IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13657 of 2008 RAJESHWAR RAM, Son of Late Dev Ram, resident of village-Sarba, P.O.- Maldah, P.S.-Barbigha, District-Sheikhpura. ............Petitioner. Versus 1. The State of Bihar. 2. The Secretary, Human Resources Development, New Secretariat, Baily Road, Patna. 3. The Director, Primary and Secondary Education, Government of Bihar, New Secretariat, Patna. 4. The Regional Deputy Director of Education, Munger Division, Munger. 5. The District Superintendent of Educaiton, District-Sheikhpura. .........Respondents. ----------- 2/ 02.04.2010 Heard the counsel for the petitioner and the counsel appearing for the State. Prayer of the petitioner in the present writ application is for quashing of the order dated 26.05.2008 passed by the District Superintendent of Education, Sheikhpura (respondent No. 5), whereby the petitioner has been dismissed from service. Further prayer is for a direction to the respondents to revoke the order of suspension and make full payment of salary for the period, he had remained under suspension as well as for grant of consequential benefits like salary and other allowances for the period, he remained out of service on account of his dismissal. Petitioner is a primary school teacher. He was made an accused in Barbigha P.S. Case No. 57/1995 for the offence under Section 302 and other sections of the Indian Penal Code as well as Section 27 of the Arms Act. The District Superintendent of Education, Munger 2 issued an office order No. 1632225 dated 12.051995, whereby the petitioner was put under suspension and during the period of suspension, subsistence allowance was made available to him. The Additional Sessions Judge-I, Munger, vide his judgment and order dated 28.11.1998 passed in Sessions Case No. 546 of 95 convicted the petitioner for offence under Section 302 and sentenced to undergo rigorous imprisonment for life. Cr. Appeal no. 590/98 was preferred by the petitioner against the judgment and order of conviction and he was granted bail, vide order dated 11.12.1998. The Criminal Appeal preferred by the petitioner is still pending in the High Court. Petitioner was still under suspension, vide order dated 26.05.2008 contained in Letter No. 660/Sheikhpur, issued by the District Superintendent of Education, Sheikhpura, he has been dismissed from his service. Petitioner has challenged the impugned order on the ground that without issuing any notice to show cause or initiating disciplinary proceeding against him, an order of dismissal has been issued. The impugned order has also been challenged on the ground that it has not been issued in conformity with the direction issued by the Personnel and Administrative Reforms Department, vide Circular No. 3/M- 162/05 KA 2324 dated 10.07.2007. The Circular of the Personnel Department clearly states that in case criminal case is initiated against a government employee, simultaneously a 3 disciplinary proceeding should also be initiated against him, only after conclusion of the disciplinary proceeding an order of dismissal should be passed against an employee, who has been convicted and sentenced by the criminal court. The impugned order has also been challenged on the ground of natural justice and equity. In the counter affidavit filed on behalf of the respondents-State, it is stated that the then District Magistrate, Sheikhpura, having information regarding conviction of the petitioner under Section 302 and other offences awarding punishment of R.I. for life, he recommended, the then District Superintendent of Education, Sheikhpura, to dismiss the petitioner with immediate effect, without asking any show cause and explanation. The District Superintendent of Education, Sheikhpura obeying the order of the then District Magistrate, did not think it necessary to seek any show cause and explanation from the petitioner and issued impugned order, dismissing him from the service. The counsel for the petitioner has submitted that the dismissal order issued by the District Superintendent of Education, Sheikhpura indicates total non-application of mind. This has also been admitted in the counter affidavit that the District Superintendent of Education has issued dismissal order in compliance of the direction issued by the District Magistrate. The D.S.E, being employer of the petitioner, was only 4 competent to issue such order, subject to his own satisfaction, but he did not exercise his discretion. Since, order of dismissal has been issued on the direction of the District Magistrate, it shows that D.S.E. has not exercised his jurisdiction. The order is bad and fit to be quashed on this Count. It has also been submitted that the impugned order has been issued in violation of the Resolution of the Personnel Department, as without issuing any show cause and without initiating departmental proceeding, dismissal order has been passed. In the counter affidavit also there is an admission that no show cause was issued to the petitioner and simply on the direction of the District Magistrate, dismissal order was passed. Counsel appearing for State has placed reliance on decisions reported in AIR 1995 SC 1364 (Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, and AIR 1997 SC 3531 (Union of India and Ors. Vs. Ramesh Kumar) So far these judgments are concerned, undoubtedly, there is provision and dismissal order can be passed against a government employee, in case of his conviction in a criminal case. But there being an admission in the counter affidavit that in violation of government’s circular, impugned dismissal order has been passed, this is another reason for holding the impugned order illegal and without jurisdiction. I find that the impugned order is fit to be quashed. 5 However, the respondents may issue fresh order, complying with the provision in the government circular. This application is allowed. Sanjeet/ (Mridula Mishra, J.)