Heard Mr. B.R. Singh, learned counsel for the petitioner as well as learned Standing Counsel and perused the record.
Through the instant writ petition the petitoner has assailed the order dated 03. Octorber.2003 passed by the Prescribed Authority/ Chief Medical Officer, Sitapur whereby the petitioner has been dismissed from service. The petitioner was placed under suspension due to her implimentation in a Criminal Caes registered as Case Crime No. 528 of 1999 under section 304-B, 498-A read with section 34 of the Indian Penal Code. Ultimately the petitioner had been convicted in the aforesaid case under section 302 read with section 34 of the I.P.C. by means of order dated 05.12.2002. Therefore in the light of the Departmental Rules notified on 30.07.1997 the petitioner had been dismissed from service w.e.f. 31.05.2003.
Learned counsel for the petitioner submits that since the petitioner had been dismissed due to conviction in a Criminal case, admittedly no departmental inquiry was conducted. However the disciplinary authority was under obligation to discuss the conduct of the petitioner as to what role was played by the petitioner in commission of offence which led her convication in Criminal Case. He drew attention of the Hon'ble Court towards Article 311 of the Constitution of India which is extracted below:
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 a 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 ins 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.
(d) 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."
Insupport of his submission he cited a case decided by a Division Bench of this Court i.e. Shyam Narain Shukla and another Vs. State of U.P. and others 1989(2) UPLBEC 418 . In this matter relying upon a decision of the Constitution Bench of the Hon'ble Supreme Cour rendered in the case of Union of India and another Vs. Tulsi Ram Patel AIR 1985 SC 1416 a Division Bench of this Cour held as under:-
"7. Civil servants, that is, persons who are members of a civil service of the Union of India or an all-India Service or a civil service of a State or who hold a civil post under the Union or a State, occupy in law a special position. The ordinary law of master and servant does not apply to them. Under that law, whether the contract of service is for a fixed period or not. If it contains a provision for its termination by notice, it can be so terminated. If there is no provision for giving a notice and the contract is not for a fixed period, the law implies an obligation to give a reasonable notice. Where no notice in the first case or no reasonable notice in the second case is given, the contract is wrongfully terminated and such wrongful termination will given rise to a claim for damages. This is subject to what may otherwise be provided in industrial and labour laws where such laws are applicable. The position of civil servants both in England and in India is, however, vastly different.
The Civil Service in England"
Vijaya Shanker Tewari Va. State of U.P. 1996 (14) LCD 126, in this Case furhter another Division Bench of this Court followed the aforesaid judgment.
The relevant paragraph No. 127 of Union of India Vs. Tulsi Ram Patel (supra) which has been relied upon by a Division Bench of this Court in the aforesaid case is also quoted here under:-
"127. Not much remains to be said about clause (a) of the second proviso to Article 311(2). To recapitulate briefly, where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan's case. This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India and another, [1985] 2 S.C.C. 358,: (AIR 1985 SC 772) this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the Court should always order reinstatement. The Court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case".
Learned Counsel for the petitioner further cited a decision on Deputy Director of Colligiate Education (Administration), Madras Vs. S. Nagoor Meera 1955 (3) SCC 377 on the same point. In this case Hon'ble Supreme Court considered its another decision i.e. Shankardas Vs. Union of India 1985 (2) SCR 358 the relevant part of the judgment is reproduced herein under:-
"Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the government the power to dismiss a person from services "on the ground of conduct which has led to his conviction on a criminal charge." But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter 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 inapplicable 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."
On its conclusion the Hon'ble Supreme Court held that what is relevant factor for consideration is the conduct of the Government Servant which has led his conviction for Criminal Charge. However since in this case also like the case on hand the respondent was convicted having been found guilty by a Crimial Court, the Hon'ble Supreme Court held that untill it has been decided that it may not be advisable to retain such person in service.
Learned counsel for the petitioner submits that petitioner has died on 19th September 2011. Had she been alive, she would have attained the age of superannuation some time in 2006. This Court by means of interim order dated 08.01.2004 stayed the order of dismissal with the observation that petitoiners shall be continued in service subject to final orders of this Case. Therefore the learned counsel for the petitioner submits that the substituted petitioners who are the sons of the deceased are entitled to get the arrears of salary, gratuity, Provident Fund and the amount of pension for about 42 months which was stopped.
Learned counsel for the petitioner further submit that judgement of the Session Court has been appealed before this Court by the co-accused. Therefore the order passed by the Session Judge may not be treated as a final one.
The judgment passed by the Sessions Judge is on record. A bare perusal of it shows that the role of the deceased Savitri Devi in commission of offence was discussed and considering her involvement in commission of offence and the Session Court convicted her with sentence to undergo rigorouos imprisonment for life under section 302 read with section 34 I.P.C.
Therefore I am of the view that Clause (a) of Article 311 (2) has been followed well. So far as the effect of pencency of appeal is concerned, The Hon'ble Supreme Court has considered it S. Nagoor Meera (supra) case and held that merely because the sentence is suspended and/or the accused is released on Bail, the conviction does not cease to be operative. The Hon'ble Supreme Court has observed that the provisions of 389(1) I.P.C. held that "it may be noted, speaks on suspending "the execution of the sentence or order", it does not expressly speaks of suspension of convication. The Hon'ble Supreme Court on this issue also discussed its another judgment given in the case of Ram Narayan Vs. Ramesh Narayan AIR 1995, SC 623, the relevant portion is extracted below:
"Section 389(1) empowers the Appellate Court to order that the execution of the sentence or ordcr appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'Order' in Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'Order' in- Section 389(1) mean order of conviction or an order similar to the one under Sections 357 or 360 or the Code? Obviously, the order re- ferred to in Section 389(1) must be an order capable in execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which if not suspended, would be required to be executed by the authorities...... In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code would be invoked. in such situations, the attention of the Appellate Court must be specifically invited to die consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order for reasons to be recorded by it in writing. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto?...... If such, a precise request was made to the Court pointing out the consequences likely to fall on the continuance of the conviction order, the Court would have applied its mind to the specific question and if it thought that case was made out for grant of interim stay of the conviction order, with or without conditions attached thereto, it may have granted an order to that effect. "
Thus as summed up by the Hon'ble Supreme Court it is abvious that pendency of appeal has no effect over the punishment unless the order of conviction is set aside.
On a keen scrutiny of the judgements referred as above as well as facts of the case, I am of the view that there is no violation of Article 311(2)(a) of the Constituiton of India in passing the order of dismissal. Therefore the writ petition is dismissed.
Order Date :- 29.01. 2014 A.K. Singh