Rajesh Singh vs State Of U.P. & Others
2017 Latest Caselaw 5626 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 11.8.2017
 
Delivered on 24.10.2017
 
Court No. - 26
 
Case :- WRIT - A No. - 68661 of 2011
 
Petitioner :- Rajesh Singh
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Kaushal Kishore Mishra
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard learned counsel for the petitioner, Sri Kaushal Kishore Mishra and Ms. Archana Tyagi, learned counsel appearing for the State respondents.

2. This writ petition has been filed by the petitioner challenging the order dated 4.2.2009 passed by the Settlement Officer, Consolidation, Moradabad dismissing the petitioner as Consolidation Lekhpal.

3. A further prayer has been made for commanding the respondents to reinstate the petitioner in service along with consequential benefits.

4. It has been argued by learned counsel for the petitioner, Sri Kaushal Kishore Mishra that the petitioner was appointed as Lekhpal in Consolidation Department through regular selection process on 25.7.1997 and was also confirmed thereafter.

5. In pursuance of an FIR lodged on 27.10.2000 in Police Station Dhampur, District Bijnour under Section 323 & 307 IPC, the petitioner was arrested. Later on, the injured victim died and the charging Sections were altered to 302 IPC. The petitioner having been arrested on 7.11.2000 was suspended by an order dated 15.12.2000. Later on, on being granted bail by this Hon'ble Court, he approached the department and he was reinstated on 12.1.2001.

6. Learned Trial Court found the petitioner guilty on all charges and sentenced him to rigorous life imprisonment under Section 302 IPC along with Fine of Rs. 50,000/- and besides sentencing him with respect to other Sections also.

7. Against the judgment and order dated 4.2.2009 passed by the Additional Sessions Judge, Court No.2, Bijnor, the petitioner preferred a Criminal Appeal No. 935 of 2009, which was admitted on 20.2.2009 and the petitioner was granted bail on 7.7.2009, but the respondent no.3 Settlement Officer, Consolidation even after obtaining legal advise, which was rendered in favour of the petitioner, dismissed the petitioner from service by order dated 21.7.2009.

8. It is the case of the petitioner that in the order of dismissal dated 21.7.2009, mention has been made of Government Order dated 12.10.1979 issued by the Department of Personnel, wherein it had been provided that in case sentence of life imprisonment for conviction, an employee can be dismissed from service.

9. Counsel for the petitioner has argued that the Government order dated 12.10.1979 does not require compulsory termination of service of a convicted person, but has given a discretion to the department concerned to take action, looking into the facts of each and every case. The said Government Order also says that the order of conviction on the basis of which dismissal can be ordered of a Government servant would be conviction finally upheld affirmed by the Appellate Court, and if there is an acquittal in Appeal, then it will be presumed that the employee had never been convicted and such an employee will be reinstated in service with all consequential benefits.

10. Learned counsel for the petitioner has argued on the basis of judgments rendered by Hon'ble Single Judges dealing with similar controversy that since the petitioner's appeal was pending and he had been granted bail, the Authority concerned should have taken the said fact into account and allowed the petitioner to continue. Even if such a punishment order was to be passed, then the Appointing Authority was duty bound to give opportunity of hearing to the petitioner instead of simply dismissing the petitioner in an arbitrary manner.

11. The judgments relied upon by the learned counsel for the petitioner are as follows:-

(i) Sada Nand Mishra Vs. State of U.P. & others 2000 (2) ESC 832

(ii) Ram Pratap Singh Vs. State of U.P. & others 2009 (2) UPLBEC 1231 and;

(iii) judgment and order dated 22.2.2012 in Writ Petition No. 58169 of 2009 Shyam Bihari Tiwari Vs. State of U.P.

12. It has been argued that the judgment rendered in Shyam Bihari Tiwari has considered the Constitution Bench Judgment in the case of Union of India Vs. Tulsi Ram Patel 1985 (3) SCC 398, wherein it has been observed that where a Disciplinary Authority comes to know that a Government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty it should be. For that purpose, it will have to peruse the judgment of the criminal Court and consider all the facts and circumstances of the case and the various factors set out in Challappan's case. This, however, has to be done by it ex-parte and by itself. Once the Disciplinary Authority reaches the conclusion that the Government servants' conduct was such as to require his dismissal or removal from service or reduction in rank, he must decide which of these three penalties should be imposed upon him. This too it has to do by itself and without hearing the concerned Government servant by reason of the exclusionary effect of the second proviso to Article 311(2). It is after such a punishment order is passed, the Government servant, who is aggrieved by the penalty imposed, can agitate in Appeal, Revision or Review, as the case may be, that the penalty was too severe or excessive and in case he fails in all the departmental remedies available to him, such a Government servant can always challenge the order of punishment in judicial review before the Writ-Court. The Writ-Court shall be entitled to consider whether the penalty imposed by the Appointing Authority is arbitrary or grossly excessive or out of all proportion to the offence committed, or not warranted by the facts and circumstances of the case, and it may strike down such punishment order or it may substitute a penalty which in its opinion would be just and proper in the circumstances of the case.

13. This Court sitting in Coordinate jurisdiction after considering the law as settled by the Supreme Court in the case of Tulsi Ram Patel (supra) has held that conviction alone is not enough to punish a Government employee, but the conduct of employee concerned, which has led to his conviction has to be seen in every case. Firstly by the Appointing Authority, then in Appeal or Revision or even in a judicial review by the Writ-Court.

14. This Court in Shyam Bihari Tiwari, while allowing the writ petition had relied upon observations made by Coordinate Bench in Ram Pratap Singh Vs. State of U.P. & others (supra). It has observed that the Government Order dated 12.10.1979 saying that it merely reiterates the provision of Article 311, that no enquiry is required when order of conviction has been passed. In the matter of conviction, no regular departmental enquiry is required to be undertaken, however, dispensing with the service of the Government servant so convicted cannot also be done unless the Appointing Authority considers the conduct of the Government servant which led to his conviction.

15. I have considered the afore-cited judgments rendered by Coordinate Benches of this Court. In the first judgment i.e. the Sada Nand Mishra, the writ petitioner was a senior division Clerk and had been convicted and sentenced for life imprisonment under Section 302 IPC besides on other charges also. This Court has set aside the order of dismissal on the ground that it cannot be said that the Appointing Authority had considered the conduct of the petitioner, which led to his conviction, from the order of dismissal impugned in the writ petition and it was necessary to write in the punishment order that due to the action of the petitioner which led to his conviction, his further retention in Public Service was undesirable. In the absence of such indication being given in the dismissal order, merely mentioning the reason of his conviction for passing the impugned order of dismissal was impermissible. The order of dismissal was set aside and it was left open to the Competent Authority to pass a fresh order in accordance with law.

16. In the case of Ram Pratap Singh (supra), the writ petitioner therein, was serving as Seenchpal in the Irrigation Department and he was convicted under Section 302 IPC and sentenced to life imprisonment. The petitioner had preferred an Appeal against the order of conviction of sentenced, which was entertained by this Court and the writ petitioner had been granted bail.

17. It was submitted before the Court that instead of examining his conduct, which led to his conviction and recording a finding that he was unsuitable for retention in Government service on the ground of conviction under Section 302 and sentence of life imprisonment, summary dismissal could not be allowed. The impugned order of dismissal was set aside and it was directed that the respondent therein must consider the petitioner's conduct, which had led to his conviction and pass a fresh orders in accordance with law.

18. In Shyam Bihari Tiwari (supra), the writ petitioner was convicted on 12.9.2008 by the Sessions Court under Sections 498-A & 304-B IPC and he was released on bail on 17.9.2008 in criminal appeal by the High Court. He had filed a representation to the Appointing Authority to allow him to continue in service as he had been granted bail by this Court, but he was dismissed from service on 9.10.2009.

19. This Court after placing reliance upon Tulsi Ram Patel Vs. Union of India and Ram Pratap Singh Vs. State of U.P. & others had observed that in the impugned order of dismissal, no reasons have been given for dismissing the petitioner except making a mention therein that the petitioner had been convicted under Sections 498-A & 304-B IPC. His conduct, which led to his conviction ought to have been examined by the Punishing Authority before passing appropriate orders of punishment. The order of dismissal was set aside and the matter was remanded to the Appointing Authority for passing appropriate orders afresh in the matter, after applying its mind to the facts and circumstances of the case and the conduct of the petitioner, which led to his conviction.

20. Learned counsel for the petitioner has argued that from the order impugned dated 21.7.2009, it is apparent that Settlement Officer, Consolidation, Moradabad had only taken into account the conviction of the petitioner and his sentence of life imprisonment. The Appointing Authority had thereafter considered legal opinion given by the District Government Counsel (Civil) and had relied upon Government Order dated 12.10.1979, wherein a discretion had been given to the Appointing Authority to pass appropriate order of punishment without awaiting the decision of the Competent Court in criminal appeal. The appointing Authority had not looked into the facts and circumstances, and the conduct of the petitioner, which led to his conviction and therefore the impugned order of dismissal is liable to be set aside.

21. It has been argued by the learned counsel for the petitioner that since a Criminal Appeal had been admitted and he has been granted bail, the petitioner may be allowed to continue till the conviction order is affirmed in Criminal Appeal or in the alternative, this Court may set aside the impugned order of dismissal and remand the matter to the Punishing Authority to pass appropriate order of punishment, taking into account the conduct of the petitioner, which led to his conviction.

22. This Court is aware of later Developments in law as laid down by the Hon'ble Supreme Court in Government of Andhra Pradesh Vs. B. Jagjeevan Rao 2014 (7) SCALE 434, wherein the respondent had been charge sheeted and convicted after trial of an offence under Section 7 and Section 13-1(d) of the Prevention of Corruption Act, 1988. Following the conviction, the respondent had been dismissed from service. The High Court had set aside the dismissal order, after noticing the decisions rendered in the case of Tulsi Ram Patel (supra) and S. Nagoor Meera 1995 (3) SCC 377. The Supreme Court observed that keeping in view the expected standards of administration, conviction on the charge of the corruption has to be viewed seriously and unless the conviction is annulled, an employer cannot be compelled to take back such an employee in service.

23. In Deputy Director of Collegiate Education (Administration) Madras Vs. S. Nagoor Meera 1995 (3) SCC 377, the employee concerned had been convicted under Section 420 IPC read with section 5 of the Prevention and Corruption Act, 1988. The employee, following the order of conviction had been served with a show cause notice for termination, which show cause notice was quashed by the Tribunal. The Tribunal had held that until an Appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. The Supreme Court quashed the order impugned in Appeal and observed "what is really relevant thus is a conduct of the Government servant, which has led to his conviction on a criminal charge. Now in this case, the respondent had 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 a person in service. As stated above, if he succeeds in Appeal or other proceedings, the matter can always be viewed in such a manner that he suffers no prejudice."

24. This Court sitting in Division Bench in State of U.P. Vs. Prem Milan Tiwari 2015 (3) ADJ 407, was considering the case of the respondent, who was a constable in Police Department and who was tried and convicted by the Additional Sessions Judge, Ballia under Section 302 of the IPC and sentenced to imprisonment for life.

25. This Court sitting in writ jurisdiction had allowed reinstatement of the respondent together with consequential benefits and continuity of service on the ground that the Supreme Court in Tulsi Ram Patel Vs. Union of India (supra) had held that the Appointing Authority had failed to consider the conduct of the respondent, which led to his conviction, before imposing the punishment of dismissal by means of the impugned order.

26. The Writ-Court was of the view that unless the Authority had applied its mind to the conduct, which led to his conviction, and the quantum of punishment, the exercise of powers under Article 311-2(a) or Rule 8-2(a) of the U.P. Police Officers of Subordinate Ranks (Punishment an Appeal) Rules, 1991 could not be regarded as valid.

27. This Court observed that the respondent had been found guilty after a Sessions trial of an offence punishable under Section 302 IPC and was sentenced for imprisonment for life. In such circumstances, the second proviso to Article 311(2) would clearly be attracted and the State cannot be regarded as having acted with perversity in dismissing a person, who has been convicted of a serious offence like that of murder. The conduct of the respondent, which had led to his conviction of a charge under Section 302 IPC cannot, by any circumstance, be regarded as warranting any treatment other than the punishment order of dismissal under Clause (a) of the second proviso to Article 311(2) or under Rule 8(2)(a).

28. Ultimately, as has been held by the Supreme Court, until the conviction is set aside by an Appellate Court or Higher Court, it would not be advisable to continue such a person in service. If he succeeds in Appeal or in any other proceeding, the matter can always reviewed in such a manner that he would not suffer any prejudice. Consequently, the Hon'ble Division Bench set aside the impugned judgment of the Writ-Court.

29. This Court is in respectful agreement with the observations made by the Hon'ble Division Bench in the case of Prem Milan Tiwari (supra). The observations made by the Constitution Bench in the case of Tulsi Ram Patel (supra) and in Shanker Das (supra) have to be read in the context, in which such observations have been made. In Tulsi Ram Patel, the employees of a Central Paramilitary Force had been convicted for taking part in an Armed uprising against the Superior Officers.

30. In Shanker Das, (supra) the appellant had been convicted by the Magistrate of an offence under Section 409 of the IPC, but having regard to the peculiar circumstances relating to the crime and the criminal, he was released under Section 4 of the Probation of an Offenders Act, 1958. Based on the conviction, the appellant had been dismissed from service. The Supreme Court observed that under second proviso to Article 311(2), the Appointing Authority had been given a power to dismiss a person from service, on the ground of conduct which led to his conviction on a criminal charge. That power had to be exercised reasonably and mere conviction, for example, for parking a Scooter in a no parking area should not result in dismissal from service. The right to impose a penalty carries with it the duty to act justly, the punishment should be proportionate to the conduct of the employee leading into his conviction. There may be circumstances, wherein the Appointing Authority may impose a different punishment other than dismissal, for example, reduction in rank or withholding annual increments cumulatively and permanently, which are also major penalties. These observations of the Supreme Court related to such criminal conduct as would entail only a minor sentence of imprisonment, such imprisonment may be for three years, seven years or even ten years or even more, but not life imprisonment. The conduct also should be such as would entail only minor penalty as a slight brush with the law, for example, trespass, assault or battery.

31. However, when a competent trial Court has found in a Sessions Trial that the employee concerned is guilty of murder, after considering all evidence on record and such conviction is not stayed by the High Court during the pendency of Criminal Appeal, and only bail is granted, on an application no. 389 of Cr.P.C., then the facts would certainly entitle the Appointing Authority to pass an order of dismissal. If and when such an order of dismissal is set aside in Criminal Appeal, then the punishment may be reviewed and the employee concerned may be given reinstatement with consequential benefits.

32. In this view of the matter, the Appointing Authority would be justified in dismissing an employee sentenced for life imprisonment and the observation that the Appointing Authority should examine the conduct of the employee, which led to his conviction does not mean that the Appointing Authority should reappraise the evidence, which was found sufficient in the criminal trial by the competent Sessions Court for imposing a punishment of life imprisonment for murder. The attenuating circumstances that led to conviction under Section 302 IPC could have been looked into for mitigating the severity of sentence by the competent trial court only. Since, the trial court had examined the evidence and convicted the person and thereafter and also considered the mitigating circumstances which would lead to imposition of a lesser sentence and then passed an order imposing sentence for life imprisonment, the Appointing Authority cannot go beyond the observation made by the learned trial court, and reconsider all evidence and then pass an order imposing major penalty other than dismissal and allow a life convict to continue in service as a Government servant.

33. The writ petition is dismissed as devoid of merits. No order as to costs.

Order Date :- 24.10.2017

Arif