Prakash Chandra Mishra vs State Of U.P. And 2 Others
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Allahabad High Court

Prakash Chandra Mishra vs State Of U.P. And 2 Others on 22 December, 2023

Author: Ajit Kumar

Bench: Ajit Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:242784
 
Reserved on: 27.10.2023
 
Delivered on: 22.12.2023
 
Court No. - 34
 
Case :- WRIT - A No. - 10371 of 2022
 
Petitioner :- Prakash Chandra Mishra
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Arvind Srivastava
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Ajit Kumar,J.
 

1. Heard Sri Arvind Srivastava, learned Advocate appearing for the petitioner and Sri P.K. Srivastava, learned Additional Chief Standing Counsel for the State-respondents.

2. This is the fourth round of litigation by the petitioner questioning the decision of the disciplinary authority in dispensing with/terminating the services of the petitioner only on the ground that he has been convicted and sentenced in a criminal case under the judgment and order dated 25.03.2004 in Session Trial No.396 of 1999 which he appealed against before the High Court in Criminal Appeal No.1706 of 2004. The conviction of the petitioner has been under Sections 307/504/506 Indian Penal Code and Section 35 of the Arms Act. In the pending criminal appeal petitioner had already been enlarged on bail as the execution of the sentence has been stayed by the order of the Court and later on conviction and sentence has been set aside as the Criminal Appeal stood allowed.

3. It is to equally worth to mention here that on account of petitioner being sent to jail as a result of conviction in the session trial case, petitioner could be released on bail only in Criminal appeal and so he could not report for duty and resultantly he faced dismissal from service on account of absence from duty.

4. The challenge to the said order of dismissal has been successful as the writ petition filed by the petitioner was allowed on 05.05.2015 holding that the dismissal from service was too harsh looking to the charges of absence from duty and the fact that petitioner had been absent for absolutely those reasons and circumstances which were beyond his control. The Court passed an order remitting the matter to look into the grievance of the petitioner afresh and take appropriate decision in accordance with law.

5. While authority proceeded to examine the matter on remand this time, dismissed him from service exercising power under Rule 8(2)A of the UP Subordinate Rank Officers Police Officers (Discipline and Appeal) Rules, 1991 for the reason that petitioner had been held guilty in the criminal case arising out of Case Crime No.257/1995 (S.T. No.224/1998) under Sections 307/504/506 IPC and has been sentenced for seven years rigorous imprisonment and further fine of Rs.3000/-. This order passed on 13.06.2015 came to be challenged again in writ petition being Writ-A No.38896 of 2015 and the Court relying upon the judgment in the case of Union of India vs. Tulsi Ram Patel; AIR 1985 SC 1416, judgment of this Court in the case of Sadanand Mishra vs. State of UP; 1993 LCD 70, Ratan Singh vs. State of UP and ors; 2013 (11) ADJ 352 and Biresh Kumar vs. State of UP and ors 2014 (9) ADJ 768 (DB) held that dismissal of an employee ipso facto on account of conviction was not a permissible action because the disciplinary authority was required to not only give an opportunity of hearing but to examine that the act and conduct of the employee in the criminal case looking to the facts and allegations that were borne out in the discussions made by the trial judge to find whether amount to moral turpitude so as to hold him unfit for a government employment more especially in police force. Thus, the Court allowed the writ petition setting aside the order dated 13.06.2015 and directed the authorities to examine the conduct of the petitioner in the matter so as to justify whether he deserved punishment like dismissal/removal/reduction in rank within the meaning of provision (a) of Article 311(2) of the Constitution of India.

6. This order was further challenged unsuccessfully before the Special Appellate Bench which dismissed the intra-Court appeal on 20.11.2018 being Special Appeal No.635 of 2016 vide order dated 20.11.2018.

7. Petitioner this time represented the matter again before the 42nd Battalion, PAC, Naini, Prayagraj and the Commandant passed the order on 16.12.2019 holding representation of the petitioner to be meritless and devoid of any force as the explanations offered by the petitioner were found to be not satisfactory and then maintained the order dated 13.06.2015.

8. Three-fold arguments have been advanced by the counsel for the petitioner: (a) once the order dated 13.06.2015 had been set aside by this Court under the judgment and order dated 19.05.2016 passed in Writ-A No.38896 of 2015 and Special Appeal filed by the State was also dismissed, such an order having lost its existence could not have been held to be still maintained or otherwise revived by the authority; (b) there is no finding returned by the authority that the act and conduct discussed in the judgment of the trial judge amounted to establish a case of moral turpitude against the petitioner so as to justify his dismissal from service; and (c) the authorities have not even adverted to the issue as to whether merely because sentence has been stayed petitioner did not deserve such a harsh punishment like dismissal from service in absence of any departmental proceeding so as to hold him guilty otherwise of the charges.

9. The argument is that there is no reflection on the conduct of petitioner while working in the establishment like police force and except for this solitary incident the rest of the service rendered by petitioner and his character roll were not taken into account at all.

10. Per contra, learned advocate appearing for the State has sought to justify the order impugned for the reasons assigned therein.

11. Having heard learned counsel for the parties and having perused the record, I find that three points are to be considered, firstly, as to whether authority was justified in reiterating the order which had already been set aside by this Court; and secondly, whether the findings returned holding petitioner liable for dismissal from service are sustainable in law in light of the authorities cited by the learned counsel for the petitioner and lastly whether, after criminal appeal stood allowed setting aside conviction and sentence, petitioner's service deserved to be restored.

12. I find that departmental appeal had been dismissed both on delay and on merit.

13. Lookingto the principal order passed by the Commandant 42ndBattalion PAC Naini, Prayagraj dated 16.12.2019, I find that the show cause notice that is referred to in para 5 of the said order required petitioner to furnish his explanation as to why the earlier order passed on 13.06.2015 terminating the services of the petitioner may not be maintained. Para 6 refers to letter of the petitioner seeking further thirty days? time to furnish his explanation and after he was awarded extra time, he submitted his representation along with all documents and annexure on 02.11.2019. Petitioner also referred to judgment of Supreme Court in the case of Tulsi Ram Patel (supra) decided on 20.11.2018. Vide para 7, the disciplinary authority refers to various paragraphs of the representation of the petitioner that bear his explanation to the show cause notice. The explanation offered by the petitioner was that the earlier order passed by the authority not permitting the petitioner to join his service was quashed by the High Court on 05.05.2015 and yet again the services of the petitioner came to be dispensed with on the ground that petitioner had been convicted in the criminal case. The plea was also taken that in the pending criminal appeal before High Court, the order passed by the trial judge dated 25.07.2018 was stayed and the petitioner was directed to be reinstated in service.

14. In the circumstances, therefore, it was pleaded that petitioner required to be heard in the matter and yet the prescribed procedure was not followed and the services were dispensed with. This explanation offered by the petitioner has been rejected by the disciplinary authority for the reason that petitioner had remained absent from 21.04.2004 and, therefore, he was rightly terminated from service on 10.05.2011 and since Court had directed to consider the matter again looking to the representation of the petitioner vide its order dated 05.05.2015 again after looking into the explanation of the petitioner then for the reason that petitioner was convicted in a criminal case and was sentenced for seven years rigorous imprisonment along with fine of Rs.3,000/- vide judgment and order dated 25.03.2004, exercising power under Article 8(2)(A) of the UP Subordinate Rank Police Officers (Punishment and Appeal) Rules, 1991, petitioner's services were terminated w.e.f. 21.03.2004 vide order dated 13.06.2015. It is held that order dated 13.06.2015 was passed in accordance with law and it is also observed that in the order staying sentence the High Court had not stayed the conviction but merely kept the sentence in abeyance, therefore, he could not be taken back in service. This was reiterated vide paragraphs 8 & 9. In the rest of the paragraphs, representation of the petitioner was referred and it was observed that they need no reply.

15. Referring to judgment passed in Special Appeal No.635 of 2016 dated 20.11.20218, the Authority took the view that matter has been examined in light of judgment of the Supreme Court and having found it to be absolutely different and since the petitioner has been convicted and sentenced with rigorous imprisonment coupled with the fine of Rs.3,000/- it would be taken that he stood convicted as on date 26.03.2004. The authority then refers in para 29, relevant Article 311 (1) and (2) and then proviso to the same and Clause (a) to the second proviso and come to conclude that no inquiry was required to hold him guilty of the charge where delinquent employee stood convicted in a criminal case for the same charge. Referring to the same article the authority observed that such a convicted employee was liable to be removed from service invoking power under Rule 8 (2)(a) of 1991 Rules. Then reiterating that only the sentence has been kept in abeyance in criminal appeal, petitioner was held not entitled to continue in employment and thus, the order impugned has been passed maintaining the order dated 13.06.2015.

16. Looking to the above facts, I find that order previously passed on 13.06.2015 has been maintained under the order impugned. Now coming to the order of the Writ Court dated 19.05.2016 passed in Writ-A No.38896 of 2015, I find that matter was directed to be decided in light of the settled principle of law laid down in Tulsi Ram Patel's case (supra). Operative part of judgment dated 19.05.2016 is reproduced hereinunder:

"17. For the aforesaid reasons, the writ petition is allowed and the impugned order dated 13.6.2015 is set aside. The disciplinary authority shall have due regard to the law laid down by Hon'ble Supreme Court in Tulsi Ram Patel's case and then determine as to whether the conduct of the petitioner is such as to warrant his dismissal, removal or reduction in rank within the meaning of proviso (a) to Clause (2) of Article 311 of the Constitution of India. "

17. The State had preferred intra-court appeal against this judgment being Special Appeal No.635 of 2016 wherein the same plea was taken by way of argument as has been the stand of State throughout. The division bench judgment noticed the argument of the respondent appellant that petitioner was convicted in the criminal case and recorded that no reinstatement was directed by the learned Single Judge and the authority was required to pass order afresh. The relevant last five paragraphs of the order of the Division Bench dated 20.11.2018 are reproduced hereunder:-

"We have heard learned counsel for the parties and have perused the material on the record.

We find that the learned Single Judge has not issued any direction for the reinstatement of the respondent-petitioner. He has simply directed the concerned disciplinary authority to consider his cause in light of the law laid down by the Supreme Court in Tulsi Ram Patel's case. No other direction has been issued.

As regards, learned counsel for the appellant submits that learned Single Judge has issued a direction for his reinstatement, we do not find any such direction in the paragraph which we have reproduced above.

In view of the above, we find that there is no illegality in the order of the learned Single Judge and the authority concerned shall consider the case of the respondent-petitioner as directed by the learned Single Judge expeditiously, preferably within a period of six months from the date of communication of the order.

With the aforesaid observations, the special appeal stands disposed of. "

18. Thus, it is clear that the appeal to restore the order dated 13.06.2015 by setting aside the judgment of the order of the learned Single Judge was rejected holding that there was no illegality in the order of the learned Single Judge. The order was not set aside and special appeal stood disposed of. In fact the division bench maintained the order of the learned Single Judge and refused to interfere with the same and only directed for a six month?s time to take decision in light of the judgment of Single Judge from the date of presentation of certified copy of this order.

19. So now this much is clear that order dated 13.06.2015 had lost its existence in view of the order of learned Single Judge affirmed in appeal, therefore, the authority was certainly not justified in maintaining the order dated 13.06.2015 which was not in existence at all. Thus, on this count alone writ petition deserves to be allowed. However, it is necessary to look into the legal aspect of the matter as to whether the authority has discussed the fact of the petitioner's case and deliberated upon his conduct in light of the law laid down in Tulsi Ram Patel's case (supra) as this was specific direction of this Court both in the learned Single Judge judgment and the Division Bench judgment as quoted above.

20. While the order passed by the disciplinary authority was under challenge before the appellate authority, the criminal appeal filed by petitioner along with co-accused Ram Bali came to be allowed by the judgement and order dated 17.11.2021 holding that charges framed against the appellants under Section 307/34 of IPC were not at all proved and, thus, finding of conviction was held to be bad and illegal and so the judgment and order of conviction passed by the trial judge on 25.03.2004 in Session Trial No.396/1999 was set aside. It is stated that this judgment of criminal appeal in favour of the petitioner was not further challenged at all and the petitioner moved an application before the departmental appellate authority to stay the impugned order passed by the disciplinary authority.

21. While the appeal was pending, petitioner preferred writ petition being Writ-A No.4191 of 2022. Ultimately the departmental appeal was dismissed as meritless and also on the ground of it being barred by time. The order of the disciplinary authority, thus, stood confirmed and so the said writ petition got dismissed as withdrawn on 07.05.2022 to file such writ petition.

22. Now testing the order passed by the authority from point of view of law laid down in Tulsi Ram Patel's case (supra), the authority was bound in law to record finding regarding act and conduct of the petitioner relating to his involvement in the criminal case so as to hold that his continuance in the employment will not be justifiable.

23. In Tulsi Ram Patel's case (supra), the Court has very clearly held that authority is required to record reasons for dismissing the employee on the ground of conviction in a criminal case as to why his continuance would adversely affect the government establishment. The the direction contained in the judgment of the leaned Single Judge dated 19.05.2016 was also to the effect that the matter would be decided in light of law laid down by the Supreme Court in case of Tulsi Ram Patel's case (supra). In Tulsi Ram Patel (supra), the Constitution Bench laid down the principle thus:

"It is obvious that in considering this mater the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features if any present in the case and so on and so forth. ....................... In other words, the position is that the conviction of the delinquent employee would be taken as sufficient proof of misconduct and then the authority will have to embark upon a summary inquiry as to the nature and extent of the penalty to be imposed on the delinquent employee and in the course of the inquiry if the authority is of the opinion that the offence is too trivial or of a technical nature it may refuse to impose any penalty in spite of the conviction."

24. Reiterating the law and comprising in short in the case of Sadanand Mishra (supra), Division Bench of this Court vide paragraph 20 observed thus:

"20. The principles enunciated by Hon'ble the Supreme Court are:

(1) On the conviction of an employee on a criminal charge, the order of punishment cannot be passed unless the conduct which had led to his conviction is also considered.

(2) The scrutiny or examination of conduct of an employee leading to his conviction is to be done ex-parte and an opportunity of hearing is not to be provided for this purpose to the employee."

25. From the impugned order, as I have discussed above, passed by the disciplinary authority, I find that, except for the reason of conviction in the criminal case and awarding of sentence of rigorous imprisonment coupled with fine, no other reason has been assigned for terminating the services of the petitioner. Thus, in my view, there is no evaluation or assessment otherwise qua the conduct of the petitioner for the purposes of taking a decision to continue a convicted employee in the establishment or not. Moral turpitude itself can be a ground but there has to be discussion regarding that and finding also to justify the order terminating the services of the such convicted person on the ground of moral turpitude. The order impugned is absolutely silent on the above count.

26. Now since the petitioner has been acquitted in the criminal case holding clearly that charge was not made out and that the finding of conviction was unsustainable being bad and illegal, I treat it to be a case of no evidence and not a matter of benefit of doubt.

27. In the circumstances, therefore, petitioner, may be not so stated specifically, but stood honourably acquitted. Once the petitioner has been acquitted in the criminal case and the only ground taken in the order impugned terminating the services is the conviction in such criminal case, the order impugned is also not sustainable on merits. The appellate authority has not discussed anything except reiterating the view taken by the disciplinary authority that petitioner had been convicted in a criminal case so to hold that there was no merit in the appeal though the appeal has also been dismissed on the ground of delay. The order passed by the appellate authority is also not sustainable.

28. In view of the above, writ petition succeeds and is allowed. The order dated 16.12.2019 passed by the disciplinary authority and 28.03.2022 passed by the appellate authority are hereby quashed. Petitioner is directed to be reinstated in service forthwith with all consequential benefits.

Order Date :-22.12.2023

P Kesari