Mahendra Kumar vs Union Of India And 5 Others
2018 Latest Caselaw 2506 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
 Reserved on 01.08.2018 
 
Delivered on 12.09.2018 
 
In Chamber
 

 
Case :- WRIT - A No. - 27271 of 2014
 

 
Petitioner :- Mahendra Kumar
 
Respondent :- Union Of India And 5 Others
 
Counsel for Petitioner :- R.D. Tiwari,M.D. Singh Shekhar
 
Counsel for Respondent :- A.S.G.I.,Jyotsna Srivastava,U.P.Singh
 

 
Hon'ble Chandra Dhari Singh,J.

01. Heard Sri M. D. Singh Shekhar, learned Senior Counsel assisted by Ms. Amrita Singh for the petitioner and Sri Uday Pratap Singh, learned counsel for the respondents.

02. The instant writ petition is directed against the order dated 18.01.2012 passed by the respondent no.3, Assistant General Manager, Bank of Baroda, Allahabad by which the petitioner was dismissed from service with immediate effect and order dated 12/13.03.2012 passed by Deputy General Manager, Bank of Baroda, Lucknow, whereby an appeal filed against the order dated 18.1.2012 was rejected.

03. Brief factual matrix relevant for the disposal of the matter as disclosed in the writ petition is that the petitioner was appointed as Driver on 05.05.1990. His work and conduct was fully satisfactory and there was no complaint with regard to his working or conduct. Ramji, his younger brother was married to one Urmila on 11.11.2003. Unfortunately Urmila expired on 02.12.2003. With regard to the death of Urmia, a report was lodged by her father Chhotey Lal at Police Station Ghoorpur, Allahabad, on the basis of which, a criminal case was registered under Sections 498-A and 304-B I.P.C. read with Section 3/4 of D. P. Act. The aforesaid F.I.R. was lodged against nine members of the family of the petitioner including the petitioner. A chargesheet was submitted against the petitioner before the court concerned. The Additional Sessions Judge, court no.13, Allahabad passed an order/judgment on 09.09.2011 in Sessions Trial No.618 of 2006 by which the petitioner found guilty and was sentenced to undergo ten years R.I. for offence punishable under Section 304-B I.P.C., and also sentenced to undergo two years simple imprisonment and penalty of Rs.2000/- for the offence punishable under Section 498-A. In default of payment of fine, two months' simple imprisonment. He was also sentenced to undergo one year simple imprisonment with penalty of Rs.1000/- under Section 4 of D.P. Act. In default of payment of fine one month simple imprisonment.

04. Aggrieved by the judgment and order dated 09.09.2011, the petitioner has filed a criminal appeal before this Court under Section 374 Criminal Procedure Code, which has been registered as Criminal Appeal No.5490 of 2011. In the said criminal appeal the petitioner has been released on bail and the sentence passed against the petitioner has been suspended during the pendency of the appeal. Having been released on bail, the petitioner submitted an application dated 14.12.2011 for being permitted to join the bank. The Assistant General Manger, Regional Office, Allahabad issued a show cause notice dated 03.01.2012 to the petitioner calling upon him to show cause as to why the petitioner should not be dismissed from service in exercise of powers clause 3 (b) of Settlement 202 and Section 10 (1) (b) (i) of Banking Regulation Act, 1949. The aforesaid show cause notice was based on judgment/order dated 09.09.2011 of the Additional Sessions Judge. In response to the show cause notice, the petitioner submitted a detailed reply dated 10.01.2012. The Assistant General Manager, Allahabad Region Allahabad dismissed the petitioner from service with immediate effect vide order dated 18.01.2012. The petitioner filed a representation before the Regional Manager. He also filed a writ petition before this Court praying for setting aside the order dated 18.01.2012. This Court vide order dated 09.02.2012 dismissed the writ petition with direction to avail alternative remedy of appeal available in the statute under Para 521 (12) of Sastry Awards. The petitioner filed an appeal before the General Manager (HRM), Bank of Baroda, U.P. & Uttarakahand Zone on 23.03.2012. On 12/13.03.2012 the Deputy General Manager, Bank of Baroda, Lucknow dismissed the appeal. The petitioner made a representation to the Chairman/Chief Managing Director, Bank of Baroda, respondent no.6 in which, it is stated that the appeal of the petitioner was decided by the respondent no.4 on 13.03.2012 even before filing of the appeal by the petitioner on 23.03.2012.

05. Aggrieved by the order dated 12/13.03.2012 and order dated 18.01.2012, the instant writ petition has been filed. In the writ petition it is stated that the respondent nos.3 and 4 while passing the order of punishment and the affirmation of the punishment order in appeal on the ground of involvement of the petitioner in a criminal case had not taken into consideration the order dated 22.11.2011 passed by this Court. By order dated 22.11.2011, this Court had granted bail to the petitioner and suspended the sentence on the view that there was no direct evidence to show as to which all nine accused were responsible for causing the injury to the deceased. At the most on the facts and circumstances of the case the act of causing injury to the deceased would be of the husband and mother-in-law but not of the entire family which includes petitioner. However, the petitioner had joined the service on 05.05.1990 as a Driver in the respondent's Bank and prior to this incident there was no complaint against him of any sort rather the petitioner's sincerity and job responsibility was appreciated by the authority under whom he was working, as such, the petitioner was not entitled to get punishment of dismissal ignoring other provisions of Bipartite Settlement which makes a provision for the proportionate punishment under the attending circumstances of the case.

06. The respondents while passing the impugned order had failed to appreciate that the law is well settled that in the cases of the criminal involvement, the conduct of the employee in the criminal case is required to be considered while awarding the departmental punishment to judge the gravity of the punishment. Here in the present case, while awarding a maximum punishment of the dismissal neither respondent no.3 nor respondent no.4 at all had considered the conduct of the petitioner in a criminal case which was relating to the death of the wife of his younger brother who was living separately, as such, the impugned orders are liable to be set aside.

07. In the counter affidavit contentions made in the writ petition are denied. It is contended that the order of dismissal from services of the petitioner was passed by the Assistant General Manager, Bank of Baroda, Allahabad after considering all aspects as well as the reply submitted by the petitioner. The next higher authority is Deputy General Manger, Zonal Office, Lucknow who shall be the appellate authority as per the Rules of the Bank. The appellate authority rightly acted under its jurisdiction considered the appeal dated 28.01.2012 in detail and rightly rejected the same vide reasoned order dated 13.03.2012.

08. In the counter affidavit, it is contended that there is clear finding in the order of the trial court that the petitioner has not been able to establish on evidence before the trial court that he was living separately. The petitioner has been only granted bail vide order dated 22.11.2011 by this Court. His conviction has not been set aside or stayed/suspended. The appellate authority before dismissing the appeal of the petitioner has considered each and every ground raised by him in his appeal. Management was under an obligation under Section 10(1) (b) (I) of the Banking Regulation Act, 1949 to discontinue the services of an employee who is or has been convicted by a criminal court of an offence involving mortal turpitude. Conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceeding against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. As per Bipartite Settlement dated 10.04.2002, wherein clause 3(b) specifically provides, if he be convicted, he may be dismissed w.e.f. his date of conviction or be given any, lessor form of punishment as mentioned in clause 6. Petitioner's conduct was found to be gross misconduct as mentioned under clause 5(5) of the Bipartite Settlement, 2002.

09. In the rejoinder affidavit, all contentions made in the counter affidavit have been denied. It is contended that at the time of passing of the order dismissing the petitioner from service, respondents no.3 and 4 has not taken into consideration that the criminal appeal filed by the petitioner against the order of conviction is pending before this Court and as such, it is evident that his conviction has not been finalized, therefore, the respondents-authorities committed manifest error of law and illegality apparent on the face of the record while dismissing the petitioner from service by taking into cognizance on conviction order of the petitioner which has not been attained finality and is still pending consideration before the High Court in criminal appeal filed by the petitioner. It is further contended that the appeal filed by the petitioner against the order of dismissal from service contained cogent and valid grounds but the appellate authority has not considered the aforesaid appeal of the petitioner in its correct perspective rather he has rejected the same mechanically on the basis of irrelevant consideration.

10. In the rejoinder affidavit, it is contended that the appeal filed by the petitioner against the order of dismissal dated 18.01.2012 was heard by the appellate authority but while hearing said appeal, the pleadings and grounds mentioned by him in his appeal was not taken into account and only on the basis of alleged conviction of the petitioner by the lower court, the appellate authority has dismissed the appeal of the petitioner, while his conviction in criminal case has not been established so far and the same is pending for consideration before this Court in criminal appeal and as such the appellate authority committed gross illegality in rejecting his appeal.

11. Mr. M. D. Singh Shekhar, learned Senior Counsel appearing on behalf of the appellant submitted that once the sentence was stayed by this Court in the appeal filed by the petitioner, there was no occasion for the respondents to pass orders on the basis of the conviction since the same was not executable and the action could have been taken only when the conviction is operating namely the judgment convicting him would have attained finality i.e. become capable of execution. He further submits that mere conviction is not sufficient to empower the Disciplinary Authority to pass an order of removal against the petitioner inasmuch as it is the conduct, which has led to conviction on a criminal charge which has to be considered by the competent authority and, thereafter, it has to decide as to whether any punishment is required to be imposed and if so, the quantum of punishment. It is further argued that in the present case both orders no where show that the authorities have applied their mind to the conduct, which has led to conviction. The impugned orders are totally unreasoned, non speaking, showing lack of application of mind on the part of the respondents to the conduct, which has led to conviction.

12. Mr. Singh referred a judgment of this Court in the case of Brahma Dev vs. Life Insurance Corporation of India and others 2008 (5) ESC 3329 (All) and this Court has held as follows:-

"14. It has also been held by the Apex Court in the same judgment that in cases where an employee is convicted on a criminal charge, the appropriate course would be in all such cases to take action and not to wait for the result of the appeal or revision as the case may be. It is always open to the authorities to revise its order and reinstate the Government Servant with all the benefit if in appeal or other proceedings the Government Servant accused is acquitted."

"15. Similar view has been taken by a Division Bench of this Court in the case of Mohan Lal v. State of U.P. 1998 (78) FLR 987 and relying on Nagoor Meera Case (supra) this Court in para 7 held as under:

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 hared merely because the sentence and 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. In view of this authoritative pronouncement, the order dismissing the appellant from service cannot be set aside on the ground that the operation of the judgment by which the appellant had been convicted under Section 304, Part-I IPC has been stayed in the Criminal Appeal preferred by him."

"17. Now coming to second question, it has to be seen whether impugned orders have been passed considering the conduct of the petitioner, which has led to his conviction in a criminal charge. The removal order passed by the respondent No. 3 in the earlier part only refers to the factum of conviction, arrest of the petitioner, bail granted to him, suspension and show cause notice dated 17th June 2004 and the penultimate paragraph of the order, after referring to the aforesaid factual aspect, is only to the following effect:

"And whereas on going through the above mentioned reply of Sri Brahm Dev carefully and after examining the all available records related with the matter it has been found that the aforesaid reply of Sri Brahm Dev does not effect the penalty proposed in the show cause and he is found guilty of misconduct leading to moral turpitude having regard to the judgment delivered by trial court.

And the conduct that led to his conviction under Sections 302 307 504 506 of I.P.C.;

Now therefore in exercise of powers conferred upon me under Regulation 39(4)(I) of the L.I.C. of India (Staff) Regulation 1960 read with schedule-1, I, disciplinary authority hereby impose the penalty of Removal From Service under Regulation 39(1)(f) of L.I.C. of India (Staff) Regulation, 1960 on Sri Brahm Dev. HGA.

Dated at Bareilly this 14th day of September, 2004."

"20. In the case of Union of India v. Tulsi Ram Patel MANU/SC/0373/1985 : (1985)IILLJ206SC , the Apex Court while considering the part materia provision under Article 311 of the Constitution of India, held as under: -

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."

"26. In the present case, since the respondents have failed to consider the conduct of the petitioner which has led to his conviction before imposing the punishment of removal by means of the impugned order and, therefore, the writ petition is liable to succeed on this ground."

13. Per contra Sri Uday Pratap Singh, learned counsel for the respondent-bank submitted that after the conviction of the petitioner for the offence involving "moral turpitude", the bank decided to issue show cause notice in terms of clause 3(b) of the Bipartite Settlement 2002 and Section 10 (1) (b) (i) of the Banking Regulation Act, 1949. After considering the reply of the petitioner, the bank decided to dismiss the petitioner from service as in terms of the statutory provision of Banking Regulation Act, 1949, which provides that the management shall not permit any person convicted for an offence involving "moral turpitude" to continue in employment. It is further submitted that the management was under the obligation as per the Section 10(1) (b) (i) of the Banking Regulation Act,1949 to discontinue the services of an employee, who is or has been convicted by a criminal court of an offence involving "moral turpitude".

14. He further submitted that there is clear finding in the order of the trial court that the petitioner has not been able to establish on evidence before the trial court that he was living separately. The petitioner has been only granted bail vide order dated 22.11.2011 by the High Court but his conviction has not been set aside/stayed/suspended. It is further stated that appellate authority before dismissing the appeal of the petitioner has considered each and every ground raised by him in his appeal dated 28.01.2012 and after considering all aspects of the case, the petitioner has been dismissed from the service as per obligation under Section 10(1) (b) (i) of the Banking Regulation Act, 1949 as he was convicted by the criminal court for an offence involving "moral turpitude".

15. Sri U.P. Singh, learned counsel for the respondents submitted that conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceeding against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. As per Bipartite Settlement dated 10.04.2002, wherein clause 3(b) specifically provides, if he be convicted, he may be dismissed w.e.f. his date of conviction or be given any lessor form of punishment as mentioned in clause 6. Petitioner's conduct was found to be gross misconduct as mentioned under clause 5(5) of the Bipartite Settlement, 2002.

16. Learned counsel appearing on behalf of the respondents referred a judgment of the Hon'ble Supreme Court in the case of Union of India vs. V.K. Bhaskar 1997 (11) SCC 383. In this case the Hon'ble Supreme Court has held as under:-

4. Rule 19(i) of the Rules is based on Clause (a) of the proviso to Sub-article (2) of Article 311 of the Constitution construing the said proviso to Article 311(2), this Court, in Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera has held : (JT pp. 34-36, paras 7-10).

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 CrPC, 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.

** ****** * * * * * We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal of 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.

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) 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).

******** ** * * 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.

7. We do not find any merit in this submission. The order of dismissal has to be read as a whole. If it is thus read, it would be found that in the first paragraph of the order the authority has referred to the fact of the respondent having been convicted on a criminal charge under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 409, 477A and 120B I.P.C. and his having been awarded the penalty of rigorous imprisonment for one year and a fine of Rs 500 by the Special Judge, Jalandhar, on 17.5.1985. In the second paragraph of the said order the disciplinary authority has stated :

It is considered that the conduct of Shri Vinod Kumar Bhaskar which has led to his conviction is such as to render his further retention in the public service undesirable/ the gravity of the charge is such as to warrant the imposition of a major penalty of misappropriation of a sum of Rs 300 (approx.) along with other accused Man Singh, Jawala Das and Kewal Chander Kumar.

8. The said statement in the order of dismissal indicates that the disciplinary authority has applied its mind and after considering the conduct of the respondent which has led to his conviction on a criminal charge, has arrived at the conclusion that the said conduct was such as to render the further retention of the respondent in the public service undesirable. It cannot, therefore, be said that the order of dismissal was passed without the disciplinary authority applying its mind to the nature of the conduct of the respondent which led to his conviction on a criminal charge and which has rendered him undesirable to be retained in service.

9. The third paragraph of the order of dismissal refers to the advice that has been received from the Ministry of Law and Justice only for the purpose of arriving at the conclusion that in such a case it is not necessary to issue a charge-sheet or show-cause notice to a person who has been found guilty by court of law. The reference to the said advice from the Ministry of Law and Justice does not mean that the disciplinary authority had not considered the matter in the light of the requirements of Rule 19(i) especially when a specific mention has been made about it in the second paragraph of the order. We are, therefore, unable to hold that the order dated 20.11.1986 dismissing the respondent from service has not been passed in accordance with the requirements of Rule 19(i) of the rules, as construed by this Court in Union of India vs. Tulsiram Patel 1985 (3) SCC 398.

17. He further relied upon a judgment of Madhya Pradesh High Court in the case of Jamna Prasad vs. State of M.P. and others 2003 ILR (M.P.) 368, the Madhya Pradesh High Court has held as under:-

"8. What emerges out of the aforesaid discussion is that Appellate Court and Revisional Court can, in exercise of power under Sections 389(1)/482, Code of Criminal Procedure, 1973, stay the execution of sentence or order capable of execution but stay of conviction can be passed in exceptional cases after Court carefully examines the conduct of accused, facts of the case and possible ramifications or avoiding irretrievable consequences. However, in both the cases, the conviction and sentence can not be effaced. It is the irretrievable consequence in the former case and execution of sentence in the latter case which can be stayed. With regard to Government servant, competent authority can terminate the services after conviction by Criminal Court. Stay of execution of sentence will not debar it from doing so unless conviction is also stayed in exercise of power in light of principles laid down by the Apex Court in K.C. Sareen 's case (supra). Further, on termination order having been passed, master and servant relationship terminates and filing of appeal and stay of execution of sentence do not revive it. He can not be taken to be under suspension from the dale of termination following conviction by Trial Court till the date of judgment by the Appellate Court. Therefore, he would not be entitled to claim subsistence allowance for this period.

9. The result is that the decisions of this Court in Jagdish Prasad's case (supra), followed in Vishwas Rao's case (supra) do not lay down correct law and are, therefore, Overruled. Matter will appear before the Division Bench for disposal on merits."

18. The questions arise for adjudication in the present case are (1) whether the authorities could have proceeded under the Banking Regulation Act, 1949, when the order of the trial court with respect to sentence has been stayed by the Court in appeal (2) whether the impugned order of removal has been passed in compliance of Regulation 1949 and after considering the conduct of the petitioner which has led to his conviction.

19. Before dealing with the aforesaid question, it would be appropriate to discuss legal issues and statutory provisions.

20.(i) The Central Government Act, Section 10(1) in the Banking Regulation Act, 1949 reads as under:-

(b) shall employ or continue the employment of any person--

(i) who is, or at any time has been, adjudicated insolvent, or has suspended payment or has compounded with his creditors,or who is, or has been, convicted by a criminal court of an offence involving moral turpitude; or

20.(ii) Article 311 (2) of the Constitution of India reads as under:-

"(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) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.

20.iii) As per BIPARTITE SETTLEMENT DATED 10.04.2002, disciplinary action against workmen staff and procedure therefor reads as under:-

" A person against whom disciplinary action is proposed or likely to be taken shall in the first instance be informed of the particulars of the charge "against him and he shall have' a proper opportunity to give his explanation as to such particulars. Final orders shall be passed after due consideration of all the relevant facts and circumstances. With this object in view, the following shall apply.

3 (b) If he be convicted, he may be dismissed with effect from the date of his conviction or be given any, lesser form of punishment as mentioned in Clause 6.

5. By the expression "gross misconduct" shall be meant any of the following acts and omissions on the part of an employee:

5 (s) Conviction by a criminal Court of Law for an offence involving moral turpitude."

21. In England, a civil servant holds his office during the pleasure of the crown. His services can be terminated at any time by crown without giving any reasons. Article 310 of the Constitution of India incorporates the English doctrine of pleasure by clearly stating that every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. But this power of the government is not absolute. Article 311 puts certain restrictions on the absolute power of President or Governor for dismissal, removal or reduction in rank of an officer.

22. The legal position with regard to clause (a) of second proviso to Article 311 (2) the order of the appellate court under Section 389 (1) of the Code of Criminal Procedure, 1973 seems to me is that by the order of suspension of sentence or the order of appealed against, the execution of the sentence or order appealed against is suspended but it is not obliterated or wiped out. Such order of conviction despite the order of suspension of its execution remains in existence. Moreover, for the purpose of clause (a) of second provision of Article 311 (2) of the Constitution of India what is pertinent and relevant in the conduct which led to the delinquent's conviction on a criminal charge does not result in suspending the conduct. The conviction of the employee for the purpose of clause (a) of second proviso to Article 311 (2) is determinative of the disciplinary action provided therein.

23. Coming to clause (B) of the second proviso to Article 311 (2), there are two conditions precedent which must be satisfied before action under this clause is taken against a government servant. These conditions are:-

24. (i) There must exist a situation which makes the holding of an inquiry contemplated by Article 311 (2) not reasonably practicable, What is requisite is that the holding of inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry The disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the civil servant is weak and is, therefore, bound to fail.

24. (ii) Another important condition precedent to the application of clause (b) of the second proviso to Article 311 (2) or any service Rule is that the disciplinary authority should record in writing the reason/s for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311 (2) or corresponding proviso in the service Rules. This is a Constitutional obligation and, if the reasons are not recorded in writing, the order dispensing with the inquiry and the order of penalty following it would both be void and unconstitutional. It should be kept in mind that the recording in writing of the reasons for dispensing with the inquiry must precede an order imposing the penalty. The reason for dispensing with the inquiry need not find a place in the final order itself, though they should be recorded separately in the relevant file.

25. The power to be exercised under clauses (a) (b) and (c) being special and extraordinary powers conferred by the Constitution, there was no obligation on the part of the disciplinary authority to communicate the reasons for imposing the penalty of dismissal and not any other penalty. For taking action in due discharge of its responsibility for exercising powers under clause (a) or (b) or (c), it is nowhere provided that disciplinary authority must provide the reasons indicating application of mind for awarding punishment of dismissal.

26. Article 311 (2) of the Constitution concerns itself with the punishment of dismissal, removal or reduction in rank, which comes in the category of major punishment under the service Rules providing the procedure for disciplinary action against the Government servant. First step in the procedure is the service of memorandum of charges or chargesheet on the government servant, listing charges against him and calling upon him by a specific date to furnish a reply either denying or accepting all or any of the charges. An inquiry hence commences under the service Rules with the service of the charge-sheet.

27. In the case of J. M. Ajwani vs. Union of India SLR 1967 SC 471, Hon'ble Supreme Court held that the pleasure doctrine incorporated in Article 310 as also the fetters imposed on its exercise by Article 311 (2) are designed in the public interest to ensure security of tenure to civil servants, for without it, it is difficult to expect civil servant to discharge their duties, exercise their powers without fear or favour and to be faithful to the Constitution and laws. It is again as much in the public interest and for the public good to discipline or remove government servants who are dishonest or corrupt or otherwise undesirable or have become a security risk and in whose case the holding of inquiry is unnecessary because of prior conviction or is impracticable or is inexpedient in the interest of the security of the state.

28. In the case of Union of India vs. Tulsiram Patel AIR 1985 SC 1416 the Hon'ble Supreme Court has held as under:-

"124. In the course of the arguments certain executive instructions issued by the Government of India were referred to and relied upon on behalf of the government servants. It is unnecessary to deal with these instructions in detail. At the highest they contain the opinion of the Government of India on the scope and effect of the second proviso to Article 311(2) and cannot be binding upon the Court with respect to the interpretation it should place upon that proviso. To the extent that they may liberalized the exclusionary effect of the second proviso they can only be taken as directory. Executive instruction stand on a lower footing than a statutory rule for they do not have the force of a statutory rule. If an Act or a rule cannot alter or liberalized the exclusionary effect of the second proviso, executive instructions can do so even much less.

Omission to Mention the Relevant Clause of the Second Proviso or the Relevant Service Rule in the Impugned Orders"

"126. As pointed out earlier, the source of authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules while the source of his power to dispense with the disciplinary inquiry is derived from the second proviso to Article 311(2). There cannot be an exercise of a power unless such power exists in law. If such power does not exist in law, the purported exercise of it would be an exercise of a non-existent power and would be void. The exercise of a power is, therefore, always referable to the source of such power and must be considered in conjunction with it. The Court's attention in Challappan's Case (AIR 1975 SC 2216) was not drawn to this settled position in law and hence the error committed by it in considering Rule 14 of the Railway Servants Rules by itself and without taking into account the second proviso to Article 311(2). It is also well settled that where a source of power exists, the exercise of such power is referable only to that source and not some other source under which were that power exercised, the exercise of such power would be invalid and without jurisdiction. Similarly, if a source of power exists by reading together two provisions, whether statutory or constitutional, and the order refers to only one of them, the validity of the order should be upheld by construing it as an order passed under both those provisions. Further, even the mention of a wrong provision or the omission to mention the provision which contains the source of power will not invalidate an order where the source of such power exists. (See Dr. Ram Manohar Lohia v. State of Bihar and others [1966] 1 S.C.R. 709,721 and The Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal [1983] 2 S.C.R. 676,681. The omission to mention in the impugned orders the relevant clause of the second proviso or the relevant service rule will not, therefore, have the effect of invalidating the orders and the orders must be read as having been made under the applicable clause of the second proviso to Article 311(2) read with the relevant service rule. It may be mentioned that in one of the matters before us has it been contended that the disciplinary authority which passed the impugned order was not competent to do so."

"129. The next contention was that even if it is not reasonably practicable to hold an inquiry, a government servant can be placed under suspension until the situation improves and it becomes possible to hold the inquiry. This contention also cannot be accepted. Very often a situation which makes it not reasonably practicable to hold an inquiry is of the creation of the concerned government servant himself or of himself acting in concert with others or of his associates. It can even be that he himself is not a party to bringing about that situation. In all such cases neither public interest nor public good requires that salary or subsistence allowance should be continued to be paid out of the public exchequer to the concerned government servant. It should also be borne in mind that in the case of a serious situation which renders the holding of an inquiry not reasonably practicable, it would be difficult to foresee how long the situation will last and when normalcy would return or be restored. It is impossible to draw the line as to the period of time for which the suspension should continue and on the expiry of that period action should be taken under clause (b) of the second proviso. Further, the exigencies of a situation may require that prompt action should be taken and suspending the government servant cannot serve the purpose. Sometimes not taking prompt action may result in the trouble spreading and the situation worsening and at times becoming uncontrolable. Not taking prompt action may also be construed by the trouble- makers and agitators as sign of weakness on the part of the authorities and thus encourage them to step up the tempo of their activities or agitation. It is true that when prompt action is taken in order to prevent this happening, there is an element of deterrence in it but that is an unavoidable and necessary concomitance of such an action resulting from a situation which is not of the creation of the authorities. After all, clause (b) is not meant to be applied in ordinary, normal situations but in such situations where is not reasonably practicable to hold an inquiry."

29. In the case of M. F. Ansari vs. Union of India and others (1983) 2 Karnataka Law Journal 209 the scope of Article 310 and 311 of the Constitution reads as follows:-

"(i) Art. 310 incorporates the doctrine of pleasure. According to the said article except persons appointed to offices, created by the Constitution, for whose tenure of office specific provisions are made in the Constitution itself, all other civil servants of the Union or of the States hold office during pleasure of the President or the Governor, as the case may be. See : Purushotama Lal Dhingra v. Union of India MANU/SC/0126/1957. But even in respect of other civil servants also the pleasure doctrine has not been incorporated in absolute terms as it is made subject to the restrictions imposed by Art. 311(2) of the Constitution.

(ii) Clause (2) of Art. 311, as it stands now, reads as follows :

"311(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges."

The clause provides that a civil servant shall not be dismissed or removed or reduced in rank except after an enquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

(iii) The object of the clause and its vital importance to the public interest has been explained by the Supreme Court in the case of Motiramdeka v. G. M., N. E. Rly. MANU/SC/0261/1963. Relevant portion of the judgment reads :

"At this stage, we ought to add that in a modern democratic State the efficiency and incorruptibility of public administration is of such importance that it is essential to afford to civil servants adequate protection against capricious action from their superior authority. If a permanent civil servant is guilty of misconduct, he should no doubt be proceeded against promptly under the relevant disciplinary rules, subject, of course, to the safeguard prescribed by Art. 311(2); but in regard to honest straightforward and efficient permanent civil servants, it is of utmost importance even from the point of view of the State that they should enjoy a sense of security which alone can make them independent and truly efficient."

The above observation forcefully explains the importance of ensuring the security of tenure of civil servants for the effective functioning of democratic system of Government as envisaged by the Constitution for which purpose clause (2) of Art. 311 is incorporated.

(iv) The second proviso to clause (2) of Art. 311, however, incorporates three exceptions to the requirement of holding an enquiry prescribed under clause (2) of Art. 311, before imposing any one of the three major penalties against a civil servant. The three exceptions are incorporated in clauses (a), (b) and (c) of the second proviso to Art. 311(2). They read :

"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) 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 President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry."

30. A careful reading of the three clauses would show that the scope, purpose and intendment of the three clauses are qualitatively different from each other.

"7. (i) Under clause (a), the enquiry is dispensed with by the force of the clause itself in the case of a civil servant against whom a finding that he is guilty of a charge framed against him by a criminal court is given by the Court. Thus under this clause, the conduct of the civil servant which constituted the criminal charge framed against him by a Criminal Court, of which he was convicted in the inquiry held by the Criminal Court, is treated as equivalent to the finding in a departmental inquiry required to be held under clause (2) of Art. 311 and the relevant rules framed under Art. 309 and the disciplinary authority is empowered to impose the penalty taking the finding recorded by the Criminal Court as the basis. In other words, what clause (a) provides is that the holding of a departmental inquiry is that the holding of a departmental inquiry is unnecessary and superfluous when the civil servant concerned has already been found guilty of a criminal charge by a Court of law.

(ii) Clause (b), confers a special power and provides a special procedure. It authorities the dispensing with the inquiry in an individual case if the circumstances so warrant. This clause gives an extraordinary power to the concerned disciplinary authority to impose any one of the major penalties without enquiry, on a civil servant against whom the holding of the enquiry in its pinion is reasonably impracticable. To such cases, clause (2) of Art. 311 becomes inapplicable. As the enquiry prescribed under Art. 311(2) is meant to ensure security of tenure to civil servants in public interest and the dispensing with the enquiry has got very serious consequences both to the individual officer and the public interest, the clause requires the authority to record reasons in writing as to why the holding of the enquiry is reasonably impracticable. Therefore it follows that unless the disciplinary authority first passes an order recording its reasons as to why the holding of an enquiry is reasonably impracticable, the power to impose penalty without enquiry would be unavailable. Therefore under this clause, the recording of reasons in support of the decision that the holding of enquiry is reasonably impracticable is mandatory and therefore a condition precedent for the acquisition of power to impose penalty without enquiry.

(iii) Clause (c) again deals entirely with different types of cases. It is significant that while the power to impose penalty on the basis of the conduct which has lead to the conviction of a civil servant under clause (a) and after recording reasons to the effect that holding of an enquiry is reasonably impracticable under clause (b), is conferred and exercisable by the authority on whom the power to impose penalty of dismissal, removal or reduction in rank is conferred by the rules or legislative enactment made under Art. 309 of the Constitution, the power under clause (c) has to be and can be exercised only by the Head of the Union or the Head of the State, as the case may be. Further, clause (c) is a case where holding of an enquiry is not impracticable but is considered inexpedient having regard to the interest of the security of the State and the satisfaction in this behalf is to be of the President or the Governor, as the case may be, and none else. Obviously, having regard to the paramount importance of the security of the State, the power is conferred on the Head of the State to determine the service of a civil servant by exercising his pleasure. Therefore, the moment the satisfaction of the President or the Governor, as the case may be, is arrived at, in the case of a civil servant that the holding of a disciplinary enquiry is not in the interest of the security of the State, the restriction impose by Art. 311(2) on the doctrine of pleasure incorporated in Art. 310 gets lifted and the tenure of the civil servant becomes liable to be determined by an order of the President or the Governor, as the case may be, and to such a case clause (2) of Art. 311 is not applicable. Further it is significant that the words dismissal, removal or reduction in rank are not used in clause (c) of the proviso obviously for the reason that when the President or the Governor, as the case may be, forms an opinion that in the case of a civil servant, the holding of an inquiry is not in the interest of the security of the State, the only course contemplated is to determine the tenure of his service by the imposition of penalty of dismissal or removal or compulsory retirement, by the exercise of the pleasure under clause (1) of Art. 310 of the Constitution, as in such a case the continuance of the civil servant in a lower post would be inconsistent with the formation of an opinion that the records against the civil servant are such as would not justify the holding of the inquiry in the interest of the security of the State. See : P. H. Ranganath v. the Dy. Commr. of Police C. A. R., Bangalore, W.P. No. 4114 of 1980, dated 15.9.1981 (Karnataka )."

31. To sum up, the purport of the three clauses is -

(i) Clause (a) substitutes a criminal trial in which a civil servant is found guilty of criminal charge to a departmental enquiry;

(ii) Clause (b) provides for dispensing with the enquiry into the misconduct of a civil servant, if the holding of the same is reasonably impracticable; and

(iii) Clause (c) dispenses with the holding of the enquiry even if it is practicable but, in the opinion of the President or the Governor, the holding of enquiry is not expedient in the interest of the security of the State. "

32. There is another important clause in Art. 311, namely clause (3) of that article. It reads :

"311(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such enquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

This clause provides that if a question arises whether it is reasonably practicable to hold an enquiry, the decision of the authority empowered to dismiss or remove such person or reduce him in rank, shall be final. The wording of clause (3) would indicate that it applies only to a case falling under clause (b) for the following reasons : There is no question of dispensing with the enquiry in a case falling under clause (a) for the reason that the clause itself does not speak of the dispensing with the enquiry and as pointed out earlier, the effect of the clause is to treat the finding in the enquiry held by the criminal court in a criminal trial itself as the basis for the imposition of the penalty and therefore it is not a case of dispensing with the enquiry, but is a case of substitution. Again under clause (c) it is not a case of taking a decision as to whether the holding of an enquiry is reasonably practicable or not but speaks of satisfaction of the President or the Governor, as the case may be, that it is inexpedient to hold the enquiry in the interest of the security of the State, which means even assuming that it is practicable, it is inexpedient as that would result in exposure of information, which is not expedient in the interest of the security of the State. Therefore clause (3) has application only to clause (b) of the proviso to Art. 311(2) and therefore must be given due weight in determining the extent of judicial review of a decision taken by the disciplinary authority under clause (b) of Art. 311. These are cases which relate to the exercise of the power under clause (b).

33. It is crystal clear from the aforesaid discussion that neither language of the Article 311 (2) of the Constitution nor relevant Service Rules indicate that as soon as a government servant is convicted on a criminal charges, he must suffer one of the prescribed punishments. Before inflicting any of the three major punishments namely dismissal, removal or reduction in rank a competent authority has to apply its mind to the facts of the case to examine the conduct of the government servant concerned which had led to his conviction and to determine the nature and quantum of punishment which his conduct calls for.

34. The protection under Article 311 of the Constitution is available only when the dismissal, removal or reduction in rank is by way of punishment. In Parshotam Lal Dhingra vs. Union of India, AIR 1958 SC 36. The Hon'ble Supreme Court laid down two tests to determine whether termination is by way of punishment:

(i) Whether the servant has a right to hold the post or the rank (under the terms of conduct or under any rule)

(ii) Whether he has been visited with evil consequences, if yes, it amounts to punishment.

35. Article 311(2) provides that reasonable opportunity of being heard is not applicable in the following case.

(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 charges or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for reasons to be recorded by that authority in writing it is not reasonably practicable to hold such inquiry: or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.

36. An employee, who is convicted on a criminal charges need not be given an opportunity to be heard before his dismissal from service. However, in the case of Divisional Personal Officer, Southern Railway vs. Chillappa 1976 3 SCC 199 the Hon'ble Supreme Court held that in the decision of penalty of dismissal, removal or reduction in rank without holding an inquiry was unconstitutional and illegal. Objective consideration is only possible when the delinquent employee is being heard but in the case of Tulsi Ram Patel (supra), Hon'ble Supreme Court held that dismissal, removal or reduction in rank of person convicted on criminal charges is in public interest, and, therefore, is not violative of Article 311 (2) of the Constitution. The Court thus overruled its earlier decision in the case of Chillappa's case.

37. For the foregoing reasons, it is held that:

(i) The departmental punishment of removal or dismissal from Government service is not an essential and automatic consequence of conviction on a criminal charge.

(ii) The authority competent to take disciplinary action as per Rules against a government servant convicted on a criminal charge has to consider all the circumstances of the case and then to decide (a) whether the conduct of the delinquent official which led to his conviction is such as to render his further retention in public service undesirable; (b) if so, whether to dismiss him or to remove him from service or to compulsorily retire him; and (c ) if the said conduct of the official is not such which render his further retention in service undesirable, whether the minor punishment, if any, should be inflicted on him.

38. In the present case, the petitioner was held guilty for the offence punishable under Section 304-B and 498-A I.P.C. and sentenced him 10 years R.I. and two years S.I. with fine of Rs.2000/- respectively. The said conviction order was challenged in appeal filed under Section 374 Cr.P.C. before this Court. The High Court vide order dated 22.11.2011 the sentence awarded to the petitioner was suspended during pendency of the said criminal appeal. This Court also stayed the realization of half of the fine as awarded to him. After getting the order of stay on the sentence by this Court, the petitioner submitted an application before the competent authority to permit him to join bank. The Assistant General Manager, Regional Office (Allahabad) issued a show cause notice dated 03.01.2012 to the petitioner calling upon him to show cause as to why the petitioner should not be dismissed from service in exercise of powers under clause 3 (b) of Settlement 202 and Section 10 (1) (b) (i) of Banking Regulation Act, 1949. The said show cause notice was based upon judgment and order of the conviction of the Additional Sessions Judge by which the petitioner was convicted for the offence punishable under Section 498-A I.P.C.. The petitioner has given reply to the show cause notice. The competent authority of the Bank perused the reply of the show cause notice as well as other material on record. After considering all the relevant facts and the material on record, the Assistant General Manager, Regional Office (Allahabad) dismissed the petitioner on 18.01.2012 from the bank service with immediate effect. The appeal was filed against the order dated 18.01.2012 before the appellate authority- Deputy General Manager, Bank of Baroda, Lucknow and vide order dated 12/13.03.2012 appeal was dismissed on the ground that appeal filed by the petitioner is void merit, therefore, the appellate authority has not found any reason to interfere with the order dated 18.01.2012 passed by the Assistant General Manager, Regional Office (Allahabad).

39. As per the Bipartite Settlement dated 10.04.2002, the person who has been convicted for any offence involving "moral turpitude" or any gross misconduct or conviction by criminal court of law for offence involving moral turpitude shall be dismissed from service. Conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceeding against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. As per Bipartite Settlement dated 10.04.2002, it is crystal clear that if, any employee be convicted, he may be dismissed with effect from the date of his conviction or be given any, lesser form of punishment as mentioned in clause 6. Petitioner's conduct was found after considering his reply of the show cause notice is gross misconduct as mentioned under Section 5(S) of Bipartite Settlement. In the present case the petitioner was found guilty of misconduct involving "moral turpitude" meaning thereby anything contrary to honesty,modesty or good morals. It means vileness and depravity. The conviction of a person in a crime involving "moral turpitude" impeaches his credibility as he has been found to have indulged in shameful, wicked and base activities. In the present case, bail was granted by this court and suspension of sentence does not take away the effect of conviction. The conviction of an employee in an offence permit the disciplinary authority to initiate disciplinary proceeding against the employee or to take appropriate steps for his dismissal.

40. As discussed above, the Hon'ble Supreme Court in the case of Haripada Khan reported in AIR 1996 SC 1065 held that Rule providing for termination of services of employees involved in criminal cases without holding enquiry subject to result of criminal trial is not violative of Articles 14 and 21 of the Constitution. In the case of Tulsi Ram Patel (supra) the Hon'ble Supreme Court upeheld the validity of such Rule subject to principles of natural justice.

41. The Hon'ble Supreme Court in the case of Deputy Director of Collegiate Education (Admn.), Madars vs. S. Nagoor Meera reported in A.I.R. 1995 SC 1364 held that

"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."

42. Article 311 (2) declares that no person, who is a member of the civil service of the Union or All-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The second proviso, however, carves out three exceptions to the said rule. I am concerned with the first exception mentioned under clause (a). Insofar as it is relevant, the second proviso reads as follows:

"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 charge."

43. 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.

44. In the case of Rama Narang vs Ramesh Narang & Ors 1995 SCC (2) 513 the Hon'ble Supreme Court held as under:-

"15........Section 389(1) empowers the Appellate Court to order that the execu- tion of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provi- sion 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 simi- lar to the one under Sections 357 or 360 of the Code? Obviously the order referred to in Section 389(1) must be an order capable of 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.

16. 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 could be invoked. In such situations the attention of the Appellate Court must be specifically invited to the 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 reasons 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."

45. I need not, concerns myself 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. I am, 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. However, in the present case the reply of show cause notice as well as all other facts and circumstances, were duly considered by the concerned authority and recorded reasons before passing the order dated 18.01.2012, dismissing the petitioner from service. In appeal filed by the petitioner, the appellate authority after considering all the grounds in the appeal, passed the order dated 12/13.03.2012.

46. For the foregoing reasons, I, therefore, do not find it fit case to invoke extra ordinary writ jurisdiction under Article 226 of the Constitution of India so as to command respondents to reinstate the petitioner on his post and consequently, the instant writ petition is dismissed.

47. No order as to costs.

Order Date :- 12.09.2018

Asha

(Chandra Dhari Singh,J.)