Allahabad High Court
State Of U.P. Thru. Sec. Home And 3 Others vs Prem Milan Tiwari, Constable on 25 March, 2015
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court AFR Case :- SPECIAL APPEAL DEFECTIVE No. - 219 of 2015 Appellant :- State Of U.P. Thru. Sec. Home And 3 Others Respondent :- Prem Milan Tiwari, Constable Counsel for Appellant :- Piyush Shukla,S.C. Counsel for Respondent :- Vijay Gautam Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Pradeep Kumar Singh Baghel,J.
The respondent was a constable in the police department having been originally appointed on 1 November 1978. He was tried for offences under Sections 148, 302/149 and 320/120B of the Indian Penal Code in Sessions Trial No. 93 of 2001. By a judgment and order dated 18 June 2010, the respondent was convicted of those offences by the Court of the Special Judge/Additional Sessions Judge, Ballia and was sentenced to imprisonment for life. On 8 September 2010, the services of the respondent were terminated under Rule 8(2)(a) of The Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 19911.
Rule 8 of the Rules of 1991 reads as follows:
"8. Dismissal and removal.--(1) No Police Officer shall be dismissed or removed from service by an authority subordinate to the appointing authority.
(2) No Police Officer shall be dismissed, removed or reduced in rank except after proper inquiry and disciplinary proceedings as contemplated by these rules:
Provided that this rule 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 enquiry; or
(c) Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry.
(3) All orders of dismissal and removal of Head Constables or Constables shall be passed by the Superintendent of Police. Cases in which the Superintendent of Police recommends dismissal or removal of a Sub-Inspector or an Inspector shall be forwarded to the Deputy Inspector General concerned for orders.
(4) (a) The punishment for intentionally or negligently allowing a person in police custody or judicial custody to escape shall be dismissal unless the punishing authority for reasons to be recorded in writing awards a lessor punishment.
(b) Every officer convicted by the Court for an offence involving moral turpitude shall be dismissed unless the punishing authority for reasons to be recorded in writing considers it otherwise.
The order of termination was challenged in a writ petition filed under Article 226 of the Constitution in which reinstatement together with consequential benefits and continuity of service was sought. The learned Single Judge by a judgment and order dated 3 October 2013 allowed the writ petition and set aside the order of the Superintendent of Police dated 8 September 2010 while directing all consequential benefits. The learned Single Judge has relied upon the judgments of the Supreme Court in Union of India vs. Tulsiram Patel2 and Shankar Dass vs. Union of India3 in holding that the Superintendent of Police failed to consider the conduct of the respondent which had led to his conviction, before imposing the punishment of dismissal by means of the impugned order. The learned Single Judge was of the view that unless the authority had applied its mind to the conduct which led to the conviction and quantum of punishment, the exercise of powers under Rule 8 (2)(a) could not be regarded as valid.
The submission which has been urged on behalf of the appellants is that in the present case, the respondent was convicted of a serious offence under Section 302 of the Penal Code read with Section 120B. Ex facie, the conduct of the respondent which had led to his conviction of a criminal charge under Section 302 must necessarily be of a serious nature. Moreover, sub-rule (b) of Rule 8 (4) postulates that every officer convicted of an offence involving moral turpitude shall be dismissed unless the punishing authority considers it otherwise for reasons recorded in writing.
On the other hand, the learned counsel appearing on behalf of the respondent supported the reasons which weighed with the learned Single Judge relying upon the decision of the Supreme Court in Tulsiram Patel (supra).
Clause (2) of Article 311 of the Constitution provides inter alia that no person who is a member of a civil service of the Union or of a State shall be dismissed, removed or reduced in rank except after an inquiry in which he had been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges. However, clause (a) of the second proviso provides that clause (2) shall not apply 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.
The expression "on the ground of conduct which has led to his conviction on a criminal charge" was interpreted in the judgment of the Supreme Court in Tulsiram Patel (supra) where it was held as follows:
"...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 enquiry..."
In Shankar Dass vs. Union of India (supra), the appellant had been convicted by the Magistrate of an offence under Section 409 of the Penal Code but having regard to the peculiar circumstance relating to the crime and the criminal, he was released under Section 4 of the Probation of Offenders Act 1958. Based on the conviction, the appellant was summarily dismissed from service. The Magistrate in the course of his decision noted as follows:
"Misfortune dogged the accused for about a year . . . and it seems that it was under the force of adverse circumstances that he held back the money in question. Shankar Dass is a middle-aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time. He is not a previous convict. Having regard to the circumstances of the case, I am of the opinion that he should be dealt with under the Probation of Offenders Act, 1958."
The Supreme Court held that the Government had chosen to dismiss the appellant despite these observations of the Magistrate. Considering the provisions of clause (a) of the second proviso to Article 311 (2), the Supreme Court held as follows:
"...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 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. 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."
The decision in Shankar Dass (supra) was considered in a subsequent judgment of the Supreme Court in Deputy Director of Collegiate Education (Administration), Madras vs. S. Nagoor Meera4. That was a case involving a conviction under Section 420 of the Penal Code and Section 5 of the Prevention of Corruption Act 1947. The respondent, following the order of conviction was served with a show cause notice for termination which was quashed by the Tribunal. The Tribunal had held that until an appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311 (2) was not permissible. This was held to be not reflective of the correct position in law. Following the decision in Shankar Dass, the Supreme Court held as follows:
"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 proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice."
In a more recent judgment of the Supreme Court in Government of A.P. and anr. vs. B. Jagjeevan Rao5, the respondent had been charge-sheeted and convicted after trial of an offence under Section 7 and Section 13(1)(d) of the Prevention of Corruption Act 1988. Following the conviction, the respondent was dismissed from service. The High Court had set aside the action and reversed the order of the Tribunal after noticing both the decisions in Tulsiram Patel and S. Nagoor Meera (supra). The Supreme Court observed as follows:
"Regard being had to the aforesaid enunciation of law and keeping in view the expected standard of administration, conviction on the charge of corruption has to be viewed seriously and unless the conviction is annulled, an employer cannot be compelled to take an employee back in service..."
We are of the view that the principle of law which has been laid down by the Supreme Court in the decision in S. Nagoor Meera and recently in B. Jagjeevan Rao's case, (supra) must govern the facts of the present case. The respondent was a constable in the police and was convicted of a heinous crime punishable under Section 302 of the Penal Code read with Sections 120B and 149. Can the State be compelled or required to take back in service such a person, pending the disposal of the appeal ? Plainly not. The learned counsel appearing on behalf of the respondent sought to distinguish those two decisions on the ground that the employee had been convicted of offences under the Prevention of Corruption Act 1988 where the conduct had a direct bearing on the service of the employee as an officer of the State. In our view, this would not make any difference to the construction of clause (a) of the second proviso to Article 311. What clause (a) of the second proviso does is to stipulate that the requirement of clause (2) of holding an inquiry consistent with the principles of natural justice would not apply where a person is dismissed, removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge. In the present case, the respondent was a constable in the police. He was found guilty after a session's trial of an offence punishable under Section 302 read with Section 120B of the Penal Code. In such a case, clause (a) of the second proviso to Article 311 (2) would clearly stand attracted. The State cannot be regarded as having acted with perversity in dismissing a person who has been convicted of a serious offence of the nature involved in pursuance of the provisions of the second proviso to Article 311 (2) and, as in the present case, under Rule 8(2)(a) which is pari materia. The learned Single Judge, with respect, was in error in holding that there was no application of mind to the conduct which has led to the conviction. The conduct of the respondent which has led to the conviction of a charge under Section 302 cannot, by any circumstance, be regarded as warranting any treatment other than the punishment of dismissal under clause (a) of the second proviso to Article 311 (2) or under Rule 8(2)(a). Ultimately, as has been held by the Supreme Court until the conviction is set aside by an appellate or higher court, it would not be advisable to retain such a person in service. If he succeeds in the appeal or in any other proceeding, the matter can always be reviewed in such a manner that he would not suffer any prejudice.
We, accordingly, allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 3 October 2013. In consequence, the writ petition filed by the respondent shall stand dismissed. However, there shall be no order as to costs.
Order Date :- 25.3.2015
RK (Dr.D.Y.Chandrachud,C.J.)
(P.K.S. Baghel,J.)
C. M. (Delay Condonation) Application No. 88369 of 2015
Case :- SPECIAL APPEAL DEFECTIVE No. - 219 of 2015
***
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Pradeep Kumar Singh Baghel,J.
The State has filed this appeal with a delay of one year and one hundred thirty five days. The delay has been satisfactorily explained in the affidavit of the Deputy Superintendent of Police in support of the application for condonation. The affidavit contains a detailed elaboration of the steps which were taken after the judgment of the learned Single Judge for processing approvals and for filing the special appeal.
We deem it appropriate and proper to condone the delay since sufficient cause has been shown. The delay is hence condoned.
The application stands, accordingly, disposed of.
Order Date :- 25.3.2015
RK (Dr.D.Y.Chandrachud,C.J.)
(P.K.S. Baghel,J.)