Writ petition challenging dismissal from services due to criminal conviction. The court held that authorities must consider the nature of conduct before imposing dismissal penalty.
Impugned order dated 14 November 2011 quashed; matter remitted to Executive Engineer to pass fresh order within one month.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Court No. - 81
Case :- WRIT - A No. - 5927 of 2012
Petitioner :- Vidya Kant Mishra Respondent :- State of U.P. and Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Amit Dubey,B. Kaushik,V.K. Rai
Hon'ble Yashwant Varma,J.
Heard Sri Siddharth Khare, learned counsel for the petitioner and Sri V.K. Rai, learned counsel appearing for the contesting respondent, Jal Nigam.
The challenge in the present petition is to the order of 14 November 2011 in terms of which the services of the petitioner have come to be dispensed with on the following two grounds.
The respondents firstly assert that consequent to conviction in a criminal case, the petitioner remained in custody during the period 30 January 2008 to 13 March 2008. It is stated that this factum of incarceration was never disclosed to the respondents. The second ground which has been taken in aid of the passing of the impugned order is the conviction of the petitioner itself and on the basis of which it is stated that his services are liable to be dispensed with.
Assailing the order impugned, Sri Khare, learned counsel submits that the criminal case in which the petitioner was arraigned itself related to the commission of offences under Sections 34/325 IPC. Upon conviction, the petitioner was sentenced to rigorous imprisonment of six months with fine of Rs. 2000/-. In revision, the High Court partly allowed his challenge to the conviction with the Court providing that the sentence would stand reduced to the period of incarceration already undergone and that the fine would stand enhanced to Rs. 3000/-. Sri Khare placing reliance upon the decisions of the Supreme Court in Shankar Dass Vs. Union of India and Ors1 and by a learned judge of
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this Court in Arun Kumar Sachan Vs. State of U.P. and Ors.2 submitted that the respondents have proceeded in the matter mechanically without evaluating the nature of the allegations which were levelled against the petitioner and which ultimately led to his conviction and sentence. It was submitted that the charge which is ultimately found proved and established is not grievous in nature so as to warrant the imposition of penalty of dismissal. The law on the subject was succinctly explained in Shankar Dass by the Supreme Court where it was observed as under:
“ 7. It is to be learned that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. 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 non-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 or the ground of conduct which has lad 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.
Following that decision, a learned Judge of this Court in Arun
Kumar Sachan held thus :-
“The contention of the learned counsel for the petitioner is that though there are number of penalties provided for in the Rules, yet the
2 2010 (125) FLR 640
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maximum penalty has been imposed upon the petitioner without examining the conduct of the petitioner which led to his conviction on the criminal charge.
This controversy was examined by the Supreme Court in Shankar Dass (supra) and it was observed :-
"It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. 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."
(emphasis supplied)
In Chandrajeet Yadv (supra), a learned Judge of this Court also observed as follows:-
"2. Sri Vijay Gautam, learned counsel for the petitioner has assailed the impugned order of dismissal dated 08.10.2009 passed by Commandant, 8th Bn. P.A.C., Bareilly whereby the petitioner has been dismissed on the ground of his conviction by the court of Additional District and Sessions Judge, F.T.C. Court No. 3, Mau in Session Trial No. 21 of 1998, under Sections 147, 148, 149, 307, 308, 323, 325, 506 IPC imposing punishment of five years rigorous imprisonment with fine of Rs. 5000/- and has dismissed him without referring to the conduct of petitioner which has lead to his conviction. He submits that under Rule 8(2)(a) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the "1991 Rules") read with Article 311(2) second proviso it is permissible either to dismiss or remove or reduce in rank a person holding civil post without holding inquiry on the ground of conduct which has led to his conviction of criminal charges but the authority concerned has to consider the conduct of employee concerned which
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has led to his conviction in a criminal charge so as to warrant the punishment of dismissal.
(emphasis supplied)
In Ashok Kumar (supra), same observations have been made by a learned Judge of this Court.
It is, therefore, clear from the aforesaid decisions that it is incumbent upon the authorities to consider the conduct of the employee which has led to his conviction in the criminal charge before imposing any punishment. In the present case, the order impugned only mentions that since the petitioner has been convicted in the criminal case, he should be
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dismissed from service. The authorities were required to examine the conduct of the petitioner which led to his conviction before imposing any punishment. ”
The Court notes that in light of the two decisions referred to above the impugned order is clearly rendered unsustainable since it is ex-facie evident that the respondents have failed to take into consideration the nature of the conduct which ultimately led to the conviction of the petitioner. As was aptly observed in Shankar Dass every power as vesting in the respondents which is State within the meaning of Article 12 must be exercised fairly, justly and reasonably. Insofar as the issue of concealment of fact is concerned, the Court is constrained to note that the respondents did not press in aid any provision statutory or otherwise in terms of which an employee of the Jal Nigam was liable to be dismissed from service merely on the ground of having concealed the fact of his/her having been arrested or being detained in custody. For both the aforesaid reasons, the impugned order would merit being quashed and set aside.
The writ petition is allowed. The impugned order dated 14 November 2011 is hereby quashed. The matter shall in consequence stand remitted to the Executive Engineer, respondent No. 6 who shall now proceed to pass a fresh order with respect to the petitioner bearing in mind the observations made hereinabove. The aforesaid exercise shall be concluded with expedition and in any case within a period of one month from today.
Order Date :- 26.2.2020 LA/-
(Yashwant Varma, J.)
2 issues framed by the court
Whether dismissal of a government servant solely on the ground of criminal conviction without considering the nature of the conduct warrants quashing.
Whether authorities have an obligation to examine the conduct leading to conviction before imposing penalty under Article 311(2) of the Constitution.
Colour shows how this judgement treated each authority
Shankar Dass Vs. Union of India and OrsFollowed¶9
Shankar Dass Vs. Union of India and Ors
Arun Kumar Sachan Vs. State of U.P. and Ors.Relied on¶9
Arun Kumar Sachan Vs. State of U.P. and Ors.
Chandrajeet YadvRelied on¶24
Chandrajeet Yadv
1 provisions across 1 enactments
Vidya Kant Mishra
State of U.P.
Yashwant Varma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
