# Birjesh Kumar v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1264
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-10-15
- **Case number:** Special Appeal Defective No. 850 of 2014
- **Bench:** Dr. Dhananjay Yeshwant Chandrachud, C.J. Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/birjesh-kumar-v-state-of-u-p-ors-43119
- **Pages:** 4

## Headnote

Constitution of India Art. 226-Service Lawtermination on conviction in criminal casewithout inquiry-without considering the
conduct of employee-in utter violation of
guide lines of Apex Court in Tulsiram Patel
case-held-disciplinary authority as well as
Single Judge
proceeded on wrongful
premises-mere conviction would not result
termination automatically-appeal allowed.
Held: Para-6
In the counter affidavit, which was filed
on behalf of the State before the learned
Single Judge, it was specifically admitted
in paragraph-8 that the appellant was
dismissed from service "on the basis of
the conviction". Hence, it is clear that
the order of dismissal has been passed
on
the
erroneous
basis
that
the
conviction in the criminal case would
ipso
facto
result
in
an
order
of
termination. In this view of the matter,
we are of the view that it would be
appropriate and in the interest of justice
to set aside the impugned order of the
learned Single Judge and to remit the
3 All]. Brijesh Kumar Vs. State of U.P. & Ors.
1265
proceedings back to the disciplinary
authority.
Case Law discussed:
AIR 1985 SC 1416
(Deliverd by Hon'ble Dr. Dhananjay
Yeshwant Chandrachud, C.J.)

## Text

1264
 INDIAN LAW REPORTS ALLAHABAD SERIES
issued by this Court supposedly on the basis
of parity. In the present case, the respondent
has been convicted of a serious crime within
the meaning of Regulation 351. Under
Regulation 351 the Government reserves to
itself the right to withhold a pension if the
pensioner is convicted of a serious crime. In
view of the provisions of Regulation 351AA, the State Government was acting within
its statutory powers in withholding regular
pension and as provided under Regulation
919-A(1) provisional pension has been
released to the respondent.
12. In this view of the matter, the
judgment and order of the learned Single
Judge is, with respect, erroneous. The
learned Single Judge was in error in
holding that merely because no pecuniary
loss was caused to the department or to the
Government,
no
recovery
would
be
required to be made and hence, the entire
pensionary
dues
should
be
released.
Regulation 351-A of the Regulations, which
has been noticed in the decision in State of
U.P. and others v. Jai Prakash (supra), deals
with a situation where inter alia a pensioner
is found to have caused a pecuniary loss to
the State by his misconduct or negligence
during
service.
Regulation
351
and
Regulation 351-AA of the Regulations do
not confine the power of the Government to
withhold the pensionary dues until a loss is
shown to be caused to the State.
13.
For these reasons, we allow the
special appeal and set aside the impugned
judgment and order of the learned Single
Judge dated 29 November 2013. However,
we clarify that upon the disposal of the
criminal appeal by this Court, necessary
consequences under the law shall follow
based on the outcome of the case.
14.

The
special
appeal,
is
accordingly, allowed. There shall be no
order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2014
BEFORE
THE HON'BLE DR. DHANANJAY YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Special Appeal Defective No. 850 of 2014
Birjesh Kumar
...Petitioner
Versus
State of U.P. & Ors.
.Respondents
Counsel for the Petitioner:
Sri B.K. Srivastava, Sri Dhiraj Srivastava
Counsel for the Respondents
C.S.C.
Constitution of India Art. 226-Service Lawtermination on conviction in criminal casewithout inquiry-without considering the
conduct of employee-in utter violation of
guide lines of Apex Court in Tulsiram Patel
case-held-disciplinary authority as well as
Single Judge
proceeded on wrongful
premises-mere conviction would not result
termination automatically-appeal allowed.
Held: Para-6
In the counter affidavit, which was filed
on behalf of the State before the learned
Single Judge, it was specifically admitted
in paragraph-8 that the appellant was
dismissed from service "on the basis of
the conviction". Hence, it is clear that
the order of dismissal has been passed
on
the
erroneous
basis
that
the
conviction in the criminal case would
ipso
facto
result
in
an
order
of
termination. In this view of the matter,
we are of the view that it would be
appropriate and in the interest of justice
to set aside the impugned order of the
learned Single Judge and to remit the
3 All]. Brijesh Kumar Vs. State of U.P. & Ors.
1265
proceedings back to the disciplinary
authority.
Case Law discussed:
AIR 1985 SC 1416
(Deliverd by Hon'ble Dr. Dhananjay
Yeshwant Chandrachud, C.J.)
1.
The appellant was appointed in a
Group 'D' post in the Trade Tax Tribunal on
08 September 1989. The appellant was
convicted by the VIIth Additional Sessions
Judge, Meerut in Session Trial No. 146 of
1986 of offences under Sections 147, 325
read with Section 149, 324 read with Section
149, and 452 of the Indian Penal Code and
was
sentenced
to
undergo
rigorous
imprisonment respectively for a period of six
months, two years, three years and three
years. Based on the order of conviction, the
services of the appellant were terminated by
the Chairperson of the Trade Tax Tribunal
on 11 July 1990. The appellant filed a writ
petition, being Civil Misc. Writ Petition No.
17805 of 1990 (Biresh Kumar v. State of
U.P. and others), before the learned Single
Judge questioning the legality of the
termination. The writ petition has been
dismissed by the impugned judgment and
order dated 02 December 2011 on the
ground that Article 311 (2) of the
Constitution provides that without any
enquiry, an order of punishment can be
passed if a civil servant has been convicted in
a criminal case after considering his conduct
which led to the conviction.
2. The submission, which has been
urged on behalf of the appellant, is that in
view of the decision of the Constitution
Bench of the Supreme Court in Union of
India and another v. Tulsiram Patel1, the
disciplinary authority is required to
consider whether the conduct of the
Government servant was such as to
require his dismissal or removal from
service or reduction in rank following his
conviction in a criminal case. In the
present case, it was submitted that the
disciplinary authority proceeded on a
wrongful premise that a mere conviction
would result in an order of termination.
3. Article 311 of the Constitution,
insofar as is material, provides as follows:
"311. Dismissal, removal or reduction
in rank of person employed in civil
capacities under the Union or a State.--(1)
No person who is a member of a civil service
of the Union or an all-India service or a civil
service of a State or holds a civil post under
the Union or a State shall be dismissed or
removed by an authority subordinate to that
by which he was appointed.
(2) No such person as aforesaid shall
be dismissed or removed or reduced in
rank except after an inquiry in which he
has been informed of the charges against
him and given a reasonable opportunity of
being heard in respect of those charges:
Provided that where it is proposed
after such inquiry, to impose upon him
any such penalty, such penalty may be
imposed on the basis of the evidence
adduced during such inquiry and it shall
not be necessary to give such person any
opportunity of making representation on
the penalty proposed:
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; or
(b) where the authority empowered
to dismiss or remove a person or to reduce
1266
 INDIAN LAW REPORTS ALLAHABAD SERIES
him in rank is satisfied that for some
reason, to be recorded by that authority in
writing, it is not reasonably practicable to
hold such inquiry; or
(c) where the President or the
Governor, as the case may be, is satisfied
that in the interest of the security of the
State it is not expedient to hold such
inquiry."
4. The provisions of Clause (a) of the
second proviso to Clause (2) of Article 311
of the Constitution have been construed in
the judgment of the Constitution Bench of
the Supreme Court in Union of India and
another v. Tulsiram Patel (supra), where it
has been held as follows:
"127. ...... To recapitulate briefly,
where a disciplinary authority comes to
know that a government servant has been
convicted on a criminal charge, it must
consider whether his conduct which has
led to his conviction was such as warrants
the imposition of a penalty and, if so,
what that penalty should be. For that
purpose it will have to peruse the
judgment of the criminal court and
consider all the facts and circumstances of
the case and the various factors set out in
Challappan's case (AIR 1975 SC 2216).
This, however, has to be done by it ex
parte and by itself. Once the disciplinary
authority reaches the conclusion that the
government servant's conduct was such as
to require his dismissal or removal from
service or reduction in rank he must
decide which of these three penalties
should be imposed on him. This too it has
to do by itself and without hearing the
concerned government servant by reason
of the exclusionary effect of the second
proviso. The disciplinary authority must,
however, bear in mind that a conviction
on
a
criminal
charge
does
not
automatically entail dismissal, removal or
reduction in rank of the concerned
government servant."
5.
In the present case, the order of
termination does not indicate that the
disciplinary authority had applied its mind
to the nature of conviction or to the question
as to whether the conduct of the
Government servant was such as to require
his dismissal or removal from service. The
decision in Union of India and another v.
Tulsiram Patel (supra) specifically requires
the disciplinary authority to bear in mind
that a conviction on a criminal charge does
not automatically entail dismissal, removal
or reduction in rank.
6. In the counter affidavit, which
was filed on behalf of the State before the
learned Single Judge, it was specifically
admitted in paragraph-8 that the appellant
was dismissed from service "on the basis
of the conviction". Hence, it is clear that
the order of dismissal has been passed on
the erroneous basis that the conviction in
the criminal case would ipso facto result
in an order of termination. In this view of
the matter, we are of the view that it
would be appropriate and in the interest of
justice to set aside the impugned order of
the learned Single Judge and to remit the
proceedings back to the disciplinary
authority.
7. For the aforesaid reasons, the
special appeal is allowed by setting aside
the impugned order of the learned Single
Judge dated 02 December 2011. The
order passed by the disciplinary authority
on 11 July
1990 is set aside. The
disciplinary authority shall have due
regard to the law laid down by the
Supreme Court in Union of India and
another v. Tulsiram Patel, AIR 1985 SC
3 All]. Brijesh Kumar Vs. State of U.P. & Ors.
1267
1416, and then determine as to whether
the conduct of the appellant is such as to
warrant
his
dismissal,
removal
or
reduction in rank within the meaning of
proviso (a) to Clause (2) of Article 311 of
the Constitution.
8. There shall be no order as to
costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2014
BEFORE
THE HON'BLE DR. DHANANJAY YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Special Appeal Defective No. 861 of 2014
State of U.P. & Ors.
Appellants
Versus
Mahipal Singh & Anr.
Respondents
Counsel for the Appellants:
S.C., Sri A.K. Mishra
Counsel for the Respondents
Sri Jitendra Singh, Sri Veer Singh
Constitution of India, Art.-226- claim for
Regularization and payment of salaryrespondent/petitioner working on daily
wages basis since 1986-on post of part
time sweeper-claim of Regularization not
accepted
by
learned
Single
Judgehowever till consideration of request for
creation of regular post-direction to give
minimum basic pay-admissible to regular
employee along with arrears from the
date
of
initial
engagement-not
sustainable modification with current
payment of wages as per direction of
learned Single Judge maintainable.
Held: Para-14In several judgements of the Supreme
Court, it has been held that the principle
of 'equal pay for equal work' cannot be
attracted merely on the nature of the
work, irrespective of the educational
qualifications attached to a post or
irrespective of the source of recruitment
and
other
relevant
considerations.
Hence, it is now a well settled principle
of law that the doctrine of 'equal pay for
equal work' is not a matter of abstract
application or a mathematical formula
that can be applied to a case.
Case Law discussed:
(2006) 4 SCC 1; (2003) 6 SCC 123; (1996) 11
SCC 77; (2009) 9 SCC 514; (2003) 5 SCC 188;
(2004) 1 SCC 347; (2006) 9 SCC 321; (2009) 8
SCC 556.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1.
This special appeal arises from a
judgement of the learned Single Judge dated
16 April 2014 by which the State
Government has been directed to take a
decision in regard to the creation of a post of
sweeper for the office of the Sub-Divisional
Officer1, Dhampur, Bijnor within two
months, on a letter which was addressed by
the Board of Revenue on 8 February 1994.
The learned Single Judge has also directed
that from 8 February 1994 till the creation of
the post, the first respondent shall be allowed
salary equivalent to the salary at the lowest
grade of an employee on the post of sweeper
in the State, in the office of the Collector.
Arrears have been directed to be worked out
within a period of three months and to be
paid over to the first respondent. The first
respondent has also been granted continuity
of service.
2.
The first respondent was engaged
as a sweeper by the SDO when a new office
was established in 1986. By a letter dated 8
February 1990, the SDO requested the
District Magistrate to grant him permission