3 Oct 2023 4:15 AM GMT
The Allahabad High Court has reiterated that for dismissal from service under Article 311(2)(a) of the Constitution of India, authority must look at the conduct which led to conviction on a criminal charge. Mechanical order of dismissal under Article 311(2)(a) of the Constitution of India cannot be passed based on mere conviction, it held. “Now this issue is no res integra. Apex Court from...
The Allahabad High Court has reiterated that for dismissal from service under Article 311(2)(a) of the Constitution of India, authority must look at the conduct which led to conviction on a criminal charge. Mechanical order of dismissal under Article 311(2)(a) of the Constitution of India cannot be passed based on mere conviction, it held.
“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,” held Justice Neeraj Tiwari.
Petitioner worked as Lekhpal in District-Sultanpur and was promoted in 1994 and 2000. In 1992, FIR was lodged against petitioner under Section- 148, 302, 149 and 324 IPC. In trial, petitioner was convicted for life imprisonment under Section-302 and 149 in 2009. Consequently, petitioner was taken under custody. Petitioner was released on bail by the High Court in 2017. However, he had been dismissed from service on 30.08.2014, a day before his superannuation due to his conviction.
A departmental appeal was filed by the petitioner, wherein direction was issued pay GPF only. The remaining post retiral dues would be released according to the decision of the High Court in criminal appeal.
Petitioner challenged the two orders on the ground that under Article 311(2)(a) of Constitution of India, conviction cannot be the sole ground for dismissal from service, past conduct must be factored in. It was argued that the authority had failed to apply its mind while passing the order. Petitioner relied on the decision of Supreme Court in State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr to state that pension and post retiral benefits are not bounties but a property under Article 300A of the Constitution of India which cannot be taken away without any specific provisions of law.
High Court Verdict
The primary issue before the Court was 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.
The Court observed that under for dismissal from service Article 311(2)(a) of Constitution of India, a full-fledged inquiry is not required as dismissal is on ground of conduct which led to conviction on a criminal charge.
In Union of India and another Vs. Tulsiram Patel, the Apex Court had held,
“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.”
The Court placed reliance on Udai Pratap Singh Vs. State of U.P., Rajesh Dwivedi Vs. State of U.P. and Ram Kishan Vs. State of U.P. wherein on similar facts and charges involved, the Allahabad High Court had set aside dismissal on the ground that conduct of the employee which led to the conviction was not considered before dismissing him from service.
The Court held that the authority had not applied its mind and mechanically dismissed the petitioner from service based merely based on the conviction. Accordingly, the order of dismissal and the consequential order of withholding post retiral dues were set aside.
For granting post retiral benefits to the petitioner who has superannuated, the Court placed reliance on Murari Lal Rathore Vs. State of U.P. wherein the Allahabad High Court had held that once the employee had attained the age of superannuation, there is no use of remitting the matter back to authority for fresh decision. The Court could exercise its jurisdiction to direct payment of post retiral dues and any other permissible dues.
Case Title: Vishwanath Vishwakarma v. State Of U.P. Through Prin. Secy. Deptt. Of Revenue Lko. And O [WRIT - A No. - 4422 of 2015]
Counsel for Petitioner: Arvind Kumar Vishwakarma, Ramesh Kumar Srivastava
Counsel for Respondent: Savitra Vardhan Singh
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