- (1.) PANKAJ Mithal, J. The petitioner was appointed on the post of Lekhpal on 14-5-1970 and was confirmed vide order dated 8- 2-1980 w. e. f. 28-11-1976. The petitioner in the year 1985 was charged under Section 5 (2) of the Prevention of Corruption Act read with Section 161 I. P. C. and a criminal case was registered against him as Special Trial No. 1/1986. On account of the above criminal charge, the petitioner was placed under suspension on 19-9-1985. The petitioner was convicted in the Trial vide judgment and order dated 21-1- 1989 and was awarded punishment of two years of rigorous imprisonment under Section 5 (2) of the Prevention of Corruption Act and Section 161 I. P. C. and imprisonment of one year under Section 162 I. P. C. The petitioner preferred Criminal Appeal No. 252 of 1989 in the High Court against his conviction. During the pendency of the Criminal Appeal in the High Court, the petitioner was dismissed from service vide order dated 3-12-1993 solely on the ground of his conviction without holding any disciplinary enquiry regarding his conduct whatsoever. Finally, petitioner's criminal appeal was allowed by the High Court vide judgment and order dated 23-4-2003 and his conviction was set aside. On his acquittal from the criminal case, the petitioner vide application dated 19-5-2003 applied for his reinstatement in service. This application was rejected by the Appointing Authority vide order dated 3-6-2003. Thus, the petitioner has filed the present writ petition challenging the order dated 3-6-2003 by which his application for his reinstatement has been rejected and also the order of his dismissal from service dated 3-12-2003. The petitioner has further prayed that he may be directed to be reinstated in service with all consequential benefits.
(2.) SHRI Vikas Budhwar, learned Counsel for the petitioner has argued that as the petitioner was dismissed from service only on account of his conviction in the criminal case, therefore, he is entitle for reinstatement on his acquittal by the High Court. Therefore, the respondent No. 3 has committed manifest error of law in rejecting his application for reinstatement. The order rejecting his application for reinstatement is unreasoned and is non-speaking in nature and, therefore, also stands vitiated under law. He has further submitted that the dismissal of the petitioner from service vide order dated 3-12- 1993 was also illegal as no disciplinary enquiry was conducted against him before passing the same even though the disciplinary enquiry does not stand excluded where the dismissal is based merely on conviction recorded by the Criminal Court. In support of his above arguments, he has placed reliance upon the two decisions of this Court State of U. P. through Director N. C. C. v. SHRI Sadanand Mishra & Anr. , 1984 (2) LCD 294 and Constable Firoj Khan v. Inspector General of Police, Bareilly & Ors. , 2001 (1) LBESR 480 (All) : 2000 (4) ESC 2475 (Alld. ). On the other hand, learned Standing Counsel has contended that the petitioner was dismissed from service on 3-12-1993 and, therefore, he cannot challenge the said order by filing writ petition in the year 2003 at such a belated stage. The petitioner cannot get limitation to challenge the said order merely on the basis of the subsequent order dated 3-6-2003 by which his application for reinstatement has been rejected. The petitioner's application for reinstatement has rightly been rejected as the order dismissing him from service was final and has not been set aside or cancelled by any competent Court or authority. As far as the preliminary objection that the petition is barred by laches and the petitioner cannot be permitted to challenge the order of dismissal dated 3-12-1993 by filing a writ petition in the year 2003. I am of the opinion that the aforesaid preliminary objection is totally devoid of merits and is not tenable under law. The right to claim reinstatement in service had accrued to the petitioner for the first time when his criminal appeal was allowed by the High Court vide judgment and order dated 23-4-2003 and the order of his conviction was set aside. The petitioner had immediately applied for his reinstatement vide application dated 19-5-2003 as soon as the cause of his dismissal from service stood vanished. Thus, there is no delay, negligence or laches on the part of the petitioner in approaching the Hon'ble Court in exercise of writ jurisdiction. Now the core issue involved herein is as to whether a delinquent employee who has been dismissed from service without facing any disciplinary inquiry only on the ground of conviction recorded against him by the criminal Court is entitled to automatic reinstatement when the conviction is set aside in appeal or otherwise.
(3.) ARTICLE 311 of the Constitution of India provides that no person in civil service of the Union or State shall be dismissed or removed from service by an authority subordinate to the appointing authority and further no such person be dismissed, removed or reduced in rank without holding an enquiry and affording a reasonable opportunity of being heard. However, proviso to ARTICLE 311 (2) provides that no opportunity of hearing as required under ARTICLE 311 (2) shall be necessary where a person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge or where the authority is satisfied for the reasons to be recorded in writing that it is not practicable to hold an inquiry or where the President or the Governor is satisfied in the interest of security of the State it is not expedient to hold such an inquiry. ARTICLE 311 of the Constitution of India reads as under: "dismissal, removal or deduction in rank of persons employed in civil capacities under the Union or a State.- (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. [ (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges [ x x x] [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 had 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 reasonably practicable 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, a question arises whether it is reasonably practicable to hold such inquiry as is 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. ]" The Hon'ble Apex Court in the case of Captain P. Paul Anthoney v. Bharat Gold Mines & Anr. , JT 1999 (2) SC 456, has held that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. The basis of this proposition is that the proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. In the departmental proceedings, where the charge relating to misconduct is being investigated, the factors operating in the mind of disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent employee. The standard of proof required in departmental proceedings is also different then required in a criminal case. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence and the proceedings are virtually common without there being any variance.;