Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 23 (ALL)

RAJESH DWIVEDI v. STATE OF U. P.

2018-01-04

SIDDHARTH

body2018
JUDGMENT Hon’ble Siddharth, J.—Heard Sri Siddharth Khare, learned Counsel for the petitioner and learned Standing Counsel for the respondents. 2. The petitioner has filed the above noted writ petition, praying for quashing of the order dated 5.6.2015, passed by the Chief Audit Officer, Cooperative Societies and Punchayat, U.P. Lucknow, respondent No. 2 in the writ petition. Further prayer has been made for reinstatement of the petitioner on the post of Senior Auditor, in the office of District Audit Officer, Cooperative Societies and Panchayat, Maharajganj and to release his entire arrears of salary and pay his regular salary month to month. 3. The brief facts of the petition are that the petitioner was appointed as Auditor by the respondent No. 2 by the order dated 25.5.1991, he was promoted as Senior Auditor on 6.5.2003 and is working as such in the office of District Audit Officer, Maharajganj since 4.12.2007. A Sessions Trial No. 881 of 1982, pending since the year 1982 was decided by the Judgment and Order dated 8.5.2015 by the Session Judge, Maharajganj, wherein there were 23 accused, including petitioner, who were convicted and the petitioner was taken into custody on 8.5.2015 and was released on Bail on 25.4.2016 by this Court in Criminal Appeal No. 1973 of 2015. As a consequence of his conviction on 8.5.2015, the respondent No. 2 has dismissed the petitioner from service by the order dated 5.6.2015 against which the petitioner represented to the respondent No. 2 on 16.5.2016, after being released on bail, followed by further representations, but in vain. Hence he has filed this writ petition against the order dated 5.6.2016 passed by respondent No. 2. 4. The respondents have filed their Counter-affidavit stating that the petitioner has been convicted under Sections 147, 148 and 302 I.P.C. and therefore, as per the U.P. Government Servants (Discipline & Appeal) Rules,1999, his services have been terminated by the order dated 5.6.2015. It has been further stated that since the petitioner was in jail for more than 48 years, therefore, as per the Service Rules, his services were terminated w.e.f. 8.5.2015. He did not submit any stay order against the order dated 8.5.2015, passed by the Sessions Judge, Maharajganj, which has not been set aside till date by any Court of Law and therefore his termination order is justified. He did not submit any stay order against the order dated 8.5.2015, passed by the Sessions Judge, Maharajganj, which has not been set aside till date by any Court of Law and therefore his termination order is justified. There is no violation of Article 311 of the Constitution of India and action against him is liable to be taken under Article 311 (2-A) of the Constitution of India and has prayed that the writ petition is devoid of merit and may be dismissed. 5. The Counsels for the parties have been heard. 6. 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). 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 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”. 7. 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”. 8. 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”. 8. 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. 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. 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.” 9. Further reliance has been placed upon the case of Ram Pratap Singh v. State of U.P. and others, 2009(3) ADJ 565 , whrein 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. 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.” 10. 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. 11. The learned Standing Counsel has argued that proviso-2 to the Article 311 of the Constitution of India provides that where a person is dismissed on the ground of conduct, which has led to his conviction on a criminal charge or where the appointing authority is satisfied that it is not reasonably practicable to hold such an enquiry, there is no requirement of the observance of the principles of natural justice. He has further agued that this provision is akin to Rule-7 of the U.P. Government Servant (Discipline & Appeal) Rules 1999 which also provides that where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge or where the disciplinary authority is satisfied, that for the reason to be recorded in writing, it is not reasonably practicable to hold an enquiry as per the Rules the order becomes final. He has also argued that an employee who has been in Jail for more than 48 hours, his services are terminated in accordance with the rules. 12. The argument of the learned Standing Counsel is patently illegal since Article 311 of the Constitution of India and also Rule-7 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999 clearly provide that the authority passing the order of the major punishment, on the ground of conviction of the employee on a criminal charge, will have to record his satisfaction in writing that he is satisfied, after consideration of the conduct of the employee which has led to conviction on the ground of criminal charge, that he deserves major penalty. Further argument of the learned Standing Counsel that mere imprisonment exceeding 48 hours, an employee becomes liable for termination of his services as per the Rules is absurd. As per Rule-4(3) of the U.P. Government Servant (Discipline & Appeal) 1999, such a Government deemed to be placed under suspension w.e.f., the date of his detention. 13. Therefore, it is clear from the above decisions and the relevant provisions of law that it is incumbent upon the authorities to consider the conduct of the employee which has led to his conviction in the criminal charge before imposing any punishment. In the present case, the impugned order passed by the respondent No. 2 only states that since the petitioner has been convicted in the criminal case, he should be dismissed from service from the date of the order of conviction. The respondent No. 2 was required to examine the conduct of the petitioner which led to his conviction before imposing the major punishment upon him. The order suffers from non application of mind and shows arbitrary exercise of discretion vested in the respondent No. 2 by law. 14. The respondent No. 2 was required to examine the conduct of the petitioner which led to his conviction before imposing the major punishment upon him. The order suffers from non application of mind and shows arbitrary exercise of discretion vested in the respondent No. 2 by law. 14. Therefore, the impugned order dated 5.6.2015 passed by the Chief Audit Officer, Cooperative Societies and Punchayat, U.P. Lucknow, respondent No. 2 is hereby quashed, the petitioner would be entitled for reinstatement in service on the post of Senior Auditor and shall be paid his arrears of salary and month to month regular salary. However, it shall be open for the respondent No. 2 to proceed against the petitioner in accordance with law afresh, if so desired. 15. The writ petitions stands allowed but without any order as to costs.