Point of Law: Unless there exists an enabling provision either in the applicable service rules or any other provision of law it would not be open for the disciplinary authority to pass an order in respect of contract of service after the employee has attained the age of superannuation.

JUDGMENT :

ASHWANI KUMAR MISHRA, J.

1. Petitioner substantively held the post of Assistant Development Officer, Panchayat and was posted at Agra. An order of dismissal came to be passed against him on account of his conviction in Sessions Trial No. 455 of 2008 (State vs. Murari Lal Rathore), vide judgment dated 31.10.2015. This order has been affirmed in departmental Appeal and Revision and is assailed in this writ petition primarily on the ground that there is no conscious application of mind on part of the disciplinary authority to the conduct of petitioner which led to his conviction.

2. Learned counsel for the petitioner places reliance upon the judgment of the Supreme Court in the case of Union of India vs. Tulsiram Patel, AIR 1985 SC 1416, as also judgment of this Court in Service Single No. 5907 of 2009. Reliance is also placed upon the judgment of Supreme Court in Divisional Personal Officer, Southern Railway vs. Chillappa, 1976 (3) SCC 190 to submit that the impugned orders are wholly unsustainable.

3. On behalf of respondents, reliance is placed upon Para-11 of a Division Bench Judgment of this Court in State of U.P. and Others vs. Prem Milan Tiwari Constable, 2015 (3) ADJ 407 which is reproduced hereinafter:

“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.”

4. Reliance is also placed by the learned Standing Counsel upon the judgment of this Court in Writ Petition No. 27271 of 2014 (Mahendra Kumar vs. Union of India and Othe