Bhagwan Mishra vs State of U.P. and Others

Surendra Vikram Singh Rathore, J.—Heard learned Counsel for the petitioner and learned Standing Counsel on behalf of the State.

By means of this petition, the petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India to issue a writ of certiorari to quash the order dated 27.10.2009 passed by the opposite party No. 2- State Radio Officer(Administration), U.P. Police Radio Headquarter, Mahanagar, Lucknow and also to issue a writ of mandamus commanding the opposite parties to allow the petitioner to resume his duty on the post of Messenger in the office of the opposite party Nos. 4 and 5 and pay him salary regularly with all consequential benefits. The case of the petitioner is that the petitioner was posted on the post of Messenger at Police Radio Shakha Basti and there was no complaint against him during the course of employment. He was falsely implicated in case Crime No. 388-A/06, u/s 307/435 IPC. Subsequently he was convicted in the said case. During the pendency of the said case he was suspended vide order dated 8.1.2006 and subsequently he was reinstated vide order dated 10.9.2008. By means of judgment dated 10.4.2009 passed in S.T. No. 185/2009, by the Additional District and Sessions Judge/Fast Track Court, Faizabad convicted u/s 307. IPC. After the judgment he was taken into custody and was in custody till 14.4.2009 and thereafter by the impugned order dated 27.10.2009 he was dismissed from service.

On behalf of learned Counsel for the petitioner it is submitted that the dismissal of the petitioner was a punitive action, therefore, in view of the provision of Article 311 of the Constitution of India an opportunity of hearing ought to have been given and only after enquiry he could have been dismissed from service.

Learned Counsel for the petitioner has placed reliance on the pronouncements of the Hon''ble Apex Court and this Court also in the cases of Union of India and Another Vs. Tulsiram Patel and Others, . Ram Pratap Singh v. State of U.P. and others, 2009 (121) FLR 896. Soda Nand Misra v. State of U.P. and another 2000 (18) LCD 88 and Shyam Narain Shukla and another v. State of U.P. and others passed in Writ Petition Nos. 3871 and 6759 of 1986 decided on July 28, 1988.

Learned Standing Counsel has argued that since the petitioner was in jail, therefore, his dismissal was in accordance with law and needs no interference.

It is submitted on behalf of learned Counsel for the petitioner that vide order dated 14.10.2009 passed in Criminal Appeal No. 971 of 2009 his sentence has been suspended and he was released on bail, therefore, the point of his conviction is sub-judice.

I have gone through the case law relied upon by the learned Counsel for the petitioner in para 62 of Tulsi Ram Patel''s case (supra), the Hon''ble Apex Court while considering Art. 311 of the Constitution of India has held as under:--

Before, however, any clause of the second proviso can come into play the condition laid down in it must be satisfied. The condition for the application of each of these clauses is different. In the case of Clause (a) a Government servant must be guilty of conduct deserving the penalty of dismissal, removal or reduction in rank which conduct has led to him being convicted on a criminal charge. In the case of Clause (b) the disciplinary authority must be satisfied that it is not reasonably practicable to hold an inquiry. In the case of Clause (c) the President or the Governor of a State, as the case may be, must be satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry. When these conditions can be said to be fulfilled will be discussed later while dealing separately with each of the three clauses. The paramount thing, however, to bear in mind is that 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. The extent to which a Government servant can be denied his right to an inquiry formed the subject-matter of considerable debate at the Bar and we, therefore, now turn to the question whether under the second proviso to Article 311(2) even though the inquiry is dispensed with, some opportunity at least should not be afforded to the Government servant to that he is not left wholly without protection.

In the case of Ram Pratap Singh (supra) this Court has held that dismissal of a Government servant on the ground of conviction in a criminal case the appointing authority has to go through his conduct including the evidence and finding of the criminal case and departmental enquiry has to be held to consider the conduct of such dehors conviction and punishment.

Similar view has been expressed by this Court in a case of Sadanand Mishra (supra) and also in the Division Bench judgment of this Court in the case of Shyam Narain Shukla and another (supra), in which Division Bench has 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 the quantum of punishment to be inflicted upon him. In the matter of consideration of the conduct and the quantum of punishment, the decision has to be taken by the appropriate authority independently of the employee, and the employee is not to be given an opportunity of hearing at that stage. It is an admitted fact that no enquiry was conducted in this case, therefore, in view of the aforementioned fact and legal situation the impugned order deserves to be quashed and is accordingly quashed. Consequently the petitioner shall be reinstated on the post forthwith and the opposite parties shall be free to proceed with the enquiry in accordance with law against him. So far as the question of his back wages is concerned it shall be subject to the outcome of final enquiry.

Accordingly, the writ petition is allowed.