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IN THE HIGH COURT OF ALLAHABAD
Surya Prakash Kesarwani, J.
Ram Kishan – Petitioner
Versus
State of U.P. and Others – Respondents
Writ Appeal No. 14570 of 2009
Decided On : 07-01-2020
Constitution of India, 1950 – Article 311(2) – Indian Penal Code, 1860 – Sections 302/34 – Removal from Service – Murder –Writ petition has been filed praying to quash the order of removal from service passed by the respondent No. 2 – The petitioner has also prayed for a writ, order or direction in the nature of mandamus directing the respondents to continue the petitioner in service and pay regular salary month by month –Held, in view of the law laid down by Hon'ble Supreme Court in the cases of Tulsiram Patel, T.R. Chellapan and Shankar Das and two Division Bench judgments of this court in Shyam Narain Shukla and Sadanand Mishra it can safely be concluded that while removing the petitioner from service, the respondents were bound to consider the conduct of the petitioner, which has led to his conviction in the session trial – This was the condition precedent for the competent authority to acquire jurisdiction to impose punishment of removal from service – However, the impugned order is unfortunately silent and does not show consideration of conduct of the petitioner which has led to his conviction in – It was necessary for the respondents, while passing the impugned order, to consider the conduct of the petitioner leading to his conviction and then to decide what punishment is to be inflicted upon him – This has not been done by the respondent No. 2 while removing the petitioner from service – impugned order cannot be sustained and is hereby quashed – Writ Petition Allowed. (Paras 14, 15)
Facts of Case:
Removal from Service – Murder –Writ petition has been filed praying to quash the order of removal from service passed by the respondent No. 2 – The petitioner has also prayed for a writ, order or direction in the nature of mandamus directing the respondents to continue the petitioner in service and pay regular salary month by month.
Findings of Court:
Held, in view of the law laid down by Hon'ble Supreme Court in the cases of Tulsiram Patel, T.R. Chellapan and Shankar Das and two Division Bench judgments of this court in Shyam Narain Shukla and Sadanand Mishra it can safely be concluded that while removing the petitioner from service, the respondents were bound to consider the conduct of the petitioner, which has led to his conviction in the session trial – This was the condition precedent for the competent authority to acquire jurisdiction to impose punishment of removal from service – However, the impugned order is unfortunately silent and does not show consideration of conduct of the petitioner which has led to his conviction in – It was necessary for the respondents, while passing the impugned order, to consider the conduct of the petitioner leading to his conviction and then to decide what punishment is to be inflicted upon him – This has not been done by the respondent No. 2 while removing the petitioner from service – impugned order cannot be sustained and is hereby quashed.
Result: Writ Petition Allowed
JUDGMENT :
Surya Prakash Kesarwani, J.
1. Heard Sri. A.K. Ojha, learned counsel for the petitioner and Sri. Anil Kumar Pandey, learned standing counsel for the State-respondents.
2. This writ petition has been filed praying to quash the order of removal from service dated 17.12.2008 passed by the respondent No. 2. The petitioner has also prayed for a writ, order or direction in the nature of mandamus directing the respondents to continue the petitioner in service and pay regular salary month by month.
3. Briefly stated facts of the present case are that the petitioner was a constable in Civil Police. By judgment and order dated 05.05.2008, the petitioner was convicted under Sections 302/34 I.P.C. with life imprisonment and a fine of Rs. 10,000/- in S.T. No. 178 of 2005 arising from Case Crime No. 649 of 2005 passed by the Additional Session Judge, Court No. 3, Jhansi. By the impugned order dated 17.12.2008, the petitioner was removed from service on the ground that he has been convicted in the aforesaid Session Trial. Against the aforesaid judgment and order dated 05.05.2008, the petitioner filed a Criminal Appeal No. 3060 of 2008, Ram Kishan vs. State of U.P. in which an order dated 17.10.2008 was passed by a Division Bench of this Court releasing the petitioner on bail during pendency of the appeal and realisation of fine was stayed. Subsequently, by order dated 20.07.2009, the execution of the sentence during pendency of the appeal was also stayed by the Division Bench. Under these facts, the petitioner has filed the present writ petition challenging the impugned order of removal from service dated 17.12.2008 passed by the Senior Superintendent of Police, Jhansi.
4. Learned counsel for the petitioner submits that the fine imposed by the judgment and order dated 05.05.2008 passed in S.T. No. 178 of 2005 has been stayed by the Division Bench in Criminal Appeal No. 3060 of 2008 and the petitioner has been released on bail and the execution of sentence has also been stayed, therefore, the impugned order cannot be sustained and deserves to be quashed. He further submits that no finding has been recorded in the impugned order on the conduct of the petitioner leading to his conviction so as to inflict the punishment of removal from service. He, therefore, submits that the impugned order deserves to be quashed.
5. Learned standing counsel supports the impugned order.
6. I have carefully considered the submissions of the learned counsels for the parties.
7. Perusal of the impugned order dated 17.12.2008 shows that it has been passed by the respondent No. 2 merely on the ground that the petitioner has been convicted with life imprisonment under Section 302/34 I.P.C. and with fine of Rs. 10,000/-. The respondent No. 2 while passing the impugned order has not considered at all the conduct of the petitioner, which has led to his conviction.
8. The judgment and order dated 05.05.2008 passed by the Additional Session Judge, Court No. 3, Jhansi in S.T. No. 178 of 2005 under Section 302/34, I.P.C. convicting the petitioner with life imprisonment and a fine of Rs. 10,000/- has been challenged by the petitioner in Criminal Appeal No. 3060 of 2008, Ram Kishan vs. State of U.P. in which an order dated 17.10.2008 was by the Division Bench releasing the petitioner on bail and staying the realisation of fine. By order dated 20.07.2009 passed in the aforesaid criminal appeal, the execution of sentence was also stayed during pendency of the appeal. It has been stated before me by the learned counsel for the petitioner that the aforesaid criminal appeal is still pending.
9. In Union of India vs. Tulsiram Patel, (1985) 3 SCC 398, Hon'ble Supreme Court has considered the provisions of Article 311(2) of the Constitution of India and held as under:-
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