# Daya Ram v. State of U.P

- **Citation:** (2015) 3 ILRA 1491
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-04
- **Case number:** Service Single No. 5907 of 2009
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-ram-v-state-of-u-p-43357
- **Pages:** 3

## Headnote

Constitution of India, Art.-226-read with
U.P. Government Servant (Discipline and
Appeal )Rules 1999-Rule 7 (i)-dismissal
from service-order passed mechanically
without
considering
the
conduct
of
petitioner on conviction-held in view of
Tulsi Ram Patel as well as Divisional Officer
Southern
Railway-order
quashed
with
liberty to pass fresh order.
Held: Para-6
In view of the above, the impugned order
dated 18.05.2009 can not be sustained and
the same is accordingly quashed, however,
with liberty to the Disciplinary Authority to
take afresh decision keeping in mind the
legal position narrated herein above within
a period of two months from the date of
production of a certified copy of this order.
Consequences shall follow as per law.
Case Law discussed:
1985 (3) SCC 398; 1976 (1) SCR 783

## Text

3 All.
 Daya Ram Vs. State of U.P.
1491
applicable in the facts and circumstances
of the case and the writ petition is liable
to be dismissed.
24. Accordingly, the writ petitions
are dismissed. However, there is no order
as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.12.2015
BEFORE
THE HON'BLE RAJAN ROY, J.
Service Single No. 5907 of 2009
Daya Ram
 ...Petitioner
Versus
State of U.P.
...Respondent
Counsel for the Petitioner:
Dhruv Kumar
Counsel for the Respondent:
C.S.C.
Constitution of India, Art.-226-read with
U.P. Government Servant (Discipline and
Appeal )Rules 1999-Rule 7 (i)-dismissal
from service-order passed mechanically
without
considering
the
conduct
of
petitioner on conviction-held in view of
Tulsi Ram Patel as well as Divisional Officer
Southern
Railway-order
quashed
with
liberty to pass fresh order.
Held: Para-6
In view of the above, the impugned order
dated 18.05.2009 can not be sustained and
the same is accordingly quashed, however,
with liberty to the Disciplinary Authority to
take afresh decision keeping in mind the
legal position narrated herein above within
a period of two months from the date of
production of a certified copy of this order.
Consequences shall follow as per law.
Case Law discussed:
1985 (3) SCC 398; 1976 (1) SCR 783
(Delivered by Hon'ble Rajan Roy, J.)
1. Heard learned counsel for the
parties.
2.
The petitioner was employed as
Statistical Assistant in the National Savings
Directorate under the State Government. He
was involved in a criminal case under
Section 304 Part-I/149 I.P.C. wherein after
trial he was convicted by the Court of
criminal jurisdiction on 24.04.2009. His
appeal against the same is pending wherein
he has been enlarged on bail.
3. Consequent to his conviction, the
petitioner was dismissed from service
vide order dated 18.05.2009 passed by the
Additional Director Savings, U.P.
4. On a perusal of the order of
dismissal it is revealed that the same has
been passed mechanically merely on the
ground of conviction. The legal position
is very well settled that a conviction does
not automatically lead to dismissal,
removal, reduction in rank etc. The
Disciplinary Authority has to pass an
order in this regard in writing. It is
required to consider the conduct which
has led to his conviction and based on
such consideration of conduct a final
opinion has to be formed as to whether
any punishment is required to be imposed
upon him or not. This is the requirement
under Article 311 (2) of the Proviso as
also Proviso (i) of Rule 7 of the U.P.
Government
Servants
(Discipline
&
Appeal) Rules, 1999 and the law laid
down by the Hon'ble Supreme Court in
the case of Union of India Vs. Tulsi Ram
Patel, 1985(3) SCC 398 which still holds
the ground. In the case of Tulsi Ram Patel
(Supra), the Supreme Court observed and
held as under:-
1492
 INDIAN LAW REPORTS ALLAHABAD SERIES
"Not much remains to be said about
clause (a) of the second proviso to Article
311(2). 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. 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. Having decided which
of these three penalties is required to be
imposed, he has to pass the requisite order.
A government servant who is aggrieved by
the penalty imposed can agitate in appeal,
revision or review, as the case may be, that
the penalty was too severe or excessive and
not
warranted
by
the
facts
and
circumstances of the case. If it is his case
that he is not the government servant who
has been in fact convicted, he can also
agitate this question in appeal, revision or
review. If he fails in all the departmental
remedies and still wants to pursue the
matter, he can invoke the court's power of
judicial review subject to the court
permitting it. If the court finds that he was
not in fact the person convicted, it will strike
down the impugned order and order him to
be reinstated in service. Where the court
finds that the penalty imposed by the
impugned order is arbitrary or grossly
excessive or out of all proportion to the
offence committed or not warranted by the
facts and circumstances of the case or the
requirements of that particular government
service the court will also strike down the
impugned order. Thus, in Shankar Dass v.
Union of India and another, this Court set
aside the impugned order of penalty on the
ground that the penalty of dismissal from
service imposed upon the appellant was
whimsical and ordered his reinstatement in
service with full back wages. It is, however,
not necessary that the Court should always
order reinstatement. The Court can instead
substitute a penalty which in its opinion
would
be
just
and
proper
in
the
circumstances of the case."
5. The Supreme Court in the case of
Divisional Officer, Southern Railway and
another Vs. T. R. Challappan, 1976 (1)
SCR 783, has held that on the conviction
of an employee on a criminal charge, the
order of punishment cannot be passed
unless the conduct which had led to his
conviction
is
also
considered.
The
scrutiny or examination of conduct of an
employee leading to his conviction is to
be done ex-parte and an opportunity of
hearing is not to be provided for this
purpose to the employee.
6. In view of the above, the impugned
order dated 18.05.2009 can not be sustained
and the same is accordingly quashed,
however, with liberty to the Disciplinary
Authority to take afresh decision keeping in
mind the legal position narrated herein above
3 All.
 Dhooram Chaudhary Vs. Mr. Mulayam Singh Yadav & Ors.
1493
within a period of two months from the date
of production of a certified copy of this
order. Consequences shall follow as per law.
7. However, the question of arrears
and salary etc. shall depend upon the fresh
decision which is to be taken as aforesaid
and shall not be paid till the such decision
though the petitioner shall be allowed to
join and discharge the duties as aforesaid
and shall be paid the current salary.
8. The petitioner shall submit a copy
of the judgment of the Court of criminal
jurisdiction convicting him as also the
appeal
filed
by
him
before
the
Disciplinary Authority, to facilitate the
decision as aforesaid.
9. The writ petition is allowed in the
aforesaid terms.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Matter Under Article 227 No. 6852 of
2015
Dhooram Chaudhary
 ...Petitioner
Versus
Mr. Mulayam Singh Yadav & Ors.
...Respondents
Counsel for the Petitioner:
Aseem Kumar Rai
Counsel for the Respondents:
C.S.C.
Constitution of India-Art.-227-Petition
against interlocutory order-granting stay
against summoning of O.P. No. 1-firstly
the application on behalf of stranger-not
maintainable -the applicant disclosed his
credence
as
"Public
Spirited
Social
Worker" but concealed the fact of M.L.A.
Belonging
to
opposition-having
no
concern with suo moto action-except to
file complaint-petition is nothing but to
get cheap popularity-petition dismissed
with cost of Rs. 1 Lacs.
Held: Para-8
The applicant has no concern with the
proceedings initiated, suo moto, by the
court below, neither is the applicant a
complainant, therefore, what motivated
the applicant to approach this court
assailing the impugned order passed by
the
revisional
court
has
not
been
explained.
Case Law discussed:
(2010) 4 SCC 728; (2012) 6 SCC 430; (2010) 2
SCC 114; (2012) 12 SCC 133
(Delivered by Hon'ble Suneet Kumar, J.)
1. The applicant has approached this
Court in a petition under Article 227 of
the Constitution, inter alia, seeking a
direction to set aside the order dated 22
August 2015 passed by the second
respondent, Sessions Judge, Mahoba in
Criminal Revision being Revision No.
46/15; a further direction has been sought
directing the "appropriate authorities to
take appropriate action against the first
respondent".
2. The applicant claims to be a "public
spirited social worker". The first respondent
is President of the ruling party of the State, a
Member of the Parliament, former Chief
Minister of the State and Former Defence
Minister of India. The Judicial Magistrate at
Kulpahar, District Mahoba had suo moto
taken cognizance of certain comments,
purportedly, made by the first respondent
against the modesty of women thus,
summoning the first respondent under