- (1.) Heard learned counsel for the parties.
(2.) The petitioner has filed this writ petition seeking a writ of mandamus commanding the opposite party no.2 to consider and decide the departmental appeal filed by him against the order of dismissal from service as also seeking reinstatement w.e.f. 01.08.2015 along with payment of salary until pending appeal is decided. The facts of the case in brief are that the petitioner was serving on the post of Sub Cashier in Sub-Treasury Mishrikh. An FIR was lodged against him and one Lalta Prasad Dwivedi Accountant on 09.10.2012 for embezzlement of a sum of Rs.23,10,380/-. The petitioner was placed under suspension and departmental enquiry was also initiated against him by issuing a charge sheet. In the enquiry the charges were found to be proved against him. The enquiry report was served upon him while he was in Jail. The petitioner sent his representation against the enquiry report on 05.11.2014. As the petitioner was in Jail, therefore, personal hearing could not be given to him, as such, the departmental enquiry remained pending. During the pendency of disciplinary proceedings, the petitioner was convicted under Section 409, 420, 467, 468 and 471 IPC by the Court of learned Additional Chief Judicial Magistrate, Sitapur vide judgment dated 09.06.2015. As the petitioner was a Government Servant, to whom the provisions contained in Article 311(2)(a) of the Constitution are applicable and even as per relevant Service Rules, namely, U.P. Government Servant (Discipline and Appeal) Rules, 1999 there was a provision for dismissal on the ground of conduct which has led to his conviction on a criminal charge, as such, the matter was proceeded accordingly and considering his conduct which led to his conviction on the criminal charges as aforesaid, the petitioner was dismissed from service vide order dated 26.06.2015.
(3.) Against the judgment dated 09.06.2015 convicting him under the aforesaid provisions of the Indian Penal Code and sentencing him to imprisonment upto seven years and a fine of Rs.3,00,000/-, the petitioner filed an appeal before the learned Sessions Judge, Sitapur being Criminal Appeal No. 57 of 2015 which was admitted on 20.06.2015 and the petitioner was released on bail vide orders dated 04.07.2015 passed in the aforesaid Criminal appeal. Thereafter the petitioner filed a departmental appeal on 27.07.2015 against the order of dismissal from service dated 26.06.2015. Subsequently on 01.08.2015 the petitioner filed an application under Section 389(1) of the Code of Criminal Procedure for suspending the sentence/conviction during pendency of the Criminal Appeal, whereupon an order was passed by the learned Sessions Judge, Sitapur on 01.08.2015 suspending the sentence/conviction under appeal till disposal of the Criminal Appeal. Based thereon, the petitioner filed an application for interim relief in the departmental appeal pending before the Commissioner, Lucknow Division, Lucknow with a prayer for suspending the dismissal order considering the stay of his conviction in the Criminal case at the appellate stage, which has not yet been considered. In these circumstances the petitioner has filed the instant writ petition for disposal of his appeal and his reinstatement in service with salary w.e.f. 01.08.2015 i.e. the date of stay of conviction by the Sessions Judge, Sitapur.;