Arun Kumar Sachan vs State of U.P. and Others

Dilip Gupta, J.—The Petitioner, who was appointed as Junior Engineer in the Ram Ganga Command Project falling under the Land Development and Water Resources Department of the State on 25th May, 1982, has sought the quashing of the order dated 1st December, 2009 passed by the Chairman and Administrator, Ram Ganga Command Project, Kanpur by which he has been dismissed from service under Clause (a) of the second proviso to Article 311(2) of the Constitution.

The impugned order dated 1st December, 2009 mentions that The Petitioner should be dismissed from service for the reason that he has been convicted by the Court u/s 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act and sentenced to imprisonment of one year with a fine of Rs.10,000/- also.

It is the submission of Sri Siddharth Khare, learned counsel for The Petitioner that it was incumbent upon the authorities to consider the conduct of The Petitioner which had led to his conviction on the criminal charge before imposing the maximum punishment of dismissal from service. In support of his contention, he has relied upon the decision of the Supreme Court in Shankar Dass Vs. Union of India (UOI) and Another, and the judgments of this Court in Writ Petition No. 59149 of 2009 (Chandrajeet Yadav v. State of U.P. and Ors.), decided on 18th November, 2009 and Writ Petition No. 34209 of 2008 (Ashok Kumar v. State of U.P. and Ors.), decided on 4th October, 2010.

Sri A.C. Tiwari, learned counsel appearing for the Respondents has, however, submitted that since The Petitioner was convicted for accepting bribe, there is no infirmity in the impugned oder and in support of his contention he has placed reliance upon the judgment of this Court in Regional Manager, U.P. State Road Transport Corporation, Jhansi, Region Jhansi v. Dhruw Ram, 2006 (2) UPLBEC 1592. I have considered the submissions advanced by the learned counsel for the parties.

Clauses (1) and (2) of Article 311 of the Constitution with the relevant portion of the two provisos are reproduced below:-

(1). 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 persons 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 persons 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) �

(c) ...

(3) �

The proviso to Rule 7 of the U.P. Government Servants (Discipline and Appeal) Rules, 1999 also provides that the said Rule will not apply in the case where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge.

The contention of the learned counsel for The Petitioner is that though there are number of penalties provided for in the Rules, yet the maximum penalty has been imposed upon The Petitioner without examining the conduct of The Petitioner which led to his conviction on the criminal charge. This controversy was examined by the Supreme Court in Shankar Dass (supra) and it was observed :

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 person from service "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. 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.

In Chandrajeet Yadv (supra), a learned Judge of this Court also observed as follows:

Sri Vijay Gautam, learned counsel for The Petitioner has assailed the impugned order of dismissal dated 08.10.2009 passed by Commandant, 8th Bn. P.A.C., Bareilly whereby The Petitioner has been dismissed on the ground of his conviction by the court of Additional District and Sessions Judge, F.T.C. Court No. 3, Mau in Session Trial No. 21 of 1998, under Sections 147, 148, 149, 307, 308, 323, 325, 506 IPC imposing punishment of five years rigorous imprisonment with fine of Rs. 5000/- and has dismissed him without referring to the conduct of petitioner which has lead to his conviction. He submits that under Rule 8(2)(a) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the "1991 Rules") read with Article 311(2) second proviso it is permissible either to dismiss or remove or reduce in rank a person holding civil post without holding inquiry on the ground of conduct which has led to his conviction of criminal charges but the authority concerned has to consider the conduct of employee concerned which has led to his conviction in a criminal charge so as to warrant the punishment of dismissal.

In a case where such consideration has not been made the order passed by the appointment authority imposing maximum punishment of dismissal without considering the conduct led to conviction could be illegal and improper and, therefore, the order would be liable to be set aside. He placed reliance on this Court''s judgements in Civil Misc. Writ Petition No. 22319 of 2005, Brahma Dev v. Life Insurance Corporation of India and others, decided on 28.02.2006, Shyam Narain Shukla v. State of U.P. 1988 (6) LCD 530, Sadanand Mishra v. State of U.P. 1993 LCD 70 and the Apex Court''s decision in Union of India and Another Vs. Tulsiram Patel and Others, as also a Single Judge judgement of this Court in Civil Misc. Writ Petition No. 30227 of 2007, Shiv Kumar Singh v. State of U.P. and Ors., decided on 24.10.2008.

From a bare perusal of the impugned order of dismissal it is evident that the punishing authority merely by referring to the conviction of The Petitioner in a criminal case and the punishment imposed therein has dismissed him from service and there is nothing which shows even a whisper of consideration on the part of the punishing authority that he has considered the conduct of the employee concerned which has led to his conviction in a criminal charge so as to warrant punishment of dismissal.

Learned Standing Counsel could not dispute the above exposition of law and also could not defend the impugned order by pointing out that such consideration has been made by the punishing authority. He virtually could not dispute that the matter is squarely covered by the aforesaid judgements of this Court as well as the Apex Court.

In view of the above discussion and for the reasons contained in Brahma Dev (supra), Shyam Narain Shukla (supra), Sadanand Mishra (supra), Tulsi Ram Patel (supra) and Shiv Kumar Singh (supra) this writ petition is allowed. The impugned order dated 08.10.2009 is hereby quashed. However, the Respondent-punishing authority shall be at liberty to pass a fresh order against The Petitioner in accordance with law and this order shall not be construed as expressing any opinion on the merits of the issue. 11. In Ashok Kumar (supra), same observations have been made by a learned Judge of this Court.

It is, therefore, clear from the aforesaid decisions 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 order impugned only mentions that since The Petitioner has been convicted in the criminal case, he should be dismissed from service. The authorities were required to examine the conduct of The Petitioner which led to his conviction before imposing any punishment.

In Dhruw Ram (supra), on which reliance has been placed by the learned counsel for the Respondents, the Court found that the Disciplinary Authority had applied its mind and only thereafter the decision was taken. This decision is, therefore, not applicable to the facts of the present case.

In such circumstances, it is not possible to sustain the impugned order dated 1st December, 2009 passed by the Chairman and Administrator, Ram Ganga Command Project, Kanpur. It is, accordingly, set aside. It shall, however, be open to the Respondents to pass a fresh order in the light of the observations made above.

The writ petition is allowed to the extent indicated above.