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2016 DIGILAW 2251 (ALL)

Vidya Devi v. State of U. P.

2016-06-28

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Rajesh Yadav for the petitioner. 2. The writ petition has been filed for mandamus directing the respondents to pay arrears of monthly payment and retiral benefits as well as arrears of pension of the husband of the petitioner, to the petitioner along with 18% interest. 3. The husband of the petitioner, Beta Lal was constable in Uttar Pradesh Police and at the relevant time he was posted in G.R.P. Line Jhansi. Beta Lal was terminated by Superintendent of Police, Railways, Jhansi by order dated 14.10.1988. The reason of termination of Beta Lal was that Beta Lal was convicted by Sessions Judge by judgment dated 7.7.1988 in Sessions Trial No. 49 of 1986 under Section 376 IPC and was sentenced 10 years imprisonment. The termination order was not challenged by Beta Lal during his life time who died on 26.2.2009. 4. It is alleged that judgment of conviction passed by Sessions Judge dated 7.7.1988 was challenged in Criminal Appeal No. 1631 of 1988 which was allowed by this Court by judgment dated 23.4.2007. State of UP challenged the order of this Court dated 23.4.2007 in Special Leave Petition which was converted into Criminal Appeal No. 929 of 2009 before Supreme Court, which was dismissed by Supreme Court by judgment dated 6.5.2015. Since conviction and sentence of the Sessions Judge was basis for termination of service of Beta Lal as such after setting aside the conviction as well as sentence, husband of the petitioner was entitled for reinstatement in service and he was also entitled for backwages. 5. The counsel for the petitioner placed reliance of the judgment of Supreme Court in State of Rajasthan Vs. B. K. Meena and others, SCC 1996 (6) page 417 and submits that criminal as well as departmental proceeding cannot be go on simultaneously. 6. I have considered the arguments of the counsel for the petitioner. 7. Services of Beta Lal was governed by U.P. Police Regulations. Regulation 493 (a) provides that if a police personnel is convicted and sentenced to rigorous imprisonment, no departmental trial will be necessary. These regulations were superseded U. P. Police Officers of the Sub-ordinate Ranks (Punishment and Appeal) Rules 1991 (hereinafter referred to Rules 1991). 7. Services of Beta Lal was governed by U.P. Police Regulations. Regulation 493 (a) provides that if a police personnel is convicted and sentenced to rigorous imprisonment, no departmental trial will be necessary. These regulations were superseded U. P. Police Officers of the Sub-ordinate Ranks (Punishment and Appeal) Rules 1991 (hereinafter referred to Rules 1991). Rule 8 (4) (b) provides that every officer convicted by the court for an offence involving moral turpitude shall be dismissed unless punishing authority for reasons to be recorded in writing consider it otherwise. 8. The case under Section 376 IPC was registered on 17.4.1985 at 7.30 AM unnamed. During investigation, name of Beta Lal as an accused came in the light and he was suspended on 18.4.1985. Police submitted charge sheet on 29.8.1985 against Beta Lal and one more accused. They were convicted under Section 376 IPC by judgement dated 7.7.1988 and sentenced for 10 years rigorous imprisonment as well as fine of Rs. 500/-. Betal Lal was terminated from service by order dated 14.10.1988 according to the provisions of Regulation 493 (a). 9. Supreme Court in, State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 , relied upon by the counsel for the petitioner held that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be ''desirable', ''advisable' or ''appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that "the defence of the employee in the criminal case may not be prejudiced". This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, ''advisability', ''desirability' or ''propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, ''advisability', ''desirability' or ''propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending considerations is that the disciplinary enquiry cannot be -- and should not be -- delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above. This judgment has been followed in Kendriya Vidyalaya Sangthan Vs. B.K. Meena, (2004) 7 SCC 442 and Stanzen Toyotetsu India (P) Ltd. Vs. Girish, (2014) 3 SCC 636 . But in the present case, this proposition has no application as Beta Lal was terminated from service only after his conviction by Sessions Judge. 10. In Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 , held that in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so. 11. Criminal Appeal No. 1631 of 1988 was allowed by this Court by judgement dated 23.4.2007. A perusal of the order of this Court dated 23.4.2007 shows that Beta Lal was given benefit of doubt. Thus judgement of Criminal Appeal No. 1631 of 1988 is not relevant for deciding the service matter. Beta Lal was alive up to 26.2.2009. But he did not file any application for recalling the order dated 14.10.1988 according the provision of Regulation 493 (c). Under Rules of 1991, or under Police Act 1861, there is no provision that after setting aside conviction of criminal court, order of dismissal from service will automatically be set aside. Without setting aside the order of dismissal from service, no mandamus can be issued for payment of backwages and pension. In any case there is absolutely no explanation regarding inordinate delay, inasmuch as the order of termination was passed on 14.10.1988 and writ petition has been filed now. 12. The writ petition has no merit, it is dismissed.