IN THE  SUPREME COURT OF INDIA                CRIMINAL  APPELLATE  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)                                                           O R D E R

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." ..3/-

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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.      

                                       ....................J            [ D.K. JAIN  ]  

                                       ....................J                                     [ G.S. SINGHVI ]                         NEW DELHI, NOVEMBER 21, 2008.