Court No. - 28 Case :- WRIT - A No. - 70001 of 2009 Petitioner :- Mahendra Kumar Gaud Respondent :- State Of U.P. & Another Petitioner Counsel :- Suresh Singh Respondent Counsel :- C. S. C. Hon'ble Sudhir Agarwal,J.
The only argument advanced in this petition is that the petitioner
was dismissed on 7.9.2001 pursuant to his conviction in a criminal
case under Section 302/201 IPC, in crime no.449/2000 decided on
29.9.01 whereagainst the petitioner filed an appeal, wherein
sentence has been stayed by this court vide order dated 23.10.2009
in criminal appeal no.3604 of 2001 and therefore, the authorities
ought to have reconsidered the dismissal in view of the above
order of conviction.
This issue is squarely covered by the judgment of this Court in
Brahma Dev Vs., Life Insurance Corporation of India, 2006(3)
ALJ, 710. In that case not only the sentence but even the order of
conviction was stayed in appeal and effect thereof was considered.
It would be useful to reproduce paragraphs 11 to 16 of the said
judgment as under:-
“11.Now coming to question no.1, in my view the power under
regulation 39(4) can be exercised even if the order of conviction
and sentence passed by the criminal court is stayed in appeal. A
perusal of regulation 39 (4) shows that the factum of conviction on
a criminal charge is sufficient to empower the Disciplinary
Authority to consider the circumstances of the case and pass such
orders as it may deem fit. Whether the order of conviction is
operating or not or whether it is executable or not is of not much
relevance for exercise of power under Regulation 39(4) of the
Regulations of 1956.
12 A similar question came up for consideration before the Apex
Court in the case of Deputy Director of Collegiate Eduction
( Administration), Madras Vs, S.Nagoor Meera, AIR 1995
Supreme Court, 1364. The Apex Court considered the pari materia
provisions contained in Article 311(2), second proviso, clause (a)
of the Constitution of India and said that what is relevant for
exercise of power thereunder is the conduct which has led to
conviction in criminal charge and not the conviction itself. There
is no question of suspending the conduct of an employee when he
has been convicted and in any appeal, the same is stayed. Since
the Disciplinary Authority has to exercise power considering the
conduct of the employee, which has led to his conviction on a
criminal charge and since conduct is not stayed, therefor, even if
the conviction has been stayed in appeal, the power can be
exercised by the Disciplinary Authority on the basis of the conduct
which has led to conviction on criminal charge.
13. The relevant observations of the Apex Court as contained in
para 8 are reproduced as under:
” We need not, however, concern ourselves any more with the
power of the appellate court under the Code of Criminal
Procedure for the reason that what is relevant for clause (a) of the
second proviso to Article 311(2) is the “conduct which has laid to
his conviction on a criminal charge” and there can be no question
of suspending the conduct. We are, therefore, of the opinion that
taking proceedings for and passing orders of dismissal, removal
or reduction in rank of a government servant who has been
convicted by a criminal court is not barred merely because the
sentence or order is suspended by the appellate court or on the
ground that the said government servant-accused has been
released on bail pending the appeal.”
14. It has also been held by the Apex Court in the same judgment
that in cases where an employee is convicted on a criminal
charge, the, appropriate course would be in all such cases to take
action and not to wait for the result of the appeal or revision as
the case may be. It is always open to the authorities to revise its
order and reinstate the Government Servant with all tghe benefit if
in appeal or other proceedings the Government Servant accused is
acquitted.
15.Similar view has been taken by a Division Bench of this Court
in the case of Mohal Lal Vs. State of U.P., 1998 (78) FLR 987:
(1998 All LJ 987) and relying on Nagoor Meera Case: ( AIR 1995
SC 1364) ( supra) this Court in para 7 held as under:-
” Taking proceedings for and passing orders of dismissal, removal
or reduction in rank of a Government servant who has been
convicted by a criminal court is not barred merely becaue the
sentence and order is suspended by the Appellate Court or on the
ground that the said ( Government servant-accused has been
released on bail pending the appeal. In view of this authoritative
prouncement, the order dismissing the appellant from service
cannot be set aside on the ground that the operation of the
judgment by which the appellant had been convicted under Section
304, Part -I IPC has been stayed in the Criminal Appeal preferred
by him.”
16. In the circumstances, it cannot be held that the respondents
could not have taken recourse to regulation 39(4) of regulation of
1956 considering the conduct led to conviction of a criminal
charge. The submission of the learned counsel for the petitioner,
therefore, is rejected.”
Since the case is squarely covered by the law laid down by the
aforesaid judgment, I find no merit in this submission.
No other point has been argued.
The writ petition is dismissed being devoid of merits.
Order Date :- 20.7.2010
SM