JUDGMENT Sudhir Agarwal, J.
1. This writ petition is directed against the order dated 14th September 2004 (Annexure-9 to the writ petition) passed by the Senior Divisional Manager, Life Insurance Corporation of India imposing penalty of removal upon the petitioner in terms of Regulation 39(1)(f) of L.I.C. of India (Staff) Regulations, 1960 (hereinafter referred to as the Regulations of 1960) on the basis of his conviction in ST. No. 475 of 99 under Section 302/307/504/506, I.P.C. vide judgment dated 8th June 2004; and the appellate order dated 10th February 2005 (Annexure-11 to the writ petition) passed by the Zonal Manager rejecting petitioner's appeal of Life Insurance Corporation of India.
2. The brief factual matrix relevant for the disposal of the matter as disclosed in the writ petition is that the petitioner was working as a Higher Grade Assistant in Badaun Branch of Life Insurance Corporation of India (hereinafter referred to as the L.I.C.), He was prosecuted in Sessions Trial No. 475 of 1999 under Sections 302/307/504/506 I.P.C. and the Additional Sessions Judge, Fast Track Court No. 1 Bareilly vide its judgment dated 8th June, 2004 convicted the petitioner awarding sentence of life imprisonment and a fine of Rs. 500/-. The petitioner appealed vide Criminal Appeal No. 3126 of 2004 before this Court and while admitting criminal appeal, this Court vide order dated 10th June 2004 passed an interim order releasing the petitioner on bail and realisation of fine was also stayed. Proceeding on the basis of conviction, the respondents placed the petitioner under suspension on 16th June 2004 and a show cause notice was issued on 17th June 2004 as to why he may not be removed from service in pursuance to his conviction aforesaid. Consequently the petitioner again approached this Court and the order dated 10th June 2004 was further modified by this Court's order dated 14th July 2004 and the sentence was also stayed during the pendency of the appeal. The relevant extract of the order is reproduced as under: -
The sentence so awarded to the accused appellants shall remain suspended during the pendency of the appeal.
3. The petitioner submitted reply dated 22nd July 2004 explaining the entire facts and pointing out that since the sentence itself has been stayed by the Hon'ble High Court in appeal, therefore the proceedings may be dropped during the pendency of the appeal before the Hon'ble High Court, Thereafter, the petitioner again approached this Court seeking further modification in the order dated 14th July 2004 and vide order dated 1st October 2004 the Hon'ble Court modified its earlier order dated 14th July 2004 adding the words 'the conviction' therein resulting in that the conviction and sentence both were stayed by this Court. However, respondent No. 3 in the meantime proceeded further and referring to the petitioners conviction as aforesaid imposed punishment of removal vide order dated 14th September 2004. The petitioner claims that the said order was displayed on the notice board for the first time on 5th October 2004. Thereafter, he preferred an appeal vide Memo of Appeal dated 29th October 2004 and the same has also been rejected by the Appellate Authority vide order dated 10th February 2005.
4. Shri Shashi Nandan, Senior Advocate assisted by Pooja Agarwal, the learned Counsels for the petitioner submits that once the conviction and sentence both were stayed by this Court in the appeal filed by the petitioner, there was no occasion for the respondents to pass orders on the basis of the aforesaid conviction since the same was not executable and the action could have been taken only when the conviction is operating namely the judgment convicting him would have attained finality i.e. become capable of execution. He, further submits that mere conviction is not sufficient to empower the Disciplinary Authority to pass an order of removal against the petitioner inasmuch as it is the conduct which has led to conviction on a criminal charge which has to be considered by the competent authority and, thereafter, it has to decide as to whether any punishment is required to be imposed and if so, the quantum of punishment. It is further argued that in the present case both the orders nowhere show that the authorities have applied their mind to the conduct, which has led to conviction. The impugned orders are totally unreasoned, non-speaking, showing lack of application of mind on the part of the respondents to the conduct, which had led to conviction.
5. The respondents, however, have filed counter affidavit disputing the contention of the petitioner. It has been stated that the Life Insurance Corporation of India has been established under Section 3 of the Life Insurance Corporation Act, 1956 (hereinafter referred to as the "Act of 1956'). Section 48 as amended conferred power upon the Corporation to frame regulations not inconsistent with the acts of the rules made thereunder, with the previous approval of the Central Government and by notification in the Gazette of India. The Life Insurance Corporation of India framed Life Insurance Corporation of India (Staff) Regulations 1960 and Regulation 39 reads as under: -
39. (1) Without prejudice to the provisions of other regulations, [ any one or more of the following penalties for good and sufficient reasons and as hereinafter provided, be imposed [by a breach of regulations of the Corporation, or who displays negligence, inefficiency or indolence or who knowingly does anything detrimental to the interest of the Corporation, or conflicting with the instructions or who commits a breach of discipline, or is guilty of any other act prejudicial to good conduct-
(a) censure:
(b) withholding of one or more increments either permanently or for a specified period:
(c) recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Corporation by negligence or breach of orders:
(d) reduction to a lower service, or post, or to a lower time-scale, or to a lower stage in a time-scale:
(e) compulsory retirement:
(f) removal from service which shall not be a disqualification for future employment:
(g) dismissal.
(2) No order imposing on an employee any of the penalties specified in Clauses (b) to (g) of Sub-regulation (1) supra, shall be passed by the disciplinary authority specified in Schedule 1 without the charge or charges being communicated to him in waiting and without his having been given a reasonable opportunity of defending himself against such charge or charges and of showing cause against the action proposed to be taken against him.
(3) The disciplinary authority empowered to impose any of the penalties, (b), (c), (d), (e), (f) or (g) may itself enquire into such of the charges as are not admitted or if it considers it necessary so to do, appoint a board of enquiry or an enquiry officer for the purpose.
(4) Notwithstanding anything contained in Sub-regulations (1) and (2) above-
(i) Where a penalty is imposed on an employee on the grounds of conduct which had led to a conviction on a criminal charge: or
(ii) Where the authority concerned is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in this regulation: or
(iii) Where an employee has abandoned his post, the disciplinary authority may consider the circumstances of the case and pass such orders thereof as it deems it.
Explanations 1: for the purpose of this regulation, an employee shall be deemed to have abandoned his post if he absents himself from duty without leave or overstays his leave for a continuous period of ninety days without any intimation therefor in writing.
2. All communications under this regulation and copies of orders passed thereunder may be delivered personally to the employee if he is attending office; otherwise they shall be sent by registered post to the address noted in the service record. Where such communications or copies of orders cannot be sewed on him personally or by registered post, copies thereof shall be affixed on the notice board of the office in which the employee is employed, and on such affixing such communications and orders shall be deemed to have been properly served on him.
6. It is further stated that the petitioner having been convicted on the serious criminal charges including murder and, therefore, the respondents had no option, but to impose major penalty of removal. It is contended that the punishment of removal has been imposed upon the petitioner in accordance with the due procedure of law and it is neither illegal nor contrary to law. All the pleas raised by the petitioner have been considered and, therefore, the writ petition is liable to be dismissed.
7. The questions arise for adjudication in the present case are (1) whether the authorities could have proceeded under Regulation 39(1)(f) and 39(4) of Regulation of 1956 when the order of the Trial Court with respect to conviction and sentence both have been stayed by the Court in appeal, (2) whether the impugned order of removal has been passed in compliance of regulation 39(4) of 1960 and after considering the conduct of the petitioner which has led to his conviction.
8. Before dealing with the aforesaid two questions, it would be appropriate to deal with another incidental issue raised by Shri Satish Chaturvedi, the learned Counsel for the respondents. He submitted that in appeal the order of conviction cannot be stayed and it can only be set aside and in support of the above submission refers to the judgment of the Apex Court in the case of Rama Narang v. Ramesh Narang 1992 (2) SCC 513, where in para 15 of the judgment it has been held that the order under Section 389(1) of Cr.P.C. must be an order capable of execution and only such an order can be stayed. An order of conviction by itself is not capable of execution under the code.
9. In my view, the aforesaid contention is thoroughly misconceived. In Rama Narang's case, the High Court had stayed the operation of the impugned order. There was no mention in the interim order of the High Court that the conviction and sentence are being stayed. The Apex Court considering such order held that what is stayed is the order capable of execution and not which is not capable of execution. Further, in Para 16 the Apex Court further held that in certain situations, the order of conviction can be executable and in such case the power under Section 389(1) of Cr.P.C. of the Code can be invoked. In such contingency the appellate court must be specifically invited to the consequence i.e. likely to fall in order to enable it to apply its mind to the issue.
10. In the present case, initially this Court only stayed sentence but when the respondents proceeded under Regulation 39(4) of Regulations of 1956, the petitioner approached the Appellate Court and, thereafter the interim order was modified and even conviction was stayed by this Court. Hence this Court applied its mind and considering the effect of not granting stay to conviction, it passed a positive order staying even conviction in respect to the petitioner. I am not sitting in appeal over the orders passed by this Court in appellate jurisdiction on criminal side. The matter in hand has to be considered by this Court on the basis of the orders as they are available and the effect of the interim order passed by this Court has to be considered in the light of the entire facts and circumstances and the interim order cannot be ignored on the ground that the same could not have been passed. The remedy in this regard lies elsewhere. Therefore, this contention of the learned Counsel for the respondents is rejected.
11. Now coming to question No. 1, in my view the power under Regulation 39(4) can be exercised even if the order of conviction and sentence passed by the criminal court is stayed in appeal. A perusal of Regulation 39(4) Shows that the factum of conviction on a criminal charge is sufficient to empower the Disciplinary Authority to consider the circumstances of the case and pass such orders as it may deem fit. Whether the order of conviction is operating or not or whether it is executable or not is of not much relevance for exercise of power under Regulation 39(4) of the Regulations of 1956.
12. A similar question came up for consideration before the Apex Court in the case of Deputy Director of Collegiate Education (Administration.), Madras v. S. Nagoor Meera . The Apex Court considered the pan malaria provisions contained in Article 311(2), second proviso, Clause (a) of the Constitution of India and said that what is relevant for exercise of power thereunder is the conduct which has led to conviction in criminal charge and not the conviction itself. There is no question of suspending the conduct of an employee when he has been convicted and in an appeal, the same is stayed. Since the Disciplinary Authority has to exercise power considering the conduct of the employee, which has led to his conviction on a criminal charge and since conduct is not stayed, therefore, even if the conviction has been stayed in appeal the power can be exercised by the Disciplinary Authority on the basis of the conduct which has led to conviction on a criminal charge.
13. The relevant observations of the Apex Court has contained in para 8 are reproduced as under: -
We need not, however, concerns ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for Clause (a) of the second proviso to Article 311(2) is the "conduct which has led to his conviction on a criminal charge" and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on The ground that the said government servant-accused has been released on hail per/dins the appeal.
(Emphasis added)
14. It has also been held by the Apex Court in the same judgment that in cases where an employee is convicted on a criminal charge, the appropriate course would be in all such cases to take action and not to wait for the result of the appeal or revision as the case may be. It is always open to the authorities to revise its order and reinstate the Government Servant with all the benefit if in appeal or other proceedings the Government Servant accused is acquitted.
15. Similar view has been taken by a Division Bench of this Court in the case of Mohan Lal v. State of U.P. 1998 (78) FLR 987 and relying on Nagoor Meera Case (supra) this Court in para 7 held as under:
Taking proceedings for and passing orders of dismissal, removal or reduction in rank of a Government servant who has been convicted by a criminal court is not harred merely because the sentence and order is suspended by the Appellate Court or on the ground that the said Government servant-accused has been released on bail pending the appeal. In view of this authoritative pronouncement, the order dismissing the appellant from service cannot be set aside on the ground that the operation of the judgment by which the appellant had been convicted under Section 304, Part-I IPC has been stayed in the Criminal Appeal preferred by him.
16. In the circumstances, it cannot be held that the respondents could not have taken recourse to Regulation 39(4) of Regulation of 1956 considering the conduct led to conviction of a criminal charge. The submission of the learned Counsel for the petitioner, therefore, is rejected.
17. Now coming to second question, it has to be seen whether impugned orders have been passed considering the conduct of the petitioner, which has led to his conviction in a criminal charge. The removal order passed by the respondent No. 3 in the earlier part only refers to the factum of conviction, arrest of the petitioner, bail granted to him, suspension and show cause notice dated 17th June 2004 and the penultimate paragraph of the order, after referring to the aforesaid factual aspect, is only to the following effect:
And whereas on going through the above mentioned reply of Sri Brahm Dev carefully and after examining the all available records related with the matter it has been found that the aforesaid reply of Sri Brahm Dev does not effect the penalty proposed in the show cause and he is found guilty of misconduct leading to moral turpitude having regard to the judgment delivered by trial court.
And the conduct that led to his conviction under Sections 302 307 504 506 of I.P.C.;
Now therefore in exercise of powers conferred upon me under Regulation 39(4)(I) of the L.I.C. of India (Staff) Regulation 1960 read with schedule-1, I, disciplinary authority hereby impose the penally of Removal From Service under Regulation 39(1)(f) of L.I.C. of India (Staff) Regulation, 1960 on Sri Brahm Dev. HGA. Dated at Bareilly this 14th day of September, 2004.
18. Similarly the appellate order, which runs in four paragraphs, is reproduced as hereunder:
WHEREAS an appeal dated 29.10.2004 has been preferred by Sri Brahm Dev, Ex HGA, Branch Office, Badaun, under Bareilly Division against order dated 14.9.2004 of the Senior Divisional Manager, Bareilly imposing upon him the penalty of "removable from service" under Regulation 39(1)(f) of the L.I.C. of India (Staff) Regulations, 1960 for being convicted and sentenced to life imprisonment by the Additional Sessions Judge, Fast Track-1, Bareilly in a criminal case.
AND WHEREAS Sri Brahm Dev has pleaded in his appeal that since his appeal against the order of conviction and sentence is pending the Hon'ble High Court at Allahabad and the Hon'ble High Court vide its order dated 14.7.2004 and 1.10.2004 slaved the conviction and the sentence so awarded during the pendency of the appeal in the High Court, therefore, he should not be been as convicted person and the order dated 14.9.2004 be set aside.
WHEREAS upon considering the submissions made by the appellant in his aforesaid appeal and perusing the records of the case, I find that those the conviction as the sentence so awarded have been suspended by the Hon'ble High Court, Allahabad during the pendency of the appeal in the High Court, there is no acquittal and therefore the Disciplinary Authority is justified in invoking the provisions of Regulation 439(4)(1) of L.I.C. of India (Staff) Regulations 1960 and imposing the penalty of removable from service in terms of Regulation 39(1)(f) of the L.I.C. of India (Staff) Regulations 1960.
And therefore with my above observations I find that the said appeal of Shri Brahm Dev against the order dated 1.4.2004 of S.D.M. Bareilly is devoid of merit and I hereby order that the said appeal dated 29.10.2004 of Sri Brahm Dev is hereby rejected.
19. A bare perusal of the two orders nowhere shows that the respondents have applied their mind to the conduct of the petitioner which has led to his conviction in the criminal charge.
20. In the case of Union of India v. Tulsi Ram Patel , the Apex Court while considering the part materia provision under Article 311 of the Constitution of India, held as under: -
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 enquiry.
(Emphasis added)
21. A similar question came up for consideration before a Division Bench of this Court in the case of Shyam Narain Shukla v. State of U.P. (1988) 6 LCD 530 and this Court 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.
(Emphasis added).
22. Similarly another Division Bench of this Court in Sadanand Mishra v. State of U.P. 1993 LCD page 70 held that on the 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. Further, it is 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,
23. Therefore, in the present case, the respondents have to show that the conduct of the petitioner, which has led to his conviction has been considered, which is the condition precedent before the competent authority acquire jurisdiction to impose punishment of removal upon the petitioner. The impugned orders unfortunately are conspicuously silent and show no consideration of conduct of the petitioner at all. Simply by repeating the language of the provision of Regulation 39(4), the punishment of removal has been imposed upon the petitioner.
24. Even the learned Counsel for the respondents after reading of the two orders impugned in the writ petitions many times could not show that the conduct of the petitioner which led to his conviction, was considered by the respondents in imposing punishment of removal upon him. In the circumstances, it cannot be said that the impugned orders have been passed by the respondents validly and in accordance with the requirement of Regulation 39 (4) of the Regulations of 1956. The provisions under Regulation 39(4) confers power upon the employer to dismiss or remove an employee without holding enquiry. Therefore, it is an exception to the normal procedure prescribed in law where an employee can be punished only after affording adequate opportunity of defence to him. The authorities must always remember that this power should be exercised with great caution and meetings the statutory requirement strictly.
25. In the case of Shankar Das v. Union of India 1985 (2) SCR 358, the Apex Court while referring to power under Clause (a) of second proviso of Article 311(2) of the Constitution of India observed as under: -
Be that power like every other power has to be exercised fairly, justly and reasonably.
26. In the present case, since the respondents have failed to consider the conduct of the petitioner which has led to his conviction before imposing the punishment of removal by means of the impugned order and, therefore, the writ petition is liable to succeed on this ground.
27. In view of the aforesaid discussion, the writ petition is allowed and the orders dated 14th September 2004 and 10th February 2005 are quashed. The matter is remitted back to the Disciplinary Authority with the liberty to pass a fresh order in accordance with law and in view of the observations made hereinabove. The petitioner shall be entitled for all consequential benefits of arrears of salary etc. in accordance with the Rules as applicable.
28. No order as to costs.