# Randhir Singh Gautam & Anr v. The State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 411
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-17
- **Case number:** Writ-A No. 903 of 2022
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/randhir-singh-gautam-anr-v-the-state-of-u-p-ors-47735
- **Pages:** 6

## Headnote

412 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Service Law - Termination - Uttar
Pradesh
Basic
Education
(Teachers)
Service Rules, 1981 - Uttar Pradesh Basic
Education Staff Rules, 1973 - Rule 3, 3(vi),
5(3) - Civil Service (Classification, Control
and Appeal) Rules 1930 - Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rules, 1999 - On the 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. The scrutiny
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. (Para 15)

It is well-settled that Article 311(2) proviso (a)
of the Constitution is pari materia to Clause (i)
of the 4th proviso to Rule 7 of the 1999 Rules
empowering the disciplinary authority to impose
a major penalty on a person without holding the
enquiry on the basis of "conduct which has led
to conviction". It is also a settled that
punishment is not automatic and based on
the
mere
conviction
but
the
order
imposing
punishment
must
show
application of mind on the part of the
disciplinary authority on the conduct which
has led to the conviction of the employee and
appropriate punishment which he is liable to
suffer. (Para 12 to 15)

The Court finds that the impugned orders do
not conform to the 1999 Rules in as much as
the
Basic
Shiksha
Adhikari,
Maharajganj/Respondent No. 3 has not taken
into consideration the entire conduct of the
petitioners, the gravity of misconduct committed
by them, the impact which the misconduct is
likely to have etc. and has passed the order
simply recording that the petitioners were
suspended vide order dated 16.4.2016 on their
being convicted in Case No. 186 of 2013, u/Ss.
302/34, 323/34, 504, 506 IPC vide order of the
Additional Sessions Judge, Maharajganj. The
services of the petitioners are being terminated
with immediate effect on their conviction vide
order dated 2.4.2016 in compliance of the
procedure
laid
down
in
the
GO
dated
12.10.1979 and the U.P. Government Servants
(Discipline and Appeal) Rules, 1999. (Para 17)
B. Applicability of the 1999 Rules in place
of the 1930 Rules - It is not in dispute that
the Civil Services (Classification, Control and
Appeal) Rules 1930 stands superceeded by the
Uttar Pradesh Government Servant (Discipline
and Appeal) Rules 1999. Although the U.P. Basic
Education Staff Rules, 1973 has not been
amended and Rule 5(3) continues to refer to the
Civil Service (Classification, Control and Appeal)
Rules, the Court is of the opinion that the
disciplinary
proceedings,
appeals
and
representations shall be governed under the
Uttar Pradesh Government Servant (Discipline
and Appeal) Rules, 1999 on the principle of
Legislative reference. (Para 8)

Writ petition allowed. (E-4)

Precedent followed:

## Text

10 All. Randhir Singh Gautam & Anr. Vs. The State of U.P. & Ors.
411
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

28. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

29. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

30. Therefore, accused-appellants are
convicted for the offence punishable under
Section 304 (Part I) of IPC and sentenced
to period undergone. The fine is reduced to
Rs.10,000/-. The accused-appellants be set
free if not warranted in any other offence.
The fine if they have yet not deposited, will
deposit the same within four weeks from
the date of release from jail. The jail
authority shall see that the accusedappellants are lodged in the jail to reincarcerate for the default period if fine is
not paid after they are released.

31. In view of the above, both the
criminal appeals are partly allowed. Record
and proceedings be sent back to the Court
below forthwith.
----------
(2022) 10 ILRA 411
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 903 of 2022

Randhir Singh Gautam & Anr.
 ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Kunwar Bhaskar Parihar, Sri R.K, Ojha (Sr.
Adv.)

Counsel for the Respondents:
C.S.C, Smt. Archana Singh, Sri Bipin Bihari
Pandey
412 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Service Law - Termination - Uttar
Pradesh
Basic
Education
(Teachers)
Service Rules, 1981 - Uttar Pradesh Basic
Education Staff Rules, 1973 - Rule 3, 3(vi),
5(3) - Civil Service (Classification, Control
and Appeal) Rules 1930 - Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rules, 1999 - On the 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. The scrutiny
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. (Para 15)

It is well-settled that Article 311(2) proviso (a)
of the Constitution is pari materia to Clause (i)
of the 4th proviso to Rule 7 of the 1999 Rules
empowering the disciplinary authority to impose
a major penalty on a person without holding the
enquiry on the basis of "conduct which has led
to conviction". It is also a settled that
punishment is not automatic and based on
the
mere
conviction
but
the
order
imposing
punishment
must
show
application of mind on the part of the
disciplinary authority on the conduct which
has led to the conviction of the employee and
appropriate punishment which he is liable to
suffer. (Para 12 to 15)

The Court finds that the impugned orders do
not conform to the 1999 Rules in as much as
the
Basic
Shiksha
Adhikari,
Maharajganj/Respondent No. 3 has not taken
into consideration the entire conduct of the
petitioners, the gravity of misconduct committed
by them, the impact which the misconduct is
likely to have etc. and has passed the order
simply recording that the petitioners were
suspended vide order dated 16.4.2016 on their
being convicted in Case No. 186 of 2013, u/Ss.
302/34, 323/34, 504, 506 IPC vide order of the
Additional Sessions Judge, Maharajganj. The
services of the petitioners are being terminated
with immediate effect on their conviction vide
order dated 2.4.2016 in compliance of the
procedure
laid
down
in
the
GO
dated
12.10.1979 and the U.P. Government Servants
(Discipline and Appeal) Rules, 1999. (Para 17)
B. Applicability of the 1999 Rules in place
of the 1930 Rules - It is not in dispute that
the Civil Services (Classification, Control and
Appeal) Rules 1930 stands superceeded by the
Uttar Pradesh Government Servant (Discipline
and Appeal) Rules 1999. Although the U.P. Basic
Education Staff Rules, 1973 has not been
amended and Rule 5(3) continues to refer to the
Civil Service (Classification, Control and Appeal)
Rules, the Court is of the opinion that the
disciplinary
proceedings,
appeals
and
representations shall be governed under the
Uttar Pradesh Government Servant (Discipline
and Appeal) Rules, 1999 on the principle of
Legislative reference. (Para 8)

Writ petition allowed. (E-4)

Precedent followed:

1. Ziledar Singh Vs St. of U.P. & ors., 2010 (81)
ALR 270 (Para 8)

2. U.O.I. Vs Tulsi Ram Patel, [1985 (3) SCC 398]
(Para 13)

3. Shyam Narain Shukla Vs St. of U.P., (1988) 6
LCD 530 (Para 14)

4. Sadanand Mishra Vs St. of U.P., 1993 LCD 70
(Para 15)

5. Chandra Bhuwan Tripathi Vs St. of U.P. & ors.,
Civil Misc. Writ Petition No. 45364 of 2003,
decided on 08.12.2006 (Para 16)

Present
petition
assails
order
dated
28.10.2021, passed by Basic Shiksha
Adhikari, Maharajganj.

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. The writ petitioners, who claim to
have been appointed as Assistant Teachers
in a Primary School run and established by
the Basic Shiksha Parishad after facing
selection have approached this Court
assailing
an
order
dated
28.10.2021
(Annexure Nos.9 & 10 to the writ petition)
passed by the Basic Shiksha Adhikari,
10 All. Randhir Singh Gautam & Anr. Vs. The State of U.P. & Ors.
413
Maharajganj/Respondent No.3, whereby
services of the petitioners as Assistant
Teachers have been terminated.

2. It is the case of the writ petitioners
that they have been appointed as Assistant
Teachers under the provisions of the Uttar
Pradesh
Basic
Education
(Teachers)
Services Rules, 1981 after facing selection.
The Petitioner No.1 was appointed under
the order of the Basic Shiksha Adhikari
dated 23.10.2008 and was permitted to join
as Assistant Teacher in Urdu in Primary
School, Kamhariya Khurd, Block Farenda,
District
Maharajganj.
Later
on,
the
Petitioner
No.1
was
promoted
as
Headmaster in Primary School/Assistant
Teacher
in
Junior
High
School
on
26.11.2011 and had been working in such
capacity in Purv Madhyamik Vidyalaya
Parsia Bujurg Block Farenda, District
Maharajganj. Likewise, the Petitioner No.2
was appointed as Assistant Teacher by the
order of the Basic Shiksha Adhikari dated
24.10.2008 and joined in Primary School,
Sonbarsa
Block
Farenda,
District
Maharajganj. The Petitioner No.2 was also
promoted as Headmaster in Primary
School, Sonbarsa Block Farenda District
Maharajganj.

3. In the year 2013, an F.I.R. came to
be lodged against the petitioners giving rise
to the Case Crime No.907 of 2013 under
Sections 302/34, 323/34, 504, 506 I.P.C.
and a charge sheet was submitted against
the
petitioners. The
petitioners
were
arrested and consequently placed under
suspension, however, were subsequently
released on bail. The petitioners were
convicted in the offence in Trial No.186 of
2013
vide
conviction
order
dated
02.04.2016. The petitioners were again
arrested and put in jail on their conviction.
The conviction order has been assailed in
Criminal Appeal No.1712 of 2016 which is
pending consideration before this Court and
the petitioners have been released on bail.
The petitioners were reinstated in service
under
orders
of
the
District
Basic
Education
Officer,
Maharajganj
dated
30.06.2018 respectively. However, the
order dated 30.06.2018 reinstating the
petitioners in service was withdrawn by
order dated 28.07.2018 and the petitioners
were again placed under suspension. Now
by the impugned order dated 28.10.2021
the Basic Shiksha Adhikari has proceeded
to terminate the services of the petitioners
which order has been impugned in the
present writ petition.

4. It is contended by the learned
counsel
for
the
petitioners
that
the
petitioners are regular appointee and no
enquiry is contemplated under the Uttar
Pradesh Basic Education Staff Rules, 1973
read
with
the
Uttar
Pradesh
Basic
Education (Teachers) Service Rules, 1981
and as such in the absence of any enquiry
the services of the petitioners cannot be
terminated.

5. This Court vide order dated 22.03.2022
while entertaining the writ petition had
directed the respondents to file counter
affidavit. Pursuant to the said order, a
counter affidavit has been filed on behalf of
the Basic Shiksha Adhikari, Maharajganj,
Respondent No.3. Sri R. K. Ojha, learned
Senior Counsel assisted by Sri K. B.
Parihar, learned counsel for the petitioner
submits that he has already filed rejoinder
affidavit and further as the issue involved is
a legal issue the same can be decided even
in the absence of rejoinder affidavit.

6. The short question for adjudication
in this writ petition is as to whether the
services of a permanent Assistant Teacher
414 INDIAN LAW REPORTS ALLAHABAD SERIES
in a Primary School run and established by
the Board of Basic Education convicted in
an offence under Sections 302/34, 323/34,
504, 506 IPC be terminated without
holding an enquiry.

7. There is no dispute that the service
conditions of the writ petitioners are
governed by the Uttar Pradesh Basic
Education (Teachers) Services Rules, 1981
read with the Uttar Pradesh Basic Education
Staff Rules, 1973. The 1981 Rules do not
provide for punishment and the same is
provided under Rule 3 of the 1973 Rules.
Rule 3(vi) of the 1973 Rules talks about
dismissal from service of the Board which
ordinarily disqualifies him from future
employment. Rule 5(3) of the 1973 Rules
provides that the procedure laid down in Civil
Services (Classification, Control and Appeal)
Rules as applicable to servants of the Uttar
Pradesh Government shall as far as possible
be followed in disciplinary proceedings,
appeals and representations under the said
Rules.
When
the
1973
Rules
were
promulgated the Civil Service (Classification,
Control and Appeal) Rules 1930 were
referred to in the Rules, however, the 1930
Rules have since been repealed and stand
superceeded
by
the
Uttar
Pradesh
Government Servant (Discipline and Appeal)
Rules, 1999.

8. It is not in dispute that the Civil
Services (Classification, Control and Appeal)
Rules 1930 stands superceeded by the Uttar
Pradesh Government Servant (Discipline and
Appeal) Rules 1999. Although the U.P. Basic
Education Staff Rules, 1973 has not been
amended and Rule 5(3) continues to refer to
the Civil Service (Classification, Control and
Appeal) Rules, the Court is of the opinion
that the disciplinary proceedings, appeals and
representations shall be governed under the
Uttar
Pradesh
Government
Servant
(Discipline and Appeal) Rules, 1999 on the
principle of Legislative reference. The
question of the applicability of the 1999
Rules in place of the 1930 Rules was
elaborately considered by a Coordinate
Bench of this Court in the case of Ziledar
Singh Vs. State of U.P. and others, reported
in 2010 (81) ALR 270. Para 42 and 43 of the
aforesaid decision are being reproduced here
under:-

"42. Considering in the light of the
principles laid down above, I am of the
view that it is "legislation by reference"
with respect to procedure prescribed in
1930 Rules with respect to disciplinary
proceedings, appeals and representations
and
its
subsequent
amendments
and
supercession, recession by 1999 Rules
would also cover the field and would apply
to Rule 5 (3) of 1973 Rules. Both the
statutes travel in the same field. Since the
purpose of referring to 1930 Rules in 1973
Rules is in respect to import procedure of
departmental enquiry instead of repeating
the same, to my mind the exception referred
in P.C. Agarwala (supra) clearly attracted
here also and it would be prudent to apply
1999 Rules which supersede 1930 Rules,
since the amended and detailed procedure
provided in 1999 Rules makes the enquiry
more transparent and consistent with the
known principles of natural justice. The
intent of rule framing authority also does
not appear to be otherwise.

43.
The
subsequent
amendment,
modification etc. in the statutes would,
therefore, also be applicable to 1973 Rules
but only and specifically with respect to the
procedure
for
departmental
inquiry,
appeals and representations and not
beyond that. "

9. Rule 7 of the 1999 Rules deals with
the procedure for imposing major penalties.
10 All. Randhir Singh Gautam & Anr. Vs. The State of U.P. & Ors.
415

10. A bare perusal of the Rule 5(3) of
the 1973 Rules, and Rules 6, 7 & 8 of 1999
would go to show that full fledged
procedure has been provided for in the
matter of procedure to be adhered to while
making departmental enquiry, being in
consonance with principles of natural
justice and rule of fair play. However, the
4th proviso to Rule 7 of the 1999 Rules
provides that the Rule 7 shall not apply in
the 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."

11. A perusal of the Clause (i) of the
4th
proviso
shows
that
the
order
contemplates therein is one which can be
passed imposing a major penalty on a
person on the ground of "conduct which
has led to his conviction" on a criminal
charge and not mere conviction.

12. The contingencies where a person
can be imposed major penalty without any
enquiry on the ground of his conviction is no
more res integra. It is now well settled that
Article 311(2) proviso (a) of the Constitution
is pari materia to Clause (i) of the 4th proviso
to Rule 7 of the 1999 Rules empowering the
disciplinary authority to impose a major
penalty on a person without holding the
enquiry on the basis of "conduct which has
led to conviction". It is also a settled
exposition of law that punishment is not
automatic and based on the mere conviction
but the order imposing punishment must
show application of mind on the part of the
disciplinary authority on the conduct which
has led to the conviction of the employee and
appropriate punishment which he is liable to
suffer.

13. The question as to whether the order
must disclose application of mind on the part
of the disciplinary authority that it has
considered the question of conduct which has
led to conviction of the employee before
passing punishment is also no more res
integra. The Apex Court in Union of India
Vs. Tulsi Ram Patel [1985(3) SCC 398]
while considering the pari materia provisions
under Article 311 of the Constitution of India
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 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 justified 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 enquiry."

 (Emphasis added)

14. A similar question came up for
consideration before a Division Bench of
416 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court in Shyam Narain Shukla Vs.
state of U.P. (1988) 6 LCD 530 and this
Court 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.

 (Emphasis added)

15. Similarly another Division Bench of
this Court in Sadanand Mishra Vs. State of
U.P., 1993 LCD page 70 held that on the
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. Further, it is held
that the scrutiny 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.

16. The above view was taken by this
Court in Chandra Bhuwan Tripathi Vs.
State of U.P. & others (Civil Misc. Writ
Petition No. 45364 of 2003) decided on
8.12.2006. "

17. Now testing the impugned order
dated 28.10.2021 on the anvil of the ratio of
the aforesaid decisions, the Court finds that the
impugned orders do not conform to the 1999
Rules in as much as the Basic Shiksha
Adhikari, Maharajganj/Respondent No.3 has
not taken into consideration the entire conduct
of the petitioners, the gravity of misconduct
committed by them, the impact which the
misconduct is likely to have etc. and has
passed the order simply recording that the
petitioners were suspended vide order dated
16.04.2016 on their being convicted in Case
No.186 of 2013, under Sections 302/34,
323/34, 504, 506 IPC vide order of the
Additional Sessions Judge, Maharajganj. The
services of the petitioners are being terminated
with immediate effect on their conviction vide
order dated 02.04.2016 in compliance of the
procedure laid down in the Government Order
dated 12.10.1979 and the U.P. Government
Servants (Discipline and Appeal) Rules, 1999.

18. In the result, the writ petition is
allowed.
The
impugned
orders
dated
28.10.2021 (Annexure No.9 & 10 to the writ
petition) respectively passed by the Basic
Shiksha Adhikari, Maharajganj, Respondent
No.3 are quashed.

19. However, it shall be open to the
Respondent No.3 to pass a fresh order in
accordance with law.
----------
(2022) 10 ILRA 416
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 3395 of 2022

C/M
Shivaji
Inter
College
Sahson,
Prayagraj & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents