Feeling aggrieved by the judgment and order dated 2nd February 2012 passed by the learned single Judge in CWJC No. 7031 of 2007, the respondents State of Bihar and others have preferred this Appeal under Clause 10 of the Letters Patent.

2. The respondent writ petitioner joined the service under the State of Bihar as a Clerk on 5th November 1986. At the relevant time, a criminal prosecution in connection with Kako P.S. Case No. 64 dated 19th July 1981 for offence punishable under Section 307 IPC was pending against the writ petitioner. Unaware of the same, the writ petitioner was appointed as a Clerk in 1986. By the judgment and order dated 11th September 1989, the trial court convicted the writ petitioner for offence punishable under Section 307 IPC and sentenced him to undergo rigorous imprisonment for six years. The said conviction and sentence were confirmed in Appeal. In Criminal Revision No. 347 of 1995 filed before this Court, on 12th November 1999, the conviction was altered to one under Section 326 IPC, and the sentence was reduced to rigorous imprisonment for one year and a fine of Rs. 500/-. Pursuant to the said order, the writ petitioner surrendered and underwent the sentence imposed upon him.

3. In view of his conviction and his incarceration, by order dated 2nd February 2001, the writ petitioner was deemed to have been under suspension with effect from 11th April 2000 (the date of his imprisonment). On 4th April 2002 the writ petitioner was directed to show cause why for his conviction and imprisonment in a criminal case he should not be dismissed from service. Pursuant to the enquiry held against the writ petitioner, he was dismissed from service on 16th July 2005. The said order was confirmed in Departmental Appeal.

4. Feeling aggrieved, the writ petitioner approached this Court under Article 226 of the Constitution in above CWJC no. 7031 of 2007.

5. The learned single Judge has allowed the writ petition. According to the learned single Judge, the writ petitioner was not under obligation to disclose the factum of the pending criminal prosecution at the time of his entry in service; nor was he under obligation to inform the authority about his conviction and sentence and imprisonment; the incident in question was of the date prior to his employment which had no impact on the administration; as employee he had good service record. The learned single Judge also observed that the incident had occurred on the spur of a moment and the assault was unintentional. The writ petitioner, therefore, could not have been dismissed from service for the act not related to his service or not having impact on his service. Consequently, the learned single Judge has directed the appellants to reinstate the writ petitioner in service with all consequential benefits including arrears of salary. Therefore, this Appeal.

6. Learned advocate Mr. Ashhar Mustafa has appeared for the appellants. He has submitted that irrespective of the fact that the incident in question had occurred prior to his entry in service or had no connection whatsoever with the service or it had no impact on the service of the writ petitioner, Article 311(2) of the Constitution empowers the State Government to dismiss, remove or reduce in rank such person on mere conviction. All that the appellants were required to follow was to give a notice to the employee and to consider the mitigating circumstances, if any.

7. Mr. Mustafa has submitted that in the present case after giving the charge sheet and after giving adequate opportunity of defence to the writ petitioner, the disciplinary authority had dismissed the writ petitioner from service.

8. Mr. Mustafa has further submitted that it is not relevant whether the incident in question occurred prior to or beyond the period of employment; nor it is relevant that the incident in question had no connection with the service of the employee. The only relevant fact is that the employee has been found to be guilty o