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2013 DIGILAW 843 (GAU)

Kamal Biswas v. State of Assam and Ors.

2013-12-03

BIPLAB KUMAR SHARMA

body2013
Biplab Kumar Sharma, J. The challenge in this writ petition is the order dated 25.05.2006 passed by the Deputy Inspector of Schools, Kaliabor, Naga-on, terminating the service of the petitioner as Assistant Teacher of Goroimari (Boys) L.P. School because of his conviction in a criminal case. I have heard Mr. P. Kataki, learned counsel for the petitioner. I have also heard Mr. A. Deka, learned Standing counsel, Education Department, Assam, representing the respondents. I have considered the entire materials on record. 2. The petitioner while was serving as Assistant Teacher in the aforesaid school, he was involved in a criminal case, which was eventually registered and numbered as Sessions Case No. 10(N)/92. The case emanated from Kaliabor P.S. Case No. 158/89 registered under Section147/148/447/325/324/436/302 IPC. Charge-sheet having been submitted against the accused persons, including the petitioner, and upon framing of charge, the trial started and eventually the learned Sessions Judge, Nagaon, vide his judgment of conviction dated 18.07.1993 convicted the accused persons including the petitioner under Section 304 (Pt-II)/436/324/323/34 IPC and sentenced, each of the accused persons, to R.I. for 7 years for the offence under Section 304 (Pt-II)/34 IPC. The accused persons were also sentenced to suffer, for their conviction under Section 436/34 IPC, R.I. for 4 years and to pay a fine of Rs. 500/- each and, in default to further R.I. for 6 months each and, for their conviction under Section 324/34 IPC, each of the accused persons was sentenced to suffer R.I. for two years. Further, for their conviction, under Section 323/34 IPC, each of the accused persons was sentenced to suffer R.I. for 6 months, the sentences having been ordered to run concurrently. 3. Being aggrieved by the judgment of conviction, an appeal being Crl. Appeal No. 296/97 was preferred in which the petitioner was held guilty of the offence under Section 304 (Pt-II) and 324 IPC the sentence was reduced to 3 years of R.I. and fine of Rs. 500/- and, in default thereof R.I. for 6 months, and R.I. for 1 year and fine of Rs. 500/- and, in default R.I. for 3 months respectively In the appeal, the Appellate Court made the following observations in respect of the petitioner: These two witnesses have stated that Kamal along with other had assaulted Haricharan Suklal and others with dao and lathi. 500/- and, in default R.I. for 3 months respectively In the appeal, the Appellate Court made the following observations in respect of the petitioner: These two witnesses have stated that Kamal along with other had assaulted Haricharan Suklal and others with dao and lathi. In view of the clear statements on oath by PW8 to the effect that Kamal had assaulted Suklal on the head with a lathi, I am of the view that the said act can be safely attributed to Kamal in view of the other evidence on record, omission to that effect in the police statement of PW8 notwithstanding. In view of the above discussion, the conviction of accused-appellant Kamal under Section 304 Part-II and 324 IPC has to be maintained. 4. Pursuant to the said judgment and order dated 17.02.2004, passed in Crl. Appeal No. 296/1997, the disciplinary authority passed the impugned order dated 25.05.2006 terminating the service of the petitioner in view of his conviction in the criminal case. Although the judgment in the Crl. Appeal was passed on 17.02.2004, it took more than two years to pass the impugned order. In the meantime, the petitioner continued to receive subsistence allowance firstly @ 50% and, thereafter, @ 75%. In fact, his subsistence allowance bill was cleared up to February, 2006 by the Block Elementary Education Officer. Referring to the judgment of conviction on appeal, the disciplinary authority terminated the service of the petitioner. 5. Mr. P. Kataki, learned counsel for the petitioner submits that although the petitioner has been convicted under Section 304 (Pt-II)/324 IPC, but in absence of any immoral perpetual involvement, the disciplinary authority ought to have considered that aspect of the matter instead of terminating his service merely on the ground of conviction. In this connection, Mr. Kataki has placed reliance on the decision of the Apex Court reported in: AIR 1985 SC 1416 (Union of India & Anr. v. Tulsiram Patel). 6. Mr. A. Deka, learned Standing counsel, Education Department, Assam, on the other hand submits that since the petitioner has been convicted on a murder charge and considering the fact that he was engaged in teaching in L.P. School, there is nothing wrong in terminating his service. As regards the decision on which Mr. v. Tulsiram Patel). 6. Mr. A. Deka, learned Standing counsel, Education Department, Assam, on the other hand submits that since the petitioner has been convicted on a murder charge and considering the fact that he was engaged in teaching in L.P. School, there is nothing wrong in terminating his service. As regards the decision on which Mr. P. Kataki, learned counsel for the petitioner has placed reliance, he submits that there can not be any mechanical interpretation of a judgment and that the ratio of a decision will ha\e to be understood in the background of the fact situation of the given case. 7. I have given my conscious consideration to the submissions made by the learned counsel for the parties and I have also considered the entire materials on record. 8. It is an admitted fact that the petitioner has been convicted for an offence under Section 304 (Pt-II)/324 IPC. As to what was his conduct leading to the commission of the offence, conviction thereafter and the sentence imposed have been noted above. Mr. Kataki, learned counsel for the petitioner has also placed reliance on a Single Bench decision reported in : 2000 (3) GLT 519 (Har Kumar Das v. Bharat Petroleum Corporation & Ors.). It was a case relating to LPG distributorship for which the petitioner therein was an aspirant. When his candidature was not considered on the ground of his conviction for the offence of murder, the petitioner approached the High Court. It was held in Har Kumar Das (supra) that such conviction cannot entitle the authority to reject the candidature of the petitioner. 9. In the instant case, we are concerned with a primary school teacher, who has been convicted under Section 304 (Pt-II)/324 IPC. Much have been emphasized by the learned counsel for the petitioner on the observations of the Apex Court in paragraph 127 of Tulsiram Patel (supra) so as to argue that the authority must take into consideration the facts and circumstances of the case before imposing the penalty of removal from service on the ground of conviction in a criminal case. 10. The fact that the petitioner has been convicted under Section 304(Pt-II)/324 IPC is not in dispute. The particular fact leading to his conviction and sentence has been referred to above. 10. The fact that the petitioner has been convicted under Section 304(Pt-II)/324 IPC is not in dispute. The particular fact leading to his conviction and sentence has been referred to above. If the petitioner was involved in an offence leading to his conviction under Section 304 (Pt-II) and 324 IPC with 3 years of imprisonment along with fine, the disciplinary authority was within its competence and jurisdiction to dispense with his service, more particularly when he was a school teacher engaged in teaching of the children. The very fact that the disciplinary authority, in its impugned order, has referred to the various facts including the judgment of conviction of the Appellate Court dated 17.02.2004, would go to show that there was proper application of mind while passing the impugned order dated 25.05.2006. 11. In view of the above. I do not find any infirmity in the order dated 25.05.2006 (Annexure 12) passed by the disciplinary authority terminating the service of the petitioner. Consequently, no direction can be issued for reinstatement of the petitioner in service. Accordingly, the writ petition is dismissed without, however, any order as to costs. __