the Irrigation Department on 23.05.1969 and was regularised on the aforesaid post in August, 1970. In the year 1990, the petitioner was implicated in a criminal case under Sections 307 and 452 IPC and faced trial in S.T. No. 230 of 1990. In the aforesaid case the petitioner was convicted for four years rigorous imprisonment and was taken into custody and was sent to jail on 16.01.1992. It may not be out of place to note that the main role in the aforesaid case was assigned to the petitioner that he had fired with fire arm due to which one Durgawati, informant had suffered fire arm injury and the finding was recorded against the petitioner by the Special Judge, Gorakhpur in its judgement dated 16.01.1992. Subsequently, the petitioner filed Criminal Appeal No. 159 of 1992 (Lalman Vs. State of U.P.) in which vide order dated 21.01.1992 the petitioner was granted bail and the operation of the sentence was stayed by this Court. On 26.01.1992 the petitioner was released from jail and thereafter allegedly he informed the authority concerned about his absence from 14.01.1992 to 26.01.1992. It is alleged that leave was granted to the petitioner and he was paid salary for the month of January after deducting the salary of leave period. On 30.04.1992 the Executive Engineer, Nalkup Khand, Mahrajganj, respondent no.2 called an explanation from petitioner regarding his conviction; release from jail and stay of his conviction. In pursuance thereof the petitioner submitted his explanation on 04.05.1992 and 11.05.1992. Subsequently, on 01.08.2003 the petitioner was promoted on the post of Seench Pravekshak. It further appears that the Chief Development Officer had called an explanation from the Executive Engineer regarding conviction and confinement of the petitioner in jail in pursuance to the criminal case as mentioned hereinabove.

3.The counter affidavit was filed on behalf of all the respondents and the rejoinder affidavit was also filed by the petitioner to the aforesaid counter affidavit.

4.In paragraph 5 of the counter affidavit, apart from the other details which have already come in the previous paragraph, a copy of the letter dated 26.09.2005 was annexed as Annexure 1, wherein it was disclosed that in pursuance of the First Information Report dated 06.01.1986 registered as Case Crime No. 3 of 1986, under Sections 307/504 IPC the petitioner was confined to the District Jail, Gorakhpur for 10 days. This confinement was not disclosed to the office and the petitioner had drawn the salary for this period of confinement in jail for 10 days.

5.A vague reply to the paragraph 5 of the counter affidavit, wherein the aforesaid facts have been mentioned and the letter dated 23.09.2005 has been enclosed, was given by the petitioner in paragraph 5 of the rejoinder affidavit without specific reply to the aforesaid contents. I also find that nowhere in the petition or in rejoinder affidavit this fact of his confinement in jail for 10 days has been disclosed and prima facie it appears that without going into this, the order dated 10.10.2005 was passed and the petitioner was removed from service on the basis of the legal advice.

6.By means of letter dated 05.08.2004, the reply was submitted by the Executive Engineer to the Chief Development Officer subsequently vide order dated 07.10.2004 the Chief Development Officer, Maharajganj directed the Executive Engineer to take action against the petitioner and accordingly vide order dated 15.10.2004, the respondent no.2 suspended the petitioner for the reason of his confinement in jail which was also not disclosed to the higher authorities and this being misconduct under the Uttar Pradesh Government Servants Conduct Rules 1956. On the same day i.e. 15.10.2004 the petitioner represented against the suspension on the ground that his appeal against conviction has been admitted by the Hon'ble High Court and he was also granted bail and that any departmental proceeding should be initiated only after decision of the criminal appeal pending before the Hon'ble High Court and that he had never concealed the fact regarding his confinement in jail from the respondent authorities. It is on his representation, the Executive Engineer on the same day i.e. 15.10.2004 proceeded to recall the suspension order, a copy whereof is annexed as Annexure 12 to the petition. Subsequently, the petitioner was again suspended on 19.11.2004 by the respondent No.2 and vide order dated 02.12.2004 the Assistant Engineer-I, Nalkup Khand, Maharajganj was appointed as inquiry officer. The chargesheet was given on 15.01.2005 to which the petitioner had submitted his detailed reply on 09.03.2005, wherein he had taken a plea that he never concealed the facts regarding his confinement in jail and he further submits that the salary was paid to him after making deduction from period of absence from duty. The respondent no.2 on the basis of inquiry report revoked the suspension of the petitioner and reinstated him in service vide order dated 19.03.2005 (Annexure 7 to this petition) on the ground that the fact regarding confinement was not concealed by the petitioner and he was paid salary after deducting salary for the period of his absence. The fact regarding pendency of criminal appeal before the High Court was taken into consideration but no finding was recorded on the ground that since the matter is pending before the High Court, therefore, it would not be appropriate to record anything with regard to the same. Subsequently, the order dated 10.10.2005 which is under challenged removing the petitioner from service was passed by the respondent no.2.

7.I have heard learned counsel for the petitioner and the learned Standing Counsel representing all the respondents.

8.As per age disclosed in the supplementary affidavit dated 28.11.2005 by now the petitioner must have reached the age of 61 years now.

9.The main ground of challenge in the present petition is that no opportunity of hearing was given to the petitioner by the respondent no.2 before passing the order dated 10.10.2005, and therefore, the order being in violation of principles of natural justice is not sustainable in the eye of law. It was further stated that the petitioner was suspended on two occasions which were recorded by the concerned authority and it is only on the legal advice, the petitioner was removed from service after more than 13 years of service from time of conviction of the petitioner in S.T. No. 230 of 2005. Therefore, it was contended that the order of termination was patently illegal and liable to be set aside.

10.The argument that the impugned order dated 10.10.2005 was passed in violation of principles of natural justice though appears to be attractive, however in view of the fact that the petitioner was governed by the Uttar Pradesh Government Servant (Discipline and Appeal) Rules 1999 (hereinafter referred to as the 'Rules 1999'). Rules 3 of the aforesaid Rules 1999 provides for major penalty and Rule 3(iii) clearly provides that removing from service does not disqualify from future employment and Rule 3 (iv) provides for dismissal from the service which disqualifies from future employment. The word used in the impugned order are "Sri Lalman Seench Pravekshak prathak kiye jane" is undisputedly termed as major penalty, whether word "prathak" is removal or dismissal, which too is now at present has no relevance. Rule 7 of the aforesaid Rules 1999 provides for procedure for imposing major penalty. The proviso to the aforesaid Rule 7 reads as follows;

Provided that this rule shall not apply in following cases:-

(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to held an inquiry in the manner provided in these rules; or

(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.

11.Proviso (i) of the aforesaid Rules provides that this Rules shall not apply in case where the major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge.

12.In view of the aforesaid rules, this cannot be disputed that normally procedure as provided in Rule 7 need not be followed when the major penalty is imposed on conviction of criminal charges. Therefore as per the statutory rule applicable in such cases the argument of violation of principles of natural justice are not applicable and no fault on that ground can be found in the impugned order dated 10.10.2005.

13.Even otherwise while considering the Article 311 (2) (a) of the Constitution of India which also provides that where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on criminal charges the clause regarding inquiry and opportunity of hearing has been said to be not applicable. The Article 311(2) and (2) (a) is reproduced hereinbelow;

311. ................

(1)....................

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b).................

14.This issue has been settled by the Hon'ble Apex Court in large number of cases. Suffice to refer two such cases. The Divisional Personnel Officer, Southern Railway and Another Vs. T.R. Chellappan reported in [(1976) 3 SCC 190] and Union of India and another Vs. Tulsiram Patel reported in [(1985) 3 SCC 398 (5 judges)]

15.In so far as the contention of the petitioner that since sentenced of the petitioner has been stayed and he has been bailed out by the High Court in criminal appeal, which is still pending, the respondents could not have proceeded to pass the impugned order dated 10.10.2005, I find no force in the aforesaid argument. In Roshan Lal Ahuja Vs. Dr. S.C. Jain and Others reported in [(1987) 1 SCC 48], wherein it was held by the Apex Court that conviction on charge of attempt to murder would not absolve the delinquent employee of all moral turpitude. In the present case, undisputedly the conviction was under Sections 307 and 452 IPC. Section 307 IPC provides for imprisonment up to 10 years, whereas Section 452 IPC provides for maximum sentence of 7 years. In the present case, the allegation against the petitioner was that he trespassed in the house of Smt. Durgawati equipped with fire arm to cause hurt and in fact he had fired on her and she was seriously injured. This main role played by the petitioner was affirmed by a categorical finding recorded by the trial court which led to his conviction. Undisputedly, the petitioner has been convicted for committing heinous crime. In Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera reported in (1995) 3 SCC 377, wherein it was held by the Apex Court that suspension of sentence in criminal case by High Court is of no consequence and inquiry may proceed on charge of conviction. The relevant extract of paragraph no.7 and 9 are quoted hereinbelow;

7. This clause, it is relevant to notice, speaks of "conduct which has led his conviction on a criminal charge". It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative.................... .............................................................

8. ................

9.The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant- accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court...................................................

16.At the cost of repetition, it may be pertinent to note that in the present case the petitioner is governed by the Rules 1999 and proviso (i) to Rule 7 clearly provides that in such cases normal procedure as applicable for imposing major penalty provided under the Rule is not applicable. As such no inquiry/ proceeding were necessary in the present case.

17.In the case of Union of India and Others vs. Ram Kumar reported in (1997) 7 SCC 514, the Apex Court held that stay of sentence during pendency of appeal against conviction is of no consequence and the conviction continue and dismissal from service on the ground of conviction is valid. Similar view was expressed by the Union of India Vs. V.K. Bhaskar reported in (1997) 11 SCC 838 in which it was also held that pendnecy of criminal appeal is no bar to dismiss the employee and in case of acquittal the employee can seek review of the dismissal order.

18.In view of the law as discussed above, I am of the opinion that the present petition has no force and is liable to be dismissed for the reasons and observations made hereinabove.

19.The petition is accordingly dismissed.

Order Date :- 02.05.2014

Ajay