# Vishwanath Vishwakarma v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 366
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-18
- **Case number:** Writ-A No. 4422 of 2015
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishwanath-vishwakarma-v-state-of-u-p-ors-50797
- **Pages:** 11

## Headnote

A. Service Law - Constitution of India -
Article 311 (4) - Dismissal from service -
Conviction of life imprisonment u/s 302
and 149 IPC - Conduct of the employee -
Relevancy - Held, the impugned order has
been passed only on the ground of
conviction without having any discussion
or application of mind over the conduct of
the
petitioner,
which
is
mandatory
requirement in light interpretation of
Article 311(2)(a) of Constitution of India -
Tulsiram Patel's case relied upon - High
Court set aside the termination order.
(Para 24 and 25)

B. Service Law - Constitution of India -
Article 300-A - Right to property - Post
retiral benefits - One day before the
retirement, the employee was dismissed -
He was also refused the post retiral
benefit on the ground of conviction order
- Legality challenged - Held, under Article
300(A) of Constitution of India, pension
and other post retiral benefits are not
bounty, but a property and cannot be
taken away without provision of law -
High Court directed to pay the post retiral
benefit including pension within three
months. (Para 26 and 31)
9 All. Vishwanath Vishwakarma Vs. State of U.P. & Ors.
367
Writ petition allowed. (E-1)

List of Cases cited:

## Text

366 INDIAN LAW REPORTS ALLAHABAD SERIES
the Government on the principle of equal
pay for equal work. Nor can employees in
private

employment, even if serving full time,
seek parity in salary with government
employees. The right to claim a particular
salary against the State must arise under a
contract or under a statute.

[See State of Karnataka v. Umadevi
(3) [(2006) 4 SCC 1], M. Raja v. CEERI
Educational Society [(2006) 12 SCC

636], S.C. Chandra v. State of
Jharkhand
[(2007)
8
SCC
279],
Kurukshetra Central Coop. Bank Ltd. v.
Mehar Chand [(2007) 15 SCC 680] and
Official Liquidator v. Dayanand [(2008) 10
SCC 1.]

28. Thus, as per the law laid down by
this Court in the aforesaid decisions parttime employees are not entitled to seek
regularization as they are not working
against any sanctioned post and there
cannot be any permanent continuance of
part-time temporary employees as held.
Part-time temporary employees in a
Government run institution cannot claim
parity in salary with regular employees of
the Government on the principle of equal
pay for equal work."

17. The judgments relied upon by
learned counsel for the respondent fully
cover the case of the respondents that in
absence of any sanctioned post, no
direction can be issued for absorption of an
employee of the government.

18. In view of the reasons recorded,
this writ petition fails and is hereby
dismissed.

19. It is however made clear that as
and when vacancy will be created, the
claim of the petitioners shall be taken into
consideration by the respondents.
----------
(2023) 9 ILRA 366
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.09.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 4422 of 2015

Vishwanath Vishwakarma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Arvind Kumar Vishwakarma, Ramesh Kumar
Srivastava

Counsel for the Respondents:
C.S.C., Savitra Vardhan Singh

A. Service Law - Constitution of India -
Article 311 (4) - Dismissal from service -
Conviction of life imprisonment u/s 302
and 149 IPC - Conduct of the employee -
Relevancy - Held, the impugned order has
been passed only on the ground of
conviction without having any discussion
or application of mind over the conduct of
the
petitioner,
which
is
mandatory
requirement in light interpretation of
Article 311(2)(a) of Constitution of India -
Tulsiram Patel's case relied upon - High
Court set aside the termination order.
(Para 24 and 25)

B. Service Law - Constitution of India -
Article 300-A - Right to property - Post
retiral benefits - One day before the
retirement, the employee was dismissed -
He was also refused the post retiral
benefit on the ground of conviction order
- Legality challenged - Held, under Article
300(A) of Constitution of India, pension
and other post retiral benefits are not
bounty, but a property and cannot be
taken away without provision of law -
High Court directed to pay the post retiral
benefit including pension within three
months. (Para 26 and 31)
9 All. Vishwanath Vishwakarma Vs. State of U.P. & Ors.
367
Writ petition allowed. (E-1)

List of Cases cited:

1. U.O.I.& anr. Vs Tulsiram Patel; AIR 1985 SCC
1416

2.Shyam Narain Shukla Vs St. of U.P.; 1988 6
LCD 530

3. Ratan Singh Vs St. of U.P. & ors.; (2013) 11
ADJ 352

4. Udai Pratap Singh Vs St. of U.P.; 2014 (32)
LCD 779

5. Shambhu Nath Yadav Vs St. of U.P.; 2016(4)
ADJ 276

6. Rajesh Dwivedi Vs St. of U.P.; 2018(36) LCD
1047

7. Ram Kishan Vs St. of U.P.; (2020) 1 ADJ 862

8. Murari Lal Rathore Vs St. of U.P.; 2021(6) ALJ 622

9. St. of Jharkhand & ors. Vs Jitendra Kumar
Srivastava & anr.; AIR 2013 Sc 3383

10. Civil Appeal No. 1804 of 2020; L.I.C. of
India Vs Mukesh Poonamchand Shah

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the
petitioner and Sri Savitra Vardhan Singh,
learned Additional Chief Standing Counsel
for the State-respondents.

2. Present petition has been filed
seeking the following relief:

I. Issue a writ or direction in the
nature of certiorary commanding the
opposite parties to quashing the Impugned
rejection order dated 30.08.2014 and
appellate order dated 13.05.2015 except
decision with regard to amount of provident
fund.

II. Issue a writ or direction in the
nature of mandamus commanding the
opposite parties to treat the petitioner as
retire from service subsequently to pay the
retiral dues namely as pension, amount of
gratuity, amount of leave encashment,
amount of group insurance, arrear of
pension and other dues.

III. Issue a writ or direction in the
nature of mandamus commanding the
opposite parties to pay the interest towards
the release of amount of provident fund and
to pay the arrear of salary for the period of
suspension.

3. Since, pleadings have been
exchanged between the parties, therefore,
with the consent of the parties, the petition
is being decided at the admission stage
itself.

4. Brief facts of the case are that,
petitioner was appointed as Lekhpal w.e.f.
08.03.1975 in District-Sultanpur. He was
given his first promotional pay scale in the
year 1994 and second in the year 2000. The
petitioner was working as Lekhpal at Tehsil
Sadar, District Sultanpur. Unfortunately an
accident took place on 11.07.1992, upon
which FIR dated 11.07.1992 has been
lodged at Police Station Kurwar, DistrictSultanpur against 16 persons including
petitioner, which was registered as case
crime no. 198 of 1992, under Section- 148,
302, 149 and 324. Ultimately, the charge
sheet was submitted and case crime was
converted into session trial No. 124 of
1994. After completion of trial, petitioner
was convicted for life imprisonment under
Section-302 and 149 vide judgment and
order dated 24.08.2009. Petitioner was
taken
under
custody
on
22.08.2009.
Against the judgment and order dated
24.08.2009, petitioner has filed a criminal
appeal, which was registered as criminal
368 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal no. 1987 of 2009. Petitioner was
released on bail by the High Court on
10.01.2017. Petitioner has attained the age
of superannuation on 31.08.2014. Order of
dismissal from service was passed on
30.08.2014
only
on
the
ground
of
conviction and the same was served upon
the petitioner on 02.09.2014. Apart from
dismissal from service, petitioner was also
denied the post retiral benefits.

5. Against the order dated 30.8.2014,
petitioner
has
preferred
departmental
appeal dated 17.10.2014 before the District
Magistrate, Amethi. During the pendency
of the appeal, he has also challenged the
order dated 30.08.2014 before this Court by
filing S.S. No. 42 of 2015, which disposed
of vide order dated 20.02.2015 directing
the appellate authority to decide the appeal
of the petitioner within three months. Said
appeal of the petitioner was decided vide
appellate order dated 13.05.2015, issuing
the direction for payment of GPF amount to
petitioner only and for remaining post
retiral benefits, it is held in the appellate
order that decision shall be taken after final
disposal of criminal appeal no. 1987 of
2009 filed by the petitioner.

6. Petitioner has challenged both the
orders, i.e. order dated 30.08.2014 and
13.05.2015 in present petition. So far as
first order is concerned, learned counsel for
the petitioner firmly submitted that in light
of Article 311(2)(a) of Constitution of
India, mere conviction cannot be a ground
for removal of an employee from service,
but conduct of the employee has also to be
seen while passing the order of dismissal.
He next submitted that after conviction,
petitioner was issued charge sheet on
17.04.2014 having only one charge that he
has never informed about the conviction
and incarceration thereafter, which he duly
replied vide reply dated 20.06.2014 with
the averment that he has given due
information. He next submitted that from
perusal of the impugned order dated
30.08.2014, it is apparently clear that,
neither any fact submitted in reply has been
considered, nor there is any application of
mind about the conduct of the petitioner as
required
under
Article
311(2)(a)
of
Constitution of India. Though the order is
having two paragraphs about some facts,
but it is only one line about the dismissal of
the petitioner in light of judgment and order
of conviction dated 24.08.2009. He firmly
submitted that even in case of conviction, it
is required on the part of the disciplinary
authority to apply its mind and consider the
conduct
of
the petitioner,
which
is
absolutely missing in the present case.
Therefore, order dated 30.08.2014 is bad
and liable to be set aside.

7. In support of his contention,
learned counsel for the petitioner has
placed reliance upon the judgment of Apex
Court in the matter of Union of India and
another Vs. Tulsiram Patel: AIR 1985
SCC 1416 as well as of this Court in
Shyam Narain Shukla Vs. State of U.P.,
1988 6 LCD 530, Ratan Singh Vs. State of
U.P. and Others: (2013) 11 ADJ 352, Udai
Pratap Singh Vs. State of U.P. 2014 (32)
LCD 779, Shambhu Nath Yadav Vs. State
of U.P.: 2016(4) ADJ 276, Rajesh Dwivedi
Vs. State if U.P. 2018(36) LCD 1047, Ram
Kishan Vs. State of U.P. (2020) 1 ADJ
862, Murari Lal Rathore Vs. State of U.P.:
2021(6) ALJ 622.

8. He has also assailed appellate order
dated 13.05.2015 on the ground that
pension and post retiral benefits are not
bounty, but a property under Article 300(A)
of the Constitution of India, therefore, the
same cannot be taken away without any
9 All. Vishwanath Vishwakarma Vs. State of U.P. & Ors.
369
provision of law. In support of his
contention, he placed reliance upon the
judgment of Apex Court in the matter of
State of Jharkhand & Ors. Vs. Jitendra
Kumar Srivastava & Anr.: AIR 2013
Suprreme Court 3383.

9. Learned Additional Chief Standing
Counsel has vehemently opposed the
submission of learned counsel for the
petitioner and submitted that once the
petitioner is convicted, it is always open for
the disciplinary authority to dismiss the
petitioner from service in light of Article
311(2)(a) of Constitution of India. In
support of his contention, he placed
reliance on the judgment of Apex Court in
Civil Appeal No. 1804 of 2020: of Life
Insurance Corporation of India Vs.
Mukesh Poonamchand Shah.

10. I have considered the rival
submissions advanced by learned counsel
for the parties, perused Article 311(2)(a) of
Constitution of India as well as judgments
relied upon.

11. The issue before the Court is that
as to whether in case of conviction, service
of petitioner may be terminated straightway
without providing any opportunity to him
in light of Article 311(2)(a) of Constitution
of India or not?

12. As Article 311 of Constitution of
India is relevant for the present case, the
same is being quoted hereinbelow:

"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
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 an 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 is 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.

(3) 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."

13. From the perusal of Article
311(2)(a) of Constitution of India, it
appears that in case a person is dismissed
370 INDIAN LAW REPORTS ALLAHABAD SERIES
from the service on the ground of conduct,
which has led to conviction on a criminal
charge, a fledged inquiry is not required.

14. This issue was before the Apex
Court for consideration in the matter of
Tulsiram Patel (Supra), relevant paragraph
of the said judgment is quoted hereinbelow:

"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."

15. Again
this
issue
came
for
consideration before this Court in the
matter of Shyam Narain Shukla(Supra).
This Court after considering the matter has
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.""

16. This Court has considered the
very same issue in the matter of Ratan
Singh(Supra)
also.
This
Court
after
consideration has taken the very same view.
Relevant paragraph of the said judgment is
quoted hereinbelow:

" In view of the finding in favour of
petitioner on second issue, as above, that,
the impugned order of dismissal has not
been passed by competent authority after
considering "conduct led to conviction" but
only in a mechanical way on the basis of
mere conviction, the writ petition deserves
to be allowed. The writ petition is
accordingly allowed. Impugned orders
dated 28.4.2011, 28.1.2012 and 11.9.2012
are hereby set aside. The petitioner shall be
entitled to all consequential benefits.
However, this order shall not preclude the
respondents from passing a fresh order in
accordance with law. "

17. This issue was again before this
Court for consideration in the matter of
Udai Pratap Singh(Supra). This Court
after
considering
the
judgements
of
Tulsiram Patel(Supra) and Shyam Narain
Shukla(Supra) has taken the very same
view. Relevant paragraphs of the said
judgment are being quoted hereinbelow:

"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
9 All. Vishwanath Vishwakarma Vs. State of U.P. & Ors.
371
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 petitioner has now been
retired.
He
can
only
be
reinstated
notionally and entitled for other post retiral
benefits."

18. Division Bench of this Court has
also considered this issue in the matter of
Sadanand Mishra Vs. State of U.P.: 1993
LCD 70 and has taken the very same view.
Relevant paragraph of the said judgment is
being quoted hereinbelow:

"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"

19. Again this issue came up before
this Court in the matter of Shambhu Nath
Yadav(Supra) in which petitioner was
convicted under Section 498A and 304B
IPC and this Court after considering many
judgments occupying the field has held as
under:

"In the present case, respondents have
failed to consider the conduct of the
petitioner which has led to his conviction
before imposing punishment of dismissal by
means of impugned order. The impugned
order ex-facie does show that disciplinary
authority has not applied its mind at all to
the conduct led to conviction and quantum
of punishment but proceeding ahead to
impose punishment as an automatic and
natural consequence of conviction, and it
cannot be said to be a valid exercise of
power under Rule 8(2)(a) of 1991 Rules
and therefore, the orders impugned in the
writ petition are unsustainable. "

20. In the matter of Rajesh
Dwivedi(Supra), issue before the Court
was same as in the present controversy and
the petitioner in said case was convicted
under Sections 147, 148 and 302 IPC. The
Court after considering many judgments
has taken the very same view. Relevant
paragraphs of the said judgment are quoted
hereinbelow:

"10. In view of the settled proposition
of law, as discussed above, a government
employee cannot be dismissed, removed or
reduced in rank merely on the ground that
he has been convicted by a Court of law.
Thus, conviction alone is not enough to
punish a government employee, but it is
conduct of the employee concerned, which
372 INDIAN LAW REPORTS ALLAHABAD SERIES
had led to is conviction on the basis of
which, the government employee can be
punished. Hence, t is necessary for
disciplinary authorities to consider the
conduct of convict government servant,
which had led to his conviction. In the
absence of the same, the order of the
punishment would be bad. Further the
consideration by the disciplinary authority
is required to be recorded in writing.

11. The learned Standing Counsel has
argued that proviso-2 to the Article 311 of
the Constitution of India provides that
where a person is dismissed on the ground
of conduct, which has led to his conviction
on a criminal charge or where the
appointing authority is satisfied that it is
not reasonably practicable to hold such an
enquiry, there is no requirement of the
observance of the principles of natural
justice. He has further argued that this
provision is akin to Rule-7 of the U.P.
Government Servant (Discipline & Appeal)
Rules 1999 which also provides that 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
where the disciplinary authority is satisfied,
that for the reason to be recorded in
writing, it is not reasonably practicable to
hold an enquiry as per the Rules the order
becomes final. He has also argued that an
employee who has been in Jail for more
than 48 hours, his services are terminated
in accordance with the rules.

12. The argument of the learned
Standing Counsel is patently illegal since
Article 311 of the Constitution of India and
also Rule-7 of the U.P. Government Servant
(Discipline & Appeal) Rules, 1999 clearly
provide that the authority passing the order
of the major punishment, on the ground of
conviction of the employee on a criminal
charge, will have to record his satisfaction
in writing that he is satisfied, after
consideration of the conduct of the
employee which has led to conviction on
the ground of criminal charge, that he
deserves major penalty. Further argument
of the learned Standing Counsel that mere
imprisonment exceeding 48 hours, an
employee becomes liable for termination of
his services as per the Rules is absurd. As
per Rule-4(3) of the U.P. Government
Servant (Discipline & Appeal) 1999, such a
Government deemed to be placed under
suspension w.e.f., the date of his detention.

13. Therefore, it is clear from the
above decisions and the relevant provisions
of law that it is incumbent upon the
authorities to consider the conduct of the
employee which has led to his conviction in
the criminal charge before imposing any
punishment. In the present case, the
impugned order passed by the respondent
No. 2 only states that since the petitioner
has been convicted in the criminal case, he
should be dismissed from service from the
date of the order of conviction. The
respondent No. 2 was required to examine
the conduct of the petitioner which led to
his conviction before imposing the major
punishment upon him. The order suffers
from non application of mind and shows
arbitrary exercise of discretion vested in
the respondent No. 2 by law."

21. Again a similar issue came up
before this Court in the matter of Ram
Kishan(Supra), in which an employee was
convicted under Section 302 and 134 I.P.C.
and this Court after considering many
judgments has taken the very same view.
Relevant paragraphs of the said judgment
are being quoted hereinbelow:

"12. In Shankar Das v. Union of India,
MANU/SC/0369/1985 :1985 (2) SCR 358,
Hon'ble Supreme Court while referring to
power under Clause (a) of second proviso
9 All. Vishwanath Vishwakarma Vs. State of U.P. & Ors.
373
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
andreasonably.""

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, MANU/SC/0488/1975 :
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
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, MANU/SC/0578/2010 :
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.

22. Again one more similar issue was
before this Court in the matter of Murari
Lal Rathore(Supra) in which conviction
374 INDIAN LAW REPORTS ALLAHABAD SERIES
was made under Section 302, 120 B and
149 IPC and petitioner was dismissed from
the service on the very same ground. This
Court after considering in detail has taken
the very same view. Relevant paragraphs of
the said judgment are being quoted
hereinbelow:

"10. The order of dismissal merely
records that petitioner has been convicted
to imprisonment of life in S.T. No. 455 of
208 and is incarcerated in jail therefore in
view of the Government Order dated
12.10.1979,
the
petitioner
is
being
dismissed from service from the date of his
incarceration in jail i.e. 31.10.2015.

14. The authoritative pronouncement
of law by Supreme Court in Tulsi Ram
Patel (supra) is consistently followed and it
is by now well settled that mere conviction
in a criminal case would not lead to
automatic dismissal from service of the
government servant. Since clause (a) to the
second proviso to Article 311(2) of the
Constitution of India as also first proviso to
rule-7(xii) of the Rules of 1991 are
exception to the normal rule of holding
inquiry against the government servant and
even opportunity of hearing is not required
to be given to him, therefore, the
disciplinary authority has to scrupulously
examine the conduct of the government
servant which led to his conviction before
exercising such jurisdiction. The nature of
guilt established as also the possible
defence available to the government
servant
are
aspects
which
requires
consideration
at
the
level
of
the
disciplinary authority. In the event these
aspects are omitted from consideration, the
order of dismissal itself would be rendered
without jurisdiction.
18. Since the conduct of the petitioner
leading to his conviction has not been
examined by the disciplinary authority
within the laid down parameter as such the
order of dismissal, as affirmed in appeal
and revision cannot be sustained. Orders
impugned dated 1.12.2016, 21.12.2016 and
18.3.2016 accordingly are liable to be
quashed."

23. Now, I am coming to the issue
involved in the present case.

24. From the perusal of the impugned
order dated 30.08.2014, it is apparently
clear that it has been passed only on the
ground of conviction without having any
discussion or application of mind over the
conduct
of
the petitioner,
which
is
mandatory
requirement
in
light
interpretation of Article 311(2)(a) of
Constitution of India by the Apex Court as
well as by this Court. Now this issue is no
res integra. Apex Court from the judgement
of Tulsiram Patel(Supra) to many other
judgments
has
considered
this
issue
repeatedly and has held that even after
conviction of an employee, while passing
the removal or dismissal order, there must
have been consideration of conduct of the
employee and without that, any order of
dismissal is bad.

25. In the present case, there is no
consideration of the conduct of the
petitioner, therefore, impugned dismissal
order dated 30.08.2014 is bad and liable to
be set aside.

26. He has also challenged appellate
order dated 13.05.2015, by which he was
denied other post retiral benefits except
GPF. The Apex Court has taken a firm view
in the matter of State of Jharkhand(Supra)
that under Article 300(A) of Constitution of
India, pension and other post retiral
benefits are not bounty, but a property and
cannot be taken away without provision of
9 All. Vishwanath Vishwakarma Vs. State of U.P. & Ors.
375
law. Once, the first impugned order dated
30.08.2014 is not sustainable, order of
Appellate Authority dated 13.05.2015 is
also having no force in light of observation
made earlier and is liable to be set aside.

27. Learned chief standing counsel
has placed reliance upon the judgment of
the Apex Court in the matter of Life
Insurance Corporation of India(Supra). In
the said judgment, the issue was as to
whether, in case, arising out of same
accident, where an employee has been
convicted on a criminal charge and in case
of conviction, termination order may be
passed or not. It was argued by the learned
counsel for the private respondents that
such
punishment
amounts
to
double
jeopardy
and
the Apex Court
after
considering many judgments said that it
cannot be said to be double jeopardy and
under such circumstances, even after
punishment,
on
conviction
order
or
dismissal, removal may be passed passed,
therefore, this case is not relevant to decide
the present controversy.

28.

Under
such
facts
and
circumstances of the case, law laid down
by the Apex Court as well as this Court
from time to time, orders dated 30.08.2014
and 13.05.2015 are hereby set aside.

29. Now, the next issue before the
Court is about the relief which may be
granted to petitioner after quashing the
impugned orders for the payment of post
retiral dues. In usual course, it is required
to remand the matter for passing fresh
orders. So far as present case is concerned,
as on date, petitioner would be aged about
70 years in light of the fact that he was
superannuated
from
the
service
on
30.08.2014, whereas, impugned order of
dismissal has been passed on 30.08.2014
and the same was served upon him on
02.09.2014.

30. In the matter of Murari Lal
Rathore(Supra) the Court after considering
this issue has also held as under:

"19. Ordinarily, when such orders are
quashed a liberty ought to be granted to the
disciplinary authority to pass a fresh order
while considering relevant factors i.e.
conduct of the employee, gravity of charges
and the materials available against him etc.
This course, however, would not be
desirable or even permissible in the facts of
the present case since the petitioner has
attained the age of superannuation on
31.12.2018 and the contract of employment
has come to an end.

24. A conspectus of above observations
made by the Supreme Court would clearly
reveal that unless there exists an enabling
provision either in the applicable service rules
or any other provision of law it would not be
open for the disciplinary authority to pass an
order in respect of contract of service after the
employee
has
attained
the
age
of
superannuation.

25. This Court in Bhagirathi Singh Vs.
State
of
U.P.
and
others,
MANU/UP/3076/2018 : 2018 (8) ADJ 538 has
also observed as under in Para-18:-

"18. It is settled legal position that the
employer and employee relationship is
dependant only upon
the
contract of
employment. The moment, the contract comes
to end as the person is retired from service on
attaining certain age under the rules, the
relationship comes to an end. In the event of
employer of employee relationship coming to
an end, the rules have to specifically provide
for continuation of proceedings in the first
instance and that too with the sanction of
higher authorities in the second instance
376 INDIAN LAW REPORTS ALLAHABAD SERIES
because it will be seen as exceptional
circumstance where disciplinary authority
would record that for reasons genuine and
convincing the disciplinary proceedings could
not be concluded and, therefore, it is required
that the proceedings be continued even after
retirement, but there is no such provision under
the
rules
governing
the
disciplinary
proceedings. In this context, learned counsel for
the respondent could not point out any rule,
circular or executive instructions even, which
may provide for continuance of disciplinary
proceedings even after the retirement of the
petitioner or any other employee of the
corporation. Then again, the question will be
that how a punishment is to be imposed as the
punishment is awarded only against an
employee unless and until employer and
employee relationship exists, the order of
punishment upon a retired employee cannot be
imposed except otherwise provided under the
rules. Even in matters of recovery, it is not open
for the department to deduct any amount from
retiral dues in absence of any rules giving any
such authorization.

26. From the above discussions, it is
apparent that since the petitioner has attained
the age of superannuation and no provision in
law is shown which permits the disciplinary
authority to examine the conduct of an
employee, now, so as to pass an order of
punishment, there would be no purpose in
remitting back the matter to the disciplinary
authority
for
a
fresh
consideration
of
petitioner's conduct leading to his conviction.
Such a course would be legally impermissible.

27. The relief to be granted to the
petitioner in such circumstances will have to be
determined by this Court in view of what has
been observed in para-127 of the Constitution
Bench judgment in Tulsiram Patel (supra). The
Court will have the jurisdiction to pass
necessary order in respect of the penalty, which
in its opinion would be just and proper in the
circumstances of the case.

28. In the facts of the present case the
petitioner has been dismissed from service on
18.3.2016 and has attained the age of
superannuation on 31.12.2018. He has admittedly
not worked during this period. The proceedings
against the petitioner, consequent upon his
conviction in an offence under Section 307 I.P.C.
cannot be said to be without jurisdiction or
arbitrary, on facts. The order of dismissal has
been found wanting on account of nonconsideration of petitioner's conduct leading to his
conviction and has been set aside, for such
reasons. The petitioner would be entitled to all
service and retiral benefits including continuity
excluding salary between 18.3.2016 to 31.12.2018
by applying the principles of 'no work no pay'. It is
however reiterated that the period between
18.3.2016 to 31.12.2018 shall be counted for
payment of retiral benefits."

31. Therefore, in light of facts of this case
and legal proposition set by the Courts,
respondents are directed to pay the post retiral
dues to petitioner including pension and other
dues permissible under the law within three
months from the date of production of certified
copy of this order.

32. Accordingly Writ Petition is allowed.

33. No order as to costs.
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(2023) 9 ILRA 376
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.08.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-A No. 6176 of 2023

Ramesh Chandra Pal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents