Fajid Ali vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 8147 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 
Case :- WRIT - A No. - 2355 of 2023
 

 
Petitioner :- Fajid Ali
 
Respondent :- State Of U.P. Thru. Prin. Secy. Gram Vikas, Lko. And 3 Others
 
Counsel for Petitioner :- Indu Prakash Singh,Salil Shekhar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dinesh Kumar Singh,J.

Heard Shri Indu Prakash Singh, learned Counsel for the petitioner and Shri Rahul Singh, learned Standing Counsel.

The present petition (under Article 226 of the Constitution of India) has been filed questioning the order dated 02.04.2019 passed by Opposite party No.2-District Development Officer, Sultanpur, whereby the petitioner's services have been dispensed with under Article 311(2) of the Constitution of India after he was convicted and sentenced for an offence under Section 307, 302, 504 and 506 I.P.C. vide judgment and order dated 05.12.2018 in Case Crime No.531 of 2007 and an appeal filed by the petitioner against the order dated 02.04.2019 has also been rejected vide order dated 18.11.2022 passed by the appellate authority.

Shri Indu Prakash Singh, learned Counsel for the petitioner submits that the petitioner has filed an appeal against his conviction and sentence before this Court and in appeal he has been enlarged on bail by the Division Bench of this Court vide order dated 16.03.2021 passed in Criminal Appeal No.2396 of 2018. It is also submitted that once the petitioner was enlarged on bail, he ought to have been reinstated in service. He also submitted that the disciplinary authority was required to apply his mind to the facts and circumstances of the case before dismissing the petitioner from service on the ground of his conviction. He further submitted that the impugned order dated 02.04.2019 would disclose non application of mind inasmuch as only the provisions of Article 311(2) of the Constitution of India is mentioned and Rule 7 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 has not been mentioned. It is also submitted that the appellate authority has also not applied its mind to the facts and circumstances of the case and relevant provisions and has dismissed the appeal of the petitioner only on the ground that under Article 311(2) of the Constitution of India it is provided that if a government servant has been convicted for an offence, then giving notice and holding inquiry is not required, he could be dismissed from service summarily.

Shri Indu Prakash Singh, learned Counsel for the petitioner places reliance on the decision of a Constitutional Bench of Supreme Court in the case of Union of India vs. Tulsiram Patel reported in (1985) 3 SCC 398 to submit that the disciplinary authority ought to have applied its mind to the role allegedly played by the petitioner in the offence for which he has been convicted and sentenced for life. The impugned orders would disclose complete non application of mind. In support of his submission he places in service the paragraph No.127 of Tulsiram Patel (Supra) which would read as under :-

"127. Not much remains to be said about clause (a) of the second proviso to Article 311(2). To recapitulate briefly, where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan's case. This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of thatparticular government service the court will also strike down the impugned order. Thus, in Shankar Dass vs. Union of India, [1985] 2 S.C.C. 358, this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the Court should always order reinstatement. The Court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case."

The Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 have been enacted under Article 309 of the Constitution of India. The source of power for enacting Rules, 1999 is provisions of Article 309 read with Article 311 of the Constitution of India. If the provisions of Constitution of India are mentioned and the Rules which are enacted are not mentioned, the order would not become bad in law or it cannot be said that there is no application of mind. Mere mentioning of the rule or even wrong mentioning of the rule, would not make the order good or bad if the authority has power to pass the order. There is no dispute that the disciplinary authority has the power to dismiss the petitioner from service if he has been convicted for an offence. Indisputably, the petitioner has been convicted for an offence under Section 307, 302, 504 and 506 I.P.C. and he has been sentenced for life.

It is also not in dispute that the judgment and order of conviction has not been stayed only the sentence has been suspended. Under Clause (a) of the second proviso to Article 311(2) of the Constitution of India, the competent authority has the power to dispense with the services of such an employee without giving any opportunity of hearing.

Rule 7 of the Rules, 1999 in this regard is almost reproduction of Article 311(2) of the Constitution of India. It is true that conviction of a public servant in a criminal case does not automatically entails dismissal from service and disciplinary authority should apply his mind to the facts of the case and conduct of the government servant, however, when a government servant is convicted for a heinous offence such as murder, rape etc. this Court wonders that whether the disciplinary authority would say that public servant conduct is not such which would require his dismissal from service. Retention in service of such a public servant/government servant will erode the credibility and confidence of people in system. Such a public servant after conviction has to be dismissed from service.

The judgment in Tulsiram Patel (Supra) will have no application in such a case where a public servant has been convicted and sentenced for a heinous offence such as murder, rape or moral turpitude etc.

The impugned order dated 18.11.2022 would even otherwise disclose application of mind by the authority to the relevant provisions and facts of the case.

Thus, I find no substance in the submission of learned Counsel for the petitioner and I also do not find that disciplinary authority has not applied its mind to the facts and circumstances of the case inasmuch as the fact is that the petitioner has been convicted and sentenced for life for an offence under Section 307, 302, 504 and 506 I.P.C.

In view thereof, I find that the present petition has no merit and substance, which is hereby dismissed.

Order Date :- 21.3.2023

Piyush/-