SENAPATI SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Petitioner was a police constable in U.P. Police. He, alongwith tow others, was convicted, vide Judgment dated 23.4.1990, under Section 302 I.P.C. and was sentenced to life imprisonment. All the three Services including the petitioners were further sentenced to two years R.I. for the offence under section 201 I.P.C. and one year R.I. for the offence under Section 4 of dowry Prohibition Act. All the sentences were directed to run concurrently. Against his conviction, the petitioner has filed an appeal which is still pending. After his conviction, the petitioner has been removed from service vide order dated 2.8.1990 in exercise of power under Sub Clause (a) of Second Proviso to Article 311 (2) of the Constitution of India, read it with Government order dated 12.10.1979. It is against the above order that the petitioner has as filed this writ petition in which validity of Government order dated 12.10.1979 has also been al challenged.

(2.) Learned counsel for the petitioner in support of the writ petition has made only one submission: namely that the Government cannot pass an order under Sub Clause (a) of second proviso to Article 311 (2) of the Constitution, until the appeal filed by the petitioner against his conviction is decided in as much as the words conduct which has led to his conviction on a criminal charge' means the final conviction as decided by the appellate Court. Learned Standing Counsel has deducted the above submission.

(3.) A member of a civil service of a State or who holds civil post under the State cannot be dismissed or removed or reduced in rank except in accordance with the procedure prescribed by Clause (2) of Article 311 of the Constitution. Second Proviso to Clause (2) however, lays down that this Clause shall not apply to the contingencies contained in its Sub-Clause (a) (b) and (c) Sub- Clause (a) being relevant is reproduced below: 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; The Government of U.P. vide order dated 12.10.1979 has laid down that after a Government servant has been convicted by the Trial Court he can be dismissed, removed or reduced in rank without waiting for the result of the appeal and if ultimately the appeal is allowed and the conviction is set-aside he is liable to be re-instated with full back wages.