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2018 DIGILAW 623 (ALL)

RAM NARAIN TYAGI v. STATE OF U. P.

2018-03-15

SIDDHARTH

body2018
JUDGMENT Hon’ble Siddharth, J.—Heard Shri Prashant Kumar Tripathi, learned counsel for the petitioner and Shri Sunil Kumar Mishra, learned counsel for the respondents. 2. This writ petition has been filed by the petitioner, praying for quashing of the Appellate Order dated 13.5.2016, passed by the respondent No. 3, General Manager (Operations) U.P. State Road Transport Corporation, Lucknow and Punishment Order dated 3.3.2005, passed by respondent No. 4, Regional Manager, U.P. State Road Transport Corporation, Agra Region, Agra. Further prayers for direction to the respondents to reinstate the petitioner in service with all consequential benefits and direction to the respondents to count the services of the petitioner from 4.1.2004 to the date of reinstatement for the purpose of Pay Scale and Post Retiral benefits and also for payment of arrears of salary of the petitioner from 4.1.2004 till the date of reinstatement has been sought. 3. The brief facts of the petition are that the petitioner was appointed as a Driver in the U.P. State Road Transport Corporation (hereinafter referred to as “Corporation” only). He was convicted in a Criminal Case under Section 302 I.P.C., and after dismissal of his appeal by this Court, he was jailed on 8.1.2004. The conviction of the petitioner was upheld by the Apex Court too by the order dated 20.8.2004 and even review petition preferred against the same was dismissed. 4. On account of the petitioner’s incarceration in jail, his services were terminated by the respondent No. 4 by the order dated 3.3.2005. The conviction of the petitioner was finally set aside by the Apex Court on 7.8.2015 in Special Leave Petition and the Judgments of the Trial Court as well as the High Court were set aside on the ground that at the time of commission of the alleged crime, the petitioner was a juvenile. 5. The conviction of the petitioner was finally set aside by the Apex Court on 7.8.2015 in Special Leave Petition and the Judgments of the Trial Court as well as the High Court were set aside on the ground that at the time of commission of the alleged crime, the petitioner was a juvenile. 5. The petitioner filed an Appeal before the respondent No. 3 against the termination order dated 3.3.2005 on the ground that his conviction is set aside by the Apex Court by its Judgment dated 7.8.2015 and consequentially he was entitled to reinstatement as per the Judgment of the Apex Court in the case of Chairman, Food Corporation of India and others v. Sudarshan Das, (2007) 14 SCC 766, the Appellate Authority vide order dated 13.1.2016 dismissed the appeal of the petitioner on the ground that at the time of seeking appointment, he suppressed the facts about the pendency of criminal case against him. The petitioner approached this Court by way of Writ-A No. 6225 of 2016, challenging the appellate order dated 13.1.2016 which was allowed by the following observations, “8. It is borne out from the record that the observation and finding in the appellae order that petitioner had suppressed the fact of criminal proceedings and his conviction, at the time of seeking appointment in the respondent Corporation, is wholly presumptive. It is not in dispute that such finding is based upon an inference drawn upon the fact that all employees, at the time of their entry into the service of Corporation, are required to fill an attestation form, which requires a declaration as to whether the employee is facing criminal proceedings or has been convicted. It is not in dispute that no such declaration of the petitioner is available on record of the respondents to draw such an inference. So far as the argument that such a declaration orm may have been got removed from the records, at the instance of the petitioner, as petitioner was its beneficiary, is again an argument advanced by the respondents without any material on record, nor any disciplinary proceedings have been drawn. No such finding could, thus, be returned. It is also not in disputethat all such issues were not raised before the disciplinary authority, and the order of termination had been passed merely on the ground of petitioner’s conviction, which stands set aside. No such finding could, thus, be returned. It is also not in disputethat all such issues were not raised before the disciplinary authority, and the order of termination had been passed merely on the ground of petitioner’s conviction, which stands set aside. The appellate authority was required to deal wih legality and propriety of the order passed by the disciplinary authority, and it was not open for the appellate authority to have carved out a new case, which was not presented before the disciplinary authority, particularly when such factual findings are returned, without confronting the petitioner on such aspect of the matter, and without there being any material available on record of the respondent. The order of the appellate authority, therefore, is wholly without jurisdiction, inasmuch as a charge, which was not levied against the petitioner at and stage of the proceedings, nor had been relied upon for terminating him, could have been made the basis for rejection of petitioner’s appeal, in the facts and circumstances, noticed above. The order of appellate authority dated 13th January, 2016, consequently, cannot be sustained, and is set aside. 9. The appellate authority shall reconsider the petitioner appeal, in light of the observations made above, keeping view the judgment of the Supreme Court in the case of Chairman, Food Corporation of India and others v. Sudarshan Das (supra), on the basis of materials existing on record before him, by means of a reasoned speaking order, in accordance with law, within a period of two months from the date of presentation of a certified copy of this order.” 6. In pursuance of the above order passed by this Court, the appellate authority has again dismissed the appeal by the impugned order dated 13.5.2016 on 2 grounds, (1). The Apex Court has only directed release of the petitioner from jail, but has not absolved him of the crime committed by him, when in the case of Chairman, Food Corporation of India and others v. Sudarshan Das, the accused was acquitted on account of setting aside of conviction order. (2). The petitioner despite being a convict in a criminal case got the employment in the Corporation by concealing this fact, which proves moral turpitude on his part. 7. The petitioner has again approached this Court against the appellate order dated 13.5.2016 as well as the punishment order dated 3.3.2005, by way of this writ petition, 8. (2). The petitioner despite being a convict in a criminal case got the employment in the Corporation by concealing this fact, which proves moral turpitude on his part. 7. The petitioner has again approached this Court against the appellate order dated 13.5.2016 as well as the punishment order dated 3.3.2005, by way of this writ petition, 8. The respondents have filed a Counter-affidavit stating that the petitioner obtained appointment by concealment of his criminal antecedent. He was convicted by the Criminal Court on the basis of clinching and substantive evidence and the same was confirmed upto the Apex Court. As per U.P.S.R.T.C. Employees (Other Than Officers) Service Regulations, 1981, the petitioner was dismissed from service. As per the note attached with Regulation-15, an employee convicted of an offence involving moral turpitude is ineligible for recruitment in the service of the Corporation. Regulation-62(20) provides that misconduct means commission of any act, which amounts to criminal offence of moral turpitude. The Apex Court released the petitioner only on the ground of being declared juvenile by the Board and on the ground that he has already spent more than 10 years in jail. The order passed by the Appellate Authority is a detailed and reasoned order and the petitioner has alternative remedy of revision under Regulation-69-A. The facts of the case of Chairman, Food Corporation of India (supra) are distinguishable and the writ petition deserves to be dismissed. 9. The learned Counsel for the petitioner has argued that once the petitioner has been found to be juvenile on the date of crime, the nature of acquittal cannot be a determinative factor for continuing or discontinuing the services of the petitioner. It has further been argued that the criminality allegedly committed by the petitioner was during the stage of juvenility, which cannot be permitted to have life long impact. The alleged crime was committed in 1973, whereas the petitioner entered into the employment of the Corporation in 1987, after almost 14 years and during his service with the Corporation till 2.3.2005, there was no complaint regarding his work and conduct. Therefore, the appellate authority was under legal obligation to consider the case of the petitioner, on the basis of his working with the Corporation, once the order of conviction was set aside by the Apex Court in the Special Leave Petition. Therefore, the appellate authority was under legal obligation to consider the case of the petitioner, on the basis of his working with the Corporation, once the order of conviction was set aside by the Apex Court in the Special Leave Petition. It has further been argued that this Court, while deciding the Writ Petition No. 6225 of 2016, by the order dated 14.3.2016 this Court set aside the objection regarding the concealment of fact of pendency of the criminal proceedings against him at the time of obtaining employment of the Corporation, but again in the impugned order, the same ground has been reiterated, which is contemptuous. It has further been argued that in view of the Judgment in the case of Avtar Singh v. Union of India, (2016) 8 SCC 471 , the Apex Court has held in paragraph No. 38.9 that in case of confirmed employee, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in the verification form. In the present case, the respondents never subjected the petitioner to any such departmental enquiry and therefore, such an objection cannot be raised by the appellate authority at this stage. 10. Per contra, the Counsel for the respondents has submitted that the fact of the petitioner committing a heinous crime of murder cannot be wiped out from the consideration by the Corporation only because of the release of the petitioner from jail on account of being juvenile. The order of the Apex Court only restores the freedom of the petitioner, it does not absolves him from the charge of committing crime, as per the provisions of the Regulations, the petitioner is ineligible to be considered for reinstatement in service. He had obtained the appointment by fraud which vitiates all proceedings. The petitioner has not availed the alternative remedy of the revision against the order passed by the Appellate Authority. The order of the appellate authority is reasoned and speaking and does not calls for any interference by this Court. 11. After considering the rival submissions, it becomes clear that the Apex Court while allowing the Special Leave Petition of the petitioner, after his declaration as juvenile on the date of alleged crime, clearly set aside the impugned Judgment and order passed by the Trial Court as also passed by the High Court. 11. After considering the rival submissions, it becomes clear that the Apex Court while allowing the Special Leave Petition of the petitioner, after his declaration as juvenile on the date of alleged crime, clearly set aside the impugned Judgment and order passed by the Trial Court as also passed by the High Court. Therefore, there remains nothing on record which may compel the appellate authority to record the finding that the Apex Court has only released the petitioner from confinement in jail, but has not exonerated him of the crime. The appellate authority has not considered that the setting aside of the Judgments of the Trial Court and the High Court amounts to wiping out of the crime alleged against the petitioner. What remained for consideration was whether the reinstatement of the petitioner in service, keeping in view his conduct in the service of the Corporation, prior to conviction in criminal case, was in any way detrimental to the interest of the Corporation and whether the reinstatement of the petitioner would be detrimental to the interest of the Corporation, even after the conviction and appellate orders passed against him, having been set aside. 12. Regarding the finding of the appellate authority that the petitioner obtained appointment by fraud, departmental enquiry was required as held by the Apex Court in the case of Avtar Singh (supra), which was not done by the respondent No. 4, prior to passing of the dismissal order dated 3.3.2005. 13. Law is well-settled that before imposing the maximum punishment of dismissal form service the authority is required to consider the conduct of the petitioner which has led to his conviction on the criminal charge. Article 311 of the Constitution of India, provides as under : “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 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 chargesor (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”. 14. (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”. 14. 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”. 15. 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.” 16. Further reliance has been placed upon the case of Ram Pratap Singh v. State of U.P. and others, (2009) 2 UPLBEC (23), whrein 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), 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. 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.” 17. 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. 18. In view of the above legal position the Appellate Order dated 13.5.2016, passed by the respondent No. 3, General Manager (Operations) U.P. State Road Transport Corporation, Lucknow and Punishment Order dated 3.3.2005, passed by respondent No. 4, Regional Manager, U.P. State Road Transport Corporation, Agra Region, Agra are hereby quashed. The respondent No. 4 is directed to reinstate the petitioner in service forthwith granting him the benefits of continuity of service and salary w.e.f., 13.1.2016 when his appeal was rejected by the respondent No. 3 for the first time after the order dated 23.11.2015 of this Court in Writ-A No. 63826 of 2015. The writ petition is partly allowed. No order as to costs.