Senapati Singh vs State of U.P. and Another

R.A. Sharma, J.—Petitioner was a police constable in U.P. Police. He, alongwith two others, was convicted, vide judgment dated 23-4-1990, u/s 302 I.P.C. and was sentenced to life imprisonment. All the three convicts including the Petitioner were further sentenced to two years R.I. for the offence u/s 201 I.P.C and one year R.I. for the offence u/s 498-A I.P.C. They were also convicted u/s 4 of Dowry Prohibition Act. Ail the sentences were directed to run concurrently. Against his conviction...the Petitioner has filed on appeal which is still pending After him conviction, the Petitioner has been removed from service Vide order dated 2-8-1990 in exercise of the power under Sub-Clause (a) of Second proviso to Article 311(2) of the Constitution of India, read with Government order dated 12-10-1979. It is against the above order that the Petitioner has filed this writ petition, in which validity of Government order dated 12-10-979 has also been challenged.

Learned Counsel for the Petitioner in support of the writ petition, has made only one submission; namely, that the Government cannot pass an order under Sub-Clause (a) of second proviso to ,Article 311(2) of the Constitution until the appeal filed by the Petitioner against his conviction, is decided, in as much as the words "conduct which has led to his conviction on a criminal charge" means the final conviction as decided by the appellate Court Learned Standing Counsel has disputed the above submission.

A member of a civil service of a State or who holds civil post under the State cannot be dismissed or removed or reduced in rank, except in accordance with the procedure prescribed by Clause (2) of Article 311 of the Constitution. Second Proviso to Clause (2), however, lays down that this Clause shall not apply to the contingencies contained in its Sub-Clauses (a), (b) and (c). Sub-clause (a) being relevant is reproduced below:

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;

The Government of U.P. vide order dated 12-10-1979 has laid down that after a Government servant has been convicted by the trial court he can be dismissed, removed or reduced In rank without waiting for the result of the appeal and if ultimately the appeal is allowed and the conviction is set-aside he is liable to be re-Instated with full bock wages.

It is true that appeal is a continuation of the original proceeding which has resulted in conviction, but as laid down by Supurme Court in the care of State of U.P. v. Mohammad Noor AIR 1958 SC 86, the relevant extract from which is reproduced below the original decree or the conviction neither stands suspended nor does it become inoperative after the appeal is filed, with the result that cider of conviction passed by the Sessions Court stands and remains a valid order on which action is liable to be taken by the Government:

But as pointed out by Sir Lawrance Jenkins in delivering the Judgment of the Privy Council in Juscarn Bold v. Pirthvichand Lal 45 Ind. App. 52 : ILR 45 Cal. 670 at pp. 678 and 679 : AIR 1918 PC 151 at pp. 152 153 (I), whatever be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision The filing of the appeal or revision nay put the decree or order in Jeopardy but until it is reversed or modified it remains effective.

In this connection reference may be made to a Division Bench decision of this Court in Redhey Govind Swarup v. Union of India 1984 AWC 295, relevant extract from which is reproduced below, wherein it has been laid down that an order under Sub-clause (a) of Second proviso to Clause (2) of Article 311 of the Constitution, can be passed after conviction of the Government servant by the Trial Court and daring pendency of the appeal, in as much as pendency of appeal against conviction, does not have the effect of suspending the conviction and by grant of bail merely the sentence is suspended:

It has been held by another Bench of this Court in Hari Mohan Shukla v. Basic Shiksha Parishad W.P. No. 5742 of 1983 decided on 27-10-83 that mere admission and pendency of appeal against conviction does not have the effect of suspending the conviction and grant of bail merely suspending the sentence Accordingly, under Clause (a) of the proviso to Article 311(2) of the Constitution the Government servant concerned can even during the pendancy of an appeal be dismissed without a regular departmental inquiry A similar view has been taken by the Punjab and Haryana High Court its Jarnail Singh v. Slate of Punjab 1980 (3) SLR 173.

To the same effect, is the law laid down by another Division Bench of this Court in case of Reghuveer Singh v. Superintendent of Post Offices 1984 U.P. SC 73, wherein dismissal of the employee under Central Civil Services (Classification, Control and Appeal) Rules, 1965, after his conviction by Trial Court but during pendency of appeal, was upheld The law is, thus, settled that a Government servant can be removed after his conviction by Trial Court and during pendency of appeal under Sub-Clause (a) of Second provision to Clause (2) of Article 311 of the constitution.

It. may also be mentioned that, as laid down by Supreme Court in Union of India v. Tulsiram Patel AIR 1985 SC 1415, relevant extract from which is reproduced before the Second privies to Clause (2) of Article 311 of the Constitution, has been enacted in public interest and as a matter of public policy, and it is in the public interest that the Government servant, who has been convicted on serious charge, should not be retained in service:

The conclusion which flows from the express language of the second proviso is inevitable and there is no escape from it. It may appear harsh but, as mentioned earlier, the second proviso has been inserted in the Constitution as a matter of public policy and in public Interest and for public good just as the pleasure doctrine and the safeguards for a Government servant provided in clauses (1) and (2) of Article 311 have been it is in public interest and for public good that a Government servant who has been convicted of a grave and serious offence or one rendering him unfit to continue in office should be summarily dismissed or removed from service instead of being allowed to continue in it at public expense and to public detriment.

x x x x x x x x

Much as this may seem harsh and oppressive to a Government servant, this Court must not forget that the object underlying the second proviso Is public policy, public interest and public good and the Court must; therefore, repeal the temptation to be carried away by feelings of commiseration and sympathy for those Government servants who have been dismissed, removed or reduced in rank by applying the second proviso, sympathy and commiseration cannot, be allowed to outweigh considerations of public policy, concern for public interest, regard for public good and the peremptory dictate of a Constitutional prohibition.

Unless action is taken under the above provision immediately after his conviction by the Trail Court on a criminal charge the very purpose of the proviso will be frustrated, in as much as it normally takes years and years before the appeal is decided in High Court and thereafter by Supreme Court and during all this period the Government servant will continue to be in service and will be entitled to all his remunerations and if under suspension the subsistence allowance which after some time, may be equal to 3/4th of his salary. Ail this amount will be paid at the public expense by which neither public interest nor public good will be benefited. On the other hand, if the Government servant is removed from service, immediately after his conviction by the Trial Court, in exercise of power under Sub--Clause (a) of Second proviso to Article 311(2) of the Constitution, and if the appeal is ultimately allowed he will be entitled to be reinstated with full back wages and he will thus, not suffer any irreparable loss. But if he is allowed to remain in service and continue to draw salary or subsistence allowance as the case may be, and ultimately his appeal is dismissed, the amount so paid to him may not, in many cases, be recovered from him. This will be a great border on she public exchequer That apart, by his continuance in service inspite of his conviction on a criminal charge public interest and public order may suffer irreparable loss. The conviction recorded by the trial court is as good a conviction as the one recorded by the appellate Court and it is fully operative. Once a conviction is thus rendered the State is entitled to act under Sub-Clause (a) of the Second proviso to Article 311(2) of the Constitution. The Government Order dated 12-10-1979 has merely explained the position which was implicit in the above provision. No exception can be taken to the impugned order as well as the Government Order dated 12-10-1979, referred to above. The order of conviction, passed against the Petitioner, was fully operative and it was open to the Government to take action under Sub-clause (a) of Second proviso to Clause (2) of Article 311 of the Constitution.

The following cases, which have been relied upon by the learned Counsel for Petitioner, in support of his submission, do not lend support to the case of the Petitioner excepting the decision of Rajasthan High Court in the case of Trilochan Singh v. State of Rajasthan 1983 SLR (32) 456:

(a) R.S. Das v. Divisional Superintendent AIR 1960 Alld. 538.

(b) Kunwar Bahadur v. Union of India AIR 1969 Alld. 414 (F.B.)

(c) Trilochan Singh v. State of Rajasthan 1983 (32) SLR 456.

(d) Vidya Charan Shukla Vs. Purshottam Lal Kaushik, .

In R.S. Das Vs. Divisional Superintendent, Allahabad, the Petitioner therein was convicted on 18-12-956, against which he filed an appeal during pendency of which he was dismissed from service. Thereafter his appeal was allowed. After his appeal was allowed he applied for re-instatement which request was refused. He accordingly filed the writ petition praying for quashing the order refusing to reinstate him after his appeal was allowed. On the above facts the question which came up for decision before this Court, as mentioned in para 2 of that judgment was "whether the case of the two Petitioners, even though they were ultimately acquitted in appeal, is covered by Clause (a) of proviso under Clause (2) of Article 311 of the Constitution." Learned Single Judge of this Court held that as the appeal is continuation of the original proceeding and after the appeal was allowed, it cannot be said that the Petitioner therein has been convicted on a criminal charge, with the result that there remains no order of conviction to sustain order of removal and the Petitioner, as such, is entitled to be reinstated-In Special appeal filed against the above judgment of learned Single Judge a Division Bench of this Court, the decision of which is Divisional Superintendent v. Ram Saran Das AIR 1961 Alld. 336, has also laid down that conviction on a criminal charge under Sub-Clause (a) of Second proviso to Article 311(2) of the Constitution means a criminal charge which has finally resulted in conviction i.e. the conviction by the last court and not by Trial Court alone, in as much as proceedings in the appellate court are continuation of the pro proceedings in the Trial Court. On that basis it was held that once the order of conviction, recorded by the Trial Court is set-aside by higher Court there remains no conviction in the eye of law, with the result that entire basis on which order of removal was passed, stands removed. Relevant extract from that judgment is reproduced below:

The punitive action taken against the civil servant was based solely on the order of conviction, and the removal of the order of conviction has the effect of removing the entire basis of such an order. Once, therefore, the order of conviction falls, the very foundation on which the order of dismissal was based disappears and the order of dismissal, removal or reduction in rank must fall with it.

Similar question came up for consideration in case of Kunwar Bahadur Vs. Union of India (UOI) and Others, in that case the Appellant therein was convicted on 17-3-1956 and on 21-3-1936 he was removed from service in exorcise of power conferred on Government under Sub-Clause (a) of proviso to Clause (2) of Article 311 of the Constitution. The appeal which he file a against the order of conviction was, however, allowed on 9-4-1957 Thereafter he filed a suit in Civil Court for declaration that the order of his removal from service is void end for other necessary reliefs in connection therewith The suit having been dismissed he filed appeal before this Court. The question which came up for consideration before full Bench of this Court was whether word ''conviction'' in Sub-Clause (a) of the proviso means conviction by Trial Court alone of the conviction by the last Court. In other words, the question was whether the Government is emitted to maintain its order passed after the conviction by the Trial Court under Sub-Clause (a) of the proviso, even if the appellate court has allowed the appeal and set-aside the conviction. This Court held that after the conviction has been set-aside in appeal, the Government cannot claim benefit of Sub-Clause (a) of proviso to Clause (2) of Article 311 of the Constitution While laying down as above, this Court rejected the State''s argument relating to inconvenience and delay by holding that it is for the Government to decide whether to pass an order under Sub-Clause (a) of proviso to Article 311(2), immediately after the conviction is recorded by the Trial Court or after the appeal or revision is decided but if the action is taken immediately after the conviction by the Trial Court and the appeal is ultimately allowed the employee is liable to be reinstated. In this connection relevant extract of the Judgment of Hon''ble Oak, J. as contained in para 19 of the judgment is reproduced below:

Mr. N.D. Pant urged that if the interpretation suggested by Mr. M.P. Singh is accepted, there would be inordinate delay in the disposal of departmental proceedings. In every case Government will have to wait for the result of an appeal or revision. Now, it is always open to Government to pass an order of dismissal or removal from service immediately after a Criminal Court records conviction. In that case the administration runs the risk of the conviction being later set aside in appeal or revision. It is for the administration to decide whether in a particular case it should pass an order of dismissal or removal immediately after conviction by the Trial Court or wait for the result of a possible appeal or revision. Such considerations of expediency can have little bearing on the interpretation of Article 311 of the Constitution.

Hon''ble Dwivedi, J. was also of the similar view, Relevant extract from his Lordship''s Judgment is as follows:

Sri Pant strenuously pressed upon us that our view will delay the employee''s day of Judgment until the appeal or revision against his conviction has been decided. I am not quite certain that it is the inevitable result of our view. But that aside, the argument is familiar old argument of administrative convenience it was laid to rest about two decades ago by Lord Atkin with this eloquent opitaph. Convenience and justice are often not on speaking term. General Medical Council v. Spackman 1943 AC 527 So no more be said of it.

Hon''ble Gangeshwar Prasad, J. while agreeing with the other two Hon''ble Judges, laid down as under:

So long as a conviction remains liable to be set aside it cannot be said to be determinate in its nature and its legal consequences, whether the conviction is already in question before a superior court or not. The state of things created thereby is liable to change and, naturally, an order of dismissal which seeks to justify its non-compliance with the requirement of Article 311(2) on the basis of such a conviction stands upon an insecure foundation. The order cannot have a higher validity than the conviction from which it derives its precarious justification and it must remain subject to the ultimate shape which is given to the state of things by the order of the superior court before which the conviction is challenged. If the convict-Ion is set aside, the state of things is made to undergo a change not merely from the date of the setting aside of the conviction but from the date of the conviction itself.

X X X X X

If it is found that the conviction was subsequently set aside, it must, in my opinion, be held that at no point of time was the person concerned a person whose conduct, on the ground on which he was dismissed from service, had led to his conviction.

The decision of Supreme Court in the case of Vidya Charan Shukla Vs. Purshottam Lal Kaushik, relates to the provisions of the Representation of Peoples Act. In that case the nomination of a candidate, inspite of his conviction by Trial Court, was accepted, but before Election petition could be decided by the High Court his appeal against the conviction was allowed. The Supreme Court has laid down as under:

The acquittal of the Appellant herein by the appellate court, during the pendency of the election petition must be held to have completely and effectively wiped out the disqualification of the Appellant with retrospective effect from the date of the conviction, so that in the eye of law it existed neither at the date of scrutiny of nominations, nor at the date of the ''election'' or at any other stage of the process of being chosen.

In short, the acquittal of the Appellant before the decision of the election-petition pending in the High Court, had with retrospective effect, made his disqualification non-existent, even at the day of the scrutiny of nomination.

In case the contention of learned Counsel to the effect that unless the appeal or revision against the conviction, is decided the person concerned cannot be said to have been convicted, is accepted, it will result in precarious position, in as much as inspite of his conviction his nomination cannot be rejected under Representation of Peoples Act till the matter Is finally decided by the High Court and Supreme Court, which may take several years.

The decision of the learned Single Judge of Rajasthan High Court in the case of Trilochan Singh (supra) however, support the contention of learned Counsel for the Petitioner, in as much as it has been laid down therein that the above provisions can be invoked against the Government servant only in those cases where the conviction has become final and that provision would not be attracted In case where the conviction is under challenge in appeal and the appeal is still pending However, in view of the decisions of Division Beeches of this Court in Radhey Govind Swarup v. Union of India 1984 AWC 295 (supra) and Raghuveer Singh v. Superintendent of Post Offices 1984 U.P. SC 73 (supra), as well as decision of Full Bench of this Court in Kunwar Bahadur v. Union of India AIR 1969 Alld. 414 (supra), it is not possible to agree with the views expressed by Rajasithan High Court.

13 For the reasons given above the writ petition lacks merit and is dismissed. In view of the facts and circumstances of the case there shall be no order as to costs,