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2003 DIGILAW 465 (JHR)

Ram Pran Ram v. State Of Bihar

2003-04-10

TAPEN SEN

body2003
ORDER Tapen Sen, J. 1. Heard Mr. N.N. Tiwari, learned counsel for the petitioner. Nobody appears for the State Respondents. 2. Petitioner in the instant Writ Petition is aggrieved by the order dated 23.12.1993 passed by the Deputy Commissioner, Garhwa (Respondent No. 3) inflicting the punishment of censure and withholding of one annual increment upon the petitioner. The petitioner is further aggrieved by the order dated 23.8.1996 passed by the Commissioner, Garhwa (Respondent No. 2) rejecting the appeal filed by the petitioner. The short facts which are necessary to be taken note of is that the petitioner, an Assistant Teacher in Government Primary School, Korwadih, within Garhwa Circle, District Garhwa was found absent on 10.12.1993 by the Deputy Commissioner when the latter conducted a surprise inspection of the school. Consequently, the petitioner was put under suspension by the order dated 13.12.1993 as contained at Annexure-3 and the petitioner was asked to explain as to why he should not be dismissed from the service. Upon receipt of the aforementioned notice, the petitioner filed his explanation on 15.12.1993 vide Annexure-4 and thereafter, on 23.12.1993, the Deputy Commissioner passed the impugned order of punishment. On 19.1.1994, the petitioner filed his appeal which was followed by filing a written submission on 16.10.1995. Thereafter, vide order dated 23.8.1996, the Commissioner also rejected the appeal. 3. It appears that while putting the petitioner under suspension, the Deputy Commissioner recorded in his order that on 10.12.1993, at about 2.30 p.m. he made an inspection of the school but he found the petitioner not present. The School going children informed the Deputy Commissioner that the petitioner seldom came to school. On the basis of such complaint, the Deputy Commissioner came to a conclusion that there was no justification in continuing with the services of such teachers and he immediately put the petitioner under suspension and issued notices in the manner indicated above. Upon receipt of the notice, the petitioner filed his explanation and explained that between the period 9.12.1993 to 10.12.1993 (i.e. two days) he was on casual leave and that he had handed over charge during that period to one Shri Asarfi Ram. He also stated that the said Asarfi Ram had shown the attendance register to the Deputy Commissioner at the time of the inspection. 4. The aforesaid explanation was filed on 15.12.1993 and 7/8 days thereafter, the impugned order was passed by the Deputy Commissioner. He also stated that the said Asarfi Ram had shown the attendance register to the Deputy Commissioner at the time of the inspection. 4. The aforesaid explanation was filed on 15.12.1993 and 7/8 days thereafter, the impugned order was passed by the Deputy Commissioner. Surprisingly, not one word was referred to nor stated in relation to the explanation that the petitioner had to offer for his casual absence of two days. All that the impugned order states and repeats is that the school going children had informed the Deputy Commissioner that the petitioner frequently used to be absent and he showed little interest in his work. The Deputy Commissioner, therefore, came to a conclusion that the children would not say anything with malice and therefore whatever they stated was accepted as gospel truth and accordingly, he passed the impugned order of punishment i.e. of censure and withholding of one annual increment. 5. Mr. N.N. Tiwari, learned counsel for the petitioner referred to the provisions of Rule 168 of the Boards Miscellaneous Rule and submitted that orders of censure/order withholding of increment can only be passed when the person concerned has been given an adequate opportunity of making a representation and if such a representation has been filed, then the same must be taken into consideration before the order is passed. 6. Prima facie, from the impugned order as contained at Annexure-5, it is evident that the Deputy Commissioner, while passing the impugned order has not taken into consideration the explanations which the petitioner had to offer in relation to his casual absence. 7. Mr. N.N. Tiwari has also referred to the provisions of Rule 2 ((i) and (ii) of the Bihar and Orissa Subordinate Service (Discipline and Appeal) Rules 1935] which also clearly shows that there must be "good and sufficient reasons for passing an order of censure or withholding of increment etc. The only good and sufficient reason that the Deputy Commissioner seems to assign is the statement of the little school going children of the Primary School. The very fact that it is a Primary School is suggestive of the fact that the children of that school would be studying between classes I to V as has been argued by Mr. N.N. Tiwary. Mr. The very fact that it is a Primary School is suggestive of the fact that the children of that school would be studying between classes I to V as has been argued by Mr. N.N. Tiwary. Mr. N.N. Tiwary appears to be right in making such submissions because Primary School children, in any event, would be either between classes I to V or I to VI. In other words, these children of whose statement the Deputy Commissioner has relied so heavily, are absolute minors whose statement should not have been taken to be gospel truth without a proper and validly constituted inquiry. 8. The impugned order, therefore, suffers from gross irregularities and consequently, the departmental appeal which arises out of irregular order cannot be held to be either sustainable or maintainable. In any event, the order passed in the departmental appeal is also hopelessly misconceived in as much as one of the principal reasons why it proceeds to reject it is on account of the fact that the appeal was filed after a period of two years. Mr. N.N. Tiwari draws attention of this Court to Rule 10(3) of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rule 1935 and submits that an appeal could have been filed within a period of six months from the date of information of the order. Rule 10 of the aforementioned Rule reads as follows : "10. Mr. N.N. Tiwari draws attention of this Court to Rule 10(3) of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rule 1935 and submits that an appeal could have been filed within a period of six months from the date of information of the order. Rule 10 of the aforementioned Rule reads as follows : "10. An appeal may be withheld by the authority against whose order it is preferred if-- (1) It is an appeal in a case in which no appeal lies under these rules; or (2) It does not comply with the provisions of Rule 9; or (3) It is not preferred with six months after the date on which the appellant was informed of the order appealed against, and no reasonable cause is shown for the delay; or (4) It is repetition of a previous appeal and is made to the same appellate authority by which such appeal has been decided and no new fact or circumstances are adduced with afford grounds for a reconsideration of the case : Provided that in every case in which an appeal is withheld the appellant shall be informed of the fact and the reason for it: Provided also that an appeal withheld on account only of a failure to comply with the provisions of Rule 9 may be resubmitted at any time within one month of the date on which the appellant has been informed of the withholding of the appeal, and such appeal shall not be withheld if it is resubmitted in a form which compiles with these provisions." 9. Mr. N.N. Tiwari appears to be correct in his submission in as much as the impugned order in the instant case was passed on 23.10.1993 and the appeal was filed on 19.1.1994. There was therefore no delay as has been wrongly Interpreted by the Commissioner (Respondent No. 2). The Commissioner has also totally misdirected himself in as much as he, on the basis of presumptions and conjectures has come to the conclusion that the explanation of leave appeared to be a post facto apparatus. No charge nor written notice was given to the petitioner in relation to such a new charge of the application for leave being a post facto apparatus. The entire exercise to punish the petitioner therefore appears to be illegal. Consequently, the impugned orders cannot be sustained. It is, accordingly, set aside. No charge nor written notice was given to the petitioner in relation to such a new charge of the application for leave being a post facto apparatus. The entire exercise to punish the petitioner therefore appears to be illegal. Consequently, the impugned orders cannot be sustained. It is, accordingly, set aside. The writ application is allowed. There shall, however, be no order as to costs.