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2009 DIGILAW 673 (ALL)

RAM PRATAP SINGH v. STATE OF U. P.

2009-03-02

SUNIL AMBWANI

body2009
JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Shri Kaushal Kishore Mishra for the petitioner. Learned Standing Counsel appears for the respondents. The affidavits have been exchanged. With the consent of parties, the writ petition was finally heard and is finally decided at the admission stage. 2. The petitioner was serving as ‘Seenchpal’ in the office of Executive Engineer, Fatehpur Division, Lower Ganga Canal, Fatehpur. For the purposes of discipline and conduct, his services are governed by the Uttar Pradesh Government Servants (Discipline & Appeal) Rules, 1999, notified under Article 309 of the Constitution of India. 3. In the year 1999, in an incident in which one Raju was murdered, the petitioner, along with other accused namely Chhatrapal; Virendra and Ramanand arrested under Sections 302/149/147, IPC. They were granted bail. The petitioner along with other accused was charge sheeted and was tried in Sessions Trial No. 287 of 2000 in which he was convicted and sentenced to life imprisonment with a fine of Rs. 10,000/- under Section 302/149, IPC, and further with a three year’s rigorous imprisonment and a fine of Rs. 2,000/- under Section 147, IPC. All the sentences were directed by the Additional Sessions Judge, Fast Track Court No. 1, Fatehpur vide his judgment dated 29.11.2007, to run concurrently. 4. The petitioner has preferred an appeal in the High Court being Criminal Appeal No. 8200 of 2007, Ram Pratap Yadav v. State of U.P., in which the petitioner has been granted bail on 7.1.2008. 5. In the meantime, the Executive Engineer dismissed petitioner’s services on his conviction in Sessions Trial No. 287 of 2000 under Sections 302/149, 147, IPC; for being punished with life imprisonment and also for his detention in jail on 29.11.2007. The petitioner has challenged the order dated 26.12.2007 terminating his services on the ground that though under clause (a) of the second proviso to Article 311 (2) of the Constitution of India a person, who is member of the civil service of the union, may be dismissed or removed or reduced in rank on the ground of conduct, which has led to his conviction on a criminal charge, in view of judgments of Supreme Court and specially in Union of India v. Tulsi Ram Patel, (1985) 3 SCC 368 : AIR 1985 SC 1416 , the appointing authority is required to look into his conduct, which has led to his conviction on the criminal charge. 6. 6. It is submitted by learned counsel for the petitioner that in the judgment after the trial the Sessions Judge found that the petitioner Ram Pratap Singh was carrying a rifle. He did not fire from the rifle. The Sessions Court has clearly recorded that the rifle was not fired and that there was no fire arm injury on the body of the deceased. The petitioner was convicted only under Section 147, IPC as a member of the unlawful assembly, which led to the death of the deceased Raju. It is contended that the mechanical exercise of powers in dismissing the petitioner from service has caused serious consequence upon the petitioner, who had put in 13 years of service. The termination of his services without looking into his conduct, which led to his conviction, has caused serious prejudice to the petitioner. Learned counsel for the petitioner would submit that the order dismissing petitioner from service needs to be set aside and that the authority may be directed to consider whether the petitioner’s conduct did not entitle him to remain him in service. 7. In the counter affidavit of Shri Nem Singh, Executive Engineer, L.G. Canal Division, Fatehpur, it is stated in paragraph-6 and 13 as follows : “6. That in reply to the contents of paragraphs 7 and 8 of the writ petition, it is most respectfully submitted that the petitioner has already been convicted in case crime No. 214 of 1999 under Sections 147/148/149/302, IPC vide order dated 29.11.2007 passed by Sessions Court and as such in view of the said Government Order dated 12.10.1979, the services of the petitioner have been terminated vide order dated 26.12.2007. 13. That in reply to the contents of paragraph-18 of the writ petition, it is most respectfully submitted that in the Government Order dated 12.10.1979, it has been clearly laid down that if any Government employee is convicted in any criminal case by the competent Court and in pursuance thereof, he is detained in jail then he will be treated to have been removed from service even if he is released on bail in appeal by the Hon’ble Court and on this ground, no further action is required to be taken on the said application of the petitioner dated 5.2.2008.” 8. It is apparent that the appointing authority did not consider the conduct of the petitioner, which led to his conviction. It is apparent that the appointing authority did not consider the conduct of the petitioner, which led to his conviction. Learned counsel for the petitioner has referred to paragraph-26 of the judgment in which the argument of the counsel of the accused has been referred to by learned Sessions Judge in stating that the accused Ram Pratap was carrying a gun which was not used in the incident and that there was no gun shot injury on the body of the deceased. In the operative portion of the judgment, the Sessions Judge has convicted accused Ram Pratap under Section 147/302/149, IPC as a member of the unlawful assembly carrying a gun and having committed an offence with common object in which a person was done to death. 9. Article 311 of the Constitution of India gives a protection to a member of the civil service to be dismissed, removed or reduced in rank by the authority by which he was appointed, and 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. The second proviso to clause (2) provides for an exception in which clause (a) provides : “(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 it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.” 10. In Union of India v. Tulsi Ram Patel (supra) it was held in paragraph-62 as follows : "62. Before, however, any clause of the second proviso can come into play the condition laid down in it must be satisfied. The condition for the application of each of these clauses is different. In the case of clause (a) a government servant must be guilty of conduct deserving the penalty of dismissal, removal or reduction in rank which conduct has led to him being convicted on a criminal charge. In the case of clause (b) the disciplinary authority must be satisfied that it is not reasonably practicable to hold an inquiry. In the case of clause (c) the President or the Governor of a State, as the case may be, must be satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry. In the case of clause (c) the President or the Governor of a State, as the case may be, must be satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry. When these conditions can be said to be fulfilled will be discussed later while dealing separately with each of the three clauses. 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 inquiry. The extent to which a government servant can be denied his right to an inquiry formed the subject-matter of considerable debate at the Bar and we, therefore, now turn to the question whether under the second proviso to Article 311(2) even though the inquiry is dispensed with some opportunity at least should not be afforded to the government servant so that he is not left wholly without protection. As most of the arguments on this part of the case were common to all the three clauses of the second proviso, it will be convenient at this stage to deal. at one place with all the arguments on this part of the case, leaving aside to be separately dealt with the other arguments pertaining only to a particular clause of the second proviso.” 11. There are various kind of offences for which a person, who is also a civil servant, may be convicted and punished. The civil servant may be punished for a wrongful parking or jumping a red light. He may be punished in a minor scuffle, or for an offence in which, he is gravely provoked. There are various kind of offences for which a person, who is also a civil servant, may be convicted and punished. The civil servant may be punished for a wrongful parking or jumping a red light. He may be punished in a minor scuffle, or for an offence in which, he is gravely provoked. The appointing authority has to go through his conduct, which includes the evidence and findings of the criminal Court and considered all the facts and circumstances of the case and the factors, which have led to the conviction and punishment of the person before deciding whether clause (a) of the second proviso of Clause (2) of Article 311, will be attracted. 12. In a case under Section 302, IPC, where a person has been killed, the government servant may be a member of the unlawful assembly. He may not have taken any part in killing of the person. There may be circumstances, in which his action of killing, though it cannot be condoned, be considered to be an act of an ordinary person and is not such in which he may be said to be acted in a manner, which deserves the penalty of dismissal, removal or reduction in rank. An act of murder in a state of grave and sudden provocation may fall in such category. In such case a departmental enquiry may be held to consider his conduct dehors the conviction and punishment in the criminal trial, and may require a reasonable opportunity to be given to him. Once a conclusion is reached that the conduct is such, which deserves and justifies the penalty of dismissal, removal or reduction in rank, the proviso will become applicable and the disciplinary authority will not be held obliged to conduct departmental enquiry. For example, if a civil servant is in a situation, where he has to save the honour of a member of his family, or an act which may have resulted out of self defence or out of grave and sudden provocation, he acts or uses a weapon, which comes into his hands and which may cause the death of a person, the appointing authority may not find his conduct to be such, which deserves the punishment of dismissal, removal and reduction in rank. It is not possible nor it is prudent for the Court to classify or give guidelines for taking these decisions. It is not possible nor it is prudent for the Court to classify or give guidelines for taking these decisions. It is better to leave it to the discretion of the appointing authority to consider such facts and circumstances and to decide whether it is appropriate to dispense with the departmental enquiry and to allow a person to explain the circumstances, in which his conduct had led to prosecution and conviction. 13. Further there may be circumstances, as have been spelled out in Navjyot Singh Siddhu v. State of Punjab, AIR 2007 SC 1003 , and in which a person may apply to the appellate Court to stay his conviction for allowing the person to continue him in service. 14. In the present case the appointing authority has not applied his mind, after reading the judgment of conviction and punishment, in forming an opinion, that the conduct of the petitioner was such which did not require to provide to him an opportunity of hearing before the petitioner was dismissed from service. 15. The writ petition is allowed. The order dated 26.12.2007 passed by respondent No. 2 dismissing petitioner’s services only on the ground of his conviction under Section 302, 149, IPC in Sessions Trial No. 287 of 2000 dated 29.11.2007 is set aside. A writ of mandamus is issued to the respondents to consider the petitioner’s conduct, which led to his conviction and punishment and to pass fresh orders in accordance with law and the observations made in this judgment. ————