State of Rajasthan Vs.
Vijay Saxena  INSC 2002 (21 November 2008)
JURISDICTION CRIMINAL APPEAL NO. 1864 OF 2008 (Arising out of SLP(Crl.) No.
1945/2008) State of Rajasthan .. Appellant(s) Versus Vijay Saxena ..
Respondent(s) ORDER Delay condoned.
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 ..2/- Criminal Appeal No. 1864/2008...contd.. 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
..3/- Criminal Appeal
Hence, the appeal by
We have heard learned
counsel for the parties.
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 India & Anr., 1985 (2) SCC 358.
..4/- Criminal Appeal
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
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 ..5/- Criminal Appeal
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.
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
[ D.K. JAIN ]
[ G.S. SINGHVI ]