M. Quddusi, J.
1. Thecontroversy involved in the present writ petition revolves round the question as to whether a Government servant can be dismissed or removed from service merely on the basis of his conviction from the Court of law in a criminal charge or it is the conduct of a Government servantwhich had led to his conviction on a criminal charge, is to be considered in taking action of dismissal, removal from the service or reduction in rank, more so when the conviction has been stayed in criminal appeal by the appellate court.
2. Necessary facts draped in brevity are that the petitioner was in the service of State Government and was posted as Senior Division Clerk under the control of Deputy Director General, N.C.C., U. P. Lucknow. A criminal case at Crime No. 747 of 1998 was registered against the petitioner and other person at police station Kotwall, Pratapgarh under Sections 147, 148, 149, 302, 304, 324, 397, I.P.C. and after committal of the case. Session Trial No. 63 of 1998 was instituted. The petitioner was convicted and sentenced for life imprisonment under Section 302/149, six months' R.I. under Section 147, six months' R.I. under Section 324/149, six months' R.I. under Section 323/149. I.P.C. Against the aforesaid conviction, the petitioner preferred an appeal in this Court and the order appealed against was stayed vide order dated 14.10.1988 in exercise of power conferred under Section 389, Cr. P.C. The petitioner was removed from service vide order dated 31.10.1985 passed by the Dy. Director General of N.C.C., U. P., Lucknow on the ground of conviction of the petitioner under Section 302/149, I.P.C. w.e.f. the date of receipt of order. The operative part of the order is quoted herein below :
'In view of your conviction of life imprisonment under Section 302/149, I.P.C. vide Judgment dated 8 February, 83 passed by Sri R. K. Agarwal IIIrd Addl. District and Sessions Judge, Pratapgarh, in Case No. 63 of 1980. State v. Bucchi and others, on criminal charge. I remove you from service of the Government of Uttar Pradesh with effect from the date of receipt of this order.
(N. N. Gupta)
Brigadier,
Dy. Director General N.C.C., U.P.
(Appointing Authority)'
3. Thereafter, he preferred a departmental appeal against the order of removal before the State Government but the same was rejected and he was communicated about the same by letter dated 20.9.1988 issued by the Directorate of N.C.C., UP. The petitioner moved several representations apprising the opposite parties that this Court in criminal appeal had stayed the operation of the order of conviction and he should be re-instated but his representations were rejected. Thereafter, the petitioner filed a writ petition in this Court being Writ Petition No. 2464 (S/S) of 1984 which was allowed. The impugned order dated 20.9.1988 communicating the petitioner that his departmental appeal has been dismissed by the State Government was set aside and the case was sent back to the State Government to decide the appeal filed by the petitioner against the removal order dated 31.10.1985 afresh with the observations that since on the date on which, the petitioner was removed from service, the operation or the judgment and order dated 8.2.1983 was not stayed, it was open for the appointing authority to decide the appeal filed by the petitioner against the order dated 31.10.1985 afresh in accordance with law and in the light of the observations made above. Thereafter, again when the State Government did not decide the appeal, he filed another Writ Petition No. 3312 (S/S) of 1994 which was decided vide order dated 7.7.1994 directing the State Government to decide the appeal in the light of the observations made in the judgment dated 3.12.1992 within a period of 6 weeks from the date of production of a certified copy of that order. Thereafter, the petitioner was communicated another letter dated 28.6.1994 by which he was informed that his appeal dated 12.12.1985 against the removal order dated 31.10.1985 has been carefully reconsidered by the State Government in the light of this Court's order dated 3.12.1992 and rejected. Feeling aggrieved the petitioner filed this writ petition.
4. Counter-affidavit, supplementary counter-affidavit have been filed by the Dy. Director, N.C.C., Directorate of N.C.C., U.P., Lucknow, inter-alia stating that this Court may examine the conduct of the petitioner which is of criminal nature and such an employee should not be retained in public service. In another paragraph again the same thing has been repeated by mentioning that the petitioner was rightly removed from service as he was of a criminal nature. In respect of the interim order passed in criminal appeal by this Court indicating that the stay order dated 14.2.1988 passed by this Court does not affect the conviction recorded by the lower court. In the supplementary counter-affidavit, it has been stated that if this Court desires to peruse the record of the State Government under which they have considered the appeal of the individual be called for from the U. P. Government because those facts which have been considered in that appeal, are not available to the deponent. This affidavit was sworn by the Deputy Director, PERS(C) Branch of N.C.C. Directorate, U. P. No counter-affidavit has been filed by any other officer of the State Government.
5. Now three questions emerge up before this Court which are as under :
1. Whether a Governmentservant can be removed, dismissed or reduced in rank only on the basis of conviction on a criminal charge or whether it is the conduct of the Government servant which had led to his conviction is to be considered and in case, his further retention in Government service is undesirable on the basis of his conduct which has led to his conviction, only then a removal or dismissal order can be passed.
2. Whether in the order, it is necessary to mention that due to conduct which had led to his conviction, he is liable to be removed or dismissed from service or not, or it issufficient to write that because he has been convicted from the criminal court, he is liable to be dismissed or removed from service.
3. Whether in exercise of powers conferred under Section 389, Cr. P.C. if operation of the conviction order appealed against has been stayed by the High Court, still it can be said that the conviction order and the stay order does not affect his conviction.
6. The provisions of Sections 374 as well as Section 389, Cr. P.C. are quoted below :
374. Appeals from Convictions.--(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court.--'
389. Suspension of sentence pending the appeal : release of appellant on bail.--(1) Pending any appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
(2) .....
(3) .....
7. Thus, pending appeal by a convicted person, the appellate court may for reasons to be recorded by it in writing order that execution of the sentence or order appealed against be suspended and also if he is in confinement, that he be released on bail, or on his own bond. From a perusal of sub-section (2) of Section 389, Cr. P.C. it is clear that the powers conferred by this Section on an appellate court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
8. Besides the above, it is not an unknown thing that under Section 482, Cr. P.C. the High Court can exercise inherent powers and it can pass orders as may be necessary to secure the ends of justice.
9. The petitioner was convicted and sentenced as indicated above in Sessions Trial against which he preferred an appeal and vide order dated 14.10.1988, operation of the order appealed against was stayed by this Court. The Division Bench while deciding the aforesaid petition by the judgment and order dated 3.12.1992 had held that when the order of conviction is passed by the trial court, an appeal together with an application for bail is filed. 'Bail or stay or realisation of fine' are the only interim reliefs which are usually claimed in a criminal appeal. It is only in few cases that application is filed for staying the operation of the judgment and order of conviction.
10. The 'conviction' and 'sentence' are two distinct connotations in a criminal trial. While conviction means that the accused has been found guilty of the offences, 'sentence' means punishment which the accused had to undergo for commuting the offence, When the appellate court passed interim order for bail, had completely suspended the same but does not stay the operation of the judgment and order of conviction. The appeal was preferred under Section 374, Cr. P.C. and the interim order was passed by the Court in exercise of powers conferred under Section 389(1) and (2). Cr. P.C. Three things have been provided in Section 389, Cr. P.C. firstly, the appellate court may order that the execution of sentence or order appealed against be suspended, secondly, that the order appealed against be uspended and thirdly that if the convicted person is in confinement, he be released on bail, or on his own bond.
11. A perusal of the aforesaidsecond provision makes it clear that the appellate court may order that the order appealed against be suspended mentioning thereby that the order holding a person guilty on criminal charges convicted and sentenced for a period or periods may be suspended by the order of appellate court and once the whole order is suspended, it cannot be said that the conviction may still be taken into consideration. It is the appellate court which has to consider whether the execution of sentence be suspended only or whether whole order appealed against be suspended. The third provision is added by using word 'and'. Order under any of the above two provisions may be passed as the word 'or' has been used in between the above two provisions. It meant that if the appellate court orders for suspension of the execution of sentence in that case, he will have to pass order releasing the convicted person on bail or on his own bond and if the appellate court orders the suspension of the order, the whole order appealed against is suspended and in that case, it will have to pass order releasing the convicted person on bail or on his own personal bond. It is also although a condition mentioned in the above noted provision that the Court should record reasons in writing while passing such order, but in case reason has not been recorded by the Court, the same can be scrutinised only if the aggrieved person files an appeal against the same. This Court cannot act as appellate court but the department or the authority concerned cannot deny to implement the orders suspending the Judgment and order by which the person has been convicted and sentenced merely on the ground that no reason has been recorded in writing while passing such order until that order is stayed by higher Court.
12. In view of the above, oncethis Court while exercising the Jurisdiction under Sections 389 or 482, Cr. P.C. stayed the operation of the order appealed against, i.e., convicting and sentencing the petitioner, the concerned authority/ officer is duty bound to follow thesame and it is not open for them to consider conviction/punishment of the petitioner till the stay order exists.
13. In so far as impugned order of removal from service of the petitioner is concerned, it is necessary to peruse the provisions of U. P. Civil Services (Classification Control and Appeal) Rules which is applicable in this matter inasmuch as provisions of Article 311 of the Constitution of India is also necessary to be quoted herein below :
Article 311(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.
Article 311(2).--No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry 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 is satisfied that for some reason, to be recorded by that authority in writing. It is not reasonablypracticable 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.
(3) If, in respect of any such person as aforesaid question whether it is reasonably practicable to hold such inquiry as if 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.
14. The relevant provision of the U. P. Civil Services (Classification, Control And Appeal) Rules is also quoted herein below :
Rule 49A (1A).--A Government servant in respect of or against whom an investigation inquiry or trial relating to a criminal charge is pending may, at the discretion of the appointing authority under whom he is in service, be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude.
2 (b).--With effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours is not forthwith dismissed or removed consequent to such conviction.
(3) Where a penalty of dismissal or removal from service imposed upon a Government is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions.
15. In view of the above provision, it is apparent that a person only because of the reason that he has been convicted by a criminal court, cannot be removed, dismissed or reduced in rank. The provisions of Article 311(2) apply toall except in case where a person is dismissed, or removed or reduced in rank on a criminal charge, meaning thereby that the provision of the aforesaid Article would not be applicable in the case where the authority considers the conduct of a Government servant which had led to his conviction on a criminal charge.
16. In the matter of Union of India v. Tulsi Ram Patel, (1985) 3 SCC 398. the Apex Court has held as under :
'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 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 penaly imposed can agitate in appeal, revision or review, as the case may be. that the penalty was too severe or excessive and notwarranted 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 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 offences 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 Das v. Union of India, this Court set aside the impugned order of penalty on the ground 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 ordered reinstatement. The Court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case.'
17. In view of the above mentioned facts and circumstances, it is now well-settled that a Government employee cannot be dismissed, removed or reduced in rank merely on the ground that he has been convicted by a Court of law. Thus, conviction alone is not enough to punish a Government employee, but it is the conduct of employee concerned which had led to his conviction on the basis of which a Government employee can be punished. Hence, it is necessary for the disciplinary authority to consider the conduct of convicted Government servant which had led to his conviction. In absence of the same, the order of punishment would be bad.
18. Earlier, the appeal of the petitioner was dismissed and when the petitioner moved a representation intimating the stay order of this Court staying operation of the conviction order mentioning therein that he be reinstated because of the reason that the operation of the Judgment having been stayed by this Court and the petitioner cannot he treated to have been convicted for the charges levelled against him and thereafter an order was passed on 28.2.1989 rejecting the plea as under :
'Your application has been examined. As you have been convicted under Section 302. I.P.C., your removal from service is attributable to your conduct. As such, stay order dated 14.10.1988 passed by Allahabad High Court does not affect the disciplinary action.'
19. It is noteworthy that theDivision Bench while deciding theearlier Writ Petition No. 2464 of 1991 vide order dated 3.12.1992. has observed that it was in the aboveorder that the petitioner's conduct isfound as it is stated that thepetitioner's removal from service wasattributable to his conduct. This is an order passed on a miscellaneousapplication of the petitioner forreinstatement on the ground thatoperation of the judgment by whichthe petitioner was convicted had beenstayed by this Court. This ordercannot be treated to be a substituteof the original punishment orderdated 31.10.85 passed by theappointing authority or the appellateorder passed by the StateGovernment which wascommunicated to the petitioner on20.9.1988.
20. From the perusal of the impugned punishment order, it cannot be said that the appointing authority had considered the conduct of the petitioner which had led to his conviction as there is no indication in the order that due to his conduct which had led to his conviction, his retention in public service is undesirable. The impugned order dated 31.10.1985 clearly speaks that in view of the conviction of lifeimprisonment imposed upon the petitioner, order of his removal from service has been passed.
21. After the decision made in the above mentioned writ petition, the State Government decided the appeal which was communicated vide order dated 18.6.1994 by the Dy. Secretary to Government of U. P. Education Department to the Deputy Director General. N.C.C., U. P., Lucknow. indicating that the Government has rejected the appeal of the petitioner after reconsidering the same and the petitioner be intimated accordingly. From this intimation also, it cannot be said that the stay order passed by this Court in the above mentioned criminal appeal was considered before passing the order rejecting the appeal.
22. In view of the above, in my opinion, it was necessary to write in the impugned order that due to the conduct of the petitioner which had led to his conviction, his further retention in the public service was undesirable. In the absence of such indication and due to merely mentioning the reason of his conviction, for passing the impugned order of removal, such an order of removal is bad in law.
23. Moreover, when the order of conviction and punishment appealed against was stayed by this Court in exercise of powers conferred under Section 389. Cr. P.C. as well as 482, Cr. P.C. the conviction order could not have been considered at all till the existence of the aforesaid stay order and hence the order passed in appeal is also illegal.
24. In view of what has been discussed above, this petition deserves to be allowed.
25. In the result, the writ petition is allowed. The impugned order dated 31.10.1985 removing the petitioner from service and the orders dated 20.9.1988. 18.6.1994 communicated to the petitioner vide letter dated 28.6.1994 passed in the departmental appeal are quashed. The petitioner shall be entitled to the consequential benefit of service. However, it will be open to the competent authority topass fresh appropriate orders in accordance with law.
26. There will be no order as to costs.