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2005 DIGILAW 98 (RAJ)

Fazal Ahmed v. State of Rajasthan

2005-01-11

DALIP SINGH, SHIV KUMAR SHARMA

body2005
Honble SINGH, J.–This special appeal has been filed by the appellant-petitioner being aggrieved by the order passed by the learned Single Judge dated 01.10.2004 by which the writ petition filed by the appellant-petitioner was dismissed. (2). The brief facts giving rise to this appeal are that appellant-petitioner was an employee of the respondent No. 2 Municipal Board, Dholpur and while working on the post of Sub- Nakedar, a criminal case was registered against him on 26.05.1980 for the offence under Section 147, 302 and 302/149 I.P.C. As a result of the aforesaid criminal case having being registered against the appellant petitioner, the appellant-petitioner was placed under suspension vide order dated 10.06.1980. At the conclusion of the trial, the Trial Court convicted and sentenced the appellant-petitioner. Against which the appellant-petitioner preferred an appeal before this Court against his conviction for the offence under Sections 302 and 302/149 I.P.C. As a result of the conviction on a criminal charge, respondent No. 2 vide its order dated 31.01.1982 dismissed the appellant-petitioner from his services. However, in view of the appeal having been filed against the order of conviction and sentence vide order dated 07.06.1983, the respondents in accordance with a decision of this Court rendered in Jamaluddin vs. State of Rajasthan (1), started paying the appellant subsistence allowance vide order dated 30.07.1983 which as per the respondents was to be paid only during the pendency of the appeal notwithstanding his removal after conviction by Trial Court. The appeal against the conviction for the offence under Section 302 I.P.C. read with Section 149 I.P.C. came to be decided by this Court vide judgment dated 25.09.1985 whereby the conviction of the appellant- petitioner was altered from one under Section 302 I.P.C. to Section 304 Part II I.P.C. reducing his sentence from Life Imprisonment to six years imprisonment on account of which the appellant-petitioner was released on 03.10.1985. (3). After the released on alteration of the conviction and shortening of the sentence in accordance with the judgment of this Court as stated above, the appellant-petitioner submitted an application to the respondents for allowing the appellant- petitioner to be taken on duty and for being reinstated on the post of Sub-Nakedar and revoking the order of his suspension. (3). After the released on alteration of the conviction and shortening of the sentence in accordance with the judgment of this Court as stated above, the appellant-petitioner submitted an application to the respondents for allowing the appellant- petitioner to be taken on duty and for being reinstated on the post of Sub-Nakedar and revoking the order of his suspension. It is the case of the appellant-petitioner that he has not been taken into service in spite of the aforesaid application on the notices which he sent and consequently he filed a writ petition before this Court on 13.10.1995 with the following prayers:- ``(i) by an appropriate writ, order or direction the petitioners suspension order dated 28.05.1980 may be revoked and the petitioner be allowed to continue in service with all consequential benefits. (ii) any order passed behind back of the petitioner may also be quashed and set aside in favour of the petitioner. (iii) any other order or direction which your lordships may deem just and proper in the facts and circumstances of the case, may be passed in favour of the petitioners. (iv) costs of the writ petition be allowed in favour of the petitioner. (4). In response to the aforesaid writ petition, respondents filed a reply on 30.03.1999 wherein it was submitted that by oversight no order was passed after the judgment dated 25.09.1985 and as such they have passed the order dated 22.02.1999 (Annexure-R/1) terminating the services of the appellant- petitioner w.e.f. 25.09.1985 declining his prayer in the terms of Rule 4(1) of the Rajasthan Civil Services (Conduct) Rules, 1971 (hereinafter referred to as ``the Rules of 1971) for reinstatement. Thereafter the appellant-petitioner sought leave to amend the writ petition which was allowed on 20.10.2000 and the amended writ petition was filed by the appellant-petitioner along with a copy of the order dated 22.02.1999 and the appellant-petitioner also sought to challenge the order dated 22.02.1999 in the writ petition. (5). The learned Single Judge after considering the submissions made on behalf of the appellant-petitioner dismissed the writ petition and hence this special appeal by the appellant- petitioner. (6). The submission of the learned counsel for the appellant- petitioner is that the order dated 22.02.1999 is retrospective in operation and the services of the appellant-petitioner have been terminated by the said order w.e.f. 25.09.1985 which is contrary to the law. (6). The submission of the learned counsel for the appellant- petitioner is that the order dated 22.02.1999 is retrospective in operation and the services of the appellant-petitioner have been terminated by the said order w.e.f. 25.09.1985 which is contrary to the law. The learned counsel for the appellant has further submitted that order dated 22.02.1999 is also contrary to the provisions of Rules 4(1) of the Rules of 1971 as the appellant- petitioner was not convicted for any offence involving moral turpitude. (7). We have given our thoughtful consideration to the submission made at the Bar and perused the record. (8). In the first instance, the appellant-petitioner has not placed on record either the order of his suspension dated 10.06.1980 or the subsequent order dated 30.07.1983 whereby he was directed to be paid subsistence allowance even after his conviction by the Trial Court on account of the pendency of his Criminal Appeal No. 1905/1981 before this Court. In this view of the matter the order dated 22.02.1999 (Annexure-6) produced by the appellant-petitioner along with the amended writ petition would have to be seen for determination of the facts. In the said order it has been stated that subsistence allowance was paid by the respondent to the appellant-petitioner only upto 03.11.1985 as in the application submitted by the appellant-petitioner along with the copy of the judgment of this Court in Civil Writ No. 1905/1981 Jamaluddin vs. State of Rajasthan dated 24.02.1983 (supra), according to which the appellant-petitioner was entitled to subsistence allowance only during the pendency of his appeal. From the above it is borne out that the appellants services had been terminated w.e.f. 31.01.1982 consequent upon his conviction upon the criminal charge by the Trial Court in 1981 and on account of pendency of the Criminal Appeal No. 79/1982 filed against the said order of conviction and sentence he was ordered to be paid only subsistence allowance during the pendency of his appeal. the appeal having been decided on 25.09.1985, the respondents stopped paying the subsistence allowance w.e.f. 03.11.1985. the appeal having been decided on 25.09.1985, the respondents stopped paying the subsistence allowance w.e.f. 03.11.1985. The appellant-petitioner, therefore, for all purposes was never reinstated but was only given subsistence allowance after 31.01.1982 upto 03.11.1985 and, therefore, consequent upon the decision of the appeal altering his conviction from the charge of Section 302 I.P.C. to one under Section 304 Part II I.P.C. and sentencing him to six years rigorous imprisonment in place of Life Imprisonment did not in our view alter the position in favour of the appellant-petitioner whose services had been terminated as a result of his conviction on a criminal charge. (9). The submission of the learned counsel for the appellant- petitioner is that conviction under Section 304 Part II I.P.C. is not a conviction for an offence involving moral turpitude and, therefore, the order dated 22.02.1999 treating the appellant- petitioner as having been removed from the services on account of his aforesaid conviction w.e.f. the date of judgment of this Court in appeal i.e., 25.09.1985 is contrary to the provisions of Rule 4(1) of the Rules of 1971. This submission of the learned counsel for the appellant is devoid of any merit. So far as appellant-petitioner is concerned, the order of his termination was passed on 31.01.1982 on account of his conviction in accordance with the provisions contained in Rule 19 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 which provides that a penalty may be imposed upon a government servant on the ground of his conviction on a criminal charge. (10). In accordance with the aforesaid provision, the disciplinary authority having taken into account the fact that the conviction of the appellant on a criminal charge by the court as per the judgment of the Trial Court passed the order of removal dated 31.01.1982. the instant case, the removal of the appellant-petitioner from the service was find under the said order as is evident from the record. the instant case, the removal of the appellant-petitioner from the service was find under the said order as is evident from the record. Thereafter, on the application of the appellant, in accordance with the judgment this Court in the case of Jamaluddin vs. State of Rajasthan dated 24.02.1983, the respondent passed an order on 30.07.1983 for payment subsistence allowance on account of the fact the appellant has filed an appeal before this Court against his conviction by the Trial Court for the offence under Section 302 I.P.C. Thus, there was no material change in the circumstances warranting any further consideration. This is evident from the order dated 22.02.1999. (11). In that view of the matter, upon the conviction of the appellant-petitioner under Section 304 Part II I.P.C. having been maintained and a sentence of six years imprisonment (period already undergone) having been passed against him, the position with regard to the order having been maintained by the judgment in the Criminal Appeal dated 25.09.1985 passed by this Court, no further orders in respect of the removal of the appellant- petitioner from the service were required to be passed. It may be stated here that the conviction under Section 304 Part II I.P.C. did not in any material manner alter the position qua the appellant in so far as the order of his termination on account of the conviction on a criminal charge is concerned. The case of the respondents is that they had merely stopped paying the subsistence allowance to the appellant-petitioner after the dismissal of the appeal by this Court by the judgment dated 25.09.1985 w.e.f. 03.11.1985. In this view of the matter, the submission of the learned counsel for the appellant being devoid of merit cannot be sustained. (12). Consequently, this appeal fails and is hereby dismissed. The judgment of the learned Single Judge is affirmed.