Patna High Court
Ram Lal SahversusThe State Of Bihar and Ors
- Decided
- Disposal
- ALLOWED
- Bench
- RITESH KUMAR
Holding
The impugned removal order dated 31‑07‑2013 is set aside as it violates Article 311(2)(b) and the procedural requirements of Rule 20, thereby breaching natural justice.
Summary
The petitioner, a former jeep driver in the Sub‑Divisional Agriculture Office, was repeatedly suspended and eventually removed from service under Article 311(2)(b) of the Constitution after being convicted in a criminal case. He challenged the removal order dated 31‑07‑2013, alleging violation of the constitutional requirement of a departmental inquiry, non‑compliance with Rule 20 of the Bihar C.C.A. Rules, 2005, and denial of natural‑justice rights, including the right to post‑retirement benefits. The Court examined the applicability of Article 311(2)(b), the need for a written reason showing that an inquiry was not reasonably practicable, and the procedural safeguards under the Bihar service rules. Relying on Supreme Court precedents (Manohar Lal, Tulsiram Patel) the Court held that the authorities failed to record valid reasons or provide a show‑cause notice, rendering the removal order illegal. Consequently, the order was set aside, the petitioner was directed to be reinstated for the purpose of determining retirement benefits, and the matter was remitted to the authorities to comply with law within four months.
Issues considered
- Whether the removal of the petitioner under Article 311(2)(b) is valid without a departmental inquiry.
- Whether the authorities complied with Rule 20 of the Bihar C.C.A. Rules, 2005 requiring a notice and opportunity to be heard.
- Whether the principles of natural justice were violated in the impugned order.
- Entitlement of the petitioner to post‑retirement benefits despite the removal.
Legislation cited
- Bihar C.C.A. Rules, 2005 — s. Rule 20
- Bihar Pension Rules — s. Rule 43
- Constitution of India — s. Article 311(2)(b)
- Indian Penal Code — s. Section 34, Section 364
Subjects
- Article 311
- natural justice
- departmental inquiry
- dismissal
- post‑retirement benefits
- Rule 20
- Bihar service law
- criminal conviction
- writ of certiorari
- mandamus
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.20275 of 2013
======================================================
Ram Lal Sah Son Of Late Prabhu Sah Resident Of Village and P.O- Sirsa
Biran, P.S.- Lalganj, District- Vaishali, Bihar
... ... Petitioner/s
Versus
1. The State Of Bihar
2. The Secretary, Department Of Agriculture, Government Of Bihar
3. The Joint Agriculture Director, Tirhut Division, Muzaffarpur, Bihar
4. The Sub- Divisional Agriculture Officer, Hajipur Vaishali, Bihar
... ... Respondent/s
======================================================
Appearance :
For the Petitioner : Mr. Omkar Kumar, Advocate
Mr. Kaushal Kishor, Advocate
Ms. Jyoti Kumari, Advocate
For the State : Mr. Vivek Prasad, G.P.7
Mrs. Manisha Singh, A.C. to G.P.7
Ms. Mita Kumari, A.C. to G.P.7
======================================================
CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 23-06-2026
Heard the learned counsel for the parties.
2. The present writ petition has been filed for the
following reliefs:
“a. For the issuance of the writ in the
nature of Certiorari to quash the Office Order No. -
165 / Muzaffarpur dated 31.07.2013 issued under
the signature of Respondent No.-3 [contained in
Annexure – 7 to the petition].
b. For directing the respondents
concerned to reinstate the petitioner to the post held
by him just prior to the impugned order, as
contained in the previous paragraph. Further, the
respondents be directed to pay the petitioner all
financial benefits accruing to him while in service.
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c. For issuing the writ of Mandamus
thereby directing the Respondents concerned to
provide all the retiral benefits with interest, as early
as possible, to the petitioner, in the event of his
retirement on 30.11.2013.
d. For any other relief / reliefs, order /
orders, direction / directions as may be deemed fit
and proper.”
FACTS OF THE CASE
3. The brief facts, giving rise to the present writ
petition, are that the petitioner was a Jeep Driver in the office of
the Sub-Divisional Agriculture Office (General), Hajipur at
Vaishali. A criminal case bearing Lalganj P.S. Case No.48 of
1996, dated 03.05.1996 was registered against the petitioner and
others under Sections 364 and 34 of the Indian Penal Code. The
petitioner surrendered before the court of the learned Chief
Judicial Magistrate, Hajipur on 18.04.2001 and was put under
suspension on the same day vide Office Order No.27 contained
in Memo No.365 dated 24.05.2001 issued under the signature of
the Joint Director of Agriculture, Tirhut Division, Muzaffarpur.
The petitioner was enlarged on bail and his suspension was
revoked w.e.f. 23.05.2001 i.e. the date of his release on bail vide
Memo No.911, dated 09.10.2001, issued under the signature of
the Joint Director of Agriculture, Tirhut Division, Muzaffarpur.
Subsequently, the petitioner was again taken into custody on
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23.07.2007 in connection with Sessions Trial No.294 of 2003,
arising out of Lalganj P.S. Case No.48 of 1996. Immediately
thereafter, vide Memo No.1303 dated 23.10.2007, issued under
the signature of the Joint Director of Agriculture, Tirhut
Division, Muzaffarpur, the petitioner was removed from service
under the provisions contained in Article 311(2)(b) of the
Constitution of India w.e.f. 23.07.2007 i.e. the date on which the
petitioner was taken into custody on account of his conviction.
The petitioner preferred criminal appeal before this Hon’ble
Court, which was numbered as Criminal Appeal (SJ) No.810 of
2007 and vide order dated 29.11.2007, passed in Criminal
Appeal (SJ) No.810 of 2007, the petitioner was granted bail.
Pursuant thereto, vide Memo No.216 dated 21.02.2008, issued
under the signature of the Joint Director of Agriculture, Tirhut
Division, Muzaffarpur, the petitioner was reinstated in service
w.e.f. 29.11.2007 and it was directed that after final decision in
Criminal Appeal (SJ) No.810 of 2007, decision will be taken
with regard to the period the petitioner spent in jail i.e.
23.10.2007 to 28.11.2007. Since the petitioner was to retire on
30.11.2013, therefore the respondent no.4 i.e. the Sub-
Divisional Agriculture Officer, Hajipur at Vaishali vide his
Letter No.294 dated 11.07.2013 addressed to the Joint Director,
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Agriculture, Tirhut Division, Muzaffarpur, by giving reference
to the case of the petitioner, requested him to give guidelines
with regard to grant of post retirement benefits to the petitioner,
who is going to retire on 30.11.2013. Immediately thereafter, by
the impugned order contained in Memo No.1357 dated
31.07.2013, issued under the signature of the Joint Director,
Agriculture, Tirhut Division, Muzaffarpur, it was notified that
after proper consideration, the petitioner is being removed from
services and decision with regard to payment of post retirement
benefits of the petitioner will be taken after decision in Criminal
Appeal (SJ) No.810 of 2007, which has been filed by the
petitioner before this Hon’ble Court. Being aggrieved with the
order contained in Memo No.1357, dated 31.07.2013, the
petitioner preferred the present writ petition.
SUBMISSIONS ON BEHALF OF THE PETITIONER
4. The learned counsel appearing on behalf of the
petitioner submits that the impugned order of punishment dated
31.07.2013 has been passed by the respondent authorities in
gross violation of the provisions contained in Article 311(b) of
the Constitution of India and Rule 20 of the Bihar C.C.A. Rules,
2005. He submits that even if the authorities took recourse to the
provisions contained in Article 311(b) of the Constitution of
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India, it was incumbent upon the authorities to record reason for
not holding or the reasons in writing that it is not reasonably
practicable to hold inquiry in the matter. He further submits that
in terms of the provisions contained in Rule 20 of the Bihar
C.C.A. Rules, 2005, it was incumbent upon the respondent
authorities to at least provide an opportunity to the petitioner of
making representation on the penalty proposed to be imposed,
before any order is passed in terms of Clause (i) of Rule 20 of
the Bihar C.C.A. Rules, 2005. He submits that in the present
case, no such procedure has been adopted and the authorities
concerned without even issuing any notice to the petitioner or
without even conducting enquiry, have proceeded to terminate
the services of the petitioner on the basis of his conviction in a
criminal case. The learned counsel appearing on behalf of the
petitioner submits that the respondents were not authorized to
remove the petitioner from service in the manner, in which the
impugned order of punishment dated 31.07.2013 has been
passed. He further submits that the removal of the petitioner,
four months prior to his date of retirement, without any notice or
show cause, was passed only with a view to deny his post
retirement benefits and the impugned order dated 31.07.2013
was passed in complete violation of the principles of natural
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justice.
5. The learned counsel appearing on behalf of the
petitioner refers to and relies on a recent judgment of the
Hon’ble Supreme Court of India in the case of Manohar Lal vs.
Commissioner of Police & Ors., arising out of Civil Appeal
No.13860 of 2024, reported in 2026 INSC 234, wherein the
Hon’ble Supreme Court of India, while considering the
celebrated judgment of the Hon’ble Supreme Court of India in
the case of Tulsiram Patel & Ors., reported in (1985) 3 SCC 398
and relying upon paragraph nos.101, 133 and 138 of the
judgment of the Hon’ble Supreme Court of India in the case of
Tulsiram Patel (supra) in paragraph nos.16, 36, 37, 38, 39 and
40 has held as follows:
“16. It is trite law that the decision of
the appointing authority on the issue of recording
reasons in writing on its satisfaction as to why
holding an inquiry is not reasonably practicable may
be subject to judicial review under Article 226 by
High Court or under Article 32 by the Supreme
Court. This Court in the Constitution Bench
judgment rendered in the case of Tulsiram Patel
(Supra) reiterated the legal positions and explained
the same. The High Court in the impugned judgment
has relied upon paragraph 101 of the said judgment.
Learned senior counsel for the appellant contended
before us that subsequent paragraphs, in particular,
paragraphs 130, 133 and 138, which enunciates the
law while interpreting Article 311(2) of the
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Constitution of India, have not been considered.
Therefore, for ready reference, we reproduce all the
aforesaid paragraphs as thus:
“101. Not only, therefore, can
the principles of natural justice be modified
but in exceptional cases they can even be
excluded. There are well-defined exceptions
to the nemo judex in causa sua rule as also to
the audi alteram partem rule. The nemo
judex in causa sua rule is subject to the
doctrine of necessity and yields to it as
pointed out by this Court in J. Mohapatra &
Co. v. State of Orissa [(1984) 4 SCC 103 :
(1985) 1 SCR 322, 334-5] . So far as the audi
alteram partem rule is concerned, both in
England and in India, it is well established
that where a right to a prior notice and an
opportunity to be heard before an order is
passed would obstruct the taking of prompt
action, such a right can be excluded. This
right can also be excluded where the nature
of the action to be taken, its object and
purpose and the scheme of the relevant
statutory provisions warrant its exclusion;
nor can the audi alteram partem rule be
invoked if importing it would have the effect
of paralysing the administrative process or
where the need for promptitude or the
urgency of taking action so demands, as
pointed out in Maneka Gandhi case [(1978) 1
SCC 248 : (1978) 2 SCR 621, 676] at p. 681.
If legislation and the necessities of a
situation can exclude the principles of natural
justice including the audi alteram partem
rule, a fortiori so can a provision of the
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Constitution, for a constitutional provision
has a far greater and all-pervading sanctity
than a statutory provision. In the present
case, clause (2) of Article 311 is expressly
excluded by the opening words of the second
proviso and particularly its keywords “this
clause shall not apply”. As pointed out
above, clause (2) of Article 311 embodies in
express words the audi alteram partem rule.
This principle of natural justice having been
expressly excluded by a constitutional
provision, namely, the second proviso to
clause (2) of Article 311, there is no scope
for reintroducing it by a side-door to provide
once again the same inquiry which the
constitutional provision has expressly
prohibited. Where a clause of the second
proviso is applied on an extraneous ground
or a ground having no relation to the
situation envisaged in that clause, the action
in so applying it would be mala fide, and,
therefore, void. In such a case the
invalidating factor may be referable to
Article 14. This is, however, the only scope
which Article 14 can have in relation to the
second proviso, but to hold that once the
second proviso is properly applied and clause
(2) of Article 311 excluded. Article 14 will
step in to take the place of clause (2) would
be to nullify the effect of the opening words
of the second proviso and thus frustrate the
intention of the makers of the Constitution.
The second proviso is based on public policy
and is in public interest and for public good
and the Constitution-makers who inserted it
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in Article 311(2) were the best persons to
decide whether such an exclusionary
provision should be there and the situations
in which this provision should apply.
130. The condition precedent
for the application of clause (b) is the
satisfaction of the disciplinary authority that
“it is not reasonably practicable to hold” the
inquiry contemplated by clause (2) of Article
311. What is pertinent to note is that the
words used are “not reasonably practicable”
and not “impracticable”. According to the
Oxford English Dictionary “practicable”
means “Capable of being put into practice,
carried out in action, effected, accomplished,
or done; feasible”. Webster's Third New
International Dictionary defines the word
“practicable” inter alia as meaning “possible
to practice or perform: capable of being put
into practice, done or accomplished:
feasible”. Further, the words used are not
“not practicable” but “not reasonably
practicable”. Webster's Third New
International Dictionary defines the word
“reasonably” as “in a reasonable manner: to
a fairly sufficient extent”. Thus, whether it
was practicable to hold the inquiry or not
must be judged in the context of whether it
was reasonably practicable to do so. It is not
a total or absolute impracticability which is
required by clause (b). What is requisite is
that the holding of the inquiry is not
practicable in the opinion of a reasonable
man taking a reasonable view of the
prevailing situation. It is not possible to
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enumerate the cases in which it would not be
reasonably practicable to hold the inquiry,
but some instances by way of illustration
may, however, be given. It would not be
reasonably practicable to hold an inquiry
where the government servant, particularly
through or together with his associates, so
terrorizes, threatens or intimidates witnesses
who are going to give evidence against him
with fear of reprisal as to prevent them from
doing so or where the government servant by
himself or together with or through others
threatens, intimidates and terrorizes the
officer who is the disciplinary authority or
members of his family so that he is afraid to
hold the inquiry or direct it to be held. It
would also not be reasonably practicable to
hold the inquiry where an atmosphere of
violence or of general indiscipline and
insubordination prevails, and it is immaterial
whether the concerned government servant is
or is not a party to bringing about such an
atmosphere. In this connection, we must bear
in mind that numbers coerce and terrify
while an individual may not. The reasonable
practicability of holding an inquiry is a
matter of assessment to be made by the
disciplinary authority. Such authority is
generally on the spot and knows what is
happening. It is because the disciplinary
authority is the best judge of this that clause
(3) of Article 311 makes the decision of the
disciplinary authority on this question final.
A disciplinary authority is not expected to
dispense with a disciplinary inquiry lightly or
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arbitrarily or out of ulterior motives or
merely in order to avoid the holding of an
inquiry or because the Department's case
against the government servant is weak and
must fail. The finality given to the decision
of the disciplinary authority by Article
311(3) is not binding upon the court so far as
its power of judicial review is concerned and
in such a case the court will strike down the
order dispensing with the inquiry as also the
order imposing penalty. The case of Arjun
Chaubey v. Union of India [(1984) 2 SCC
578 : 1984 SCC (L&S) 290 : (1984) 3 SCR
302] is an instance in point. In that case, the
appellant was working as a senior clerk in
the office of the Chief Commercial
Superintendent, Northern Railway, Varanasi.
The Senior Commercial Officer wrote a
letter to the appellant calling upon him to
submit his explanation with regard to twelve
charges of gross indiscipline mostly relating
to the Deputy Chief Commercial
Superintendent. The appellant submitted his
explanation and on the very next day the
Deputy Chief Commercial Superintendent
served a second notice on the appellant
saying that his explanation was not
convincing and that another chance was
being given to him to offer his explanation
with respect to those charges. The appellant
submitted his further explanation but on the
very next day the Deputy Chief Commercial
Superintendent passed an order dismissing
him on the ground that he was not fit to be
retained in service. This Court struck down
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the order holding that seven out of twelve
charges related to the conduct of the
appellant with the Deputy Chief Commercial
Superintendent who was the disciplinary
authority and that if an inquiry were to be
held, the principal witness for the
Department would have been the Deputy
Chief Commercial Superintendent himself,
resulting in the same person being the main
accuser, the chief witness and also the judge
of the matter.
138. Where a government
servant is dismissed, removed or reduced in
rank by applying clause (b) or an analogous
provision of the service rules and he
approaches either the High Court under
Article 226 or this Court under Article 32,
the court will interfere on grounds well
established in law for the exercise of power
of judicial review in matters where
administrative discretion is exercised. It will
consider whether clause (b) or an analogous
provision in the service rules was properly
applied or not. The finality given by clause
(3) of Article 311 to the disciplinary
authority's decision that it was not
reasonably practicable to hold the inquiry is
not binding upon the court. The court will
also examine the charge of mala fides, if any,
made in the writ petition. In examining the
relevancy of the reasons, the court will
consider the situation which according to the
disciplinary authority made it come to the
conclusion that it was not reasonably
practicable to hold the inquiry. If the court
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finds that the reasons are irrelevant, then the
recording of its satisfaction by the
disciplinary authority would be an abuse of
power conferred upon it by clause (b) and
would take the case out of the purview of
that clause and the impugned order of
penalty would stand invalidated. In
considering the relevancy of the reasons
given by the disciplinary authority the court
will not, however, sit in judgment over them
like a court of first appeal. In order to decide
whether the reasons are germane to clause
(b), the court must put itself in the place of
the disciplinary authority and consider what
in the then prevailing situation a reasonable
man acting in a reasonable way would have
done. The matter will have to be judged in
the light of the then prevailing situation and
not as if the disciplinary authority was
deciding the question whether the inquiry
should be dispensed with or not in the cool
and detached atmosphere of a court-room,
removed in time from the situation in
question. Where two views are possible, the
court will decline to interfere.”
36. It is relevant to note that applying
the judgment of Tulsiram Patel (Supra), various
cases have been decided by this Court indicating
what may be a sufficient reason and how and in
what circumstances holding a departmental enquiry
is not reasonably practicable, and the scope of
judicial review in such cases. In the judgement of
this Court in Ex. Constable Chhote Lal (Supra) the
Court held as thus:
“4. Having examined the rival
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contentions of the parties and bearing in
mind the law laid down by this Court
indicating the circumstances under which the
inquiry under Article 311(2), second proviso,
clause (b) of the Constitution can be
dispensed with and applying the same to the
facts and circumstances and the reasons
advanced by the authorities in arriving at the
decision, we have no hesitation to come to
the conclusion that the order dispensing with
the departmental inquiry is not in accordance
with law and necessarily the order of
dismissal cannot be sustained. We
accordingly set aside the order of dismissal
passed against the appellant and permit the
departmental authority to hold an inquiry if
so desired, in accordance with law and come
to the conclusion in the said proceeding.
5. Normally, an order of
dismissal on being set aside, the employee
can claim back wages, but in this case we are
not inclined to grant back wages to the
employee concerned, more so, in view of the
nature of charges against him.”
37. In the case of Tarsem Singh
(Supra) this Court has observed that the power of
dispensing with the constitutional remedy of a
delinquent, should not be exercised lightly or
arbitrarily, or out of ulterior motive with the intent to
avoid holding an enquiry. In the said case in paras
10 and 14, this Court observed as thus:
“10. It is now a well-settled
principle of law that a constitutional right
conferred upon a delinquent cannot be
dispensed with lightly or arbitrarily or out of
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ulterior motive or merely in order to avoid
the holding of an enquiry. The learned
counsel appearing on behalf of the appellant
has taken us through certain documents for
the purpose of showing that ultimately the
police on investigation did not find any case
against the appellant in respect of the
purported FIR lodged against him under
Section 377 IPC. However, it may not be
necessary for us to go into the said question.
xxx xxx xxx
14. In view of the fact that no
material had been placed by the respondents
herein to satisfy the Court that it was
necessary to dispense with a formal enquiry
in terms of proviso (b) appended to Clause
(2) of Article 311 of the Constitution of
India, we are of the opinion that the
impugned orders cannot be sustained and
they are set aside accordingly. The appellant
is directed to be reinstated in service.
However, in view of our aforementioned
findings, it would be open to the respondents
to initiate a departmental enquiry against the
appellant if they so desire. Payment of back
wages shall abide by the result of such
enquiry. Such an enquiry, if any, must be
initiated as expeditiously as possible and not
later than two months from the date of
communication of this order.”
38. This Court in the case of Risal
Singh (Supra), emphasised that while assigning the
reason in writing it is imperative that such reason
must be plausible and based on definite material. In
the said case, the Court relied upon on para 130 on
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the judgment of Tulsiram Patel (Supra) and
referring the same concluded in paras 9 and 10 as
thus:
“9. Tested on the touchstone of
the aforesaid authorities, the irresistible
conclusion is that the order passed by the
Superintendent of Police dispensing with the
inquiry is totally unsustainable and is hereby
annulled. As the foundation founders, the
order of the High Court giving the stamp of
approval to the ultimate order without
addressing the lis from a proper perspective
is also indefensible and resultantly, the order
of dismissal passed by the disciplinary
authority has to pave the path of extinction.
10. Consequently, we allow the
appeal and set aside the order passed by the
High Court and that of the disciplinary
authority. The appellant shall be deemed to
be in service till the date of superannuation.
As he has attained the age of superannuation
in the meantime, he shall be entitled to all
consequential benefits. The arrears shall be
computed and paid to the appellant within a
period of three months hence. Needless to
say, the respondents are not precluded from
initiating any disciplinary proceedings, if
advised in law. As the lis has been pending
before the Court, the period that has been
spent in Court shall be excluded for the
purpose of limitation for initiating the
disciplinary proceedings as per rules.
However, we may hasten to clarify that our
observations herein should not be construed
as a mandate to the authorities to initiate the
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proceeding against the appellant. We may
further proceed to add that the State
Government shall conduct itself as a model
employer and act with the objectivity which
is expected from it. There shall be no order
as to costs.”
39. In the case of Reena Rani (Supra)
this Court has again applied the law laid down in the
judgment of Tulsiram Patel (Supra) and Jaswant
Singh (Supra) and held that the order of dismissal
did not disclose the reasons explaining why it was
not reasonably practicable to hold a regular
departmental enquiry and applicability of the
proviso in such a case is not justified. The Court in
para 7 in the said judgment observed as under: -
“7. In the order of dismissal,
the Superintendent of Police has not
disclosed any reason as to why it was not
reasonably practicable to hold regular
departmental enquiry. The learned Additional
Advocate General fairly stated that the order
of dismissal does not contain the reasons as
to why it was not reasonably practicable to
hold regular departmental enquiry against the
appellant. He also admitted that no other
record has been made available to him which
would have revealed that the Superintendent
of Police had recorded reasons for forming
an opinion that it was not reasonably
practicable to hold regular departmental
enquiry for proving the particular charge(s)
against the appellant.”
40. On overall analysis of the intent of
Article 311(2), it is vivid that an employee holding a
post in Union or State ought not to be dismissed or
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removed by an authority subordinate to the one by
which he was appointed. It is further specified that a
person shall be dismissed or removed or reduced in
rank after an inquiry supplying the charges if any
against him and giving a reasonable opportunity of
being heard in respect of those charges. The
applicability of the said clause is restricted in a
situation wherein his conduct led to his conviction of
criminal charges or where the authority empowered
who dismissed, removed or reduced in rank records
reason in writing upon satisfaction that it is not
‘reasonably practicable’ to hold an enquiry against
him. In addition, where such power has been
exercised by the President or the Governor it may be
in the interest of security of the State or if not
expedient to hold such an enquiry, then exceptional
power under clause (c) of second proviso to Article
311 ought to be exercised.
SUBMISSIONS ON BEHALF OF THE RESPONDENT STATE
6. Per contra, the learned counsel appearing on
behalf of the Respondent-State, while referring to the counter
affidavit filed on behalf of the respondents, submits that since
the petitioner was made an accused in Sessions Trial No.294 of
2003, arising out of Lalganj P.S. Case No.48 of 1996, he was
put under suspension and later on after his conviction for 10
years in the said case, he was terminated from service.
Subsequently, when he was granted bail during pendency of the
criminal appeal, which the petitioner has filed before this
Hon’ble Court, the petitioner was reinstated in service. It is
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further submitted that the petitioner was again terminated from
service by the impugned order dated 31.07.2013 and the order
impugned has been issued in terms of the prescribed
rules/provisions. It is submitted that Clause-9 of the Letter
No.10158, dated 23.08.1963, issued by the State Government,
provides for dismissal/demotion of any government servant,
without initiating departmental proceeding, if the government
servant is held guilty in the criminal offence by a competent
court. It is also submitted that, since in the present case, the
petitioner has been convicted for 10 years by a competent court,
therefore there is no infirmity in passing the impugned order,
which has been passed by the Joint Director, Agriculture, Tirhut
Division, Muzaffarpur after considering each and every aspect
of the matter. It is further submitted that the admissible retiral
dues of the petitioner, like, Group Insurance, Provident Fund
and Leave Encashment etc. has been directed to be paid vide
Letter No.2119, dated 27.11.2013. The learned counsel for the
State further submits that in terms of Rule 43 of the Bihar
Pension Rules, the State Government/competent authority has
the right to withdraw any part of the pension or deduct the same,
if the person is held to be guilty in a serious criminal offence. In
the present case, the petitioner has been held guilty in a case for
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kidnapping and has been punished with imprisonment of 10
years. The learned counsel for the State finally submits that the
order impugned passed by the concerned authority is in
accordance with law and there is no infirmity in the same.
CONCLUSION
7. Having considered the rival submissions and after
going through the records, it appears that while the petitioner
was discharging his duties, he was made an accused in Lalganj
P.S. Case No.48 of 1996, which gave rise to Sessions Trial
No.294 of 2003. After completion of trial, the competent court
of the learned Additional District & Sessions Judge, Fast Track
Court No.-III, Vaishali at Hajipur vide judgment dated
23.07.2007 convicted the petitioner and others by sentencing
them to undergo rigorous imprisonment for 10 years along with
a fine of Rs.10,000/- each for the offences under Section 364
read with 34 of the Indian Penal Code. The petitioner filed
criminal appeal before this Hon’ble Court. The criminal appeal
filed by the petitioner was numbered as Criminal Appeal (SJ)
No. 810 of 2007 and vide order dated 29.11.2007 passed in the
said criminal appeal, the petitioner was directed to be enlarged
on bail. It appears that on account of lodging of the criminal
case, the petitioner was put under suspension, which was later
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on revoked, upon the release of the petitioner from custody.
After his conviction in the criminal case, the petitioner was
terminated from service vide Memo No.216 dated 21.02.2008,
issued under the signature of the Joint Director, Agriculture,
Tirhut Division, Muzaffarpur. Subsequently, when the petitioner
was granted bail by the Appellate Court i.e. this Hon’ble Court
in Criminal Appeal (SJ) No.810 of 2007, the termination order
of the petitioner, which was issued on 23.10.2007 was
subsequently recalled and the petitioner was reinstated in
service w.e.f. 29.11.2007 vide order dated 21.02.2008. It further
appears from the records that when the petitioner was going to
superannuate, the drawing and disbursing officer, requested for
guidelines from the higher authorities with regard to payment of
the post retirement benefits to the petitioner. Pursuant to the
letter by the drawing and disbursing officer, the petitioner was
again dismissed from service by the impugned order dated
31.07.2013. It appears that prior to issuance of the order dated
23.10.2007 or 31.07.2013, no notice whatsoever was issued to
the petitioner or the petitioner was not granted any opportunity
of filing any show cause, that why he be not removed from
service. The order dated 23.10.2007 was issued under the
provisions of Article 311(2)(b) of the Constitution of India and
Patna High Court CWJC No.20275 of 2013 dt.23-06-2026
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so far the impugned order dated 31.07.2013 is concerned, the
authorities concerned did not indicate the provision of law,
under which the order of termination has been passed. Even
assuming that the order of termination was passed under Article
311(2)(b) of the Constitution of India, even then the authorities
were required to give reason that why it was not practicable to
hold enquiry in the matter or why no show-cause is required to
be issued to the petitioner. Further, even in terms of Rule 20 of
the Bihar C.C.A. Rules, 2005, which is a special procedure in
certain cases, the government servant is required to be given an
opportunity making representation on the penalty proposed to be
imposed before any order is made in a case under Clause (i) of
Rule 20 of the Bihar Service Code. Article 311, which deals
with dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State is quoted
hereinbelow:
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 the Union or a Slate shall be
dismissed or removed by an authority subordinate to
that by which he was appointed.
[(2) No such person as aforesaid shall
be dismissed or removed or reduced in rank except
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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) 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.]
8. Similarly Rule 20 of the Bihar C.C.A. Rules, 2005
is also quoted hereinbelow:
Patna High Court CWJC No.20275 of 2013 dt.23-06-2026
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20. Special procedure in certain
cases.- Notwithstanding anything contained in Rules
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 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.
9. From plain reading of both the provisions, it
would transpire that before issuance of the order imposing
penalty, the authorities concerned are required to record reason
for not conducting an enquiry and the reason/impediment in
non-conduct of the enquiry. The authorities were required to
issue notice to the petitioner before taking action against him,
however in the present case, no such enquiry was done or
notices were ever issued to the petitioner. Even the recent
judgment of the Hon’ble Supreme Court of India in the case of
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Manohar Lal (supra) after considering the judgment of Tulsiram
Patel (supra) prescribes that in case such a decision invoking the
extraordinary power is taken by the competent authority within
the parameter as discussed, the scope of judicial review is
available to the Constitutional Courts wherein the reasons as
assigned for satisfaction of the authority must be reasonable,
valid, justified and in writing. In the present case, no such
exercise has been carried out by the respondent authorities,
before termination of the petitioner from service vide Memo
No.1357, dated 31.07.2013.
10. From the consideration made above, this Court
has got no hesitation to hold that the impugned order contained
in Memo No.1357, dated 31.07.2013 has been passed in
complete violation of the principles of natural justice and
therefore it deserves to be set aside and is accordingly set aside.
It has been informed at the Bar that Criminal Appeal (SJ)
No.810 of 2007 is still pending for adjudication before this
Hon’ble Court and therefore being conscious of the fact that the
petitioner has already superannuated on 30.11.2013, the matter
is remitted back to the respondent authorities to proceed in the
matter in accordance with law after giving due opportunity to
the petitioner. The entire exercise must be completed within a
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period of four months from the date of receipt/production of a
copy of the order.
11. With the aforesaid observations and directions,
the present writ petition is allowed.
12. Pending application(s), if any, shall also stand
disposed of.
(Ritesh Kumar, J.)
Sanjay/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 24.06.2026
Transmission Date NA
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