JUDGMENT Vikram Nath, J.
1. This special appeal has been filed by the employer under Chapter VIII Rule 5 of the Rules of the Court against the judgment of the learned single Judge dated 23.04.1999 passed in Writ Petition No. 17362 of 1999, whereby the writ petition of the respondent was allowed and the appellant was directed to initiate disciplinary inquiry and after giving opportunity of hearing to the respondent to complete the said inquiry in accordance with the relevant rules within a period of 3 months from the receipt of certified copy of the judgment.
2. The respondent was working as driver in the U.P. State Road transport Corporation (in short referred to as the Corporation) and Was posted in the Jhansi Region. Pursuant to the involvement of the respondent in Case Crime No. 550 of 1996, under Section 376/34 IPC, and Section 3(1) and (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, he was suspended on 8th February 1996. After the trial in the aforesaid criminal case the _' respondent was convicted and sentenced to undergo life imprisonment vide judgment dated 21.08.1998 by the Sessions Judge, Hamirpur in Special Case No. 90 of 1996. The respondent filed an appeal before this Court against his conviction and sentence, which was registered as Criminal Appeal No. 1626 of 1998. The appeal was admitted on 09.09.1998 and further vide order dated 02.11.1998 the respondent was directed to be released on bail and the realization of the fine was stayed. Further vide order dated 20.04.1999 this Court suspended the judgment and order dated 21.08.1998 passed by the Sessions Judge.
3. After the conviction of the respondent and the bail having been granted by the High Court on 02.11.1998, the Regional Manager issued a show cause notice dated 13.11.1998 calling upon the respondent to show cause why he may not be removed from service after forfeiting the balance salary of the period of suspension. The respondent vide his reply dated 19.12.1998 informed the Regional Manager that the appeal against conviction has been admitted in the High Court and that he has been granted bail and further that he had been falsely implicated in the criminal case by the police of Harpalpur Police Station as he had objected to the traveling of the police officials of the said Police Station without ticket. He also stated that another bus of the Corporation bearing No. 9146 was being towed by his bus and it was in the said bus that the alleged offence was said to have taken place. He denied of his involvement in the criminal case and prayed that the notice may be withdrawn.
4. The Regional Manager vide order dated 31.12.1998 dismissed the respondent from service after forfeiting the balance salary of the period of suspension only on the ground of conviction in the criminal case. Aggrieved by the same the respondent filed Writ Petition No. 17362 of 1999, which was allowed vide judgment dated 23.04.1999, which is impugned in this special appeal.
5. We have heard Sri Rahul Anand Gaur learned Counsel for the appellant and Sri Vivek Shandilya learned Counsel for the respondent and have also perused the record of the appeal as well as the writ petition.
6. The contention of the appellant is that under the service rules applicable to the respondent, upon conviction in a criminal case the orders of dismissal could be passed after a show cause notice, and no detailed departmental proceeding were required to be held. Learned Counsel has referred to U.P. State Road Transport Corporation Employees Service Regulation 1981 (in short Regulations), which is admitted to the parties to be the relevant service regulations. Regulation 29 of the Regulations provide that unless otherwise agreed upon in writing by regular employee and the Corporation such employee may resign or his services may be terminated upon giving of 3 months notice without assigning any reason by either side.
7. Regulation 62 of the Regulations spell out the acts of omission and commission which shall be treated as misconduct. Clause 20 of the said Regulation 62 includes commission of any act which amounts to criminal offence involving moral turpitude as a misconduct. Regulation 63 of the Regulations spell out minor and major penalties which include removal and dismissal from service. Regulation 64 of the Regulations provides the procedure for awarding major penalties. It is interpretation of this Regulation 64 which will decide the actual controversy. It reads as follows:-
1. Procedure for awarding major penalties.-
(1) Without prejudice to the right to terminate the service in accordance with Regulation 29 no order (other than order based on facts which had led to his conviction in a criminal court) of dismissal, removal or reduction in a rank, which includes, reduction to a lower post or time scale or to a lower stage in the time scale but excludes the reversion to a lower post of a person who is officiating on a higher post, shall be passed against an employee unless he has been afforded adequate opportunity of defending himself.
(2) The ground on which it is proposed to take action shall be reduced in the form of a definite charge or charges which along with the evidence proposed to be relied upon in support of the charge shall be communicated to the person charged and he shall be required, within a reasonable time, to put in a written statement of his defence and to state whether, he desires to examine or cross-examine any witness and whether he desires to be heard in person. He shall also be informed that, in case he does not file a written statement of his defence, it will be presumed that he has none to furnish and orders will be passed (ex parte.) (3) If, the employee desires or the Enquiry Officer considers it necessary, an oral inquiry shall be held in respect of such allegations as are not admitted. At the inquiry such oral evidence shall be heard as the Inquiry Officer considers necessary. The person charged shall be entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may for sufficient reasons to be recorded in writing refuse to call or examine any witness.
(4) The proceedings shall contain sufficient record of evidence and the statement of findings and grounds thereof. The Enquiry Officer may also separately from the proceedings, make his own recommendation regarding the penalty to be imposed. The proceedings and the record shall be forwarded to the appointing authority.
(5) The appointing authority shall pass such orders as he considers proper on the basis of record and report.
8. Cause 1 of Regulation 64 of the Regulations provide that without prejudice to the right to terminate the service in accordance with Regulation 29 no order (other than order based on facts which had led to his conviction in a criminal court) of dismissal, removal or reduction in a rank, (which are major penalties ) shall be passed against an employee unless he has been afforded adequate opportunity of defending himself as per the procedure laid down in the subsequent clauses of the said regulation, which include issue of charge sheet, holding of inquiry and giving opportunity to lead evidence and cross examine.
9. Upon reading of Clause 1 of Regulation 64 it appears that in addition to the right of the Corporation to terminate the service of employee in accordance with Regulation 29, an order awarding major punishment can be passed without following the procedure as laid down in Clauses 2, 3 & 4 where such order is based on facts which had led to conviction in a criminal Court. In other situations orders awarding major penalty cannot be passed without affording adequate opportunity and following the procedure as set out in the Clauses 2, 3 & 4 of Regulation 64.
10. In the present case the order of dismissal is based upon facts which led to the conviction of the respondent in a criminal Court and, therefore, it is submitted by the appellant that no detailed departmental enquiry was required as provided under Clauses 2, 3 & 4 and the learned Single Judge fell in error in not taking into consideration the said provisions which are admittedly applicable in the case of respondent. In support of his contention the appellant has relied upon the judgment in the following case (i) Mohan Lal v. State reported in (1998) 2 UPLBEC 1141, and (ii) Hukmi Chand v. Jhabua Cooperative Central Bank Ltd. Jhabua (M.P.) and Anr. and (iii) Aligarh Muslim University and Ors. v. Mansoor Ali Khan .
11. Relying upon these decisions and the provisions contained in Regulation 64 of the Regulations learned Counsel for the appellant contends that the decision of the learned single Judge being contrary to the law cannot be sustained and the writ petition deserves to be dismissed as the order of dismissal had been validly passed.
12. On the other hand learned Counsel for the respondent submits that the Corporation has not framed any procedure for awarding major punishment in matters where order of major punishment is based upon conviction of the employee by a criminal Court and therefore, the appellant corporation had no option but to hold the inquiry as provided under Clauses 2, 3 & 4 of Regulation 64. It is further submitted that dismissal without following due procedure and without affording due opportunity, is violative of Article 311 of the Constitution as also the principles of natural justice and fair play. Learned Counsel for the respondent has also placed reliance upon the following decisions in support of his contention :-(i) Union of India v. Tulsi Ram Patel. (ii) (1989) 2 UPLBEC 418 Shyam Narayan Shukla and Ors. v. State of U.P. and Ors. and (iii) 1998 (2) UPLBEC 1043 Vijay Prasad Pandey v. State of U.P. and Ors..
13. We now proceed to consider the rival submissions made at the bar.
14. Upon the respondent's involvement in the offence which had taken place on 5.11.1995/6.11.1995, the Appointing Authority vide order dated 8.2.1996 suspended the petitioner and by a subsequent letter dated 27.5.1996 issued charge sheet to the petitioner and the enquiry was entrusted to the Assistant Regional Manager, Orai. Subsequently, it appears that the Enquiry Officer communicated to the Appointing Authority that on account of the respondent being confined in jail, it was not possible to continue with the enquiry.
15. In the mean time, the respondent was convicted of the offence under Section 376 I.P.C. and was sentenced to seven years rigorous imprisonment along with fine of Rs. 5,000/-, and in the event of default in payment of fine, the term of sentence would be extended by another two years. Based upon the said conviction and sentence awarded by the Sessions Judge, Hamirpur, the Appointing Authority issued a show cause notice dated 13.11.1998 as to why the balance salary for the period of suspension may not be forfeited and the respondent may not be removed from service. The respondent submitted his reply to the show cause notice on 23.12.1998 and after considering the same, the Disciplinary Authority dismissed the respondent from service vide order dated 31.12.1998 and also forfeited the balance salary for the period of suspension. Thus, it is to be noticed that the respondent was dismissed from service after a show cause notice and after considering the reply submitted in the show cause notice.
16. As already discussed above, the Regulation 64 of the Regulations permits the authority to award major punishment without following the procedure in cases of conviction of any offence by criminal Court. This is an exception carved out from the general procedure. This exception has been carved out apparently for the reason that the criminal Court after holding a full fledged trial in which the accused is given full opportunity to defend himself and where the conviction is based upon the prosecution evidence which establishes the guilt to the hilt and there is no scope of any benefit of doubt being extended to the accused, that the Disciplinary Authority may after examining the offence and the judgment proceed to pass an order of major punishment. As the Disciplinary Authority cannot "it in appeal and criticise the judgment/findings of the criminal Court, the award of major punishment merely because of conviction is not what is warranted by law but after application of mind by the Disciplinary Authority. There may be cases of accident/assault etc. which are also offences under the IPC and tried by criminal Courts and may result into conviction, but still it would be open to the Disciplinary Authority to apply its mind and examine whether or not to award any punishment if it does not in any manner involves moral turpitude and further affect the continuance of the employee in the department without having any adverse influence and adversely affecting the general environment and smooth functioning of the department.
17. In the present case, the Disciplinary Authority even though initially, after the offence was committed, started disciplinary proceedings but later on, on account of conviction by the criminal Court after issuing show cause notice, dismissed the petitioner which was well within its powers and authority conferred under law. It is not the case that Disciplinary Authority did not apply its mind.
18. Before the learned Single Judge, the provisions of the 1981 Service Regulation, which are admitted to be applicable in the case of the respondent were not placed. Regulation 64 of the Regulations had also not been placed before the learned Single Judge. In the absence of said provision having been brought to the knowledge of the learned Single Judge, the learned Single Judge proceeding on general principles and relying upon the judgment in the case of Shyam Narayan Shukla (supra) held that reasonable opportunity was not given to the respondent and the enquiry had not been fairly conducted and, therefore, set aside the order of punishment directing the Disciplinary Authority to initiate disciplinary proceedings after hearing as contemplated under relevant Rules. The error appears to have occurred in the judgment of the learned Single Judge as the relevant Rules were not placed before him.
19. On the other hand, learned Counsel for the respondent has again reiterated and relied upon the same authorities, viz., Shyam Narayan Shukla (supra) and Vijay Prasad Pandey (supra) and Tulsi Ram Patel (supra). None of these cases help the respondent. The decision of Shyam Narayan Shukla (supra) dealt with a situation where the Disciplinary Authority had dismissed the employee without examining or applying its mind to the offence committed and its impact on the service to be rendered by the delinquent. In the present case, the petitioner was convicted of an offence under Section 376 I.P.C., which definitely involved moral turpitude and secondly the Disciplinary Authority had issued a show cause notice and after considering the reply had passed the impugned order of dismissal. It is true that charges were framed initially at the time when the petitioner was suspended and even the Enquiry Officer was appointed, but for the reason that the respondent was in jail, the enquiry could not be concluded otherwise, action could have been taken against the respondent even before the conclusion of the trial. -Therefore, after conviction as per the Rules, no formal or general enquiry proceedings were required to be taken and what is relevant is that there should have been application of mind before awarding the punishment. The Disciplinary Authority, in our view, had applied its mind and only thereafter had taken the decision. This is also the principle laid down by the Apex Court in the case of Tulsi Ram Patel (supra). Further the Authority relied upon by the respondent in the case of Vijay Prasad Pandey does not have any application in the facts of the present case. In any case, an employee as long as he stands convicted for an offence under Section 376 I.P.C., cannot be allowed to be retained in Government service or in the service of any Government Corporation.
20. The other contention of the counsel for the respondent that against the order of conviction, he had preferred an appeal, which had been admitted and the respondent had been enlarged on bail and, therefore, he may be reinstated in service, also cannot be accepted for the reason that in view of the law laid down in the case of Mohan Lal (supra) relied upon by the appellant, the conviction still stands and it is only after the acquittal which may take place in the appeal that the respondent would be entitled to be considered for reinstatement in accordance with law. Thus, the only remedy open to the respondent is to await the decision of the criminal appeal and only upon acquittal there from that he may apply to the department for setting aside the punishment order.
21. In view of the above discussion, we allow this appeal, set aside the judgment of the learned Single Judge and dismiss the writ petition leaving it open to the respondent to apply for reinstatement/recall of the punishment order in case he is acquitted in the criminal appeal.