IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1344 of 2009 1. THE STATE OF BIHAR THROUGH THE SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPTT., BIHAR, PATNA 2. THE SECRETARY HUMAN RESOURCES DEVELOPMENT DEPTT., BIHAR, PATNA 3. THE DIRECTOR SECONDARY EDUCATION, BIHAR, PATNA 4. THE DEPUTY DIRECTOR SECONDARY EDUCATION, BIHAR, PATNA 5. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION BHAGALPUR DIVISION, BHAGALPUR 6. DISTRICT EDUCATION OFFICER BHAGALPUR 7. THE HEADMASTER SHERMARI HIGH SCHOOL, PIRPAINTI, BHAGALPUR. … Respondents/Appellants Versus AYODHYA PRASAD SINGH S/O LATE DAMODAR PRASAD SINGH R/O VILL.- SHERMARI PIRPAINTI, DISTT.- BHAGALPUR. ,, Petitioner/Respondent -------- For the appellants :Mr. Manu Shankar Mishra (GP X) :Mr. Shambhu Nath, A.C. to GP X For the respondent : Mr. Chakrapani, Adv. -------- PRESENT: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R ( 13.04.2010 ) As per Mihir Kumar Jha, J. I.A. No. 6706 of 2009 Having heard learned counsel for the parties as also taken into account the facts and circumstances mentioned in this application, 2 the delay of 215 days in filing of this appeal is, hereby, condoned. 2. I.A. No. 6706 of 2009 is, accordingly, allowed. L.P.A. No. 1344 of 2009 3. Since we have condoned the delay, we have with the consent of the parties also proceeded to hear the counsel on merit of the case for its disposal at the stage of admission itself. 4. In this intra-court appeal, the State of Bihar and its officials have assailed the order dated 12.2.2009 passed by the learned Single Judge in CWJC No. 9216 of 2006 allowing the prayer made therein as with regard to quashing of the order dated 18.5.2006 passed by the Director Secondary Education dismissing the respondent-writ petitioner from service on the ground of his conviction in a criminal case. 5. The relevant facts which have already been taken note of by learned Single Judge need not be repeated inasmuch it is clear that the respondent-writ petitioner was convicted for offence under Section 302 and other allied sections of the Indian Penal Code as also Section 27 of the Arms Act and Section 3/4 of the Explosive Substance Act by judgment of the trial Court dated 14.12.2001 in Sessions Trial No. 161 of 2000 and was sentenced to undergo life imprisonment. It is also apparent that the said judgment is still pending consideration before this Court in Criminal Appeal No. 19 of 2002 wherein the sentence of the respondent- writ petitioner has not been suspended rather he has 3 been only granted provisional bail. 6. The claim of the respondent-writ petitioner is that after being granted bail by this Court in Criminal Appeal he had approached for acceptance of his joining but the same was never allowed inasmuch as Director Secondary Education had called for the report from the District Education Officer whereafter the order was passed on 18.5.2006 dismissing the respondent-writ petitioner from service with retrospective date 14.12.2001. Such order having assailed by the respondent-writ petitioner has been set aside by the learned Single Judge by the impugned order with a consequential direction to payment of his post-retiral benefit in spite of judgment of conviction and sentence as also pendency of the criminal appeal. 7. In our considered opinion, while retrospective dismissal from service on the ground of conviction was not permissible in law but then admittedly, the respondent-writ petitioner was continuing in service on 12.7.2005 when the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 had already come into force. Rule 20 thereof reads as follows:- “20. Special procedure in certain cases- Notwithstanding anything contained in rule 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 4 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, before any orders are made in any case under this rule." 8. Admittedly, the respondent-writ petitioner was never given any notice in terms of the aforementioned Rule 20 before passing of the impugned order dated 18.5.2006 and as such the view taken by the learned Single Judge, though for a different reason namely, violation of the Rule 20 of the Rules, cannot be faulted with. 9. Accordingly, this Court would now direct the Director Secondary Education to give notice to the petitioner both in terms of Rule 20 of the aforementioned rules read with Section 43 A of the Bihar Pension Rule wherein also conviction in criminal case can be made a ground of forfeiting either the entire pension or the part thereof. 5 10. It is made clear that whatever the retiral dues has already been paid to the respondent-writ petitioner shall not be recovered on account of the order to be passed by the Director Secondary Education but it would be open for the Director to pass an order for withholding the pension including gratuity either full or in part after considering the show-cause reply of respondent-writ petitioner. 11. Needless to emphasize that ultimate pensionary benefit shall depend on the outcome of the Criminal Appeal and for the moment the petitioner will not be paid any thing beyond whatever has been paid to him by way of retiral benefit till the Director considers the whole matter in the indicated above. 12. The Director Secondary Education while passing his order however must keep in mind what was observed in paragraph nos. 24 to 29 in order dated 14.5.2010 in CWJC No. 12980 of 2005 (Suryadeo Singh vs. State of Bihar & Ors.) and CWJC No. 14346 of 2005 (Vijay Kumar Sharma vs. State of Bihar & Ors.) which reads as follows:- “24. In the aforementioned context, when this Court examines the purport of the rule 20 which supports that a non-obsten clause and comments with a proviso laying down giving an opportunity to the government servant an opportunity of making representation against the proposed penalty on the ground of his being convicted on a criminal charge by itself goes to show that the principle of natural justice was sought to be followed and not to be excluded. Thus, this Court has no hesitation in 6 rejecting the said statement of the learned Government Advocate. The learned Government Advocate submits that in the case of inflicting punishment against the government servant on the ground of his being convicted on a criminal charge, no notice is required to be given. 25. As a matter of fact, such notice to a government servant sought to be inflicted penalty on the ground of being convicted on a criminal charge would serve a sanguine purpose inasmuch as first of all he will be in a position to say as to whether he is the person who has been convicted or not and consequently he would be still in a position to pursue that though he is convicted, the charge against him in the criminal case was not such which can have straightaway led to drawing adverse inference against his conduct of his being government servant. This Court may elucidate this aspect that a person about whom the government or the appointing authority comes to know from any source that he has been convicted and, therefore, had proceeds to inflict an order of punishment, even if he is not the person and some other person by the same name was convicted in the criminal case would at least give that government servant an opportunity to say actually such order of conviction was never passed against him and that he was never subjected to any criminal trial. Yet again, that government servant against whom such penalty is sought to be inflicted will be in a position to say that such charge was actually not in any way such a misconduct even as per the Rules which require inflicting of a punishment. For example, a government servant driving a car parks it in a non-parking zone and is convicted by imposing a fine. Now, if that government servant is not to be given an opportunity by way of notice and/or making representation against the proposed penalty, he would be actually punished even for such a charge which does not amount to misconduct as per the Conduct Rules. There may be any number of examples and specially when the principle of natural justice does not loose their application on the ground that hearing would make no difference. Judged from 7 this angle, this Court is of the view that it would really serve the ends of justice if a convicted government servant is at least afforded an opportunity by way of notice to submit his explanation as with regard to the factum and the nature of his conviction on a criminal charge which infact is also sought to be achieved by the expressed provisions made in second proviso to rule 20 of the Rules. 26. The reliance placed by the learned Government Advocate in the case of Tulsi Ram (supra) will have no application on the facts of this case because that case was basically arising out of a situation which is contemplating under rule 20(ii) of the Rules inasmuch as in those cases the government had come to a specific finding while inflicting punishment against those remaining members of the force, who had participated in a riot without holding of departmental proceeding by way of a regular enquiry against them was not possible. The case of Tulsi Ram is not an authority relating to inflicting of punishment on a government servant convicted on a criminal charge. 27. The last submission of the Counsel for the petitioners also merits consideration for a simple reason that in the present case itself, there are two types of conviction and sentence. The petitioner in the first case has been convicted for an offence under Section 307 of the Indian Penal Code and sentence to undergo rigorous imprisonment for a period of five years whereas in the second case the petitioner Vikash Kumar Sharma has been convicted under Section 325 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for a period of one year with a further find of Rs. 500/-. In the second case, it is the defence of the petitioner Vikash Kumar Sharma that on the day of holi festival in the spur of moment some scuffle among the family members which led to the occurrence. Obviously, in the second case, the conduct of the petitioner Vikash Kumar Sharma can not be as grave as that of the petitioner in the first case where allegation against 8 him is substantiated in course of trial leading to his conviction was for a period for causing attempt to murder. True it is that the quantum of the punishment can not be made the subject matter of a judicial review under Article 226 of the Constitution of India as held in the case of B. C. Chaturvedi vs. Union of India and others, reported in (1995) 6 Supreme Court Cases 749 but if the punishment is disproportionate, the writ court can definitely ask the disciplinary authority to reconsider its decision. In the second case, on the facts read in the light of the judgment of the conviction it can not be said that only penalty of removal was adequate. The petitioner Vikash Kumar Sharma infact could have been given even a lesser punishment if he had been given an opportunity to explain himself. This Court, however, would not express any opinion on the quantum of the punishment as it has found the order of punishment itself to be bad on the ground of violation of the principles of natural justice. 28. This Court can not lose sight of the fact that both the petitioners are teachers and must have the highest regard for law and must possess the moral character of the highest character. This Court again would not like to lay down the law that conviction in cases arising out of serious charge under Section 302, 307, and other allied sections of the of the Indian Penal Code may not involve the element of moral turpitude. 29. It, however, would require an application of mind by the disciplinary authority in each case as to what was the charge in the criminal case and whether on account of bringing of such charge in the criminal case leading to conviction where the government servant has rendered himself unfit to continue in government service or become entitle to be given certain punishment lesser than removal or dismissal from service. This much has to be looked into by the disciplinary authority and was held in the case of Union of India vs. Parma Nanda, reported in AIR 1989 SUPREME COURT 1185 wherein the Apex Court has held as follows :- 9 29. We may, however, carve out one exception to this proposition. There may be cases where the penalty is imposed under clause (a) of the second proviso to Article 311(2) of the Constitution. Where the person, without enquiry is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine the adequacy of the penalty imposed in the light of the conviction and sentence inflicted on the person. If the penalty impugned is apparently unreasonable or uncalled for, having regard to the nature of the criminal charge, the tribunal may step in to render substantial justice. The Tribunal may remit the matter to the competent authority for reconsideration or by itself substitute one of the penalties provided under clause (a). This power has been conceded to the court in Union of India v. Tulsiram Patel, AIR 1985 SC 1416. “Where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what the penalty should be …………………………………..The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was to severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been infact convicted, he can also agitate this question in appeal, revision or review. If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the 10 court’s power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Das v. Union of India (AIR 1985 SC 772) this court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case.” 13. It is also observed that it would be open for the respondent- writ petitioner to make a representation within a period of four weeks from the date of receipt/production a copy of this order for claiming rest of the retirement benefit which will be properly dealt with by the Director Secondary Education, Competent Authority. 14 As noted above, it would be open for the Director Secondary Education to take into facts and circumstances into consideration for passing his fresh order as with regard to entitlement of the retirement benefit to the respondent-writ petitioner. 11 15. This appeal is accordingly allowed in part and the order of the learned Single Judge consequently is also modified to the extent indicated above. There would be no order as to costs. (Dipak Misra, CJ.) Patna High Court, Patna Dated, 13th of April 2010 NAFR/kanchan (Mihir Kumar Jha, J.)