Mohan Lal vs State Of U.P. Through Prin. Secy. ...
2015 Latest Caselaw 3449 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR 
 

 
Court No. - 10 
 

 
Case :- SERVICE SINGLE No. - 6027 of 2015 
 
Petitioner :- Mohan Lal 
 
Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Finance Lko. & O 
 
Counsel for Petitioner :- Pradeep Kumar Tripathi 
 
Counsel for Respondent :- C.S.C.
 
 
 
Hon'ble Rajan Roy,J. 

Heard learned counsel for the parties.

The petitioner has filed this writ petition seeking a writ of mandamus commanding the opposite party no.2 to consider and decide the departmental appeal filed by him against the order of dismissal from service as also seeking reinstatement w.e.f. 01.08.2015 along with payment of salary until pending appeal is decided.

The facts of the case in brief are that the petitioner was serving on the post of Sub Cashier in Sub-Treasury Mishrikh. An FIR was lodged against him and one Lalta Prasad Dwivedi Accountant on 09.10.2012 for embezzlement of a sum of Rs.23,10,380/-. The petitioner was placed under suspension and departmental enquiry was also initiated against him by issuing a charge sheet. In the enquiry the charges were found to be proved against him. The enquiry report was served upon him while he was in Jail. The petitioner sent his representation against the enquiry report on 05.11.2014. As the petitioner was in Jail, therefore, personal hearing could not be given to him, as such, the departmental enquiry remained pending.

During the pendency of disciplinary proceedings, the petitioner was convicted under Section 409, 420, 467, 468 and 471 IPC by the Court of learned Additional Chief Judicial Magistrate, Sitapur vide judgment dated 09.06.2015. As the petitioner was a Government Servant, to whom the provisions contained in Article 311(2)(a) of the Constitution are applicable and even as per relevant Service Rules, namely, U.P. Government Servant (Discipline and Appeal) Rules, 1999 there was a provision for dismissal on the ground of conduct which has led to his conviction on a criminal charge, as such, the matter was proceeded accordingly and considering his conduct which led to his conviction on the criminal charges as aforesaid, the petitioner was dismissed from service vide order dated 26.06.2015.

Against the judgment dated 09.06.2015 convicting him under the aforesaid provisions of the Indian Penal Code and sentencing him to imprisonment upto seven years and a fine of Rs.3,00,000/-, the petitioner filed an appeal before the learned Sessions Judge, Sitapur being Criminal Appeal No. 57 of 2015 which was admitted on 20.06.2015 and the petitioner was released on bail vide orders dated 04.07.2015 passed in the aforesaid Criminal appeal. Thereafter the petitioner filed a departmental appeal on 27.07.2015 against the order of dismissal from service dated 26.06.2015. Subsequently on 01.08.2015 the petitioner filed an application under Section 389(1) of the Code of Criminal Procedure for suspending the sentence/conviction during pendency of the Criminal Appeal, whereupon an order was passed by the learned Sessions Judge, Sitapur on 01.08.2015 suspending the sentence/conviction under appeal till disposal of the Criminal Appeal. Based thereon, the petitioner filed an application for interim relief in the departmental appeal pending before the Commissioner, Lucknow Division, Lucknow with a prayer for suspending the dismissal order considering the stay of his conviction in the Criminal case at the appellate stage, which has not yet been considered.

In these circumstances the petitioner has filed the instant writ petition for disposal of his appeal and his reinstatement in service with salary w.e.f. 01.08.2015 i.e. the date of stay of conviction by the Sessions Judge, Sitapur.

The question to be considered is whether the stay of petitioner 's conviction by the appellate Court in the Criminal Appeal, entitles the petitioner to stay or annulment of the order of dismissal from service or not ?

The constitutional Bench in the case of Union of India vs. Tulsi Ram Patel reported in (1985) 3 SCC 398 has already held that conviction does not lead to automatic dismissal, removal or reduction in rank. There has to be an order by the the disciplinary authority considering the facts of the case and the conduct leading to his conviction. The power to stay conviction under Section 389(1) of the Code of Criminal Procedure, has to be exercised sparingly and for reasons to be recorded in writing. Though, validity of the order of learned Sessions Judge dated 01.08.2015 staying the conviction is not an issue in this writ petition, therefore, this Court would not like to say much but suffice it to say that the said order leaves much to be desired in view of pronouncement of Supreme Court on the subject reported in the case of (2014) 8 SCC 909 (Shyam Narain Pandey vs. State of U.P.); (2012) 12 SCC 390 Central Bureau of Investigation New Delhi vs. Roshan Lal Saini); (2009) 11 SCC 71 (Chhotanney and others vs. State of U.P. And others); and (1995)2 SCC 513 (Ram Narang vs. Ramesh Narang and others), but confining itself to the facts of the present case the Court finds that the dismissal of the petitioner from service is based not automatically on his conviction but "on the conduct which has led to his conviction on a criminal charge". Though, the appeal against the dismissal order is pending before the appellate authority but for the purposes of this writ petition, the Court finds that there is a discussion of the conduct of the petitioner by the disciplinary authority which lead to his conviction on the criminal charge and based on a consideration of such conduct an opinion was formed by him that he is not fit to be retained in service. The relevant extract of the dismissal order of petitioner reads as under:-.

"---------------Ekkuuh; U;k;ky; }kjk ikfjr vkns'k dk esjs }kjk v/;;u fd;k x;k ftldk laf{kIr mYys[k fuEuor~ gSA

vfHk;qDrx.k eksgu yky iq= Nsn~nw fuoklh&eksgn~nhuiqj] Fkkuk&jkedksV] ftyk&lhrkiqj o ykyrk izlkn f}osnh iq= nsoh izlkn f}osnh] fuoklh xzke&87 f}osnh fuokl eksgYyk rjhuiqj] tuin&lhrkiqj] gky&fuokl&45 c`Eguxj fudV&/keZdkaVk dksrokyh] lhrkiqj dks vkijkf/kd okn la[;k&[email protected]] vijk/k la[;k&[email protected]] /kkjk&409] 420] 467] 468] 471 Hkkjrh; n.M lafgrk] Fkkuk&fefJ[k] ftyk&lhrkiqj esa nks"kfl) fd;k tkrk gS rFkk /kkjk&419 Hkkjrh; n.M lafgrk ds vkjksi esa nks"keqDr fd;k tkrk gSA

mijksDr ds vkyksd esa Ekkuuh; U;k;ky; }kjk fuEufyf[kr n.Mkns'k Hkh ikfjr fd; x;s gSA vfHk;qDrx.k eksguyky iq= Nsn~nw fuoklh&eksgn~nhuiqj] Fkkuk&jkedksV] ftyk&lhrkiqj o ykyrk izlkn f}osnh iq= nsoh izlkn f}osnh] fuoklh xzke&87 f}osnh fuokl eksgYyk rjhuiqj] tuin&lhrkiqj] gky&fuokl&45 c`Eguxj fudV&/keZdkaVk dksrokyh] lhrkiqj dks eqdnek vijk/k la[;k&[email protected]] Fkkuk&fefJ[k] ftyk&lhrkiqj ds vijk/k esa vUrZxr /kkjk&409 Hkkjrh; n.M lafgrk ds vkjksi esa lkr&lkr o"kZ ds dBksj dkjkokl o ,d&,d yk[k :i;s ds vFkZn.M ls] vFkZn.M vnk u djus ij ,d&,d o"kZ ds dBksj dkjkokl o ipkl&ipkl gtkj :i;s ds vFkZn.M ls] vFkZn.M vnk u djus ij N%&N% ekg ds vfrfjDr lk/kkj.k dkjkokl ls] vUrxZr /kkjk&[email protected] Hkkjrh; n.M lafgrk ds vkjksi esa lkr&lkr o"kZ ds dBksj dkjkokl o ,d&,d yk[k :i;s ds vFkZn.M ls o vFkZn.M vnk u djus ij ,d&,d o"kZ ds vfrfjDr lk/kkj.k dkjkokl ls o vkjksi vUrxZr /kkjk& 468 Hkkjrh; n.M lafgrk esa ikp¡&ikp¡ o"kZ ds dBksj dkjkokl o ipkl&ipkl gtkj :i;s ds vFkZn.M las o vFkZn.M vnk u djus ij N%&N% ekg ds vfrfjDr lk/kkj.k dkjkokl ds n.Mkns'k ds nf.Mr fd;k tkrk gSA vfHk;qDrx.k dh lHkh ltk;s lkFk&lkFk pysxhA vfHk;qDrx.k }kjk tsy esa fcrkbZ xbZ vof/k fu;ekuqlkj bl ltk esa lek;ksftr dh tk;sxhA

U;k;ky; ds mijksDr vkns'k fnukad 09&06&2015 ds vkyksd esa vijpkjh deZpkjh ds }kjk fd;s x;s vijk/k RkFkk foRrh; vfu;ferrk] xEHkhj izdfr dk dnkpkj gS] tks fd ,d ljdkjh deZpkjh ls fdlh Hkh n'kk esa visf{kr ugha gksrk gSA ,sls dk;ksZ esa fyIr deZpkjh dks lsok ls c[kkZLr fd;k tkuk mi;qDr gksrk gSA ftlls vU; dk;Zjr deZpkfj;ksa ds eu esa bl izdkj dh fdlh Hkh dk;Zokgh dh Hkkouk Hkh tUe u ys ldsA vipkjh deZpkjh ,oa nwljs vipkjh deZpkjh Jh ykyrk izlkn f}osnh ds dk;Zdky esa mDr izdj.k esa dqy :i;s 22]40]740&00 ¼la'kksf/kr vkx.ku vuqlkj½ dh /kujkf'k dk xcu dj fy;k x;kA nwljs 'kCnksa esa jkT; ljdkj dks izkIr gksus okys mDr jktLo dks vigfjr dj fy;k x;k gSA okLro esa fefJ[k midks"kkxkj fefJ[k esa xcu dh ?kVuk lkeus vk;hA rRle; midks"kkxkj fefJ[k esa ys[kkdkj ds in ij Jh ykyrk izlkn f}osnh ,oa mijksdfM+;k ds in ij Jh eksgu yky dk;Zjr FksA nksuks gh deZpkfj;ksa dks Ekkuuh; U;k;ky; }kjk mDr xcu ds vkjksi esa nks"kfl) ikrs gq, n.M fn;k x;k gSA vFkkZr xcu dh /kujkf'k dh ns;rk Hkh Ekkuuh; U;k;ky; ds vkns'k ds vkyksd esa nks"kh deZpkfj;ksa ij gh curh gSA

Hkkjrh; lafo/kku ds vuqPNsn&311 ¼2½ ds ijUrqd&d esa ;g O;oLFkk nh x;k gS fd Ekkuuh; U;k;ky; ls nks"kfl) gks tkus ds mijkUr fdlh ljdkjh lsod dks inP;qr ¼Dismissal½ in ls gVk;k tkuk ¼Removal½ ,oa inkour fd;s tkus gsrq Hkkjr ds lafo/kku ds vuqPNsn&311 ¼2½ ds vUrxZr okaNuh; tkap dh dk;Zokgh dh vko';drk ugha gksrh gSA rn~uqlkj mRrj izns'k ljdkjh deZpkjh ¼vuq'kklu ,oa vihy½ ds fu;e&3 ds vUrxZr vipkjh deZpkjh Jh eksgu yky dks Ekkuuh; U;k;ky; }kjk ikfjr vkns'k fnuakd 09&06&2015 dh frfFk ls lsok ls inP;qr ¼Dismissal½ fd;k tkrk gSA blds vfrfjDr mRrj izns'k ljdkj dks izkIr gksus okys jktLo :0 22]40]740&00] dh olwyh gsrq vyx ls dk;Zokgh fd;s tkus gsrq i`Fkd vkns'k ikfjr fd;s tk;sxsaA"

The Supreme Court in the case of Deputy Director of Collegiate Education (Administration), Madras vs. S. Nagoor Meera reported in (1995) 3 SCC 377 had an occasion to consider the scope and purport of Article 311 second proviso to (a) and in para7,8,9 and 10 it had held as under:-

"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. Section 389 of the Code of Criminal Procedure, 1973 empowers the appellate court to order that pending the appeal "the execution of the sentence or order appealed against be suspended and also if he is in confinement that he be released on bail or on his own bond." Section 389(1), it may be noted, speaks of suspending "the execution of the sentence or order", it does not expressly speak of suspension of conviction. Even so, it may be possible to say that in certain situations, the appellate court may also have the power to suspend the conviction - an aspect dealt with recently in Rama Narang v. Ramesh Narang. At pages 524 and 525, the position under Section 389 is stated thus: (SCC pp. 524-525, paras 15 and 16)

"Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'Order' in Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'Order' in- Section 389(1) mean order of conviction or an order similar to the one under Sections 357 or 360 or the Code? Obviously, the order referred to in Section 389(1) must be an order capable in execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which if not suspended, would be required to be executed by the authorities.

In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code would be invoked. in such situations, the attention of the Appellate Court must be specifically invited to die consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order 'for rea- sons to be recorded by it in writing'. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto?...... If such, a precise request was made to the Court pointing out the consequences likely to fall on the continuance of the conviction order, the Court would have applied its mind to the specific question and if it thought that case was made out for grant of interim stay of the conviction order, with or without conditions attached thereto, it may have granted an order to that effect. "

8. We need not, concerns ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311(2) is the "conduct which has led to his conviction on a criminal charge" and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal.

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. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this court in Shankardass v. Union of India (SCC p. 362, para7):

"Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the government the power to dismiss a person from services "on the ground of conduct which has led to his conviction on a criminal charge." But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly."

10. 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 proceedings, the matter can always be reviewed in such a manner that he suffers no prejudice."

In paragraph 10 of the judgment quoted hereinabove it has been categorically mentioned that what is really relevant [for the purpose of Article 311(2)(a) of the Constitution] is the conduct of the Government servant which has led to his conviction on a criminal charge. In the said case the respondent had been involved and found guilty of corruption. The Court opined "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 it suffers no prejudice." In the said case the conviction had not been stayed and only sentence had been stayed, but the observations made therein in the context of Article 311(2)(a) of the Constitution are also relevant for the present case also.

The judgment rendered in the case of S. Nagoor (supra) has been followed by the Single Judge of this Court in the case of Vinod Kumar Sharma vs. District Inspector of Schools, Moradabad and others, reported in 1995 (71) FLR 1086, wherein this Court has observed as under:-

"Para.3. In Special Appeal No. 66 of 1993 decided on 17.08.1994 it has been held that the services of an employee can be terminated even if his criminal appeal is pending in High Court. The Supreme Court in1995(3) JT page 32 has held that even if there is a stay or bail order in a criminal appeal it is wholly irrelevant in respect of the dismissal for the conviction under Section 302 I.P.C. Thus the law on this point is very clear that even if the conviction under Section 302 has been stayed by the High Court, the dismissal should not be stayed. It is only if the criminal appeal is allowed and the petitioner is acquitted then he is entitled to be reinstated. It is surprising that the petitioner who has been convicted under Section 302 IPC is praying for reinstatement as a teacher in a college. What will be the fate of such a college and what influence will be on the mind of the students of that college can well be imagined. It is surprising that now-a-days such persons are teachers. This writ petition cannot think of a worse kind of practice."

The Supreme Court had occasion to consider these issues in the case of Government of Andhra Pradesh and another vs. B. Jagjeevan Rao reported in (2014) 3 SCC 239 which referred to the aforesaid judgment of S. Nagoor Meera (supra) as also other cases and held in paragraph 11 of its judgment as under:-

"11.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 annullled, an employer cannot be compelled to take an employee back in service. Therefore, the High Court has clearly erred in its interpretation of Rule 25(1) and further committed illegality in not keeping in mind the distinction between stay of conviction and suspension of sentence as envisaged under Section 389(1) of the Code."

In the present case, though, the petitioner has not been convicted under the provisions of Prevention of Corruption Act but he has been convicted under Section 409, 419,420,467,468 and 471 IPC involving embezzlement of public money etc. which is no less grave an offence, especially considering the fact that the petitioner is a Government Servant convicted for embezzlement etc. for huge amount of about Rs.23 lacs and odd while working as Sub Cashier in Sub Treasury Mishrikh. In these circumstances, considering the expected standard of administration and the fact that petitioner's dismissal from service was based on consideration of his conduct which led to his conviction it cannot be said that merely because conviction has been stayed by the appellate court it would automatically lead to his reinstatement in service. To put back the petitioner in service that too as Sub Cashier in the Sub Treasury or even on any other assignment would be fraught with serious consequences, therefore, keeping in mind the aforesaid judicial pronouncements stay of such conviction cannot lead to his automatic reinstatement unless and until the conviction itself is annulled or set aside by the appellate or higher Court. Unless it is so, it is not advisable to retain such person in service. If he succeeds in appeal, then of-course the decision with regard to dismissal of service will be reviewed as it is based on conduct leading to his conviction, in such a manner that he suffers no prejudice but to put him back at this stage when criminal appeal is yet to be decided on merits, would be giving undue benefit at the interim stage. Moreover the stay of conviction is relevant when conviction attracts automatic disqualification under a Statute. In the instant case penal consequences are not automatic but based on conduct leading to petitioner's conviction on a criminal charge. Dismissal etc. from service, based on such conviction, is not automatic, therefore, reinstatement on mere stay of conviction in criminal appeal can also not be automatic, therefore, relief no.(ii) for reinstatement cannot be sustained. The stay does not wipe out the conviction finally.

As far as relief no.(i) regarding disposal of departmental appeal is concerned as the conviction has been stayed in criminal appeal and the appeal is still pending which is a continuance of the main criminal case, there is no way that the departmental appeal can be ordered to be disposed of nor can it be done by the appellate authority merely on account of stay of conviction, as, the stay order does not decide the merits of the criminal appeal which is still pending nor does it wipe off the conviction but only puts it in abeyance.

In taking this view, this Court is also supported by a recent judgment rendered in Special Appeal (Defective) No. 219 of 2015 (State of U.P. vs. Ram Milan Tewari).

As the only ground for seeking relief in the writ petition is stay of conviction by the appellate court which has already been discussed hereinabove and has not found favour with by the Court, therefore, there exists no valid ground for granting the relief prayed for in this writ petition.

In view of the aforesaid discussion, the writ petition is dismissed and disposed of accordingly.

Dated: 27.10.2015.

Vks.