State Of U.P.Throu.Its Secy.Home ... vs Uday Narain Sachan And Another
2015 Latest Caselaw 515 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Chief Justice's Court                                                                                                           AFR
 

 
Case :- SERVICE BENCH No. - 662 of 2015
 

 
Petitioner :- State Of U.P.Throu. Its Secy. Home Civil Sectt. Lko. & Ors.
 
Respondent :- Uday Narain Sachan And Another
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- C.S.C.,Manish Misra
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Shri Narayan Shukla,J.

This petition by the State is directed against an order of the U P State Public Services Tribunal1 dated 28 March 2014, granting reinstatement to the first respondent against whom an order of conviction has been passed under Section 302 read with Sections 34 of the Penal Code and 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the Additional Sessions Judge, Fatehpur. The Tribunal has adopted the view that the disciplinary authority ought to have awaited the decision of the appeal filed by the first respondent against the order of conviction and has placed reliance on the provisions contained in Regulation 492 of the U P Police Regulations.

The first respondent was employed as a Constable in the civil police. During the course of his service, case crime no. 48 of 1999 was registered against the first respondent at Police Station Chandpur, District Fatehpur under Section 302 read with Sections 34 of the Penal Code and 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Following the criminal trial, the first respondent was convicted of an offence punishable under Section 302 read with Sections 34 of the Penal Code and 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the Additional Sessions Judge of the Fast Track Court at Fatehpur and sentenced to undergo rigorous imprisonment for life by a judgment and order dated 9 July 2010. The first respondent was suspended on 26 July 2010. On 9 August 2010, a notice to show cause was issued to the first respondent under the provisions of Rule 8 of the U P Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991. The first respondent did not submit a reply to the notice to show cause. On 25 August 2010, the first respondent was dismissed from service by the Superintendent of Police, Hamirpur. Reliance was placed on the judgment of conviction rendered by the Additional Sessions Judge while dismissing the first respondent.

The first respondent has filed an appeal against the judgment of conviction. On 28 January 2011, a Division Bench of this Court directed his release on bail. By a further order dated 16 September 2011, the Division Bench observed that the Court was not suspending the conviction of the first respondent. The first respondent submitted a representation to the Superintendent of Police, Hamirpur, who rejected it on 27 April 2012. The first respondent thereafter filed a claim petition before the Tribunal after a departmental appeal was dismissed by the Deputy Inspector General of Police on 23 May 2012.

The Tribunal allowed the claim petition by its judgment and order dated 28 March 2014. In coming to this conclusion, the Tribunal placed reliance on the provisions contained in Regulation 492 of the U P Police Regulations and on a judgment in Vijai Prasad Pandey v. State of Uttar Pradesh2. The Tribunal held that the order of the disciplinary authority was contrary to Regulation 492. It was also of the view that the order of dismissal does not contain anything in regard to the conduct of the first respondent which led to his conviction and merely stating that the conviction had tarnished the image of the police force would not be a genuine ground for the dismissal of the first respondent.

The State is in appeal.

Rule 8 of the Rules of 1991 provides as follows:

"8. Dismissal and removal.-- (1) No Police Officer shall be dismissed or removed from service by an authority subordinate to the appointing authority.

(2) No Police Officer shall be dismissed, removed or reduced in rank except after proper inquiry and disciplinary proceedings as contemplated by these rules:

Provided that this rule 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) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry; or

(c) Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry.

(3) All orders of dismissal and removal of Head Constables or Constables shall be passed by the Superintendent of Police. Cases in which the Superintendent of Police recommends dismissal or removal of a Sub-Inspector or an Inspector shall be forwarded to the Deputy Inspector General concerned for orders.

(4) (a) The punishment for intentionally or negligently allowing a person in police custody or judicial custody to escape shall be dismissal unless the punishing authority for reasons to be recorded in writing awards a lessor punishment.

(b) Every officer convicted by the Court for an offence involving moral turpitude shall be dismissed unless the punishing authority for reasons to be recorded in writing considers it otherwise."

Rule 8 (2) contains an embargo on the dismissal of a police officer except after holding a disciplinary proceeding under the rules. This embargo is however lifted by proviso (a) of Rule 8 (2) which stipulates that 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, the rule would not apply. Similar provisions are contained in Article 311 (2) of the Constitution.

The expression "on the ground of conduct which has led to his conviction on a criminal charge" was interpreted in a judgment of the Supreme Court in Union of India v. Tulsi Ram Patel3, where it was held as follows:

"...The paramount thing, however, to bear in mind is that the second proviso will apply only where the conduct of a government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. If the conduct is such as to deserve a punishment different from those mentioned above, the second proviso cannot come into play at all, because Article 311(2) is itself confined only to these three penalties. Therefore, before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned, government servant is such as justifies the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an enquiry..."

This was followed by another decision of the Supreme Court in Shankar Dass v. Union of India4. In subsequent decisions, the Supreme Court has explained and expounded upon legal position. The decision in Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera5 involved a conviction under Section 420 of the Penal Code and Section 5 of the Prevention of Corruption Act, 1947. In that case, the Tribunal had quashed an order of dismissal which had been passed following a conviction on the ground that until an appeal against the order of conviction is disposed of, action under clause (a) of the second proviso to Article 311 (2) of the Constitution was not permissible. The Supreme Court observed as follows:

"What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal Court. Until the said conviction is set aside by the appellate or other higher Court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice."

In a more recent decision of the Supreme Court in Government of A P v. B. Jagjeevan Rao6, the Supreme Court considered a case where there was a conviction of an offence punishable under Sections 7 and 13 (1) (d) of the Prevention of Corruption Act, 1988 following which, the appellant had been dismissed from service. The High Court had set aside the action. The Supreme Court observed as follows:

"Regard being had to the aforesaid enunciation of law and keeping in view the expected standard of administration, conviction on the charge of corruption has to be viewed seriously and unless the conviction is annulled, an employer cannot be compelled to take an employee back in service..."

These decisions have been followed by a Division Bench of this Court in State of Uttar Pradesh v. Prem Milan Tiwari, Constable7. In that case before the Division Bench, the respondent was a Constable in the police department and was convicted of an offence punishable under Section 302 read with Sections 120-B and 149 of the Penal Code. This Court held that such a person could not be reinstated in service merely because an appeal against the conviction was pending:

"We are of the view that the principle of law which has been laid down by the Supreme Court in the decision in S. Nagoor Meera and recently in B. Jagjeevan Rao's case, (supra) must govern the facts of the present case. The respondent was a constable in the police and was convicted of a heinous crime punishable under Section 302 of the Penal Code read with Sections 120B and 149. Can the State be compelled or required to take back in service such a person, pending the disposal of the appeal ? Plainly not. The learned counsel appearing on behalf of the respondent sought to distinguish those two decisions on the ground that the employee had been convicted of offences under the Prevention of Corruption Act 1988 where the conduct had a direct bearing on the service of the employee as an officer of the State. In our view, this would not make any difference to the construction of clause (a) of the second proviso to Article 311. What clause (a) of the second proviso does is to stipulate that the requirement of clause (2) of holding an inquiry consistent with the principles of natural justice would not apply where a person is dismissed, removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge. In the present case, the respondent was a constable in the police. He was found guilty after a session's trial of an offence punishable under Section 302 read with Section 120B of the Penal Code. In such a case, clause (a) of the second proviso to Article 311 (2) would clearly stand attracted. The State cannot be regarded as having acted with perversity in dismissing a person who has been convicted of a serious offence of the nature involved in pursuance of the provisions of the second proviso to Article 311 (2) and, as in the present case, under Rule 8(2)(a) which is pari materia. The learned Single Judge, with respect, was in error in holding that there was no application of mind to the conduct which has led to the conviction. The conduct of the respondent which has led to the conviction of a charge under Section 302 cannot, by any circumstance, be regarded as warranting any treatment other than the punishment of dismissal under clause (a) of the second proviso to Article 311 (2) or under Rule 8 (2)(a). Ultimately, as has been held by the Supreme Court until the conviction is set aside by an appellate or higher court, it would not be advisable to retain such a person in service. If he succeeds in the appeal or in any other proceeding, the matter can always be reviewed in such a manner that he would not suffer any prejudice."

On behalf of the first respondent, however, reliance has been placed on the provisions contained in Regulation 492 of the U P Police Regulations. The Tribunal, as we have noted earlier, relied upon Regulation 492 and came to the conclusion that it was not open to the department to dismiss the first respondent pending disposal of his appeal against the order of conviction.

Regulation 492 of the U P Police Regulations provides as follows:

"492. Whenever a police officer has been judicially tried, the Superintendent must await the decision of the judicial appeal, if any, before deciding whether further departmental action is necessary."

We must also, at this stage, refer to Regulation 493 insofar as is material, which reads as follows:

"493. It will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a Police Officer who has been tried judicially to re-examine the truth of any facts in issue at his judicial trial, and the finding of the Court on these facts must be taken as final.

Thus, (a) if the accused has been convicted and sentenced to rigorous imprisonment, no departmental trial will be necessary, as the fact that he has been found deserving of rigorous imprisonment must be taken as conclusively providing his unfitness for the discharge of his duty within the meaning of Section 7 of the Police Act. In such cases the Superintendent of Police will without further proceedings ordinarily pass an order of dismissal, obtaining the formal order of the Deputy Inspector General when necessary under paragraph 479 (a). Should he wish to do otherwise, he must refer the matter to the Deputy Inspector General of the range for orders."

What Regulation 492 postulates is that where a police officer has been judicially tried, the Superintendent must await the decision of the judicial appeal, if any, before deciding whether further departmental action is necessary. Regulation 493, however, makes it clear that it is not permissible for the Superintendent of Police in the course of a departmental proceeding against a Police Officer who has been tried judicially to re-examine the truth of any facts in issue at his judicial trial and the finding of the Court on these facts has to be treated as final by the Superintendent of Police.

At the same time, Regulation 493 specifically provides that if an accused has been convicted and sentenced to rigorous imprisonment, no departmental trial will be necessary, since the fact that he has been found deserving of rigorous imprisonment would be taken as conclusively providing the unfitness of the Police Officer for the discharge of his duties within the meaning of Section 7 of the Police Act, 1861. In such cases, the Superintendent of Police is under a mandate, without further proceedings, to ordinarily pass an order of dismissal. These provisions contained in the regulations must be read harmoniously and in the context of Rule 8 of the Rules of 1991.

Having due regard to the scheme of Regulations 492 and 493, it would not be permissible to hold that notwithstanding the heinous character of the crime of which the police officer has been convicted, the department must necessarily await the decision of judicial appeal against the order of conviction. Such a construction would militate against the provisions of proviso (a) to Rule 8 (2) of the Rules of 1991 which, as we have noted, are consistent with the provisions of Article 311 (2) (b) of the Constitution.

Ultimately, the disciplinary authority must be guided by the public interest in testing and determining as to whether a police officer who has been convicted of a serious offence should be retained in service. Directing retention of a police officer who has been convicted of an offence punishable under Section 302 of the Penal Code would be manifestly contrary to public interest. If the appeal which has been filed against the order of conviction ends in acquittal, the matter can always be reviewed in such a manner that the police officer does not suffer any prejudice. Until the conviction is set aside by the appellate or other higher Court, it would not be advisable to retain such a person in service, as was held by the Supreme Court in Nagoor Meera case (supra).

The Tribunal sought to place reliance upon the judgment of this Court in Vijai Prasad Pandey (supra), but has clearly failed to notice the developments in law that have taken place since then particularly, in view of the decisions of the Supreme Court in Nagoor Meera (supra) and B. Jagjeevan Rao (supra), which have been noticed earlier.

For these reasons, we allow the writ petition and set aside the impugned judgment and order of the Tribunal dated 28 March 2014. The writ petition shall stand disposed of in the aforesaid terms.

Vakalatnama filed by Shri Y S Lohit, learned counsel appearing on behalf of the first respondent is taken on the record.

There shall be no order as to costs.

Order Date :- 15.5.2015

RKK/-

					(S.N. Shukla, J)            (Dr. D.Y. Chandrachud, CJ)