IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.8709 of 2005 SONELAL RAI, son of late Malhu Rai, resident of village- Banjarhi, Post Office- Bathuara, Police Station-Bela, District-Sitamarhi. Versus 1. THE STATE OF BIHAR. 2. The Commissioner-cum-Secretary, Department of Homes (Police), Government of Bihar, Patna. 3. The Commissioner, Tirhut Division, Muzaffarpur. 4. The Collector, Sitamarhi. 5. The Superintendent of Police, Sitamarhi. 6. The Sub-Divisional Officer, Sitamarhi. 7. The Deputy Collector (Incharge), General Administration, Sitamarhi. 8. The Officer-in-Charge, Police Station-Bela District-Sitamarhi. For the Petitioner/s: Mr. AJEY KUMAR, Adv. For the Respondent/s: Mr. Ajay Kumar Sharma I(SC to AAG) 4. 28.6.2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner was Chokidar has challenged the order of dismissal dated 15.1.2000 issued by District Magistrate Sitamarhi, respondent no.4 was (Annexure-7 to the writ petition) by which the disciplinary authority dismissed the petitioner from services on account of Criminal Trial in which the petitioner has been convicted for the offence under Section 380 of the I.P.C. and sentenced to go for three years imprisonment. The petitioner approached this Court in appeal vide Cr. Appeal no. 471 of 1986 (D.B.) against the order of conviction 2 which was also dismissed. In pursuance of the conviction of petitioner, the Disciplinary Authority passed the order of dismissal against him from service. The petitioner filed the appeal before the Commissioner, Muzaffarpur respondent no. 3 against the order of dismissal dated 15.1.2001 which is pending for consideration. The petitioner has submitted that order of dismissal is illegal and not sustainable in law. The petitioner was not served any notice or show cause and without that the order of punishment was passed. The charges proved against the petitioner and period of sentence is not so serious which may lead to dismissal of petitioner. The Disciplinary Authority before passing the order should have considered the charges, and after consideration of the same, the proper punishment should have been passed. He has further stated that the order of punishment of dismissal is unreasonably and disproportionate and relied on two judgment reported in 2007 (1)PLJR Page-42 State of Bihar Vs. Ram Sarower Prasad and 2008 (3) S.C.C. 273. 3 In the case 2007(P) P.L.J.R. 42, this Court has held that conviction of an employee will not ipso facto lead to the dismissal, as the authority was required to consider the nature of allegation and quantum of punishment to be imposed on the delinquent employee upon a conviction which was committed by him. He has further relied upon another judgment of Supreme Court reported in (2008 Vol. III) SCC page 273 in which it has been held as follows: “ By reason of the said provision, thus, “the disciplinary authority has been empowered to consider the circumstances of the case where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge”, but the same would not mean that irrespective of the nature of the case in which he was involved or the punishment which has been imposed upon him, an order of dismissal must be passed. Such a 4 construction, in our opinion, is not warranted.” “An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. The respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence.” It is clear from view of Hon'ble Supreme Court and this Court that before passing the order of dismissal, the authority should look into the nature of charge proved before competent Criminal Court and the order of punishment awarded to the petitioner. 5 These two factors having been not considered by the disciplinary authority. As the appeal is in continuation of original proceeding as such this Court directs the Appellate Authority to examine the merit of the case i.e. of charged proved before Criminal Court, and the quantum of punishment awarded to the petitioner as to whether the impugned order is in consonance with the charge proved against the petitioner. This writ petition is disposed of with the above observations, directing to the Appellate Authority to dispose of the appeal of the petitioner within a period of six months from the date of representation/receipt of a copy of this order. This Court has not given any opinion on the merit of the present case. Accordingly, this writ petition is disposed of. Amit ( Shivaji Pandey, J. )