Patna High Court
Shiv Murti vs Union Of India on 10 April, 2025
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5634 of 2025
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Shiv Murti Son of Ram Ashrey, resident of H. No. 146 Asarwan Rampur, P.S.
Piprapur, District Sultanpur U.P.
... ... Petitioner/s
Versus
1. Union of India through its Secretary Ministry of Home Affairs, Govt. of
India, New Delhi.
2. Commandant Assistant Director (Pers-1) Directorate General SSB (MHA)
New Delhi-110066.
3. Dy. Inspector General SHQ SSB Bettiah Camp at 44 BN SSB Narkatiaganj
West Champaran, Bihar.
4. Commandant 71 BN SSB Motihari at Piprakothi, Bihar.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Mahesh Prasad Rao, Adv.
For the Respondent/s : Ms. Savita Singh, Adv.
Mr. Sumit Kumar, Adv.
Mr. Sudhanshu Kumar, Adv.
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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 10-04-2025
Heard Learned Counsel for the petitioner and
Learned Counsel for the Union of India in virtual mode.
2. Learned Counsel for the petitioner submits that the
present writ petition has been filed for quashing of the orders
dated 28.01.2022 and 06.05.2022 passed by Opposite Parties
No.3 and 4 i.e., Deputy Inspector General SHQ SSB Bettiah
Camp at 44 BN SSB Narkatiaganj, West Champaran and
Commandant 71 BN SSB Motihari at Piprakothi.
3. Counsel for the petitioner submits that the said
order of dismissal of the petitioner is completely bad in law and
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has been passed in gross violation of Article 311(2) of the
Constitution of India. He further submits that the petitioner was
a Government servant and he cannot be dismissed from the
service merely on the ground of conviction, but authorities has
to consider the case of the petitioner as protection was granted
to the petitioner in the light of Article 311(2) of the Constitution
of India.
4. Learned Counsel for the Union of India submits
that the petitioner's case is fit to be rejected as the order of
removal has been passed on 06.05.2022 and the said appeal was
arisen from the order passed in month of January, 2022. But the
petitioner has filed the present writ petition after lapse of about
3 years i.e., in the year 2025. Such delay has nowhere explained.
5. Counsel for the Union further submits that Article
311(2) of the Constitution of India provides protection to the
Government's employee, but in the present case, this protection
is not available to the petitioner as the present matter is relating
to conviction.
6. In response thereof, counsel for the petitioner
submits that delay has been caused only due to the reason that
the petitioner was in custody and he was not aware of the law.
7. After hearing the parties as well as upon perusal of
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the documents, it transpires to this Court that the petitioner was
convicted and he has preferred criminal appeal against the said
punishment. He was granted bail on 06.01.2022 by which his
sentence has been suspended during pendency of the appeal.
8. It also transpires to this Court that the petitioner
was a Government servant and it is admitted fact that the
Government servant are protected under Article 311(2) of the
Constitution of India. The provisions of Article 311(2) with its
proviso states as follows:-
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 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
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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.
9. It transpires to this Court that the petitioner was a
Constable i.e., a person other than officer. Dismissal or removal
of person other than officer has been guided by Rule 22 of the
Border Security Force Rules, 1969 which states as follows:-
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"22. Dismissal or removal of person
other than officer on account of misconduct.-(1)
When it is proposed to terminate the service of a
person subject to the Act other than an officer, he
shall be given an opportunity by the authority
competent to dismiss or remove him, to show cause
in the manner specified in sub- rule (2) against
such action:
Provided that this sub-rule shall not
apply -
(a) where the service is terminated on the
ground of conduct which has led to his conviction
by a Criminal Court or a Security Force Court; or
(b) where the competent authority is
satisfied that, for reasons to be recorded in writing,
it is not expedient or reasonably practicable to give
the person concerned an opportunity of showing
cause.
(2) When after considering the reports
on the misconduct of the person concerned, the
competent authority is satisfied that the trial of
such a person is inexpedient or impracticable, but,
is of the opinion that his further retention in the
service is undesirable, it shall so inform him
together with all reports adverse to him and he
shall be called upon to submit, in writing, his
explanation and defence:
Provided that the competent authority
may withhold from disclosure any such report or
portion thereof, if, in his opinion its disclosure is
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not in the public interest.
(3) The competent authority after
considering his explanation and defence, if any,
may dismiss or remove him from service with or
without pension:
Provided that a Deputy Inspector-
General shall not dismiss or remove from service,
a subordinate officer of and above the rank of a
Subedar.
(4) All cases of dismissal or removal
under this rule, shall be reported to the Director-
General."
10. It transpires to this Court that Article 311(2) which
grants protection to the Government officer by virtue of
Constitutional (15th Amendment) Act of 1963 w.e.f., 05.10.1963,
but proviso has further been amended by 42nd Constitutional
Amendment, 1976 w.e.f., 03.01.1977. The proviso namely, (a) of
the Article 311(2) provides that this clause shall not apply-
where a person has been dismissed or removed in the rank on
the ground of conduct which has led to his conviction on a
criminal charge.
11. It further transpires that the termination of the
petitioner was made on the ground of conviction on a criminal
charge, and therefore, the protection about which the petitioner
talks about granted under Article 311(2) of the Constitution of
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India to the Government Servant, shall not be applicable in the
case of the petitioner in the opinion of the Court.
12. This Court also finds that in appeal, the
suspension of sentence has been made vide order dated
06.01.2022
and the law is very much clear about sentence and
conviction. The word used in proviso of Clause 2 of Article 311
of the Constitution is the conviction and not the sentence. In the
opinion of the Court the above mentioned Article 311(2) of the
Constitution of India due to its proviso, which has been inserted
w.e.f., 03.01.1977, there is no protection available to the
petitioner and, hence, the present writ petition is hereby
dismissed.
13. With the aforesaid directions and observations, the
present writ application stands dismissed.
(Dr. Anshuman, J.)
Prakashmani/-
AFR/NAFR
CAV DATE N/A
Uploading Date 18.04.2025
Transmission Date N/A
