IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.15687 OF 2007. MISHRI PRASAD, S/O SUKHDEO SAH, R/O VILLAGE TRILOKPUR, P.S UCHAKAGAON, DISTRICT GOPALGANJ. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE COMMISSIONER AND SECRETARY, HUMAN RESOURCES DEPARTMENT, NEW SECRETARIATE, PATNA. 2.THE SECRETARY, HUMAN RESOURCES DEPARTMENT, NEW SECRETARIATE, PATNA. 3.THE DISTRICT SUPERINTENDENT OF EDUCATION, GOPALGANJ, DISTRICT GOPALGANJ. 4.AREA EDUCATION OFFICER, BHORE, DISTRICT GOPALGANJ. ………………………RESPONDENTS. -------------------- 03/ 14.12.2011 No one appears for the petitioner. Counsel for the State is present. The petitioner in this writ application has assailed the order of termination of his service dated 03.11.2006, whereby and whereunder, he has been dismissed from service with retrospective effect i.e. from 11.09.1987 on the ground that he had been convicted for the offence punishable under Section 302 of the Indian Penal Code. From the averment made in the writ application, it is clear that when the petitioner was subjected to Sessions Trial for charges punishable under Sections 2 302/34/307/148 IPC and was convicted sometime in the year 1987, he was placed under suspension in terms of Rule 99 of the Bihar Service Code by the order of District Superintendent of Education, Gopalganj, dated 28.09.1987. The petitioner was taken into custody on 11.09.1987, whereafter he was placed under suspension in terms of Rule-99 of the Bihar Service Code by order dated 28.09.1987. Such order of suspension despite being assailed by him in C.W.J.C No. 2386 of 1996, was not interfered by this Court and the writ application was dismissed. The petitioner is thereafter said to have undergone the period of sentence and on its completion was released on 01.08.2006. It is only thereafter that the petitioner had filed a representation for acceptance of his joining and it is on such representation that ultimately the impugned order has been passed on 03.11.2006 dismissing him from service w.e.f. 11.09.1987, the day on which he was convicted by the trial Court. Counsel for the State could not 3 point out any provision in the Bihar Government Servants (Classification, Control & Appeal) Rules 2005, which contemplates automatic termination of convicted employee. As a matter of fact, the 2005 Rules, provides at least an opportunity of hearing even to a convicted Government Servant as would be evident from the provisions of Rule-20 which is quoted hereinbelow:- “Rule 20. Special procedure in certain cases.- Notwithstanding anything contained in Rules 17 to 19- (i)where any penalty is imposed on a Government Servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii)where the disciplinary authority is satisfied for reasons to be recorded by him in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these Rules, or (iii)where the Government is satisfied that in the interest of the State, it is not expedient to hold any inquiry in the manner provided in these Rules. the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: Provided that the Government Servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (i): Provided further that the Commission shall be consulted, where such consultation is necessary, 4 before any orders are made in any case under this Rule.” The proviso to Rule-20, therefore, quoted hereinabove, will go to show that a procedure will have to be followed by the appointing Authority by at least giving a show cause notice as against the proposed punishment on the basis of conviction by a criminal Court. Rule 20, in fact when it also lays down that the disciplinary Authority may have to consider the circumstances of the case before passing his order as against a convicted Government Servant and also envisages affording opportunity of hearing against the proposed punishment to the convicted Government Servant, the net outcome of such a provision would be that an opportunity will have to be afforded even to a Government Servant before dismissing him on the ground of his being convicted by a Court of law. The nature of charges, the charge of conviction and the gravity of circumstances therefore, will have to be also taken into account in terms of Rule 20 of 2005 Rules. 5 Apparently, in the case of the petitioner nothing of this sort has happened. The petitioner, infact was simply placed under suspension by order dated 31.10.1987, when he was convicted by the trial Court and after the judgment of conviction was partly affirmed by this Court in the appeal filed by the petitioner he had undergone the period of sentence whereafter the present order of punishment by way of dismissal of his service was passed on 03.11.2006. A bare reading of the impugned order, therefore, would itself go to show that none of the safeguards and/or procedure prescribed under Rule 20 was followed by the Authorities. Infact, the impugned order as contained in Annexure-7 can not be sustained on an additional ground inasmuch as the procedure contemplated under 2005 Rules or Bihar Rajya Rajkiyakrit Prarambhik Vidyalaya Shikshak (Sthanantaran evam Anushasanik Karwai) Niyamawali- 2002 also has not been followed. It has to be noted 6 that 2002 Rules which lays down the manner of inflicting minor and major punishment against the teacher in a Primary School and the same also does not contain any provision for automatic removal of a teacher from service on account of conviction by a Court of law of criminal charge. That being so, this Court would quash the impugned order of removal of service of the petitioner and would direct the District Programme Officer Establishment, Gopalganj to place the case of the petitioner before the District Education Establishment Committee, which would take a final decision keeping in view that the petitioner is a convicted person who had completed qualifying service ten years in between 1976 to 1986, the minimum qualifying period of service for earning pension under Bihar Pension Rules before he had been suspended in the year 1987 and was removed from service in the year 2006. As a matter of fact, the petitioner seems to have also reached the age of superannuation only during the pendency of 7 this writ application and therefore, a conscious decision in terms of Rule 43 of Bihar Pension Rules will have to be taken in the case of the petitioner as with regard to his entitlement, if any, in terms of Bihar Pension Rules applicable to the post of teachers and his being a convicted person. The petitioner will not be entitled to any financial benefit unless a final decision is taken in the manner indicated above by the District Education Establishment Committee which must make its best endeavours to pass a final order within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)