# Udai Pratap Singh @ Sukhdeo v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 765
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014
- **Case number:** Civil Misc. Writ Petition No. 43886 of 2004
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-pratap-singh-sukhdeo-v-state-of-u-p-ors-42971
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.-311(2)-
Dismissal from Service-on ground of
766 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction of life imprisonment-without
holding disciplinary proceeding-without
considering the conduct lead to convictionafter fair acquittal in criminal appeal-filed
departmental appeal also dismissed-helddismissal as well as order by Appellate
authority not sustainable quashed-in view
of 'No work no pay'-not entitled for back
wages-but entitled for post retiral benefits
with continuity of service.

Held: Para-15 & 16

## Text

2 All] Udai Pratap Singh @ Sukhdeo Vs. State of U.P. & Ors.
765
the validity of anything previously done
under that rule, notification or scheme, as
the case may be.

4. Every notification made by the
State Government under the proviso to
section 33, proviso to sub-section (2) of
section 47, every scheme made by it under
section 27, section 30, sub-section (1) of
section 38, section 42, section 43, section
67, section 68 and every rule made by it
under sub-section (1), shall be laid, as
soon as may be after it is made, before
each House of State Legislature, where it
consists of two Houses or where such
legislature consists of one House before
that House."

29. From the simple reading of the
aforesaid, it is clear that legislature itself
has contemplated that Notification of
excaption has to be issued with reference
to the Proviso to sub-section(2) of Section
47 only. Therefore Notification for
excaption of the establishment has to be
with regard to what is covered by subsection (2) of Section 47 and not the
entire Section 47.

30. It may also be seen that while
Section 73(3) and Section 73(4) of the
Act, 1995 talk of Notification to be issued
under Proviso to Section 33 they refers to
a Notification to be issued under Proviso
to sub-section (2) of Section 47 only.

31. For the reasons recorded by us
herein above, we record that the Notification
dated 10.9.2002 issued under Section 73(2)
by the Central Government is necessarily to
be read with reference to the field occupied
by sub-section(2) of Section 47 only.
Therefore the Notification dated 10.9.2002 as
exempts the CRPF from the restriction
imposed in the matter of denial of
promotion to disabled employees only.

32. With the help of such
Notification the respondent establishment
could not have boarded out the petitioner
with disability pension.

33. In view of the aforesaid, we held
that the boarding out of the petitioner under
the order impugned with invalidation
pension cannot be sustained, it is therefore
quashed. The respondent establishment is
directed to treat the petitioner in the service
and to adjust him against any suitable post or
against a supernumerary post, until a suitable
post is available or till he attains the age of
superannuation, whichever is earlier.

34. It is needless to the record that the
petitioner shall be entitled for full salary and
consequential benefit of service.

35. The writ petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.01.2014

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 43886 of 2004

Udai Pratap Singh @ Sukhdeo Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri N.K. Saxena, Sri Deepak Saxena
Sri Ram Kishor Gupta

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.-311(2)-
Dismissal from Service-on ground of
766 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction of life imprisonment-without
holding disciplinary proceeding-without
considering the conduct lead to convictionafter fair acquittal in criminal appeal-filed
departmental appeal also dismissed-helddismissal as well as order by Appellate
authority not sustainable quashed-in view
of 'No work no pay'-not entitled for back
wages-but entitled for post retiral benefits
with continuity of service.

Held: Para-15 & 16
15. The impugned order is also not
sustainable as it has been passed in
violation of principle of natural justice
without giving any opportunity to the
petitioner. The petitioner has now been
retired. He can only be reinstated notionally
and entitled for other post retiral benefits.

16. On the facts and circumstances, I
am of the view that on the principle of
"No work no pay", the petitioner is not
entitled for the salary for the period
during
which
he
has
not
worked.
However, the period of termination be
treated as the period of service and the
petitioner would be entitled for other
post retiral benefits from the date when
he attained the age of superannuation.

Case Law discussed:
2013 (11) ADJ 352; 2013(3) LBESR 438; AWC2007-7-7002; 2010 SCC (15) 305; AIR 1985
(SC) 1416; (1988) 6 LCD 530; 1993 LCD 70;
2006 SCC (L&S) 35.

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

1. Heard Sri Ram Kishor Gupta,
learned counsel for the petitioner and Sri
Raj Kumar Pandey, learned Standing
Counsel.

2. By means of the present writ
petition, the petitioner is seeking the
following relief:

"5. Issue a writ, order or direction
in
the
nature
of
mandamus
commanding the respondent no.1 to
pay pensionary benefit to the petitioner
from the date of his superannuation
from service;

VI. Issue a writ order or direction in
the nature of certiorari quashing the order
dated 02.09.2013 passed by respondent
no.3 rejecting the representation dated
26.04.2004 submitted by the petitioner."

3. The petitioner was a regular
employee with the respondent no.3 and
was working on the post of Ward Boy at
Rajkiya Ayurvedic & Unani Chikitsalya,
Dhagwa, district Hamirpur. In the year
1978 a first information report was lodged
against the petitioner and the petitioner
has been sent to jail. The petitioner has
been
suspended
vide
order
dated
08.09.1978. The petitioner has been
sentenced to life imprisonment vide
judgment and order dated 05.05.1981
passed by IIIrd Additional Sessions
Judge,
Hamirpur
in
Session
Trial
No.257/78, under sections 302, 34 I.P.C.
In pursuance thereof, the services of the
petitioner has been terminated vide order
dated 19.10.1981, w.e.f. 05.05.1981, the
date on which the petitioner has been
convicted by the Sessions Court. Against
the conviction order, the petitioner filed
Criminal Appeal No.1017 of 1981, which
has been allowed by this Court vide order
dated 05.03.2004 and the petitioner has
been acquitted. After the acquittal, the
petitioner filed the present writ petition
challenging the termination order dated
19.10.1981.
The
petitioner
filed
amendment application claiming post
retiral benefits from the date of his
superannuation and further prayed for
quashing of the order dated 02.09.2013
rejecting
the
representation
of
the
petitioner dated 25.06.2004.
2 All] Udai Pratap Singh @ Sukhdeo Vs. State of U.P. & Ors.
767

4. Learned counsel for the petitioner
submitted that the services of the
petitioner appears to have been terminated
under the Proviso of Article 311 (2) of the
Constitution of India after the petitioner
being convicted by the Sessions Court
vide order dated 05.05.1981 without
making any enquiry. No departmental
enquiry proceeded and has not been
culminated into any punishment. The
termination of the petitioner is mechanical
without application of mind. Now the
petitioner has been acquitted on merit by
this Court honourably, therefore, the
petitioner is entitled to be reinstated with
all benefits. However, since the petitioner
has attained the age of superannuation,
the petitioner's service can only be
notionally reinstated and the petitioner
may be allowed to be reinstated with full
salary and further the pensionary benefits
from the date of superannuation.

5. In support of the contention,
reliance is placed on the decision of
learned Single Judge in the case of Ratan
Singh Vs. State of U.P. and others,
reported in 2013 (11) ADJ, 352, in the
case of Constable 491, Civil Police,
Gabbar Singh Vs. State of U.P. & Ors.,
reported in 2013 (3) LBESR, 438 (All), in
the case of Prem Pal Singh Vs. State of
U.P., reported in AWC-2007-7-7002 and
the decision of the Apex Court in the case
of State of Uttar Pradesh Vs. Ram Vinai
Sinha, reported in 2010 SCC (15), 305.

6. Learned Standing Counsel
submitted that it was open to the
petitioner to challenge the termination
order in the year 1981. He further
submitted that the petitioner has been
given benefit of doubt by this Court while
acquitting from the criminal charges. He
submitted that the petitioner has not made
any pleading that he was unemployed
during the period of termination and,
therefore, in any view of the matter, he is
not entitled for any salary for the period
after termination.

7. I have considered the rival
submissions and perused the record.

8. Present writ petition has been
filed in the year 2004 challenging the
termination order dated 19.10.1981 when
the petitioner was acquitted in Criminal
Appeal No.1017 of 1981 in respect of the
criminal charges. The writ petition was
entertained without raising any objection
in respect of the laches. In the facts and
circumstances, the laches have also been
explained. Therefore, the objection of
learned
Standing
Counsel
that
the
petitioner should have challenged the
termination order in the year 1981 and
since, it has been challenged in the year
2004, the petitioner is not entitled for any
relief, can not be accepted.

9. Now coming to the merit of the
case. The perusal of the termination order
reveals that the services of the petitioner
have been terminated merely because the
petitioner has been acquitted by the
Sessions Court. mechanically without
application of mind whether the conduct
of the petitioner was such that he was
liable to be terminated.

10. In the case of Union of India Vs.
Tulsi Ram Patel, reported in AIR 1985
(SC), 1416, the Apex Court while
considering the pare materia provision
under Article 311 of the Constitution of
India, held as under :

"The second proviso will apply only
where the conduct of a Government
768 INDIAN LAW REPORTS ALLAHABAD SERIES
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).

11. A similar question came up for
consideration before a Division Bench of
this Court in the case of Shyam Narain
shukla Vs. State of U.P., reported in
(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 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. "

12. Similarly another Division
Bench of this Court in the case of
Sadanand Mishra Vs. State of U.P.,
reported in 1993 LCD, 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.

13. In view of the above law laid
down by the Apex Court and by this
Court before passing the dismissal order
the competent authority ought to have
considered "Conduct led to conviction"
and
should
not
pass
the
order
mechanically on the basis of mere
conviction.

14. In the present case, no such exercise
has been done. The conduct of the petitioner,
which led to conviction has not been
examined and the petitioner has been
dismissed mechanically only on the ground
that he has been convicted by the criminal
court. Perusal of the order of this Court passed
in Criminal Appeal No.1017 of 1981, by
which the petitioner has been acquitted reveals
that the petitioner has been acquitted on merit
on consideration of the evidences on record.
Admittedly, no departmental enquiry has been
made and no reason has been given for not
conducting the disciplinary proceeding. In this
view of the matter, the termination order is not
sustainable.

15. The impugned order is also not
sustainable as it has been passed in violation
of principle of natural justice without giving
any opportunity to the petitioner. The
2 All] Subas Yadav Vs. The State of U.P. & Ors.
769
petitioner has now been retired. He can only
be reinstated notionally and entitled for other
post retiral benefits.

16. On the facts and circumstances, I
am of the view that on the principle of "No
work no pay", the petitioner is not entitled for
the salary for the period during which he has
not worked. However, the period of
termination be treated as the period of service
and the petitioner would be entitled for other
post retiral benefits from the date when he
attained the age of superannuation.

17. In the case of Baldev Singh Vs.
Union of India and others, reported in
2006 SCC (L&S), 35, Apex Court held
that where the service of the employee is
terminated on the ground that he was
convicted in criminal case and on his
acquittal his service is reinstated, the
employee is not entitled for salary for the
period during which he has worked on the
principle of "no work no pay".

18. In the result, the writ petition is
allowed in part. The impugned termination
order dated 19.10.1981 as well as order dated
02.09.2013 passed by the respondent no.3,
Regional Ayurvedic/Unani Chikitsadhikari
are set aside. However, the petitioner is not
entitled for back salary for the period when
he has not worked on the principle of "no
work no pay" and would entitled for the post
retiral benefits, namely, pension etc. from the
date
when
he
attained
the
age
of
superannuation.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2014

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 46172 of 2003
Subas Yadav ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.C. Singh, Sri A.K. Mishra, Sri
Ashwani Kr. Misra, Sri Sunil Kumar Singh,
Sri Rajes Kumar Singh

Counsel for the Respondents:
C.S.C., Sri A.K. Tripathi

U.P. Intermediate Education Act 1921Chapter III Regulation 101-Appointment
of Asst. clerk-without prior approval-ab
intio
illegal-after
appointment-no
requirement of approval-DIOS rightly
refused to approve.

Held: Para-9
I do not find any error in the impugned
order passed by District Inspector of
Schools, Deoria. The appointment has
been made by the Principal of the
college,
appointing
the
petitioner
without prior approval, therefore the
appointment was ex-facie illegal being
contrary
to
Regulation
101
and,
therefore,
the
District
Inspector
of
Schools, Deoria has rightly refused to
grant the approval. The decision of the
Division Bench of this Court in the case
of Jagdish Singh, etc. Vs. State of U.P.
and others (Supra) is of no help to the
petitioner.

Case Law discussed:
2006(4) ADJ 162.

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

1. Heard Sri Rajesh Kumar Singh,
Advocate, holding brief of Sri Sunil
Kumar Singh, learned counsel appearing
on behalf of the petitioner and Ms. Suman
Sirohi, learned Standing Counsel.

2. By means of the present writ
petition, the petitioner is challenging the
order dated 02.09.2003 passed by District