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2023 Supreme(All) 1385
IN THE HIGH COURT OF ALLAHABAD
NEERAJ TIWARI, J.
Vishwanath Vishwakarma - Petitioner
Versus
State Of U.P. Through Prin. Secy. Deptt. Of Revenue Lko. And Ors. - Respondents
Writ A. No. 4422 Of 2015
Decided On : 18-09-2023
Important Points
Subject
Employment Law - Termination of Service
Act Referred
INDIAN PENAL CODE : S.148, S.149, S.302, S.304(b), S.324, S.498(a)
Headnote
Article 311(2)(a) - Termination of Service on Conviction - [Neeraj Tiwari, J.]
Fact of the Case:
The petitioner, a government employee, was convicted for life imprisonment under Section-302 and 149. He was subsequently dismissed from service and denied post-retiral benefits. The petitioner challenged the dismissal and denial of benefits in the present petition.
Finding of the Court:
The Court found that the dismissal order was passed solely on the ground of conviction without considering the conduct of the petitioner, which is mandatory under Article 311(2)(a) of the Constitution of India. The appellate order denying post-retiral benefits was also found to be unsustainable.
Issues: The main issue was whether the service of the petitioner could be terminated straightway without providing any opportunity to him in light of Article 311(2)(a) of the Constitution of India. Another issue was the denial of post-retiral benefits to the petitioner.
Ratio Decidendi: The Court held that even after conviction, the conduct of the employee leading to the conviction must be considered before passing a dismissal order. The denial of post-retiral benefits without provision of law was also found to be impermissible.
Final Decision: The Court set aside the dismissal order and directed the respondents to pay the post-retiral dues to the petitioner, including pension and other permissible dues under the law within three months.
For the Petitioner: Arvind Kumar Vishwakarma, Ramesh Kumar Srivastava.
For the Respondents: Savitra Vardhan Singh.
JUDGMENT :
(Neeraj Tiwari, J.)
1. Heard learned counsel for the petitioner and Sri Savitra Vardhan Singh, learned Additional Chief Standing Counsel for the State-respondents.
2. Present petition has been filed seeking the following relief:
I. Issue a writ or direction in the nature of certiorary commanding the opposite parties to quashing the Impugned rejection order dated 30.08.2014 and appellate order dated 13.05.2015 except decision with regard to amount of provident fund.
II. Issue a writ or direction in the nature of mandamus commanding the opposite parties to treat the petitioner as retire from service subsequently to pay the retiral dues namely as pension, amount of gratuity, amount of leave encashment, amount of group insurance, arrear of pension and other dues.
III. Issue a writ or direction in the nature of mandamus commanding the opposite parties to pay the interest towards the release of amount of provident fund and to pay the arrear of salary for the period of suspension.
3. Since, pleadings have been exchanged between the parties, therefore, with the consent of the parties, the petition is being decided at the admission stage itself.
4. Brief facts of the case are that, petitioner was appointed as Lekhpal w.e.f. 08.03.1975 in District-Sultanpur. He was given his first promotional pay scale in the year 1994 and second in the year 2000. The petitioner was working as Lekhpal at Tehsil Sadar, District Sultanpur. Unfortunately an accident took place on 11.07.1992, upon which FIR dated 11.07.1992 has been lodged at Police Station Kurwar, District-Sultanpur against 16 persons including petitioner, which was registered as case crime no. 198 of 1992, under Section148, 302, 149 and 324. Ultimately, the charge sheet was submitted and case crime was converted into session trial No. 124 of 1994. After completion of trial, petitioner was convicted for life imprisonment under Section-302 and 149 vide judgment and order dated 24.08.2009. Petitioner was taken under custody on 22.08.2009. Against the judgment and order dated 24.08.2009, petitioner has filed a criminal appeal, which was registered as criminal appeal no. 1987 of 2009. Petitioner was released on bail by the High Court on 10.01.2017. Petitioner has attained the age of superannuation on 31.08.2014. Order of dismissal from service was passed on 30.08.2014 only on the ground of conviction and the same was served upon the petitioner on 02.09.2014. Apart from dismissal from service, petitioner was also denied the post retiral benefits.
5. Against the order dated 30.8.2014, petitioner has preferred departmental appeal dated 17.10.2014 before the District Magistrate, Amethi. During the pendency of the appeal, he has also challenged the order dated 30.08.2014 before this Court by filing S.S. No. 42 of 2015, which disposed of vide order dated 20.02.2015 directing the appellate authority to decide the appeal of the petitioner within three months. Said appeal of the petitioner was decided vide appellate order dated 13.05.2015, issuing the direction for payment of GPF amount to petitioner only and for remaining post retiral benefits, it is held in the appellate order that decision shall be taken after final disposal of criminal appeal no. 1987 of 2009 filed by the petitioner.
6. Petitioner has challenged both the orders, i.e. order dated 30.08.2014 and 13.05.2015 in present petition. So far as first order is concerned, learned counsel for the petitioner firmly submitted that in light of Article 311(2)(a) of Constitution of India, mere conviction cannot be a ground for removal of an employee from service, but conduct of the employee has also to be seen while passing the order of dismissal. He next submitted that after conviction, petitioner was issued charge sheet on 17.04.2014 having only one charge that he has never informed about the conviction and incarceration thereafter, which he duly replied vide reply dated 20.06.2014 with the averment that he has given due information. He
