State Of ... vs Om Prakash Soni
2021 Latest Caselaw 10970 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR 
 
Chief Justice's Court
 

 
Case :- SPECIAL APPEAL No. - 200 of 2020
 

 
Appellant :- State Of U.P.Throu.Secy.Deptt.Of Revenue Lko.And Ors.
 
Respondent :- Om Prakash Soni
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Mohd. Ali
 

 
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice
 
Hon'ble Suresh Kumar Gupta,J.

By this appeal, a challenge is made to the judgment dated 27.09.2019 whereby writ petition preferred by non-appellant/petitioner was allowed. The writ petition was filed to challenge the order of punishment of dismissal from service.

The brief facts of the case show that while the non-appellant/petitioner was working on the post of Collection Amin in Tehsil Nawabganj, Gonda, was sentenced to seven years imprisonment for the offence under Sections 376, 511 Indian Penal Code. The order of dismissal from service was passed considering the conduct of the petitioner led to his conviction. It was by invoking Rule 7 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 and the Government Order dated 06.09.2000.

The order of dismissal from service was challenged by the non-appellant/petitioner by maintaining a writ petition. The order of dismissal from service has been set aside by learned Single Judge finding that no disciplinary proceeding was taken before passing the order of punishment. It was by relying the judgment of the Apex Court in the case of K. Venkateshwarlu vs. State of Andhra Pradesh, (2012) 8 SCC 73.

Learned counsel for the appellants submits that impugned judgment has been passed in ignorance of Article 311 of the Constitution of India so as the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999. In case of conviction of an employee, disciplinary proceedings are not required rather considering the conduct of the employee led to conviction, the appropriate punishment can be imposed. In the instant case, the employee was convicted for the offence under Sections 376, 511, 506 Indian Penal Code and sentenced to seven years imprisonment with fine. The conduct of the petitioner led to conviction was the basis of the punishment of dismissal from service. He was convicted for attempt to rape and looking to the aforesaid conduct, the order was passed dismissing him from service.

Article 311 of the Constitution of India and even Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999. Article 311(2) of the Constitution of India exempts disciplinary proceedings in case of conduct of an employee led to conviction. Learned Single Judge has not referred to the provisions of Constitution of India so as Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 rather erroneously relied on the judgment in the case of K. Venkateshwarlu (supra). The aforesaid judgment does not propound a ratio on the issue rather it was a judgment on a criminal appeal against the order of conviction and not to challenge the order of punishment.

It is also stated that even the judgment in the case of R.P. Kapur vs. Union of India and another, AIR 1964 SC 787 is not an authority on the issue. There also, the order of punishment was not challenged rather it was an order of suspension. Learned Single Judge casually relied the judgment supra to quash the order of dismissal, thus prayer is to set aside the judgment of learned Single Judge.

Learned counsel for the non-appellant has vehemently contested the appeal and submits that the judgment under challenge is covered by the judgments of the Supreme Court in the cases of R.P. Kapur (supra) and K. Venkateshwarlu (supra). It is a case of conviction, the authority needs to initiate the disciplinary proceeding, as envisaged under Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999. Learned counsel for the appellants has even made a reference of judgment of this Court in the case of Sada Nand Mishra vs. State of U.P. and another, 2000 (18) LCD 88. Therein relying on the judgment of Union of India vs. Tulsi Ram Patel, (1985) 3 SCC 398, the order of punishment was interfered. The prayer is accordingly to maintain the judgment of learned Single Judge.

We have considered the rival submissions of learned counsel for the parties and perused the record.

It is not in dispute that the non-appellant was convicted for the offence under Sections 376, 511 Indian Penal Code and sentenced to seven years imprisonment with fine of Rs. 2000/-. The conduct led to conviction was the basis for dismissal from service. The question for our consideration is as to whether the disciplinary proceeding was required before passing the order of dismissal from service. We would first refer to Article 311 of the Constitution of India and for ready reference, it is quoted hereunder:-

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.- (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(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 is 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.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry 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."

Second proviso to Article 311(2) of the Constitution of India provides exception to the main provision. Article 311(2) mandates an inquiry if a person is dismissed or removed or reduced in rank. The second proviso carves out an exception to the main provision where an employee can be dismissed or removed or reduced in rank on the ground of conduct led to conviction on a criminal charge. The order of dismissal from service in this case was considering the conduct of the petitioner led to his conviction. Learned Single Judge has not referred to the constitutional provision while setting aside the order of dismissal. It is also without referring to the relevant service rules which again carved out an exception to the disciplinary inquiry before the order of punishment. The relevant Rule is also quoted hereunder for ready reference :-

"7. Procedure for imposing major penalties. - Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner :

(i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges.

(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority :

Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department.

(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet.

(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte.

(v) The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation :

Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.

(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission.

(vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence :

Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.

(viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976.

(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.

(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.

(xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.

(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits :

Provided that this rule shall not apply in following cases :

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

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

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

The Rule quoted above also makes an exception of disciplinary inquiry. An order of punishment can be passed based on the conduct led to conviction. In the instant case, petitioner was convicted for the offence of attempt to rape and sentenced to seven years imprisonment with fine. The conduct of the petitioner was the basis for the order of dismissal from service. The disciplinary inquiry is not required in such cases in view of the provisions of the Constitution of India so as the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999.

Learned Single Judge, however, relied on the judgment of the Apex Court in the case of K. Venkateshwarlu (supra). It is without realizing that judgment aforesaid is not authority on the subject and does not propound a ratio on the issue. It was a case where appeal was preferred against the order of conviction. It has relied the judgment in the case of R.P. Kapur (supra) which again was not involving the issue rather it was a case where an order of suspension was challenged. Both the judgments could not have been applied in conflict with statutory provisions so as the provisions of Constitution of India.

In the case of R.P. Kapur (supra), the challenge was made to the order of suspension dated 16.02.1962 and it was mainly in reference to Article 314 of the Constitution of India. In para 9 of the said judgment, arguments of counsel for the appellant were considered but it does not propound a ratio on the issue. If one is convicted in a criminal case yet a disciplinary inquiry in regard to the same charges is to be conducted before passing order of punishment then it would not only hit the constitutional provision under Article 311 of the Constitution of India but the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 also.

The judgment in the case of Tulsi Ram Patel (supra) propounds a ratio. An order of punishment can be passed based on the conviction though while doing it, conduct of the employee led to conviction should be looked into.

In view of the above, judgment of the Apex Court in the case of Tulsi Ram Patel (supra) permits an order of punishment based on the conduct led to conviction. The only rider is that punishment should not be imposed simply based on conviction but considering the conduct led to his conviction. Learned Single Judge ignored the ratio propounded by the Apex Court in the said case.

Considering the arguments of learned counsel for the parties, we find reasons to cause interference in the judgment dated 27.09.2019 passed by learned Single Judge.

Accordingly, the appeal is allowed and the judgment dated 27.09.2019 passed by learned Single Judge is set aside.

Order Date :- 27.8.2021

Shubham

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(Suresh Kumar Gupta, J.) (Munishwar Nath Bhandari, A.C.J.)