# Murari Lal Rathore @ Murari Lal v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 667
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-06
- **Case number:** Writ A No. 5389 of 2017
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/murari-lal-rathore-murari-lal-v-state-of-u-p-ors-46613
- **Pages:** 13

## Headnote

A. Service Law - Dismissal - U.P. Government
Servant (Discipline & appeal) Rules, 1991: First
Proviso to Rule-7 (xii); Constitution of India:
Clause (a) to the second proviso to Article
311(2) - Mere conviction in a criminal case
would not lead to automatic dismissal from
service of the government servant. Since clause
(a) to the second proviso to Article 311(2) of the
Constitution of India as also first proviso to rule-7(xii)
of the Rules of 1991 are exception to the normal rule
of holding inquiry against the government servant
and even opportunity of hearing is not required to be
given to him, therefore, the disciplinary authority
has to scrupulously examine the conduct of the
government servant which led to his conviction
before exercising such jurisdiction. The nature
of guilt established as also the possible defence
available to the government servant are
aspects which requires consideration at the
level of the disciplinary authority. In the event
these aspects are omitted from consideration,
the order of dismissal itself would be rendered
without jurisdiction. (Para 9, 11, 14)

Since the conduct of the petitioner leading to his
conviction has not been examined by the disciplinary
authority within the laid down parameter as such the
order of dismissal, as affirmed in appeal and revision
cannot
be
sustained.
Orders
impugned
dated
01.12.2016, 21.12.2016 and 18.3.2016 accordingly
are liable to be quashed. (Para 18)

Ordinarily, when such orders are quashed a liberty
ought to be granted to the disciplinary authority to
pass a fresh order while considering relevant factors
i.e. conduct of the employee, gravity of charges and
the materials available against him etc. This course,
however, would not be desirable or even permissible
in the facts of the present case since the petitioner
has
attained
the
age
of
superannuation
on
31.12.2018 and the contract of employment has come
to an end. (Para 19)

B. Unless there exists an enabling provision
either in the applicable service rules or any
other provision of law it would not be open for
the disciplinary authority to pass an order in
respect of contract of service after the
employee
has
attained
the
age
of
superannuation. (Para 24)

It is apparent that since the petitioner has attained
the age of superannuation and no provision in law is
shown which permits the disciplinary authority to
examine the conduct of an employee, now, so as to
pass an order of punishment, there would be no
668 INDIAN LAW REPORTS ALLAHABAD SERIES
purpose in remitting back the matter to the
disciplinary authority for a fresh consideration of
petitioner's conduct leading to his conviction. Such a
course would be legally impermissible. (Para 26)

The relief to be granted to the petitioner in such
circumstances will have to be determined by this
Court in view of what has been observed in para-127
of the Constitution Bench judgment in Tulsiram Patel
(infra). The Court will have the jurisdiction to pass
necessary order in respect of the penalty, which in its
opinion would be just and proper in the circumstances
of the case. (Para 27)

In the present case the petitioner has been dismissed
from service on 18.3.2016 and has attained the age of
superannuation on 31.12.2018. He has admittedly not
worked during this period. The proceedings against the
petitioner, consequent upon his conviction in an
offence u/s 307 I.P.C. cannot be said to be without
jurisdiction or arbitrary, on facts. The order of dismissal
has been found wanting on account of nonconsideration of petitioner's conduct leading to his
conviction and has been set aside, for such reasons.
The petitioner would be entitled to all service and
retiral benefits including continuity excluding salary
between 18.3.2016 to 31.12.2018 by applying the
principles of 'no work no pay'. It is however reiterated
that the period between 18.3.2016 to 31.12.2018 shall
be counted for payment of retiral benefits. (Para 28)

Writ petition allowed. (

## Text

_Characters 0–39,998 of 50,384. This is a partial read: ask again with offset=39998 for what follows._

11 All. Murari Lal Rathore @ Murari Lal Vs. State of U.P. & Ors.
667
cadre, is found to be wholly arbitrary, irrational,
suffering from non application of mind and
violative of Articles 14 & 21-A of the Constitution
of India as also in teeth of the Act of 2009. The
Government Order to that extent, accordingly,
stands quashed. All consequential orders passed in
the present bunch of writ petitions passed on
different dates, declining permission to fill up the
posts of Clerks and Class IV employees following
the said Government Order, under challenge in the
present bunch of petitions, are also quashed.

35. As a consequence, the post in Class III and
Class
IV
cadre,
already
sanctioned
vide
Government Order dated 2nd July, 1990, shall
continue to exist and it shall be open to the private
management to make appointments against it by
following the procedure laid down in the Rules of
1984.

36. Writ petitions, accordingly, are allowed.
No order is passed as to costs.
----------
(2021)11ILR A667
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 5389 of 2017

Murari Lal Rathore @ Murari Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vishnu Gupta, Sri Shiv Om Vikram Singh, Sri
Siddhartha Srivastava, Sri Virendra Kumar Gupta

Counsel for the Respondents:
C.S.C., Sri Ramesh Chandra Singh

A. Service Law - Dismissal - U.P. Government
Servant (Discipline & appeal) Rules, 1991: First
Proviso to Rule-7 (xii); Constitution of India:
Clause (a) to the second proviso to Article
311(2) - Mere conviction in a criminal case
would not lead to automatic dismissal from
service of the government servant. Since clause
(a) to the second proviso to Article 311(2) of the
Constitution of India as also first proviso to rule-7(xii)
of the Rules of 1991 are exception to the normal rule
of holding inquiry against the government servant
and even opportunity of hearing is not required to be
given to him, therefore, the disciplinary authority
has to scrupulously examine the conduct of the
government servant which led to his conviction
before exercising such jurisdiction. The nature
of guilt established as also the possible defence
available to the government servant are
aspects which requires consideration at the
level of the disciplinary authority. In the event
these aspects are omitted from consideration,
the order of dismissal itself would be rendered
without jurisdiction. (Para 9, 11, 14)

Since the conduct of the petitioner leading to his
conviction has not been examined by the disciplinary
authority within the laid down parameter as such the
order of dismissal, as affirmed in appeal and revision
cannot
be
sustained.
Orders
impugned
dated
01.12.2016, 21.12.2016 and 18.3.2016 accordingly
are liable to be quashed. (Para 18)

Ordinarily, when such orders are quashed a liberty
ought to be granted to the disciplinary authority to
pass a fresh order while considering relevant factors
i.e. conduct of the employee, gravity of charges and
the materials available against him etc. This course,
however, would not be desirable or even permissible
in the facts of the present case since the petitioner
has
attained
the
age
of
superannuation
on
31.12.2018 and the contract of employment has come
to an end. (Para 19)

B. Unless there exists an enabling provision
either in the applicable service rules or any
other provision of law it would not be open for
the disciplinary authority to pass an order in
respect of contract of service after the
employee
has
attained
the
age
of
superannuation. (Para 24)

It is apparent that since the petitioner has attained
the age of superannuation and no provision in law is
shown which permits the disciplinary authority to
examine the conduct of an employee, now, so as to
pass an order of punishment, there would be no
668 INDIAN LAW REPORTS ALLAHABAD SERIES
purpose in remitting back the matter to the
disciplinary authority for a fresh consideration of
petitioner's conduct leading to his conviction. Such a
course would be legally impermissible. (Para 26)

The relief to be granted to the petitioner in such
circumstances will have to be determined by this
Court in view of what has been observed in para-127
of the Constitution Bench judgment in Tulsiram Patel
(infra). The Court will have the jurisdiction to pass
necessary order in respect of the penalty, which in its
opinion would be just and proper in the circumstances
of the case. (Para 27)

In the present case the petitioner has been dismissed
from service on 18.3.2016 and has attained the age of
superannuation on 31.12.2018. He has admittedly not
worked during this period. The proceedings against the
petitioner, consequent upon his conviction in an
offence u/s 307 I.P.C. cannot be said to be without
jurisdiction or arbitrary, on facts. The order of dismissal
has been found wanting on account of nonconsideration of petitioner's conduct leading to his
conviction and has been set aside, for such reasons.
The petitioner would be entitled to all service and
retiral benefits including continuity excluding salary
between 18.3.2016 to 31.12.2018 by applying the
principles of 'no work no pay'. It is however reiterated
that the period between 18.3.2016 to 31.12.2018 shall
be counted for payment of retiral benefits. (Para 28)

Writ petition allowed. (E-4)

Precedent followed:

1. U.O.I. Vs Tulsiram Patel, AIR 1985 SC 1416 (Para 2)

2. Divisional Personal Officer, Southern Railway Vs
Chillappa, 1976 (3) SCC 190 (Para 2)

3. Mahendra Kumar Vs U.O.I. & ors., Writ Petition No.
27271 of 2014, decided on 12.09.2018 (Para 4)

4. Bhagirathi Jena Vs Board of Directors, O.S.F.C. &
ors., (1999) 3 SCC 666 (Para 20)

5. Dev Prakash Tewari Vs Uttar Pradesh Cooperative
Institutional Service Board Lucknow & ors., (2014) 7
SCC 260 (Para 21)

6. State Bank of Patiala & anr. Vs Ram Niwas Bansal
(dead) through legal representatives, (2014) 12 SCC
106 (Para 22)
7. State of Assam & ors. Vs Padma Ram Borah, AIR
1965 S.C. 473 (Para 23)

8. Bhagirathi Singh Vs St. of U.P. & ors., 2018 (8) ADJ
538 (Para 25)

Precedent distinguished:

1. St. of U.P. & ors. Vs Prem Milan Tiwari Constable,
2015 (3) ADJ 407 (Para 3)

Present
petition
assails
orders
dated
01.12.2016, 21.12.2016 and 18.03.2016.

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Petitioner substantively held the post of
Assistant Development Officer, Panchayat and
was posted at Agra. An order of dismissal came to
be passed against him on account of his conviction
in Sessions Trial No.455 of 2008 (State Vs. Murari
Lal Rathore), vide judgment dated 31.10.2015.
This order has been affirmed in departmental
Appeal and Revision and is assailed in this writ
petition primarily on the ground that there is no
conscious application of mind on part of the
disciplinary authority to the conduct of petitioner
which led to his conviction.

2. Learned counsel for the petitioner places
reliance upon the judgment of the Supreme Court
in the case of Union of India Vs. Tulsiram Patel,
AIR 1985 SC 1416, as also judgment of this Court
in Service Single No. 5907 of 2009. Reliance is
also placed upon the judgment of Supreme Court
in Divisional Personal Officer, Southern Railway
Vs. Chillappa, 1976(3) SCC 190 to submit that the
impugned orders are wholly unsustainable.

3. On behalf of respondents, reliance is
placed upon Para-11 of a Division Bench
Judgment of this Court in State of U.P. and others
Vs. Prem Milan Tiwari Constable, 2015 (3) ADJ
407 which is reproduced hereinafter:-

"We are of the view that the principle
of law which has been laid down by the Supreme
11 All. Murari Lal Rathore @ Murari Lal Vs. State of U.P. & Ors.
669
Court in the decision in S. Nagoor Meera and
recently in B. Jagjeevan Rao's case, (supra)
must govern the facts of the present case. The
respondent was a constable in the police and
was convicted of a heinous crime punishable
under Section 302 of the Penal Code read with
Sections 120B and 149. Can the State be
compelled or required to take back in service
such a person, pending the disposal of the
appeal ? Plainly not. The learned counsel
appearing on behalf of the respondent sought to
distinguish those two decisions on the ground
that the employee had been convicted of offences
under the Prevention of Corruption Act 1988
where the conduct had a direct bearing on the
service of the employee as an officer of the State.
In our view, this would not make any difference
to the construction of clause (a) of the second
proviso to Article 311. What clause (a) of the
second proviso does is to stipulate that the
requirement of clause (2) of holding an inquiry
consistent with the principles of natural justice
would not apply where a person is dismissed,
removed or reduced in rank on the ground of
conduct which had led to his conviction on a
criminal charge. In the present case, the
respondent was a constable in the police. He
was found guilty after a session's trial of an
offence punishable under Section 302 read with
Section 120B of the Penal Code. In such a case,
clause (a) of the second proviso to Article 311
(2) would clearly stand attracted. The State
cannot be regarded as having acted with
perversity in dismissing a person who has been
convicted of a serious offence of the nature
involved in pursuance of the provisions of the
second proviso to Article 311 (2) and, as in the
present case, under Rule 8(2)(a) which is pari
materia. The learned Single Judge, with respect,
was in error in holding that there was no
application of mind to the conduct which has led
to the conviction. The conduct of the respondent
which has led to the conviction of a charge
under Section 302 cannot, by any circumstance,
be regarded as warranting any treatment other
than the punishment of dismissal under clause
(a) of the second proviso to Article 311 (2) or
under Rule 8(2)(a). Ultimately, as has been held
by the Supreme Court until the conviction is set
aside by an appellate or higher court, it would
not be advisable to retain such a person in
service. If he succeeds in the appeal or in any
other proceeding, the matter can always be
reviewed in such a manner that he would not
suffer any prejudice."

4. Reliance is also placed by the learned
Standing Counsel upon the judgment of this
Court in Writ Petition No. 27271 of 2014
(Mahendra Kumar Vs. Union of India and
others) decided on 12.9.2018.

5. Learned counsel for the petitioner, in
reply, submits that the Division Bench judgment
in the case of Prem Milan Tiwari (supra) is
distinguishable on facts and has no applicability
in this case since the petitioner therein was a
constable punished of an offence under Section
302 read with 120-B I.P.C., which is not the case
here. It is also stated that the judgment in the
case of Mahendra Kumar (supra) merely
examined as to whether suspension of sentence
during the pendency of appeal would entitle the
dismissed employee to reinstatement in service.
It is further urged that as the petitioner has
attained
the
age
of
superannuation
on
31.12.2018, therefore, the authorities ought not
be permitted to even revisit the issue now and
the petitioner be held entitled to all service and
retiral benefits.

6. Learned counsel for the petitioner has
placed before the Court the conviction order to
submit that cross first information reports were
lodged in respect of the incident in question
wherein the place of occurrence was the house
of petitioner Murari Lal Rathore. In his defence
it is pointed out that petitioner's son was
attacked at his house and he sustained gun shot
injuries. Contention is that petitioner and other
670 INDIAN LAW REPORTS ALLAHABAD SERIES
family members only acted in self defence and
that the implication of petitioner in criminal case
is wholly false and concocted.

7. I have heard Sri Siddharth Srivastava,
learned counsel for the petitioner and Sri Sharad
Chandra Upadhyay, learned State counsel for the
respondents and have perused the materials on
record.

8. The order of conviction passed in S.T.
No. 455 of 2008, dated 31.10.2015, is on record
of the petition as Annexure-5. From its perusal it
transpires that Case Crime No. 152 of 2006
under Sections 307 and 504 I.P.C. was lodged
against the petitioner in which he has been
convicted with life imprisonment together with
penalty of Rs. 20,000/-. A Criminal Appeal No.
4975 of 2015 is instituted against the order of
conviction in which the petitioner has been
enlarged on bail. Cross cases were registered
from both the sides and the Sessions Court has
clearly recorded that the place of alleged
occurrence of offence is the residential house of
the petitioner Murari Lal Rathore. A further
finding is returned that on some issue the parties
entered into an altercation which converted into
a free fight. Petitioner's defence that he was not
the aggressor and was was attacked by the other
faction is yet to be examined in pending criminal
appeal although the petitioner's plea that his
actions were all in self defence has not been
accepted by the trial judge. Since the appeal is
pending
consideration
before
this
Court
therefore this court is not required to make any
observation in respect of the petitioner's defence
or the merits of the conclusion drawn by the trial
judge as the issues are yet to be examined in
appeal.

9. What is required to be seen in the facts
of the present case is as to whether dismissal
from service would be a necessary consequence
of petitioner's conviction in the aforesaid case or
requires a conscious application of mind on part
of the disciplinary authority to the conduct of the
petitioner which led to his conviction?

10. The order of dismissal merely records
that
petitioner
has
been
convicted
to
imprisonment of life in S.T. No. 455 of 208 and
is incarcerated in jail therefore in view of the
Government Order dated 12.10.1979, the
petitioner is being dismissed from service from
the date of his incarceration in jail i.e.
31.10.2015.

11. The issue as to whether conviction in a
criminal case would automatically lead to
dismissal of the employee from service has been
examined in the case of Tulsiram Patel (supra)
while interpreting clause (a) to the second
proviso of Article 311 (2) of the Constitution of
India in following words:-

"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 case [(1976) 3
SCC 190 : 1976 SCC (L&S) 398 : (1976) 1 SCR
783] . 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
11 All. Murari Lal Rathore @ Murari Lal Vs. State of U.P. & Ors.
671
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 that particular government
service the court will also strike down the
impugned order. Thus, in Shankar Dass v.
Union of India [(1985) 2 SCC 358 : 1985 SCC
(L&S) 444] 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."
 (emphasis supplied)

12. Even before it, the Supreme Court in
Divisional Personal Officer, Southern Railway
(supra) observed as under in para-9:-

"9. In the instant case we are
concerned only with clause (i) of Rule 14 of the
Rules of 1968 which runs thus:

"Notwithstanding anything contained
in Rules 9 to 13:

(1) where any penalty is imposed on a
railway servant on the ground of conduct which
has led to his conviction on a criminal charge,
the disciplinary authority may consider the
circumstances of the case and make such orders
thereon as it deems fit."

The word ''penalty' imposed on a
railway servant, in our opinion, does not refer to
a sentence awarded by the court to the accused
on his conviction, but though not happily
worded it merely indicates the nature of the
penalty imposable by the disciplinary authority
if the delinquent employee has been found guilty
of conduct which has led to his conviction on a
criminal charge. Rule 14 of the Rules of 1968
appears in Part IV which expressly contains the
procedure for imposing penalties. Furthermore,
Rule 14 itself refers to Rules 9 to 13 which
contain the entire procedure for holding a
departmental inquiry. Rule 6 of Part III gives the
details regarding the major and minor penalties.
Finally Rule 14(i) merely seeks to incorporate
the principle contained in proviso (a) to Article
311(2) of the Constitution which runs thus:

"(2) No such person as aforesaid shall
be dismissed or removed or reduced in rank
except after an inqury in which he has been
informed of the charges against him and given a
reasonable opportunity of being heard in respect
of those charges and where it is proposed, after
such inquiry, to impose on him any such penalty,
until he has been given a reasonable opportunity
of making representation on the penalty
proposed, but only on the basis of the evidence
adduced during such inquiry:

Provided that this clause shall not
apply--

(a) where a person is dismissed or
removed or reduced in rank on the ground of
672 INDIAN LAW REPORTS ALLAHABAD SERIES
conduct which has led to his conviction on a
criminal charge."

An analysis of the provisions of Article
311(2)(a) extracted above would clearly show that
this constitutional guarantee contemplates three
stages of departmental inquiry before an order of
dismissal, removal or reduction can be passed,
namely, (i) that on receipt of a complaint against a
delinquent employee charges should be framed
against him and a departmental inquiry should be
held against him in his presence; (ii) that after the
report of the departmental inquiry is received, the
appointing authority must come to a tentative
conclusion regarding the penalty to be imposed on
the delinquent employee; and (iii) that before
actually imposing the penalty a final notice to the
delinquent employee should be given to show
cause why the penalty proposed against him be not
imposed on him. Proviso (a) to Article 311(2),
however, completely dispenses with all the three
stages of departmental inquiry when an employee
is convicted on a criminal charge. The reason for
the proviso is that in a criminal trial the employee
has already had a full and complete opportunity to
contest the allegations against him and to make
out his defence. In the criminal trial charges are
framed to give clear notice regarding the
allegations made against the accused, secondly,
the witnesses are examined and cross-examined in
his presence and by him; and thirdly, the accused
is given full opportunity to produce his defence
and it is only after hearing the arguments that the
Court passes the final order of conviction or
acquittal. In these circumstances, therefore, if after
conviction by the Court a fresh departmental
inquiry is not dispensed with, it will lead to
unnecessary waste of time and expense and a
fruitless duplication of the same proceedings all
over again. It was for this reason that the founders
of the Constitution thought that where once a
delinquent employee has been convicted of a
criminal offence that should be treated as a
sufficient proof of his misconduct and the
disciplinary authority may be given the discretion
to impose the penalties referred to in Article
311(3), namely, dismissal, removal or reduction in
rank. It appears to us that proviso (a) to Article
311(2) is merely an enabling provision and it does
not enjoin or confer a mandatory duty on the
disciplinary authority to pass an order of
dismissal, removal or reduction in rank the
moment an employee is convicted. This matter is
left completely to the discretion of the disciplinary
authority and the only reservation made is that
departmental
inquiry
contemplated
by
this
provision as also by the Departmental Rules is
dispensed with. In these circumstances, therefore,
we think that Rule 14(i) of the Rules of 1968 only
incorporates the principles, enshrined in proviso
(a) to Article 311(2) of the Constitution. The words
"where any penalty is imposed" in Rule 14(i)
should actually be read as "where any penalty is
imposable", because so far as the disciplinary
authority is concerned it cannot impose a sentence.
It could only impose a penalty on the basis of the
conviction and sentence passed against the
delinquent employee by a competent court.
Furthermore the rule empowering the disciplinary
authority to consider circumstances of the case
and make such orders as it deems fit clearly
indicates that it is open to the disciplinary
authority to impose any penalty as it likes. In this
sense, therefore, the word "penalty" used in Rule
14(i) of the Rules of 1968 is relatable to the
penalties to be imposed under the Rules rather
than a penalty given by a criminal court."

13. Respondents have invoked first proviso
to Rule-7 (xii) of the U.P. Government Servant
(Discipline & Appeal) Rules, 1991 which is
similar to clause (a) to the second proviso to
Article 311 (2) of the Constitution of India.
Relevant portion of rule of the Rules of 1991 is
reproduced:-

"7. Procedure for imposing major
penalties. -

(xi) The disciplinary authority, if it
considers it necessary to do so, may, by an order
appoint a Government servant or a legal
11 All. Murari Lal Rathore @ Murari Lal Vs. State of U.P. & Ors.
673
practitioner, to be known as "Presenting
Officer" to present on its behalf the case in
support of the charge.

(xii) The Government servant may take
the assistance of any other Government servant
to present the case on his behalf but not engage
a legal practitioner for the purpose unless the
Presenting Officer appointed by the disciplinary
authority is a legal practitioner of the
disciplinary authority having regard to the
circumstances of the case so permits :

Provided that this rule shall not apply
in following cases :

(i) Where any major penalty is
imposed on a person on the ground of conduct
which has led to his conviction on a criminal
charge; or

(ii) Where the disciplinary authority is
satisfied that for reason to be recorded by it in
writing, that it is not reasonably practicable to
hold an inquiry in the manner provided in these
rules; or

(iii) Where the Governor is satisfied
that, in the interest of the security of the State, it
is not expedient to hold an inquiry in the manner
provided in these rules."

14. The authoritative pronouncement of
law by Supreme Court in Tulsi Ram Patel
(supra) is consistently followed and it is by now
well settled that mere conviction in a criminal
case would not lead to automatic dismissal from
service of the government servant. Since clause
(a) to the second proviso to Article 311(2) of the
Constitution of India as also first proviso to rule7 (xii) of the Rules of 1991 are exception to the
normal rule of holding inquiry against the
government servant and even opportunity of
hearing is not required to be given to him,
therefore, the disciplinary authority has to
scrupulously examine the conduct of the
government servant which led to his conviction
before exercising such jurisdiction. The nature
of guilt established as also the possible defence
available to the government servant are aspects
which requires consideration at the level of the
disciplinary authority. In the event these aspects
are omitted from consideration, the order of
dismissal itself would be rendered without
jurisdiction.

15. Sri Shadra Chandra Upadhyay, learned
State Counsel has however placed reliance upon
the judgment of Division Bench of this Court in
Prem Milan Tiwari (supra) to submit that where
offence is so glaring and admits of no second
opinion, the dismissal of employee from service
would clearly be justified.

16. The Division Bench in Prem Milan
Tiwari (supra) was confronted with a case where
the dismissed employee was a constable and was
convicted of an offence under Section 302 I.P.C.
It was in that context that the court observed that
clause (a) to the second proviso to Article 311(2)
of the Constitution of India would be attracted
and unless the conviction is reversed in appeal,
the relief of reinstatement in service would be
impermissible.

17. The judgment in Prem Milan Tiwari
(supra) is on the facts of its own and does not lay
down any proposition of law distinct from what
is laid down by the Supreme Court in the case of
Tulsiram Patel (supra). The facts of the present
case are moreover not similar to the facts of the
case in Prem Milan Tiwari (supra).

18. Since the conduct of the petitioner
leading to his conviction has not been examined
by the disciplinary authority within the laid
down parameter as such the order of dismissal,
as affirmed in appeal and revision cannot be
sustained. Orders impugned dated 1.12.2016,
21.12.2016 and 18.3.2016 accordingly are liable
to be quashed.

19. Ordinarily, when such orders are
quashed a liberty ought to be granted to the
disciplinary authority to pass a fresh order while
674 INDIAN LAW REPORTS ALLAHABAD SERIES
considering relevant factors i.e. conduct of the
employee, gravity of charges and the materials
available against him etc. This course, however,
would not be desirable or even permissible in
the facts of the present case since the petitioner
has attained the age of superannuation on
31.12.2018 and the contract of employment has
come to an end.

20. Sri Siddharth Srivastava, learned
counsel for the petitioner has placed reliance
upon the judgment of Supreme Court in
Bhagirathi Jena Vs. Board of Directors, O.S.F.C.
And others, (199) 3 SCC 666 wherein the
Supreme Court has observed as under in paras 6
& 7:-

"6. It will be noticed from the
abovesaid regulations that no specific provision
was made for deducting any amount from the
provident fund consequent to any misconduct
determined in the departmental enquiry nor was
any
provision
made
for
continuance
of
departmental enquiry after superannuation.

7. In view of the absence of such
provisions in the abovesaid regulations, it must
be held that the Corporation had no legal
authority to make any reduction in the retiral
benefits of the appellant. There is also no
provision for conducting a disciplinary enquiry
after retirement of the appellant and nor any
provision stating that in case misconduct is
established, a deduction could be made from
retiral benefits. Once the appellant had retired
from service on 30.6.95, there was no authority
vested in the Corporation for continuing the
departmental enquiry even for the purpose of
imposing any reduction in the retiral benefits
payable to the appellant. In the absence of such
authority, it must be held that the enquiry had
lapsed and the appellant was entitled to full
retiral benefits on retirement."

21. Again in Dev Prakash Tewari Vs. Uttar
Pradesh Cooperative Institutional Service Board
Lucknow and others, (2014) 7 SCC 260, the
Supreme court has observed as under in para
Nos. 6 to 9:-

"6. An occasion came before this
Court
to
consider
the
continuance
of
disciplinary inquiry in similar circumstance in
Bhagirathi Jena case [Bhagirathi Jena v. Orissa
State Financial Corpn., (1999) 3 SCC 666 :
1999 SCC (L&S) 804] and it was laid down as
follows: (SCC pp. 668-69, paras 5-7)

"5. Learned Senior Counsel for the
respondents also relied upon clause (3)(c) of
Regulation 44 of the Orissa State Financial
Corporation Staff Regulations, 1975. It reads
thus:

''44. (3)(c) When the employee who
has been dismissed, removed or suspended is
reinstated, the Board shall consider and make a
specific order:

(i) Regarding the pay and allowances
to be paid to the employee for the period of his
absence from duty, and

(ii) Whether or not the said period
shall be treated as a period on duty.'

6. It will be noticed from the abovesaid
Regulations that no specific provision was made
for deducting any amount from the provident
fund consequent to any misconduct determined
in the departmental enquiry nor was any
provision
made
for
continuance
of
the
departmental enquiry after superannuation.

7. In view of the absence of such a
provision in the abovesaid Regulations, it must
be held that the Corporation had no legal
authority to make any reduction in the retiral
benefits of the appellant. There is also no
provision for conducting a disciplinary enquiry
after retirement of the appellant and nor any
provision stating that in case misconduct is
established, a deduction could be made from
retiral benefits. Once the appellant had retired
from service on 30-6-1995, there was no
authority
vested
in
the
Corporation
for
continuing the departmental enquiry even for the
11 All. Murari Lal Rathore @ Murari Lal Vs. State of U.P. & Ors.
675
purpose of imposing any reduction in the retiral
benefits payable to the appellant. In the absence
of such an authority, it must be held that the
enquiry had lapsed and the appellant was
entitled to full retiral benefits on retirement."

7. In a subsequent decision of this
Court in U.P. Coop. Federation case [U.P.
Coop. Federation Ltd. v. L.P. Rai, (2007) 7 SCC
81 : (2007) 2 SCC (L&S) 598] on facts, the
disciplinary proceeding against employee was
quashed by the High Court since no opportunity
of hearing was given to him in the inquiry and
the management in its appeal before this Court
sought for grant of liberty to hold a fresh inquiry
and this Court held that charges levelled against
the employee were not minor in nature, and
therefore, it would not be proper to foreclose the
right of the employer to hold a fresh inquiry only
on the ground that the employee has since
retired from the service and accordingly granted
the liberty sought for by the management. While
dealing with the above case, the earlier decision
in Bhagirathi Jena case [Bhagirathi Jena v.
Orissa State Financial Corpn., (1999) 3 SCC
666 : 1999 SCC (L&S) 804] was not brought to
the notice of this Court and no contention was
raised pertaining to the provisions under which
the disciplinary proceeding was initiated and as
such no ratio came to be laid down. In our view
the said decision cannot help the respondents
herein.

8. Once the appellant had retired from
service on 31-3-2009, there was no authority
vested with the respondents for continuing the
disciplinary proceeding even for the purpose of
imposing any reduction in the retiral benefits
payable to the appellant. In the absence of such
an authority it must be held that the enquiry had
lapsed and the appellant was entitled to get full
retiral benefits.

9. The question has also been raised in
the appeal with regard to arrears of salary and
allowances payable to the appellant during the
period of his dismissal and up to the date of
reinstatement. Inasmuch as the inquiry had
lapsed, it is, in our opinion, obvious that the
appellant would have to get the balance of the
emoluments payable to him."

22. In State Bank of Patiala and another
Vs. Ram Niwas Bansal (dead) through legal
representatives (2014) 12 SCC 106, the Supreme
Court has observed in Para Nos. 14, 15 and 31
as under:-

"14. The three issues that eminently
emerge for consideration are:

(i) whether the employer Bank could
have, in law, passed an order of dismissal with
retrospective effect;

(ii) whether the delinquent officer
stood superannuated after completion of thirty
years, as provided under the Regulations, on 252-1992; and

(iii) whether the legal heirs of the
deceased employee are entitled to get the entire
salary computed till the actual passing of the
order of dismissal, that is, 22-11-2001 or for
that matter till the date of superannuation, that
is, 25-2-1992.

15. Regard being had to the nature of
controversy, we shall proceed to deal with the
first point first, that is, whether the order of
removal
could
have
been
made
with
retrospective effect. Mr Patwalia, learned Senior
Counsel appearing for the employee, has
submitted that the disciplinary authority could
not have passed an order of removal by making
it operational from a retrospective date. He has
commended us to a three-Judge Bench decision
in R. Jeevaratnam v. State of Madras [R.
Jeevaratnam v. State of Madras, AIR 1966 SC
951] . In the said case, the appellant therein
instituted a suit for a declaration that the order
of dismissal from service was illegal and void.
The trial court dismissed the suit and the said
decree was affirmed in appeal by the High
Court. One of the contentions raised before this
Court was that the order of dismissal dated 1710-1950 having been passed with retrospective
676 INDIAN LAW REPORTS ALLAHABAD SERIES
effect
i.e.
29-5-1949,
was
illegal
and
inoperative. This Court opined that an order of
dismissal with retrospective effect is, in
substance, an order of dismissal as from the
date of the order with the superadded direction
that the order should operate retrospectively as
from an anterior date. The two parts of the order
are clearly severable. Assuming that the second
part of the order is invalid, there is no reason
why the first part of the order should not be
given the fullest effect. The said principle has
been followed in Gujarat Mineral Development
Corpn. v. P.H. Brahmbhatt [(1974) 3 SCC 601 :
1974 SCC (L&S) 102] .

31. In the case at hand, the said stage
is over. The Full Bench on the earlier occasion
had already rendered a verdict that serious
prejudice had been caused and, accordingly,
had directed for reinstatement. The said
direction, if understood and appreciated on the
principles stated in B. Karunakar [ECIL v. B.
Karunakar, (1993) 4 SCC 727 : 1993 SCC
(L&S) 1184 : (1993) 25 ATC 704] , is a
direction for reinstatement for the purpose of
holding a fresh enquiry from the stage of
furnishing the report and no more. In the case at
hand, the direction for reinstatement was stayed
by this Court. The Bank proceeded to comply
with the order of the High Court from the stage
of reply of enquiry. The High Court by the
impugned order [Ram Niwas Bansal v. State
Bank of Patiala, (2002) 2 SLR 375 (P&H)] had
directed payment of back wages to the
delinquent officer from the date of dismissal till
passing of the appropriate order in the
disciplinary proceeding/superannuation of the
petitioner therein whichever is earlier. The Bank
has passed an order of dismissal on 22-11-2001
with effect from 23-4-1985. The said order, as
we perceive, is not in accord with the principle
laid down by the Constitution Bench decision in
B. Karunakar [ECIL v. B. Karunakar, (1993) 4
SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25
ATC 704] , for it has been stated there that in
case of non-furnishing of an enquiry report the
court can deal with it and pass an appropriate
order or set aside the punishment and direct
reinstatement
for
continuance
of
the
departmental proceedings from that stage. In the
case at hand, in the earlier round the
punishment was set aside and direction for
reinstatement was passed. Thus, on the face of
the said order it is absolutely inexplicable and
unacceptable that the Bank in 2001 can pass an
order with effect from 23-4-1985 which would
amount to annulment of the judgment [Ram
Niwas Bansal v. State Bank of Patiala, (1998) 4
SLR 711 : (1998) 119 PLR 768] of the earlier
Full Bench. As has been held by the High Court
in the impugned judgment [Ram Niwas Bansal v.
State Bank of Patiala, (2002) 2 SLR 375 (P&H)]
that when on the date of non-furnishing of the
enquiry report the delinquent officer was
admittedly not under suspension, but was in
service and, therefore, he would continue in
service till he is dismissed from service in
accordance with law or superannuated in
conformity with the Regulations. How far the
said direction is justified or not or how that
should be construed, we shall deal with while
addressing the other points but as far as the
order of removal being made retrospectively
operational, there can be no trace of doubt that
it cannot be made retrospective."

23. In State of Assam and others Vs.
Padma Ram Borah, AIR 1965 S.C. 473, the
Constitution Bench of Supreme Court has
observed as under in Para-7:-

"7. Let us proceed on the footing, as
urged by learned counsel for the appellant, that
the order dated December 22, 1960 itself
amounts to an order retaining the respondent in
service till departmental proceedings to be
drawn up against him are finalised. We shall
also assume that the finalisation of the
departmental proceedings mentioned in the
order is a public ground on which the
respondent could be retained in service. As the
11 All. Murari Lal Rathore @ Murari Lal Vs. State of U.P. & Ors.
677
order was passed by the State Government itself,
no. question of taking its sanction arises and we
think that the High Court was wrong in holding
that the absence of sanction from the state
Government made the order bad. Therefore, the
effect of the order dated December 22, 1960 was
two-fold : firstly, it placed the respondent under
suspension and secondly, it retained the
respondent
in
service
all
departmental
proceedings against him were finalised. We treat
the order as an order under Fundamental Rule
56 which order having been made before
January 1, 1961, the date of respondent's
retirement, cannot be bad on the ground of
retrospectivity. Then, we come to the order
dated January 6, 1961. That order obviously
modified the earlier order of December 22, 1960
inasmuch as it fixed a period of three months
from January 1, 1961 or till the disposal of the
departmental proceedings, whichever is earlier,
for retaining the respondent in service.