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1982 DIGILAW 163 (PAT)

Ramashray Singh v. State of Bihar

1982-12-04

S.B.SANYAL

body1982
Judgment S.B. Sanyal, J. This writ petition is for quashing annexure by which the Director-cum-special Secretary, Department of Education, Govt. of Bihar has passed an order imposing the punishment of censor and depriving the petitioner of the pay for the period of suspension as also transferring the petitioner from the post of Headmaster, Raj Kumari High School, Sinduari to Bauri, Gaya as a Headmaster. 2. The petitioner's grievance is that the order of suspension imposed by the District Education Officer vide annexure-3 is without jurisdiction and, therefore, there could be no suspension in the eye of law. The petitioner, therefore, claims the entire salary for the period of suspension. He further states that his transfer to Bauri is in contravention of the guide lines provided under annexure-7 and as such the authorities acted illegally in transferring him. For proper appreciation of the points, the relevant facts are as follows :- 3. The petitioner was appointed as Headmaster of Raj Kumari High School, Sinduari on 5.1.1959. On 20.3.1978 there was an inspection of the said School by the District Education Officer, Gaya, who submitted a report on 3.10.1978. The report of the District Education Officer was put up before the petitioner sometime in January 1979. On 4.3.1979 the Headmaster submitted his explanation to the said report which was placed before the Managing Committee for approval. The Managing Committee approved the explanation rendered by the Headmaster with respect to spending of a sum of Rs.13,000/-and the report of the Managing Committee was ultimately placed before the District Education Officer, Gaya, on 7.7.1979. Ultimately, the matter came before the Regional Deputy Director, who called for certain reports which were submitted on 3.1.1980 and on consideration of the said report the Regional Deputy Director, being not satisfied, by an order dated 12.4.1980 (vide annexure-2) suspended the petitioner and asked for show cause. 4. As against the said suspension order passed by the Regional Deputy Director, the petitioner moved this High Court in C.W.J.C. no. 1449 of 1980. On 8.7.1980 when the said writ petition was put up for admission, a Bench of this court quashed the order of suspension after having held that in law the Regional Deputy Director had no jurisdiction to suspend the petitioner. This order of suspension, however, was withdrawn on 24.10.1980, but the District Education Officer imposed a fresh suspension on 30.9.1980 vide annexure-3. 5. This order of suspension, however, was withdrawn on 24.10.1980, but the District Education Officer imposed a fresh suspension on 30.9.1980 vide annexure-3. 5. As against the said suspension, the petitioner filed his representation on 16.12.1980, wherein the petitioner contended that in view of Ordinance 146 dated 11.8.1980 the District Education Officer is not empowered to suspend the petitioner. The petitioner also took many other pleas on merit which I am not required to go into for consideration of this case. It appears that thereafter the impugned order contained in annexure-1 was passed. The case of the respondents however, is that there has been a defalcation of Rs.13,926.68/-P. which was detected during the course of inspection by the District Education Officer. The plea of the teacher that the said sum was spent on the salary of the teacher prior to 1974 with the approval of the Managing Committee is not acceptable because vide notification No. 539 dated 25.10.1974 the Managing Committee were dissolved. It is further contended by the learned counsel for the State that the petitioner had no business to retain the money upto March 1979, and therefore, it is a clear case of temporary defalcation. It is further contended that the petitioner was given opportunity for explaining the charges against him, and as a matter of fact, he replied to the charge vide annexure-6 on 17.3.1981 and the explanation having not been found to be satisfactory, the impugned order has been passed. It is also contended that vide Letter no.10550/10616 dated 18.5.1980 the District Education Officers have been empowered to suspend the delinquent teachers. 6. Mr. Bose appearing for the petitioner contends that in view of section 17 of Ordinance 146 dated 11.8.1980 the District Education Officer was stopped of his power to suspend a teacher because the said right was vested in the State Government. The order of suspension being without jurisdiction, he is entitled to the salary for the period of his suspension. His further contention is that the order of suspension is by way of punishment and not in the nature of interim suspension pending an enquiry into misconduct and since there was no departmental proceeding preceding to the imposition of the said punishment, it is bad on the said score as well. His further contention is that the order of suspension is by way of punishment and not in the nature of interim suspension pending an enquiry into misconduct and since there was no departmental proceeding preceding to the imposition of the said punishment, it is bad on the said score as well. So far as the question of transfer is concerned, he submits that it is violative of Government direction contained in annexure-7 which clearly lays down that no transfer in relation to take over school, could be made unless service condition rules are framed. Admittedly, no service condition rules or guide lines have still been made. 7. Having heard learned counsel for both the parties, I feel that there is substance in the contention of Mr. Bose so far as the first point is concerned. By Ordinance No. 146 dated 11.8.1980 the Schools have been taken over from 2.10.1980. Section 17 of the Ordinance clearly lays down that till the nationalisation is fully affected, the management and control of the School will remain vested in the State Government. It is true that the District Education Officer imposed the punishment in view of the High Court's direction that it was he who alone at that time could have exercised the said power, but fortunately for the petitioner when actually the said order was made by the District Education Officer, Ordinance no. 146 of 11.8.1980 was passed taking away the power of the District Education Officer. It is admitted that this school has been taken over from 2.10.1980. I am, therefore, constrained to hold that annexure-3 by which the suspension order was made by the District Education Officer is bad, invalid and without jurisdiction and, therefore, in the eye of law it would be deemed that the petitioner was never suspended. Once I come to the conclusion that the petitioner cannot be treated to be under suspension, it automatically follows that the petitioner would be entitled to his full salary for tin n called period of suspension. 8. The contention of the learned counsel for the State in paragraph 17 of the counter affidavit that there was a circular issued on. 18.5.1980 conferring jurisdiction on the District Education Officer to suspend a person and, therefore, the order is justified is wholly misconceived. The said letter and/or circular stand superceded by the Ordinance aforesaid. 9. 8. The contention of the learned counsel for the State in paragraph 17 of the counter affidavit that there was a circular issued on. 18.5.1980 conferring jurisdiction on the District Education Officer to suspend a person and, therefore, the order is justified is wholly misconceived. The said letter and/or circular stand superceded by the Ordinance aforesaid. 9. Coming to the question of transfer of the petitioner from Raj Kumari High School, Sinduari to Bauri Gaya, I think the said transfer is in the teeth of the Govt. circular contained in annexure-7. The State Government has not denied the existence and/or correctness of the said annexure which lays down that the transfer and other matters will be deferred till service rules are framed and for guide lines are provided with respect to the taken over schools. Admittedly no service rule has still been framed or guide lines have been provided for the taken over schools. This being the position, the order of transfer is violative of the said Government Circular and, therefore, bad. 10. I, however, do not agree with Mr. Bose that he was entitled to a full fledged domestic enquiry for the imposition of the punishment of censor. I am satisfied that the petitioner was given sufficient opportunity to defend himself before imposition of this minor punishment. The grievance that the materials used against the petitioner by calling for the document was not communicated to the petitioner is without any substance because it was the petitioner himself who forwarded the said materials to the District Education Officer or the Regional Deputy Director and, therefore, he had full knowledge of the materials, which were considered by the said authority before imposing the punishment of Censor. 11. In the result the writ petition is allowed and annexure-1 is quashed to the extent that the petitioner would be entitled to the full salary for the period of suspension and his transfer to another school is void and illegal. The imposition of minor punishment by way of censor is, however, not interfered with. 12. I direct that the State Government should make the payment of the full salary of the petitioner within a period of three months from today. In the circumstances of the case, there will be no order as to costs. Application allowed.