Allahabad High Court
Arvind Kumar vs State Of U.P. Through Secy. Gram ... on 20 September, 2023
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2023:AHC-LKO:60278
Reserved on 25.04.2023
Delivered on 20.09.2023
Case :- WRIT - A No. - 437 of 2003
Petitioner :- Arvind Kumar
Respondent :- State Of U.P. Through Prin. Secy. Gram Vikas Civil Sectt.
Counsel for Petitioner :- S.P. Dubey, Ashok Singh, Vikas Chauhan
Counsel for Respondent :- C.S.C.
Hon'ble Neeraj Tiwari,J.
1. Heard learned counsel for the petitioner and Sri Pratyush Tripathi, learned Standing Counsel for the State-respondents.
2. Present petition has been filed seeking the following relief:
I. Issue a writ order or direction in the nature of certiorari quashing the impugned termination order.
II. Issue a writ order or direction in the nature of mandamus thereby directing the opposite parties to allow the petitioner to continue on his post of Patravahak and pay him salary in each and every month during the pendency of the writ petition.
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 working on the post of Patravahak/Chaukidar in the office of respondent no. 4- Chief Development Officer, Azamgarh since 01.08.1988. During the course of service, FIR was lodged by Pradhan, namely, Gursaran against the petitioner. He next submitted that after trial, petitioner was found guilty under Sections 419, 420 I.P.C. and was convicted for 2 years rigorous imprisonment vide order dated 10.09.1996 passed by A.C.J.M.-III, Azamgarh. Thereafter, petitioner has filed Criminal Appeal No. 65 of 1996, which was also rejected by Additional Sessions Judge, Court No. 1, Azamgarh vide order dated 7.9.2000. Against that, petitioner has preferred Criminal Revision No. 2108 of 2000 in which conviction was upheld but sentence was reduced to six months vide order dated 19.10.2000. Against that, no SLP has been preferred before the Apex Court. He next submitted that on the basis of conviction, straightway exercising the power under Article 3(1)(2) of Constitution of Indian, his service was terminated vide impugned order dated 23.09.2000.
5. Petitioner has challenged order dated 23.09.2000 on the ground that in light of Article 311(2) of Constitution of India, mere conviction cannot be a ground for removal of an employee from service, but his conduct has also to be seen while passing the order of termination.
6. Learned counsel for the petitioner submitted that so far as impugned order 23.09.2000 is concerned, it is having no consideration of conduct of the petitioner, but after recording so many facts, he has been terminated from the service only on the ground of conviction. He firmly submitted that even in case of conviction, disciplinary authority is required to consider the conduct of the petitioner, but in the present case, there is nothing like this and impugned order is only based upon conviction, therefore, the same is liable to be set aside.
7. Learned counsel for the petitioner also submitted that while passing the impugned order, it is required to see the gravity of the offence and nature of the case. In the present case, it was petty offence, therefore, penalty of termination from service is not warranted under Article 311(2) of Constitution of India.
8. 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.
9. Learned 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 terminate the petitioner from service in light of Article 311(2) 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) of Constitution of India as well as judgments relied upon.
11. The very same issue was before this Court in Writ A No. 4422 of 2015 Vishwanath Vishwakarma Vs. State Of U.P. Through Prin. Secy. Deptt. Of Revenue Lko. And O, decided on 18.09.2023 and all the judgments relied upon by the the learned counsel for the parties in the present case have also been considered in the said judgment. This Court after considering the issue in detail, has allowed the petition by quashing the order of dismissal.
12. Relevant paragraphs of the said judgment are being quoted hereinbelow:
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 ?
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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.
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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.
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13. Now I am coming to the present case. Facts of the present case are not only similar, rather better than the case of Vishwanath Vishwakarma(Supra) as in that case, petitioner was convicted with life imprisonment, whereas, in the present case, conviction is only for six months, which is disproportionate. In fact, punishment of termination is disproportionate.
14. Therefore, in light of reasoning given in the judgment and order dated 18.09.2023 passed in Vishwanath Vishwakarma(Supra), present petition is allowed.
15. Order dated 23.09.2000 is hereby quashed.
16. Respondents are directed to permit the petitioner to join his service forthwith from the date of production of certified copy of this order. However, liberty is given to respondents to pass fresh order strictly in accordance with law.
17. No order as to costs.
Order Date :- 20.09.2023
ADY
