# Ram Kishan v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 580
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-07
- **Case number:** Writ A No. 14570 of 2009
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishan-v-state-of-u-p-anr-45693
- **Pages:** 4

## Headnote

A. Challenging-order-removing petitioner
from service-on ground of conviction-in
Session Trial- a condition precedent-to
acquire
jurisdiction
to
impose
punishment of removal-by considering
his
conduct-leading
to
convictionimpugned order-silent on consideration.

B. Held, Thus, 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.

Writ Petition allowed. (E-8)

List of cases cited: -

## Text

580 INDIAN LAW REPORTS ALLAHABAD SERIES
consider the same. With the aforesaid
observation, the writ petition stands
allowed.
----------
(2020)1ILR 580

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2020

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ A No. 14570 of 2009

Ram Kishan ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri A.K. Ojha

Counsel for the Respondents:
C.S.C.

A. Challenging-order-removing petitioner
from service-on ground of conviction-in
Session Trial- a condition precedent-to
acquire
jurisdiction
to
impose
punishment of removal-by considering
his
conduct-leading
to
convictionimpugned order-silent on consideration.

B. Held, Thus, 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.

Writ Petition allowed. (E-8)

List of cases cited: -

1. Shyam Narain Shukla vs. State of U. P.,
(1988) 6 LCD 530

2. Sadanand Mishra v. State of U. P. 1993 LCD 70

3. Shankar Das v. Union of India, 1985 (2) SCR
358

4. Sushil Kumar Singhal vs. Regional Manager,
Punjab National Bank, 2010 (8) SCC 573

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri A.K. Ojha, learned
counsel for the petitioner and Sri Anil
Kumar Pandey, learned standing counsel
for the State-respondents.

2. This writ petition has been filed
praying to quash the order of removal
from service dated 17.12.2008 passed by
the respondent No.2. The petitioner has
also prayed for a writ, order or direction in
the nature of mandamus directing the
respondents to continue the petitioner in
service and pay regular salary month by
month.

3. Briefly stated facts of the present
case are that the petitioner was a constable
in Civil Police. By judgment and order
dated 05.05.2008, the petitioner was
convicted under Sections 302/34 I.P.C.
with life imprisonment and a fine of
Rs.10,000/- in S.T. No.178 of 2005 arising
from Case Crime No.649 of 2005 passed
1 All. Ram Kishan Vs. State of U.P. & Anr.
581
by the Additional Session Judge, Court No.3,
Jhansi. By
the
impugned order dated
17.12.2008, the petitioner was removed from
service on the ground that he has been convicted
in the aforesaid Session Trial. Against the
aforesaid judgment and order dated 05.05.2008,
the petitioner filed a Criminal Appeal No.3060
of 2008 (Ram Kishan vs. State of U.P.) in
which an order dated 17.10.2008 was passed by
a Division Bench of this Court releasing the
petitioner on bail during pendency of the appeal
and realisation of fine was stayed. Subsequently,
by order dated 20.07.2009, the execution of the
sentence during pendency of the appeal was
also stayed by the Dvision Bench. Under these
facts, the petitioner has filed the present writ
petition challenging the impugned order of
removal from service dated 17.12.2008 passed
by the Senior Superintendent of Police, Jhansi.

4. Learned counsel for the petitioner
submits that the fine imposed by the judgment
and order dated 05.05.2008 passed in S.T.
No.178 of 2005 has been stayed by the
Division Bench in Criminal Appeal No.3060
of 2008 and the petitioner has been released on
bail and the execution of sentence has also
been stayed, therefore, the impugned order
cannot be sustained and deserves to be
quashed. He further submits that no finding
has been recorded in the impugned order on
the conduct of the petitioner leading to his
conviction so as to inflict the punishment of
removal from service. He, therefore, submits
that the impugned order deserves to be
quashed.

5. Learned standing counsel supports
the impugned order.

6. I have carefully considered the
submissions of the learned counsels for the parties.

7. Perusal of the impugned order
dated 17.12.2008 shows that it has been
passed by the respondent No.2 merely on
the ground that the petitioner has been
convicted with life imprisonment under
Section 302/34 I.P.C. and with fine of
Rs.10,000/-. The respondent No.2 while
passing the impugned order has not
considered at all the conduct of the
petitioner, which has led to his conviction.

8. The judgment and order dated
05.05.2008 passed by the Additional
Session Judge, Court No.3, Jhansi in S.T.
No.178 of 2005 under Section 302/34,
I.P.C. convicting the petitioner with life
imprisonment and a fine of Rs.10,000/-,
has been challenged by the petitioner in
Criminal Appeal No.3060 of 2008 (Ram
Kishan vs. State of U.P.), in which an
order dated 17.10.2008 was by the
Division Bench releasing the petitioner on
bail and staying the realisation of fine. By
order dated 20.07.2009 passed in the
aforesaid criminal appeal, the execution of
sentence was also stayed during pendency
of the appeal. It has been stated before me
by the learned counsel for the petitioner
that the aforesaid criminal appeal is still
pending.

9. In Union of India vs. Tulsiram
Patel, (1985) 3 SCC 398, Hon'ble
Supreme
Court
has
considered
the
provisions of Article 311(2) of the
Constitution of India and held as under:-

"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
582 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

10. In Shyam Narain Shukla vs.
State of U.P., (1988) 6 LCD 530, a
Division
Bench
of
this
court
has
considered similar question and held 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 not to be
given an opportunity of hearing at that
stage."

11. Another Division Bench of this
Court in Sadanand Mishra v. State of
U.P. 1993 LCD 70 held that on conviction
of an employee of a criminal charge, the
order of punishment cannot be passed
unless the conduct which has led to his
conviction, is also considered. It was
further held that the scrutiny or exercise 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
concerned.

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
(para-21),
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 have to embark upon a
1 All. Mohd. Naimuddin & Ors. Vs. D.D.C. Barabanki
583
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 (Paras-24 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.

15. For all the reasons afore-stated,
the writ petition is allowed. Matter is
remitted back to the Senior Superintendent
of Police, Jhansi to pass an order afresh, in
accordance with law, within one month
from the date of presentation of a certified
copy of this order. In the event, the
petitioner is reinstated in service, he shall
be entitled to all consequential benefits
and shall also be entitled to arrears of
salary only for the period he actually
worked.
----------
(2020)1ILR 583

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.01.2020

BEFORE
THE HON'BLE RAJAN ROY, J.

Consolidation No. 3438 of 1981

Mohd. Naimuddin & Ors. ...Petitioners
Versus
D.D.C. Barabanki ...Respondent

Counsel for the Petitioners
Smt. Maya Bhatta, Hargur Charan, M.A.
Siddiqui

Counsel for the Respondent:
C.S.C.

A. Petitioner's father's a name mutatedlease granted by Zamindar-negotiation
for constituting the land as reserve
forest-lessee acquired first - status of
hereditary tenant-later when UPZALR