IN THE HIGH COU RT OF JUDICATURE AT PATNA CWJC No.19045 of 2010 DILIP PASWAN, SON OF LATE CHEDI PASWAN, RESIDENT OF VILLAGE-HASANPURA,JITWARPUR, P.S.-SAMASTIPUR, P.O.-JITWARPUR, DISTRICT- SAMASTIPUR (BIHAR). ....Petitioner. VERSUS 1. THE UNION OF INDIA THROUGH THE MINISTRY OF FINANCE, NEW DELHI. 2. THE ACCOUNTANT GENERAL (A AND E) BIHAR, PATNA. 3. SR. DEPUTY ACCOUNTANT GENERAL (A) OFFICE OF ACCOUNTANT GENERAL (A & E) PATNA. ...Respondents. ----------- For the petitioner : Rana Baljit Singh, Ebrahim Kabir, Advocates. For the Accountant General : Madhuresh Prasad, Advocate. ---------- 2 01.12.2010 Heard learned counsel for the petitioner, learned counsel for the Union of India and learned counsel for respondent nos. 2 and 3 the Accountant General, Bihar and the Senior Deputy Accountant General. Petitioner has challenged order of the Central Administrative Tribunal, Patna Bench, Patna dated 08-04- 2010 whereby O.A. No.243 of 2010 has been dismissed and no interference has been made by the CAT with the order of dismissal passed by the Disciplinary Authority on 24-10- 2003 and the appellate order dated 12-03-2004 whereby the 2 petitioner’s services were terminated on account of his conviction in a criminal case lodged on the allegation of taking bribe as a public servant. Although, the learned Tribunal has rejected the case of the petitioner on technical grounds of limitation and that the representation filed in the year 2008 was addressed to Disciplinary Authority who may not interfere in the matter after the dismissal order had been confirmed by the Appellate Authority, we have heard the parties not on technicalities, but on the merit of the claim made by the petitioner that his service has been wrongly terminated only on account of conviction when admittedly criminal appeal preferred by him is pending. For this purpose petitioner has placed reliance upon three judgments of this Court passed by different learned Single Judges of this Court. However, the principle emerging from those judgments is same which has been laid down in the case of Ram Nandan Prasad Versus State of Bihar reported in 1995(1) PLJR, 399. In that case the petitioner’s appeal was pending like in the present case and petitioner’s counsel placed reliance upon Government of Bihar’s circular dated 23rd August, 1963 which contained a stipulation that since appeal is a 3 continuation of the trial, action under proviso to Article 311(2) should be taken only after criminal appeal has been disposed of or time limit for filing appeal has expired. Clearly this Court held that the State of Bihar which was respondent in that case was bound by its own policy decision contained in the circular noticed above. There is no difficulty in appreciating the aforesaid principle that an employer by policy decision may curtail his own powers for good reasons. So far as the present case is concerned, here the Ministry of Home Affairs appears to have issued OM No.F. 43/57/64-AVD (iii) dated 29th November, 1966 amended by another O.M. dated 19th September, 1975 which requires the authorities that in a case where a Government Servant has been convicted in a court of law for an offence which renders his further retention in public service prima facie undesirable, the disciplinary authority on the basis of conduct leading to conviction in a criminal charge may issue an order imposing particular penalty without waiting for the period of filing an appeal, or, if an appeal has been filed, without waiting for the decision in the first court of appeal. On behalf of petitioner no policy decision or circular 4 binding the respondents with the duty to wait till the disposal of the criminal appeal was placed before us. Learned counsel for the respondents has also drawn our attention to a judgment of the Supreme Court in the case of Basanti Prasad Versus Chairman Bihar School Examination Board reported in 2009(6) SCC 791. In that case the widow of a dismissed employee preferred a writ petition in 2007 to challenge termination order passed in 1992 on the ground that her husband was ultimately acquitted in appeal and, therefore, he should be reinstated in service from due date. The High Court dismissed the writ petition on ground of inordinate delay and laches, but this was not approved by the Apex Court on the principle that the dismissed employee or his widow could not have questioned the order of dismissal which was passed in view of conviction, till the order of conviction was set aside by a superior forum. No doubt the issue involved in this case was not directly involved in the case of Basanti Prasad (supra), but it lends assurance to the submission advanced on behalf of respondent that an order terminating service of convicted employee can be a valid order but it may be questioned after the conviction is set aside in appeal. 5 We are in agreement with the submissions advanced by learned counsel for the respondents that the petitioner will now have a cause of action only when if there is acquitted in the criminal appeal preferred by or on behalf of the convicted employee. The writ petition is, therefore, dismissed with liberty to the petitioner that he may pursue his remedy against termination of service in the event of acquittal in the criminal appeal. PN ( Shiva Kirti Singh, J.) (Dr. Ravi Ranjan,J.)