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PATNA HIGH COURT
Mihir Kumar Jha, J.
Suryadeo Singh
Versus
State Of Bihar
CIVIL WRIT JURISDICTION CASE No. 14346 of 2005
Decided On : MAY 14, 2010
Service Law-Departmental Proceeding-Bihar Rajkiyakrit Madhyamik Vidyalaya Sewa Shart Niyamavali, 1983-Rules 17 to 20 read with Constitution of India-Article 311(2)-Dismissal on ground of conviction in a criminal case; requirement of notice and/or opportunity of hearing-even when the procedure of a regular departmental proceeding would not be required to be followed in case of dismissal, removal or reduction of rank on the ground of conviction in a criminal case, even in those cases it would be absolutely necessary to issue notice and/or afford an opportunity of hearing to the concerned person that there is a tentative decision to inflict him with such punishment of dismissal, removal or reduction in rank because his conduct on the basis of the specific which led to his conviction did not render him fit to continue in the government service or the post which he was holding prior to his conviction-Rule 20 with proviso laying down giving an opportunity to the government servant an opportunity of making representation against the proposed penalty on the ground of her being convicted on a criminal charge by itself goes to show that the principle of natural justice was sought to be followed and not to be excluded-dismissal in the present case being without notice cannot be sustained and set aside accordingly-matter remitted back to the Director, Secondary Education. (Paras 17 & 23)
Service Law-Departmental Proceeding-Quantum of punishment-punishment of dismissal on the ground conviction in criminal case-it requires an application of mind by the disciplinary authority in each case as to what was the charge in the criminal case and whether on account of bringing of such charge in the criminal case leading to conviction whether the government servant has rendered himself unfit to continue in government service or become entitled to be given certain punishment lesser than removal or removal from service. (Para 29)
Mihir Kr Jha, J.
1. Both these writ applications involve a common question and, therefore, having been heard together are being disposed of by this common judgment.
2. In C. W. J. C. No.12980 of 2005, the prayer of the petitioner is to quash the order, dated 06.09.2005 passed by the Director, Secondary Education, Bihar, Patna whereby and whereunder the services of the petitioner Suryadeo Singh has been terminated on the ground of his being convicted for offences under Sec.307/149 Indian Penal Code (IPC) in Sessions Trial No.36 of 1985/2 of 2004 sentencing him to undergo rigorous imprisonment for a period of five years.
3. The facts in brief of the writ petitioner Suryadeo Singh is that he was appointed on the post of Assistant Teacher in Adarsh High School, Semara in the district of Rohtas on 02.01.1972 while the said school was a private high school. Subsequently, the school was taken over by the Government with effect from 02.10.1980 and the petitioner was retained as a Government servant with effect from 02.10.1980 by continuing him as the Assistant Teacher of the aforementioned school. The petitioner while he was continuing in service as an Assistant Teacher was made an accused in a criminal case arising out of Nokha Police Station Case No.187 of 1983 and in the said criminal case after submission of the charge sheet, as the offences related to Sec.307/149 IPC in addition to other allied offences u/s 147/148/149/323 IPC the case was committed to the Court of Sessions in Sessions Trial No.36 of 1985/2 of 2004, the petitioner and his other family members were convicted for offences under Sec.307/149 of the Indian Penal Code by a judgment dated 17.05.2005 passed by the Additional Sessions Judge, Fast Track Court No. I, Rohtas at Sasaram and was sentenced to undergo rigorous imprisonment for a period of five years. The petitioner was thereafter also taken into custody on 17.05.2005 and could be released on bail on 14.06.2005 in view of an interim order dated 26.5.2005 passed by this Court when he had filed the Criminal Appeal No.354 of 2005.
4. It is the further case of the petitioner Suryadeo Singh that thereafter he had submitted his joining report and the matter related to his joining was referred to the Controlling Authority, namely, the Regional Deputy Director of Education. It appears that the matter relating to his joining had remained pending consideration of the higher authorities and it was in this transaction that when the issue was examined by the Director, Secondary Education, the impugned order dated 6.9.2005 was passed terminating the services of the petitioner on the ground that he had been convicted by the Sessions Court. In the impugned order infact it has been clearly stated that the service of the petitioner were being terminated on account of his being convicted by the Sessions Court and as such his request for joining the services after being released on bail by the appellate Court was not permissible in view of the circular no.7820, dated 28.10.2003 and as such following the government decision in the aforementioned circular, dated 28.10.2003, the services of the petitioner were being terminated.
5. In the second writ application C. W. J. C. No.14346/2005 the facts related to the writ petitioner Vijay Kumar Sharma are that he was appointed as an Assistant Teacher by the Director, Secondary Education in view of the recommendation of the vidyalaya Seva Board by an order dated 15.11.1983 and he was posted in Boys High School, Mohanpur. Subsequently, he was transferred to Boys High School, Parsagardh, Akama in the district of Rohtas in January, 1986 and while he was continuing as an Assistant Teacher of the said school, he was made accused in Darunda Police Station Case No.49 of 1994 for offences under Sec.307/323 and other allied sections of the Indian Penal Code. The petitioner Vijay Kumar Sharma with other co-accused persons were put on trial after the police had submitted the charge sheet agains
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