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Patna High Court · body

2008 DIGILAW 44 (PAT)

Chandra Deo Sharma v. State Of Bihar

2008-01-08

MRIDULA MISHRA

body2008
Judgment 1. Heard the counsel for the parties. 2. This application has been filed for quashing the order, dated 14.6.2005, passed in Service Appeal Case No. 38 of 2001 by the Divisional Commissioner, Patna, affirming the order of dismissal, communicated to the petitioner under the signature of the District Superintendent of Education, Patna, vide Memo No. 37 (Legal), dated 17.7.1999. The petitioner has also prayed for quashing the order of dismissal, contained in Memo No. 37 (Legal), dated 17.7.1999. Further, prayer of the petitioner is for a direction to the respondents to treat him reinstated in service till the date he would have superannuated from service in normal course, i.e., 31.12.2002 and to provide him with arrears of Salary and other service benefits consequential to reinstatement in service. 3. Petitioner was working on the post of Headmaster, Government Middle School, Anchal Pandara, in the district of Patna. His case is that on account of sudden abdominal pain on 19.10.1993 he proceeded on casual leave. He had filed application for grant of casual leave on the same day, which was sent to Area Education Officer, Barh, and duly received in his office on the same date. On that very date, the Area Education Officer made inspection of the school and reported the Sub-Divisional Officer, Barh, about petitioners absence from school. On the basis of this report, the Sub-Divisional Officer, Barh issued an order on 5.11.1993, withholding the salary of the petitioner. Petitioner was also asked to submit show cause explaining his absence. Thereafter, petitioner submitted his application for release of withheld salary on account of the order passed by the Sub-Divisional Officer, Barh, but the District Superintendent of Education, did not take any action for release of petitioners salary. Petitioner approached the Regional Deputy Director, Education, Patna Division, for release of his withheld salary. The Regional Deputy Director, Education, directed the District Superintendent of Education, Patna, vide his letter, dated 12.7.1997, for release of petitioners salary. The District Superintendent of Education, in spite of this letter did not take any steps for release of petitioners salary. The Regional Deputy Director, Education, Patna Division, again, vide letter, dated 27.7.1997, directed for release of petitioners salary. The Regional Deputy Director, Education, directed the District Superintendent of Education, Patna, vide his letter, dated 12.7.1997, for release of petitioners salary. The District Superintendent of Education, in spite of this letter did not take any steps for release of petitioners salary. The Regional Deputy Director, Education, Patna Division, again, vide letter, dated 27.7.1997, directed for release of petitioners salary. Petitioners salary remained stopped since August, 1993 without initiating any departmental proceeding or without there being any order of punishment, as such, he filed C.W.J.C. No. 8587 of 1997 for release of his withheld salary as well as of current salary. This writ application was disposed of by order, dated 6.7.1998, and a direction was issued to the District Superintendent of Education, Patna, to examine the grievance of the petitioner and pass appropriate order after giving due opportunity to the petitioner. As per the direction of this Court, the order should have been passed within six weeks from the date of production of the order passed in writ application. The petitioner submitted his representation, alongwith the order passed by the High Court, in spite of that no opportunity of hearing was given to the petitioner, no order was passed for released of petitioners salary. On the other hand, a notice was published in the Hindi daily newspaper "Hindustan", dated 23.6.1999, stating that in view of order passed by the Hon ble High Court in C.W.J.C. No. 8651 of 1998. Petitioner was asked to appear before the concerned authority on 25.11.1998. Since he failed to appear he was directed by this notice to appear before the undersigned within a week to present his case. Petitioners case is that he had never received any notice issued by the District Superintendent of Education and that was the reason that he could not appear on the date fixed for hearing. The petitioner, after the publication of notice in the daily newspaper "Hindustan" went to the office of the District Magistrate, Patna, on 28.6.1999 with his show cause. The District Magistrate was not present in the office. He went to office of the District Superintendent of Education, alongwith the show cause. The District Superintendent of Education refused to accept his show cause and asked him to contact him at his residence, as such, on 29.6.1999, the petitioner sent his show cause through registered post. The District Magistrate was not present in the office. He went to office of the District Superintendent of Education, alongwith the show cause. The District Superintendent of Education refused to accept his show cause and asked him to contact him at his residence, as such, on 29.6.1999, the petitioner sent his show cause through registered post. As per the notice, published in the "Hindustan" newspaper the show cause was asked to be filed regarding petitioners absence from his duty, which was duly explained by the petitioner in his show cause. Petitioners, further case is that he was never served with any charge-sheet relating to allegation, as such, no departmental proceeding was ever initiated against him in accordance with law, in respect of any charges. Thereafter, the District Superintendent of Education, Patna, vide Memo No. 37 (Legal), dated 17.7.1999, dispatched the final order passed in the departmental proceeding at the school address, which was duly received by the petitioner. By the impugned order petitioner was dismissed from his service with retrospective effect, dated 18.2.1994 under Rule 76 of the Bihar Service Code. The order for dismissal from service was passed for the charge of defalcation. Petitioners case is that the impugned order was passed in violation of Rule 7 of Nationalized Elementary School (Transfer and Disciplinary) Rules. The petitioner challenged the order of dismissal by filing C.W.J.C. No. 217 of 2001 which was permitted to be withdrawn for filing an appeal before the appellate authority, i.e., the Divisional Commissioner, Patna. The appeal preferred by the petitioner has been dismissed by the Divisional Commissioner, Patna, by order, dated 10.10.2007, which is under challenge in the present writ application. 4. The petitioner has challenged the appellate order passed by the Divisional Commissioner, Patna, in Service Appeal No. 38 of 2001 as well as the order passed by the District Superintendent of Education, Patna, dated 17.7.1999, dismissing him from service with retrospective effect on the ground that the orders have been passed in violation of principle of natural justice. The rule provides for holding a regular departmental enquiry and only after the charges are proved by producing departmental witnesses and by examining them by the enquiring officer, any order of punishment could have been passed. Even if the petitioner did not attend the enquiry the onus of proving of charges is cast upon the department. The rule provides for holding a regular departmental enquiry and only after the charges are proved by producing departmental witnesses and by examining them by the enquiring officer, any order of punishment could have been passed. Even if the petitioner did not attend the enquiry the onus of proving of charges is cast upon the department. Since no witnesses were called by the department in support of charges, it will amount that the department has not proved its case and in such a situation the enquiry officer could not have recorded the finding with regard to guilt against the petitioner simply because he was absent. It has also been submitted by the petitioners counsel that he was never served with any charges, nor given any opportunity to refute the charges framed against him. In.that view the process of entire departmental proceeding as well as the consequential orders are completely illegal, arbitrary and without jurisdiction, as such, fit to be quashed. The petitioner is entitled for reinstatement in service and for all consequential benefits. In support of his submission the petitioner has placed reliance on a decision reported in 2000 3 PLJR 10 Kumar Upendra Singh Parimar V/s. B.S. Co-opt. Land Dev. Bank Ltd. & Ors., as well as 1993 4 SCC 727 (Managing Director, ECIL, Hyderabad & Ors. V/s. B. Kamrankar & Ors.) and AIR 1998 SC 2722 (Union of India & Ors. V/s. Dinanath Shantaram Karakar & Ors.). 5. In A.I.R. 1998 S.C. 2722, it has been held "where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, therefore, to participate in the disciplinary proceeding. So also, when the show cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situation, the employee is given opportunity to submit his reply, the theory of "communication" cannot be invoked and "actual" service must be proved and established. It has already been void neither the chargesheet not the show cause were ever served upon the original respondent. The entire proceedings were vitiated". 6. Since in both the situation, the employee is given opportunity to submit his reply, the theory of "communication" cannot be invoked and "actual" service must be proved and established. It has already been void neither the chargesheet not the show cause were ever served upon the original respondent. The entire proceedings were vitiated". 6. Similarly in 2000(3) P.L.J.R. 10 , it has been held that "Departmental proceedingswhere rules provide for holding a regular departmental enquiry, it is necessary to prove the charge against the delinquent employee by producing the departmental witnesses and by examining them by the enquiry officer. This is necessary even if the delinquent employee does not attend the enquiry. The onus of proving the charges is cast on the department and not on the delinquent employee. Therefore, if no witness is called by the department in support of the charges in that case it should be held that the department has not proved its case and in such a situation the enquiry officer cannot record the findings with regard to guilt against the delinquent employee just because the delinquent employee is absent. It cannot be accepted that since the charges are based upon the documents so no witnesses need to be examined to bring home the charges. The enquiry report in such cases loses all its importance and the punishment imposed cannot be sustained. However. charges not quashed and directions given to hold fresh enquiry, if so advised, by giving adequate opportunities to the delinquent employee and producing their own witnesses in support of charges and till then the employee is reinstated in service but without back wages". 7. Counter affidavit has been filed on behalf of the District Education Officer, Patna, respondent no. 5 stating that the petitioner while posted as Headmaster in Middle School, Sarhar, had fraudulently withdrawn salary in the name of fictitious teachers. This process was continuing since 26.9.1983 till 1993. The District Superintendent of Education, Patna, when came to know about this illegal and fraudu- lent withdrawal, issued show cause notice to the petitioner vide Memo No. 4560, dated 5.10.1993. In reply to this notice, petitioner submitted his show cause on 5.10.1993. He admitted that he was withdrawing salary against fictitious persons and wrote for being forgiven. The defalcation was amounting to approximately rupees five crores of Government money. Regarding this defalcation Pandarak P.S. Case No. 31 of 1994 was registered. In reply to this notice, petitioner submitted his show cause on 5.10.1993. He admitted that he was withdrawing salary against fictitious persons and wrote for being forgiven. The defalcation was amounting to approximately rupees five crores of Government money. Regarding this defalcation Pandarak P.S. Case No. 31 of 1994 was registered. After investigation of criminal case, petitioner absconded with the relevant documents. Since the petitioner was not being paid his salary, he filed writ application for a direction to make payment of his salary. This writ application was disposed of without any counter affidavit and direction was issued to the District Superintendent of Education, Patna, to examine the matter. The District Superintendent of Education, thereafter, issued notices to the petitioner fixing the date of hearing to consider the matter, but the petitioner did not appear. The registered notices, issued to the petitioner, were returned undelivered with a note that addressee refused to accept notice. The notices were also issued at his official address which were also returned with a note that he has left coming to school and also left the place, as such, not traceable. In the departmental proceeding also notice was issued and charges were sent at the official address of the petitioner. The notice was also published in the newspaper, in spite of that he never appeared before the enquiry officer. The enquiry officer conducted ex parte enquiry, submitted its report in which charges of embezzlement of Government money was proved. Since the petitioner did not avail the opportunity to submit his show cause or contest the charges, as such, the District Establishment Committee examined the entire matter. It was found that petitioner is absconding with the school records, the District Establishment Committee in its meeting, dated 15.7.1999, made a resolution to dismiss the petitioner from service with effect from 18.2.1994 as he was absconding since 18.2.1994. The dismissal order was issued vide Memo No. 37 (Legal), dated 17.7.1999. It has been denied that without giving any opportunity to show cause or communication of the notice to the petitioner, the order of dismissal has been passed. 8. On perusal of the pleadings of the charges and the submissions of the counsel, it is apparent that charges levelled against the petitioner were serious. It has been denied that without giving any opportunity to show cause or communication of the notice to the petitioner, the order of dismissal has been passed. 8. On perusal of the pleadings of the charges and the submissions of the counsel, it is apparent that charges levelled against the petitioner were serious. The charges related to embezzlement of huge public money, but for imposing any punishment it is essential that the mandatory procedure for holding a departmental enquiry must be observed. In the counter affidavit it has not been stated that in order to prove the charges any witness was examined. It has also not been stated that due steps were taken for service of notice to the petitioner. So far the letter, dated 5.10.1993, in which it is alleged by the respondents that the petitioner admitted his guilt regarding withdrawal of salary against 26 fictitious teachers is concerned, has been denied by the petitioner. It has been stated that no such letter was sent by the petitioner admitting his guilt. In the given facts and circumstance, it is apparent that the departmental enquiry was held without any participation of the petitioner. The charges were held to be proved against the petitioner by the respondent authorities without examining any witnesses to support the charges of defalcation. In sum and substance without following the procedure for holding a departmental proceeding, the charges were held to be proved and an order of dismissal was passed against the petitioner. It is true that a departmental proceeding cannot be equated with a criminal trial and the technicalities of the evidence are not applicable, so far departmental proceeding is concerned. In spite of that it is an admitted fact that as a result of departmental enquiry the delinquent employee can loose his service on which his livelihood depends. Due to this reason it is essential that before holding that the charges are proved abundant caution and care should be taken that the delinquent should not be punished without getting an opportunity to defend himself. 9. In this view the enquiry report, the official order of punishment as well as the order passed by the appellate authority looses its importance and sanctity. It is required that charges must be proved in accordance with law. The impugned orders are quashed, but so far charges are concerned, they are not quashed. 9. In this view the enquiry report, the official order of punishment as well as the order passed by the appellate authority looses its importance and sanctity. It is required that charges must be proved in accordance with law. The impugned orders are quashed, but so far charges are concerned, they are not quashed. The respondent authorities are directed to hold fresh enquiry, if so advised, by giving adequate opportunity to the petitioner, following due process for holding a departmental enquiry. The petitioner is also directed to participate in the departmental enquiry. Since the petitioner has crossed the age of superannuation, as such, no direction can be issued for reinstatement of his service, but payment of salary and other consequential benefits to the petitioner will be subject to the final order passed in the departmental proceeding. If the charges are not proved, the petitioner will be entitled for his pension and other consequential benefits. 10. With the aforesaid observations and directions, this application is allowed.