Allahabad High Court
Vishwas Pandey vs State Of U.P on 14 January, 2020
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R Reserved Court No. - 10 Criminal Misc Application No.372 of 2019 in re: Case :- CRIMINAL APPEAL No. - 126 of 2018 Appellant :- Vishwas Pandey Respondent :- State Of U.P Counsel for Appellant :- Vaibhav Kalia,A.P.Mishra,Amol Kumar,Bal Keshwar Srivastava,Laltaprasad Misra,Vaibhav Kalia Counsel for Respondent :- G.A. Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
(Per Hon'ble Devendra Kumar Upadhyaya,J) This application by the applicant-appellant-Vishwas Pandey has been moved with the prayer to suspend the operation of the order appealed against i.e. the judgment and order of conviction dated 18.01.2018 passed by the Additional Sessions Judge/Special Judge (E.C.Act), Gonda in Sessions Trial No.264 of 2012 which had emanated from Case Crime No.559 of 2012, under Sections 147, 148, 149, 323, 504, 506, 307, 302 IPC and Section 27/30 Arms Act, Police Station Kotwali Nagar, District Gonda whereby he has been convicted of the offences under Sections 147, 304/149, 504 and 506, IPC and has accordingly been sentenced.
The applicant-appellant at present is enlarged on bail pursuant to the order dated 17.05.2018 as corrected vide order dated 21.05.2018 passed by this Court in Criminal Appeal No.126 of 2018.
The appellant is an Assistant Professor in Shia P.G. College, Lucknow having been appointed in the said capacity in the year 2017. Shia P.G. College is affiliated to Lucknow University and accordingly conditions of service of the applicant-appellant are governed by the provisions of U.P. State Universities Act and the First Statutes of Lucknow University.
It has been submitted on behalf of the applicant-appellant that pursuant to the order passed by this Court enlarging him on bail, he was released from jail on 26.05.2018 and soon thereafter he received a show cause notice dated 12.05.2018 issued to him by the Hony Joint Secretary/Manager of the College whereby he has been informed that Managing Committee of the College in its meeting held on 11.05.2018 passed a resolution to issue notice to the applicant-appellant seeking his clarification and explanation as to why has he been absent from the college without any information since 15.02.2018.
It has been averred in the instant application that reply to this notice was submitted by the applicant-appellant on 28.05.2018 to the Manager of the College whereby he requested permission of the college authorities to allow him to join his duties and further that his absence from duty with effect from 16.01.2018 may be condoned.
The show cause notice dated 12.05.2018 and reply submitted by the applicant-appellant to the said notice are available on record as annexure nos. 2 and 3 respectively with the application. In his reply submitted on 28.05.2018, it has been stated by the applicant-appellant that he had applied for one month's leave without pay from 16.01.2018, however, in the meantime the applicant-appellant was convicted vide judgment and order of the trial court dated 18.01.2018 for the offences under Sections 147, 304/149, 504 and 506, IPC. It has further been averred in the said reply that the applicant-appellant has preferred an appeal challenging the judgment and order of conviction which has been admitted by this Court and vide order dated 17.05.2018 he has been enlarged on bail and that after being released on bail, the applicant-appellant has been contacting the college authorities, however, he has not been allowed to join his duties in view of the show cause notice dated 12.05.2018. Narrating these facts the applicant-appellant vide his reply dated 28.05.2018 has prayed that he may be permitted to join his duties.
It has further been averred in the instant application that another show cause notice dated 13.08.2018 has again been issued by the Hony Joint Secretary of the College Management informing the applicant-appellant that in the meeting of Managing Committee of the College held on 18.07.2018, it was resolved to give the applicant-appellant last chance to clarify as to why and on what grounds his services may not be terminated.
In the background of aforesaid two notices issued by the College, the one dated 12.05.2018 and the other dated 13.08.2018, this application has been moved by the applicant-appellant with the prayer to suspend the operation of the judgment and order of conviction so that he can submit his joining and he may give adequate reply to the show cause notice so that the applicant-appellant is not faced with a situation where his services from employment of the College shall get terminated.
Lengthy arguments have been raised by Dr. L.P.Misra and the Sri Vaibhav Kalia, learned counsel for applicant-appellant, Sri H.G.S. Parihar, learned Senior Advocate assisted by Sri A.P. Misra, learned counsel for complainant and Sri Madan Mohan Pandey, learned Additional Advocate General for the State.
We have given our anxious consideration to rival submissions made by learned counsel representing the respective parties and have also perused the material available on record.
It has been submitted by Dr. L.P. Misra, learned counsel for the applicant-appellant, that under Section 389 of Code of Criminal Procedure this Court is well within its jurisdiction to pass an order suspending not only execution of sentence but the judgment and order of conviction as well during pendency of this appeal. He has further submitted that the incident on the basis of which the trial against the applicant-appellant was held wherein he has been convicted, started on a sudden quarrel and since there was a fight between two groups of persons, it is significant to determine as to who was the aggressor and further that merely on the basis of presence of applicant-appellant at the time and place of occurrence, he could not have been convicted. It has further been argued on behalf of the applicant-appellant that mere presence on the place of occurrence without any motive or mens rea on his part would not have resulted in his conviction. He has drawn attention of the Court to certain paragraphs of the judgment and order of conviction passed by the trial court and has submitted that it is proved from the evidence available on record that it was the complainant and not the accused persons who were aggressors.
Dr. L.P Misra, learned counsel for applicant-appellant has further taken us to that portion of the judgment and order of conviction where trial court has opined that incident had happened unfortunately. It has thus been argued by learned counsel for applicant-appellant that appeal is likely to be allowed ultimately and that such possibility is a relevant factor which may be taken into account while considering any prayer for suspending the order of conviction.
On behalf of the applicant-appellant, judgment of Hon'ble Supreme Court in the case of Rama Narang vs. Ramesh Narang and others, reported in (1995) 2 SCC 513 has been relied upon where Hon'ble Apex Court has held that scope of Section 389 Cr.P.C. extends to conferring power on the appellate court to stay the operation of the order of conviction as well in case the order of conviction is to result in some disqualification. The judgment in the case of Ravikant S. Patil vs. Sarvabhouma S. Bagali, reported in (2007) 1 SCC 673, has also been relied upon by the applicant-appellant to buttress the submission that in certain situations the order of conviction may become executable inasmuch as it may result in incurring of some disqualification under other enactments and that in such cases it is permissible to invoke the power under Section 389 (1) of the Code for staying the conviction as well. Reliance has also been placed by learned counsel for applicant-appellant on the case of Navjot Singh Sidhu vs. State of Punjab and another, reported in (2007) 2 SCC 574 where legal position in respect of power of appellate court to suspend an order of conviction under Section 389 of Code of Criminal Procedure has been summarized and reiterated, according to which the appellate court can suspend or grant stay of order of conviction, however, the person seeking suspension of conviction is to draw attention of the appellate court to the consequences that may arise if the conviction is not stayed.
We may hasten to note that Rama Narang (supra) was a case relating to disqualification under Section 267 of the Companies Act, 1956 which provided that Managing Director of a Company shall incur disqualification if he is found to have committed an offence involving moral turpitude. Similarly, Ravikant S. Patil (supra) and Navjot Singh Sidhu (supra) relate to disqualification under Representation of the People Act, 1951.
Referring to judgment in the case of K.C.Sareen vs. CBI, Chandigarh reported in (2001) 6 SCC 584, submission has been made by learned counsel representing the applicant-appellant that the law laid down by Hon'ble Supreme Court in the said case does not have any application in this case for the reason that in K.C.Sareen (supra) suspension of conviction was sought by a Bank Officer who was convicted under Section 13 (2) of Prevention of Corruption Act and it is in this background that Hon'ble Supreme Court upheld the order of High Court wherein the High Court had refused to suspend the conviction under the Prevention of Corruption Act.
Taking the Court to various paragraphs of this judgment, it has been stated by learned counsel for applicant-appellant that it may not be appropriate to pass an order by the appellate court suspending the conviction in a situation where conviction is under Prevention of Corruption Act for the reason that when public servant convicted of corruption is allowed to continue to hold public office, it may have demoralizing effect on other employees and consequently the same may result in erosion of the confidence of the people in public institutions. However, in the same breathe, it has been submitted on behalf of the applicant-appellant that the present case does not involve conviction of the applicant-appellant for either corruption or for any offence involving moral turpitude and accordingly since the applicant-appellant is faced with a situation where his services as Assistant Professor in the college may get terminated, it will be appropriate and is warranted in the facts of the case that the judgment and order of conviction may be suspended/stayed.
Per contra, relying upon a judgment of a Division Bench of this Court in the case of Irfan and others vs. State of U.P. reported in 2009 (66) ACC 413, it has been argued by Sri H.G.S.Parihar, Senior Advocate assisted by Sri A.P.Misra, learned counsel representing the complainant that considering the facts and circumstances of the case it would be highly improper to suspend the order of conviction.
Sri Madan Mohan Pandey, learned Additional Advocate General appearing for the State has vehemently opposed the prayer for suspension of conviction though he does not dispute the jurisdiction of this Court to pass an order suspending the conviction as well, in an appropriate case under Section 389 of the Code of Criminal Procedure. He has further stated that the power of suspension of conviction should be exercised only in exceptional circumstances only where failure to stay conviction may lead to irreversible consequences and not in any other case. In support of his submission Sri Pandey has made reference to the judgments of Hon'ble Supreme Court in the cases of State of Rajasthan vs. Salman Salim Khan, (2015) 15 SCC 666, Shyam Narain Pandey vs. State of U.P, (2014) 8 SCC 909, State of Maharashtra through C.B.I. vs. Bala Krishna Dattatrya Kumbhar (2012) 12 SCC 384, Sanjay Dutt vs. State of Maharashtra (2009) 5 SCC 787, State of Maharashatra vs. Gajanan and another (2003) 12 SCC 432, Union of India vs. Attar Singh and another (2003) 12 SCC 424, Deputy Director of Collegiate Education vs. S. Nagoor Meera (1995) 3 SCC 377, Dattukulangara Madhavan vs. Majeed and others, (2017) 2 JIC 380 (SC) and Masalti vs. State of U.P., AIR 1965 SC 202. He has further argued that the Court while considering the prayer for suspension of conviction is required to take into consideration seriousness of offence for which the applicant-appellant has been punished and if it is found that convict is involved in crime which is outrageous and if conviction is stayed, it would have serious impact on the public perception then in such circumstances stay of conviction would be impermissible. Drawing attention of the Court to paragraph 15 of the judgment of the apex Court in the case of State of Maharastra vs. Bala Krishna Dattatrya Kumbhar (supra) he has argued that relief of staying the operation of conviction cannot be granted only on the ground that an employee may lose his job if conviction is not suspended. Paragraph 15 in the case of State of Maharastra vs. Bala Krishna Dattatrya Kumbhar (supra) is as follows:
"15. Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that the appellate court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the Court as regards the evil that is likely to befall him, if the said conviction is not suspended. The Court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examined whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done."
In his submission, Sri Pandey has thus stated that merely because applicant-appellant is faced with some action against him at the hand of the management of the College, the prayer for suspension of conviction may not be granted.
Having heard learned counsel for the parties and perused the record available before us, what we find is that it is the two notices dated 12.05.2018 and 13.08.2018 issued by the Manager of the College to the applicant-appellant which has prompted him to file the instant application.
There is no quarrel on the legal principle that in appropriate case this Court has been vested with the jurisdiction and authority under Section 389 of Code of Criminal Procedure to suspend the order appealed against that is to say to suspend the conviction as well along with the sentence. The question, however, which falls for our consideration is as to whether two notices dated 12.05.2018 and 13.08.2018 issued by the Management of the College to the applicant-appellant can be construed to form any cause of action to the applicant-appellant to seek the prayer made in this application for suspension of conviction. Though it has been contended on behalf of the applicant-appellant that by issuing aforesaid two notices, specially the subsequent notice dated 13.08.2018, the Management of the College, where applicant-appellant is presently employed as Assistant Professor, intends to terminate his services on the ground of his conviction by the judgment and order which is under appeal herein, however, a careful reading of the aforesaid two show cause notice and the relevant provisions contained in the First Statues of Lucknow University governing Conditions of Services of Teachers of Associated Colleges lead us to conclude that the present application is misconceived.
Conditions of Service of Teachers of Associated College of Lucknow University are governed by the provisions contained in Part-I of Chapter XVII of the First Statues of Lucknow University which have been framed under U.P. State University Act and as such the same have statutory force.
Statue 17.04 is relevant for the purpose of appropriately appreciating the issue involved herein which is quoted herein below:-
"17.04. (1) A teacher of an associated college (other than a Principal) may be dismissed or removed or his services terminated on one or more of the following grounds:
(a) willful neglect of duty;
(b) misconduct, including disobedience to the orders of the Principal;
(c) breach of any of the terms of contract of service;
(d) dishonesty connected with the University or College examination;
(e) scandalous conduct or conviction for an offence involving moral turpitude;
(f) physical or mental unfitness;
(g) incompetence;
(h) abolition of the post with the prior approval of the Vice-Chancellor.
(2) A Principal of an associated college may be dismissed or removed, or his services terminated on grounds mentioned in clause (1) or on the ground of continued mismanagement of the college. (3) Except as provided by clause (4), not less than three months' notice (or whose notice is given after the month of October, then three months' notice or notice ending with the close of the session whichever if longer) shall be given on either side for terminating the contract, or in lieu of such notice, salary for three months (or longer period as aforesaid) shall be paid:
Provided that where the Management dismisses or removes or terminates the services of a teacher, under clause (1) or clause (2) or when the teacher terminates the contract for breach of any of its terms by the Management, no such notice shall be necessary;
Provided further that parties will be free to waive the condition of notice, in whole or in part by mutual agreement.
(4) In the case of any other teacher appointed in a temporary or officiating capacity his services shall be terminable, by one months' notice or on payment of salary in lieu thereof on either side".
According to the aforequoted Statue 17.04 of the First Statutes a teacher of an associated college may be dismissed or removed or his services can be terminated on one or more grounds given in sub-clause (1) of Statue 17.04.
Statue 17.06 is also relevant which reads as under:-
"17.06. (1) No order dismissing removing or terminating the services of a teacher on any ground mentioned in clause (1) or clause (2) of Statue 17.04 (except in the case of a conviction for an offence involving moral turpitude or of abolition of post) shall be passed unless a charge has been framed against the teacher and communicated to him with a statement of the grounds on which it is proposed to take action and he has been given adequate opportunity.
(i) of submitting a written statement of his defense;
(ii) of being heard in person, if he so chooses; and
(iii) of calling and examining such witness in his defense as he may wish;
Provided that the Management or the officer authorized by it to conduct to inquiry may for sufficient reasons to be recorded in writing, refuse to call any witness.
(2) The Management may, at any time ordinarily within two months' from the date of the Inquiry Officer's report pass a resolution dismissing or removing the teacher concerned from service, or terminating his services mentioning the grounds of such dismissal, removal or termination.
(3) The resolution shall forthwith be communicated to the teacher concerned and also be reported to the Vice -Chancellor for approval and shall not be operative unless to approved by the Vice-Chancellor.
(4) The Management may, instead of dismissing removing or terminating the services of the teacher, pass a resolution inflicting a lesser punishment by reducing the pay of the teacher for a specified period or by stopping increments of his salary for a specified period not exceeding three years and or may deprive the teacher of his pay during the period, if any, of his suspension. The resolution by the Management inflicting such punishment shall be reported to the Vice-Chancellor and shall be operative only when and to the extent approved by the Vice-Chancellor."
According to Statue 17.06, an order of dismissal or removal of a teacher cannot be passed on any ground mentioned in clause (1) of Statue 17.04 unless a charge has been framed against the teacher and communicated to him and appropriate disciplinary proceedings are drawn and conducted by providing adequate opportunity to the teacher, of contesting the charges except in case of conviction for offence involving moral turpitude or in case of abolition of post.
The provisions contained in Statue 17.04 read with Statue 17.06, thus, unequivocally provide that no teacher can be dismissed or removed, neither his services can be terminated without conducting full-fledged disciplinary proceedings against him for any lapse or misconduct, though requirement of conducting full-fledged disciplinary inquiry proceeding has an exception as provided in Statue 17.06 (1) of the First Statues and under this exception requirement of conducting disciplinary proceedings can be dispensed with in case services of teacher are to be terminated in case of conviction of a teacher for offence involving moral turpitude.
In the light of the aforequoted Statues 17.04 and 17.06, we will now examine the nature of show cause notices issued by the Management of the College to the applicant-appellant. The first show cause notice issued on 12.05.2018 only states that the Managing Committee of the College has passed resolution on 11.05.2018 observing therein that the applicant-appellant has been absent from the College without information since 15.02.2018 and therefore the Committee has decided to issue notice seeking his clarification and explanation. This show cause notice makes a mention of unauthorized absence from duty which may or may not be a misconduct or lapse on the part of the applicant-appellant leading to either his dismissal or removal from service. It certainly is not a notice requiring explanation from him as to why his services may not be terminated for his conviction for an offence involving moral turpitude as has been mentioned in Statue 17.04 (1) (e) of the First Statues.
We further observe that notice dated 12.05.2018 cannot be said to be charge sheet for alleged misconduct or lapse on the part of the applicant-appellant for his unauthorized absence from duty. Thus, by issuing the said notice dated 12.05.2018, it cannot be inferred that any disciplinary proceeding in respect of charge or lapse relating to unauthorized absence from duty against the applicant-appellant is pending which may create an impression in his mind that he may be faced with a situation where he may be dismissed or removed from service.
So far as the second show cause notice dated 13.08.2018 is concerned, this again makes a mention of the decision taken by the Management of the College on 18.07.2018 and informs the applicant-appellant that the Committee of Management has decided to give him last chance to clarify as to why his services may not be terminated. This notice cannot be construed to be a notice for termination of service of the applicant-appellant on the ground of his conviction for an offence involving moral turpitude for the reason that it does not indicate the resolve or decision of the Managing Committee of the college to terminate services of the applicant-appellant on the said ground. It is further observed that before issuing any show cause notice seeking termination of service of a teacher under Statue 17.04 (1) (e) of the First Statues, it is imperative for the Committee of the Management of the College to determine that teacher concerned has been convicted for offence involving moral turpitude. No such determination from the show cause notice dated 13.08.2018 is reflected.
To the contrary, if the show cause notice dated 13.08.2018 is read in juxtaposition with the show cause notice dated 12.05.2018, what transpires is that the college authorities intend to take some action for the alleged unauthorized absence from the duty. The show cause notice dated 13.08.2018 is accompanied by the decision of the Managing Committee taken in its meeting held on 18.07.2018 which mentions about the application submitted by the applicant-appellant seeking leave without pay and also reply dated 28.05.2018 furnished by him to the show cause notice dated 12.05.2018.
Resolution dated 18.07.2018 further states that the Managing Committee cannot allow the applicant-appellant to join his duties till he gets the order of conviction quashed by the High Court. Mentioning these background facts, the resolution further states that one more show cause notice be given to the applicant-appellant to clarify the current position and further that if no change is reported then his services will be terminated. This resolution however does not make a mention of conviction of the applicant-appellant for an offence involving moral turpitude.
As to whether the Committee of Management has denied the applicant-appellant joining his duties in the College is not the subject matter of this case, hence we refrain ourselves from giving any finding on this issue.
As observed above, for taking action leading to termination of services of a teacher of an associated college under Statue 17.04 (1) (e) of the First Statues, determination that teacher concerned is convicted for offence involving moral turpitude appears to be sine qua non. Neither the notices dated 12.05.2018 and 13.08.2018 nor the resolution of the Managing Committee of the College, dated 18.07.2018 reflect any such determination. We have no reason to believe that the Managing Committee of the College will not act in accordance with the requirement of law as per Statues 17.04 and 17.06 of the First Statues which inter alia provide that in case of misconduct or lapse a teacher can be dismissed or removed or his services can be terminated only after conducting disciplinary proceedings except in case of conviction for an offence involving moral turpitude. For terminating the service of teacher on the ground of his conviction for any offence involving moral turpitude, the employer (in this case, Management of the College) needs to determine that the teacher concerned has been convicted for offence involving moral turpitude.
In absence of any such determination in the show cause notices dated 12.05.2018 and 13.08.2018 and also in the resolution of the Managing Committee, dated 18.07.2018, we are not persuaded to infer that applicant-appellant is faced with any irreversible consequences because of non suspension of judgment and order of conviction which is under challenge in appeal.
For the discussion made and reasons given above, we do not find any substance in the prayer made in the application seeking suspension of order of conviction. The application is, thus, rejected.
Order Date :- January 14 , 2020 Renu/-
(Mohd. Faiz Alam Khan,J) (Devendra Kumar Upadhyaya,J)