Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 1138 (PAT)

Raghav Rai v. State Of Bihar

2004-11-10

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing the order dated 11.1.2002 (Annexure-1) whereby the District Superintendent of Education has inflicted on the petitioner the punishment of dismissal from service from the date of his suspension. Further prayer made by the petitioner is to quash the order dated 19th of November, 2003 (Annexure-2) whereby the appeal preferred by him against the aforesaid order of the District Superintendent of Education has been dismissed by the Divisional Commissioner. 2. Short facts giving rise to the present application are that the petitioner at the relevant time was working as Assistant Teacher in Girls Middle School, Nauhatta and on the purported allegation of withdrawing the money from the treasury by forging the signature of Drawing and Disbursing officer, by order dated 7.2.1998 he was suspended and a departmental proceeding initiated against him. Thereafter the matter was placed before the District Establishment Committee in its meeting held on 30.12.2001 which resolved to dismiss the petitioner from service from the date of suspension. Accordingly by the impugned order dated 11.1.2002 (Annexure-1) the District Superintendent of Education issued order inflicting the punishment of dismissal from service from the date the petitioner was put under suspension. Aggrieved by the same, petitioner preferred appeal before the Divisional Commissioner. The Divisional Commissioner by the impugned order dismissed the appeal on the ground that the same was not submitted through the competent authority as contemplated under Rule 9 of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 (for short the Rules). 3. Mr. Arun Kumar Singh appearing on behalf of the petitioner raises a very short point. He submits that the petitioner preferred the appeal under Rule 10 of the Bihar Nationalised Primary School Teachers (Transfer and Disciplinary Proceedings) Rules and hence Divisional Commissioner totally misdirected himself by treating the appeal preferred by the petitioner under Rule 4 of the Rule and requiring its submission under Rule 9 of the said Rule. 4. J.C. to S.C. lll appears for the State. 5. I find substance in the submission of Mr. Singh, Rule 4 of the Rules provides to the member of the Subordinate Service remedy of appeal before the authority immediately superior to the authority which passed the order. 4. J.C. to S.C. lll appears for the State. 5. I find substance in the submission of Mr. Singh, Rule 4 of the Rules provides to the member of the Subordinate Service remedy of appeal before the authority immediately superior to the authority which passed the order. Rule 9 of the Rules, however, contemplates that every appeal preferred against the Rule shall be submitted through the head of the office to which the person belongs. As the appeal was not submitted through the head of office to which the petitioner belonged, the appellate authority dismissed the same on that ground. The petitioner had preferred the appeal under Rule 10 of the Bihar Nationalised Primary School Teachers (Transfer and Disciplinary Proceedings) Rules, 1993 which, inter alia, provides for filing the appeal before the Divisional Commissioner in case the order of punishment is passed after the approval of the establishment committee. The Bihar Nationalised Primary School Teachers (Transfer and Disciplinary Proceedings) Rules, 1993 having provided for remedy of appeal, under which the petitioner had preferred the appeal, the Divisional commissioner totally misdirected himself by treating the appeal under the provision of the Rules and requiring compliance of Rule 9 of the Rules. It is well settled that when an appeal is preferred under a particular Statute the procedure prescribed in that Statute is to be followed. The appeal having not been preferred under the Rules, petitioner was not required to submit it through his controlling officer. Hence the ground on which the appeal has been rejected is clearly unsustainable, which itself vitiates the order passed by the Commissioner. 6. In the result, the application is partly allowed. Order of the Divisional Commissioner dated 19th of November, 2003 (Annexure-2) is set aside and the matter is remitted back to him for reconsideration in accordance with law. In the facts and circumstances of the case, there shall be no order as to cost.