R.A. Sharma, J. - (1.) PETITIONER , who was a constable in U.P. Police, was convicted and sentenced to life imprisonment for offences Under Sections 302/147/148/149/307 and 323 of the Indian Penal Code in 1979 by the trial court. Against his conviction, the Petitioner has filed an appeal before this Court, which is still pending. While entertaining the appeal, this court granted the following interim order on 22.6.1979 suspending the sentence: Execution of sentence awarded to the Appellants shall remain suspended during the pendency of this appeal and they shall be released on bail on their furnishing security to the satisfaction of the Chief Judicial Magistrate, Mlrzapur. Earlier in 1976, Petitioner was suspended and after his conviction he was dismissed from service on 29.1.1991. Being aggrieved by it, he has filed this writ petition.
(2.) UNDER Clause (a) of second proviso to Article 311(2) of the Constitution, no reasonable opportunity of being heard is required to be given to a Government servant, who is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, because in such a case, Clause (2) of Article 311 which provides for such an opportunity, is not applicable. Following decision of Supreme Court in Union of India v. Tulsl Ram Patel. : AIR 1985 SC 1416, a. Division Bench of this Court in Shyam Narain Shukla v. State of U.P., 1989 (2) UPLBEC 418, has held that a Government servant who has been convicted by a criminal court cannot be dismissed from service merely on the ground of conviction, but the appropriate authority has to consider the conduct of such an employee, which has led to his conviction on a criminal charge. Similar view was taken by a Division Bench in Writ Petition No. 1701 of 1985, Jamuna Prasad Shukla v. State of U.P. Learned single Judge was, however, of the view that conviction Under Section 302, I.P.C. Is so serious that no further consideration is required and mere conviction is sufficient to dismiss a Government servant. Relevant passage from the judgment of learned single Judge is as Under: However, where a conviction is Under Section 302, I.P.C. this itself is so serious that no further consideration Is required and, in my opinion, a person who is convicted Under Section 302, I.P.C. cannot get reinstatement until the conviction Is set aside In appeal. A case under Section 302, I.P.C. is so serious that no further consideration is required and the mere conviction is enough. Learned Judge, therefore, held that two decisions of Division Bench in Shyam Narain Shukla v. State of U. P. and Jamuna Prasad Shukla v. State of U.P. referred to above, require reconsideration. Learned Judge, accordingly referred the following matter for decision by a larger Bench: "In view of the above, I am of the opinion that the decision in Writ Petition No. 1701 of 1985 as well as Writ Petition Nos. 3871 and 6759 of 1986 reported in, 1989 (2) UPLBEC 418 require reconsideration. The impact of Rule 8 of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 as well as paragraph 492 of the U.P. Police Regulations needs also to be considered. Let the papers of this case be laid before the Hon'ble Chief Justice for constituting a larger Bench." We have heard learned Counsel for the parties.
(3.) IN view of the provisions of Clause (2) of Article 311 of Constitution of India, no Government servant can be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges levelled against him and given reasonable opportunity of being heard in respect of those charges. This clause, however, is not applicable to three types of cases mentioned in second proviso to Clause (2), with the result that no opportunity is required to be given to the Government servant if his case falls within those three exceptions mentioned in second proviso. Clause (a) of second proviso, which is relevant for this case, is as Under: 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 What is relevant in the above proviso is the conduct of the employee which has led to his conviction on a criminal charge and not the mere conviction. Government servant as such cannot be dismissed under Clause (a) of second proviso merely on the ground of his conviction on a criminal charge, Supreme Court in Union of India v. Tulsi Ram Patel : AIR 1985 SC 1416 (supra) has, in this connection, laid down as under: Not much remains to be said about Clause (a) of the second proviso to Article 311(2). To recapitulate brief, 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 Challapparis case : AIR 1975 SC 2216. 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. In paragraph 62 of the same judgment, the Supreme Court observed as under: in the case of Clause (a) a Government servant must be guilty of conduct deserving the penalty of dismissal, removal or reduction in rank which conduct has led to him being convicted on a criminal charge. The paramount thing, however, to bear in mind is that the second proviso will apply only where the conduct of a Government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. Therefore, before denying a Government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned Government servant is such as Justifies the penalty of dismissal, removal or reduction in rank. Following the above decisions of Supreme Court, a Division Bench of this Court in Shyam Narain Shukla v. State of U.P., 1989 (2) UPLBEC 418, (supra) has held that a Government servant, who has been convicted, cannot be dismissed from service merely on the ground of conviction, but the authorities have to consider his conduct, which has led to his conviction on a criminal charge. Same was the view taken in another Writ Petition No. 1701 of 1985, Jamuna Prasad Shukla v. State of U.P. (supra). The orders of dismissal in those cases were quashed by this Court on the ground that they were passed only on the basis of conviction of the Petitioners and not on the basis of the conduct which has led to their conviction on the criminal charge. However, the decision of this Court in Writ Petition No. 1701 of 1985, on other issues regarding holding of full fledged disciplinary inquiry and giving of opportunity of being heard to the Petitioner therein before passing the order of dismissal under Clause (a) of the second proviso to Article 311(2) of the Constitution, was declared by this Court in the aforesaid case of Shyam Narain Shukla v. State of U.P. (supra), as not binding and enforceable in view of decision of Supreme Court in Tulsi Ram Patel's case (supra).;