# Savitri Devi v. State of U.P. & Ors

- **Citation:** (2014) 1 ILRA 133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-29
- **Case number:** Service Single No. 29 of 2004
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/savitri-devi-v-state-of-u-p-ors-42953
- **Pages:** 5

## Headnote

Constitution of India, Art.-311-Service lawdismissal on ground of conviction in criminal
case-after considering the role of petitionerargument that criminal appeal pending and
conviction suspended-can not be dismissedheld-misconceived-unless conviction set-aside-no interference by Writ Court.

Held: Para-13 & 14

## Text

1 All] Savitri Devi Vs. State of U.P. and Ors.
133
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.01.2014

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Service Single No. 29 of 2004
alongwith Service Single No. 7749 of 2008

Savitri Devi... Petitioner
Versus
State of U.P. & Ors.. Respondents

Counsel for the Petitioner:
Sri R.B. Singh, Sri B.R. Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-311-Service lawdismissal on ground of conviction in criminal
case-after considering the role of petitionerargument that criminal appeal pending and
conviction suspended-can not be dismissedheld-misconceived-unless conviction set-aside-no interference by Writ Court.

Held: Para-13 & 14
13. Thus as summed up by the Hon'ble
Supreme Court it is abvious that pendency
of
appeal
has
no
effect
over
the
punishment unless the order of conviction
is set aside. .

14. On a keen scrutiny of the judgements
referred as above as well as facts of the
case, I am of the view that there is no
violation
of
Article
311(2)(a)
of
the
Constitution of India in passing the order of
dismissal. Therefore the writ petition is
dismissed.

Case Law discussed:
1989(2)UPLBEC 418; AIR 1985 SC 1416;
1996(14) LCD 126; [1985] 2 S.C.C. 358:(AIR
1985 SC 772); 1995(3) SCC 377; 1985 (2) SCR
358; AIR 1995 SC 623.

(Delivered by Hon'ble Shri Narayan
Shukla, J.)

1. Heard Mr. B.R. Singh, learned
counsel for the petitioner as well as
learned Standing Counsel and perused the
record.

2. Through the instant writ petition
the petitoner has assailed the order dated
03.
Octorber.2003
passed
by
the
Prescribed Authority/ Chief Medical
Officer, Sitapur whereby the petitioner
has been dismissed from service. The
petitioner was placed under suspension
due to her implimentation in a Criminal
Caes registered as Case Crime No. 528 of
1999 under section 304-B, 498-A read
with section 34 of the Indian Penal Code.
Ultimately
the
petitioner
had
been
convicted in the aforesaid case under
section 302 read with section 34 of the
I.P.C.
by
means
of
order
dated
05.12.2002. Therefore in the light of the
Departmental
Rules
notified
on
30.07.1997 the petitioner had been
dismissed from service w.e.f. 31.05.2003.

3. Learned counsel for the petitioner
submits that since the petitioner had been
dismissed due to conviction in a Criminal
case, admittedly no departmental inquiry
was conducted. However the disciplinary
authority was under obligation to discuss
the conduct of the petitioner as to what
role was played by the petitioner in
commission of offence which led her
convication in Criminal Case. He drew
attention of the Hon'ble Court towards
Article 311 of the Constitution of India
which is extracted below:

Article 311. "Dismissal, removal or
reduction in rank of persons employed in
civil capacities under the Union or a
State:-

(1)No person who is a member of a
civil service of the Union or an all- India
134 INDIAN LAW REPORTS ALLAHABAD SERIES
service or a civil service of a State or
holds a civil post under the Union or a
State shall be dismissed or removed by a
authority subordinate to that by which he
was appointed .

(2)No such person as aforesaid shall
be dismissed or removed or reduced in
rank except after an inquiry in which he
has been informed of the charges against
him and given a reasonable opportunity of
being heard in respect of those charges

[Provided that where it is proposed
after such inquiry, to impose upon him
any such penalty, such penalty may be
imposed on the basis of the evidence
adduced during such inquiry and it shall
not be necessary to give such person any
opportunity of making representation on
the penalty proposed:

Provided further that this clause shall
not apply -]

(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; or

(b) where the authority empowered
to dismiss or remove a person or to reduce
him in rank ins satisfied that for some
reason, to be recorded by that authority in
writing, it is not reasonably practicable to
hold such inquiry; or

(c) where the President or the
Governor, as the case may be, is satisfied
that in the interest of the security of the
State, it is not expedient to hold such
inquiry.

(d) If, in respect of any such person
as aforesaid, a question arises whether it
is reasonably practicable to hold such
inquiry as is referred to in clause (2 ), the
decision
thereon
of
the
authority
empowered to dismiss or remove such
person or to reduce him in rank shall be
final."

4. Insupport of his submission he
cited a case decided by a Division Bench
of this Court i.e. Shyam Narain Shukla
and another Vs. State of U.P. and others
1989(2) UPLBEC 418 . In this matter
relying
upon
a
decision
of
the
Constitution
Bench
of
the
Hon'ble
Supreme Cour rendered in the case of
Union of India and another Vs. Tulsi Ram
Patel AIR 1985 SC 1416 a Division
Bench of this Cour held as under:-

"7. Civil servants, that is, persons
who are members of a civil service of the
Union of India or an all-India Service or a
civil service of a State or who hold a civil
post under the Union or a State, occupy in
law a special position. The ordinary law
of master and servant does not apply to
them. Under that law, whether the
contract of service is for a fixed period or
not. If it contains a provision for its
termination by notice, it can be so
terminated. If there is no provision for
giving a notice and the contract is not for
a fixed period, the law implies an
obligation to give a reasonable notice.
Where no notice in the first case or no
reasonable notice in the second case is
given,
the
contract
is
wrongfully
terminated and such wrongful termination
will given rise to a claim for damages.
This is subject to what may otherwise be
provided in industrial and labour laws
where such laws are applicable. The
position of civil servants both in England
and in India is, however, vastly different.

The Civil Service in England"

5. Vijaya Shanker Tewari Va. State
of U.P. 1996 (14) LCD 126, in this Case
furhter another Division Bench of this
Court followed the aforesaid judgment.
1 All] Savitri Devi Vs. State of U.P. and Ors.
135

6. The relevant paragraph No. 127
of Union of India Vs. Tulsi Ram Patel
(supra) which has been relied upon by a
Division Bench of this Court in the
aforesaid case is also quoted here under:-

"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's case. 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 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 all 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 and
another, [1985] 2 S.C.C. 358,: (AIR 1985
SC 772) 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".

7. Learned Counsel for the petitioner
further cited a decision on Deputy
Director
of
Colligiate
Education
(Administration), Madras Vs. S. Nagoor
Meera 1955 (3) SCC 377 on the same
point. In this case Hon'ble Supreme Court
considered its another decision i.e.
Shankardas Vs. Union of India 1985 (2)
SCR 358 the relevant part of the judgment
is reproduced herein under:-
136 INDIAN LAW REPORTS ALLAHABAD SERIES

"Clause (a) of the second proviso to
Article 311(2) of the Constitution confers
on the government the power to dismiss a
person from services "on the ground of
conduct which has led to his conviction
on a criminal charge." But that power like
every other power has to be exercised
fairly, justly and reasonably. Surely, the
Constitution does not contemplate that a
government servant who is convicted for
parking his scooter in a no-parking area
should be dismissed from service. He may
perhaps not be entitled to be heard on the
question of penalty since clause (a) of the
second proviso to Article 311(2) makes
the provisions of that article inapplicable
when a penalty is to be imposed on a
Government servant on the ground of
conduct which has led to his conviction
on a criminal charge. But the right to
impose a penalty carries with it the duty
to act justly."

8. On its conclusion the Hon'ble
Supreme Court held that what is relevant
factor for consideration is the conduct of
the Government Servant which has led his
conviction for Criminal Charge. However
since in this case also like the case on
hand the respondent was convicted having
been found guilty by a Crimial Court, the
Hon'ble Supreme Court held that untill it
has been decided that it may not be
advisable to retain such person in service.

9. Learned counsel for the petitioner
submits that petitioner has died on 19th
September 2011. Had she been alive, she
would
have
attained
the
age
of
superannuation some time in 2006. This
Court by means of interim order dated
08.01.2004 stayed the order of dismissal
with the observation that petitoiners shall
be continued in service subject to final
orders of this Case. Therefore the learned
counsel for the petitioner submits that the
substituted petitioners who are the sons of
the deceased are entitled to get the arrears
of salary, gratuity, Provident Fund and the
amount of pension for about 42 months
which was stopped.

10. Learned counsel for the
petitioner further submit that judgement
of the Session Court has been appealed
before this Court by the co-accused.
Therefore the order passed by the Session
Judge may not be treated as a final one.

11. The judgment passed by the
Sessions Judge is on record. A bare
perusal of it shows that the role of the
deceased Savitri Devi in commission of
offence was discussed and considering
her involvement in commission of offence
and the Session Court convicted her with
sentence
to
undergo
rigorouos
imprisonment for life under section 302
read with section 34 I.P.C.

12. Therefore I am of the view that
Clause (a) of Article 311 (2) has been
followed well. So far as the effect of
pencency of appeal is concerned, The
Hon'ble Supreme Court has considered it
S. Nagoor Meera (supra) case and held
that merely because the sentence is
suspended and/or the accused is released
on Bail, the conviction does not cease to
be operative. The Hon'ble Supreme Court
has observed that the provisions of 389(1)
I.P.C. held that "it may be noted, speaks
on suspending "the execution of the
sentence or order", it does not expressly
speaks of suspension of convication. The
Hon'ble Supreme Court on this issue also
discussed its another judgment given in
the case of Ram Narayan Vs. Ramesh
Narayan AIR 1995, SC 623, the relevant
portion
is
extracted
below:
1 All] Smt. Parmi Maurya Vs. State of U.P. and Ors.
137

"Section
389(1)
empowers
the
Appellate Court to order that the execution
of the sentence or ordcr appealed against be
suspended pending the appeal. What can be
suspended under this provision is the
execution of the sentence or the execution
of the order. Does 'Order' in Section 389(1)
empowers the Appellate Court to order that
the execution of the sentence or order
appealed against be suspended pending the
appeal. What can be suspended under this
provision is the execution of the sentence or
the execution of the order. Does 'Order' in-
Section 389(1) mean order of conviction or
an order similar to the one under Sections
357 or 360 or the Code? Obviously, the
order re- ferred to in Section 389(1) must be
an order capable in execution. An order of
conviction by itself is not capable of
execution under the Code. It is the order of
sentence
or
an
order
awarding
compensation or imposing fine or release on
probation which are capable of execution
and which if not suspended, would be
required
to
be
executed
by
the
authorities...... In certain situations the order
of conviction can be executable, in the
sense, it may incur a disqualification as in
the instant case. In such a case the power
under Section 389(1) of the Code would be
invoked. in such situations, the attention of
the Appellate Court must be specifically
invited to die consequence that is likely to
fall to enable it to apply its mind to the issue
since under Section 389(1) it is under an
obligation to support its order for reasons to
be recorded by it in writing. If the attention
of the Court is not invited to this specific
consequence which is likely to fall upon
conviction how can it be expected to assign
reasons relevant thereto?...... If such, a
precise request was made to the Court
pointing out the consequences likely to fall
on the continuance of the conviction order,
the Court would have applied its mind to
the specific question and if it thought that
case was made out for grant of interim stay
of the conviction order, with or without
conditions attached thereto, it may have
granted an order to that effect. "

13. Thus as summed up by the
Hon'ble Supreme Court it is abvious that
pendency of appeal has no effect over the
punishment unless the order of conviction
is set aside. .

14. On a keen scrutiny of the
judgements referred as above as well as
facts of the case, I am of the view that
there is no violation of Article 311(2)(a)
of the Constitution of India in passing the
order of dismissal. Therefore the writ
petition is dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal (D) No. 110 of 2014

Smt. Parmi Maurya..... Petitioner
Versus
State of U.P. and Ors....... Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri M.A. Ausaf

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.-226-
Writ
Jurisdiction
scope
of
interferenceappellant was appointed as health worker
on
04.01.90-on
29.10.10-required
to
submit
her
original
certificate-on
verification nothing found adverse to
appellant-terminations based upon report