Sudhir Agarwal, J. - (1.) HEARD Sri S.M.H. Zaidi, learned counsel for the petitioner and learned Standing Counsel for the respondents. It is contended that the impugned order dated 28.4.2011 passed by Senior Superintendent of Police, Aligarh, confirmed in appeal and revision vide orders dated 28.1.2012 and 11.9.2012, has been passed without holding any inquiry and merely relying on conviction of petitioner in Session Trial No. 808 of 2007, though in appeal preferred by petitioner before this Court, being Criminal Appeal No. 2064 of 2011, the conviction has been stayed, therefore, no punishment ought to have been imposed upon petitioner till appeal is pending before this Court.
(2.) THIS issue is squarely covered by the judgment of this Court in Brahma Dev v. Life Insurance Corporation of India, : 2006 (3) ALJ 710 and 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 Education (Administration), Madras v. S. Nagoor Meera, : AIR 1995 SC 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 the 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 v. 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 because 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 pronouncement, 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. (emphasis added) It is next contended that the impugned order is founded on mere conviction and the conduct led to conviction so as to justify maximum punishment of dismissal has not been considered by competent authority. In a mechanical manner on the basis of mere conviction it has imposed maximum penalty of dismissal upon petitioner.
(3.) THE question as to whether the order must disclose application of mind on the part of the disciplinary authority that it has considered the question of conduct led to conviction of the Government servant before passing punishment order is no more res integra.;