Source: Allahabad High Court

Why in News?

Justice Neeraj Tiwari observed that after the conviction of an employee, while passing the removal or dismissal order, there must have been consideration of the conduct of the employee.

• Allahabad High Court gave this observation in the case of Vishwanath Vishwakarma v. State of UP Through Prin. Secy. Dept. of Revenue Lko. And Ors.

What is the Background of Vishwanath Vishwakarma v. State of UP And Ors Case?

• The petitioner worked as a Lekhpal in District Sultanpur, UP.
• He was charged under several sections of the Indian Penal Code, 1860 where he was convicted for murder and unlawful assembly.
• Pursuant to the conviction, he was dismissed from his service in 2014 just a day before his superannuation.
• The petitioner filed a departmental appeal where it was  held that he will only be entitled to General Provident Fund (GPF) and all other dues will be decided by the HC.
• The petitioner then challenged this order on the grounds of Article 311(2) of Constitution of India, 1950 stating that conviction cannot be only ground for dismissal of services.

What were the Court’s Observations?

• Allahabad HC observed that the authority had not applied its mind a gave a mechanical order of dismissing the petitioner merely on the basis of his conviction hence the order related to dismissal and post-retirement dues were set aside.

What is Article 311(2)?

• About:
  • Article 311(2) reads: "No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."
• Meaning:
  • This means that a person who is employed in a civil capacity under the Union or a State government cannot be dismissed, removed, or reduced in rank without being given a reasonable opportunity to defend themselves against the proposed action.
• Reasonable Opportunity:
  • The phrase "reasonable opportunity" is crucial, as it implies that the opportunity given to the government servant must be fair, adequate, and in accordance with the principles of natural justice.
• Exceptions:
  • Article 311(2) carves out certain exceptions to the general rule.
  • 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.
  • This clause shall not apply on the following:
    • (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.

What are the Landmark Judgments?

• Union of India and another v. Tulsiram Patel (1985):
  • The Supreme Court in this case held that 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.
• Shyam Narain Shukla v. State of UP (1988):
  • The Allahabad HC 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.