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IN THE HIGH COURT OF JUDICATURE AT PATNA
MIHIR KUMAR JHA, J.
Subrata Basu, S/o Late Sri Sailesh Chandra Basu - Petitioner
Versus
The State of Bihar & Ors. - Respondents
Civil Writ Jurisdiction Case No.8196 of 2003
Decided on : 15-05-2012
SERVICE LAW - DISMISSAL FROM SERVICE - PENDING CRIMINAL APPEAL - CIRCULAR OF STATE GOVERNMENT - MODIFICATION - RETROSPECTIVE OPERATION - POWER OF APPELLATE AUTHORITY - WRIT OF MANDAMUS.
Fact of the Case:
The petitioner, a government servant, was convicted and sentenced to life imprisonment for an offence under Section 304B IPC. He was dismissed from service in terms of the proviso to Article 311(2)(a) of the Constitution of India. The petitioner challenged his dismissal, relying on a government circular dated 23.8.1963, which provided that action under the proviso to Article 311(2)(a) should not be taken until the criminal appeal was disposed of. The circular was subsequently modified by a circular dated 28.10.2003, which did away with the earlier provision. The petitioner contended that the modified circular could not be given retrospective operation and that he should be reinstated in service till the pendency of his criminal appeal.
Finding of the Court:
The court held that the petitioner's dismissal from service was justified in terms of the proviso to Article 311(2)(a) of the Constitution of India. The court also held that the modified circular dated 28.10.2003 could be given retrospective operation and that the petitioner was not entitled to reinstatement in service till the pendency of his criminal appeal. The court further held that the appellate authority, the Chief Secretary of the Government of Bihar, had not improperly exercised his power in keeping the petitioner's appeal pending till the disposal of his criminal appeal.
Issues: 1. Whether the petitioner's dismissal from service was justified in terms of the proviso to Article 311(2)(a) of the Constitution of India? 2. Whether the modified circular dated 28.10.2003 could be given retrospective operation? 3. Whether the petitioner was entitled to reinstatement in service till the pendency of his criminal appeal? 4. Whether the appellate authority, the Chief Secretary of the Government of Bihar, had improperly exercised his power in keeping the petitioner's appeal pending till the disposal of his criminal appeal?
Ratio Decidendi: 1. The court held that the petitioner's dismissal from service was justified in terms of the proviso to Article 311(2)(a) of the Constitution of India, which provides for automatic dismissal of a government servant on conviction for a criminal offence. 2. The court held that the modified circular dated 28.10.2003 could be given retrospective operation, as it was not a rule affecting or impairing vested rights. 3. The court held that the petitioner was not entitled to reinstatement in service till the pendency of his criminal appeal, as the modified circular dated 28.10.2003 had done away with the earlier provision for such reinstatement. 4. The court held that the appellate authority, the Chief Secretary of the Government of Bihar, had not improperly exercised his power in keeping the petitioner's appeal pending till the disposal of his criminal appeal, as he was entitled to consider the facts and circumstances of the case and pass such order as he thought proper.
Final Decision: The court dismissed the petitioner's application.
Heard Mr. Ravi Shankar Ganguli, learned counsel for the petitioner and Mr. Maruth Nath Roy, AC to SC-25 for the State.
2. In this writ application, the petitioner has prayed for quashing an order dated 25.6.2003 as contained in Annexure-1 passed by the Chief Secretary of the Government of Bihar directing the appeal of the petitioner against the order of dismissal from service dated 16.11.2001 passed on his conviction and sentence for life in criminal case for offence under Section 304B, 498A and 201 of the Indian Penal Code (in short I.P.C.) pending till disposal of his criminal appeal no. 523 of 2000 filed by him in this court against the judgment of the aforesaid conviction and sentence. The petitioner, by way of a consequential relief, has also sought a direction for commanding the Chief Secretary of the State of Bihar to allow his pending service appeal by setting aside the order of his punishment of dismissal from service dated 16.11.2001 (Annexure-2).
3. The facts giving rise to this writ application lie in a very narrow compass. The petitioner, while working as an Assistant in the Department of Cabinet Secretariat and Coordination Department, was made accused in a criminal case being Gardanibagh P.S. Case No. 564 of 1998 dated 17.9.1998 for offence under Section 498A/304B/201 I.P.C. The petitioner was immediately taken into custody on 18.9.1998 and was also placed under suspension by an order dated 5.11.1998 in terms of Rule 3A(c) of the Bihar & Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 (hereinafter to be referred to as ‘the 1935 Rules’) which authorizes the appointing authority to place an employee governed by the Rules under suspension in respect of criminal offence under Section 304B I.P.C. which is under investigation, enquiry or trial. In the trial which was undertaken immediately, the sessions court in Sessions Trial No. 1439 of 1998 by its judgment dated 28.9.2000 had held the petitioner guilty for offence under Section 498A, 304B and 201 of the I.P.C. and had also sentenced him to undergo rigorous imprisonment for life for offence under Section 304B I.P.C. in addition to separate sentences of three years each rigorous imprisonment for offence under Section 498A and 201 I.P.C. respectively. The petitioner, who as noted above, was taken into custody since 5.11.1998 soon after recording of F.I.R. and was in jail throughout the trial, however, was released on bail on 12.1.2001 in view of the order of this Court passed in the Criminal Appeal No. 523 of 2000.
4. The further case of the petitioner is that on 16.11.2001, in view of his being convicted and sentenced for life, was dismissed from service by the order of the competent appointing authority dated 16.11.2001. The petitioner thereafter had preferred an appeal on 3.9.2002 before the Chief Secretary being appellate authority in terms of Rule 8 of the Rules, which has been dealt and decided by the impugned order dated 25.6.2003 gist whereof is such appeal of the petitioner shall be kept pending till disposal of his Criminal Appeal No. 523 of 2000 pending before this Court.
5. In this case, initially a counter affidavit was filed by the respondents justifying the order of punishment of the dismissal of the petitioner on the ground that since the petitioner had been convicted for life in the aforementioned criminal case, he, in terms of proviso to Article 311(2)(a) of the Constitution of India, had been dismissed from service by an order dated 16.11.2001 and the appellate authority, in view of the pendency of the criminal appeal of the petitioner before this Court, had thought it prudent to await the decision of the Criminal Appeal, inasmuch as, the dismissal of the petitioner from service was based on the conviction and sentence in the Criminal Case. In the said counter affidavit, it has also been stated that the petitioner’s initial appointment also was found to be bad and in view of the direction given by this Court in LPA No. 1
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