IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.3349 OF 2007 VYASMUNI TRIPATHY, S/O LATE CHANDRADEO TRIPATHY, R/O VILLAGE KHAJUHAN, P.S RASULPUR, DISTRICT SIWAN. …………………PETITIONER. VS 1.THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY,GOVT. OF BIHAR, PATNA. 2.THE SECRETARY TO GOVERNMENT OF BIHAR, DEPARTMENT OF SECONDARY EDUCATION, NEW SECRETARIAT, PATNA. 3.THE DIRECTOR, SECONDARY EDUCATION, BIHAR SECONDARY EDUCATION OFFICE, BUDHAMARG, PATNA. 4.THE REGIONAL DEPUTY DIRECTOR, EDUCATION, SARAN, DIVISION, CHAPRA. 5.THE DISTRICT EDUCATION OFFICER, SIWAN. 6.THE HEADMASTER, MADHUSUDAN HIGH SCHOOL, CHHITAULI, SIWAN. ………………………RESPONDENTS. For the petitioner: Mr.J.P. Shukla, Sr. Adv and Mr. R.K. Shukla. For the State: Mr. J.P. Karn, Sr. Adv. AAG- 4 and Mr. A.K Dubey, A.C to AAG-4. ----------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (12.08.2011) Mihir Kumar Jha, J. Heard Mr. J.P Shukla, learned senior counsel for the petitioner and learned counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “(i)For quashing the office order issued by the Director, Secondary Education, Bihar, Patna vide his Memo No. 2780 dated 02.12.2004 whereby and where under the petitioner has been dismissed from the Government service illegally taking recourse of the above circular retrospectively and to provide all consequential reliefs.” Mr. Shukla would submit that there can be no 2 dispute that the petitioner, a teacher in the Government school having been subjected to criminal charge for the offences punishable under section 302/34 IPC had been held guilty and sentenced to life imprisonment by the trial Court in judgment dated 31.07.2002, whereafter when he was taken into custody on 01.08.2002 and remained in jail till 4.10.2002. He has also submitted that the petitioner was subsequently placed under suspension on 11.2.2003 w.e.f. 01.08.2002 on the ground of giving a false information of his being ill in the aforementioned period, i.e. 1.8.2002 to 4.10.2002 in contemplation of departmental proceeding but all of a sudden the petitioner was sought to be dismissed from service on the ground that he was a convicted person for offences punishable under Section 302/34 IPC, wherein, he had been sentenced to rigorous imprisonment for life as also subjected to fine of Rs. 2000/-. According to Mr. Shukla the basis for such an order of dismissal from service of the petitioner was the Government circular dated 28.10.2003 requiring removal of convicted person from service without undergoing any departmental proceeding. It is this order of dismissal of the petitioner from service which has been assailed in this writ application on the ground that the petitioner was not given any show cause notice and yet was inflicted a major punishment without holding any departmental proceeding. Mr. Shukla, learned 3 counsel for the petitioner in this context has placed reliance on a judgment of this Court in the case of Suryadeo Singh vs The State of Bihar and Ors, reported in 2011(1) PLJR 28. Mr. Dubey, learned counsel for the State on the other hand would submit that when the petitioner had suppressed the information about his being convicted and taken into custody, he had been placed under suspension but then as the petitioner was also a convicted person having been sentenced to rigorous imprisonment for life there was no requirement of undergoing a departmental proceeding or even affording show cause notice before dismissing him from service. To that extent he has not only placed reliance on the Government circular dated 28.10.2003, but has also referred to two judgments of the Apex Court in the case of Viveka Nand Sethi vs Chairman, J&K Bank Ltd. & Ors reported in 2005(3) PLJR (SC) 55 and Surendra Prasad Singh vs The State of Bihar and Ors reported in 2001(1) PLJR (SC) 251. In the considered opinion of this Court the dismissal of the petitioner from service without any show cause notice is bad and cannot be upheld by this Court. It is not in doubt that the petitioner is an employee whose service conditions are governed by Bihar Rajkiyakrita Madhyamik Vidyalaya (Sewa Shart Niyamawali 1983 hereinafter referred to as the 1983 Rules under which services of a teacher governed by the aforesaid 1983 Rules can be 4 dispensed with only in the manner prescribed therein. Under Chapter-V of the aforementioned Rules 9(1) lays down as follows:- 9- vuq'kklfud dkjZokbZ& 9¼1½ ljdkjh lsodksa ds fo:n~/k vuq'kklfud dkjZokbZ ds fy;s fofgr fu;e ,oa izfdz;k dk vuqlj.k djrs gq,& ¼d½ jktdh;d`r ek/;fed fo|ky; ds iz/kkuk/;kid ds fo:n~/k vuq'kklfud dkjZokbZ djus] mUgsa fuyfEcr djus ,oa oSls vuq'kklfud dkjZokbZ djus] mUgsa fuyfEcr djus ,oa oSls vuq'kklfud dkjZokbZ ds QyLo:i n.M nsus dh 'kfDr fusns'kd] ek/;fed f'k{kk dh gksxhA ¼[k½ jktdh;d`r ek/;fed fo|ky; ds lHkh dksfV ds lgk;d f'k{kdksa ds fo:n~/k vuq'kklukRed dkjZokbZ djus] mUgsa fuyfEcr djus rFkk oSls vuq'kklukRed dkjZokbZ ds QyLo:i n.M nsus dh 'kfDr {ks=h; mi f'k{kk funs'kd dks gksxh ¼x½ jktdh;d`r ek/;fed fo|ky; ds f'k{kdsRrj deZpkfj;ksa ¼prqFkZoxhZ; deZpkfj;ksa dks NksM+dj½ ds fo:n~/k vuq'kklukRed dkjZokbZ djus] fuyafcr djus rFkk oSls vuq'kklukRed dkjZokbZ ds QyLo:i n.M nsus dh 'kfDr ftyk f'k{kk inkf/kdkjh dks gksxh- ¼?k½ prqFkZoxhZ; deZpkfj;ksa ds fo:n~/k vuq'kklukRed dkjZokbZ djus] mUgsa fuyafcr djus rFkk oSls vuq'kklukRed dkjZokbZ ds QyLo:i n.M nsus dh 'kfDr fo|ky; ds iz/kkuk/;kid dks gksxhA** Admittedly on the date on which the impugned order came to be passed, the petitioner was to be governed by the provisions of Bihar Subordinate Civil Services Classification Control and Appeal Rules which was the relevant Rule for the State Government employees as made applicable to the teachers under 1983 Rules. Under Rule 2 of the aforesaid Discipline and Appeal Rule of 1935, it has been specifically provided that the penalty of removal from service or dismissal from service could be made only after following the prescribed procedure laid down for dismissal, removal or reduction as per Rule 55 of the Civil Services (Classification Control and Appeal) Rules and to that extent it would be relevant to quote Rule 2 of the Bihar and Orissa Subordinate Services (Discipline and Appeal)Rules 1935 which reads as 5 follows:- “2.The following penalties may, for good and sufficient reasons, be imposed upon any member of a Subordinate Service, viz; (i) Censure; (ii)Withholding of increments or promotion, including stoppage at an efficiency bar; (iii)Reduction to a lower post or time- scale or to a lower stage in a time scale; (iv)Recovery from pay of the whole or part of any pecuniary loss caused to government by the negligence or breach of order; (iv-a)Compulsory retirement; (v)Fine; (vi)suspension. (vii)Removal from the Civil Service of the crown, which does not disqualify from future employment; (viii)Dismissal from the Civil Services of the Crown which ordinarily disqualifies from future employment; Provided that the penalty of fine shall be imposed only on menials and inferior servant: Explanation 1.-The discharge- (a)of person appointed on probation, during or at the end of the period of probation, on grounds arising or at the specific conditions laid down by the appointing authority, e.g. want of vacancy, failure to acquire prescribed special qualification or to pass prescribed test; (b)of a person appointed, otherwise, than under contract, to hold a temporary appointment, on the expiration of the period of the appointment. (c)of a person engaged under contract in accordance with the term of his contract does not amount to removal or dismissal within the meaning of this rule. Explanation 2.-The discharge of a probationer, whether during or at the end of the period of probation for some specific fault or on account of his unsuitability for the service amounts to removal or dismissal within the meaning of the rule. Explanation 3.-Compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement does not amount to a penalty within the meaning of this rule. Note.1-For the procedure to be followed before an order of dismissal, removal, compulsory retirement or reduction can be passed, see Rule 55 of the Civil Services 6 (classification, control and Appeal) Rules. In drawing up proceedings and conducting departmental enquiries, the instructions contained in Rules 160 to 170 of the Bihar and Orissa Board‟s Miscellaneous Rules, 1939]1 are to be followed, except where more detailed instructions have been framed by the department concerned. Note 2.-For the procedure to be followed before an order imposing the following penalties can be passed, see Rule 55-A of the Civil Services (Classification, Control and Appeal)Rules, published with notification no. 5172-A, dated the 3rd June, 1950.-) (i) Censure. (ii)withholding of increment or promotion, including stoppage at an efficiency bar. (iii)Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of order. In view of the above, it would be also necessary to refer to Rule 55 of the Civil Services (Classification, Control and Appeal) 1930 Rules which reads as follows:- “Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement [or reduction] shall be passed on a member of a service (other than an order based on facts which have led to his conviction in a criminal Court or by a Court-Martial) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and on any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires of if the Authority concerned so direct an oral inquiry shall be held. At that inquiry oral evidence shall be 7 heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer, conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing be waived, where there is a difficulty in observing exactly the requirement of the rule and those requirements can be waived without injustice to the person charged. The full procedure prescribed in this rule not be followed in the case of a probationer discharged in the circumstances described in the circumstances described in Explanation II to rule 49. In such cases, it will be sufficient if the probationer is given an opportunity to show cause in writing against the discharge after being apprised of the ground on which it is proposed to discharge him and his reply duly considered before orders are passed. As would be found from the perusal of aforementioned Rules that no person can be removed from Government service without holding departmental proceeding but then an exception is also provided therein, under which such departmental proceeding will not be required if the order of removal is based on conviction by criminal Court or by Court martial. In nutshell the perusal of aforementioned statutory provisions would lead to an automatic and inevitable conclusion that the services of a teacher 8 governed by 1983 Rules can be dispensed with only by holding departmental proceeding and in fact the same would be absolutely in keeping with the mandate of the proviso to Article 311 of the constitution of India laying down as follows:- “311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. 1[(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 2[***]: 3[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)If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.] 9 Precisely this was the question which led the State Government, to in fact reconsider its earlier executive instruction which was prevailing prior to 2003, inasmuch as, in paragraph no. 9 of the executive instructions dated 23.08.1963, it was provided that:- "Under proviso (a) to Article 311(2) of the Constitution a Government servant may be dismissed or removed or reduced in rank without being put through departmental proceedings on the ground of conduct which has led to his conviction on a criminal charge. Government desire that this proviso should be fully utilised. But an appeal being continuation of the trial, action under this proviso should not be taken until-(1) the criminal appeal has been disposed of or (2) the time limit for filing an appeal has expired." Such provision made in the year 1963 by an executive instruction, it was required to be reconsidered in view of the amendment made by 42nd amendment in the Constitution of India dispensing the requirement of second show cause notice and consequently the State Government by an executive instruction dated 28.10.2003 had substituted the aforementioned Clause 9 of the circular dated 23.08.1963 by making following provisions:- i=kad&3@lh&114@2003 dk0&7820 @ fcgkj ljdkj dkfeZd ,oa iz”kklfud lq/kkj foHkkx izs’kd] Jh ds0,0,p0 lqczgef.k;u~] eq[; lfpo A lsok esa] ljdkj ds lHkh foHkkx lHkh foHkkxk/;{k iVuk&15- fnukad& fo’k; & vkijkf/kd dnkpkj esa fyIr ljdkjh lsodksa ds ekeys esa foHkkxh; dk;Zokgh ,oa vfHk;kstuA 10 egk”k;] mi;qZDr fo’k;d rRdkyhu fu;qfDr foHkkx ds i=kad III/vkj 1&102@63&,&10158] fnukad& 23 vxLr] 1963 ds lanHkZ esa funs”kkuqlkj dguk gS fd mDr ifji= esa vkijkf/kd dnkpkj esa fyIr ljdkjh lsodksa ds ekeys esa dkjZokbZ ds fy, izfdz;kvksa dk fu/kkZj.k fd;k x;k Fkk A ek0 iVuk mPp U;k;ky; }kjk lh0MCyw0ts0lh0 ua0 8196@2003 ¼lqczr clq cuke~ fcgkj ,oa vU;½ esa fnukad& 02-09-2003 dks ikfjr vkns”k esa vafdr eUrO; ds vkyksd esa fopkjksijkUr ik;k x;k gS fd mi;qZDr ifji= dh dafMdk&¼9½ dk vafre okD; ekuuh; loksZPp U;k;ky; }kjk ,l0,y0ih0 ¼lh0½ ua0 684@1995 ls mn~Hkqr flfoy vihy la0 2992@1995 ¼fMiqVh MkbjsDVj vkWQ dkWysft;sV ,sMqds”ku ¼,MfefuLVªs”ku½ enzkl cuke ,l0 ukxwj ehjk½ esa fnukad 24-02-1995 dks ikfjr fu;eu ¼,0vkbZ0vkj0 1995 lqizhe dksVZ 1364½ ds vkyksd esa foyksfir djus ;ksX; gks x;h gS A vr% mi;qZDr ifji= dh dafMdk&¼9½ ds fuEukafdr vafre okD; dks foyksfir fd;k tkrk gS%& “But an appeal being continuation of the trial, action under this proviso should not be taken until (1) the criminal appeal has been disposed of or (2) the time limit for filing an appeal has expired.” mi;qZDr :i esa foyksiu ds i”pkr~ mi;qZDr i=kad III/vkj 1&102@63&,&10158] fnukad& 23 vxLr] 1963 dh dafMdk&¼9½ la”kksf/kr gksdj fuEukafdr :i esa izHkkoh jgsxh %& orZeku izko/kku la”kksf/kr izko/kku (9) Under proviso (a) to Article 311(2) of the Constitution a Government servant may be dismissed or removed or reduced in rank without being put through departmental proceedings on the ground of conduct which has led to his conviction on a criminal charge. Government desire that this proviso should be fully utilised. But an appeal being continuation of the trial, action under this proviso should not be taken until- (1) the criminal appeal has been disposed of or (2) the time limit for filing an appeal has expired. (9) Under proviso (a) to Article 311(2) of the Constitution a Government servant may be dismissed or removed or reduced in rank without being put through departmental proceedings on the ground of conduct which has led to his conviction on a criminal charge. Government desire that this proviso should be fully utilised. 11 fo”oklHkktu] g0@& vLi’V ds0,0,p0 lqczgef.k;u] eq[; lfpo A A question therefore, would arise as to whether in view of Article 311(2) or in terms of Service Rules as applicable in the cases of government servant in the State of Bihar, including teachers in Government School, an employee who is convicted on a criminal charge can be removed from service even without issuance of a show cause notice? Let it be made clear, that there is no dispute on the issue that no departmental proceeding would be required to be conducted in a case where the person is sought to be removed on the ground of being convicted on a criminal charge but can such a convicted employee be removed by way of dismissal from service even without giving a notice is the only base of contention. It was this aspect which was gone into by this Court in the light of the provisions made in the service Rules in the case of Suryadeo Singh Vs The State of Bihar & Ors, 2011(1) PLJR 28, wherein, it was held as follows:- “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 in fact 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 12 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 principle of natural justice has been dealt with quite exhaustively with a conclusion that compliance of principle of natural justice is an integral part of rendering justice and ante-thesis of arbitrariness in any form, an avowed object and guiding principle of Article 14 of the Constitution of India." This Court further considering the scope of Bihar Government Servants (Classification, Control and Appeal) Rules 2005 which came by way of substituting the earlier 1935 Rules had held that there would be a requirement of issuing a show cause notice and in this regard it was held as follows:- 23. The second limb of submission of the learned Government Advocate that in case the second proviso of giving an opportunity for making representation on the proposed penalty is read as “shall” and not “may” by treating it to be a mandatory, would thus be in the teeth of the provisions made in Article 311(2) of the Constitution of India is equally unsustainable. There infact appears to be no conflict between second proviso to Article 311(2) and first proviso to Rule 20 and infact both can very well co-exist. Article 311 (2) infact stops after making a provision that in certain cases including conviction of a government servant holding of departmental enquiry by framing of charge and giving an opportunity of hearing to the delinquent before inflicting punishment would not be necessary. Article 311(2) infact does not lay down that when an order of punishment is to be passed against the government servant for inflicting a penalty of dismissal, removal or reduction in rank on the ground of his being convicted on a criminal charge, it would also not require the government servant to be informed of the proposed penalty and giving an opportunity to make representation against the proposed penalty. To that extent, the provisions made in first proviso to rule 20 is only supplemental in nature and does not seek to supplant the provisions in Article 311(2) of the Constitution of India. The submission of the learned Government Advocate that the 13 expression “may” used in the English translation in the second proviso should mean that the provision is directory and can also be not expected for any ground, namely, such second proviso in clause 20 seeks to make the provision for compliance of the principle of natural justice in cases where the order of punishment is sought to be passed against a government servant who has been convicted on a criminal charge. By now, it is well settled that the exclusion of the principle of natural justice has to be specifically provided in the Statute or else such provisions of natural justice will have to be read into it. Reference in this connection may be made not only to the aforementioned case of S. L. Kapoor (supra) wherein it has been held that:- "In our view the principles of natural justice know of no exclusively rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced." Again in the case of Rash Lal Yadav Vs. State of Bihar reported in 1994(2) P.L.J.R. (SC) 76 it had been held as :- "What emerges from the above discussion is that unless the law expressly or by necessary implication excludes the application of the rule of natural justice, courts will read the said requirement in enactments that are silent and insist on its application even in cases of administrative action having civil consequences." This view infact gets a further support from the judgment of Apex Court in the case of Basudeo Tiwari Vs. Sido Kanhu University reported in 1999(1) PLJR (SC)30 : "The law is settled that non- arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and 14 reasonable which are the components of fair treatment. The conferment of absolute power to terminate the services of an employee is an antithesis of fair, just and reasonable treatment. this aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corpn. Vs. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600 :AIR 1991 SC 101. In order to impose procedural safeguards, this Court has read the requirement of