Allahabad High Court
Sadanand vs District Judge, Allahabad on 5 March, 2013
Author: Sabhajeet Yadav
Bench: Sabhajeet Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No.-11 Case:- WRIT-A No.12954 of 2003 Petitioner:- Sadanand Respondent:- District Judge, Allahabad Petitioner Counsel:- V.D. Chaohan, Ashok Khare, S.C. Mishra, S.P. Pandey Respondent Counsel:-S.C., Amit Sthalkar, Pradeep Kumar Hon'ble Sabhajeet Yadav, J.
Heard Sri Satya Prakash Pandey, learned counsel for the petitioner and Sri Pradeep Kumar for respondent.
2. By this petition, the petitioner has challenged the order dated 10.2.2003 passed by the District Judge, Allahabad contained in Annexure-5 of the writ petition, whereby petitioner's services were terminated in purported exercise of power under the provisions of Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as '1975 Rules') indicating that he will get 30 days' wage/salary in lieu of 30 days notice under the said Rules.
3. It is stated that the petitioner was appointed on the post of Driver by the District Judge, Allahabad on 26.10.1996 after due selection in pursuance of advertisement issued in the year 1996. Since the date of his appointment the petitioner was continuously working on the said post. On 21.10.2002 he was convicted in Session Trial No.202 of 1999 by Additional Session Judge, Allahabad u/s 366 and 376 I.P.C. wherein he was sentenced for 3 years and 7 years imprisonment and fine of Rs.3000/- and Rs.5000/- total Rs.8000/- was also awarded against him. Feeling aggrieved against which the petitioner has preferred Criminal Appeal No.4563 of 2002 before this Court, wherein on 25.10.2002 the operation of judgment and order dated 21.10.2002 appealed against passed by Trail court has been stayed and the petitioner was also released on bail. Initially the petitioner was placed under suspension vide order dated 23.10.2002 intending to hold inquiry against him on account of his detention for a period of more than 48 hours. Thereafter a preliminary inquiry was held against the petitioner by Additional District Judge, Allahabad, who submitted his report 29.1.2003 to the District Judge, Allahabad, thereupon the District Judge, Allahabad after going through the said inquiry report has passed an order dated 4.2.2003 intending to terminate the services of the petitioner under 1975 Rules. The copy of preliminary inquiry report dated 29.1.2003 and order dated 4.2.2003 passed by the District Judge, Allahabad are on record as Annexure-2 and 1 respectively to the counter affidavit filed in the writ petition on behalf of the respondent.
4. It would be useful to quote the order dated 4.2.2003 passed by the District Judge, Allahabad contained in C.A.-1 as under:-
"Sri Sada Nand Yadav Driver working in Civil Court had been convicted by Addl. Sessions Judge, Court No.18 on 21.10.2002 on a charge under section 366 and 376 I.P.C. of P.S. Lalapur District Allahabad. The report in this respect had been submitted by Officer Incharge Pooled Cars. The employee having been convicted for a period of 3 years and 7 years for offence involving moral turpitude was suspended vide order dated 23.10.2002 by my predecessor in office after perusing the first information report, medical report supplementary medical report and judgment which he called vide his order dated 22.10.2002. Subsequently after the grant of bail he applied on 31.10.2002 for reinstatement as also for grant of earned leave for the period from 21.10.2002 to 29.10.2002 but the same was also refused by my predecessor in office with the observation that he cannot be permitted to serve until he is exonerated/acquitted inasmuch as the offence for which he was convicted is of moral turpitude. About three and half months time has passed from the date when he was convicted. It is not in the overall interest of Government work to allow him to continue to get subsistent allowance without any work. Preliminary enquiry was ordered in respect of his conduct by my predecessor in office. Enquiry Officer has reported that prior to his employment in the year 1996 Session Trial No.202/99 Crime No.77/83 was already registered against him. in which he had been convicted. He did not disclose the same. Beside this, another case crime no.39/96 under section 307 I.P.C. was also registered against him but he was acquitted of the same prior to his employment. Officer Incharge Pool Cars has given preliminary enquiry report. He has reported that employee Sri Sada Nand is guilty of concealment of facts aforesaid and also of his appearance in Sessions Cases before court without permission. He has also reported that Sri Sada Nand Yadav has been convicted and sentenced to 3 years rigorous imprisonment and a fine of Rs.3,000/- for the offence under section 366 I.P.C. and 7 years rigorous imprisonment with a fine of Rs.5,000/- for the offence under section 376 I.P.C. The cases indicate that the employee had criminal antecedents from the year 1983. The offence in which he has been convicted involve moral turpitude. He cannot be allowed continuance in Government service because of criminal antecedents. It is but natural that any Government Officer taking work would be scared of him. It is not known as to when his case will come to an end and whether he will be acquitted on bail or will be finally convicted. He services are temporary. The facts and circumstances in my opinion warrant that instead of keeping him in continuous suspension it would be better to terminate his services in accordance with rules after giving 30 days notice and to take some body else in employment so that government work does not suffer and the government is also relieved of unnecessary financial obligation.
Let notice of termination of temporary service to Sri Sada Nand Yadav be given with 30 days salary in lieu of notice. "
5. In pursuant to the said order the District Judge Allahabad vide order dated 10.2.2003 terminated the services of the petitioner in exercise of his power under 1975 Rules. Learned counsel for the petitioner has submitted that since from the material available on record and attending circumstances it appears that earlier to the aforesaid order of termination passed by the District Judge the petitioner has already been convicted u/s 366 and 376 I.P.C. in aforesaid case crime, therefore, keeping in view the aforesaid conviction of the petitioner in mind his services were terminated by way of simpliciter termination though the aforesaid conviction of the petitioner was made basis and foundation of impugned order of termination passed against him. Thus, such simpliciter termination is punitive in nature and could not be passed without holding full fledged disciplinary inquiry against him. In support of his submission learned counsel for the petitioner has placed strong reliance upon a decision of Apex Court rendered in Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others (1999) 3 SCC 60 = A.I.R. 1999 S.C. 983, wherein the Apex Court has examined all the earlier decisions rendered by it right from Pashotam Lal Dhingra Vs. Union of India A.I.R. 1958 SC 36 on the question in issue and has held that once it is found that misconduct is foundation of order of simpliciter termination then such order of termination is treated to be punitive in nature as dismissal from service and should be passed only after holding full fledged disciplinary inquiry against delinquent employee.
6. There can be no quarrel with the aforesaid proposition but I am not inclined to go into the aforesaid details and take the view in one way or the other as to whether the aforesaid conviction of the petitioner was foundation of order of simpliciter termination of the petitioner or it was merely motive for such termination of services of the petitioner. In my opinion, even if it is assumed that the conviction of the petitioner u/s 366/376 I.P.C. was foundation of his termination and was not merely motive to pass such order even then in given facts and circumstances of the case the question arises for consideration that as to whether before terminating the services of the petitioner as a measure of punishment it was essential for holding disciplinary inquiry against him or not.
7. In this connection it would be useful to examine the provisions of Article 311 of the Constitution of India as under:-
"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."
8. The issue as to whether the Government employee can be punished by imposing major penalty of dismissal, removal or reduction in rank without holding any disciplinary inquiry against him where such Government employee is convicted on a criminal charge, has been examined by a Constitution Bench of Apex Court in Union of India and another Vs. Tulsiram Patel A.I.R. 1985 SC 1416, wherein it has been held that if the Government servant is convicted on a criminal charge it is not necessary to hold disciplinary inquiry against him and such inquiry can be dispensed with by the Disciplinary Authority under clause (a) of second proviso to Article 311 (2) and the Disciplinary Authority can pass an order imposing any one of the major penalties viz. dismissal, removal or reduction in rank upon the Government servant without holding any disciplinary inquiry.
9. The pertinent observations made by Apex Court in para 127 of Tulsiram Patel's case (supra) are quoted as under:-
"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 (AIR 1975 SC 2216). 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 (1985) 2 SCC 358 : (AIR 1985 SC 772) 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."
10. Thus, from the aforesaid observations it is clear that where a disciplinary authority comes to know that a Government servant has been convicted in a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of penalty and if so what that penalty should be? For that purpose it will have to peruse the judgment of criminal court and consider all the facts and circumstances of the case and other various relevant factors. But such exercise has to be done ex-parte by the disciplinary authority itself and once the disciplinary authority reaches the conclusion that 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 has to be done without hearing the concerned Government servant by reason of the exclusionary effect of IInd proviso to Article 311 (2) of the Constitution of India. 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 concerned Government servant. Having decided which of these three penalties is required to be imposed, he has to pass requisite order.
11. In instant case it appears that after conviction of the petitioner under Sections 366 and 376 I.P.C., the disciplinary authority has undertaken the aforesaid exercise required to be taken by him under law by seeking report of preliminary inquiry and by perusing judgment of conviction passed by the trial court against the petitioner and it was found that since the petitioner has been convicted under Section 366 and 376 I.P.C. with 7 years imprisonment and that the aforesaid offences involved moral turpitude and that he was not sure that the petitioner would be exonerated from the said charges in appeal or not, therefore, it was not found desirable to retain the petitioner in services by keeping him under suspension and since the petitioner was temporary employee, therefore, instead of removing or dismissing the petitioner from service he thought proper to terminate the services of the petitioner under 1975 Rules by simpliciter order of termination.
12. Now further question arises for consideration that as to whether being a repository of power under clause (a) of proviso IInd to Article 311(2) of the Constitution of India and under 1975 Rules the order passed by the District Judge terminating the services of the petitioner by order of simpliciter termination, in given facts and circumstances of the case, can be faulted with merely because of the reason that he has referred wrong provision of law and/or exercised his power under 1975 Rules instead of under clause (a) of IInd Proviso to Article 311 (2) of the Constitution of India. In this connection, it is to be noted that it is well settled that even a mentioning of a wrong provision or omission to mention the provisions which contains the power will not invalidate an order where the source of such power exist. Therefore, in my opinion, the omission to mention the relevant clause of IInd proviso to Article 311 (2) of the Constitution in the impugned order will not have the effect of invalidating the impugned order of termination and such order of termination can be saved by reading the same having been passed under the applicable clause of IInd proviso to Article 311 (2) of the Constitution of India. Having regard to the facts and circumstances of the case, since the petitioner has been convicted under section 366 and 376 I.P.C. which involves the offence of moral turpitude, therefore, I am of the considered opinion that the petitioner's removal from service on account of his conviction in aforesaid offence cannot be faulted with and further the order passed by the District Judge, Allahabad terminating his services by way of simpliciter termination in purported exercise of power under 1975 Rules should be treated to be the removal of the petitioner from service under clause (a) of IInd proviso of Article 311 (2) of the Constitution of India.
13. Lastly a further question arises for consideration that as to whether the disciplinary authority was required to hold his hand and continue to keep the petitioner in service after his conviction under section 366 and 375 I.P.C. till disposal of his pending appeal before this Court or not? In this connection, learned counsel for the petitioner could not point out any specific rule under which during the pendency of said criminal appeal the disciplinary authority could stay his hand and could not pass the order of termination or punishment removing the petitioner from service on account of his conviction in aforesaid offences.
14. The Apex Court has occasion to consider the same issue in Deputy Director of Collegiate Education (Administration) Madras Vs. S. Nagoor Meera A.I.R. 1995 SC 1364, wherein it has been held that taking proceedings of 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 sentences or the order is suspended by appellate court or on the ground that the said Government servant-accused has been released on bail pending appeal. It was further observed that it cannot be said that until appeal against conviction is disposed of, action under clause (a) of IInd proviso to Article 311 (2) is not permissible. It was further held that more appropriate course in all such cases is to take action under clause (a) of IInd proviso to Article 311 (2) once a Government servant is convicted on a criminal charge and not to wait for the disposal of appeal or revision, as the case may be. If, however, the Government servant-accused is acquitted in 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.
15. The pertinent observations made by the Apex Court in aforesaid case in paras 7 and 9 of the decision are quoted as under:-
"7. This clause, it is relevant to notice, speaks of "conduct which has led his conviction on a criminal charge". It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. Section 389 of the Code of Criminal Procedure, 1973 empowers the appellate court to order that pending the appeal "the execution of the sentence or order appealed against be suspended and also if he is in confinement that he be released on bail or on his own bond." Section 389(1), it may be noted, speaks of suspending "the execution of the sentence or order", it does not expressly speak of suspension of conviction. Even so, it may be possible to say that in certain situations, the appellate court may also have the power to suspend the conviction - an aspect dealt with recently in Rama Narang v. Ramesh Narang (1995 (1) J.T. 515). At pages 524 and 525, the position under Section 389 is stated thus:
"Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'Order' in Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'Order' in- Section 389(1) mean order of conviction or an order similar to the one under Sections 357 or 360 or the Code? Obviously, the order referred to in Section 389(1) must be an order capable in execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which if not suspended, would be required to be executed by the authorities...... In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code would be invoked. in such situations, the attention of the Appellate Court must be specifically invited to die consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order 'for reasons to be recorded by it in writing'. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto?...... If such, a precise request was made to the Court pointing out the consequences likely to fall on the continuance of the conviction order, the Court would have applied its mind to the specific question and if it thought that case was made out for grant of interim stay of the conviction order, with or without conditions attached thereto, it may have granted an order to that effect.
9. ........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."
16. In view of settled legal position and foregoing discussion I am of the considered opinion that once the petitioner is convicted on criminal charge u/s 366/376 I.P.C. involving offence of moral turpitude until the order of conviction is set aside in pending appeal or other proceeding, its effect and impact cannot be completely wiped off or ceased to operate merely because of execution of sentence or order appealed against was suspended or stayed and the petitioner was released on bail during the pendency of said appeal. However, in case petitioner's appeal would be allowed and he would be exonerated from the criminal charge or acquitted in appeal or other proceeding, it will always be open for the petitioner to approach the District Judge, Allahabad, who in turn will pass appropriate order. But in given facts and circumstances of the case, at this stage it is very difficult for this Court to interfere in the impugned order of termination of services of the petitioner.
17. Writ petition accordingly stands dismissed.
Order Date:- 5.3.2013 SL/-