# Vishwas Pandey v. State of U.P

- **Citation:** (2020) 1 ILRA 1360
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-14
- **Case number:** Criminal Appeal No. 126 of 2018
- **Bench:** Devendra Kumar Upadhyaya, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishwas-pandey-v-state-of-u-p-45664
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code -
Sections 147, 304/149, 504 & 506 -
Appeal against conviction.

Unequivocally provide that no teacher can be
dismissed or removed, neither his services can
be terminated without conducting full-fledged
disciplinary proceedings against him for any
lapse or misconduct, though requirement of
conducting
full-fledged
disciplinary
inquiry
proceeding has an exception as provided in
Statue of the First Statues and under this
exception
requirement
of
conducting
disciplinary proceedings can be dispensed with
in case services of teacher are to be terminated
in case of conviction of a teacher for offence
involving moral turpitude. (para 28)

For terminating the service of teacher on the
ground of his conviction for any offence
involving moral turpitude, the employer needs
to determine that the teacher concerned has
been convicted for offence involving moral
turpitude. (para 37)

We do not find any substance in the prayer
made in the application seeking suspension of
order of conviction. (para 39)

The application is, thus, rejected. (E-2)

List of cases cited: -

## Text

1 All. Niyamullah & Ors. Vs. State of U.P.
1361
extend to ten years, and shall also be liable
to fine, if the act by which the death is
caused is done with the intention of
causing death, or of causing such bodily
injury as is likely to cause death. In
present case the injury on the person of
deceased were not on vital part. Rather
over upper and lower limbs with back and
trial has concluded that it was not with
intention to cause death or to cause such
bodily injury as is likely to cause death.
Though, those injuries were grievous,
resulting fracture as well as death of
injured on the same day of occurrence.
Hence, conviction under Section 304 Part1 was justified, but regarding sentence it
was apparently of ten years rigorous
imprisonment with fine, which seems to be
not in proportion to degree of offence,
because each of the convicts-appellants are
of no criminal antecedent. They remained
in prison since last more than six years in
this case crime number. On the facts and
circumstances and balancing the societal
need of punishment with their chance of
reformation for bringing them in main
stream of society, sentence of eight years
rigorous imprisonment with fine, as above,
seems to suffice the cause of justice.

11.

Accordingly,
this
appeal
succeeds and is allowed for convictsappellants Naushad and Enmul Huda @
Dugru. The impugned judgment and order
of conviction dated 20.12.2013, passed by
the Trial Court, is hereby set aside and the
appellants Naushad and Enmul Huda @
Dugru are acquitted of all the charges.
They are on bail. They need not to
surrender. Their sureties are discharged.

12. Keeping in view the provisions
of section 437-A Cr.P.C. appellants
Naushad and Enmul Huda @ Dugru are
directed to forthwith furnish a personal
bond and two reliable sureties each in the
like amount to the satisfaction of trial
Court before it, which shall be effective
for a period of six months, along with an
undertaking that in the event of filing of
Special Leave Petition against the instant
judgment or for grant of leave, the
appellant on receipt of notice thereof shall
appear before the Hon'ble Supreme Court.

13. The conviction of convictsappellants Niyamullah, Sahendar, Wakeel,
Kalimullah and Anaruddin are confirmed.
Their appeal is being partly allowed on the
point of quantum and their imprisonment
of ten years and fine under Section 304
Part-I/149 I.P.C. is being substituted by
eight years rigorous imprisonment with
fine of Rs.10,000/-. For rest of sentences,
they shall remain, as such, and intact.

14. Let a copy of this judgment along
with lower court's record be sent back to the
court concerned for immediate change of
warrant of sentence, as above, and follow up.
----------
(2020)1ILR 1360

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.01.2020

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 126 of 2018

Vishwas Pandey ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Vaibhav Kalia, A.P. Mishra, Amol Kumar,
Bal Keshwar Srivastava, Laltaprasad Misra,
Vaibhav
Kalia
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code -
Sections 147, 304/149, 504 & 506 -
Appeal against conviction.

Unequivocally provide that no teacher can be
dismissed or removed, neither his services can
be terminated without conducting full-fledged
disciplinary proceedings against him for any
lapse or misconduct, though requirement of
conducting
full-fledged
disciplinary
inquiry
proceeding has an exception as provided in
Statue of the First Statues and under this
exception
requirement
of
conducting
disciplinary proceedings can be dispensed with
in case services of teacher are to be terminated
in case of conviction of a teacher for offence
involving moral turpitude. (para 28)

For terminating the service of teacher on the
ground of his conviction for any offence
involving moral turpitude, the employer needs
to determine that the teacher concerned has
been convicted for offence involving moral
turpitude. (para 37)

We do not find any substance in the prayer
made in the application seeking suspension of
order of conviction. (para 39)

The application is, thus, rejected. (E-2)

List of cases cited: -

1. Rama Narang Vs. Ramesh Narang & ors.,
(1995) 2 SCC 513

2. Ravikant S. Patil Vs. Sarvabhouma S. Bagali,
(2007) 1 SCC 673

3. Navjot Singh Sidhu Vs. St. of Punj. & anr.,
(2007) 2 SCC 574

4. K.C.Sareen Vs. CBI, Chandigarh (2001) 6
SCC 584

5. Irfan & ors. Vs. St. of U.P. 2009 (66) ACC 413

6. St. of Raj. Vs. Salman Salim Khan, (2015) 15
SCC 666
7. Shyam Narain Pandey Vs. St. of U.P, (2014)
8 SCC 909

8. St. of Mah. through C.B.I. Vs. Bala Krishna
Dattatrya Kumbhar (2012) 12 SCC 384

9. Sanjay Dutt Vs. St. of Mah. (2009) 5 SCC
787

10. St. of Mah. Vs. Gajanan & anr. (2003) 12
SCC 432

11. U.O.I. Vs. Attar Singh & anr. (2003) 12 SCC
424

12. Deputy Director of Collegiate Education Vs.
S. Nagoor Meera (1995) 3 SCC 377

13. Dattukulangara Madhavan Vs. Majeed &
ors., (2017) 2 JIC 380 (SC)

14. Masalti Vs. St. of U.P., AIR 1965 SC 202.

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. This application by the applicantappellant-Vishwas
Pandey
has
been
moved with the prayer to suspend the
operation of the order appealed against i.e.
the judgment and order of conviction dated
18.01.2018 passed by the Additional
Sessions Judge/Special Judge (E.C.Act),
Gonda in Sessions Trial No.264 of 2012
which had emanated from Case Crime
No.559 of 2012, under Sections 147, 148,
149, 323, 504, 506, 307, 302 IPC and
Section 27/30 Arms Act, Police Station
Kotwali Nagar, District Gonda whereby he
has been convicted of the offences under
Sections 147, 304/149, 504 and 506, IPC
and has accordingly been sentenced.

2. The applicant-appellant at present
is enlarged on bail pursuant to the order
dated 17.05.2018 as corrected vide order
dated 21.05.2018 passed by this Court in
Criminal Appeal No.126 of 2018.
1 All. Vishwas Pandey Vs. State of U.P.
1363

3. The appellant is an Assistant
Professor in Shia P.G. College, Lucknow
having been appointed in the said capacity
in the year 2017. Shia P.G. College is
affiliated to Lucknow University and
accordingly conditions of service of the
applicant-appellant are governed by the
provisions of U.P. State Universities Act
and the First Statutes of Lucknow
University.

4. It has been submitted on behalf of
the applicant-appellant that pursuant to the
order passed by this Court enlarging him
on bail, he was released from jail on
26.05.2018 and soon thereafter he received
a show cause notice dated 12.05.2018
issued to him by the Hony Joint
Secretary/Manager of the College whereby
he has been informed that Managing
Committee of the College in its meeting
held on 11.05.2018 passed a resolution to
issue notice to the applicant-appellant
seeking his clarification and explanation as
to why has he been absent from the college
without any information since 15.02.2018.

5. It has been averred in the instant
application that reply to this notice was
submitted by the applicant-appellant on
28.05.2018 to the Manager of the College
whereby he requested permission of the
college authorities to allow him to join his
duties and further that his absence from
duty with effect from 16.01.2018 may be
condoned.

6. The show cause notice dated
12.05.2018 and reply submitted by the
applicant-appellant to the said notice are
available on record as annexure nos. 2 and
3 respectively with the application. In his
reply submitted on 28.05.2018, it has been
stated by the applicant-appellant that he
had applied for one month's leave without
pay from 16.01.2018, however, in the
meantime the applicant-appellant was
convicted vide judgment and order of the
trial court dated 18.01.2018 for the
offences under Sections 147, 304/149, 504
and 506, IPC. It has further been averred
in the said reply that the applicantappellant
has
preferred
an
appeal
challenging the judgment and order of
conviction which has been admitted by
this Court and vide order dated 17.05.2018
he has been enlarged on bail and that after
being released on bail, the applicantappellant has been contacting the college
authorities, however, he has not been
allowed to join his duties in view of the
show cause notice dated 12.05.2018.
Narrating
these
facts
the
applicantappellant vide his reply dated 28.05.2018
has prayed that he may be permitted to
join his duties.

7. It has further been averred in the
instant application that another show cause
notice dated 13.08.2018 has again been
issued by the Hony Joint Secretary of the
College
Management
informing
the
applicant-appellant that in the meeting of
Managing Committee of the College held
on 18.07.2018, it was resolved to give the
applicant-appellant last chance to clarify
as to why and on what grounds his
services may not be terminated.

8. In the background of aforesaid two
notices issued by the College, the one
dated 12.05.2018 and the other dated
13.08.2018, this application has been
moved by the applicant-appellant with the
prayer to suspend the operation of the
judgment and order of conviction so that
he can submit his joining and he may give
adequate reply to the show cause notice so
that the applicant-appellant is not faced
with a situation where his services from
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
employment of the College shall get
terminated.

9. Lengthy arguments have been
raised by Dr. L.P.Misra and the Sri
Vaibhav
Kalia,
learned
counsel
for
applicant-appellant, Sri H.G.S. Parihar,
learned Senior Advocate assisted by Sri
A.P.
Misra,
learned
counsel
for
complainant and Sri Madan Mohan
Pandey, learned Additional Advocate
General for the State.

10. We have given our anxious
consideration to rival submissions made
by learned counsel representing the
respective parties and have also perused
the material available on record.

11. It has been submitted by Dr. L.P.
Misra, learned counsel for the applicantappellant, that under Section 389 of Code
of Criminal Procedure this Court is well
within its jurisdiction to pass an order
suspending not only execution of sentence
but the judgment and order of conviction
as well during pendency of this appeal. He
has further submitted that the incident on
the basis of which the trial against the
applicant-appellant was held wherein he
has been convicted, started on a sudden
quarrel and since there was a fight
between two groups of persons, it is
significant to determine as to who was the
aggressor and further that merely on the
basis of presence of applicant-appellant at
the time and place of occurrence, he could
not have been convicted. It has further
been argued on behalf of the applicantappellant that mere presence on the place
of occurrence without any motive or mens
rea on his part would not have resulted in
his conviction. He has drawn attention of
the Court to certain paragraphs of the
judgment and order of conviction passed
by the trial court and has submitted that it
is proved from the evidence available on
record that it was the complainant and not
the accused persons who were aggressors.

12. Dr. L.P Misra, learned counsel
for applicant-appellant has further taken us
to that portion of the judgment and order
of conviction where trial court has opined
that incident had happened unfortunately.
It has thus been argued by learned counsel
for applicant-appellant that appeal is likely
to be allowed ultimately and that such
possibility is a relevant factor which may
be taken into account while considering
any prayer for suspending the order of
conviction.

13. On behalf of the applicantappellant, judgment of Hon'ble Supreme
Court in the case of Rama Narang vs.
Ramesh Narang and others, reported in
(1995) 2 SCC 513 has been relied upon
where Hon'ble Apex Court has held that
scope of Section 389 Cr.P.C. extends to
conferring power on the appellate court to
stay the operation of the order of
conviction as well in case the order of
conviction
is
to
result
in
some
disqualification. The judgment in the case
of Ravikant S. Patil vs. Sarvabhouma S.
Bagali, reported in (2007) 1 SCC 673, has
also been relied upon by the applicantappellant to buttress the submission that in
certain situations the order of conviction
may become executable inasmuch as it
may
result
in
incurring
of
some
disqualification under other enactments
and that in such cases it is permissible to
invoke the power under Section 389 (1) of
the Code for staying the conviction as
well. Reliance has also been placed by
learned counsel for applicant-appellant on
the case of Navjot Singh Sidhu vs. State
of Punjab and another, reported in
1 All. Vishwas Pandey Vs. State of U.P.
1365
(2007) 2 SCC 574 where legal position in
respect of power of appellate court to
suspend an order of conviction under
Section
389
of
Code
of
Criminal
Procedure has been summarized and
reiterated, according to which the appellate
court can suspend or grant stay of order of
conviction, however, the person seeking
suspension of conviction is to draw
attention of the appellate court to the
consequences that may arise if the
conviction is not stayed.

14. We may hasten to note that
Rama Narang (supra) was a case relating
to disqualification under Section 267 of
the Companies Act, 1956 which provided
that Managing Director of a Company
shall incur disqualification if he is found to
have committed an offence involving
moral turpitude. Similarly, Ravikant S.
Patil (supra) and Navjot Singh Sidhu
(supra) relate to disqualification under
Representation of the People Act, 1951.

15. Referring to judgment in the case
of K.C.Sareen vs. CBI, Chandigarh
reported in (2001) 6 SCC 584, submission
has been made by learned counsel
representing the applicant-appellant that
the law laid down by Hon'ble Supreme
Court in the said case does not have any
application in this case for the reason that
in K.C.Sareen (supra) suspension of
conviction was sought by a Bank Officer
who was convicted under Section 13 (2) of
Prevention of Corruption Act and it is in
this background that Hon'ble Supreme
Court upheld the order of High Court
wherein the High Court had refused to
suspend
the
conviction
under
the
Prevention of Corruption Act.

16. Taking the Court to various
paragraphs of this judgment, it has been
stated by learned counsel for applicantappellant that it may not be appropriate to
pass an order by the appellate court
suspending the conviction in a situation
where conviction is under Prevention of
Corruption Act for the reason that when
public servant convicted of corruption is
allowed to continue to hold public office,
it may have demoralizing effect on other
employees and consequently the same may
result in erosion of the confidence of the
people in public institutions. However, in
the same breathe, it has been submitted on
behalf of the applicant-appellant that the
present case does not involve conviction of
the
applicant-appellant
for
either
corruption or for any offence involving
moral turpitude and accordingly since the
applicant-appellant
is
faced
with
a
situation where his services as Assistant
Professor
in
the
college
may
get
terminated, it will be appropriate and is
warranted in the facts of the case that the
judgment and order of conviction may be
suspended/stayed.

17. Per contra, relying upon a
judgment of a Division Bench of this
Court in the case of Irfan and others vs.
State of U.P. reported in 2009 (66) ACC
413,
it
has
been
argued
by
Sri
H.G.S.Parihar, Senior Advocate assisted
by
Sri
A.P.Misra,
learned
counsel
representing
the
complainant
that
considering the facts and circumstances of
the case it would be highly improper to
suspend the order of conviction.

18. Sri Madan Mohan Pandey,
learned Additional Advocate General
appearing for the State has vehemently
opposed the prayer for suspension of
conviction though he does not dispute the
jurisdiction of this Court to pass an order
suspending the conviction as well, in an
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
appropriate case under Section 389 of the
Code of Criminal Procedure. He has
further stated that the power of suspension
of conviction should be exercised only in
exceptional circumstances only where
failure to stay conviction may lead to
irreversible consequences and not in any
other case. In support of his submission Sri
Pandey has made reference to the
judgments of Hon'ble Supreme Court in
the cases of State of Rajasthan vs.
Salman Salim Khan, (2015) 15 SCC 666,
Shyam Narain Pandey vs. State of U.P,
(2014) 8 SCC 909, State of Maharashtra
through
C.B.I.
vs.
Bala
Krishna
Dattatrya Kumbhar (2012) 12 SCC 384,
Sanjay Dutt vs. State of Maharashtra
(2009) 5 SCC 787, State of Maharashatra
vs. Gajanan and another (2003) 12 SCC
432, Union of India vs. Attar Singh and
another (2003) 12 SCC 424, Deputy
Director of Collegiate Education vs. S.
Nagoor Meera (1995) 3 SCC 377,
Dattukulangara Madhavan vs. Majeed
and others, (2017) 2 JIC 380 (SC) and
Masalti vs. State of U.P., AIR 1965 SC
202. He has further argued that the Court
while
considering
the
prayer
for
suspension of conviction is required to
take into consideration seriousness of
offence for which the applicant-appellant
has been punished and if it is found that
convict is involved in crime which is
outrageous and if conviction is stayed, it
would have serious impact on the public
perception then in such circumstances stay
of conviction would be impermissible.
Drawing attention of the Court to
paragraph 15 of the judgment of the apex
Court in the case of State of Maharastra
vs. Bala Krishna Dattatrya Kumbhar
(supra) he has argued that relief of staying
the operation of conviction cannot be
granted only on the ground that an
employee may lose his job if conviction is
not suspended. Paragraph 15 in the case of
State of Maharastra vs. Bala Krishna
Dattatrya Kumbhar (supra) is as follows:

"15. Thus, in view of the aforesaid
discussion, a clear picture emerges to the
effect that the appellate court in an
exceptional case, may put the conviction in
abeyance along with the sentence, but such
power must be exercised with great
circumspection and caution, for the purpose
of which, the applicant must satisfy the Court
as regards the evil that is likely to befall him,
if the said conviction is not suspended. The
Court has to consider all the facts as are
pleaded by the applicant, in a judicious
manner and examined whether the facts and
circumstances involved in the case are such,
that they warrant such a course of action by
it. The court additionally, must record in
writing, its reasons for granting such relief.
Relief of staying the order of conviction
cannot be granted only on the ground that an
employee may lose his job, if the same is not
done."

19. In his submission, Sri Pandey has
thus stated that merely because applicantappellant is faced with some action against
him at the hand of the management of the
College, the prayer for suspension of
conviction may not be granted.

20. Having heard learned counsel for
the parties and perused the record
available before us, what we find is that it
is the two notices dated 12.05.2018 and
13.08.2018 issued by the Manager of the
College to the applicant-appellant which
has prompted him to file the instant
application.

21. There is no quarrel on the legal
principle that in appropriate case this
Court has been vested with the jurisdiction
1 All. Vishwas Pandey Vs. State of U.P.
1367
and authority under Section 389 of Code of
Criminal Procedure to suspend the order
appealed against that is to say to suspend the
conviction as well along with the sentence.
The question, however, which falls for our
consideration is as to whether two notices
dated 12.05.2018 and 13.08.2018 issued by the
Management of the College to the applicantappellant can be construed to form any cause
of action to the applicant-appellant to seek the
prayer made in this application for suspension
of conviction. Though it has been contended
on behalf of the applicant-appellant that by
issuing aforesaid two notices, specially the
subsequent notice dated 13.08.2018, the
Management of the College, where applicantappellant is presently employed as Assistant
Professor, intends to terminate his services on
the ground of his conviction by the judgment
and order which is under appeal herein,
however, a careful reading of the aforesaid two
show cause notice and the relevant provisions
contained in the First Statues of Lucknow
University governing Conditions of Services
of Teachers of Associated Colleges lead us to
conclude that the present application is
misconceived.

22. Conditions of Service of
Teachers
of
Associated
College
of
Lucknow University are governed by the
provisions contained in Part-I of Chapter
XVII of the First Statues of Lucknow
University which have been framed under
U.P. State University Act and as such the
same have statutory force.

23. Statue 17.04 is relevant for the
purpose of appropriately appreciating the
issue involved herein which is quoted
herein below:-

"17.04. (1) A teacher of an
associated college (other than a Principal)
may be dismissed or removed or his
services terminated on one or more of the
following grounds:

(a) willful neglect of duty;

(b)
misconduct,
including
disobedience
to
the
orders
of
the
Principal;

(c) breach of any of the terms of
contract of service;

(d) dishonesty connected with
the University or College examination;

(e)
scandalous
conduct
or
conviction for an offence involving moral
turpitude;

(f) physical or mental unfitness;

(g) incompetence;

(h) abolition of the post with the
prior approval of the Vice-Chancellor.

(2) A Principal of an associated
college may be dismissed or removed, or
his
services
terminated
on
grounds
mentioned in clause (1) or on the ground
of continued mismanagement of the
college.

(3) Except as provided by clause
(4), not less than three months' notice (or
whose notice is given after the month of
October, then three months' notice or
notice ending with the close of the session
whichever if longer) shall be given on
either side for terminating the contract, or
in lieu of such notice, salary for three
months (or longer period as aforesaid)
shall be paid:

Provided
that
where
the
Management dismisses or removes or
terminates the services of a teacher, under
clause (1) or clause (2) or when the
teacher terminates the contract for breach
of any of its terms by the Management, no
such notice shall be necessary;

Provided further that parties will
be free to waive the condition of notice, in
whole or in part by mutual agreement.

(4) In the case of any other
teacher appointed in a temporary or
1368 INDIAN LAW REPORTS ALLAHABAD SERIES
officiating capacity his services shall be
terminable, by one months' notice or on
payment of salary in lieu thereof on either
side".

25. According to the aforequoted
Statue 17.04 of the First Statutes a teacher
of an associated college may be dismissed
or removed or his services can be
terminated on one or more grounds given
in sub-clause (1) of Statue 17.04.

26. Statue 17.06 is also relevant
which reads as under:-

"17.06. (1) No order dismissing
removing or terminating the services of a
teacher on any ground mentioned in
clause (1) or clause (2) of Statue 17.04
(except in the case of a conviction for an
offence involving moral turpitude or of
abolition of post) shall be passed unless a
charge has been framed against the
teacher and communicated to him with a
statement of the grounds on which it is
proposed to take action and he has been
given adequate opportunity.

(i) of submitting a written
statement of his defense;

(ii) of being heard in person, if
he so chooses; and

(iii) of calling and examining
such witness in his defense as he may
wish;

Provided that the Management
or the officer authorized by it to conduct to
inquiry may for sufficient reasons to be
recorded in writing, refuse to call any
witness.

(2) The Management may, at any
time ordinarily within two months' from
the date of the Inquiry Officer's report
pass a resolution dismissing or removing
the teacher concerned from service, or
terminating his services mentioning the
grounds of such dismissal, removal or
termination.

(3) The resolution shall forthwith
be communicated to the teacher concerned
and also be reported to the Vice -
Chancellor for approval and shall not be
operative unless to approved by the ViceChancellor.

(4)
The
Management
may,
instead
of
dismissing
removing
or
terminating the services of the teacher,
pass a resolution inflicting a lesser
punishment by reducing the pay of the
teacher for a specified period or by
stopping increments of his salary for a
specified period not exceeding three years
and or may deprive the teacher of his pay
during
the period,
if
any,
of
his
suspension.
The
resolution
by
the
Management inflicting such punishment
shall be reported to the Vice-Chancellor
and shall be operative only when and to
the
extent
approved
by
the
ViceChancellor."

27. According to Statue 17.06, an
order of dismissal or removal of a teacher
cannot be passed on any ground mentioned
in clause (1) of Statue 17.04 unless a
charge has been framed against the teacher
and communicated to him and appropriate
disciplinary proceedings are drawn and
conducted
by
providing
adequate
opportunity to the teacher, of contesting
the charges except in case of conviction
for offence involving moral turpitude or in
case of abolition of post.

28. The provisions contained in
Statue 17.04 read with Statue 17.06, thus,
unequivocally provide that no teacher can
be dismissed or removed, neither his
services
can
be
terminated
without
conducting
full-fledged
disciplinary
proceedings against him for any lapse or
1 All. Vishwas Pandey Vs. State of U.P.
1369
misconduct,
though
requirement
of
conducting
full-fledged
disciplinary
inquiry proceeding has an exception as
provided in Statue 17.06 (1) of the First
Statues
and
under
this
exception
requirement of conducting disciplinary
proceedings can be dispensed with in case
services of teacher are to be terminated in
case of conviction of a teacher for offence
involving moral turpitude.

29. In the light of the aforequoted
Statues 17.04 and 17.06, we will now
examine the nature of show cause notices
issued by the Management of the College
to the applicant-appellant.

30. The first show cause notice
issued on 12.05.2018 only states that the
Managing Committee of the College has
passed resolution on 11.05.2018 observing
therein that the applicant-appellant has
been absent from the College without
information
since
15.02.2018
and
therefore the Committee has decided to
issue notice seeking his clarification and
explanation. This show cause notice makes
a mention of unauthorized absence from
duty which may or may not be a
misconduct or lapse on the part of the
applicant-appellant leading to either his
dismissal or removal from service. It
certainly
is
not
a
notice
requiring
explanation from him as to why his
services may not be terminated for his
conviction for an offence involving moral
turpitude as has been mentioned in Statue
17.04 (1) (e) of the First Statues.

31. We further observe that notice
dated 12.05.2018 cannot be said to be
charge sheet for alleged misconduct or
lapse on the part of the applicant-appellant
for his unauthorized absence from duty.
Thus, by issuing the said notice dated
12.05.2018, it cannot be inferred that any
disciplinary proceeding in respect of
charge or lapse relating to unauthorized
absence from duty against the applicantappellant is pending which may create an
impression in his mind that he may be
faced with a situation where he may be
dismissed or removed from service.

32. So far as the second show cause
notice dated 13.08.2018 is concerned, this
again makes a mention of the decision
taken by the Management of the College
on 18.07.2018 and informs the applicantappellant
that
the
Committee
of
Management has decided to give him last
chance to clarify as to why his services
may not be terminated. This notice cannot
be construed to be a notice for termination
of service of the applicant-appellant on the
ground of his conviction for an offence
involving moral turpitude for the reason
that it does not indicate the resolve or
decision of the Managing Committee of
the college to terminate services of the
applicant-appellant on the said ground. It
is further observed that before issuing any
show cause notice seeking termination of
service of a teacher under Statue 17.04 (1)
(e) of the First Statues, it is imperative for
the Committee of the Management of the
College
to
determine
that
teacher
concerned has been convicted for offence
involving moral
turpitude. No
such
determination from the show cause notice
dated 13.08.2018 is reflected.

33. To the contrary, if the show
cause notice dated 13.08.2018 is read in
juxtaposition with the show cause notice
dated 12.05.2018, what transpires is that
the college authorities intend to take some
action
for
the
alleged
unauthorized
absence from the duty. The show cause
notice dated 13.08.2018 is accompanied
1370 INDIAN LAW REPORTS ALLAHABAD SERIES
by
the
decision
of
the
Managing
Committee taken in its meeting held on
18.07.2018 which mentions about the
application submitted by the applicantappellant seeking leave without pay and
also reply dated 28.05.2018 furnished by
him to the show cause notice dated
12.05.2018.

34. Resolution dated 18.07.2018
further
states
that
the
Managing
Committee cannot allow the applicantappellant to join his duties till he gets the
order of conviction quashed by the High
Court. Mentioning these background facts,
the resolution further states that one more
show cause notice be given to the
applicant-appellant to clarify the current
position and further that if no change is
reported
then
his
services
will
be
terminated. This resolution however does
not make a mention of conviction of the
applicant-appellant
for
an
offence
involving moral turpitude.

35. As to whether the Committee of
Management has denied the applicantappellant joining his duties in the College
is not the subject matter of this case, hence
we refrain ourselves from giving any
finding on this issue.

36. As observed above, for taking
action leading to termination of services of
a teacher of an associated college under
Statue 17.04 (1) (e) of the First Statues,
determination that teacher concerned is
convicted for offence involving moral
turpitude appears to be sine qua non.
Neither the notices dated 12.05.2018 and
13.08.2018 nor the resolution of the
Managing Committee of the College,
dated
18.07.2018
reflect
any
such
determination. We have no reason to
believe that the Managing Committee of
the College will not act in accordance with
the requirement of law as per Statues
17.04 and 17.06 of the First Statues which
inter alia provide that in case of
misconduct or lapse a teacher can be
dismissed or removed or his services can
be terminated only after conducting
disciplinary proceedings except in case of
conviction for an offence involving moral
turpitude. For terminating the service of
teacher on the ground of his conviction for
any offence involving moral turpitude, the
employer (in this case, Management of the
College) needs to determine that the
teacher concerned has been convicted for
offence involving moral turpitude.

38. In absence of any such
determination in the show cause notices
dated 12.05.2018 and 13.08.2018 and also
in the resolution of the Managing
Committee, dated 18.07.2018, we are not
persuaded to infer that applicant-appellant
is
faced
with
any
irreversible
consequences because of non suspension
of judgment and order of conviction which
is under challenge in appeal.

39. For the discussion made and reasons
given above, we do not find any substance in
the prayer made in the application seeking
suspension of order of conviction. The
application is, thus, rejected.
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(2020)1ILR 1369

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.01.2020

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 1517 of 2007