Pramath Patnaik, J. - (1.) In the instant writ application, the petitioner has inter alia, prayed for issuance of an appropriate writ/direction for setting aside the memo No. 517, dated 25.03.2011 (Annexure-4), passed by the Respondent No. 3 pertaining to dismissal from service with retrospective date i.e. 18.06.2002 without any finding of guilt in the departmental proceeding that too after retirement of the petitioner from service i.e. 28.02.2011. The petitioner further prays for a direction commanding upon the respondents to release the entire retirement benefits to the petitioner, such as, provident fund, gratuity, leave encashment, group insurance etc. and for release of the pension.
(2.) The facts, as disclosed in the instant writ petition, in nutshell, are that the petitioner joined as Assistant Teacher in the Primary School, Mohanpur, Chandankyari-2, District-Bokaro in the year 1992. In a criminal case, registered under Sections 307 and 148/34 of the Indian Penal Code, the petitioner was convicted by the learned trial court in the year 1992 and in 2002, the petitioner filed a Cr. Appeal No. 358 of 2002 before this Court and this Court has been pleased to modify the order of conviction under Sections 324 and 148/34 of the Indian Penal Code. Being aggrieved by the order passed in Cr. Appeal No. 358 of 2002, the petitioner preferred Appeal being Cr. Appeal No. 2160 of 2010 before the Hon'ble Apex Court and vide order dated 16.11.2010, the Hon'ble Supreme Court reduced the sentence of the petitioner to the period of imprisonment already undergone by him. The petitioner was put under suspension by the Respondent No. 3 vide order dated 26.11.2010 and the order was passed that he was entitled only for the subsistence allowance. The petitioner retired from service on 28.02.2011 during the period of suspension on attaining the age of superannuation. Thereafter on 07.03.2011, the petitioner requested the Area Education Officer Bermo cum Enquiry Officer to withdraw his suspension order as he has already retired. The petitioner informed that he has not received any subsistence allowance during the period of suspension. The respondent no. 3 vide order dated 25.03.2011 dismissed the petitioner from his services due to criminal case with effect from 18.06.2002 and it has been directed in the impugned order that the petitioner is only entitled for Group Insurance and Provident Fund with interest. Being aggrieved and dissatisfied with the impugned order dated 25.03.2011 (Annexure-4), the petitioner has been constrained to approach this Court under Article 226 of the Constitution of India for redressal of his grievances.
(3.) Ms. Ruchi Rampuria, learned counsel for the petitioner has submitted with vehemence that the impugned order (Annexure-4) has been passed in violation of Rule 43 (b) of the Bihar Pension Rules and the same is not legally sustainable in the eyes of law. Learned counsel for the petitioner further submits that since the petitioner retired from service on 28.02.2011, the relationship of the master and the servant came to an end from the said date and the impugned order dated 25.03.2011 could not have been passed after retirement of the petitioner from Government service. Learned counsel for the petitioner further submits that the second proviso to Article 311 (2) of the Constitution of India provides that the Government servant may be dismissed without being put through departmental proceeding on the ground of conduct which has led to his conviction on a criminal charge. The proviso only does away with the requirement of conducting a departmental proceeding but does not provide that such a conviction on a criminal charge automatically terminates the employment. Therefore, the impugned order (Annexure-4) is not legally sustainable. Learned counsel for the petitioner further submits that the impugned order of punishment dated 25.03.2011, which pertains to dismissal from services after retirement with retrospective effect is not legally sustainable in view of the decision reported in 1999 (1) PLJR 69, Sadanand Ram v. The State of Bihar , wherein, it has been inter alia, held that the order of dismissal cannot be passed with retrospective effect. However, the authority can proceed against the delinquent employee under Rule 43 of the Bihar Pension Rules. Learned counsel for the petitioner has further drawn the attention of the Court to State Bank of Patiala & Anr. v. Ram Niwas Bansal (Dead), 2014 AIR SCW 1482 , wherein, the Hon'ble Apex Court has inter alia, held that as far as the order of removal being made retrospectively operational, there can be no trace of doubt that it cannot be made retrospective. Learned counsel for the petitioner further submits that after retirement from services, the only punishment that can be inflicted against the petitioner is by resorting to Rule 43 of the Bihar Pension Rules and in this respect, learned counsel has referred to Shambhu Saran v. The State of Bihar & Ors., 2000 (1) PLJR 665 (FB).;