Allahabad High Court
Kashi Ram vs State Of U.P. Through Prin. Secy. Home ... on 19 July, 2019
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 20 Case :- SERVICE SINGLE No. - 6621 of 2013 Petitioner :- Kashi Ram Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors. Counsel for Petitioner :- Mohammad Tauseef,Shubham Tripathi,Syed Fazal Abbas Rizvi Counsel for Respondent :- C.S.C. Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel.
2. By means of the present petition, the petitioner has prayed for the following reliefs:-
"i) issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned order dated 2.01.2010 passed by opposite party No.2 as contained in Annexure No.1 to this writ petition.
ii) issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned order dated 11.01.2010 passed by opposite party No.2 as contained in Annexure No.4 to this writ petition.
iii) Issue a writ, order or direction in the nature of Mandamus thereby commanding/directing the opposite parties to pay the arrears of salary as well as arrears of pension to the petitioner and to pay the regular pension to the petitioner with all consequential benefits.
iv) Issue any other order or direction deemed just and proper in the facts and circumstances of the case.
v) Allow the writ petition with costs."
3. The case set forth by the petitioner is that while the petitioner was working on the post of Orderly Peon, Case Crime No.251 of 2001, under Section 304/34/504/506 IPC, Police Station Khairabad, District Sitapur was lodged against him. The petitioner was convicted on 21.8.2009 under Section 304(2) of the I.P.C. for 10 years by the Court of 3rd Additional Sessions Judge, Sitapur. Aggrieved against the same, the petitioner filed Criminal Appeal No.1955 of 2009 In re: Kashi Ram and others vs. State of U.P. and others which is pending before this Court. Through an order dated 20.10.2009 the petitioner was suspended on the ground that departmental enquiry was proposed against him. However, without issuing any charge-sheet through the impugned order dated 2.1.2010, the petitioner was dismissed from service on the ground of conviction in the aforesaid criminal case.
4. Learned counsel for the petitioner, while seeking to challenge the impugned order, contends that the impugned order is patently vitiated on the ground that the conduct which has led to the conviction of the petitioner was not seen by the competent authority while passing the dismissal order. In this regard, learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Apex Court in the case of Deputy Director of Collegiate Education (Administration), Madras vs. S. Nagoor Meera reported in (1995)3 SCC 377, Shankar Dass vs. Union of India and another reported in (1985)2 SCC 358 as well as judgment of this Court in the case of Ratan Singh vs. State of U.P. and others reported in 2013 SCC Online All 14334.
5. Placing reliance on the aforesaid judgments, it is contended that once the competent authority has simply proceeded to dismiss the petitioner from service on the ground of his conviction without considering the conduct and at the same time no moral turpitude etc. is involved, rather Section 304 of the I.P.C. itself provides that the act has been done without any intention to cause death, as such the conduct of the petitioner should have been considered prior to proceeding to pass any order in this regard and the same having not been done, the order impugned is patently vitiated on this ground alone.
6. On the other hand, learned Standing Counsel on the basis of the averments contained in the counter affidavit, has supported the impugned order by contending that once admittedly the petitioner has been convicted under Section 304(2) of the I.P.C. for 10 years, as such the respondents did not intend to continue the petitioner in service on account of said conviction and hence the impugned order dismissing the petitioner from service has rightly been passed.
7. Heard learned counsel for the parties and perused the record.
8. From a perusal of record, it clearly transpires that the petitioner has been dismissed from service through the impugned order dated 2.1.2010 on the ground of his conviction under Section 304(2) of the I.P.C. for a period of 10 years. The issue a to whether a person can be simply thrown out from the employment on the ground of his conviction is no longer res integra inasmuch as it is settled proposition of law that the conduct which has led to the conviction, has to be seen by the competent authority prior to proceeding to pass an order of dismissal on the ground of conviction.
9. The Hon'ble Supreme Court in the case of S. Nagoor Meera (supra) has held as under:-
"9. 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). As held by this court in Shankardass v. Union of India (1985 (2) S.C.R. 358):
"Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the government the power to dismiss a person from services "on the ground of conduct which has led to his conviction on a criminal charge." But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly."
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"
10. The Hon'ble Supreme Court in the case of Shankar Dass (supra) has held as under:-
"It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". But, that power, like every other power, has to be exercised fairly, justly and reasonably. Surely the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a non-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant or the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical."
11. This Court in the case of Ratan Singh (supra), after considering the judgment of Hon'ble Supreme Court in the case of S. Nagoor Meera (supra), has held as under:-
"2. This issue is squarely covered by the judgment of this Court in Brahma Dev Vs., Life Insurance Corporation of India, 2006(3) ALJ, 710 and it would be useful to reproduce paragraphs 11 to 16 of the said judgment as under:-
"11.Now coming to question no.1, in my view the power under regulation 39(4) can be exercised even if the order of conviction and sentence passed by the criminal court is stayed in appeal. A perusal of regulation 39 (4) shows that the factum of conviction on a criminal charge is sufficient to empower the Disciplinary Authority to consider the circumstances of the case and pass such orders as it may deem fit. Whether the order of conviction is operating or not or whether it is executable or not is of not much relevance for exercise of power under Regulation 39(4) of the Regulations of 1956.
12. A similar question came up for consideration before the Apex Court in the case of Deputy Director of Collegiate Eduction ( Administration), Madras Vs, S.Nagoor Meera, AIR 1995 Supreme Court, 1364. The Apex Court considered the pari materia provisions contained in Article 311(2), second proviso, clause (a) of the Constitution of India and said that what is relevant for exercise of power thereunder is the conduct which has led to conviction in criminal charge and not the conviction itself. There is no question of suspending the conduct of an employee when he has been convicted and in any appeal, the same is stayed. Since the Disciplinary Authority has to exercise power considering the conduct of the employee, which has led to his conviction on a criminal charge and since conduct is not stayed, therefor, even if the conviction has been stayed in appeal, the power can be exercised by the Disciplinary Authority on the basis of the conduct which has led to conviction on criminal charge.
13. The relevant observations of the Apex Court as contained in para 8 are reproduced as under:
" We need not, however, concern ourselves 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 laid to his conviction on a criminal charge" and there can be no question of suspending the conduct. We are, 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."
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 Mohal Lal Vs. State of U.P., 1998 (78) FLR 987: (1998 All LJ 987) and relying on Nagoor Meera Case: ( AIR 1995 SC 1364) ( 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 barred 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."
16. In the circumstances, it cannot be held that the respondents could not have taken recourse to regulation 39(4) of regulation of 1956 considering the conduct led to conviction of a criminal charge. The submission of the learned counsel for the petitioner, therefore, is rejected." (emphasis added)
3. It is next contended that the impugned order is founded on mere conviction and the conduct led to conviction so as to justify maximum punishment of dismissal has not been considered by competent authority. In a mechanical manner on the basis of mere conviction it has imposed maximum penalty of dismissal upon petitioner.
4. The question as to whether the order must disclose application of mind on the part of the disciplinary authority that it has considered the question of conduct led to conviction of the Government servant before passing punishment order is no more res integra.
5. In the case of Union of India Vs. Tulsi Ram Patel, AIR 1985 SC 1416, the Apex Court while considering the pare 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 justified 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." (Emphasis added)
6. A similar question came up for consideration before a Division Bench of this Court in the case of Shyam Narain Shukla Vs. state of U.P. (1988) 6 LCD 530 and this Court held as under:-
"In view of the above decision of the Supreme Court, it has to be held that whenever a Government servant is convicted of an offence, he cannot be dismissed from service merely on the ground of conviction but the appropriate authority has to consider the conduct of such employee leading to his conviction and then to decide what punishment is to be inflicted upon him. In the matter of consideration of conduct as also the quantum of punishment the employee has not to be joined and the decision has to be taken by the appropriate authority independently of the employee who, as laid down by the Supreme Court, is not to be given an opportunity of hearing at that stage. (Emphasis added)
7. Similarly another Division Bench of this Court in Sadanand Mishra Vs. State of U.P., 1993 LCD page 70 held that on the conviction of an employee of a criminal charge, the order of punishment cannot be passed unless the conduct which has led to his conviction is also considered. Further, it is held that the scrutiny 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 concerned.
8. In view of the finding in favour of petitioner on second issue, as above, that, the impugned order of dismissal has not been passed by competent authority after considering "conduct led to conviction" but only in a mechanical way on the basis of mere conviction, the writ petition deserves to be allowed. The writ petition is accordingly allowed. Impugned orders dated 28.04.2011, 28.01.2012 and 11.09.2012 are hereby set aside. The petitioner shall be entitled to all consequential benefits. However, this order shall not preclude the respondents from passing a fresh order in accordance with law.
12. When the facts of the instant case are seen in the light of the aforesaid discussions, it clearly comes out that the competent authority was required to go into the conduct of the petitioner which has led to his conviction. Simply dismissing the petitioner from service on the ground of his conviction thus cannot be sustained.
13. Accordingly, the writ petition is partly allowed. A writ of certiorari is issued quashing the impugned order dated 2.1.2010 (Annexure-1 to the writ petition). It would be open for the respondents to pass a fresh order taking into consideration the aforesaid discussions and dictum of law as laid down by the Hon'ble Supreme Court and this Court in the aforesaid judgments. In case the respondents proceed to pass a fresh order, the same shall be passed within a period of three months from the date of production of a certified copy of this order.
14. Consequences to follow.
Order Date :- 19.7.2019 Rakesh (Abdul Moin, J.)