BASANTI PRASAD Vs. CHAIRMAN, BIHAR SCHOOL EXAMINATION BOARD

JUDGEMENT

(1.) PETITIONER is widow of late Bhriguashram Prasad. Her husband joined service under the Bihar School Examination Board, Patna in 1970 as an Assistant. In ordinary course, he would have retired in the year 2002. While in service, petitioner 'shusband was suspended in July 1976 on account of a criminal case of the year 1976 in which the husband of the petitioner and some other employees of the Bihar School Examination Board were charged with tampering with the marks - sheet in respect of several candidates, who had appeared in the Annual Secondary School Examination in 1976. After being charge -sheeted by the police, the husband of the petitioner and some others were convicted on 7.2.1989 for various offences such as Sections 467, 468, 471, 420. and 120B of the IPC and sentenced to undergo Rl for two years because sentences for 18/4/2014 Page 48 Lumbini Beverages Private Limited Versus Commissioner Of Central Excise various offences were to run concurrently. On account of his conviction, the husband of the petitioner was dismissed from service by order of the competent authority dated 4.8.1992 (Annexure -1). Petitioner 'shusband and others accused persons had preferred appeals against their conviction. Petitioner 'shusband died during the pendency of the appeal on 26.4.2004. The heirs of petitioner 'shusband were allowed to continue with the appeal which has been finally allowed on 29.7.2005 by order contained in Annexure -2. The appellate court has held that extra -judicial confession was an evidence of weak nature and the prosecution had failed to prove the charges beyond all reasonable doubts.

(2.) ON the ground that her husband stood acquitted of all the criminal charges, the petitioner on 30.8.2005 through Annexure -3, filed a representation before the concerned authorities through her lawyer. She prayed that since her husband was no more and, therefore, he could not now pray for being taken back in service but he should be deemed to have remained in service till the date of retirement and on that basis the respondent -Board should pay her all the retiral benefits of her late husband Bhriguashram Prasad. Since the Board did not accept the prayer of the petitioner, this writ petition was filed on 28.11.2005. When the matter was being heard at the stage of admission on 20.2.2007, learned counsel for the petitioner realized the difficulty in the way of the petitioner on ground of there being no challenge to order of dismissal (Annexure -1) in respect of petitioner 'shusband and hence, he sought adjournment and filed I.A. No. 1256 of 2007 on 26.2.2007 through which the petitioner has prayed for quashing of order of dismissal dated 4.8.1992, contained in Annexure -1.

(3.) THERE is no dispute that petitioner 'shusband was dismissed from service without holding any enquiry in any departmental proceeding, on account of his conviction in a criminal case which was in respect of offences allegedly committed in course of official duties. It is also not in dispute that the criminal appeal preferred by petitioner 'shusband has been allowed because the heirs were granted leave to pursue the appeal. It is clear that order of dismissal passed in the year 1992. had not been challenged by the concerned dismissed employee, the husband of the petitioner, till his death, in the year 2004. It was after about 12 years that the appeal was allowed and that is the sole ground on which petitioner has sought reliefs against the respondent -Board and has prayed that the impugned order of dismissal be quashed and her husband be treated to be in service till he would have superannuated in ordinary course in the year 2002 and on that basis retiral benefits be paid to the petitioner.