# Ram Pratap Singh v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-03
- **Case number:** Civil Misc. Writ Petition No. 21068 of 2009
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-pratap-singh-v-state-of-u-p-and-others-41376
- **Pages:** 5

## Headnote

Constitution of India, Art. 311 (2)-
Dismissal from service-petitioner was
convicted under Section 302/149/147can not be ground for dismissal unless
the authority concerned applied its mind
to
form
opinion
to
dispense
with
enquiry-by
providing
opportunity
of
hearing-dismissal order set-aside with
direction to consider fresh in light of
observation.

Held: Para 14

In the present case the appointing
authority has not applied his mind, after
reading the judgement of conviction and
punishment, in forming an opinion, that
the conduct of the petitioner was such
which did not require to provide to him
an opportunity of hearing before the
petitioner was dismissed from service.
Case law discussed:
1985 3 SCC 368:
AIR 1985 SC 1416,
AIR 2007 SC 1003.
2 All] Ram Pratap Singh V. State of U.P. and others
327

## Text

326 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
has also observed that Clause 7 of the
Sugar Dealers' Licensing Order does not
require "the State Government to pass a
reasoned order. All that is required is to
give an aggrieved person an opportunity
of being heard." We are of the view that
the High Court erred in so holding. The
appellants have a right not only to have
an opportunity to make a representation,
but they are entitled to have their
representation considered by an Authority
unconcerned with the dispute and to be
given information which would show the
decision was reached on the merits and
not on considerations of policy or
expency. This is a clear implication of the
nature of the jurisdiction exercised by the
appellate authority; it is not required to
be expressly mentioned in the statute.
There is nothing on the record which
shows that the representation made by the
appellants was even considered. The fact
that Clause 7 of the Sugar Dealers'
Licensing Order to which the High Court
has referred does not "require the State
Government to pass a reasoned order" is
wholly irrelevant. The nature of the
proceeding
requires
that
the
State
Government must given adequate reasons
which disclose that an attempt was made
to reach a conclusion according to law
and justice."

8. In view of the aforesaid facts, I
am of the view that the Appellate Order
dated 3.9.2008 (Annexure 4 to writ
petition) deserves to be quashed.

9. In the result, the writ petition is
allowed.
The
order
dated
3.9.2008
(Annexure 4 to writ petition) is hereby
quashed. The matter is remitted back to
respondent No.1 to pass an appropriate
and detailed order according to law within
a period of three months from the date a
certified copy of this order is produced
before respondent No.1.

10. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2009

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 21068 of 2009

Ram Pratap Singh

...Petitioner
Versus
State of UP and others ...Respondents

Counsel for the Petitioner:
Sri Kaushal Kishore Mishra

Counsel for the Respondents:
S.C.

Constitution of India, Art. 311 (2)-
Dismissal from service-petitioner was
convicted under Section 302/149/147can not be ground for dismissal unless
the authority concerned applied its mind
to
form
opinion
to
dispense
with
enquiry-by
providing
opportunity
of
hearing-dismissal order set-aside with
direction to consider fresh in light of
observation.

Held: Para 14

In the present case the appointing
authority has not applied his mind, after
reading the judgement of conviction and
punishment, in forming an opinion, that
the conduct of the petitioner was such
which did not require to provide to him
an opportunity of hearing before the
petitioner was dismissed from service.
Case law discussed:
1985 3 SCC 368:
AIR 1985 SC 1416,
AIR 2007 SC 1003.
2 All] Ram Pratap Singh V. State of U.P. and others
327
(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Shri Kaushal Kishore
Mishra
for
the
petitioner.
Learned
Standing
Counsel
appears
for
the
respondents. The affidavits have been
exchanged. With the consent of parties,
the writ petition was finally heard and is
finally decided at the admission stage.

2. The petitioner was serving as
'Seenchpal' in the office of Executive
Engineer,
Fatehpur
Division,
Lower
Ganga Canal, Fatehpur. For the purposes
of discipline and conduct, his services are
governed
by
the
Uttar
Pradesh
Government
Servants
(Discipline
&
Appeal) Rules, 1999, notified under
Article 309 of the Constitution of India.

3. In the year 1999, in an incident in
which one Raju was murdered, the
petitioner, along with other accused
namely
Chhatrapal;
Virendra
and
Ramanand
arrested
under
Sections
302/149/147 IPC. They were granted bail.
The petitioner along with other accused
was charge sheeted and was tried in
Sessions Trial No. 287 of 2000 in which
he was convicted and sentenced to life
imprisonment with a fine of Rs. 10,000/-
under Section 302/149 IPC, and further
with a three year's rigorous imprisonment
and a fine of Rs.2000/- under Section 147
IPC. All the sentences were directed by
the Additional Sessions Judge, Fast Track
Court No. 1, Fatehpur vide his judgement
dated 29.11.2007, to run concurrently.

4. The petitioner has preferred an
appeal in the High Court being Criminal
Appeal No. 8200 of 2007, Ram Pratap
Yadav vs. State of UP in which the
petitioner has been granted bail on
7.1.2008.
5. In the meantime, the Executive
Engineer dismissed petitioner's services
on his conviction in Sessions Trial No.
287 of 2000 under Sections 302/149, 147
IPC; for being punished with life
imprisonment and also for his detention in
jail on 29.11.2007. The petitioner has
challenged the order dated 26.12.2007
terminating his services on the ground
that though under clause-a of the second
proviso to Article 311 (2) of the
Constitution of India a person, who is
member of the civil service of the union,
may be dismissed or removed or reduced
in rank on the ground of conduct, which
has led to his conviction on a criminal
charge, in view of judgements of Supreme
Court and specially in Union of India vs.
Tulsi Ram Patel 1985 3 SCC 368: AIR
1985 SC 1416, the appointing authority is
required to look into his conduct, which
has led to his conviction on the criminal
charge.

6. It is submitted by learned counsel
for the petitioner that in the judgement
after the trial the Sessions Judge found
that the petitioner Ram Pratap Singh was
carrying a rifle. He did not fire from the
rifle. The Sessions Court has clearly
recorded that the rifle was not fired and
that there was no fire arm injury on the
body of the deceased. The petitioner was
convicted only under Section 147 IPC as
a member of the unlawful assembly,
which led to the death of the deceased
Raju. It is contended that the mechanical
exercise of powers in dismissing the
petitioner from service has caused serious
consequence upon the petitioner, who had
put in 13 years of service. The termination
of his services without looking into his
conduct, which led to his conviction, has
caused serious prejudice to the petitioner.
Learned counsel for the petitioner would
328 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
submit that the order dismissing petitioner
from service needs to be set aside and that
the authority may be directed to consider
whether the petitioner's conduct did not
entitle him to remain him in service.

7. In the counter affidavit of Shri
Nem Singh, Executive Engineer, L.G.
Canal Division, Fatehpur, it is stated in
paragraph-6 and 13 as follows:-

"6. That in reply to the contents of
paragraphs 7 and 8 of the writ petition, it
is most respectfully submitted that the
petitioner has already been convicted in
case crime No. 214 of 1999 under
Sections 147/148/149/302 IPC vide order
dated 29.11.2007 passed by Sessions
Court and as such in view of the said
Government Order dated 12.10.1979, the
services of the petitioner have been
terminated vide order dated 26.12.2007.

13. That in reply to the contents of
paragraph-18 of the writ petition, it is
most respectfully submitted that in the
Government Order dated 12.10.1979, it
has been clearly laid down that if any
Government employee is convicted in any
criminal case by the competent court and
in pursuance thereof, he is detained in jail
then he will be treated to have been
removed from service even if he is
released on bail in appeal by the Hon'ble
Court and on this ground, no further
action is required to be taken on the said
application
of
the
petitioner
dated
5.2.2008."

8. It is apparent that the appointing
authority did not consider the conduct of
the petitioner, which led to his conviction.
Learned counsel for the petitioner has
referred to paragraph-26 of the judgement
in which the argument of the counsel of
the accused has been referred to by
learned Sessions Judge in stating that the
accused Ram Pratap was carrying a gun
which was not used in the incident and
that there was no gun shot injury on the
body of the deceased. In the operative
portion of the judgement, the Sessions
Judge has convicted accused Ram Pratap
under Section 147/302/149 IPC as a
member
of
the
unlawful
assembly
carrying a gun and having committed an
offence with common object in which a
person was done to death.

9. Article 311 of the Constitution of
India gives a protection to a member of
the civil service to be dismissed, removed
or reduced in rank by the authority by
which he was appointed, and after an
enquiry in which he has been informed of
the charges against him and given a
reasonable opportunity of being heard in
respect of those charges. The second
proviso to clause 2 provides for an
exception in which clause (a) provides:-

"(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 it shall
not be necessary to give such person any
opportunity of making representation on
the penalty proposed."

10. In Union of India vs. Tulsi
Ram Patel (supra) it was held in
paragraph-62 as follows:-

62. 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
guilty of conduct deserving the penalty of
2 All] Ram Pratap Singh V. State of U.P. and others
329
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 subjectmatter 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 so 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."

11. There are various kind of
offences for which a person, who is also a
civil servant, may be convicted and
punished. The civil servant may be
punished for a wrongful parking or
jumping a red light. He may be punished
in a minor scuffle, or for an offence in
which, he is gravely provoked. The
appointing authority has to go through his
conduct, which includes the evidence and
findings of the criminal court and
considered all the facts and circumstances
of the case and the factors, which have led
to the conviction and punishment of the
person before deciding whether clause (a)
of the second proviso of clause (2) of
Article 311, will be attracted.

12. In a case under Section 302 IPC,
where a person has been killed, the
government servant may be a member of
the unlawful assembly. He may not have
taken any part in killing of the person.
There may be circumstances, in which his
action of killing, though it cannot be
condoned, be considered to be an act of
an ordinary person and is not such in
which he may be said to be acted in a
manner, which deserves the penalty of
dismissal, removal or reduction in rank.
An act of murder in a state of grave and
sudden provocation may fall in such
category. In such case a departmental
330 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
enquiry may be held to consider his
conduct dehorse the conviction and
punishment in the criminal trial, and may
require a reasonable opportunity to be
given to him. Once a conclusion is
reached that the conduct is such, which
deserves and justifies the penalty of
dismissal, removal or reduction in rank,
the proviso will become applicable and
the disciplinary authority will not be held
obliged to conduct departmental enquiry.
For example, if a civil servant is in a
situation, where he has to save the honour
of a member of his family, or an act
which may have resulted out of self
defence or out of grave and sudden
provocation, he acts or uses a weapon,
which comes into his hands and which
may cause the death of a person, the
appointing authority may not find his
conduct to be such, which deserves the
punishment of dismissal, removal and
reduction in rank. It is not possible nor it
is prudent for the Court to classify or give
guidelines for taking these decisions. It is
better to leave it to the discretion of the
appointing authority to consider such
facts and circumstances and to decide
whether it is appropriate to dispense with
the departmental enquiry and to allow a
person to explain the circumstances, in
which his conduct had led to prosecution
and conviction.

13.

Further
there
may
be
circumstances, as have been spelled out in
Navjyot Singh Siddhu vs. State of
Punjab AIR 2007 SC 1003, and in which
a person may apply to the appellate court
to stay his conviction for allowing the
person to continue him in service.

14. In the present case the
appointing authority has not applied his
mind, after reading the judgement of
conviction and punishment, in forming an
opinion, that the conduct of the petitioner
was such which did not require to provide
to him an opportunity of hearing before
the petitioner was dismissed from service.

15. The writ petition is allowed. The
order
dated
26.12.2007
passed
by
respondent no. 2 dismissing petitioner's
services only on the ground of his
conviction under Section 302, I49 IPC in
Sessions Trial No.287 of 2000 dated
29.11.2007 is set aside. A writ of
mandamus is issued to the respondents to
consider the petitioner's conduct, which
led to his conviction and punishment and
to pass fresh orders in accordance with
the law and the observations made in this
judgment.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.05.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Bail Application No.21846
of 2008

Pankaj Kashyap

...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri Yashwant Singh
Sri Pramod Tiwari

Counsel for the Opposite Party:
A.G.A

Code of Criminal Procedure- Section 439un-natural offence committed with 11
years
boy
injury
on
private
part
reported-plea regarding juvenile justice
(Care and Protection of Children Act
2000)-kept open to raise before trail