CIVIL WRIT JURISDICTION CASE No.12980 OF 2005 SURYADEO SINGH, SON OF LATE SAHDEO SINGH, RESIDNT OF VILLAGE-DHARUPUR, P.S.-NOKHA, DISTRICT-ROHTAS. ---------------------------------------APPELLANT VERSUS 1. THE STATE OF BIHAR. 2. THE SECRETARY, HUMAN RESOURCES (SECONDARY EDUCATION) DEPARTMEN, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. 4. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, PATNA DIVISION, PATNA. 5. THE DISTRICT EDUCATION OFFICER, ROHTAS, SASARAM. 6. THE HEADMASTER, ADARSH HIGH SCHOOL, SEMARA (DINARA), DISTRICT-ROHTAS(SASARAM). ----------------------------RESPONDENTS WITH CIVIL WRIT JURISDICTION CASE NO. 14346 OF 2005 VIJAY KUMAR SHARMA, S/O SRI DHARM NATH SHARMA, R/O VILL.+POST-VISHUNPURA, BHAYA-MAHARAJGANJ, DISTT.- SIWAN. -----------------------------------APPELLANT Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR, SECONDARY EDUCATION, GOVT. OF BIHAR, PATNA. 3. THE DEPUTY DIRECTOR, SECONDARY EDUCATION, GOVT. OF BIHAR, PATNA. 4. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, SARAN DIVISION, SARAN. 5. THE DISTRICT EDUCATION OFFICER, SIWAN. -----------------------------RESPONDENTS ***************** For The Petitioner : Mr. Shyama Prasad Mukherjee, Senior Advocate (in CWJC No. 12980/05) Mr. Shanti Pratap, Advocate Mr. Amarendra Kumar Pathak, Advocate For The Petitioner : Mr. Rajendra Prasad Singh, Senior Advocate (in CWJC No. 14346/05) Mr. Rajeev Kumar Singh, Advocate For The Respondent : Mr. Prabhakar Tekriwal, Standing Counsel No. 1 (In Both the Cases) *********** P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kr Jha, J. Both these writ applications involve a common question and, therefore, having been heard together are being disposed of by this common judgment. 2 2. In C.W.J.C. No. 12980 of 2005, the prayer of the petitioner is to quash the order, dated 06.09.2005 passed by the Director, Secondary Education, Bihar, Patna whereby and whereunder the services of the petitioner Suryadeo Singh has been terminated on the ground of his being convicted for offences under Section 307/149 Indian Penal Code (IPC) in Sessions Trial No. 36 of 1985/2 of 2004 sentencing him to undergo rigorous imprisonment for a period of five years. 3. The facts in brief of the writ petitioner Suryadeo Singh is that he was appointed on the post of Assistant Teacher in Adarsh High School, Semara in the district of Rohtas on 02.01.1972 while the said school was a private high school. Subsequently, the school was taken over by the Government with effect from 02.10.1980 and the petitioner was retained as a Government servant with effect from 02.10.1980 by continuing him as the Assistant Teacher of the aforementioned school. The petitioner while he was continuing in service as an Assistant Teacher was made an accused in a criminal case arising out of Nokha Police Station Case No. 187 of 1983 and in the said criminal case after submission of the charge sheet, as the offences related to Section 307/149 IPC in addition to other allied offences u/s 147/148/149/323 IPC the case was committed to the Court of Sessions in Sessions Trial No. 36 of 1985/2 of 2004, the petitioner and his other family members were convicted for offences under Section 307/149 of the Indian Penal Code by a judgment dated 17.05.2005 passed by the Additional Sessions Judge, Fast Track Court No. I, Rohtas at Sasaram and was sentenced to undergo 3 rigorous imprisonment for a period of five years. The petitioner was thereafter also taken into custody on 17.05.2005 and could be released on bail on 14.06.2005 in view of an interim order dated 26.5.2005 passed by this Court when he had filed the Criminal Appeal No. 354 of 2005. 4. It is the further case of the petitioner Suryadeo Singh that thereafter he had submitted his joining report and the matter related to his joining was referred to the Controlling Authority, namely, the Regional Deputy Director of Education. It appears that the matter relating to his joining had remained pending consideration of the higher authorities and it was in this transaction that when the issue was examined by the Director, Secondary Education, the impugned order dated 6.9.2005 was passed terminating the services of the petitioner on the ground that he had been convicted by the Sessions Court. In the impugned order infact it has been clearly stated that the service of the petitioner were being terminated on account of his being convicted by the Sessions Court and as such his request for joining the services after being released on bail by the appellate Court was not permissible in view of the circular no. 7820, dated 28.10.2003 and as such following the government decision in the aforementioned circular, dated 28.10.2003, the services of the petitioner were being terminated. 5. In the second writ application C.W.J.C. No. 14346/2005 the facts related to the writ petitioner Vijay Kumar Sharma are that he was appointed as an Assistant Teacher by the Director, Secondary Education in view of the recommendation of the 4 Vidyalaya Seva Board by an order dated 15.11.1983 and he was posted in Boys High School, Mohanpur. Subsequently, he was transferred to Boys High School, Parsagardh, Akama in the district of Rohtas in January, 1986 and while he was continuing as an Assistant Teacher of the said school, he was made accused in Darunda Police Station Case No. 49 of 1994 for offences under Section 307/323 and other allied sections of the Indian Penal Code. The petitioner Vijay Kumar Sharma with other co-accused persons were put on trial after the police had submitted the charge sheet against them and the Trial Court had framed charges under Sections 307/148 IPC as well as under Sections 307/149 IPC in Sessions Trial No. 340 of 1995 and the Court of Additional Sessions Judge Fast Track Court No. IV, Siwan by a judgment dated 06.08.2003 had convicted the petitioner Vijay Kumar Sharma under Section 325 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of one year as also sentenced to pay a fine of Rs. 500/- and in default to further undergo imprisonment for a further period of six months. 6. It is the further case of the petitioner Vijay Kumar Sharma that thereafter he had preferred Criminal Appeal No. 404 of 2003 and this Court by an order dated 25.08.2002 had confirmed the provisional bail granted to him by the Trial Court as also had stayed the realization of fine. It, however, appears that some query was made by the District Education Officer, Saran from the headmaster of the school of the petitioner vide letter dated 26.08.2003 and in response thereto the headmaster had explained that though the petitioner Vijay Kumar Sharma had been convicted 5 and sentenced by the Trial Court, but as he was released on provisional bail and as such he never been taken into custody. From the averment made in the writ application, it transpires that the matter was thereafter referred by the District Education Officer to the Director, Secondary Education and the Office of the Director, Secondary Education had sought for a detailed report as with regard to the conviction and sentence of petitioner Vijay Kumar Sharma and when a reply thereto was sent by the District Education Officer, the impugned order dated 06.09.2005 was passed by the Director, Secondary Education terminating the services of the petitioner on the ground of his being convicted in a criminal case in the light of the circular of the Chief Secretary of the Government of Bihar contained in letter no. 7820 dated 28.10.2003. It is against this order of termination of services dated 06.09.2005 that the petitioner Vijay Kumar Sharma had filed this writ application on 22.11.2005 with a prayer that the said order dated 06./09.2005 should be quashed and the petitioner be reinstated in service. 7. Counter affidavits have been filed in both the cases and the stand taken therein by the respondents is same and identical inasmuch as it has been stated that both the petitioners were convicted and sentenced by the Trial Court, the appointing authority, namely, the Director, Secondary Education has passed the order of their removal/termination in the light of the Government decision contained in a circular of the Chief Secretary of the Government of Bihar in letter no. 7820, dated 28.10.2003 by which all the departmental heads of the State Government were 6 directed to take action in terms of the proviso (a) to Article 311 (2) of the Constitution of India envisaging that the Government servant may be dismissed or removed or reduced in rank without being subjected to departmental proceeding on the ground of conduct which has led to his conviction on a criminal charge. In nut shell, the stand of the respondents is that in view of the judgment of conviction and order of sentence, the appointing authority, the Director, Secondary Education was satisfied that the conduct of both the petitioners which led to their conviction on a criminal charge was sufficient for their removal from services. 8. Mr. Shyama Prasad Mukherjee as also Mr. Rajendra Prasad Singh learned senior counsels for the petitioners have submitted that the said order of removal of services of the petitioner was not sustainable only on the ground that the same was passed without giving any notice/any opportunity of hearing to them. It has further been submitted by them that the conviction which was made by the Sessions Court was with regard to a charge which was not connected to their official duty, and therefore, the bald application of the Government circular, dated 28.10.2003 in their cases which is reflected to complete non-application of mind by the Director, Secondary Education. They have further submitted that the severest of the punishment of removal from service of the petitioners ought to have not passed because it is not the requirement of law including the Service Rule that the moment any Government servant is convicted in a criminal case, he must be removed from service. In other words, they have also raised the issue of quantum of punishment. Reliance in this connection by 7 both the Senior Counsels have been placed in the case of Kailash Chander Asthana vs. State of U.P. and Others, reported in AIR 1988 SUPREME COURT 1338 and in the case of Union of India vs. Parma Nanda, reported in AIR 1989 SC 1185 as also a judgment of this Court in the case of Sarju Prasad Singh vs. The State of Bihar & Others, reported in 1987 PLJR 285 which according to them lay down a law that even after conviction in a criminal case, the authorities are required to look into the factum of allegations and the conduct of the Government servant which led to their conviction for the purposes of inflicting the punishment and further that in all cases of conviction and sentence in a criminal case it would not be a correct exercise of discretion to remove the person concern from services. 9. Mr. Prabhakar Tekriwal, learned Counsel appearing on behalf of the State in both the cases, however has raised a preliminary objection with regard to maintainability of both the writ applications on the ground of statutory alternative remedy. In this regard he has submitted that both the petitioners were teachers of high school whose appointing authority was the Director, Secondary Education under the BIHAR Rajkiyakrit Madhyamik Vidyalaya Sewa Shart Niyamavali, 1983 hereinafter referred to as Sewasharta Niyamavali and once an order of punishment of removal from service has been passed by the Director, the forum of statutory appeal against such order in terms of Rule 9(2) of aforesaid Sewasharta Niyamavali was before the Principal Secretary of the Human Resource Development Department. He has also submitted that the impugned orders can 8 not be faulted on the ground that no notice and/or opportunity of hearing was given to the petitioners before passing of the impugned order of removal from services inasmuch as neither under Article 311(2) of the Constitution of India nor under the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as the “Rules”), there is a requirement of service of notice to an affected employee before taking a decision for removing them from services. It has been also submitted by them that once it was found from judgment of conviction of the petitioners that they were convicted and sentenced by the Sessions Court in heinous crime such as attempt to murder or causing hurt, under Section 307 IPC and/or 325 IPC, the same by itself was sufficient to indicate that the conduct of the petitioners holding the post of teachers was not such which was good enough to retain them in Government services. Mr. Tekriwal had also taken a stand that a judicial review of the quantum of punishment by this Court under Article 226 of the Constitution of India was also not permissible. In this regard he had also placed reliance on the judgment of the Apex Court in the cases of Union of India and Another vs. Tulsiram Patel (& other analogous cases), reported in AIR 1985 SC 1416 and Jose Antonio Cruz Dos R. Rodriguese Vs. Land Acquisition Collector 1996 (6) SCC 749. 10. In the light of the aforementioned submissions, the first question which needs to be examined is whether the writ petitions are maintainable in absence of the petitioners not exhausting the statutory remedy of appeal. It is not in doubt that both under the Sewa Shatra Niyamavali 1993, there is a provision of appeal 9 against the order of punishment, but then a question arises as to whether both the writ petitioners can be non-suited on the ground of not filing their appeal against the impugned orders of the removal of services before filing of the writ petitions. This question, however, as with regard to the maintainability of the writ application should not detain this Court, in view of the fact that it is an admitted position that as the orders of punishment came to be passed without compliance of the principals of natural justice. It is not disputed by the learned State Counsel that the Director, Secondary Education before passing the impugned orders had not issued any notice and/or given any opportunity of hearing. Therefore, once it is found that the impugned orders have been passed in complete breach of principles of natural justice, this Court can not shut its doors only because the petitioners did not file their appeal. Way back, the Apex Court in the case of State of U.P. Vs. Md. Nooh reported in AIR 1958 SC 86 had held that writ applications under Article 226 of the Constitution of India would be maintainable before the High Court even in those case where the statutory remedy of appeal has not been invoked by the petitioners when the order passed and assailed is either in violation of the principle of natural justice or is wholly without jurisdiction. The aforesaid view of the Apex Court has been reiterated from time to time in series of judgments as was noticed by the Apex Court itself in the case of Whirlpool Corporation Vs. Registrar of Trade Marks Mumbai and others reported in (1998) 8 S.C.C. 1 wherein their Lordships had held as follows:- 10 "........Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged........" 11. That apart it is not in doubt that both the impugned orders for removing the petitioners from service were passed on the ground of their being convicted in criminal cases on the strength of a government decision contained in a circular issued by the Chief Secretary of the Government of Bihar, dated 28.10.2003. Such circular containing the government decision for taking actions against convicted employees having been issued by the Chief Secretary and the appellate authority being the Principal Secretary of the Human Resource Development Department, subordinate in rank to the Chief Secretary, was/is not expected to take any contrary decision specially when the Director, Secondary Education while passing the impugned orders has only sought to abide by the government decision contained in circular issued by the Chief Secretary. Thus, infact the appeals filed by the petitioners would have been a futile exercise. 11 12. As a matter of fact, when a query was made by this Court from the learned State Counsel as to whether the departmental Secretary (Principal Secretary in the Human Resource Development Department) can take an independent decision in the matter of removal of service of the petitioners as directed an order by the Director, Secondary Education in the impugned order, he fairly conceded that in presence of the circular of the State Government, it was not likely that the Principal Secretary could have taken a different decision. 13. Considering the aforementioned aspects, this Court holds that the writ applications are maintainable and the petitioners can not be non-suited only on the ground that they had not exercised their alternative statutory remedy. 14. The next question would be as to whether the order of removal from service of the petitioner on the ground that they had been convicted in criminal cases can be passed against them without giving any notice and/or opportunity of hearing. It is quite elementary and infact also well settled that any order visiting the persons with civil and evil consequences must be preceded by strict observance of the principal of natural justice. This has been the consistent view of the Apex Court and this Court, and reference in this connection may be made to the judgment of the Supreme Court in the case of S. L. Kapoor vs. Jagmohan and others, reported in AIR 1981 SUPREME COURT 136 where the subject with regard to the compliance of the principal of natural justice has been dealt with quite exhaustively with a conclusion that compliance of principle of natural justice is an integral part of 12 rendering justice and ante-thesis of arbitrariness in any form, an avowed object and guiding principle of Article 14 of the Constitution of India. 15. There can be no two views that when a permanent Government servant is removed from service on any ground, he is entitled to protection of Article 311 (2) of the Constitution of India which lays down as follows :- 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State – (1) xx xx xx (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. [ Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed : Provided further that this clause shall not apply -----] (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) xx xx xx 13 16. From the very tenor of Article 311 (2) of the Constitution of India, it would be clear that in the event the Government servant is sought to be inflicted punishment of dismissal, removal of reduction in rank, it has be preceded by an inquiry after informing the charges against him and giving him a reasonable opportunity of being heard in respect of each of the charges. 17. It is true that under proviso to Article 311(2) of the Constitution of India, it has been envisaged that such inquiry after framing of charges and giving a reasonable opportunity of being heard in respect of those charges would not be necessary where a person is dismissed or removed or reduced in rank on a ground of the conduct which has led to his conviction of a criminal charge. However, there is nothing in Article 311 of the Constitution of India which says that even notice is not required to be given to such a persons who is sought to be dismissed or removed or reduced in rank on the ground of his conviction of a criminal charge. In the considered opinion of this Court, proviso (a) to Article 311(2) of the Constitution of India only suggests that the requirement of a regular departmental enquiry which begins with the framing of charge, continues with the leading of evidence by way of giving opportunity of hearing and concluding it by an appropriate order of punishment is not required to be gone into in the cases in which government servants are removed from service on the ground of conviction by a court of law in a criminal case. It therefore appears to this Court that as a matter of fact even when the procedure of a regular departmental proceeding would not be required to be followed in case of dismissal, removal or reduction in rank on the 14 ground of conviction in a criminal cases, even in those cases it would be absolutely necessary to issue notice and/or afford an opportunity of hearing to the concerned person that there is a tentative decision to inflict him with such punishment of dismissal, removal or reduction in rank because his conduct on the basis of the specific criminal charge which led to his conviction did not render him fit to continue in the Government service or the post which he was holding prior to his conviction. 18. Such interpretation of provision (a) to Article 311(2) of the Constitution of India infact also gets support from the provisions of the Rules wherein a detailed mechanism has been provided under rule 17 to 19 by way of procedure for imposing penalties under Rule 14, being minor and major penalties. In this context it would be useful to quote the relevant provisions of the Rules, which read as follows : - "14. Minor and Major Penalties - The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a government servant, namely:- Minor Penalties:- (i) censure; (ii) withholding of promotion; (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; (iv) reduction to a lower stage in the time-scale of pay for a period not exceeding three years, without cumulative effect. (v) withholding of increments of pay; Major Penalties:- (vi) Save as provided for in clause(iv), reduction to a lower stage in time scale of pay for a specified period, with further directions as to whether or not the government servant will 15 can increments of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay; (vii) reduction to a lower time-scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of