Allahabad High Court
Fajid Ali vs State Of U.P. Thru. Prin. Secy. Gram ... on 16 April, 2024
Bench: Chief Justice, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:30348-DB Chief Justice's Court Case :- SPECIAL APPEAL No. - 190 of 2023 Appellant :- Fajid Ali Respondent :- State of U.P. through Principal Secretary, Gram Vikas Civil Secrt. Lucknow and others Counsel for Appellant :- Indu Prakash Singh, Salil Shekhar Singh Counsel for Respondent :- C.S.C., V.P. Nag (Standing Counsel) Hon'ble Arun Bhansali, Chief Justice Hon'ble Jaspreet Singh, J.
1. This appeal is directed against the order dated 21.03.2023 passed by learned Single Judge in Writ-A No. 2355 of 2023 dismissing the writ petition filed by the appellant against the order dated 02.04.2019, whereby his services were dispensed with under Article 311(2) of the Constitution of India on account of his conviction for offences under Section 307, 302, 504 and 506 I.P.C. and order passed by appellate authority dated 18.11.2022, whereby the appeal was also dismissed.
2. The appellant, who was working as Urdu Translator-cum-Clerk in the office of District Development Officer, Sultanpur, was placed under suspension by order dated 15.06.2007 on being arrested and was reinstated back in service by order dated 13.10.2008 after he was released on bail. After the trial, the appellant was convicted by judgment dated 04.12.2018 by District and Sessions Judge, Sultanpur (U.P.) under Section 302/34, 307/34, 504 and 506 I.P.C. Based on the said conviction, by order dated 02.04.2019, with reference to the provisions of Article 311(2) of the Constitution of India, the appellant was dismissed from service. The appellant filed appeal before the appellate authority. The appellate authority, vide order dated 18.11.2022, dismissed the appeal.
3. Feeling aggrieved, the appellant filed writ petition before this Court, inter alia, with the submissions that the order has been passed without application of mind inasmuch as even when an order is passed under Article 311(2) of the Constitution of India/Rule 7 of U.P. Government Servant (Discipline and Appeals) Rules, 1999 ('the Rules, 1999'), the disciplinary authority ought to have applied its mind to the role allegedly played by the petitioner in the offence for which he was convicted and sentenced for life, which was not done. It was further indicated that the sentence of the appellant has been suspended by Division Bench of this Court by a reasoned order and as such, the order impugned was liable to be set aside. Petition was resisted by the respondents.
4. Learned Single Judge, after hearing the parties, came to the conclusion that the appellant has been convicted for the offences under Sections 307, 302, 504 and 506 I.P.C. and that the judgment and order of conviction has not been stayed and, therefore, the dismissal was justified. Regarding the law cited, i.e., Union of India Vs. Tulsi Ram Patel : (1985) 3 SCC 398, the Court came to the conclusion that the same would have no application in a case where the public servant has been convicted and sentenced for a heinous offence such as murder, rape or moral turpitude etc. and consequently dismissed the petition.
5. Learned counsel for the appellant made vehement submissions that requirement of law under Article 311(2) of the Constitution of India has been well established as laid down by Hon'ble Supreme Court in the case of Tulsi Ram Patel (supra) and, admittedly, the requirements have not been fulfilled by the respondents while passing the order impugned and that appellate authority has also committed the same mistake and, therefore, the orders impugned deserve to be set aside.
6. Further submissions were made that Division Bench of this Court, while suspending the sentence of the appellant, has come to the conclusion that the injuries to the deceased could not have been caused by the appellant, which fact is also required to be taken into consideration. It was prayed that the appeal be allowed, judgment impugned be set aside and the writ petition be allowed. Reliance was placed on Sada Nand Mishra Vs. State of U.P. : 1993 (11) LCD 70.
7. Learned Government Counsel made vehement submissions that looking to the nature of the offence for which the appellant has been convicted and sentenced, i.e., under Section 307 and 302 I.P.C. and the fact that his conviction has not been stayed by the Division Bench, he is not entitled to seek any relief and judgment of the learned Single Judge does not call for any interference. Submissions have been made that the disciplinary authority has taken into consideration the fact of conviction, which is sufficient for the purpose of exercising power under Article 311(2) of the Constitution of India and, therefore, appeal dserves dismissal. Reliance was placed on Division Bench judgment in State of U.P. Vs. Prem Milan Tiwari, Constable : Special Appeal Defective No. 219 of 2015 decided on 25.03.2015.
8. We have considered the submissions made by counsel for parties and have perused the material available on record.
9. The appellant, on being convicted for offence under Section 307/34, 302/34, 504 and 506 I.P.C., was liable to be dealt with under clause (i) of proviso to Rule 7 of Rules of 1999. The said proviso is an exception to Rule 7 which lays down procedure for imposition of major penalty and provides that where any major penalty is imposed on a person on the ground of his conduct which has led to his conviction on a criminal charge, the rule shall not apply.
10. The competent authority has passed the following order on 02.04.2019:
^^vkns'k Jh Qkfty vyh] mnZw vuqoknd lg dfu"B lgk;d] fodkl [k.M djkSnhdyk dks ek0 U;k;ky; }kjk vijk/k la[;k 531@07@/kkjk 307@302@504@506 Hkk0n0fo0 ds vUrxZr py jgsa eqdnesa esa n.M ikfjr gksus ds QyLo:i lafo/kku ds vuqPNsn 311¼2½ esa fufgr izkfo/kkuksa ds vuqlkj Jh Qkfty vyh] mnZw vuqoknd lg dfu"B lgk;d] fodkl [k.M djkSnhdyk dks jktdh; lsok ls inP;qr (dismiss) fd;k tkrk gSA^^ A perusal of the above order would reveal that the authority has only made reference to the fact of conviction in the criminal case and has ordered for dismissal.
11. The provisions of proviso (i) to Rule 7 of Rules of 1999 are similar to the provisions of Clause (a) of second proviso to Article 311(2) of the Constitution of India wherein also exception has been provided inter alia with regard to dismissal of a person "on the ground of conduct which has led to his conviction on a criminal charge". Hon'ble Supreme Court way back in the case of Tulsi Ram Patel (supra) has laid down as under:
"Before, however, any clause of the second proviso can come into play the condition laid down in it must be satisfied. The condition for the application of each of these clauses is different. In the case of clause (a) a government servant must be guilty of conduct deserving the penalty of dismissal, removal or reduction in rank which conduct has led to him being convicted on a criminal charge. In the case of clause (b) the disciplinary authority must be satisfied that it is not reasonably practicable to hold an inquiry. In the case of clause (c) the President or the Governor of a State, as the case may be, must be satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry. When these conditions can be said to be fulfilled will be discussed later while dealing separately with each of the three clauses. The paramount thing, however, to bear in mind is that 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 inquiry. The extent to which a government servant can be denied his right to an inquiry formed the subject-matter of considerable debate at the Bar and we, therefore, now turn to the question whether under the second proviso to Article 311(2) even though the inquiry is dispensed with, some opportunity at least should not be afforded to the government servant to that he is not left wholly without protection. As most of the arguments on this Part of the case were common to all the three clauses of the second proviso, it will be convenient at this stage to deal at one place with all the arguments on this part of the case, leaving aside to be separately dealt with the other arguments pertaining only to a particular clause of the second proviso.
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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 that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India and another, [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." (emphasis supplied)
12. The Hon'ble Court held that for exercise of power under the said provision, the authority would be required to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and has to reach a conclusion that the government servant's conduct was such that he required dismissal or removal from service and he should bear in mind that a conviction on a criminal charge does not automatically entail dismissal of the concerned government servant.
13. In the present case, a bare look at the order dated 02.04.2019, quoted hereinabove, would reveal that there has been a clear non compliance of the requirements, as laid down by Hon'ble Supreme Court wherein the disciplinary authority has not cared to pass a speaking order and has taken as if the dismissal was automatic, which is ex facie contrary to the law laid down by Hon'ble Supreme Court, as such the same cannot be sustained.
14. So far as judgment in the case of Prem Milan Tiwari, Constable (supra) is concerned, the said case arose under the provisions of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 ('the Rules of 1991'), which under Rule 8(4)(b), inter alia, provided that every officer convicted by the Court for an offence involving moral turpitude shall be dismissed unless the punishing authority for the reasons to be recorded in writing considers it otherwise, wherein the Division Bench came to the conclusion that the respondent, being a Constable in Police, was convicted for a heinous crime punishable under Section 302 I.P.C. read with Sections 120-B and 149 I.P.C. and the conduct of the respondent, which led to his conviction on a charge under Section 302 I.P.C., cannot by any circumstance be regarded as warranting any treatment other than the punishment of dismissal under Clause (a) of second proviso to Article 311(2) or under Rule 8(2)(a) of Rules of 1991.
15. The service Rules applicable to a Constable and the applicable Rules in the present case are totally different, which do not provide for passing a mandatory order of dismissal in case of conviction for offence involving moral turpitude, as such the said judgment would have no application to the facts of the present case.
16. Consequently, the appeal is allowed. The judgment impugned passed by learned Single Judge dated 21.03.2023 is set aside. The order dated 02.04.2019 (Annexure-4 to the writ petition) passed by District Development Officer, Sultanpur as well as appellate order dated 18.11.2022 are quashed and set aside.
17. The matter is remanded back to the District Development Officer, Sultanpur to pass a fresh order under applicable Rule 7 of Rules of 1999 as per the parameters discussed hereinbefore, within a period of two months from the date of presentation of a certified copy of this order.
18. It is further provided that reinstatement of the appellant and his entitlement for service benefits shall depend on the outcome of the fresh order to be passed by the District Development Officer, Sultanpur.
Order Date :- 16.4.2024
P. Sri.
(Jaspreet Singh, J) (Arun Bhansali, CJ)