1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Misc. writ petition No. 515/2003 (Old No. 5111/2000) Vishwa Nath …………..Petitioner Versus State of U.P. and others ………… Respondents Hon’ble Tarun Agarwala, J. Heard Mr. Siddharth Sah, Advocate holding brief of Mr. K.S.Verma,the learned counsel for the petitioner and Sri Subhash Upadhyay, the learned brief holder for the State. The petitioner was working as a “Beldar” and on certain criminal charges, was arrested, which led to the passing of a suspension order dated 12th March, 1999. The petitioner was, subsequently, convicted on 16.11.1999 and sentenced to imprisonment for 7 years. Based on the conviction order, the pettioner’s services was terminated by an order dated 26.11.1999. The petitioner, being aggrieved by the said order, has preferred the present writ petition. The learned counsel for the petitioner submitted that under the U.P. Government Servant (Discipline and Appeal) Rules, 1999, a major penalty or dismissal has been passed against the petitioner, which could not have been passed without holding a proper enquiry and without giving a notice and an opportunity of hearing, which admittedly has not been done. The learned counsel submitted that consequently, the order of dismissal was passed in violation of the principles of natural justice and consequently, the order of dismissal is liable to be set aside. The learned counsel for the petitioner further submitted that against the conviction order, a criminal appeal has been filed before the Allahabad, High Court, which is pending consideration in which the order dated 25th 2 November, 1999 has been passed staying the execution of the sentence. Having heard the learned counsel for the parties, this court is of the opinion that no enquiry or an opportunity of hearing is required to be given before passing the order of dismissal. For facility, the provision of Article 311 of the Constitution of India is quoted hereunder: 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. [Provided that where it is proposed after such enquiry, 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-] 3 (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.] Article 311 of the Constitution of India provides that where a major penalty for dismissal or removal or reduction in rank is passed, then an opportunity of hearing is required to be given before such an order of penalty could be passed. However, the proviso provides that where a dismissal is on the ground of conduct, which has led to his conviction on a criminal charge, then no such enquiry or opportunity of hearing is required to be given. The same principle is squarely applicable to the petitioner. Even otherwise sub-clause 4 of Rule 4 of the Government Servant (Discipline and Appeal) Rules, 1999 clearly provides that pursuant to a conviction, an order of dismissal or removal of service can be passed 4 forthwith. For facility, the said provision is extracted hereunder; “(4) Government servant shall be deemed to have been placed or, as the case may be, continued to be placed under suspension by an order of the Authority Competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding forty eight hours and is not forthwith dismissed or removed consequent to such conviction.” In view of the aforesaid, this court is of the opinion that where an employee is convicted on account of a criminal charge, which leads to an imprisonment for more than 48 hours, no enquiry is required to be made by the employer and that the order of removal or dismissal could be passed forthwith. Such order, so passed would not violate the principles of natural justice as enumerated under Article 14 of the Constitution of India. The learned counsel for the petitioner further submitted that the conviction of the petitioner has been stayed by the appellate court and, therefore, there is no order of conviction, which would result in the dismissal of the petitioner. In my view, the submission of the learned counsel for the petitioner cannot be accepted. The Hon’ble Supreme Court in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association (1992) 3 SCC 1 has held that the stay order does not wipe out the order in question but only keeps the matter in abeyance till the pendency of the appeal. Consequently, in the light of the aforesaid judgment, this court is of the opinion that the conviction order has not as yet been set aside by a court of law and, therefore, till such time as the conviction of 5 the petitioner is in existence, the employer was justified in passing of the order of dismissal. In view of the aforesaid, this court does not find any error in the impugned order. The writ petition fails and is dismissed. (Tarun Agarwala, J.) Dated: 27.3.2010 Nishant