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2017 DIGILAW 76 (JHR)

Amrendra Nath Mishra v. Sainik School Society

2017-01-10

PRAMATH PATNAIK

body2017
JUDGMENT Pramath Patnaik, J. (CAV) – In the accompanied writ application, the petitioner has inter alia prayed for direction upon the respondents to follow the Rule 10.13 of Sainik School Society Rules and Regulations (herein after referred to as "the Rule" for the sake of brevity) whereby any order passed in the departmental proceeding shall be kept pending till any direction by the higher authority i.e. appellate authority is received; and for direction upon the respondents to pay difference of salary after deducting the subsistence allowance for the period from 22.06.1996 to 13.11.1996 and full salary for the period 14.11.1996 to 21.09.1998, during the period the petitioner remained dismissed from service; and further direction upon the respondents to treat the petitioner as regular employee during the pendency of the appeal in view of Rule 10.13 of the Rules and pay salary for the period from 21.10.2000 till the date of passing of subsequent order of dismissal; and further prayer has been made for quashing order dated 21.10.2000 by which the petitioner has been dismissed from services. 2. The facts, in brief, is that on the basis of news report regarding leakage of Hindi and Mathematics Entrance Question Paper, 1996 of Sainik School, Tilaiya, an Enquiry Board was constituted consisting petitioner and Major Satbir Singh-the principal of the school, who proceeded to Patna to enquire into the matter. But, later on, the Major Satbir Singh alone began to make enquiry and notice was served upon the petitioner. It is alleged that without following the procedure of departmental proceeding, an order dated 14.11.1996 was passed by which the petitioner was dismissed from services, which was affirmed in appeal vide order dated 19.05.1998. Being aggrieved, the petitioner preferred writ application, being C.W.J.C No. 1587 of 1998 (R), which was disposed of vide order dated 16.09.1998 quashing the impugned orders, however, liberty was reserved with the respondents to adopt fresh proceeding in accordance with law. Pursuant thereto, a fresh proceeding was initiated against the petitioner which resulted in passing of impugned order of dismissal dated 21.10.2000, against which, the petitioner preferred statutory appeal, which is still pending. 3. Learned counsel for the petitioner submitted that the second round of departmental proceeding is also fraught with procedural irregularity and without affording opportunity to defend his case, the departmental proceeding has been concluded. 3. Learned counsel for the petitioner submitted that the second round of departmental proceeding is also fraught with procedural irregularity and without affording opportunity to defend his case, the departmental proceeding has been concluded. It has been submitted that the enquiry officer has himself acted as a presenting officer and asked the leading questions to the witnesses while conducting the enquiry. In the enquiry, the vital prosecution witness, Major Satbir Singh has deposed that he got information regarding leakage of question paper from one Manoj Kumar and preliminary enquiry was made on the basis of assertions made by said Manoj Kumar but he was neither noticed to appear before the enquiry committee nor the request made on behalf of petitioner to present said Manoj Kumar was accepted, which has caused great prejudice of the case of the petitioner. In this regard, it has further been submitted that in the criminal appeal, the learned Sessions Judge also gave his finding to the effect that P.W. 1-Major Satbir, the informant of the case, during cross-examination has deposed that "he came to know about leakage of question from one Manoj Kumar but the said Manoj Kumar was not brought in witness box." The learned Sessions Judge further gave finding that "it is relevant to note here that at one stroke this witness (P.W. 1) has stated that he came to know about the leakage of question from one Manoj Kumar and in the same breath he has stated that there was doubt in the statement of Manoj as a result of which he had not disclosed the matter narrated in FIR." Learned counsel further submitted with vehemence that the Major Satbir Singh has further deposed in criminal case in paragraph 36 of the deposition that Manoj Kumar told him that paper leaked on 12.02.1996 but the petitioner was given packets of question on 14.02.1996, yet the proceeding continued against the petitioner. Referring to Rule 10.03 of the Rules, learned counsel for the petitioner submitted that petitioner is entitled to pension even in the case of dismissal from services and further referring to Rule 10.13 of the Rules, it has been submitted that order passed by the disciplinary authority shall be kept pending till disposal of appeal but the respondents have given effect to the order of dismissal passed on 21.10.2000 and removed the petitioner from services. Hence, the petitioner is entitled to full salary for the relevant period and consequential benefits. Learned counsel for the petitioner further referred to Rule 10.25 of the Rules, according to which, the enquiry and proceedings should be completed within three months but even after passing of years the proceeding is going on and appeal is pending despite repeated request made by the petitioner to conclude the same. 4. Controverting the averments made in the writ application, learned counsel for the respondents submitted that petitioner was made In-charge of Entrance Examination of Sainik School for the session 1996-97 scheduled to be held on 18.02.1996 in Nawadah (now in Bihar) Centre, from where, there was complain of leakage of question paper and there is specific allegation against him that he violated the specific instruction as he did not hand over the sealed box containing question paper on 15.02.1996 to principal of the examination centre and removed the seal of the box in the hotel, where he stayed and while depositing the unused question paper, it was noticed that there was shortage of question papers. It has been submitted that the petitioner was given all details and all the documents vide letter dated 20.02.1999 (Annexure A). It has further been submitted that as per the opinion of the Court of Enquiry, the leakage of question papers for entrance examination of Sainik School, Tilaiya in 1996 could be attributive to security lapse at Nawada centre. Conversely, documentary evidence conclusively does not support this. 5. After bestowing my anxious consideration to submissions advanced by learned counsel for the parties and on close scrutiny of the materials available on record, it came to surface that information regarding leakage of question paper came from the mouth of one Manoj Kumar and preliminary enquiry was made on the basis of assertions made by him but the said Manoj Kumar was not examined in the departmental proceeding, which has caused great prejudice of the case of the petitioner, which fact also finds mention in the judgment passed in Cr. Appeal No 89 of 2009, in which, the petitioner has been acquitted of the charges by the competent Court of law. Appeal No 89 of 2009, in which, the petitioner has been acquitted of the charges by the competent Court of law. View of this Court gets fortified by the laws laid down by Hon''ble Apex Court in the case of in the case of Union of India & Ors v. Prakash Kumar Tandon, as reported in (2009) 2 SCC 541 . 6. Be that as it may be, as per the submissions made by learned counsel for the parties, the statutory appeal preferred by the petitioner is still pending, hence, it would be apposite to give a direction to the appellate authority to do well with the appeal preferred by the petitioner and take a decision thereof, taking into consideration the observations made by the petitioner, relevant rules/regulations of Sainik School Society Rules and Regulations, in particular Rule 10.03, 10.13 and 10.25. 7. In the result, the writ petition stands disposed of with a direction to the appellate authority to dispose of the appeal as expeditiously as possible preferably within a period of three months from the date of receipt/production of copy of this order, by passing a speaking and reasoned order, communicating the same to the petitioner. It is needless to mention here that if the petitioner is the found eligible to be paid any admissible dues the same must be paid within a period of two months thereafter. 8. With the aforesaid observations and directions, the writ petition stands disposed of.