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Hari Narain v. Chief Engineer Pwd And Others - WRIT - A No. 9899 of 1989 [2004] RD-AH 100 (27 February 2004)


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                                                                                                       Court no.21

Civil Misc. Writ Petition No.9899 of 1989

Har Narain             Versus              Chief Engineer,Public Works,Department

                                                       U.P. Lucknow & others.

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

The petitioner was working as Beldar in PWD, Jhansi. He was arrested for an offence under Sections 302/34,307/34, 147,148, 302/120-B IPC at P.S. Kotwali, District Lalitpur and was sent to jail. Thereafter, he was realeased on bail on 9.7.1987. He was convicted and sentenced by the Session Judge, Lalitpur vide order dated 19.8.87 which was challenged by the petitioner by way of filing Criminal Appeal No. 2421 of 1987. He was released on bail in the said criminal appeal by this Court on 23.9.87. In the mean time, the services of the petitioner have been terminated in view of pendency of criminal case.On being granted bail in appeal, he moved an application before the Executive Engineer, National Highway Division, P.W.D., Jhansi for reinstatement of his service but he was not reinstated in service. He was informed that as the appeal against the order of conviction is pending in this Court, as such no action is taken in the matter till the disposal of the appeal.

The contention of the counsel for the petitioner is that neither any notice nor any information nor any order relating to the suspension or termination of the services of the petitioner has been passed by the respondents but  they are not paying the subsistence allowance to the petitioner.

By means of this writ petition, the petitoner has prayed for a direction in the nature of mandamus commanding the respondents to continue him on the post of Beldar and to pay salary to him and  for quashing the order dated 15.2.1989  (Annexure-6 to the writ petition)  passed by respondent no.2. He has also prayed for issuance of a direction in the nature of certiorari quashing of the order dated 23.10.1989 ( Annexure 7 to the writ petition).

The counsel for the petitioner has relied upon a decision of Sada Nand Misra Vs. State of U.P. and another, 2000(1) AWC 180 (LB) in which it has been held relying upon the case of Union of India Vs. Tulsi Ram Patel, (1995) 3 SCC-398  that order of removal from service of a Government servant cannot be removed from service on conviction and sentence on criminal charge by trial Court  if conviction and sentence have been stayed by High Court in appeal.

The counsel for the petitioner  has further relied upon the case of  Jafar Alam Versus Collector, Jaunpur and others, 2002(2) AWC-1659 in which it has been held that  the petitioner was dismissed from service but no enquiry was held and no opportunity of hearing was given to him, the principles of natural justice are violated.

He has also relied upon the case of  Chandra Shekhar Saxena Vs. Director of Education ( Basic), U.P. Lucknow and others, 1997 (3) E.S.C. 1942 ( All) (L.B.) in which the  this Court while considering Rule 49-A (2) of the Civil Services ( Classification, Control and Appeal) Rules, 1930 expressed the view that the Government servant detained in custody for criminal charges exceeding 48 must be deemed to be under suspension and remedy for Government servant who is under deemed suspension may approach the appointing authority for modifying or revoking the order.

Admittedly, the petitioner has been convicted by the competent court of law in a criminal case and no material was brought on record on the basis of which it can be said that the services of the petitioner can not be terminated. In such cases if the domestic enquiry is not held it will not vitiate the termination etc.  The aforesaid cases cited by the counsel for the petitioner are clearly distinguishable. He is now 66 years of age and can not be reinstated in service.  

However, there is another  distinguishable feature in the instant case i.e. when the petitioner was terminated from service he was 51 years of age in 1989, now he has passed the age of superannuation. In so far as consequential benefits are concerned, it is not in dispute that the appeal is pending and the order of conviction may either be up held or quashed by this Court. If the order of conviction is upheld the petitioner shall not be entitled to any relief and if it is quashed, he will become entitled to the monetary benefits etc.

For the reasons stated above, the petition is disposed of with a direction that in case the petitioner is acquitted in appeal, he shall be entitled to the benefit of service from the date of his termination.

The petitioner may move an application for deciding the appeal at an early date.

No order as to cost.

Dated 27.2.2004



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