Amanat, P.O. Dholbajja, P.S. Rupauli, District Purnea v. The State Of Bihar through the Chief Secretary, Govt. of Bihar, Patna Direc
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.565 of 2013 ================================================== Jawahar Prasad Yadav, son of late Deoki Prasad Yadav, resident of village Vijay Amanat, P.O. Dholbajja, P.S. Rupauli, District Purnea .... .... Petitioner Versus The State Of Bihar through the Chief Secretary, Govt. of Bihar, Patna Director General of Police, Bihar, Patna D.I.G. of Police, Purnea Range, Purnea Superintendent of Police, Katihar 1. 2. 3. 4. .... .... Respondents ================================================== Appearance : For the Petitioner/s:Mr. Ram Hriday Prasad,Adv For the Respondent/s:Mr. Kumari Amrita GP10 =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2/ 11-01-2013 Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows: “To set aside the order of dismissal dated 18.11.2010 (Annexure 3) passed by the Superintendent of Police, Katihar and order of D.I.G. of Police, Purnea Range, Purnea dated 9.5.2011 (Annexure 4) by which appeal of petitioner has been rejected and order of Director General of Police dated 18.9.2012 (Annexure 6) by which memorial of petitioner has been rejected and for grant of all consequential benefits.” 3. Learned counsel for the petitioner assailing the aforementioned order has submitted that the authorities have failed to consider that Jawahar Prasad Yadav, Sadhu Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 2 Sharan Yadav @ Sadhu Yadav are the same person and in fact the name of Sadhu Sharan Yadav or Sadhu Yadav are only alias name of the petitioner. In support of this fact he has annexed affidavit of his mother Mostt. Reshma Devi dated 18.3.2010 and 20.3.2010. Similarly he has also laid stress that his father also, namely, Deoki Prasad Yadav had an alias name of Patwari Yadav and for this purpose he has referred to and relied on the certificate of the Mukhiya and Sarpanch. 4. On the basis of these submissions learned counsel for the petitioner has tried to build up the case of the petitioner by projecting a picture that the petitioner not given any false declaration either with regard to his own name or parentage or even with regard to the criminal case in which actually conviction was recorded on 10.8.2000 by the trial court. In this regard he has also referred to the order dated 17.8.2000 passed by this Court in Cr.Appeal No. 369 of 2000 granting him bail during the pendency of the criminal appeal. 5. Learned Counsel for the State on the other hand has submitting that the impugned orders of punishment pursuant to a Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 3 departmental proceeding should not be interfered with specially when the charge against the petitioner of obtaining his appointment on the fraudulent misrepresentation that he was having no criminal antecedent had been found to have been proved. She has also explained that the petitioner even otherwise could not have been retained in service after being convicted for offence under Section 302 IPC and sentenced to imprisonment for life. 6. In the considered opinion of this Court there is no procedural flow in the departmental proceeding conducted against the petitioner. The Enquiry Officer infact has gone into the whole aspect in a very elaborate manner and from a bare perusal of his enquiry report it would transpire that not only the petitioner was given adequate opportunity in course of departmental proceeding but the petitioner had also cross-examined the witnesses produced by the Police Department. The Department had examined as many as six witnesses and had also allowed the petitioner to lead evidence in defence. 7. In the departmental proceeding, the following charge was framed against the
Legal Reasoning
Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 4 petitioner: ^^ flikgh@ 727 tokgj izln ;kno ds fo:n~/k lafnX/k vkpj.k] vijk/kh izo‘fr ds O;fDr gksus ,oa voS/k :i ls QthZ x‘g j{kd izek.k i= ds vk/kkj ij flikgh in ij fu;qDr gksus dk vkjksi esa pyk;k x;k gS fd & budh lsok iqfLrdk esa vafdr LFkkbZ irk dk lR;kiu djus ij budh eka js’kek nsoh tksts Lo0 iVokjh ;kno ,oa LFkkuh; xzkeh.k dze’k% 1- Bkdqj feL=h is0 n’kZu feL=h 2- eukst tk;loky …iapk;r lfefr‰ is0 lhrkjke tk;loky 3- eaVw eaMy is0 Lo0 cPph eaMy }kjk crk;k x;k fd xzke fot; vekur esa tokgj izlkn ;kno is0 nsoh izlkn ;kno dk uke dksbZ O;fDr ugha gS vkSj u gh bl uke ds fdlh O;fDr dks ;s yksx tkurs gSA vkjksfir dh eka js’kek nsoh tkSts Lo0 iVokjh ;kno }kjk crk;k x;k fd mUgsa nks i= dze’k% 1- jke/ku ;kno ,oa 2- lk/kq ;kno gSa jke/ku ;kno [ksrh djrs gSa nks rFkk lk/kq ;kno fcgkj iqfyl esa dbZ o"kksZa ls ukSdjh djrs gSA izFke iq= jke/ku ;kno dks nks yM+dk dze’k% 1- fldUnj ;kno ,oa 2- j.kthr dqekj gS] ftlesa fldUnj ;kno ch0 ,e0 ih0 esa ukSdjh djrs gSa bl laca/k esa ifjpkjh izoj] iqfyl dsUnz dfVgkj }kjk Kkikad 497@j0 dk0 fnukad 31-01-10 ds ek/;e ls lefiZr tkap izfronsu ls ;g rF; Li"V gqvk gS fd lk/kq ’kj.k mQZ lk/kq ;kno is0 iVokjh ;kno lk0 fot; vekur Fkkuk :ikSyh …eksguiqj‰ ftyk iwf.kZ;k ftUgsa iwf.kZ;ka ftyk :ikSyh …eksguiqj‰ Fkkuk dkaM la[;k 36@94 fnukad 28-03-94 /kkjk 302@34 Hkk0 n0 fo0 esa vkjksi i= la[;k 49@94 fnukad 30-04-94 /kkjk 302@34 Hkk0 n0 fo0 lefiZr fd;k x;k gS rFkk l=okn la[;k 283@95 esa fnukad 10-08-2000 dks "k"V~e vij ftyk ,oa l= U;k;k/kh’k] iwf.kZ;ka }kjk vkthou dkjkokl dh ltk Hkh lquokbZ xbZ gSA vkjksfir viuk uke cny dj tokgj izlkn ;kno is0 nsodh izlkn ;kno lk0 fot; vekur Fkkuk :ikSyh …eksguiqj‰ ftyk iwf.kZ;ka ds QthZ x‘gj{kd izek.k i= ds vk/kkj ij o"kZ 2000 eas fd’kuxat ftyk cy eas Lo;a Hkh fu;qDr gq, rFkk viuh HkkbZ jke/ku ;kno ds iq= larks"k dqekj ;kno mQZ fldUnj ;kno dks Hkh mlh QthZ izek.k i= ij o"kZ 2005 esa ch0 ,e0 ih0&12 esa fu;qDr djk;s] tks buds lafnX/k vkpj.k] QthZ :i ls fu;qfDr ,oa ,d vijk/kh izo‘fr ds O;fDr gksus dks ifjyf{kr djrk gSA** 8. On appreciation of evidence on record the aforesaid charge was found to be fully proved by the Enquiry Officer in his Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 5 enquiry report dated 30.9.2010 who had recorded the following finding: ^^vkjksfir flikgh 727 tokgj izlkn ;kno ds fo:n~/k yxk;s x;s vkjksikas ds laca/k foHkkxh; dk;Zokgh ds lapkyu ds nkSjku lkf{k;ksa ds fy;s x;s c;ku ,oa vkjksfir }kjk lkf{k;ksa ls fd;s x;s izfrijh{k.k] lkf{k;ksa ,oa vkjksfir ls iwNs x;s dksVZ iz’u rFkk lafpdk esa miyC/k iznZ’kksa ds voyksdu ,oa fo’ys"ku ls ;g rF; izdk’k esa vk;k gS fd vkjksfir lds lsok iqfLrdk esa vafdr LFkkbZ irk dk lR;kiu djus ij budh eka js’kek nsoh ,oa vU; lkf{k;ksa ds }kjk crk;k x;k fd xzke fot; vekur esas tokgj izlkn ;kno is0 nsodh izlkn ;kno uke dk dksbZ O;fDr ugha gS vksj u gh bl uke ds fdlh O;fDr dks ;s yksx tkurs gSa vkjksfir dh eka js’kek nsoh tkSts Lo0 iVokjh ;kno }kjk crk;k x;k fd mUgas nks iq= dze’k% 1- jke/ku ;kno ,oa 2- lk/kq ;kno gSa jke/ku ;kno [ksrh djrs gSa rFkk lk/kq ;kno fcgkj iqfyl esa dbZ o"kksZa ls ukSdjh djrs gSA izFke iq= jke/ku ;kno dks nks yM+dk dze’k% 1- fldUnj ;kno ,oa 2- j.kthr dqekj gS] ftleas fldUnj ;kno ch0 ,e0 ih0 esa ukSdjh djrs gSa bl laca/k esa esa lk{kh ifjpkjh izoj iqfyl dsUnz dfVgkj }kjk Kkikad 497@j0 dk0 fnukad 31-01-10 ds ek/;e ls lefiZr tkap izfrosnu ls ;g rF; Li"V gqvk gS fd lk/kq ’kj.k mQZ lk/kq ;kno is0 iVokjh ;kno lk0 fot; vekur Fkkuk :ikSyh …eksguiqj‰ fyk iwf.kZ;ka ftUgsa iwf.kZ;ka ftyk :ikSyh …eksguiqj‰ Fkkuk dkaM la[;k 36@94 fnukad 28-03-94 /kkjk 302@34 Hkk0 n0 fo0 esa vkjksi i= la[;k 49@94 fnukad 30-04-94 /kkjk 302@34 Hkk0 n0 fo0 lefiZr fd;k x;k gS rFkk l= okn la[;k 283@95 esa fnukad 10-08-2000 dks "k"V~e vij ftyk ,oa l= U;k;k/kh’k] iwf.kZ;k }kjk vkthou dkjkokl dh ltk Hkh lqukbZ xbZ gSA vkjksfir viuk uke cny dj tokj izlkn ;kno is0 nsodh izlkn ;kno lk0 fot; vekur Fkkuk :ikSyh …eksguiqj‰ ftyk iwf.kZ;ka ds QthZ xzgj{kd izek.k i= ds vk/kkj ij o"kZ 2000 esa fd’kuxat ftyk cy esa Lo;a Hkh fu;qDr gq, rFkk vius HkkbZ jke/ku ;kno ds iq= larks"k dqekj ;kno mQZ fldUnj ;kno dks Hkh mlh QthZ izek.k i= ij o"kZ 2005 esas ch0 ,e0 ih0&12 esa fu;qDr djk;s gSA foHkkxh; dk;Zokgh ds lapkyu ds nkSjku lkf{k;ksa ls vkjksfir ds }kjk izfrijh{k.k fd;k x;k gSa izfrijh{k.k ds nkSjku vkjksfir ds }kjk lkf{k;ksa ls dbZ iz’u iqNk x;k gS ftldk mRrj lkf{k;ksa ds }kjk fn;k x;k gSaa lapkyu ds nkSjku esjs iwoZ esa lapkyu inkf/kdkjh ds }kjk Hkh lkf{k;ksa ,oa vkjksfir ls dbZ dksVZ iz’u fd;k x;k gS] ftldk mRrj lkf{k;ksa ,oa vkjksfir ds }kjk fn;k x;k gSa lapkyu ds nkSjku dksVZ iz’u ds mRrj ,oa izfrijh{k.k ds nkSjku gq;s iz’u&mRrj ds fo’ys"k.k ls ;g Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 6 rF; izekf.kr gqvk gS fd vkjksfir mDr gR;k ds dkaM esa tsy x;s gS rFkk mUgas ekuuh; mPp U;k;ky; ds }kjk vkthou dkjkokl dh ltk Hkh gqbZ fdUrq os ekuuh; mPp U;k;ky; ls U;kf;d tekur ij gSA vkjksfir vius cpko esa dksbZ nLrkosth; lk{; miyC/k ugha djk lds ftlls muds fo:n~/k yx vkjksi [kf.Mr gks ldsA vkjksfir flikgh 727 tokj izlkn ;kno us vius vafre cpko Li"Vhdj.k esa mYys[k fd;k gS fd vius HkkbZ jke/ku ;kno ds iq= larks"k dqekj ;kno dks ch0 ,e0 ih0&12 esa flikgh ds in ij fu;qfDr QthZ :i ls izek.k i= fnyok dj djkus dk vkjksi gSaA ftl vkjksi dk dkbZ eq>ij fof/kor lk{; ugha gSA lafpdk esa ifjpkjh izoj] iqfyl dsUnz] dfVgkj] ds gLrk{kj ls fuxZr Kkikad 1046@j0 dk0 fnukad 04-03-10 ds lkFk vuqyXud ds :i esa layXu lekns"Vk fcgkj lSU; iqfyl&12 lgjlk] dSEi dfVgkj ds Kkikad 128@j0 dk0 fnukad 15-02-10 ds ek/;e ls fuxZr cykns’k la[;k 116@10 ds voyksdu ls ik;k x;k gS fd vkjksfir dk mDr rF; fcYdqy xyr gSa D;ksafd vkjksfir ds HkkbZ jke/ku ;kno dk iq= larks"k ;kno ch0 ,e0 ih0&12 esa flikgh ds in ij vkjksfir ds uke&irk ij gh cgy gq, gSA vxj bl QthZokjk esa budh lafyIrrk ugha Fkh rks og dSls buds }kjk vius cgkyh esa mi;ksx fd;s x;s x‘gj{kd ds izek.k i= esa mYysf[kr uke irk ij og Hkh cgky gks x;sA bl izdkj vkjksfir ds }kjk vius vafre cpko Li"Vhdj.k esa dksbZ Hkh ,slk izekf.kr rF; dk mYysf[kr ugha fd;k x;k gS] ftlls muds mij yxs vkjksi ls mudk cpko gks ldsA bl izdkj vkjksi iznZ’k lkf{k;ksa dk c;ku izfrj{kk] lapkyu ds dze esa vk, rF;ksa ds vk/kkj ij bl foHkkxh; dkjZokbZ esa vkjksfir ds fo:n~/k yxk, x, lHkh vkjksi izekf.kr gksrs gSA** 9. The petitioner thereafter was given an opportunity to file his show cause reply and the disciplinary authority, the Superintendent of Police, Katihar having considered them had passed a reasoned order while inflicting the punishment of dismissal on him. The relevant portion of the order of dismissal showing full application of mind by the disciplinary authority is also quoted Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 7 hereinbelow: ^^esjs }kjk lafpdk dh xgjkbZ ls voyksdu fd;k x;kA lafpdk esa miyC/k izn’kZ lkf{k;ksa ds c;ku vkjksir }kjk lefiZr Li"Vhdj.k ds foospuksijkUr ;g rF; izdk’k esa vk;k gS fd lk/kq ’kj.k mQZ lk/kq ;kno is0 iVokjh ;kno] lk0 fot; vekur Fkkuk&:ikSyh …eksguiqj‰ ftyk iwf.kZ;k ds fo:n~ iwf.kZ;ka ftyk :ikSyh …eksguiqj‰ Fkkuk dk.M la0&36@94 fnuakd 28-3-94 /kkjk 302@34 Hkk0 n0 fo0 esa vkjksiif=r gS] rFkk ftUgsa l=okn la0&283@95 fnukad 10-08-2000 dks "k"V~e vij ftyk ,oa l= U;k;k/kh’k] iwf.kZ;ka }kjk vkthou dkjkokl dh ltk lqukbZ xbZ gSa vkjksfir viuk uke cnydj tokgj izlkn ;kno] is0&nsodh izlkn ;kno] lk0 fot; vekur] Fkkuk&:ikSyh …eksguiqj‰ ftyk&iwf.kZ;ka ds QthZ x‘gj{kd izek.k i= ds vk/kkj ij o"kZ 2000 esa fd’kuxat ftyk cy esa Lo;a Hkh fu;qDr gq;s rFkk vius HkkbZ jke/ku ;kno ds iq= larks"k dqekj ;kno mQZ fldUnj ;kno dks Hkh mlh QthZ izek.k i= ij o"kZ 2005 esa ch0,e0ih0&12 esa fu;qDr djk;s] ftUgsa ch0,e0ih0&2 ds cykns’k la0&116@10 fnukad 12-02-10 ds ek/;e ls lsok ls c[kkZLr dj fn;k x;k gS] tks buds lafnX/k vkpj.k] QthZ :i ls fu;qfDr ,oa ,d vijk/kh izo‘fr ds O;fDr gksus dk ifjpk;d gSa buds }kjk ljdkj dks xqejkg] tkylkth /kks[kk?kM+h djus ds vkjksi esa dfVgkj ftyk uxj …lgk;d‰ Fkkuk dk.M la0&386@10 fnukad 03-11-10 /kkjk 467@468@420 Hkk0n0fo0 ds rgr dk.M Hkh ntZ gSa tks lafpdk esa la?kkfjr gSa vr% mDr ifjis{; esa fcgkj ljdkj ds fu;qfDr foHkkx ladYi i=kad 111@1&102@03&,&10158] fnukad 23-03-1983 ds dafMdk 03 ,oa ekuuh; loksZPp U;k;ky; ubZ fnYyh }kjk nk;j eqdnek fnYyh DykWFk tsujy fey fyfeVsM cuke dq’kyeku esa ikfjr vkns’k ,0vkbZ0vkj0 1960 ,l0lh0 806 ds vkyksd esa ;g Li"V funsZ’k fn;k x;k gS fd uSlfxZd U;k; fl}kar ds vUrxZr] bzUgsa lsok esa cus jgus nsuk U;k;laxr ugha gSA mDr ladYi dafMdk ds 09 esa ;g fufgr gS fd lafo/kku ds vuqPNsn&311…2‰ ds ijUrqd …,‰ ds rgr ljdkjh lsod dks ml vkpkj.k ds vk/kkj ij ftlds fy;s vijk/kh vkjksi ij mls fl}nks"k fd;k x;k gks] fcuk foHkkxh; dk;Zokgh fd;s c[kkZLr ;k dksfV vour fd;k tk ldrk gSA mDr ladYi la[;k ds dafMdk&07 eas Li"V fd;k x;k fd fdlh Hkh vijk/kh ds fo:n~/k ekuuh; U;k;ky; esa nk;j oknksa dk fu"iknu esa nks"k fl} ugha gksus ij Hkh mls ljdkjh lsok esa c[kkZLr fd;k tk ldrk gSa bl izdkj bUgsa lsok esa jgus dk vkSj vf/kd volj Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 8 nsuk foHkkx rFkk yksdfgr ds fgr esa ugha gksxkA ,sls vijkf/kd izo‘fr ds iqfyl dehZ ds vkpj.k dk dqizHkko Hkh vU; iqfyldfeZ;ksa ij Hkh iM+ ldrk gSA vr% lapkyu inkf/kdkjh ds earO; ls lger gksrs ga, vkjksfir flikgh@727 tokj izlkn ;kno dks rRdky izHkko ls c[kkZLr (Dismiss) fd;k tkrk gSa fuyacu vof/k esa bUgsa tks dqN izkIr gks pqdk gS] mlds vfrfjDr dqN ns; ugha gksxk rFkk mDr vof/k dks v}Z&mikftZr vodk’k esa lek;ksftr fd;k tkrk gSA** 10. The petitioner had also filed an appeal and the appellate authority had specifically addressed to the so called affidavit of the mother of the petitioner and had rejected it on the ground that the petitioner did not choose to adduce evidence of his mother in course of departmental proceeding. The appellate order dated 9.5.2011 being a speaking order dealing with each and every contention of the petitioner has also been affirmed while rejecting the memorial of the petitioner which was filed after an abnormal delay of more than 2‰ years. 11. It would, thus, appear that the petitioner had obtained his employment in the year 2000 by suppressing the fact that he was already an accused in an offence under section 302 of the Indian Penal Code which had already been committed to the court of Sessions in the year 1995 vide Sessions Trial No. 283/1995, a fact which has been recorded in the order Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 9 granting him bail by this Court on 17.8.2000 in Cr.Appeal No. 369/2000. The petitioner now does not deny this fact that he has three names but then the order sheet of Cr.Appeal No. 369/2000 would go to show that he had described himself in the criminal case as Sadhu Sharan Yadav @ Sadhu Yadav and his third name of Jawahar Prasad yadav was not even mentioned as the alias name in the criminal case and the appeal. 12. That by itself will be sufficient to show that the name of Jawahar Prasad Yadav was invented by the petitioner after his being made accused in a criminal case and there was a deliberate attempt to suppress the information with regard to his being accused in the criminal case since the criminal case was in the name of Sadhu Sharan yadav @ Sadhu Yadav and the police verification in terms of Bihar Police Manual could be made in the name of the petitioner as Jawahar Prasad Yadav and eventually he could mislead the authorities by giving a false declaration in the prescribed form, that he was not facing any criminal prosecution, which he had filed in response to Advertisement No.1 of 1998. Thus, in the year 1998 while the petitioner was aware of his Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 10 being accused in a criminal case for offence under section 302 I.P.C. he had yet deliberately withheld this information by changing his name as Jawahar Prasad Yadav. Such entry in service of the petitioner, therefore, being based on a fraud played by him, he was fit to be removed even without holding any departmental proceeding in view of the law laid down by the Apex Court in the case of Vishwanath Pillai Vs. State of Kerala reported in 2004(2) SCC 105 but then the authorities in the present case had conducted the departmental proceeding and had given full opportunity to the petitioner. 13. It is also well settled that a person with criminal antecedent cannot be appointed in Uniformed Service. Reference in this connection may usefully be made to the judgment of Apex Court in the case of R. Radhakrishnan Vs. Director General of Police and others reported in 2008(1) SCC 660 wherein it was held as follows:- “Indisputably, the appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 11 one of a person who intended to serve in other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who had not made such disclosures and were, thus, similarly situated had not been appointed. The question came up for consideration before this Court in Delhi Administration v. Sushil Kumar [(1996) 11 SCC 605] wherein it was categorically held: The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 12 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted." 14. There is infact yet another facet to the whole issue, inasmuch as the petitioner Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 13 stands convicted by a judgment dated 10.8.2000 for offence under section 302 I.P.C. and has been sentenced for life imprisonment. No convicted employee much less a police personnel can be allowed to be continued in service and his dismissal on the ground of conviction in a criminal case by itself would be sustainable in addition to his being found guilty for charge in the departmental proceeding. 15. The submission of the learned counsel for the petitioner that the judgment of conviction and sentence of the trial court is still under consideration before this Court in Cr.Appeal No. 369/2000 will be of no avail, inasmuch as the law on the subject stands settled that once a Government servant is convicted he becomes liable for being removed from service. Reference in this connection may be made to the judgment of this Court dated 15.5.2012 in C.W.J.C.No. 8196/2003 (Subrata Basu vs. the State of Bihar & ors.), wherein this Court had relied on the judgment of the Apex Court in the case of State of U.P. vs. Mohammad Nooh, reported in AIR 1958 SC 86, holding as follows: “..... There is nothing in the Indian Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 14 Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. .....” 16. The aspect was further examined by this Court with reference to the subsequent Supreme Court judgments as would be found from the discussion made in paragraph nos. 27 to 30 in the case of Subrata Basu (supra) which reads as follows: “27. In the light of the aforementioned law laid down by the Apex Court in the case of Mohammad Nooh (supra), it would be clear that the view taken in the circular of the State Government of the appeal being in continuation of appeal in paragraph no.9 of the circular dated 23.8.1963 was itself vulnerable if not bad. It is this aspect of the matter which has been subsequently considered by the Apex Court in large number of cases including in the case of S. Nagoor Meera (supra) wherein it was also held as follows:- “9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 15 cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant- accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstate, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three punishments major Article 311(2).” mentioned in 28. The same view was again reiterated by the Apex Court in the case of State of Tamil Nadu & Ors. Vs. K. Guruswamy reported in 1996(7)SCC 114 wherein dismissal from service on the ground of conviction for offence under Section 5(1) of the Prevention of Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 16 Corruption Act was held to be correct requiring no show-cause notice after the judgment of conviction. In fact the Apex Court in the case of Union of India & Ors. Vs. Ramesh Kumar reported in 1997 SC 3531 had upheld the order of dismissal from service of a convicted employee by observing as follows:- "7. A bare reading of Rule 19 shows that the Disciplinary Authority is empowered to take action against a Govt. servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentence by the Appellate Court the
Decision
order of dismissal based on conviction stands obliterated and dismissed Govt. servant has to be treated under suspension till disposal of appeal by the appellate Court. The rules also do not provide the Disciplinary Authority to await disposal of the appeal by the Appellate Court filed by a Govt. servant for taking action against him on the ground of misconduct which has led to his conviction by a competent Court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a competent Court of law has not lost its string merely Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 17 because a criminal appeal was filed by the respondent against his conviction and the Appellate Court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angle. Under Section 389 of the Code of Criminal Procedure, the appellate Court has power to suspend the execution of sentence and to release an accused on bail. When the appellate Court suspends the execution of sentence, and grants bail to an accused the effect of the order is that sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under Section 389 Cr.P.C. an accused avoids undergoing sentence pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a Govt. servant on a misconduct which led to his conviction by the Court of law does not lose its efficacy merely because Appellate Court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell in error in holding that by suspension of execution of sentence by the Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 18 appellate Court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of Criminal Appeal by the High Court." 29. The same position was also explained by the Apex Court in a recent judgment in the case of Union of India Vs. V.K. Bhaskar reported in 1997(11)SCC 383 and further reiterated in the recent judgment of Sushil Kumar Singhal Vs. Regional Manager, Punjab National Bank reported in 2010(8)SCC 573 wherein it was held that in case an employee who stands convicted for an offence of moral turpitude it is his such misconduct that would lead to his dismissal. 30. Thus in the light of the aforementioned discussions and the law settled on the issue, this Court must hold that neither the order of dismissal from service of the petitioner dated 16.11.2001 nor the pendency of the appeal could have stood in the way of the authorities in the dismissing service.” 17. This Court infact can also not petitioner from ignore the admitted position that the petitioner is also facing a criminal prosecution for obtaining his appointment by Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 19 playing fraud for which Town (Sahayak) P.S.Case No. 386/2010 for offence under sections 467, 468 and 420 I.P.C. had been filed and in connection of which the petitioner was also taken into custody on 16.2.2011 before being granted bail on 20.3.2012 by this Court in Cr.Misc.No. 9222/2012. This Court therefore must hold that the petitioner has been rightly removed from the police force on account of his proven misconduct of playing fraud in obtaining his appointment by concealing and changing his name and his being an accused in a case of murder under section 302 I.P.C.. 18. The last submission of the learned counsel for the petitioner that a liberty could be given to the petitioner to move this Court in case of his acquittal in Cr.Appeal No. 369/2000 and pending trial in Town (Sahayak) P.S.Case No. 386/2010 has to be also rejected, inasmuch as the dismissal of the petitioner from service is not based on his being convicted in the criminal case rather he has been dismissed from service on account of misconduct of obtaining appointment by concealing his criminal antecedent and submitting a fraudulent declaration of his Patna High Court CWJC No.565 of 2013 (2) dt.11-01-2013 20 being not accused in any criminal case which were found to be conclusively proven against him in the departmental proceeding. Thus, even if the petitioner may earn acquittal in the criminal cases pending against him, that will not affect order of dismissal which has been passed against the petitioner on the basis of the aforesaid charges proved against him in the departmental proceeding. 19. That being so, this application is devoid of any merit and is, accordingly, dismissed. Ranjan/ Surendra (Mihir Kumar Jha, J)