# Manoj Kumar Katiyar v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1245
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-16
- **Case number:** Writ-A No. 11761 of 2023
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-katiyar-v-state-of-u-p-ors-49320
- **Pages:** 11

## Headnote

A. Service Law - Constitution of India -
Article 311(2), Proviso - Conviction u/s
302/34 IPC - Dismissal from service -
Neither
enquiry
was
conducted
nor
conduct
leading
to
conviction
was
considered - Effect - Circumstance when
the dismissal can be made without an
enquiry
-
Held,
the
District
Basic
Education Officer, Kanpur Dehat either
should
have
conducted
inquiry
by
associating the petitioner and affording
him opportunity of hearing and only
thereafter could have passed the order
thereby dismissing petitioner from service
or if the disciplinary authority wanted to
pass order in terms of proviso appended
to Article 311 (2) of the Constitution of
India thereby dismissing the petitioner
from service without holding inquiry, then
he could have done so only by considering
the conduct which led to conviction of the
petitioner. (Para 22)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

10 All. Manoj Kumar Katiyar Vs. State of U.P. & Ors.
1245
Court which is to have its order complied
with in as much as there cannot be any occasion
for a contempt petition to be filed in the High
Court for compliance of judgment of Hon'ble
Supreme Court.

13. As an abundant precaution the Court
may take notice of the judgement of Hon'ble
Supreme Court in the case of Arnesh Kumar
vs State of Bihar and another, (2014) 8 SCC
273 wherein while delivering the aforesaid
judgement it was held that in case of noncompliance of its directions, the concerned
police officers, apart from departmental action,
shall also be liable to be punished for contempt
of court to be initiated before the High Court
having territorial jurisdiction.

14. In the instant case there is no direction
issued by Hon'ble Apex Court while rendering
the judgement and order dated 29.06.2021 that
any non-compliance would be seen by the High
Court having territorial jurisdiction and thus
there cannot be any question of entertaining the
instant writ petition.

15. Keeping in view the aforesaid
discussion, the writ petition is dismissed
leaving it open for the petitioners to pursue
other remedies as may be available to them.
----------
(2023) 10 ILRA 1245
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 11761 of 2023

Manoj Kumar Katiyar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dhananjay Kumar Mishra

Counsel for the Respondents:
C.S.C., Sri Ajeet Singh

A. Service Law - Constitution of India -
Article 311(2), Proviso - Conviction u/s
302/34 IPC - Dismissal from service -
Neither
enquiry
was
conducted
nor
conduct
leading
to
conviction
was
considered - Effect - Circumstance when
the dismissal can be made without an
enquiry
-
Held,
the
District
Basic
Education Officer, Kanpur Dehat either
should
have
conducted
inquiry
by
associating the petitioner and affording
him opportunity of hearing and only
thereafter could have passed the order
thereby dismissing petitioner from service
or if the disciplinary authority wanted to
pass order in terms of proviso appended
to Article 311 (2) of the Constitution of
India thereby dismissing the petitioner
from service without holding inquiry, then
he could have done so only by considering
the conduct which led to conviction of the
petitioner. (Para 22)

Writ petition allowed. (E-1)

List of Cases cited:

1. U.O.I. Vs Tulsi Ram Patel; (1985) 3 SCC 398

2. Shyam Narayan Shukla Vs St. of U.P.; 1988
(6) LCD 530

3. Sadanand Mishra Vs St. of U.P.; 1993 LCD 70

4. Ram Kishan Vs St. of U.P. & ors.; 2020 (1)
ADJ 862

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard learned counsel appearing
for the petitioner and learned Standing
Counsel appearing for the Respondent No.
1 as well as Mr. Ajeet Singh, learned
counsel appearing for the Respondents No.
2 & 3.
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Petitioner through this writ petition has
challenged the order dated 26.12.2014
passed by the District Basic Education
Officer, Kanpur Dehat whereby petitioner
has been dismissed from service on the
ground that he has been convicted in
Session Trial No. 531 of 2009 (State Vs.
Manoj Katiyar & Anr. ) arising out of Case
Crime No. 314 of 2009. Petitioner through
this writ petition has also challenged the
order
dated
18.04.2023
whereby
representation of the petitioner for his
reinstatement in service has been rejected.

3. Facts of the case, in brief, are that
the petitioner was initially appointed on the
post of Assistant Teacher in Primary
School Saray, Block Amraudha, District
Kanpur Dehat on 22.11.1999. Thereafter
petitioner was promoted to the post of
Assistant Teacher in Uchcha Prathmik
Vidyalay, Rasoolpur, Block Rasoolabad,
District Kanpur Dehat on 22.01.2007.

4. Petitioner while in service was
implicated in Case Crime No. 314 of 2009
which was registered under Section 498-A,
302/34 I.P.C. Petitioner was subjected to
trial in Session Trial No. 531 of 2009 (State
Vs. Manoj Katiyar & Anr. ) and vide
judgment and order dated 22.01.2013 he
has been convicted and vide order dated
23.01.2013 he has been sentenced for life
imprisonment under Sections 302/34
I.P.C. and rigorous imprisonment of
two years under Section 498-A I.P.C.

5.

District
Basic
Education
Officer, Kanpur Dehat has passed an
order
on
26.12.2014
whereby
petitioner has been dismissed from
service on the ground that he has been
convicted vide judgment and order
dated 22.1.2013 passed in Session
Trial No. 531 of 2009.

6. Petitioner after the aforesaid
judgment and order dated 22.01.2013
passed in Session Trial No. 531 of 2009
was sent to judicial custody. Petitioner has
been granted bail by the Hon'ble Supreme
Court vide order dated 04.01.2023 passed
in Special Leave to Appeal (Crl) No. 10265
of 2022 (Manoj Katiyar Vs. State of U.P. ).

7. Petitioner after being released on
bail
submitted
a
representation
on
27.01.2023 to the District Basic Education
Officer,
Kanpur
Dehat
whereby
he
requested that since he has been released on
bail, therefore, he may be reinstated in
service. The District Basic Education
Officer, Kanpur Dehat in response to the
representation of the petitioner informed
the
petitioner
vide
his
letter
dated
18.04.2023 that the petitioner has already
been dismissed from service vide order
dated 26.12.2014 and copy of the order
dated 26.12.2014 was again provided to the
petitioner through the aforesaid letter.

8. Learned counsel appearing for the
petitioner has argued that Article 311 (2) of
the Constitution of India provides that no
person who is a member of the Civil
Service of the Union or 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 or reduced in rank
except after an inquiry in which he has
been informed of the charges framed
against him and given a reasonable
opportunity of being heard in respect of
those charges provided, no inquiry is
required 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.

9. Learned counsel appearing for the
petitioner has further argued that in view of
10 All. Manoj Kumar Katiyar Vs. State of U.P. & Ors.
1247
the provisions made in Article 311 (2) of
the Constitution of India petitioner would
have been dismissed from service only on
the basis of conduct which led to his
conviction in Session Trial No. 531 of 2009
i.e. disciplinary
authority
was under
obligation to consider the conduct of the
petitioner which led to his conviction and
only thereafter he could have passed the
order for dismissal of the petitioner from
service.

10. Learned counsel appearing for the
petitioner has vehemently argued that the
order dated 26.12.2014 on its face reveals
that the petitioner has been dismissed from
service merely on the ground that he has
been convicted vide judgment and order
dated 22.01.2013 passed in Session Trial
No. 531 of 2009 but the conduct of the
petitioner which led to his conviction has
not been considered at all, therefore, the
order dated 26.12.2014 passed by the
District Basic Education Officer, Kanpur
Dehat is in gross violation of the provisions
made in the aforesaid Article 311 (2) of the
Constitution of India.

11. Learned counsel appearing for the
petitioner has invited attention of this court
towards 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 wherein it has been held that before
denying a government servant from his
constitutional right to an inquiry, the first
consideration
would
be
whether
the
conduct of the concerned government
servant is such which justifies the penalty
of dismissal, removal or reduction in rank.
Hon'ble Supreme Court has further held
that once the conclusion is reached in
respect of the conduct of a government
servant which led to his conviction only
then the government servant can be
dismissed, removed or reduced in rank
from service without conducting inquiry.

12 . Learned counsel appearing for the
petitioner has also relied upon the Division
Bench judgments of this court rendered in
the cases of Shyam Narayan Shukla Vs.
State of U.P. 1988 (6) LCD 530 and
Sadanand Mishra Vs. State of U.P. 1993
LCD 70 and has argued that since the
petitioner has been dismissed from service
vide order dated 26.12.2014 without
considering the conduct which led to his
conviction, therefore, in view of the
provisions made under Article 311 (2) of
the Constitution of India petitioner could
not have been dismissed from service
without conducting an inquiry. Learned
counsel appearing for the petitioner has
thus
concluded
his
arguments
by
submitting that the order dated 26.12.2014
passed by the District Basic Education
Officer, Kanpur Dehat is violative of the
provisions made under Article 311 (2) of
the Constitution of India, therefore,
cannot sustain in the eyes of law and thus
is liable to be quashed by this court.

13. Per contra, learned counsel
appearing for the Respondents No. 2 & 3
has argued that since the petitioner has
been convicted vide judgment and order
dated passed in Session Trial No. 531 of
2009,
therefore,
the
District
Basic
Eduction Officer, Kanpur Dehat has
passed order on 26.12.2014 and thereby
petitioner has been dismissed from
service. Learned counsel appearing for
the Respondents No. 2 & 3 has further
argued that since the petitioner has
already been convicted therefore, order
dated 26.12.2014 whereby petitioner has
been dismissed from service is perfectly
legal and does not violate any provision of
the Constitution of India.
1248 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Learned counsel appearing for the
Respondents No. 2 & 3 thus, has concluded
his arguments and has submitted that there
is neither any illegality nor infirmity in the
order dated 26.12.2014 which is impugned
in the present writ petition, therefore, writ
petition filed by the petitioner is liable to be
dismissed by this court.

15. I have considered submissions
advanced by the learned counsels appearing
for the parties and I find that Article 311
(2) of the Constitution of India provides
that a government servant cannot be
dismissed removed or reduced in rank
without conducting an inquiry in which the
said government servant is associated and
afforded opportunity of hearing but
where
a
government
servant
is
dismissed from service on the ground
of his conduct which led to his
conviction in relation to a crime, then
there is no necessity of holding
inquiry. The Article 311 (2) of the
Constitution of India is extracted as
Under :-

311 (1).............

(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 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."

16. Hon'ble Supreme Court in the
case of Union of India Vs. Tulsi Ram
Patel (1985) 3 SCC 398 has considered the
provisions of Article 311 (2) and has held
that where a government servant is
dismissed from service on the basis of
conduct which led to his conviction then
disciplinary authority is under obligation to
consider the conduct of the government
servant which led to his conviction and
thereafter finding must be recorded that the
conduct of the government servant is such
that he cannot be retained in service. The
relevant portion of the judgment of the
Hon'ble Supreme Court rendered in the
case of Union of India Vs. Tulsi Ram
Patel (Supra) is extracted as under :-

Before, however, any clause of
the second proviso can come into play the
condition laid down in it must be satisfied.
The condition for the application of each of
these clauses is different. In the case of
clause (a) a government servant must be
10 All. Manoj Kumar Katiyar Vs. State of U.P. & Ors.
1249
guilty of conduct deserving the penalty of
dismissal, removal or reduction in rank
which conduct has led to him being
convicted on a criminal charge. In the case
of clause (b) the disciplinary authority must
be satisfied that it is not reasonably
practicable to hold an inquiry. In the case
of clause (c) the President or the Governor
of a State, as the case may be, must be
satisfied that in the interest of the security
of the State, it is not expedient to hold an
inquiry. When these conditions can be said
to be fulfilled will be discussed later while
dealing separately with each of the three
clauses. The paramount thing, however, to
bear in mind is that the second proviso will
apply only where the conduct of a
government servant is such as he deserves
the punishment of dismissal, removal or
reduction in rank. If the conduct is such as
to deserve a punishment different from
those mentioned above, the second proviso
cannot come into play at all, because
Article 311 (2) is itself confined only to
these three penalties. Therefore, before
denying
a
government
servant
his
constitutional right to an inquiry, the first
consideration
would
be
whether
the
conduct of the concerned government
servant is such as justifies the penalty of
dismissal, removal or reduction in rank.
Once that conclusion is reached and the
condition specified in the relevant clause of
the second proviso is satisfied, that proviso
becomes applicable and the government
servant is not entitled to an inquiry. The
extent to which a government servant can
be denied his right to an inquiry formed the
subject-matter of considerable debate at
the Bar and we, therefore, now turn to the
question whether under the second proviso
to Article 311(2) even though the inquiry is
dispensed with, some opportunity at least
should not be afforded to the government
servant to that he is not left wholly without
protection. As most of the arguments on
this Part of the case were common to all
the three clauses of the second proviso, it
will be convenient at this stage to deal at
one place with all the arguments on this
part of the case, leaving aside to be
separately dealt with the other arguments
pertaining only to a particular clause of the
second proviso.

..............

127. 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
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

17. The Division Bench of this court
in the case of Shyam Narayan Shukla Vs.
State of U.P. 1988 (6) LCD page 350 has
considered the provisions of Article 311 (2)
of the Constitution of India and has held as
under :-

The order dated 28.3.1985, by
which Sri Jamuna Prasad Shukla was
dismissed from service, was set aside by
this Court in Writ Petition No 1701 of 1985
merely on the ground that the dismissal
order was based on the conviction of the
petitioner, which was in violation of clause
(a) to the proviso to Article 311 (2) of the
Constitution under which it was incumbent
for the authority concerned to have taken
into consideration the petitioner''s conduct
which had led to his conviction on a
criminal charge under section 302 I.P.C.
For this purpose reliance was placed on a
decision of this Court in Trilok Chandra
Sharma Vs. State of U.P. & others (1984
(2) LCD 294) rendered by a Division
Bench, of which one of us (S.S. Ahmad, J)
was a member. In that judgment, reliance
was placed on a decision of the Supreme
Court in Division Personnel Officer,
Southern Railway and another v. T.R.
Challappan (1976 (1) SCR 783) which has
since been overruled by the Supreme Court
itself in its later decision in Union of India
v. Tulsi Ram Patel ( 1985 (3) SCC 398).
The relevant portion of the Supreme
Court''s judgment in Tulsi Ram Patel''s
case is quoted below :

"Not much remains to be said
about clause (a) of 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 Case, This,
however, has to be done by it ex parte and
by itself. Once the disciplinary authority
reaches to conclusion that the government
10 All. Manoj Kumar Katiyar Vs. State of U.P. & Ors.
1251
servant''s conduct was such as to require
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 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 the particular government
service the court will also strike down the
impugned order. Thus, in Shanker Dass v.
Union of India 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."

7. In view of the above decision of
the Supreme Court, it has to be held that
whenever
a
Government
servant
is
convicted of an offence, he cannot be
dismissed from service merely on, the
ground of conviction but the appropriate
authority has to consider the conduct of
such employee leading to his conviction
and then to decide what punishment is to be
inflicted upon him. In the matter of
consideration of conduct as also the
quantum of punishment the employee has
not to be joined and the decision has to be
taken
by
the
appropriate
authority
independently of the employee who, as laid
down by the Supreme Court, is sot to be
given an opportunity of hearing at that
state.

8. In view of the Supreme Court
judgment in Tulsi Ram Patel''s case (supra)
the decision in Sri Shukla''s earlier writ
petition no. 1701 of 1985 that he was
entitled to a hearing as contemplated under
Article 311 (2) of the Constitution cannot
be said to lay down correct law and the
said decision to the extent that it calls upon
the opposite parties to hold fullfledged
disciplinary enquiry as contemplated by
Article 311 (2) of the Constitution cannot,
therefore, be enforced but to the extent that
it sets aside the order of dismissal dated
28.3.1985 can be enforced against the
opposite parties by requiring them to pass
a
fresh
order
after
taking
into
consideration the conduct of the petitioner,
namely, Sri Jamuna Prasad Shukla, which
had led to his conviction in Sessions Trial
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
No. 946 of 1980 and then to decide the
quantum of punishment which is to be
inflicted upon him.

18. The Division Bench of this court
in the case of Sadanand Mishra Vs. State
of U.P. 1993 LCD 70 has considered the
provisions of Article 311 (2) of the
Constitution of India and has held as under
:-

22. But the legal position as set
out at (ii) above has since been upset by the
Supreme Court in Union of India Vs. Tulsi
Ram Patel 1985 (3) SCC 398 in which the
Supreme Court observed as Under :-

"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 servent 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 Challapan Case. This,
however, has to be done by it ex-parte and
by itself. Once the disciplinary authority
reached to conclusion that the government
servants' conduct was such as to require
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 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
excesive or out of all proportion to the
offence committed or not warranted by the
facts and circumstances of the case or the
requirements of the partcular government
service the court will also strike down the
impugned order. Thus, in Shanker Dass v.
Union of India 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."

19. It will be noticed that in
recording
the
above
principles,
the
Supreme Court over-ruled its previous
judgment in Divisional Officer, Southern
10 All. Manoj Kumar Katiyar Vs. State of U.P. & Ors.
1253
Railway and another v. T. R. Challappan
(1976(1) SCR 783).

20. The principles enunciated by
Hon'ble the Supreme Court are:

(1) 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.

(2) The scrutiny or examination
of conduct of an employee leadng 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.

19. This court has considered the
provisions of Article 311 (2) of the
Constitution of India in the case of Ram
Kishan Vs. State of U.P. & Ors. 2020 (1)
ADJ 862 and had held that on conviction of
an employee on a criminal charge, the
order for dismissal, removal or reduced in
rank cannot be passed unless conduct
which led to his conviction is considered.
The relevant portion of the judgment of this
court rendered in the case of Ram Kishan
Vs. State of U.P. & Ors. (Supra) is
extracted as under :-

"In view of the above decision of
the Supreme Court, it has to be held that
whenever
a
Government
servant
is
convicted of an offence, he cannot be
dismissed from service merely on, the
ground of conviction but the appropriate
authority has to consider the conduct of
such employee leading to his conviction
and then to decide what punishment is to be
inflicted upon him. In the matter of
consideration of conduct as also the
quantum of punishment the employee has
not to be joined and the decision has to be
taken
by
the
appropriate
authority
independently of the employee who, as laid
down by the Supreme Court, is sot to be
given an opportunity of hearing at that
state."

.................

12. In Shankar Das v. Union of
India, 1985 (2) SCR 358, Hon'ble Supreme
Court while referring to power under
Clause (a) of second proviso of Article
311(2) of the Constitution of India, has
observed as under: -

"Be that power like every other
power has to be exercised fairly, justly and
reasonably."

13. Proviso (a) to Article 311 of
the Constitution of India, is an exception to
clause (2) of Article 311, which is
applicable 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. In case of Divisional
Personnel Officer, Southern Railway Vs.
T.R. Chellappan, 1976 (3) SCC 190 (para21), Hon'ble Supreme Court considered
Article 311(2), Proviso (a) and held that
this provision confers power upon the
disciplinary authority to decide whether in
the facts of a particular case, what penalty,
if at all, should be imposed on the
delinquent employee, after taking into
account
the
entire
conduct
of
the
delinquent employee, the gravity of the
misconduct committed by him, the impact
which his misconduct is likely to have on
the administration and other extenuating
circumstances or redeeming features, if
any, present in the case and so on and so
forth. The conviction of the delinquent
employee would be taken as sufficient proof
of misconduct and then the authority will
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
have to embark upon a summary inquiry as
to the nature and extent of the penalty to be
imposed on the delinquent employee and in
the course of the inquiry, if the authority is
of the opinion that the offence is too trivial
or of a technical nature it may refuse to
impose any penalty in spite of the
conviction. The disciplinary authority has
the undoubted power after hearing the
delinquent employee and considering the
circumstances of the case to inflict any
major penalty on the delinquent employee
without any further departmental inquiry, if
the authority is of the opinion that the
employee has been guilty of a serious
offence involving moral turpitude and,
therefore, it is not desirable or conducive
in the interests of administration to retain
such a person in service. In Sushil Kumar
Singhal vs. Regional Manager, Punjab
National Bank, 2010 (8) SCC 573 (Paras24 and 25), Hon'ble Supreme Court
explained the meaning of the words 'moral
turpitude' to mean anything contrary to
honesty, modesty or good morals.

14. Thus, in view of the law laid
down by Hon'ble Supreme Court in the
cases of Tulsiram Patel (supra), T.R.
Chellapan (supra) and Shankar Das
(supra), and two Division Bench judgments
of this court in Shyam Narain Shukla
(supra) and Sadanand Mishra (supra), it
can safely be concluded that while
removing the petitioner from service, the
respondents were bound to consider the
conduct of the petitioner, which has led to
his conviction in the session trial. This was
the condition precedent for the competent
authority to acquire jurisdiction to impose
punishment of removal from service.
However,
the
impugned
order
is
unfortunately silent and does not show
consideration of conduct of the petitioner
which has led to his conviction in the S.T.
No.178 of 2005. It was necessary for the
respondents, while passing the impugned
order, to consider the conduct of the
petitioner leading to his conviction and
then to decide what punishment is to be
inflicted upon him. This has not been done
by the respondent No.2 while removing the
petitioner from service. Therefore, the
impugned order cannot be sustained and is
hereby quashed.

20. Petitioner has been convicted vide
judgment and order dated 22.01.2013
passed in Session Trial No. 531 of 2009.
The District Basic Education Officer,
Kanpur Dehat has passed an order on
26.12.2014 whereby petitioner has been
dismissed from service on the ground of his
conviction in Session Trial No. 531 of
2009.

21. I have perused the order dated
26.12.2014 passed by the District Basic
Education Officer, Kanpur Dehat and I find
that conduct of the petitioner which led to
his conviction in Session Trial No. 531 of
2009 has not been considered at all. Article
311 (2) of the Constitution of India
provides that a government servant cannot
be dismissed, removed or reduced in rank
unless an inquiry is conducted against him
and he is afforded opportunity of hearing
but an exception has been carved out that if
the government servant has been convicted
in relation to a crime then the disciplinary
authority may consider the conduct which
led to conviction of the government servant
and if he finds that the conduct of the
government servant is such that he cannot
be retained in service then he can pass the
order for his dismissal from service and for
doing so inquiry is not required.

22. Petitioner has been dismissed
from service vide order dated 26.12.2014
10 All. Akshay Kumar Vs. State of U.P. & Ors.
1255
on the ground of his conviction in relation
to a crime but nowhere in the said order
conduct of the petitioner which has led to
his conviction has been considered and
therefore, the order dated 26.12.2014 does
not come in the ambit of proviso appended
to Article 311 (2) of the Constitution of
India. The District Basic Education Officer,
Kanpur Dehat either should have conducted
inquiry by associating the petitioner and
affording him opportunity of hearing and
only thereafter could have passed the order
thereby dismissing petitioner from service
or if the disciplinary authority wanted to
pass order in terms of proviso appended to
Article 311 (2) of the Constitution of India
thereby dismissing the petitioner from
service without holding inquiry, then he
could have done so only by considering the
conduct which led to conviction of the
petitioner whereas the District Basic
Education Officer, Kanpur Dehat while
passing order dated 26.12.2014 thereby
dismissing the petitioner from service has
not considered the conduct of the petitioner
which led to his conviction at all, therefore,
the order dated 26.12.2014 impugned in the
present writ petition cannot sustain in the
eye of law.

23 . In view of the aforesaid reasons,
this writ petition is allowed. The order
dated 26.12.2014 passed by the District
Basic Education Officer, Kanpur Dehat is
quashed. The matter is remanded to the
District Basic Education Officer, Kanpur
Dehat to pass a fresh order as per the
provisions made in Article 311 (2) of the
Constitution of India, within two month
from the date of presentation of certified
copy of this order.

24. It is further provided that
reinstatement of the petitioner and his
entitlement for service benefits shall
depend on the outcome of the fresh order to
be passed by the District Basic Education
Officer, Kanpur Dehat.

----------
(2023) 10 ILRA 1255
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 11878 of 2023

Akshay Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Sharma, Sri V.K. Singh (Sr.
Adv.)

Counsel for the Respondents:
C.S.C., Sri Ashish Mishra, Sri Rahul Agrawal

A. Service Law - UP State District Court
Service Rules, 2013
-
Rule 7(ii) -
Disciplinary
enquiry
report
-
Disagreement of disciplinary authority
from the finding of enquiry officer - No
opportunity of hearing was given - Effect
- Remittal of the matter to the Enquiry
Officer to submit report afresh - Validity
challenged - Held, as the law is well laid
down in several decisions of the Court
that no delinquent employee should stand
prejudiced
by
any
action
of
the
disciplinary
authority,
for
want
opportunity of hearing, once the matter is
remitted to the Enquiry Officer to submit
report afresh may be on certain specific
points as have come to be mentioned by
disciplinary authority in its order, it goes
without
saying
that
the
delinquent
employee shall be afforded an opportunity
by the Enquiry Officer - High Court
directed the enquiry officer to provide