JUDGMENT : 1. The present writ petition has been preferred for quashing of the impugned dismissal order dated 13.10.2010, for quashing of the appellate order dated 28.02.2020 and for quashing of the impugned revisional order dated 19.03.2021. 2. Learned counsel for the petitioner has submitted that the petitioner was initially appointed on the post of Untrained Lekhpal in the year 1980 and after passing the Lekhpal School Examination, the petitioner was appointed to the post of Lekhpal regularly in the year 1984. 3. During the service period, the petitioner has been convicted under Sections 302 and 506 (2) IPC. After the conviction, the impugned dismissal order has been passed under Article 311(2) (a) of the Constitution of India merely on the basis that the petitioner has been convicted in a criminal case. 4. It is submitted that the impugned order of dismissal has been passed by the disciplinary authority without applying its mind whereas as per the law settled by catena of judgments of the Hon'ble Supreme Court as well as this High Court that the disciplinary authority has to consider whether the conduct of the concerned government servant is such as justifies the penalty of dismissal, removal or reduction in grade which is not considered while dismissing the services of the petitioner. In support of his submissions, learned counsel for the petitioner has relied upon the judgments of Hon'ble Apex Court passed in the cases of Union of India and another vs. Tulsiram Patel : AIR 1985 SCC 1416, State of Jharkhand and others vs. Jitendra Kumar Srivastava and another reported in AIR 2013 SC 3383 as well as the judgments of this Court in the cases of Shyam Narian Shukla vs. State of U.P., 1988 6 LCD 530, Ratan Singh v. State of U.P. and others, [ (2013) 11 ADJ 352 ], Udai Pratap Singh v. State of U.P., [ (2014) 32 LCD 779 ], Shambhu Nath Yadav vs. Stae of U.P., [ 2016 (4) ADJ 276 ], Rajesh Dwivedi vs. State of U.P., 2018 (36) LCD 1047, Ram Kishna vs. State of U.P., (2020) 1 ADJ 862 , Murari Lal Rathore vs. State of U.P. : 2021 (6) ALJ 622. 5. 5. It is further submitted that during pendency of the present writ petition, the petitioner after attaining the age of superannuation has retired from service on 31.10.2021 and due to the dismissal order, the petitioner has not been paid any post retiral dues. 6. It is further submitted that the petitioner is entitled for the post retiral dues and in support of his submission, the learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of State of Jharkhand and others vs. Jitendra Kumar Srivastava and another reported in AIR 2013 SC 3383 , the judgment of the Hon'ble Apex Court in Civil Appeal No.1804 of 2020 : Life Insurance Corporation of India vs. Mukesh Poonamchand Shah and lastly relied upon the judgment dated 18.09.2023 passed by this Court in Writ-A No.4422 of 2015 in the case of Vishwanath Vishwakarma vs. State of U.P. through Principal Secretary, Revenue and others wherein a judgment has been passed after considering all the aspects as argued and submitted before this Court and the case of the petitioner is squarely covered by the judgment of Vishwanath Vishwakarma (supra). 7. It is further submitted that appellate and revisional orders confirming the impugned order of dismissal has been passed without application of mind and against the law. 8. On the other hand, learned State counsel has submitted that the parity of the judgment dated 18.09.2023 in the case of Vishwanath Vishwakarma (supra) prayed by the petitioner is not applicable in the present case to the extent that petitioner in that writ petition was 70 years of age whereas in the present case, the petitioner is only about 63 years of age but unable to distinguish the applicability of the judgment otherwise. 9. After hearing learned counsel for the parties, going through the record and the judgments cited above by the learned counsel for the petitioner. 10. As per the law settled by the Hon'ble Apex Court and this Court relied by the learned counsel for the petitioner wherein it has been held that the disciplinary authority/competent authority are bound to consider the conduct of the petitioner, which has led to his conviction in the sessions trial. This was the condition precedent for the competent authority to acquire jurisdiction to impose punishment of removal from service. This was the condition precedent for the competent authority to acquire jurisdiction to impose punishment of removal from service. However, in the present case, the impugned order is silent and does not show consideration of conduct of the petitioner which has led to his conviction and then to decide what punishment is to be inflicted upon him, therefore, the impugned order cannot be sustained. 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, it 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 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 from non application of mind and shows arbitrary exercise of discretion vested in the respondent No. 2 by law.” 11. Again a similar issue came up before this Court in the matter of Ram Kishan (Supra), in which an employee was convicted under Sections 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. Again a similar issue came up before this Court in the matter of Ram Kishan (Supra), in which an employee was convicted under Sections 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, 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 and reasonably."” 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, 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, 2010 (8) SCC 573 (Paras-24 and 25), Hon'ble Supreme Court explained the meaning of the words '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." 12. 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. 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 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.” 13. In the present case also the impugned order of dismissal has been passed only on the ground that the petitioner has been convicted in a criminal case but there is no opinion recorded by the disciplinary authority that the employee has been guilty of serious offence involving moral turpitude, therefore, it is not desirable or conducive in the interest of administration to retain such person in service. 14. 14. As far as the parity of payment of post retiral dues as per the judgment in the case of Vishwanath Vishwakarma (supra) which was granted to the petitioner in that writ petition by this Court and refused to grant liberty to the disciplinary authority to pass a fresh order on the ground that now there is no relation of employer and employee between the petitioner and the respondents after the retirement of the petitioner cannot pass or hold any enquiry by placing reliance on the judgment in the case 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 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, 2018 (8) ADJ 538 has also observed as under in Para18:- "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. 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 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. 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 18.03.2016 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.” 15. In the facts of the present case the petitioner has been dismissed from service on 13.08.2010 and has attained the age of superannuation on 31.10.2021. The petitioner had admittedly not worked during this period. 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 shall be entitled to all the post retiral benefits including continuity excluding salary between the period from 13.08.2010 to 31.10.2021 by applying principle of "no work, no pay". 16. In view of the facts, circumstances and discussion made hereinabove, the writ petition is allowed. 17. The impugned orders dated 13.10.2010, 28.02.2020 and 19.03.2021 are quashed and set aside. 18. The respondents are directed to ensure the payment of all post retiral dues to the petitioner within a period of two months from the date a certified copy of this order is served.