# Prakash Chandra Mishra v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 1214
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Writ-A No. 10371 of 2022
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-chandra-mishra-v-state-of-u-p-ors-50855
- **Pages:** 7

## Headnote

A. Service Law - Constitution of India -
Article 311 - UP Subordinate Rank
Officers Police Officers (Discipline and
Appeal) Rules, 1991 - Rule 8(2)A -
Dismissal from service - Ground of
conviction order was taken, which was
stayed and subsequently set aside in the
Criminal Appeal - Validity challenged -
No assessment regarding conduct of
petitioner was made - Effect - Held,
authority is required to record reasons
for dismissing the employee on the
ground of conviction in a criminal case
as
to
why
his
continuance
would
adversely
affect
the
government
establishment - There is no evaluation
or
assessment
otherwise
qua
the
conduct
of
the
petitioner
for
the
purposes
of
taking
a
decision
to
continue a convicted employee in the
establishment or not - Held further,
once the petitioner has been acquitted
in the criminal case and the only ground
taken in the order impugned terminating
the services is the conviction in such
criminal case, the order impugned is also
not sustainable on merits. (Para 23, 25
and 27)

Writ petition allowed. (E-1)
List of cases cited:

## Text

1214 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 1 ILRA 1214
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 10371 of 2022

Prakash Chandra Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - Constitution of India -
Article 311 - UP Subordinate Rank
Officers Police Officers (Discipline and
Appeal) Rules, 1991 - Rule 8(2)A -
Dismissal from service - Ground of
conviction order was taken, which was
stayed and subsequently set aside in the
Criminal Appeal - Validity challenged -
No assessment regarding conduct of
petitioner was made - Effect - Held,
authority is required to record reasons
for dismissing the employee on the
ground of conviction in a criminal case
as
to
why
his
continuance
would
adversely
affect
the
government
establishment - There is no evaluation
or
assessment
otherwise
qua
the
conduct
of
the
petitioner
for
the
purposes
of
taking
a
decision
to
continue a convicted employee in the
establishment or not - Held further,
once the petitioner has been acquitted
in the criminal case and the only ground
taken in the order impugned terminating
the services is the conviction in such
criminal case, the order impugned is also
not sustainable on merits. (Para 23, 25
and 27)

Writ petition allowed. (E-1)
List of cases cited:

1. U.O.I.Vs Tulsi Ram Patel; AIR 1985 SC 1416

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

3. Ratan Singh Vs St. of U.P. & ors.; 2013 (11)
ADJ 352

4. Biresh Kumar Vs St. of UP & or.s; 2014 (9)
ADJ 768 (DB)

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Arvind Srivastava,
learned
Advocate
appearing
for
the
petitioner and Sri P.K. Srivastava, learned
Additional Chief Standing Counsel for the
State-respondents.

2. This is the fourth round of
litigation by the petitioner questioning the
decision of the disciplinary authority in
dispensing with/terminating the services of
the petitioner only on the ground that he
has been convicted and sentenced in a
criminal case under the judgment and order
dated 25.03.2004 in Session Trial No.396
of 1999 which he appealed against before
the High Court in Criminal Appeal
No.1706 of 2004. The conviction of the
petitioner
has
been
under
Sections
307/504/506
Indian
Penal
Code
and
Section 35 of the Arms Act. In the pending
criminal appeal petitioner had already been
enlarged on bail as the execution of the
sentence has been stayed by the order of
the Court and later on conviction and
sentence has been set aside as the Criminal
Appeal stood allowed.

3. It is to equally worth to mention
here that on account of petitioner being sent
to jail as a result of conviction in the
session trial case, petitioner could be
released on bail only in Criminal appeal
and so he could not report for duty and
1 All. Prakash Chandra Mishra Vs. State of U.P. & Ors.
1215
resultantly he faced dismissal from service
on account of absence from duty.

4. The challenge to the said order of
dismissal has been successful as the writ
petition filed by the petitioner was allowed
on 05.05.2015 holding that the dismissal
from service was too harsh looking to the
charges of absence from duty and the fact
that
petitioner
had been
absent
for
absolutely those reasons and circumstances
which were beyond his control. The Court
passed an order remitting the matter to look
into the grievance of the petitioner afresh
and take appropriate decision in accordance
with law.

5. While authority proceeded to
examine the matter on remand this time,
dismissed him from service exercising
power under Rule 8(2)A of the UP
Subordinate Rank Officers Police Officers
(Discipline and Appeal) Rules, 1991 for the
reason that petitioner had been held guilty
in the criminal case arising out of Case
Crime No.257/1995 (S.T. No.224/1998)
under Sections 307/504/506 IPC and has
been sentenced for seven years rigorous
imprisonment and further fine of Rs.3000/-.
This order passed on 13.06.2015 came to
be challenged again in writ petition being
Writ-A No.38896 of 2015 and the Court
relying upon the judgment in the case of
Union of India vs. Tulsi Ram Patel; AIR
1985 SC 1416, judgment of this Court in
the case of Sadanand Mishra vs. State of
UP; 1993 LCD 70, Ratan Singh vs. State
of UP and ors; 2013 (11) ADJ 352 and
Biresh Kumar vs. State of UP and ors
2014 (9) ADJ 768 (DB) held that dismissal
of an employee ipso facto on account of
conviction was not a permissible action
because the disciplinary authority was
required to not only give an opportunity of
hearing but to examine that the act and
conduct of the employee in the criminal
case looking to the facts and allegations
that were borne out in the discussions made
by the trial judge to find whether amount to
moral turpitude so as to hold him unfit for a
government employment more especially
in police force. Thus, the Court allowed the
writ petition setting aside the order dated
13.06.2015 and directed the authorities to
examine the conduct of the petitioner in the
matter so as to justify whether he deserved
punishment
like
dismissal/removal/reduction in rank within
the meaning of provision (a) of Article
311(2) of the Constitution of India.

6. This order was further challenged
unsuccessfully before the Special Appellate
Bench which dismissed the intra-Court
appeal on 20.11.2018 being Special Appeal
No.635
of
2016
vide
order
dated
20.11.2018.

7. Petitioner this time represented the
matter again before the 42nd Battalion,
PAC,
Naini,
Prayagraj
and
the
Commandant
passed
the
order
on
16.12.2019 holding representation of the
petitioner to be meritless and devoid of any
force as the explanations offered by the
petitioner were found to be not satisfactory
and then maintained the order dated
13.06.2015.

8. Three-fold arguments have been
advanced by the counsel for the petitioner:
(a) once the order dated 13.06.2015 had
been set aside by this Court under the
judgment and order dated 19.05.2016
passed in Writ-A No.38896 of 2015 and
Special Appeal filed by the State was also
dismissed, such an order having lost its
existence could not have been held to be
still maintained or otherwise revived by the
authority; (b) there is no finding returned
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
by the authority that the act and conduct
discussed in the judgment of the trial judge
amounted to establish a case of moral
turpitude against the petitioner so as to
justify his dismissal from service; and (c)
the authorities have not even adverted to
the issue as to whether merely because
sentence has been stayed petitioner did
not deserve such a harsh punishment like
dismissal from service in absence of any
departmental proceeding so as to hold
him guilty otherwise of the charges.

9. The argument is that there is no
reflection on the conduct of petitioner
while working in the establishment like
police force and except for this solitary
incident the rest of the service rendered
by petitioner and his character roll were
not taken into account at all.

10. Per contra, learned advocate
appearing for the State has sought to
justify the order impugned for the reasons
assigned therein.

11. Having heard learned counsel
for the parties and having perused the
record, I find that three points are to be
considered,
firstly,
as
to
whether
authority was justified in reiterating the
order which had already been set aside by
this Court; and secondly, whether the
findings returned holding petitioner liable
for dismissal from service are sustainable
in law in light of the authorities cited by
the learned counsel for the petitioner and
lastly whether, after criminal appeal
stood allowed setting aside conviction and
sentence, petitioner's service deserved to be
restored.

12. I find that departmental appeal
had been dismissed both on delay and on
merit.

13. Lookingto the principal order
passed
by
the
Commandant
42ndBattalion PAC Naini, Prayagraj
dated 16.12.2019, I find that the show
cause notice that is referred to in para 5
of the said order required petitioner to
furnish his explanation as to why the
earlier
order
passed
on
13.06.2015
terminating the services of the petitioner
may not be maintained. Para 6 refers to
letter of the petitioner seeking further
thirty
days?
time
to
furnish
his
explanation and after he was awarded
extra
time,
he
submitted
his
representation along with all documents
and annexure on 02.11.2019. Petitioner
also referred to judgment of Supreme
Court in the case of Tulsi Ram Patel
(supra) decided on 20.11.2018. Vide para
7, the disciplinary authority refers to
various paragraphs of the representation
of the petitioner that bear his explanation
to the show cause notice. The explanation
offered by the petitioner was that the
earlier order passed by the authority not
permitting the petitioner to join his
service was quashed by the High Court
on 05.05.2015 and yet again the services
of the petitioner came to be dispensed
with on the ground that petitioner had
been convicted in the criminal case. The
plea was also taken that in the pending
criminal appeal before High Court, the
order passed by the trial judge dated
25.07.2018 was stayed and the petitioner
was directed to be reinstated in service.

14. In the circumstances, therefore, it
was pleaded that petitioner required to be
heard in the matter and yet the prescribed
procedure was not followed and the
services
were
dispensed
with.
This
explanation offered by the petitioner has
been rejected by the disciplinary authority
for the reason that petitioner had remained
1 All. Prakash Chandra Mishra Vs. State of U.P. & Ors.
1217
absent from 21.04.2004 and, therefore, he
was rightly terminated from service on
10.05.2011 and since Court had directed to
consider the matter again looking to the
representation of the petitioner vide its
order dated 05.05.2015 again after looking
into the explanation of the petitioner then
for the reason that petitioner was convicted
in a criminal case and was sentenced for
seven years rigorous imprisonment along
with fine of Rs.3,000/- vide judgment and
order dated 25.03.2004, exercising power
under
Article
8(2)(A)
of
the
UP
Subordinate
Rank
Police
Officers
(Punishment and Appeal) Rules, 1991,
petitioner's services were terminated w.e.f.
21.03.2004 vide order dated 13.06.2015. It
is held that order dated 13.06.2015 was
passed in accordance with law and it is also
observed that in the order staying sentence
the High Court had not stayed the
conviction but merely kept the sentence in
abeyance, therefore, he could not be taken
back in service. This was reiterated vide
paragraphs 8 & 9. In the rest of the
paragraphs, representation of the petitioner
was referred and it was observed that they
need no reply.

15. Referring to judgment passed in
Special Appeal No.635 of 2016 dated
20.11.20218, the Authority took the view
that matter has been examined in light of
judgment of the Supreme Court and having
found it to be absolutely different and since
the petitioner has been convicted and
sentenced with rigorous imprisonment
coupled with the fine of Rs.3,000/- it would
be taken that he stood convicted as on date
26.03.2004. The authority then refers in
para 29, relevant Article 311 (1) and (2)
and then proviso to the same and Clause (a)
to the second proviso and come to conclude
that no inquiry was required to hold him
guilty of the charge where delinquent
employee stood convicted in a criminal
case for the same charge. Referring to the
same article the authority observed that
such a convicted employee was liable to be
removed from service invoking power
under Rule 8 (2)(a) of 1991 Rules. Then
reiterating that only the sentence has been
kept in abeyance in criminal appeal,
petitioner was held not entitled to continue
in employment and thus, the order
impugned has been passed maintaining the
order dated 13.06.2015.

16. Looking to the above facts, I find
that order previously passed on 13.06.2015
has been maintained under the order
impugned. Now coming to the order of the
Writ Court dated 19.05.2016 passed in
Writ-A No.38896 of 2015, I find that
matter was directed to be decided in light
of the settled principle of law laid down in
Tulsi Ram Patel's case (supra). Operative
part of judgment dated 19.05.2016 is
reproduced hereinunder:

"17. For the aforesaid reasons,
the writ petition is allowed and the
impugned order dated 13.6.2015 is set
aside. The disciplinary authority shall have
due regard to the law laid down by Hon'ble
Supreme Court in Tulsi Ram Patel's case
and then determine as to whether the
conduct of the petitioner is such as to
warrant
his
dismissal,
removal
or
reduction in rank within the meaning of
proviso (a) to Clause (2) of Article 311 of
the Constitution of India. "

17. The State had preferred intra-court
appeal against this judgment being Special
Appeal No.635 of 2016 wherein the same
plea was taken by way of argument as has
been the stand of State throughout. The
division bench judgment noticed the
argument of the respondent appellant that
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner was convicted in the criminal
case and recorded that no reinstatement
was directed by the learned Single Judge
and the authority was required to pass order
afresh. The relevant last five paragraphs of
the order of the Division Bench dated
20.11.2018 are reproduced hereunder:-

"We have heard learned counsel
for the parties and have perused the
material on the record.

We find that the learned Single
Judge has not issued any direction for the
reinstatement of the respondent-petitioner.
He has simply directed the concerned
disciplinary authority to consider his cause
in light of the law laid down by the
Supreme Court in Tulsi Ram Patel's case.
No other direction has been issued.

As regards, learned counsel for
the appellant submits that learned Single
Judge has issued a direction for his
reinstatement, we do not find any such
direction in the paragraph which we have
reproduced above.

In view of the above, we find that
there is no illegality in the order of the
learned Single Judge and the authority
concerned shall consider the case of the
respondent-petitioner as directed by the
learned
Single
Judge
expeditiously,
preferably within a period of six months
from the date of communication of the
order.

With the aforesaid observations,
the special appeal stands disposed of. "

18. Thus, it is clear that the appeal to
restore the order dated 13.06.2015 by
setting aside the judgment of the order of
the learned Single Judge was rejected
holding that there was no illegality in the
order of the learned Single Judge. The
order was not set aside and special appeal
stood disposed of. In fact the division
bench maintained the order of the learned
Single Judge and refused to interfere with
the same and only directed for a six
month?s time to take decision in light of
the judgment of Single Judge from the date
of presentation of certified copy of this
order.

19. So now this much is clear that
order dated 13.06.2015 had lost its
existence in view of the order of learned
Single Judge affirmed in appeal, therefore,
the authority was certainly not justified in
maintaining the order dated 13.06.2015
which was not in existence at all. Thus, on
this count alone writ petition deserves to be
allowed. However, it is necessary to look
into the legal aspect of the matter as to
whether the authority has discussed the fact
of the petitioner's case and deliberated upon
his conduct in light of the law laid down in
Tulsi Ram Patel's case (supra) as this was
specific direction of this Court both in the
learned Single Judge judgment and the
Division Bench judgment as quoted above.

20. While the order passed by the
disciplinary authority was under challenge
before the appellate authority, the criminal
appeal filed by petitioner along with coaccused Ram Bali came to be allowed by
the judgement and order dated 17.11.2021
holding that charges framed against the
appellants under Section 307/34 of IPC
were not at all proved and, thus, finding of
conviction was held to be bad and illegal
and so the judgment and order of
conviction passed by the trial judge on
25.03.2004 in Session Trial No.396/1999
was set aside. It is stated that this judgment
of criminal appeal in favour of the
1 All. Prakash Chandra Mishra Vs. State of U.P. & Ors.
1219
petitioner was not further challenged at all
and the petitioner moved an application
before the departmental appellate authority
to stay the impugned order passed by the
disciplinary authority.

21. While the appeal was pending,
petitioner preferred writ petition being
Writ-A No.4191 of 2022. Ultimately the
departmental appeal was dismissed as
meritless and also on the ground of it being
barred
by
time.
The
order
of
the
disciplinary
authority,
thus,
stood
confirmed and so the said writ petition got
dismissed as withdrawn on 07.05.2022 to
file such writ petition.

22. Now testing the order passed by
the authority from point of view of law laid
down in Tulsi Ram Patel's case (supra),
the authority was bound in law to record
finding regarding act and conduct of the
petitioner relating to his involvement in the
criminal case so as to hold that his
continuance in the employment will not be
justifiable.

23. In Tulsi Ram Patel's case (supra),
the Court has very clearly held that
authority is required to record reasons for
dismissing the employee on the ground of
conviction in a criminal case as to why his
continuance would adversely affect the
government
establishment.
The
the
direction contained in the judgment of the
leaned Single Judge dated 19.05.2016 was
also to the effect that the matter would be
decided in light of law laid down by the
Supreme Court in case of Tulsi Ram
Patel's case (supra). In Tulsi Ram Patel
(supra), the Constitution Bench laid down
the principle thus:

"It is obvious that in considering
this mater the disciplinary authority will
have to take 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. ....................... In other words,
the position is that the conviction of the
delinquent employee would be taken as
sufficient proof of misconduct and then the
authority will 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."

24.

Reiterating
the
law
and
comprising in short in the case of
Sadanand Mishra (supra), Division Bench
of this Court vide paragraph 20 observed
thus:

"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 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."

25. From the impugned order, as I
have discussed above, passed by the
disciplinary authority, I find that, except for
the reason of conviction in the criminal
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
case and awarding of sentence of rigorous
imprisonment coupled with fine, no other
reason has been assigned for terminating
the services of the petitioner. Thus, in my
view, there is no evaluation or assessment
otherwise qua the conduct of the petitioner
for the purposes of taking a decision to
continue a convicted employee in the
establishment or not. Moral turpitude itself
can be a ground but there has to be
discussion regarding that and finding also
to justify the order terminating the services
of the such convicted person on the ground
of moral turpitude. The order impugned is
absolutely silent on the above count.

26. Now since the petitioner has been
acquitted in the criminal case holding
clearly that charge was not made out and
that
the
finding
of
conviction
was
unsustainable being bad and illegal, I treat
it to be a case of no evidence and not a
matter of benefit of doubt.

27. In the circumstances, therefore,
petitioner,
may
be
not
so
stated
specifically,
but
stood
honourably
acquitted. Once the petitioner has been
acquitted in the criminal case and the only
ground taken in the order impugned
terminating the services is the conviction in
such criminal case, the order impugned is
also not sustainable on merits. The
appellate authority has not discussed
anything except reiterating the view taken
by the disciplinary authority that petitioner
had been convicted in a criminal case so to
hold that there was no merit in the appeal
though the appeal has also been dismissed
on the ground of delay. The order passed
by the appellate authority is also not
sustainable.

28. In view of the above, writ petition
succeeds and is allowed. The order dated
16.12.2019 passed by the disciplinary
authority and 28.03.2022 passed by the
appellate authority are hereby quashed.
Petitioner is directed to be reinstated in
service forthwith with all consequential
benefits.
----------
(2024) 1 ILRA 1220
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2023

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Writ-A No. 11493 of 2023

Dr. Dhananjay Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Girdhar Prasad Tripathi, Sri H.N. Singh
(Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Sidharth Khare, Sri Jigar Khare,
Sri Ashok Khare (Sr. Adv.)

Service Law - Petitioner, appointed as
Lecturer on 19.02.1991, promoted as
Associate
Professor
on
01.01.2006,
became eligible for consideration upon
vacancy of substantive post of Principal on
12.08.2016 - On refusal of seniors, petitioner
appointed Officiating Principal by order dated
12.06.2018 and assumed charge on 14.06.2018
- Complaints by local MLA and College
Accountant led to Commissioner ordering inquiry
against petitioner on 24.09.2020 - Inquiry
committee found
petitioner, as Officiating
Principal,
bypassed
authorized
accountant,
engaged Pvt. persons, issued irregular vouchers,
committed financial irregularities in violation of
Government Orders - Further he was directed to
hand over charge of Officiating Principal to sixth
respondent
owing
to
irregularities
-
By
impugned order, third respondent rejected
petitioner's claim to officiate as Principal - Once