Allahabad High Court
Shiv Kumar Singh vs State Of U.P. Thru. Its Secy. Deptt. Of ... on 24 February, 2025
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:11625
Court No. - 5
Case :- WRIT - A No. - 432 of 2024
Petitioner :- Shiv Kumar Singh
Respondent :- State Of U.P. Thru. Its Secy. Deptt. Of Basic Education, Lucknow, U.P. And 3 Others
Counsel for Petitioner :- Nitin Kumar Mishra,Vijay Kumar Dwivedi
Counsel for Respondent :- C.S.C.,Uday Veer Singh
Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondents no. 1 & 2 and Dr Uday Veer Singh, learned counsel for the respondent no.3.
2. The petitioner, a Headmaster, has been dismissed from service vide order dated 02.01.2024, a copy of which is annexure 1 to the writ petition. The perusal of the dismissal order would indicate the conduct which has led to conviction of the petitioner i.e. the conviction of the petitioner for an offence under Section 302 IPC has been seen.
3. Bereft of unnecessary details admittedly the petitioner has been convicted of crime under Section 302 IPC vide order dated 08.12.2010 passed by learned trial court in Sessions Trial No. 44 of 1998. In Criminal Appeal No. 3144 of 2010 which has been filed by the petitioner, he has been granted bail by this Court vide order dated 02.09.2011. Copy of the order dated 02.09.2011 is annexure 2 to the writ petition.
4. The contention of learned counsel for the petitioner is that without holding any inquiry, the petitioner has been dismissed from service vide order impugned and once the petitioner had been granted bail consequently it would be deemed that the conviction of the petitioner has been stayed by this Court and as such the respondents have erred in passing the dismissal order solely on the basis of conviction of the petitioner.
5. In this regard reliance has been placed on judgement and order of this Court dated 18.09.2023 passed in Writ A NO. 4422 of 2015 in re: Vishwanath Vishwakarma vs State of U.P. and others.
6. The aforesaid argument of learned counsel for thepetitioner is found patently fallacious considering that admittedly thepetitioner has been convicted for an offence under Section 302 IPC by the learned trial court with a sentence of life imprisonment. Upon an appeal being filed this Court vide order dated 02.09.2011, a copy of which is annexure 2 to the writ petition, granted bail. Nowhere the order indicates that the conviction of the petitioner has been stayed.
7. Section 389 Cr.P.C. indicates that pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended.
8. A perusal of the order dated 02.09.2011 passed by this Court would indicate that this Court has not given any reasons for staying the execution of the sentence or the order appealed against and it is only the bail which has been granted to thepetitioner for reasons as contained in the said order. Thus once the order of this Court dated 02.09.2011 does not stay the conviction of thepetitioner or for that matter the judgement passed by learned trial court dated 08.12.2010 consequently it cannot be said that there is any stay on the conviction of thepetitioner.
9. A division bench of this Court in the case of State of U.P. and others vs Prem Milan Tiwari, 2015 (3) ADJ 407 has examined as to what is to be seen with respect to a convicted person who has been convicted under Section 302 IPC. The Court has held as under:
"Clause (2) of Article 311 of the Constitution provides inter alia that no person who is a member of a civil service of the Union or of a State shall be dismissed, removed or reduced in rank except after an inquiry in which he had been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges. However, clause (a) of the second proviso provides that clause (2) shall not apply 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.
The expression "on the ground of conduct which has led to his conviction on a criminal charge" was interpreted in the judgment of the Supreme Court in Tulsiram Patel (supra) where it was held as follows:
"...The paramount thing, however, to bear in mind is that 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 enquiry?"
In Shankar Dass vs. Union of India (supra), the appellant had been convicted by the Magistrate of an offence under Section 409 of the Penal Code but having regard to the peculiar circumstance relating to the crime and the criminal, he was released under Section 4 of the Probation of Offenders Act 1958. Based on the conviction, the appellant was summarily dismissed from service. The Magistrate in the course of his decision noted as follows:
"Misfortune dogged the accused for about a year . . . and it seems that it was under the force of adverse circumstances that he held back the money in question. Shankar Dass is a middle-aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time. He is not a previous convict. Having regard to the circumstances of the case, I am of the opinion that he should be dealt with under the Probation of Offenders Act, 1958."
The Supreme Court held that the Government had chosen to dismiss the appellant despite these observations of the Magistrate. Considering the provisions of clause (a) of the second proviso to Article 311 (2), the Supreme Court held as follows:
"...Clause (a) of the second proviso to Article 311 (2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". But, that power, like every other power, has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical."
The decision in Shankar Dass (supra) was considered in a subsequent judgment of the Supreme Court in Deputy Director of Collegiate Education (Administration), Madras vs. S. Nagoor Meera4. That was a case involving a conviction under Section 420 of the Penal Code and Section 5 of the Prevention of Corruption Act 1947. The respondent, following the order of conviction was served with a show cause notice for termination which was quashed by the Tribunal. The Tribunal had held that until an appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311 (2) was not permissible. This was held to be not reflective of the correct position in law. Following the decision in Shankar Dass, the Supreme Court held as follows:
"What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice."
In a more recent judgment of the Supreme Court in Government of A.P. and anr. vs. B. Jagjeevan Rao5, the respondent had been charge-sheeted and convicted after trial of an offence under Section 7 and Section 13(1)(d) of the Prevention of Corruption Act 1988. Following the conviction, the respondent was dismissed from service. The High Court had set aside the action and reversed the order of the Tribunal after noticing both the decisions in Tulsiram Patel and S. Nagoor Meera (supra). The Supreme Court observed as follows:
"Regard being had to the aforesaid enunciation of law and keeping in view the expected standard of administration, conviction on the charge of corruption has to be viewed seriously and unless the conviction is annulled, an employer cannot be compelled to take an employee back in service?"
We are of the view that the principle of law which has been laid down by the Supreme Court in the decision in S. Nagoor Meera and recently in B. Jagjeevan Rao's case, (supra) must govern the facts of the present case. The respondent was a constable in the police and was convicted of a heinous crime punishable under Section 302 of the Penal Code read with Sections 120B and 149. Can the State be compelled or required to take back in service such a person, pending the disposal of the appeal ? Plainly not. The learned counsel appearing on behalf of the respondent sought to distinguish those two decisions on the ground that the employee had been convicted of offences under the Prevention of Corruption Act 1988 where the conduct had a direct bearing on the service of the employee as an officer of the State. In our view, this would not make any difference to the construction of clause (a) of the second proviso to Article 311. What clause (a) of the second proviso does is to stipulate that the requirement of clause (2) of holding an inquiry consistent with the principles of natural justice would not apply where a person is dismissed, removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge. In the present case, the respondent was a constable in the police. He was found guilty after a session's trial of an offence punishable under Section 302 read with Section 120B of the Penal Code. In such a case, clause (a) of the second proviso to Article 311 (2) would clearly stand attracted. The State cannot be regarded as having acted with perversity in dismissing a person who has been convicted of a serious offence of the nature involved in pursuance of the provisions of the second proviso to Article 311 (2) and, as in the present case, under Rule 8(2)(a) which is pari materia. The learned Single Judge, with respect, was in error in holding that there was no application of mind to the conduct which has led to the conviction. The conduct of the respondent which has led to the conviction of a charge under Section 302 cannot, by any circumstance, be regarded as warranting any treatment other than the punishment of dismissal under clause (a) of the second proviso to Article 311 (2) or under Rule 8(2)(a). Ultimately, as has been held by the Supreme Court until the conviction is set aside by an appellate or higher court, it would not be advisable to retain such a person in service. If he succeeds in the appeal or in any other proceeding, the matter can always be reviewed in such a manner that he would not suffer any prejudice."
10. The division bench judgement of the Prem Milan Tiwari (supra) has been considered by this Court in the case of Rajesh Singh vs State of U.P. and others passed in Writ A No. 68661 of 2011 decided on 24.10.2017 wherein this Court has held as under:
"31. However, when a competent trial Court has found in a Sessions Trial that the employee concerned is guilty of murder, after considering all evidence on record and such conviction is not stayed by the High Court during the pendency of Criminal Appeal, and only bail is granted, on an application no. 389 of Cr.P.C., then the facts would certainly entitle the Appointing Authority to pass an order of dismissal. If and when such an order of dismissal is set aside in Criminal Appeal, then the punishment may be reviewed and the employee concerned may be given reinstatement with consequential benefits.
32. In this view of the matter, the Appointing Authority would be justified in dismissing an employee sentenced for life imprisonment and the observation that the Appointing Authority should examine the conduct of the employee, which led to his conviction does not mean that the Appointing Authority should reappraise the evidence, which was found sufficient in the criminal trial by the competent Sessions Court for imposing a punishment of life imprisonment for murder. The attenuating circumstances that led to conviction under Section 302 IPC could have been looked into for mitigating the severity of sentence by the competent trial court only. Since, the trial court had examined the evidence and convicted the person and thereafter and also considered the mitigating circumstances which would lead to imposition of a lesser sentence and then passed an order imposing sentence for life imprisonment, the Appointing Authority cannot go beyond the observation made by the learned trial court, and reconsider all evidence and then pass an order imposing major penalty other than dismissal and allow a life convict to continue in service as a Government servant."
11. From perusal of division bench judgement of this Court in the case ofPrem Milan Tiwari (supra) it emerges that it has been held that where a person has been convicted for offense under Section 302 IPC then clause (a) of the second proviso to Article 311(1) of the Constitution of India would clearly stand attracted and that the State cannot be regarded as having acted with perversity in dismissing a person who has been convicted of a serious offense of the nature involved in pursuance of the provisions of second proviso to Article 311(2) of the Constitution of India.
12. The conduct which has led to the conviction of the charges under Section 302 IPC cannot by any circumstances be recorded as warranting any treatment other than punishment of dismissal under Clause (a) of the second proviso to Article 311(2) of the Constitution of India. Until the conviction is set aside by the appellate court it would not be advisable to retain such a person in service but if he succeeds in the appeal or an any other proceedings the matter can always be reviewed so that he would not suffer any prejudice.
13. Accordingly, keeping in view the aforesaid discussion the order impugned by which the petitioner has been dismissed does not require any interference. So far as the judgement of this Court in the case ofVishwanath Vishwakarma (supra) is concerned obviously the same would have to give way to the division bench judgement of this Court in the case ofPrem Milan Tiwari (supra).
14. Keeping in view the aforesaid discussion, no case for interference is made out. The writ petition is dismissed.
Order Date :- 24.2.2025
J. K. Dinkar
