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2018 DIGILAW 146 (ALL)

ARUN KUMAR SHUKLA v. STATE OF U. P.

2018-01-16

SIDDHARTH

body2018
JUDGMENT Hon’ble Siddharth, J.—Heard Sri Nisheeth Yadav, learned Counsel for the petitioner and learned Standing Counsel for the respondents. 2. The petitioner has filed the above noted writ petition, praying for the quashing of the order dated 25.7.1996, passed by the Deputy Inspector General of Police, Jhansi Range, Jhansi, whereby, the petitioner has been dismissed from service. 3. The only argument advanced by the learned Counsel for the petitioner is that though it is true that the petitioner was convicted in Sessions Trial No. 542 of 1983, under Section 109 I.P.C. for Abetment of Murder by Sessions Judge, Lucknow, he preferred Criminal Appeal No. 1137 of 1985, wherein, he was enlarged on bail, but the disciplinary authority has passed the order dated 25.7.1996, dismissing the petitioner from service, without considering at all the conduct of the petitioner, which led to his conviction and whether petitioner was liable for punishment of dismissal or any other punishment. He vehemently contended that a bare perusal of impugned order itself shows that disciplinary authority has proceeded on the assumption that as soon as a Government servant is convicted, dismissal from service is natural consequence thereof and accordingly the impugned order has been passed. 4. The learned Standing Counsel has argued that the conviction of the petitioner was sufficient to dismiss him from service since the order of conviction was passed by a competent Criminal Court, on the basis of the evidence led before it against the petitioner. The disciplinary authority was justified in passing the impugned order against the petitioner, since the final word regarding his misconduct has come from the Criminal Court. 5. The disciplinary authority was justified in passing the impugned order against the petitioner, since the final word regarding his misconduct has come from the Criminal Court. 5. After hearing the Counsels for the parties, it is no doubt true that mere pendency of an appeal against an order of conviction does not bar imposition of punishment under Article 311 (2) (a) proviso of Constitution read with Rule 8 (2) (a) of U.P. Police Officers of Subordinate Ranks (Punishment & Appeal) Rules,1991 and the disciplinary authority, on the basis of conduct, which led to conviction, may consider appropriate punishment, if any, liable to be imposed upon Government servant and without holding any departmental inquiry can impose such punishment, but it is also a settled exposition of law that punishment is not automatic and based on mere conviction but the order imposing punishment must show application of mind on the part of disciplinary authority on the conduct, which led to conviction of Government servant. 6. In the present case, the order passed by disciplinary authority does not show at all any consideration in the part of disciplinary authority that he has considered conduct of petitioner, which led to his conviction and appropriate punishment ought to be awarded to the petitioner. On the contrary a bare reading of the order shows that disciplinary authority, on the assumption that dismissal is the natural consequence of conviction of petitioner in a criminal case, has passed the impugned order of dismissal. 7. The question whether the order must disclose application of mind on the part of disciplinary authority that it has considered conduct led to conviction of Government servant before passing punishment order is no more res inegra. 8. Learned Counsel for the petitioner has submitted that the authorities were required to consider the conduct of the petitioner which had led to his conviction on the criminal charge before imposing maximum punishment of dismissal from service. Before proceeding further it would be necessary to advert to the Article 311 of the Constitution of India, which is as follows, “Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union of State (1). Before proceeding further it would be necessary to advert to the Article 311 of the Constitution of India, which is as follows, “Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union of State (1). No person who is a member of a civil service of the Union or an all India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2). No such person as aforesaid shall be dismissed or removed or reduced in rank concept 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. Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. Provided further that this clause shall not apply- (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 charges or (b). Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be reconsidered by the authority in writing, it is not reasonably practicable to hold such inquiry; or (c). where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3). If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final”. 9. (3). If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final”. 9. The provisions of Article 311 of the Constitution of India have been considered in the decision of the Supreme Court in the case of Shankar Dass v. Union of India and another, (1985) 2 SCC 358 , wherein the Apex Court has held as follows: “It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a persons from service “on the ground of conduct which has led to his conviction on a criminal charge”. But that power, like every other pwer, has to be exercised fairly, justly and reasonbly.Surely the Constitution does not contemplate that a Government servicant who is convicted for parking his scooer in a no parking area should be dismissed from service He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article in applicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical”. 10. The learned Counsel for the petitioner 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, while considering the Article 311 of the Constitution of India 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. 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 (1) a Government servant must be guilty of conduct deserving the penalty of dismissal, removal of 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 justice 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 provision 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. Further reliance has been placed upon the case of Ram Pratap Singh v. State of U.P. and others, (2009) 2 UPLBEC 23, wherein this Court has held as under: 12. Further reliance has been placed upon the case of Ram Pratap Singh v. State of U.P. and others, (2009) 2 UPLBEC 23, wherein this Court has held as under: 12. In a case under Section 302 IPC, where a person has been killed, he Government servant may be a member of he unlawful assembly. He may not have taken any part in killing of the person. These 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, it is 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 guide lies 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 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.” The learned Counsel for the petitioner has also relied upon the Judgments of this Court in the cases of Shambhu Nath Yadav v. State of U.P. and others, 2013(4) ESC 2205 (Alld), Shyam Narain Shukla v. State of U.P. and others, 1988 (6) LCD 530 and Babu Lal v. State of U.P. and another, 2017(11) ADJ 331 (LB), which also follow the same proposition of law. 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. Further the consideration by the disciplinary authority is required to be recorded in writing. 13. Therefore, the impugned order dated 25.7.1996, passed by the Deputy Inspector General of Police, Jhansi Range, Jhansi, respondent No. 2 is hereby quashed. Since the petitioner has retired from service on 31.3.2014, therefore, he shall be paid his arrears of salary and post retirement dues, payable to him, as per the service rules. 14. 13. Therefore, the impugned order dated 25.7.1996, passed by the Deputy Inspector General of Police, Jhansi Range, Jhansi, respondent No. 2 is hereby quashed. Since the petitioner has retired from service on 31.3.2014, therefore, he shall be paid his arrears of salary and post retirement dues, payable to him, as per the service rules. 14. The writ petitions stands allowed but without any order as to costs.