Shailendra Kishor Sharan vs The State of Bihar and Others

Mihir Kumar Jha, J.—Heard counsel for the parties. Initially when the writ application was filed on 6.8.2009 the petitioner had made the following prayer:

(I) Mandamus/ Certiorary quashing the order dated 28.7.2008 contained in Annexure 9 vide which petitioner being an Assistant Teacher of Middle School, Samda, Hathia Haveli, Kharagpur was kept under suspension by respondent no. 3 and upon enquiry nothing has found by enquiry officer against petitioner.

(II) For issuance of mandamus/ Certiorari for quashing order No. 1132 dated 30.5.2009 issued by respondent no. 3 who without assigning any reason again appointed another enquiry officer, who is Junior than 1st enquiry officer (Annexure-11).

It has to be taken into account that the operation of the order dated 30.5.2009 as with regard to appointment of a fresh Enquiry Officer was stayed by this Court on 20.8.2009 white directing the respondents to file their counter affidavit.

During the pendency of this writ application the Enquiry Officer had concluded the departmental enquiry and had exonerated the petitioner as in his opinion none of the charges could be proved against the petitioner but the disciplinary authority had differed with the enquiry report and had issued a show cause notice by a reasoned order dated 31.12.2009 (Annexure-A) and thereafter having considered the show cause reply of the petitioner as also after affording an opportunity of personal hearing on 26.2.2010 had passed the order of punishment dated 2.3.2010 (Annexure-12) certain punishment by way of censure, stoppage of one increment with non-cumulative effect and denial of duty and assignment of work of the post of Headmaster-cum-Drawing and Disbursing Authority. The petitioner had accordingly assailed both the aforesaid orders dated 31.12.2009 and 2.3.2010 by filing supplementary affidavit on 31.8.2010.

The aforementioned two orders either with regard to continuing with the departmental proceeding or passing of the order of punishment was however treated by this Court to be in violation of the interim order passed by this Court on 20.8.2009 and a suo moto contempt proceeding, M.J.C. No. 4122/2010 was initiated against the District Superintendent of Education, Munger for allegedly circumventing the aforesaid interim order of this Court. When the said contempt notice was issued the D.S.E. had recalled the order dated 31.12.2009 by his order dated 25.9.2010. Thereafter this case was listed for admission and this Court had found that prima facie the District Superintendent of Education either by ignorance or deliberately had tried to over-reach the interim order of this Court. Accordingly, the, successor in office of the District Superintendent of Education, Munger, namely, the District Programme Officer (Establishment), Munger was summoned and he had offered only his limited defence that such an action was taken by his predecessor in office but he having realized that the order passed by his predecessor on 25.9.2010 would create a dichotomy, inasmuch as that would also amount to the petitioner being placed under suspension upon his examination of the whole matter has passed an order dated 30.1.2012 whereby and whereunder the order of suspension of the petitioner was revoked with retrospective effect i.e. 1.1.2010 and a show cause notice had been given to the petitioner by differing from the enquiry report as to why he should not be held guilty of the charges framed against him.

Mr. Bipin Bihari Singh, learned counsel for the petitioner, would submit that when initial order of suspension as also drawing the departmental proceeding dated 28.7.2008 was itself without jurisdiction, any further action taken on the basis of that including the present order dated 30.1.2012 can have no force in the eye of law and is also fit to be quashed. In support of his aforementioned submission he places reliance on Rule 20 of the Bihar Rajya Rajyakrit Prarambhik Vidyalaya Shikshak (Asthanantran Awam Anushashnik Karwai) Niyamawali, 2002 which reads as follows:-

Mr. Singh thus proceeds on an assumption that the order of suspension as also drawing departmental proceeding as contained in Annexure-9 was issued by the District Superintendent of Education in his individual capacity and as such, when approval of Zila Parishad was not taken such order either with regard to suspension and/or drawing the departmental proceeding cannot be sustained in the eye of law. This Court, however, when had asked Mr. Singh to point out any specific averment to this effect in the writ petition, he had referred to paragraphs 4 and 5 in the supplementary affidavit which reads as follows:-

That it is stated and humbly submitted that under the Teachers Transfer and Disciplinary Action Rule, 2002, the District Superintendent of Education, Munger is not the competent authority for the disciplinary proceedings and the order of the punishments. In view of the Sections 20 and 21 of the Rule 2002 it is an apparent that the power is vested in ''Zila Parishad'' for the purposes of approval pertaining to suspension of the initiation of the departmental proceedings. The Section 21 is specific that the District Superintendent of Education, Munger will give a comment on the second show cause and place the records before the Deputy Development Commissioner who is competent to punishment by the D.D.C. will be communicated by the District Superintendent of Education and the compliance reports may be given to the District Education Establishment Committee in its next meeting.

That it is stated and humbly submitted that in the case in hands it is an apparent that the entire exercise pertaining to Annexures-9, 11 and 12 are issued by the District Superintendent of Education who is no authority under the law and in the said backgrounds the order impugned are fit to be set aside and the declare the same as ab initio void and the otherwise bad.

From a bare reading of the aforementioned statement in the supplementary affidavit it would be clear that there is no specific averment in the writ petition or supplementary affidavit with regard to order of suspension and drawing a departmental proceeding to be bad on account of lack of sanction of Zila Parishad.

As a matter of fact this Court would find that the order of suspension and drawing departmental proceeding against the petitioner was passed on the direction of Director Primary Education as is permissible under Rule 20(8) of the Rules already quoted above from the counter affidavit filed by the Respondents it becomes clear that the petitioner was alleged to be part of the criminal conspiracy wherein he in league with two earlier District Superintendent of Education, namely, Sri Nitish Chandra Mandal and Dr. Prem Shankar Srivastava as also Ramlal Singh, Clerk in the office of the District Superintendent of Education, Yogendra Paswan, Drawing and Disbursing Officer-cum-Head-master of Middle School, Dhauri was found to have accepted joining of one Man Mohan Kumar, a teacher allegedly appointed on the basis of forged appointment letter. The Central Bureau of Investigation (CBI) in fact had itself found a strong prima facie case against the petitioner and Ramlal Singh as also Yogendra Paswan for initiation of departmental proceeding vide its confidential letter dated 27.9.2007, whereafter the Chief Secretary of the Govt. of Bihar had directed the Special Secretary-cum-Director, Primary Education to initiate action as would be evident from the letter no. 1962 dated 26.5.2008 of the Director, Primary Education addressed to District Superintendent of Education. In fact the composite order of suspension and the memo of charge was drawn by the District Superintendent of Education, Munger vide his memo dated 28.7.2008 on the direction of Director Primary Education as would also be evident from the relevant portion of the order dated 28.7.2008 (Annexure 9):

Now there is no doubt that the petitioner was holding the substantive post of an Assistant Teacher and the Director, Primary Education is the Head of the Department. Rule 20(8) as quoted and underlined above specifically prescribes the Government/Head of the Department to direct for suspension of any Headmaster/ teacher as also initiation of a departmental proceeding against him. Thus, if the District Superintendent of Education had carried out the order of the Director, Primary Education either by placing the petitioner under suspension or initiating a departmental proceeding by framing of charges his such action cannot be held to be without jurisdiction.

As with regard to jurisdiction of the District Superintendent of Education in framing charges, this Court would find that there is no bar in Rule 20 disabling the District Superintendent of Education to frame charge as would be clear from the conjoint reading of Rule 20(1) read with Rule 20(4) especially when Rule 20(5) does not prescribe any particular authority for framing of charge and appointment of Enquiry Officer. This aspect of the matter in fact has been settled by the Apex Court in a long line of cases and reference in this connection may be made to the judgment of the Apex Court in the case of State of Madhya Pradesh and Others Vs. Shardul Singh, , P.V. Srinivasa Sastry and others Vs. Comptroller and Auditor General and others, , Transport Commissioner, Madras-5 Vs. A. Radha Krishna Moorthy, , Inspector General of Police and another Vs. Thavasiappan, , Government of Tamil Nadu and others Vs. S. Vel Raj, and the Commissioner of Police vs. Jayasurian and Anr., (1997) 6 SCC 75 , wherein it has been held that any superior authority who was held to be controlling authority can initiate a departmental proceeding and issue memo of charge and that the initiation of a departmental proceeding and conducting an enquiry can be by the authority other than the authority competent to impose proposed penalty.

Thus, in view of settled position in law it would be too late in the day in the petitioner to raise the question of jurisdiction of the District Superintendent of Education in framing memo of charge against the petitioner, especially when as noted above, he had already participated in the departmental enquiry and had subjected him to those charges. Presently the petitioner has been only asked to submit his explanation as with regard to difference of opinion in the finding of the Enquiry Officer exonerating him a recourse which is fully permissible in Service Jurisprudence as was held by the Apex Court in the case of Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, .

In any event the remaining challenge of the petitioner towards the order of the District Superintendent of Education of framing charge against him in the departmental proceeding is also wholly misconceived either on fact or in law. Firstly, the petitioner had by his conduct at least his right to challenge such memo of charge because he has participated in the departmental proceeding wherein in the report of the Enquiry Officer he has been exonerated. In fact he had come to this Court against the order directing fresh enquiry by the disciplinary authority by not accepting the enquiry report. In that view of the matter, the petitioner having taken a chance to appear before the Enquiry Officer as with regard to memo of charge today cannot be allowed to turn around and assail the memo of charge itself. Reference in this connection may be made to the judgment of the Apex Court in the case of Transport Commissioner, Madras-5 Vs. A. Radha Krishna Moorthy, , wherein it has been held that the correctness of the charge-sheet cannot be made subject matter of judicial review prior to conclusion of the departmental enquiry and even after conclusion of the departmental enquiry the scope of judicial review is restricted to only the charges being based on no evidence.

in fact for such serious charges this Court would also not enter into the technicality by quashing the memo of charge on the ground of jurisdiction. Public money having been embezzled on account of payment of salary to a person whose appointment was itself forged at the instance of the petitioner, this Court would not find it appropriate in the ends of justice to thwart the departmental proceeding in the midst. As noted above, the petitioner has been asked to file his show cause reply by a show cause notice dated 30.1.2012 within a period of 15 days and therefore, this Court would hold that in the changed situation this writ application on account of subsequent event has become infructuous, inasmuch as the order of suspension has already been withdrawn and the recourse of holding a fresh departmental proceeding has also been given up. In other words, the impugned order of the writ application dated 28.7.2008 placing the petitioner under suspension and the next order dated 30.5.2009 appointing a new Enquiry Officer has already been given up. Neither the petitioner now has continued under suspension nor there is any new Enquiry Officer who has to conduct departmental enquiry afresh. In such a situation the petitioner cannot now have any grievance as with regard to a show cause notice dated 30.1.2012 issued to him giving him an opportunity to explain as to why the report of the Enquiry Officer should not be rejected and he (petitioner) be held guilty for the charges framed against him.

Thus, for the reasons indicated above, this Court does not find any error in the order passed by the District Education Officer, Munger dated 30.1.2012 whereby and whereunder he has only differed with the enquiry report and has directed the petitioner to submit his explanation to the charges which for the reasons indicated in the order appeared to have been prima facie proved by the disciplinary authority. The petitioner in fact will have all the opportunity persuading for acceptance of findings of the Enquiry Officer and also showing that the reasons for difference of opinion are not sustainable either on fact or in law. It must be clarified that the petitioner will get opportunity to assail the order of punishment, if any, passed against him by the competent disciplinary authority initially by filing an appeal and also by taking recourse to judicial review under Article 226 of the Constitution of India. Thus, for the reasons indicated above, this Court no longer finds any merit in this application and it is, accordingly, dismissed.