The Allahabad High Court while allowing the petition said that in case a person is dismissed from the service on the ground of conduct, which has led to conviction on a criminal charge, a fledged inquiry is not required.
A Single Bench of Justice Neeraj Tiwari passed this order while hearing a petition filed by Vishwanath Vishwakarma.
The petition has been filed seeking the following relief:
I. Issue a writ or direction in the nature of certiorari commanding the opposite parties to quash 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 the amount of provident fund and to pay the arrear of salary for the period of suspension.
The 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 an FIR dated 11.07.1992 has been lodged at Police Station Kurwar, District-Sultanpur against 16 persons including petitioner, which was registered as case under Section 148, 302, 149 and 324 IPC.
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 order dated 24.08.2009, petitioner has filed a criminal appeal. 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.
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 the Court by filing, 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 filed by the petitioner.
Petitioner has challenged both the orders, i.e order dated 30.08.2014 and 13.05.2015 in the petition. So far as first order is concerned, 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 next submitted that from perusal of the impugned order dated 30.08.2014, it is apparently clear that, neither any fact submitted in reply has been considered, nor there is any application of mind about the conduct of the petitioner as required under Article 311(2)(a) of Constitution of India. Though the order has two paragraphs about some facts, it is only one line about the dismissal of the petitioner in light of judgment and order of conviction dated 24.08.2009.
He firmly submitted that even in case of conviction, it is required on the part of the disciplinary authority to apply its mind and consider the conduct of the petitioner, which is absolutely missing in the case. Therefore, the order dated 30.08.2014 is bad and liable to be set aside.
The Additional Chief Standing Counsel has vehemently opposed the submission of the counsel for the petitioner and submitted that once the petitioner is convicted, it is always open for the disciplinary authority to dismiss the petitioner from service in light of Article 311(2)(a) of Constitution of India.
The Court said that the issue before the Court is that as to whether in case of conviction, service of petitioner may be terminated straightway without providing any opportunity to him in light of Article 311(2) (a) of Constitution of India or not?
“From the perusal of the order dated 30.08.2014, it is apparently clear that it has been passed only on the ground of conviction without having any discussion or application of mind over the conduct of the petitioner, which is mandatory requirement in light interpretation of Article 311(2)(a) of Constitution of India by the Apex Court as well as by the Court. Now this issue is no res integra. Apex Court from the judgement of Tulsiram Patel(Supra) to many other judgments has considered this issue repeatedly and has held that even after conviction of an employee, while passing the removal or dismissal order, there must have been consideration of conduct of the employee and without that, any order of dismissal is bad.
In the case, there is no consideration of the conduct of the petitioner, therefore, the impugned dismissal order dated 30.08.2014 is bad and liable to be set aside.
He has also challenged appellate order dated 13.05.2015, by which he was denied other post retiral benefits except GPF. The Apex Court has taken a firm view in the matter of State of Jharkhand(Supra) that under Article 300(A) of Constitution of India, pension and other post retiral benefits are not bounty, but a property and cannot be taken away without provision of law. Once, the first impugned order dated 30.08.2014 is not sustainable, order of Appellate Authority dated 13.05.2015 is also having no force in light of observation made earlier and is liable to be set aside”, the Court observed while allowing the petition.
“Under such facts and circumstances of the case, law laid down by the Apex Court as well as this Court from time to time, orders dated 30.08.2014 and 13.05.2015 are hereby set aside.
Now, the next issue before the Court is about the relief which may be granted to petitioner after quashing the impugned orders for the payment of post retiral dues. In usual course, it is required to remand the matter for passing fresh orders. So far as present case is concerned, as on date, petitioner would be aged about 70 years in light of the fact that he was superannuated from the service on 30.08.2014, whereas, impugned order of dismissal has been passed on 30.08.2014 and the same was served upon him on 02.09.2014.
Therefore, in light of facts of the case and legal proposition set by the Courts, respondents are directed to pay the post-retrial dues to petitioner including pension and other dues permissible under the law within three months from the date of production of certified copy of the order”, the order reads.