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2017 DIGILAW 2110 (ALL)

BABU LAL v. STATE OF U. P.

2017-09-07

DEVENDRA KUMAR ARORA

body2017
JUDGMENT Hon’ble Dr. Devendra Kumar Arora, J.—Heard learned Counsel for the petitioner and learned Standing Counsel. 2. The petitioner has filed the present writ petition under Article 226 of the Constitution of India, challenging the order of dismissal dated 21.6.2012 passed by the Executive Engineer, Flood Work Division, Barabanki, inter alia on the ground that the petitioner was convicted in Sessions Trial No. 542 of 2005, under Sections 147, 148, 452, 308/149, 325/149, 323/149, 504 and 506 I.P.C. and Section 3 (1) (x) of S.C./S.T. Act. 3. According to the petitioner, he was engaged as Workcharge employee on a Class-IV post by the Department of Irrigation in the year 1998 and while working as such, his services were regularized on 8.11.2006 by the Chief Engineer (Sharda Sahayak), Ganga Sinchai Bhawan, Telibagh, Lucknow. On account of levelling criminal charges, he was placed under suspension. Subsequently, he was convicted in criminal case (Sessions Trial No. 542 of 2005, under Sections 147, 148, 452, 308/149, 325/149, 323/149, 504 and 506 I.P.C. and Section 3 (1) (x) of S.C./S.T. Act) vide judgment and order dated 5.5.2012. Feeling aggrieved, the petitioner has filed Criminal Appeal No. 705 of 2012. In this appeal, this Court, vide order dated 1.6.2012, has granted bail and in pursuance thereof, he was released from jail on 6.6.2012. Presently, the criminal appeal is pending disposal. 4. Submission of the learned Counsel for the petitioner is that after being released from jail, the petitioner has moved an application for revocation of his suspension but mischievously, the said application was not taken on record and in an arbitrary manner, he was removed from service by the Executive Engineer, Flood Work Division, Barabanki vide order dated 21.6.2012 without affording opportunity of hearing. Feeling aggrieved, the petitioner has filed the present writ petition inter alia on the ground that by mere conviction in a criminal case, any employee cannot be made eligible for removal from his service and further impugned order of dismissal has been passed in utter violation of Article 311 (1) of the Constitution of India. 5. Elaborating his submission, learned Counsel for the petitioner has submitted that the sentence of the petitioner has already been suspended and an appeal is pending before this Court, so the petitioner is entitled for reinstatement in service. 5. Elaborating his submission, learned Counsel for the petitioner has submitted that the sentence of the petitioner has already been suspended and an appeal is pending before this Court, so the petitioner is entitled for reinstatement in service. He further submits that before passing the impugned order of dismissal, the conduct of the petitioner was not examined by the opposite parties. 6. To strengthen his submission, learned Counsel for the petitioner has placed reliance upon Bhagwan Mishra v. State of U.P. and others, 2012 (30) LCD 859, wherein this Court has observed that a Government servant cannot be dismissed from service merely on the ground of conviction. Appropriate Authority has to consider the conduct of such employee leading to his conviction. 7. On the other hand, learned Standing Counsel submits that during the trial, the petitioner was suspended. When he was convicted, only then the impugned order was passed for dismissal. The petitioner is not entitled for reinstatement. He has submitted that law do not provide the Disciplinary Authority to await disposal of the appeal by the appellate Court for taking action against him on the ground of misconduct, which has led to his conviction by a competent Court of law. 8. I have examined the submission of the learned Counsel for the parties and gone through the record. 9. After hearing both the parties and on perusal of the material available on record, it appears that the petitioner is a convicted person, who is presently on bail granted by this Court. Thus, the sentence of the petitioner has been suspended, which was awarded by the competent Court of law. The appeal is pending before this Court. During the trial, he was suspended and only after conviction, the impugned order has been passed for his dismissal from the service. 10. It may be noted that in Bhagwan Mishra’s case (supra), this Court has relied upon the law laid down in Union of India and another v. Tulsiram Patel, AIR 1985 SCC 1416, wherein the Apex Court observed that: “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. 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. 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 to that he is not left wholly without protection.” 11. In the case of Ram Pratap Singh v. State of U.P. and others, 2009(3) ADJ 565 , this Court has held as under : 12. In the case of Ram Pratap Singh v. State of U.P. and others, 2009(3) ADJ 565 , this Court has held as under : 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 dehorse 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 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. 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 judgement 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.” 12. In view of the settled proposition of law, as discussed above, a Government employee cannot be dismissed, removed or reduced in rank merely on the ground that he has been convicted by a Court of law. Thus, conviction alone is not enough to punish a Government employee, but it is conduct of the employee concerned, which had led to his conviction on the basis of which, the Government employee can be punished. Hence, it is necessary for disciplinary authorities to consider the conduct of convict Government servant, which had led to his conviction. In the absence of the same, the order of the punishment would be bad. Moreover, it is not the stand of the respondents that the petitioner was accused in offenses relating to moral turpitude and a crime against the Society. 13. In the instant case, the conduct of the petitioner was not examined by the higher authorities before passing impugned order of dismissal. The legal advice rendered by the District Government Counsel (Criminal), Barabanki has no meaning as the matter is already pending before this Court. Presently, competent Court of law has passed the conviction against which the criminal appeal has been filed by the petitioner, but the authorities should not lost its efficacy to examine the conduct of the petitioner. After examining the conduct, the authorities concerned are at liberty to pass order for dismissal, suspension or reinstatement as the case may be. 14. Presently, competent Court of law has passed the conviction against which the criminal appeal has been filed by the petitioner, but the authorities should not lost its efficacy to examine the conduct of the petitioner. After examining the conduct, the authorities concerned are at liberty to pass order for dismissal, suspension or reinstatement as the case may be. 14. In view of the above, the impugned order dated 21.6.2012 is set-aside. The petitioner would be entitled for reinstatement with all consequential benefits. However, respondents would be at liberty to proceed against the petitioner in accordance with law afresh, if they so desired. The writ petition stands allowed in above terms.