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1992 DIGILAW 1604 (ALL)

Sada Mishra v. State of U. P. and Another

1992-12-03

H.N.TILHARI, S.SAGHIR AHMAD

body1992
JUDGMENT S. Sagir Ahmad, J. - The petitioner whild working as Senior Division Clerk under Dy. Director General, NCC, U.P., Lucknow, was implicated in Case Crime No. 747 of 1978 registered at Police Station Kotwali, District Pratapgarh, under Sections 146, 148, 304, 327, 324, of the Indian Penal Code. There were a number of other persons involved in that case and all of them including the petitioner were prosecuted in Sessions Trial No. 63 of 1980. 2, In this petition we are not concerned with other persons but so Far as the petitioner is concerned, he was convicted and sentenced as under: (i) life imprisonment under section 302/149 IPC, (ii) 6 months under section 147 IPC. (iii) 6 months under section 354/149 IPC. (iv) 6 months under section 323/149 IPC. 3. Against his conviction referred to above, the petitioner filed an Appeal before this Court which is pending and in which he has been granted bail. 4. By the order dated 31101985 (contained in Annexure1) passed by the Deputy Director General, NCC, U.P., the petitioner was removed from service. 5. The order of removal was challenged by the petitioner in a departmental appeal filed before the State Government which was rejected and the order of the State Government rejecting the appeal was communicated to the petitioner by letter dated 2091988 issued by the Directorate, NCC, U.P., a copy of which has been filed as Annexure3 to the writ petition. Thereafter petitioner made several representations to the Opposite Parties pointing out that this court by an interim order passed in the Criminal Appeal had stayed the operation of the order of conviction passed by the Trial Court and therefore, he should be reinstated. This request too was considered by the Opposite Parties and by letter dated 241990 (Annexure7) the representations for reinstatement were rejected. 6. The petitioner has now come to this court. 7. It is contended by the Counsel for the petitioner that the Opposite Parties in removing the petitioner from service on his conviction in Sessions Trial No. 63 of 1980, have committed manifest error of law in as much as they had not, while passing the order of removal, considered the conduct of the petitioner which had lead to his conviction. It is contended by the Counsel for the petitioner that the Opposite Parties in removing the petitioner from service on his conviction in Sessions Trial No. 63 of 1980, have committed manifest error of law in as much as they had not, while passing the order of removal, considered the conduct of the petitioner which had lead to his conviction. It is contended that the order of removal was passed in gross violation of the provisions of Clause (a) of the Second Proviso to Article 311(2) of the Constitution which indicates that the removal or dismissal should be passed on the ground of conduct which had lead to the conviction of an employee on criminal charge. It is also contended that it was incumbent upon the opposite parties to have given an opportunity of hearing to the petitioner before removing him from service on the ground of his conviction. Learned counsel for the petitioner also contended that once the operation of the order of conviction was stayed by this court in the Criminal Appeal filed by the petitioner, the opposite parties ought to have reinstated the petitioner in service as the order of conviction had ceased to be operative on account of the interim order passed by this court. 8. Opposite parties have filed a counter affidavit in which they have pointed out that while the petitioner was posted at Pratapgarh in 18 Bn. N.C.C., he was convicted under Sections 323/325 IPC by the court of Judicial Magistrate, Pratapgarh and sentenced to one month's R.I. and a fine of Rs. 50 under section 323 IPC and was further sentenced to two month's R.I. and a fine of Rs. 500 under section 325 IPC. The appeal filed before the Sessions Judge, Pratapgarh and the revision filed thereafter in this court by the petitioner were dismissed but quantum of punishment was reduced. On account of the above conviction, petitioner was removed from service in the year 1980 but the order of removal was setaside by the U.P. Public Service Tribunal and he was reinstated in service w.e.f. November, 1983. 9. It is further pointed out in the counter affidavit that the petitioner came to be involved in another criminal case under sections 302/323/149 IPC and was convicted for life imprisonment in 1983. 9. It is further pointed out in the counter affidavit that the petitioner came to be involved in another criminal case under sections 302/323/149 IPC and was convicted for life imprisonment in 1983. He however, concealed the fact of conviction which came to the knowledge of the department in 1985 and, therefore, the appropriate authority, after considering the conduct of the petitioner leading to his conviction, passed the order of removal from service. It is also indicated in the counter affidavit that since the petitioner had been convicted by the Trial Court which order has not yet been setaside, the opposite parties were well within their rights in passing the impugned order by which the petitioner has been removed from service, particularly as they had also examined the conduct of the petitioner which led to his conviction. 10. Article 311(2) interalia provides that no person shall be dismissed or removed from service except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Second Proviso however, carves out certain exceptions to the rule contained in Article 311(2) of the Constitution. It is reproduced below: Article 311(2): No such person as aforesaid shall be dismissed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reason able opportunity or being heard in respect of those charges. Provided that where it is proposed after such enquiry, to impose upon him such penalty, on the basis of the evidence adduced during such enquiry 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 (c).............................. 11. In view of Clause (a) of the 2nd proviso to Article 311(2) which has just been quoted above, it is apparent that a person cannot be removed from service merely because of his conviction on a criminal charge as the specific requirement of Clause (a) is that the removal should be based on the ground of conduct which has led to the conviction of the employee on a criminal charge. 12. 12. Learned counsel for the petitioner has contended that in view of the Supreme Court decision in Divisional Personnel Officer, Southern RailKay and another v. T.R. Challappan AIR 1975 SC 2216 : 1975(2) SLR 587 , it was incumbent upon the opposite parties to have issued a show cause notice to the petitioner and an opportunity of hearing should have been provided to him at the time of scrutiny of his conduct which had led to his conviction. 13. It will be noticed that Article 311(2) and its proviso has since been amended and the requirement of giving an opportunity to show cause against proposed punishment has been deleted. Even in Challappan's Case (Supra) which was decided before the amendment, the Supreme Court has observed as under: An analysis of the provisions of Article 311(2) extracted above would clearly show that this constitutional guarantee contemplates three stages of departmental enquiry before an order of dismissal, removal or reduction can be passed, namely, (i) that on receipt of a complaint against a delinquent employee charges should be framed against him and a departmental enquiry should be held against him in his presence ; (ii) that after the report of the departmental inquiry is received, the appointing authority must come to a tentative conclusion regarding the penalty to be imposed on the delinquent employee and (iii) that before actually imposing the penalty proposed against him be not imposed on him. Proviso (a) to Article 311(2), however, completely dispenses with all the three stages of departmental inquiry when an employee is convicted on a criminal charge. The reason for the proviso is that in a criminal trial the employee has already had a full and complete opportunity to contest the allegations against him and to make out his defence.................. In these circumstances, therefore, if after conviction by the court a fresh departmental inquiry is not dispensed with, it will lead to unnecessary waste of time and expense and a fruitless duplication of the same proceedings all over again. It was for this reason that the founders of the Constitution thought that where once a delinquent employee has been convicted of a criminal offence that should be treated as sufficient proof of his misconduct and the disciplinary authority may be given the discretion to impose the penalties referred to in Article 311(2), namely, dismissal, removal or reduction in rank. 14. 14. The question whether any further opportunity was required to be given to Challappan was considered by the Supreme Court in paragraph 21 of the report at Page 2224 (AIR) in the light of Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968 and it Was held that even after conviction by a criminal court, the employee concerned is entitled to hearing as the provisions contained in Rule 14 import a rule of natural justice in enjoining that before taking final action in the matter, the delinquent employee should be heard and the circumstances of the case objectively considered. 15. It will be important to note that the question whether it was required of the disciplinary authority to hear the delinquent employed (accused) and consider the matter even where no provision like Rule 14 existed, was left open by the Supreme Court. 16. In Challappanss case, opportunity of hearing, even after conviction, was required to be given because of Rule 14 of the Railway Servants (Discipline Appeal) Rules, 1968 and not because of Article 311(2). 17. The law as it stood till the decision in Challappan s case df immediately thereafter may be summarised below: (i) if 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, he need not be provided an opportunity of hearing vide proviso (a) to Article 311(2). (ii) But if there is a service rule, which contemplates a further opportunity to be given to the employee concerned even after his conviction, then that opportunity should be given to him or else the order of dismissal would be bad vide Divisional Personnel Officer, Southern Railway v, T.R Challapan AIR 1975 SC 2216 ; R. Radha Krishan Nair v. State of Kerala (1978(2) SLR 661) ; T. Jayant v. Union of India and others (1980(2) SLR 507 and Sardara Singh v. Administrator of Union Territory 1980(3) SLR 702. 18. But the legal position as set out at (ii) above has since been upset by the Supreme Court in Union of India v. Tulsi Ram Patel 1985(3) SC 398 in which the Supreme Court observed as under: Not much remains to be said about Clause (a) of the Second Proviso to Article 311(2). 18. But the legal position as set out at (ii) above has since been upset by the Supreme Court in Union of India v. Tulsi Ram Patel 1985(3) SC 398 in which the Supreme Court observed 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 Challapan Case. This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reached to conclusion that the government servants' conduct was such as to require 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 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. If he fails in 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 the particular government service the court will also strike down the impugned order. Thus, in Shanker Dass v. Union of India 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. 19. It will be noticed that in recording the above principles, the Supreme Court overruled its previous judgment in Divisional Officer, Southern Railway and another v. T. R. Challappan ( 1976(1) SCR 783 ). 20. The principles enunciated by Hon'ble the Supreme Court are: (1) On the conviction of an employee on a criminal charge, the order of punishment cannot be passed unless the conduct which had led to his conviction is also considered. (2) The scrutiny or examination of conduct of an employee leading to his conviction is to be done exparte and an opportunity of hearing is not to be provided for this purpose to the employee. 21. In view of the above judgment of the Supreme Court in T.R. Patel's case, the contention of the learned counsel for the petitioner that the petitioner ought to have been given an opportunity of hearing at the time of scrutiny of his conduct which has led to his conviction, cannot be accepted. 22. 21. In view of the above judgment of the Supreme Court in T.R. Patel's case, the contention of the learned counsel for the petitioner that the petitioner ought to have been given an opportunity of hearing at the time of scrutiny of his conduct which has led to his conviction, cannot be accepted. 22. Learned counsel for the petitioner next contended that the impugned order of dismissal dated 311085 (Annexure1) as also the Appellate Order dated 2821989 (Annexure6) are liable to be set aside on the ground that they were passed merely on the conviction of the petitioner and not on the scrutiny of his conduct which had led to his conviction. It is pointed out that while in the punishment order passed by the Appointing Authority, the conduct of the petitioner had not at all been scrutinised, a mere reference to the petitioner's conduct in the appellate order would not amount to a compliance of the mandatory provisions of Clause (a) of the 2nd Proviso to Article 311 (2) of the Constitution. 23. A perusal of the order dated 31101985, by which the petitioner has been removed from service would indicate that the petitioner's conduct has not been taken into consideration by the Dy. Director, NCC, U.P. who admittedly is the appointing authority of the petitioner and the order of removal has been passed merely on the ground of petitioner's conviction in S.T. No. 63 of 1980 on 821985. 24. The appellate order passed by the State Government which was communicated to the petitioner on 2091988 through Annexure3 also does not take note of the petitioner's conduct which has led to his conviction. 25. It appears that the petitioner had approached this court for staying the operation of the judgment and order dated 821985, passed by the Trial Court by which the petitioner was convicted and this Court by its order dated 14101988 (of which copy has been filed as Annexure4) had stayed the operation of the judgment by observing that the operation of the judgment and order dated 821983 passed by IIIrd ADJ. Sessions Judge, Pratapgarh in S.T. No. 63 of 1980 shall remain stayed during the pendency of the appeal. Sessions Judge, Pratapgarh in S.T. No. 63 of 1980 shall remain stayed during the pendency of the appeal. The petitioner thereafter approached the departmental authorities for reinstatement on the ground that operation of the judgment having been stayed by this court, the petitioner cannot be treated to have been convicted for the offence under sections 147/302/149/324/148/323, IPC. On this application, an order was passed on 2821989 (Annexure6) saying interalia as under: 2. Your application has been examined. As you have been convicted under sections 302/149 & 323/149 IPC, your removal from service is attributed to your conduct. As such the stay order dated 14101988 passed by the Hon'ble High Court Allahabad in regard to your conviction does not affect the Departmental action. 3. In view of the above your request for reinstatement cannot be accepted at this stage by Deputy Director General, NCC. Sd/ Illegible (S.M. Bhagat) Lt. Col. (Joint Director for Deputy D. G. NCC. 26. It was m the above order that reference of the petitioner's conduct is found as it is stated that the petitioner's removal from service was attributable to his conduct. This is an order passed on a miscellaneous application of the petitioner for reinstatement on the ground that operation of the judgment by which the petitioner was convicted had been stayed by this court. This order cannot be treated to be a substitute of the original punishment order dated 311085 passed by the appointing authority or the appellate order passed by the State Government which was communicated to the petitioner on 2091988. 27. Learned counsel for the petitioner contended that since both the orders, namely, the dismissal order as also the appellate order, are based on mere conviction of the petitioner and not on the conduct which had led to his conviction, they are liable to be set aside and the petitioner is entitled to be reinstated particularly as the operation of the judgment of conviction has been stayed by this court in the Criminal Appeal filed by the petitioner. 28. Normally, when the order of conviction is passed by the Trial Court, an appeal together with an application for bail is tiled. Bail or stay of realisation of Fine are the only interim relief's which are usually claimed in a criminal appeal. It is only in few cases that application is filed for staying the operation of the judgment and order of conviction. Bail or stay of realisation of Fine are the only interim relief's which are usually claimed in a criminal appeal. It is only in few cases that application is filed for staying the operation of the judgment and order of conviction. 29. Under Section 389 of the Code of Criminal Procedure, the appellate court has the power to suspend the execution of the sentence or order passed by the Trial Court, but there appears to be no provision specifically authorising the appellate court to stay the operation of the judgment of conviction passed by the trial court which, perhaps, can be done only by the High Court and, that too, under its inherent powers. 30. Conviction and Sentence are two distinct connotations in a Criminal Trial. While Conviction means that an accused has been found guilty of an offence, Sentence means the punishment which the accused has to undergo for having committed the offence. When the appellate court passed an interim order for bail, it virtually suspends the sentence but does not thereby stay the operation of the judgment and order of conviction. 31. In Union of India v. Bakshi Ram, (1990) 2 SCC 426 , while considering the provisions of Probation of Offenders' Act, the Supreme Court observed as under: ''In criminal trial the conviction is one thing and sentence is another. The departmental punishment for misconduct is yet a third one. The court while invoking the provisions of Sections 3 or 4 of the Act does not deal with conviction; it only deals with the sentence which the offender has to undergo. Instead of sentencing the offender the court releases him on probation of good conduct. The conviction, however, remains untouched and the stigma of conviction is not obliterated. In the departmental proceedings the delinquent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. (See Article 311(2)(b) of the Constitution and Tulsiram Patel Case, 1985 Supp (2) SCR 131 at 282: ( AIR 1985 SC 1416 at Pp. 148486) 32. In the departmental proceedings the delinquent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. (See Article 311(2)(b) of the Constitution and Tulsiram Patel Case, 1985 Supp (2) SCR 131 at 282: ( AIR 1985 SC 1416 at Pp. 148486) 32. In a case therefore, where an appeal is filed and bail is granted to an accused, his conviction by the Trial Court is not obliterated and the Appointing Authority in such cases would be well within its right to proceed to pass an order of dismissal/removal from service on the ground of conduct which has led to his conviction. 33. Applying the above principles to this case, it will be noticed that the IIIrd Addl. Sessions Judge had passed the order in S.T. No. 63/80 on 821983 on the basis of which an order of removal was passed by the Dy. Director General, NCC, U.P. on 31101985. The departmental appeal filed by the petitioner against this order was dismissed sometime in 1988 by the State Government and the order was communicated to the petitioner on 2091988. It was thereafter that this Court by its order dated 14101988 stayed the operation of the judgment and order of conviction. Since on the date on which the petitioner was removed from service, the operation of the judgment and order dated 821983 was not stayed, it was open for the appointing authority to pass the order of removal or the order dismissing the departmental appeal filed by the petitioner. 34. In view of the above discussions, the Writ Petition is allowed in part. The impugned order dated 2091988 (Annexure3) communicating to the petitioner that his departmental appeal has been dismissed by the State Government is setaside and the case is sent back to the State Government to decide the appeal filed by the petitioner against the order dated 31101985 afresh in accordance with law and in the light of the observations made above. (Petition partly allowed.)