Manbodhan v. State of U.P. and 4 Others

Court No. - 6 Case :- WRIT - A No. - 5413 of 2016 Petitioner :- Manbodhan Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Awadhesh Kumar Sharma,J.P. Singh,Sharda Vishwakarma Counsel for Respondent :- Ashok Kumar,C.S.C. Hon'ble Ajay Bhanot,J. Heard Shri J.P. Singh, learned counsel for the petitioner, Shri Prakhar Srivastava, Advocate holding brief of Shri Rajesh Khare learned counsel for BSA and learned Standing Counsel for the State. The petitioner was working as head master in a primary school. The impugned order dated 06.04.2013 records that the service of the petitioner has been terminated on the footing that he has been convicted in a criminal case by the learned trial court in Sessions Trial No.140 of 2008 by judgment rendered on 13.03.2013. Shri J.P. Singh, learned counsel for the petitioner contends that the termination of the petitioner is vitiated on account of non application of mind. The order has been passed in a mechanical manner. The failure of the authorities to independently consider the conduct of the employee is in the teeth of the holdings of various Constitutional Courts. Similar issue regarding obligation cast on the State authorities under the Constitution prior to termination of services on account of conviction in a criminal case arose before the learned Single Judge of this Court in Vishwanath Vishwakarma vs. State of U.P. through Prin. Secy. Deptt. of Revenue Lko and Ors. rendered in Writ A No. 4422 of 2015, Neeraj Tiwari, J. made the following solely consideration of the relevant provision of the Constitution and holding of the Constitutional court in this regard: "11. The issue before the Court is that as to whether in case of conviction, service of petitioner may be terminated straightway without providing any opportunity to him in light of Article 311(2)

(a) of Constitution of India or not?

¶12As Article 311 of Constitution of India is relevant for the present case, the same is being quoted hereinbelow: "Article 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a 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 except after an inquiry 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 charge; 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 recorded by that 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."

¶13From the perusal of Article 311(2)(a) of Constitution of India, it appears that in case a person is dismissed from the service on the ground of conduct, which has led to conviction on a criminal charge, a fledged inquiry is not required.

¶14This issue was before the Apex Court for consideration in the matter of Tulsiram Patel (Supra), relevant paragraph of the said judgment is quoted hereinbelow: "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."

¶15Again this issue came for consideration before this Court in the matter of Shyam Narain Shukla(Supra). This Court after considering the matter has held as under: "In view of the above decision of the Supreme Court, it has to be held that whenever a Government servant is convicted of an offence, he cannot be dismissed from service merely on the ground of conviction but the appropriate authority has to consider the conduct of such employee leading to his conviction and then to decide what punishment is to be inflicted upon him. In the matter of consideration of conduct as also the quantum of punishment the employee has not to be joined and the decision has to be taken by the appropriate authority independently of the employee who, as laid down by the Supreme Court, is not to be given an opportunity of hearing at that stage."

¶16This Court has considered the very same issue in the matter of Ratan Singh(Supra) also. This Court after consideration has taken the very same view. Relevant paragraph of the said judgment is quoted hereinbelow: " In view of the finding in favour of petitioner on second issue, as above, that, the impugned order of dismissal has not been passed by competent authority after considering "conduct led to conviction" but only in a mechanical way on the basis of mere conviction, the writ petition deserves to be allowed. The writ petition is accordingly allowed. Impugned orders dated 28.4.2011,

28.1.2012 and 11.9.2012 are hereby set aside. The petitioner shall be entitled to all consequential benefits. However, this order shall not preclude the respondents from passing a fresh order in accordance with law."

¶17This issue was again before this Court for consideration in the matter of Udai Pratap Singh(Supra). This Court after considering the judgements of Tulsiram Patel(Supra) and Shyam Narain Shukla(Supra) has taken the very same view. Relevant paragraphs of the said judgment are being quoted hereinbelow: "13. In view of the above law laid down by the Apex Court and by this Court before passing the dismissal order the competent authority ought to have considered "Conduct led to conviction" and should not pass the order mechanically on the basis of mere conviction.

¶14In the present case, no such exercise has been done. The conduct of the petitioner, which led to conviction has not been examined and the petitioner has been dismissed mechanically only on the ground that he has been convicted by the criminal Court. Perusal of the order of this Court passed in Criminal Appeal No. 1017 of 1981, by which the petitioner has been acquitted reveals that the petitioner has been acquitted on merit. On consideration of the evidences on record. Admittedly, no departmental enquiry has been made and no reason has been given for not conducting the disciplinary proceeding. In this view of the matter, the termination order is not sustainable.

¶15The impugned order is also not sustainable as it has been passed in violation of principle of natural justice without giving any opportunity to the petitioner. The petitioner has now been retired. He can only be reinstated notionally and entitled for other post retiral benefits."

¶18Division Bench of this Court has also considered this issue in the matter of Sadanand Mishra Vs. State of U.P.: 1993 LCD 70 and has taken the very same view. Relevant paragraph of the said judgment is being quoted hereinbelow: "on conviction of an employee of a criminal charge, the order of punishment cannot be passed unless the conduct which has led to his conviction, is also considered. It was further held that the scrutiny or exercise of conduct of an employee leading to his conviction is to be done ex parte and an opportunity of hearing is not to be provided for this purpose to the employee concerned"

¶19Again this issue came up before this Court in the matter of Shambhu Nath Yadav(Supra) in which petitioner was convicted under Section 498A and 304B IPC and this Court after considering many judgments occupying the field has held as under: "In the present case, respondents have failed to consider the conduct of the petitioner which has led to his conviction before imposing punishment of dismissal by means of impugned order. The impugned order ex-facie does show that disciplinary authority has not applied its mind at all to the conduct led to conviction and quantum of punishment but proceeding ahead to impose punishment as an automatic and natural consequence of conviction, and it cannot be said to be a valid exercise of power under Rule 8(2)(a) of 1991 Rules and therefore, the orders impugned in the writ petition are unsustainable."

¶20In the matter of Rajesh Dwivedi(Supra), issue before the Court was same as in the present controversy and the petitioner in said case was convicted under Sections 147, 148 and 302 IPC. The Court after considering many judgments has taken the very same view. Relevant paragraphs of the said judgment are quoted hereinbelow:

¶10In 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 is conviction on the basis of which, the government employee can be punished. Hence, t 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.

¶11The 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 argued 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.

¶12The 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.

¶13Therefore, 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."

¶21Again a similar issue came up before this Court in the matter of Ram Kishan(Supra), in which an employee was convicted under Section 302 and 134 I.P.C. and this Court after considering many judgments has taken the very same view. Relevant paragraphs of the said judgment are being quoted hereinbelow: "12. In Shankar Das v. Union of India, MANU/SC/0369/1985 : 1985 (2) SCR 358, Hon'ble Supreme Court while referring to power under Clause (a) of second proviso of Article 311(2) of the Constitution of India, has observed as under:- "Be that power like every other power has to be exercised fairly, justly andreasonably.""

¶13Proviso (a) to Article 311 of the Constitution of India, is an exception to clause (2) of Article 311, which is applicable 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 charge. In case of Divisional Personnel Officer, Southern Railway Vs. T.R. Chellappan, MANU/SC/0488/1975 : 1976 (3) SCC 190 (para-21), Hon'ble Supreme Court considered Article 311(2), Proviso (a) and held that this provision confers power upon the disciplinary authority to decide whether in the facts of a particular case, what penalty, if at all, should be imposed on the delinquent employee, after taking into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features, if any, present in the case and so on and so forth. The conviction of the delinquent employee would be taken as sufficient proof of misconduct and then the authority will have to embark upon a summary inquiry as to the nature and extent of the penalty to be imposed on the delinquent employee and in the course of the inquiry, if the authority is of the opinion that the offence is too trivial or of a technical nature it may refuse to impose any penalty in spite of the conviction. The disciplinary authority has the undoubted power after hearing the delinquent employee and considering the circumstances of the case to inflict any major penalty on the delinquent employee without any further departmental inquiry, if the authority is of the opinion that the employee has been guilty of a serious offence involving moral turpitude and, therefore, it is not desirable or conducive in the interests of administration to retain such a person in service. In Sushil Kumar Singhal vs. Regional Manager, Punjab National Bank, MANU/SC/0578/2010 : 2010 (8) SCC 573 (Paras-24 and 25), Hon'ble Supreme Court explained the meaning of the words 'moral turpitude' to mean anything contrary to honesty, modesty or good morals.

¶14Thus, in view of the law laid down by Hon'ble Supreme Court in the cases of Tulsiram Patel (supra), T.R. Chellapan (supra) and Shankar Das (supra), and two Division Bench judgments of this court in Shyam Narain Shukla (supra) and Sadanand Mishra (supra), it can safely be concluded that while removing the petitioner from service, the respondents were bound to consider the conduct of the petitioner, which has led to his conviction in the session trial. This was the condition precedent for the competent authority to acquire jurisdiction to impose punishment of removal from service. However, the impugned order is unfortunately silent and does not show consideration of conduct of the petitioner which has led to his conviction in the S.T. No. 178 of 2005. It was necessary for the respondents, while passing the impugned order, to consider the conduct of the petitioner leading to his conviction and then to decide what punishment is to be inflicted upon him. This has not been done by the respondent No. 2 while removing the petitioner from service. Therefore, the impugned order cannot be sustained and is hereby quashed.

¶22Again one more similar issue was before this Court in the matter of Murari Lal Rathore(Supra) in which conviction was made under Section 302, 120 B and 149 IPC and petitioner was dismissed from the service on the very same ground. This Court after considering in detail has taken the very same view. Relevant paragraphs of the said judgment are being quoted hereinbelow: "10. The order of dismissal merely records that petitioner has been convicted to imprisonment of life in S.T. No. 455 of 208 and is incarcerated in jail therefore in view of the Government Order dated 12.10.1979, the petitioner is being dismissed from service from the date of his incarceration in jail i.e. 31.10.2015.

¶14The authoritative pronouncement of law by Supreme Court in Tulsi Ram Patel (supra) is consistently followed and it is by now well settled that mere conviction in a criminal case would not lead to automatic dismissal from service of the government servant. Since clause (a) to the second proviso to Article 311(2) of the Constitution of India as also first proviso to rule-7(xii) of the Rules of 1991 are exception to the normal rule of holding inquiry against the government servant and even opportunity of hearing is not required to be given to him, therefore, the disciplinary authority has to scrupulously examine the conduct of the government servant which led to his conviction before exercising such jurisdiction. The nature of guilt established as also the possible defence available to the government servant are aspects which requires consideration at the level of the disciplinary authority. In the event these aspects are omitted from consideration, the order of dismissal itself would be rendered without jurisdiction.

¶18Since the conduct of the petitioner leading to his conviction has not been examined by the disciplinary authority within the laid down parameter as such the order of dismissal, as affirmed in appeal and revision cannot be sustained. Orders impugned dated

1.12.2016, 21.12.2016 and 18.3.2016 accordingly are liable to be quashed." Upon the aforesaid consideration Neeraj Tiwari, J. held as under: "From the perusal of the impugned order dated 30.08.2014, it is apparently clear that it has been passed only on the ground of conviction without having any discussion or application of mind over the conduct of the petitioner, which is mandatory requirement in light interpretation of Article 311(2)(a) of Constitution of India by the Apex Court as well as by this Court. Now this issue is no res integra. Apex Court from the judgement of Tulsiram Patel(Supra) to many other judgments has considered this issue repeatedly and has held that even after conviction of an employee, while passing the removal or dismissal order, there must have been consideration of conduct of the employee and without that, any order of dismissal is bad." The case is fully covered by the law laid down of Supreme Court in the case of Union of India and another Vs. Tulsiram Patel reported at AIR 1985 SCC 1416 as well as of this Court in Vishwanath Vishwakarma (Supra). The judgment discussed in the previous part of the narrative will govern the fate of this case. The judgement of the trial court on which basis the order of dismissal has been passed is in jeopardy before the appellate court. The impugned order has been passed in a mechanical manner and does not reflect due application of mind to the relevant facts and applicable law. The impugned order dated 06.04.2013 for termination is in the teeth of the law laid down by the Supreme Court and this Court as discussed above. The writ petition is accordingly, allowed. The period in jail shall be counted for the purposes of computing the pension. Order Date :- 16.12.2024 C. MANI High Court of Judicature at Allahabad