Delay condoned.
Leave granted.
This appeal, by the State of Rajasthan, is directed against order dated
November 05, 2007 passed by the High Court of Judicature for Rajasthan at Jaipur.
By the impugned order, while accepting the second application filed by the respondent
for suspension of his conviction under Sections 302 and 323 read with 34 of the Indian
Penal Code (for short, IPC), the High Court has also stayed the operation of order
dated September 06, 2007 passed by the Director General (Prisons), Rajasthan,
terminating the services of the respondent under Rule 19 of the Rajasthan Civil
Services (Classification, Control and Appeal) Rules, 1958. The High Court has
also directed that the respondent shall be taken back in service forthwith.
Since the main grievance of the appellant is in regard to the stay of order of
dismissal of the respondent and his reinstatement, we deem it unnecessary to state the
facts in detail. It would suffice to note that on 14th August, 2007, the respondent, a
mechanic in the Central Jail, was convicted for offences under Sections 302 and 323
read with 34, IPC and
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was sentenced to life imprisonment etc. As noted above, the services of the respondent,
who had been suspended on November 16, 2005, were terminated on September 6,
2007. The respondent challenged his conviction and sentence by preferring Criminal
Appeal No. 1590 of 2007. When his application for suspension of sentence came up
for consideration on September 10, 2007, the same was allowed and the sentence was
suspended during the pendency of the appeal on his complying with certain conditions
imposed therein. The respondent filed yet another application seeking suspension of
the conviction itself. It is on this application, the High Court passed the following
order :
"Coming to the case on hand it may be noticed that the
appellant has been convicted under Section 302 with the aid of
Section 24 IPC. The sentence awarded to appellant has already been
suspended and now in view of the order of conviction of the learned
trial judge, the Director General, Prisons terminated the services of
the appellant under Rule 19 of the CCA Rules. it appears to us on
record that the appellant is a physically handicapped person, his wife
is cronic heard patient and appellant has to perform, marriages of his
three daughters and because of the loss of employment, the appellant
and his family have to suffer untold hardships. Since, the order of
conviction has already been executed, it is necessary to issue the
appropriate directions. We, therefore, in the interest of justice
suspend the order of conviction during the pendency of the appeal
and directed that the order of conviction in so far it relates to
appellant shall remain suspended till the disposal of criminal appeal.
We also stayed the order dated September 6, 2007 passed by the
Director General Prisons, Rajasthan, Jaipur under Rule 19 of the
CCA Rules and direct that appellant Vijay Saxena shall be taken
back in service forthwith.
Resultingly, we allow the application."
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Hence, the appeal by the State.
We have heard learned counsel for the parties.
Mr. Aruneshwar Gupta, learned counsel appearing on behalf of the State
submitted that the order passed by the High Court, staying the operation of order of
dismissal of the respondent and directing his reinstatement is illegal in as much as in a
petition filed under Section 389 read with Section 482 of the Code of Criminal
Procedure, 1973, the High Court had no jurisdiction to entertain a prayer with regard
to the order of dismissal by the disciplinary authority, particularly when the said order
had not been challenged.
Per contra, Mr. M.R.Calla, learned senior counsel appearing on behalf
of the respondent, while fairly conceding that the High Court was in error in passing
the order in regard to the reinstatement of the respondent, vehemently submitted that
since the order passed by the Director General, Prisons, Rajasthan in terms of Rule 19
of the aforementioned Rules without affording an opportunity of hearing to the
respondent is ex facie illegal, this Court may quash the same or grant leave to the
respondent to challenge the same in appropriate proceedings but in the meanwhile, the
respondent may be deemed to be under suspension. In support of the submission that
before imposing any penalty the disciplinary authority is required to apply its mind to
the penalty which could appropriately be imposed on a delinquent employee, learned
counsel has placed reliance on the decision of this Court in Shankar Dass Vs. Union of
India & Anr., 1985 (2) SCC 358.
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Having regard to the factual scenario, briefly referred to above, we are unable
to countenance the view taken by the High Court and are convinced that the order is
clearly untenable.
It is trite to state that the scope of proceedings in a criminal Court and the
scope of disciplinary proceedings in a departmental enquiry are quite distinct, exclusive and independent of each other. Not only the approach and objective in
criminal proceedings and the disciplinary proceedings are distinct and different, even
the standard of proof, the mode of enquiry and the rules governing the trial and
enquiry are also different. While in departmental proceedings, the standard of proof is
one of preponderance of probabilities, in a criminal case, the charge has to be proved
by the prosecution beyond reasonable doubt. It needs little emphasis that even
aquittal of an employee in a criminal case, let alone a stay of conviction, does not
necessarily lead to the conclusion of departmental proceedings. The desirability or
propriety of departmental proceedings has to be determined taking into consideration
all the facts and circumstances of the case and, therefore, stay of departmental action
cannot be as a matter of course, which, unfortunately, is the case here.
It is manifest that the sole issue before the High Court in the second
application preferred by the respondent, was whether pending disposal of his appeal,
the conviction of the respondent could be stayed. We feel that while dealing
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with a petition under Section 389 read with Section 482 Cr.P.C., the High Court ought
not to have taken up the matter of validity of the order of termination of the services of
the respondent. We have, therefore, no hesitation in holding that the order passed by
the High Court staying the operation of the order passed by the Director General,
Prisons dismissing the respondent, was clearly without jurisdiction. However, we are
not inclined to interfere with the impugned order insofar as it pertains to the
suspension of the conviction of the respondent.
Accordingly, the appeal is partly allowed and the order passed by the High
Court insofar as it purports to stay the operation of the order passed by the Director
General, Prisons and directs the reinstatement of the respondent is set aside. It goes
without saying that it will be open to the respondent to challenge the order of dismissal passed against him by taking recourse to appropriate proceedings in
accordance with law. If the respondent deems it fit to prefer an appeal against the said
order within two weeks from the receipt of a copy of this order, along with an
application for condonation of delay in preferring the same, we hope that the appellate
authority shall consider the application for condonation of delay sympathetically.
[ D.K. JAIN ]