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HIGH COURT OF PATNA
B.N. Agrawal, J.
Ram Nandan Prasad - Petitioner
Versus
State of Bihar and others - Respondents
C.W.J.C. No. 63 of 1994
Decided On : 27.1.1995
Article 311 - Quashing of Dismissal Order - The court quashed the dismissal order of a government servant on the ground that the power under proviso (a) to Article 311(2) of the Constitution of India cannot be exercised if the delinquent government servant has preferred an appeal against the conviction, as per the government circular dated 23rd August, 1963.
Fact of the Case:
The petitioner was dismissed from service under proviso (a) to Article 311(2) of the Constitution of India on the ground of conviction in a criminal case. The petitioner had preferred an appeal against the conviction, which was admitted, and bail was granted.
Finding of the Court:
The court found that the authorities were not justified in exercising power under the proviso and passing the dismissal order before the disposal of the appeal. The court quashed the dismissal order but allowed the authority to exercise power under the proviso after the disposal of the appeal.
Issues: Dismissal under proviso (a) to Article 311(2) of the Constitution of India, appeal against conviction, government circular dated 23rd August, 1963.
Ratio Decidendi: The power under proviso (a) to Article 311(2) cannot be exercised if the delinquent government servant has preferred an appeal against the conviction, as per the government circular dated 23rd August, 1963.
Final Decision: The court allowed the writ application, quashed the dismissal order, and directed that the authority can exercise power under the proviso after the disposal of the appeal.
Heard the parties.
2. This application has been filed for quashing the order dated 28.9.1993, contained in Annexure-1 whereby purporting to act under proviso (a) to Article 311 (2) of the Constitution of India, the petitioner has been dismissed from service on the ground that he has been convicted in a criminal case.
3. Undisputedly, against his conviction, the petitioner has perferred an appeal before this Court giving rise to Criminal Appeal no. 209 of 1989 which has been duly admitted and the petitioner has been granted bail in that case, as would be evident from the order contained in Annexure-4.
4. Learned counsel appearing on behalf of the petitioner submitted that power under the aforesaid proviso cannot be exercised if against conviction, delinquent Government servant has preferred an appeal, so long the appeal is not disposed of. In this connection, my attention has been drawn towards Government circular dated 23rd August, 1963, paragraph 9 whereof lays down that since appeal is in continuation of the trial, action under the aforesaid proviso should not be taken until criminal appeal has been disposed of or time limit for filing appeal has expired. In the case in hand, from the aforesaid facts, it would appear that appeal has been already preferred and the same has been admitted in which interim order has been passed in favour of the petition. In my view of the aforesaid Government circular, authorities were not justified in exercising power under the aforesaid proviso and passing the impugned order, contained in Annexure-1.
5. Accordingly, this writ application is allowed and the order contained in Annexure-1 is hereby quashed. I may, however, observe that this order will not preclude the authority from exercising power• under the aforesaid proviso after disposal of the appeal.
6. With the aforesaid direction, this application is disposed of.
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