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Madhya Pradesh High Court · body

2008 DIGILAW 230 (MP)

SHIV BABU SHUKLA v. STATE OF M P

2008-02-08

DIPAK MISRA, S.C.SHARMA

body2008
Judgment ( 1. ) IN this appeal preferred under Section 2 (1) of the Madhya Pradesh uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 the defensibility and justifiability of the order dated 3-12-2007 passed by the learned single Judge in W. P. No. 16086/07 (S) = 2008 (1) M. P. H. T. 418, is called in question. ( 2. ) THE facts which are essential to be enumerated for the purpose of this appeal are that the appellant-petitioner (hereinafter referred to as, the appellant), a Head Constable of Police, was convicted for offences punishable under Sections 498-A and 304-B read with Section 34 of the Indian Penal Code and under Section 3/4 of the Dowry Prohibition Act, 1961 and sentenced to suffer rigorous imprisonment for a period of 10 years and to pay a fine of rs. 500/ -. Being aggrieved by the judgment of conviction and order of sentence he preferred Criminal Appeal No. 528/07 wherein this Court by order dated 25-4-2007 had directed suspension of sentence and grant of bail. ( 3. ) DURING the pendency of the appeal the Disciplinary Authority by order dated 3-2-2007 taking note of the factum of conviction in respect of the aforesaid offences passed an order of removal from service. On being moved in an appeal the Appellate Authority by order dated 29-10-2007 affirmed the order of removal. ( 4. ) BEING dissatisfied with and aggrieved by the aforesaid orders the appellant preferred a writ petition for issue of a writ of certiorari for quashment of the aforesaid orders. The learned Single Judge by the order-impugned referred to the provisions contained in Rule 19 of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short the 1966 Rules) and the M. P. Police Regulations (for short the Regulations) and eventually expressed the opinion that the authorities were justified in law in removing the appellant from service without waiting for the decision in the criminal appeal. ( 5. ) WE have heard Mr. Sanjay K. Agrawal, learned Counsel for the appellant and Mr. Deepak Awasthi, learned Govt. Advocate for the respondent/state. ( 6. ) MR. ( 5. ) WE have heard Mr. Sanjay K. Agrawal, learned Counsel for the appellant and Mr. Deepak Awasthi, learned Govt. Advocate for the respondent/state. ( 6. ) MR. Agrawal, learned Counsel for the appellant submitted that the learned Single Judge has erroneously applied the provisions contained in Rule 19 of the 1966 Rules though the same is not applicable to the case of the appellant being a Head Constable who is governed by the M. P. Police regulations. It is canvassed by him that the Regulation 238 clearly postulates that till the conviction is affirmed in appeal the appellant is entitled to continue in service. Learned Counsel further canvassed that once there is suspension of sentence in appeal the appellant should not have been visited with the order of removal. ( 7. ) MR. Deepak Awasthi, learned Govt. Advocate for the respondents state resisting the aforesaid submissions contended that the order passed by the learned Single Judge is absolutely infallible inasmuch as an employee in the police force having been convicted cannot be allowed to retained in service. It is urged by him that the gravity of the offence has been rightly taken note of by the competent Authorities and, therefore, giving the stamp of approval to the same by the learned Single Judge cannot be found fault with. ( 8. ) BE it stated, at the very outset there is no dispute with regard to the post held by the appellant, the recording of conviction by the Criminal Court, pendency of appeal, grant of bail and order of removal passed by the authorities. The seminal question that emanates for consideration is whether such orders could have been passed while criminal appeal/is pending. In this context, we may refer with profit to the 1966 Rules. Rule 14 deals with the procedure for imposing measure penalties. Rule 15 deals with action on the enquiry report. Rule 16 lays down the procedure for imposing minor penalties. Rule 17 provides for communication of orders. Rule 18 deals with joint departmental enquiry. Rule 19 deals with special procedure in certain cases. The said Rule reads as under:-"19. Rule 14 deals with the procedure for imposing measure penalties. Rule 15 deals with action on the enquiry report. Rule 16 lays down the procedure for imposing minor penalties. Rule 17 provides for communication of orders. Rule 18 deals with joint departmental enquiry. Rule 19 deals with special procedure in certain cases. The said Rule reads as under:-"19. Special procedure in certain cases.-Notwithstanding anything contained in Rules 14 to 18- (i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) where the Disciplinary Authority is satisfied for the reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules, or (iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit: provided that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule. " ( 9. ) ON a perusal of the said rules it is vivid that when an order is passed on the base of Rule 19 of the 1996 Rules a detailed procedure prescribed for conducting a departmental inquiry under Rules 14 to 18 of the 1966 Rules is not necessary. In the case at hand, the Disciplinary Authority has passed the order of removal on the basis of conviction for offences punishable under Sections 498-A and 304-B read with Section 34 of the Indian Penal Code and under Section 3/4 of the Dowry Prohibition Act, 1961. ( 10. ) SUBMISSION of Mr. Sanjay K. Agrawal, learned Counsel for the appellant is that Regulation 238 of the M. P. Police Regulations categorically and unequivocally provides that unless the conviction is affirmed in appeal an employee cannot be removed from service. To appreciate the submission of Mr. Agrawal, it is apposite to refer to Regulations 238 and 240 of the M. P. Police regulations. The Hindi version of the Regulations 238 and 240 read as under:- ( 11. ) AT this juncture we are obliged to reproduce English version of regulations 238 and 240 :- "238. To appreciate the submission of Mr. Agrawal, it is apposite to refer to Regulations 238 and 240 of the M. P. Police regulations. The Hindi version of the Regulations 238 and 240 read as under:- ( 11. ) AT this juncture we are obliged to reproduce English version of regulations 238 and 240 :- "238. Conviction in criminal offence.- When a Police Officer has been sentenced by the Trial Court to rigorous imprisonment upon conviction of a criminal offence, he shall be dismissed from the force: provided that if his offence was not of a serious or disgraceful nature, and the imprisonment has not been so prolonged as to be of itself degrading, it shall be in the discretion of the Inspector general to allow his retention in the force. 240. If an appeal lies against the existence of the convicting Court and if as a result of which an appeal preferred by the Police Officer concerned, his conviction is set aside and his reinstatement to his former post appears to be called for, the arrangement made as a result of his dismissal will have to be reversed. " If the English version is accepted there can be no iota of doubt that the order is justified in law. Even if the Hindi version is accepted to be true, correct, sound and authentic then also in our considered opinion, the result would be the same. Regulation 238 as per Hindi version as we have understood, does not confer any discretion on the Competent Authority after the conviction is affirmed in appeal but it does not debar the authorities to pass an order of punishment for removal. It has to be so construed as 240 of the Regulations deals with reinstatement of a Police Officer on dislodging of his conviction in appeal. The question of reinstatement on setting aside of conviction would not have arisen if there would have been no possibility or plausibility of removal or dismissal. Thus, Regulation 238 is peremptory in nature for imposition of punishment and the only discretion granted to the authority concerned, is in the proviso. From the language employed in Regulation 238, it is not inherent therein that the authority has no option but to wait till the conviction is affirmed in appeal. The peremptory nature or the imperative facets relates to imposition ! From the language employed in Regulation 238, it is not inherent therein that the authority has no option but to wait till the conviction is affirmed in appeal. The peremptory nature or the imperative facets relates to imposition ! of punishment but the said peremptory aspect for the imperative command does not create a bar or impediment after the initial conviction. It does not exclusively relate to stage or state or status of the appeal. If the stage of imposition is restricted to take place only after confirmation of appeal it would lead to absurdity. If such a construction is placed on Regulations 238 and 240 then the construction would become absolutely meaningless and the same is not the purpose. The regulations have to be read purposively and in a harmonious manner. If we accept the submission of the learned Counsel for the appellant it would be reading Regulation 238 in total isolation. It is well settled in law that a construction of a statute should be done in a manner which would give effect to all its provisions. ( 12. ) IN Reserve Bank of India Vs. Peerless General Finance and investment Co. Ltd. , (1987) 1 SCC 424 , the Apex Court has held as under:- If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. . . . " ( 13. ) SIMILAR view has been reiterated in Chairman, Indore Vikas pradhikaran Vs. M/s. Pure Industrial Cock and Chem. Ltd. and others, 2007 AIR scw 2458 and Sarabjit Rick Singh Vs. Union of India, 2008 AIR SCW 390. If the regulation is read in the said manner, there cannot be any shadow of doubt that the authorities in the present case were entitled to impose the punishment of removal. ( 14. M/s. Pure Industrial Cock and Chem. Ltd. and others, 2007 AIR scw 2458 and Sarabjit Rick Singh Vs. Union of India, 2008 AIR SCW 390. If the regulation is read in the said manner, there cannot be any shadow of doubt that the authorities in the present case were entitled to impose the punishment of removal. ( 14. ) THE next submission of the learned Counsel for the appellant is that when there has been an order of bail the authority should not have passed an order of dismissal. It is settled in law that the Court has power to direct stay of order of conviction. The said view finds support from the decisions rendered in rama Narang Vs. Ramesh Narang and others, (1995) 2 SCC 513 and Deputy director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, air 1995 SC 1364 . An order of stay of conviction can be passed in exceptional cases. That has been so held in Jamna Prasad Vs. State of M. P. and others, (2003)1 M. P. H. T. 77. In the case at hand, there has been suspension of sentence and enlargement on bail. There is no stay with regard to judgment of conviction. In view of the aforesaid, the submission of the learned Counsel for the appellant has to pale into insignificance and has to be repelled and we so do. ( 15. ) IN view of the aforesaid analysis we concur with the view taken by the learned Single Judge and accordingly dismiss the appeal. There shall be no order as to costs.