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Neutral Citation No. - 2023:AHC-LKO:59434 A.F.R.

Reserved on 25.04.2023
Delivered on 18.09.2023
Case :- WRIT - A No. - 4422 of 2015
Petitioner :- Vishwanath Vishwakarma
Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Revenue Lko.
And O
Counsel for Petitioner :- Arvind Kumar Vishwakarma, Ramesh Kumar
Srivastava
Counsel for Respondent :- C.S.C.,Savitra Vardhan Singh

Hon'ble 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.
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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 Section-
148, 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.
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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 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 is having two paragraphs about some facts,
but 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 present case.
Therefore, order dated 30.08.2014 is bad and liable to be set aside.

7. In support of his contention, learned counsel for the petitioner

has placed reliance upon the judgment of Apex Court in the matter of
Union of India and another Vs. Tulsiram Patel: AIR 1985 SCC
1416 as well as of this Court in Shyam Narain Shukla Vs. State of
U.P., 1988 6 LCD 530, Ratan Singh Vs. State of U.P. and Others:
(2013) 11 ADJ 352, Udai Pratap Singh Vs. State of U.P. 2014 (32)
LCD 779, Shambhu Nath Yadav Vs. State of U.P.: 2016(4) ADJ
276, Rajesh Dwivedi Vs. State if U.P. 2018(36) LCD 1047, Ram
Kishan Vs. State of U.P. (2020) 1 ADJ 862, Murari Lal Rathore Vs.
State of U.P.: 2021(6) ALJ 622.
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8. He has also assailed appellate order dated 13.05.2015 on the

ground that pension and post retiral benefits are not bounty, but a
property under Article 300(A) of the Constitution of India, therefore,
the same cannot be taken away without any provision of law. In
support of his contention, he placed reliance upon the judgment of
Apex Court in the matter of State of Jharkhand & Ors. Vs. Jitendra
Kumar Srivastava & Anr.: AIR 2013 Suprreme Court 3383.

9. Learned Additional Chief Standing Counsel has vehemently

opposed the submission of learned 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. In support of his
contention, he placed reliance on the judgment of Apex Court in
Civil Appeal No. 1804 of 2020: of Life Insurance Corporation of
India Vs. Mukesh Poonamchand Shah.

10. I have considered the rival submissions advanced by learned

counsel for the parties, perused Article 311(2)(a) of Constitution of
India as well as judgments relied upon.

11. 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?

12. As Article 311 of Constitution of India is relevant for the

present case, the same is being quoted hereinbelow:

“Article 311. Dismissal, removal or reduction in rank of persons

employed in civil capacities under the Union or a State.—(1) No
person who is a member of a civil service of the Union or an all-
India service or a civil service of a State or holds a civil post under
the Union or a State shall be dismissed or removed by an authority
subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or
reduced in rank except after an inquiry in which he has been
informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges:
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Provided that where it is proposed after such inquiry, to impose

upon him any such penalty, such penalty may be imposed on the
basis of the evidence adduced during such inquiry and it shall not
be necessary to give such person any opportunity of making
representation on the penalty proposed:

Provided further that this clause shall not apply:—

(a) Where a person is dismissed or removed or reduced in rank on

the ground of conduct which has led to his conviction on a criminal
charge; or

(b) Where the authority empowered to dismiss or remove a person

or to reduce him in rank is satisfied that for some reason, to be
recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or”

(c) Where the President or the Governor, as the case may be, is
satisfied that in the interest of the security of the State it is not
expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises

whether it is reasonably practicable to hold such inquiry as is
referred to in clause (2), the decision thereon of the authority
empowered to dismiss or remove such person or to reduce him in
rank shall be final.”

13. From the perusal of Article 311(2)(a) of Constitution of India,

it appears 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.

14. This issue was before the Apex Court for consideration in the
matter of Tulsiram Patel (Supra), relevant paragraph of the said
judgment is quoted hereinbelow:

“The second proviso will apply only where the conduct of a

government servant is such as he deserves the punishment of
dismissal, removal or reduction in rank. If the conduct is such as to
deserve a punishment different from those mentioned above, the
second proviso cannot come into play at all, because Article 311
(2) is itself confined only to these three penalties. Therefore, before
denying a government servant his constitutional right to an
inquiry, the first consideration would be whether the conduct of the
concerned government servant is such as justifies the penalty of
dismissal, removal or reduction in rank. Once that conclusion is
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reached and the condition specified in the relevant clause of the

second proviso is satisfied, that proviso becomes applicable and
the government servant is not entitled to an inquiry.”

15. Again this issue came for consideration before this Court in
the matter of Shyam Narain Shukla(Supra). This Court after
considering the matter has held as under:

"In view of the above decision of the Supreme Court, it has to be

held that whenever a Government servant is convicted of an
offence, he cannot be dismissed from service merely on the ground
of conviction but the appropriate authority has to consider the
conduct of such employee leading to his conviction and then to
decide what punishment is to be inflicted upon him. In the matter of
consideration of conduct as also the quantum of punishment the
employee has not to be joined and the decision has to be taken by
the appropriate authority independently of the employee who, as
laid down by the Supreme Court, is not to be given an opportunity
of hearing at that stage."”

16. This Court has considered the very same issue in the matter of
Ratan Singh(Supra) also. This Court after consideration has taken
the very same view. Relevant paragraph of the said judgment is
quoted hereinbelow:

“ In view of the finding in favour of petitioner on second issue, as

above, that, the impugned order of dismissal has not been passed
by competent authority after considering "conduct led to
conviction" but only in a mechanical way on the basis of mere
conviction, the writ petition deserves to be allowed. The writ
petition is accordingly allowed. Impugned orders dated 28.4.2011,
28.1.2012 and 11.9.2012 are hereby set aside. The petitioner shall
be entitled to all consequential benefits. However, this order shall
not preclude the respondents from passing a fresh order in
accordance with law. ”

17. This issue was again before this Court for consideration in the
matter of Udai Pratap Singh(Supra). This Court after considering
the judgements of Tulsiram Patel(Supra) and Shyam Narain
Shukla(Supra) has taken the very same view. Relevant paragraphs
of the said judgment are being quoted hereinbelow:
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“13. In view of the above law laid down by the Apex Court and by
this Court before passing the dismissal order the competent
authority ought to have considered "Conduct led to conviction"
and should not pass the order mechanically on the basis of mere
conviction.

14. In the present case, no such exercise has been done. The
conduct of the petitioner, which led to conviction has not been
examined and the petitioner has been dismissed mechanically only
on the ground that he has been convicted by the criminal Court.
Perusal of the order of this Court passed in Criminal Appeal No.
1017 of 1981, by which the petitioner has been acquitted reveals
that the petitioner has been acquitted on merit
on consideration of the evidences on record. Admittedly, no
departmental enquiry has been made and no reason has been given
for not conducting the disciplinary proceeding. In this view of the
matter, the termination order is not sustainable.

15. The impugned order is also not sustainable as it has been

passed in violation of principle of natural justice without giving
any opportunity to the petitioner. The petitioner has now been
retired. He can only be reinstated notionally and entitled for other
post retiral benefits.”
18. Division Bench of this Court has also considered this issue in
the matter of Sadanand Mishra Vs. State of U.P.: 1993 LCD 70 and
has taken the very same view. Relevant paragraph of the said
judgment is being quoted hereinbelow:

“on conviction of an employee of a criminal charge, the order of

punishment cannot be passed unless the conduct which has led to
his conviction, is also considered. It was further held that the
scrutiny or exercise of conduct of an employee leading to his
conviction is to be done ex parte and an opportunity of hearing is
not to be provided for this purpose to the employee concerned”

19. Again this issue came up before this Court in the matter of
Shambhu Nath Yadav(Supra) in which petitioner was convicted
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under Section 498A and 304B IPC and this Court after considering
many judgments occupying the field has held as under:

“In the present case, respondents have failed to consider the

conduct of the petitioner which has led to his conviction before
imposing punishment of dismissal by means of impugned order.
The impugned order ex-facie does show that disciplinary authority
has not applied its mind at all to the conduct led to conviction and
quantum of punishment but proceeding ahead to impose
punishment as an automatic and natural consequence of
conviction, and it cannot be said to be a valid exercise of power
under Rule 8(2)(a) of 1991 Rules and therefore, the orders
impugned in the writ petition are unsustainable. ”

20. In the matter of Rajesh Dwivedi(Supra), issue before the

Court was same as in the present controversy and the petitioner in
said case was convicted under Sections 147, 148 and 302 IPC. The
Court after considering many judgments has taken the very same
view. Relevant paragraphs of the said judgment are quoted
hereinbelow:

“10. In view of the settled proposition of law, as discussed above, a

government employee cannot be dismissed, removed or reduced in
rank merely on the ground that he has been convicted by a Court of
law. Thus, conviction alone is not enough to punish a government
employee, but it is conduct of the employee concerned, which had
led to is conviction on the basis of which, the government employee
can be punished. Hence, t is necessary for disciplinary authorities
to consider the conduct of convict government servant, which had
led to his conviction. In the absence of the same, the order of the
punishment would be bad. Further the consideration by the
disciplinary authority is required to be recorded in writing.

11. The learned Standing Counsel has argued that proviso-2 to the
Article 311 of the Constitution of India provides that where a
person is dismissed on the ground of conduct, which has led to his
conviction on a criminal charge or where the appointing authority
is satisfied that it is not reasonably practicable to hold such an
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enquiry, there is no requirement of the observance of the principles

of natural justice. He has further argued that this provision is akin
to Rule-7 of the U.P. Government Servant (Discipline & Appeal)
Rules 1999 which also provides that where any major penalty is
imposed on a person on the ground of conduct which has led to his
conviction on a criminal charge or where the disciplinary authority
is satisfied, that for the reason to be recorded in writing, it is not
reasonably practicable to hold an enquiry as per the Rules the
order becomes final. He has also argued that an employee who has
been in Jail for more than 48 hours, his services are terminated in
accordance with the rules.

12. The argument of the learned Standing Counsel is patently

illegal since Article 311 of the Constitution of India and also Rule-
7 of the U.P. Government Servant (Discipline & Appeal) Rules,
1999 clearly provide that the authority passing the order of the
major punishment, on the ground of conviction of the employee on
a criminal charge, will have to record his satisfaction in writing
that he is satisfied, after consideration of the conduct of the
employee which has led to conviction on the ground of criminal
charge, that he deserves major penalty. Further argument of the
learned Standing Counsel that mere imprisonment exceeding 48
hours, an employee becomes liable for termination of his services
as per the Rules is absurd. As per Rule-4(3) of the U.P.
Government Servant (Discipline & Appeal) 1999, such a
Government deemed to be placed under suspension w.e.f., the date
of his detention.
13. Therefore, it is clear from the above decisions and the relevant
provisions of law 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 impugned order passed by the respondent
No. 2 only states that since the petitioner has been convicted in the
criminal case, he should be dismissed from service from the date of
the order of conviction. The respondent No. 2 was required to
examine the conduct of the petitioner which led to his conviction
before imposing the major punishment upon him. The order suffers
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from non application of mind and shows arbitrary exercise of

discretion vested in the respondent No. 2 by law.”
21. Again a similar issue came up before this Court in the matter
of Ram Kishan(Supra), in which an employee was convicted under
Section 302 and 134 I.P.C. and this Court after considering many
judgments has taken the very same view. Relevant paragraphs of the
said judgment are being quoted hereinbelow:

“12. In Shankar Das v. Union of India,

MANU/SC/0369/1985 :1985 (2) SCR 358, Hon'ble Supreme Court
while referring to power under Clause (a) of second proviso of
Article 311(2) of the Constitution of India, has observed as under:-

"Be that power like every other power has to be exercised fairly,
justly andreasonably."”

13. Proviso (a) to Article 311 of the Constitution of India, is an

exception to clause (2) of Article 311, which is applicable where a
person is dismissed or removed or reduced in rank on the ground
of conduct which has led to his conviction on a criminal charge. In
case of Divisional Personnel Officer, Southern Railway Vs. T.R.
Chellappan, MANU/SC/0488/1975 : 1976 (3) SCC 190 (para-21),
Hon'ble Supreme Court considered Article 311(2), Proviso (a) and
held that this provision confers power upon the disciplinary
authority to decide whether in the facts of a particular case, what
penalty, if at all, should be imposed on the delinquent employee,
after taking into account the entire conduct of the delinquent
employee, the gravity of the misconduct committed by him, the
impact which his misconduct is likely to have on the administration
and other extenuating circumstances or redeeming features, if any,
present in the case and so on and so forth. The conviction of the
delinquent employee would be taken as sufficient proof of
misconduct and then the authority will have to embark upon a
summary inquiry as to the nature and extent of the penalty to be
imposed on the delinquent employee and in the course of the
inquiry, if the authority is of the opinion that the offence is too
trivial or of a technical nature it may refuse to impose any penalty
in spite of the conviction. The disciplinary authority has the
undoubted power after hearing the delinquent employee and
considering the circumstances of the case to inflict any major
penalty on the delinquent employee without any further
departmental inquiry, if the authority is of the opinion that the
employee has been guilty of a serious offence involving moral
turpitude and, therefore, it is not desirable or conducive in the
interests of administration to retain such a person in service. In
Sushil Kumar Singhal vs. Regional Manager, Punjab National
Bank, MANU/SC/0578/2010 : 2010 (8) SCC 573 (Paras-24 and
25), Hon'ble Supreme Court explained the meaning of the words
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'moral turpitude' to mean anything contrary to honesty, modesty or

good morals.

14. Thus, in view of the law laid down by Hon'ble Supreme Court
in the cases of Tulsiram Patel (supra), T.R. Chellapan (supra) and
Shankar Das (supra), and two Division Bench judgments of this
court in Shyam Narain Shukla (supra) and Sadanand Mishra
(supra), 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 the S.T. No. 178 of 2005. 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. Therefore, the impugned order cannot be
sustained and is hereby quashed.

22. Again one more similar issue was before this Court in the
matter of Murari Lal Rathore(Supra) in which conviction was made
under Section 302, 120 B and 149 IPC and petitioner was dismissed
from the service on the very same ground. This Court after
considering in detail has taken the very same view. Relevant
paragraphs of the said judgment are being quoted hereinbelow:

“10. The order of dismissal merely records that petitioner has been
convicted to imprisonment of life in S.T. No. 455 of 208 and is
incarcerated in jail therefore in view of the Government Order
dated 12.10.1979, the petitioner is being dismissed from service
from the date of his incarceration in jail i.e. 31.10.2015.

14. The authoritative pronouncement of law by Supreme Court in

Tulsi Ram Patel (supra) is consistently followed and it is by now
well settled that mere conviction in a criminal case would not lead
to automatic dismissal from service of the government servant.
Since clause (a) to the second proviso to Article 311(2) of the
Constitution of India as also first proviso to rule-7(xii) of the Rules
of 1991 are exception to the normal rule of holding inquiry against
the government servant and even opportunity of hearing is not
required to be given to him, therefore, the disciplinary authority
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has to scrupulously examine the conduct of the government servant

which led to his conviction before exercising such jurisdiction. The
nature of guilt established as also the possible defence available to
the government servant are aspects which requires consideration at
the level of the disciplinary authority. In the event these aspects are
omitted from consideration, the order of dismissal itself would be
rendered without jurisdiction.
18. Since the conduct of the petitioner leading to his conviction has
not been examined by the disciplinary authority within the laid
down parameter as such the order of dismissal, as affirmed in
appeal and revision cannot be sustained. Orders impugned dated
1.12.2016, 21.12.2016 and 18.3.2016 accordingly are liable to be
quashed.”
23. Now, I am coming to the issue involved in the present case.
24. From the perusal of the impugned 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 this 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.

25. In the present case, there is no consideration of the conduct of

the petitioner, therefore, impugned dismissal order dated 30.08.2014
is bad and liable to be set aside.

26. 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
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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.

27. Learned chief standing counsel has placed reliance upon the
judgment of the Apex Court in the matter of Life Insurance
Corporation of India(Supra). In the said judgment, the issue was as
to whether, in case, arising out of same accident, where an employee
has been convicted on a criminal charge and in case of conviction,
termination order may be passed or not. It was argued by the learned
counsel for the private respondents that such punishment amounts to
double jeopardy and the Apex Court after considering many
judgments said that it cannot be said to be double jeopardy and under
such circumstances, even after punishment, on conviction order or
dismissal, removal may be passed passed, therefore, this case is not
relevant to decide the present controversy.

28. 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.

29. 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.

30. In the matter of Murari Lal Rathore(Supra) the Court after

considering this issue has also held as under:

“19. Ordinarily, when such orders are quashed a liberty ought to

be granted to the disciplinary authority to pass a fresh order while
considering relevant factors i.e. conduct of the employee, gravity of
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charges and the materials available against him etc. This course,
however, would not be desirable or even permissible in the facts of
the present case since the petitioner has attained the age of
superannuation on 31.12.2018 and the contract of employment has
come to an end.

24. A conspectus of above observations made by the Supreme

Court would clearly reveal that 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.
25. This Court in Bhagirathi Singh Vs. State of U.P. and others,
MANU/UP/3076/2018 : 2018 (8) ADJ 538 has also observed as
under in Para-18:-
"18. It is settled legal position that the employer and employee
relationship is dependant only upon the contract of
employment. The moment, the contract comes to end as the
person is retired from service on attaining certain age under the
rules, the relationship comes to an end. In the event of employer
of employee relationship coming to an end, the rules have to
specifically provide for continuation of proceedings in the first
instance and that too with the sanction of higher authorities in
the second instance because it will be seen as exceptional
circumstance where disciplinary authority would record that for
reasons genuine and convincing the disciplinary proceedings
could not be concluded and, therefore, it is required that the
proceedings be continued even after retirement, but there is no
such provision under the rules governing the disciplinary
proceedings. In this context, learned counsel for the respondent
could not point out any rule, circular or executive instructions
even, which may provide for continuance of disciplinary
proceedings even after the retirement of the petitioner or any
other employee of the corporation. Then again, the question
will be that how a punishment is to be imposed as the
punishment is awarded only against an employee unless and
until employer and employee relationship exists, the order of
punishment upon a retired employee cannot be imposed except
otherwise provided under the rules. Even in matters of
recovery, it is not open for the department to deduct any
amount from retiral dues in absence of any rules giving any
such authorization.

26. From the above discussions, it is apparent that since the

petitioner has attained the age of superannuation and no provision
in law is shown which permits the disciplinary authority to
examine the conduct of an employee, now, so as to pass an order of
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punishment, there would be no purpose in remitting back the

matter to the disciplinary authority for a fresh consideration of
petitioner's conduct leading to his conviction. Such a course would
be legally impermissible.

27. The relief to be granted to the petitioner in such circumstances

will have to be determined by this Court in view of what has been
observed in para-127 of the Constitution Bench judgment in
Tulsiram Patel (supra). The Court will have the jurisdiction to pass
necessary order in respect of the penalty, which in its opinion
would be just and proper in the circumstances of the case.

28. In the facts of the present case the petitioner has been
dismissed from service on 18.3.2016 and has attained the age of
superannuation on 31.12.2018. He has admittedly not worked
during this period. The proceedings against the petitioner,
consequent upon his conviction in an offence under Section 307
I.P.C. cannot be said to be without jurisdiction or arbitrary, on
facts. The order of dismissal has been found wanting on account of
non-consideration of petitioner's conduct leading to his conviction
and has been set aside, for such reasons. The petitioner would be
entitled to all service and retiral benefits including continuity
excluding salary between 18.3.2016 to 31.12.2018 by applying the
principles of 'no work no pay'. It is however reiterated that the
period between 18.3.2016 to 31.12.2018 shall be counted for
payment of retiral benefits.”

31. Therefore, in light of facts of this case and legal proposition

set by the Courts, respondents are directed to pay the post retiral
dues to petitioner including pension and other dues permissible
under the law within three months from the date of production of
certified copy of this order.

32. Accordingly Writ Petition is allowed.

33. No order as to costs.

Order Date :- 18.09.2023

ADY

Digitally signed by :-
AMAR DEEP YADAV
High Court of Judicature at Allahabad,
Lucknow Bench