IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7264 of 2009 1. MOST. BIMI DEVI, WIDOW OF LATE SANJAY KUMAR MISHRA. 2. KUNAL KISHORE, SON OF LATE SANJAY KUMAR MISHRA. 3. KUNDAN KISHORE, SON OF LATE SANJAY KUMAR MISHRA. ALL RESIDENT OF VILLAGE SHRIPUR BHATWALIAN BLOCK SUGOLI, DISTRICT – MOTIHARI. ……….. PETITIONERS. Versus 1. THE STATE OF BIHAR THROUGH THE DIRECTOR, PRIMARY EDUCATION, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE DIRECTOR, PRIMARY EDUCATION, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DISTRICT ESTABLISHMENT COMMITTEE, EAST CHAMPARAN THROUGH ITS CHAIRMAN –CUM- DISTRICT MAGISTRATE, MOTIHARI. 4. THE DISTRICT SUPERINDENT OF EDUCATION, EAST CHAMPARAN, MOTIHARI. 5. THE DEPUTY SUPERINTENDENT OF EDUCATION, EAST CHAMPARAN, MOTIHARI. 6. DIVISIONAL COMMISSIONER, TIRHUT MUZAFFARPUR. ………… RESPONDENTS. ----------- 07/ 05.07.2011 Heard counsel for the petitioners and the counsel appearing for the State. Original petitioner, Sanjay Kumar Mishra died during the pendency of the writ application and his wife and legal heirs have been substituted as petitioners in this case. Writ application was filed by the original petitioner for quashing of the order contained in Memo No. 2869 dated 6.6.2000 (Annexure-6), whereby he has been dismissed from his service by the D.S.E., East Champaran. The impugned order has been passed in a departmental proceeding initiated against the petitioner, framing two charges:- (i) the petitioner an Assistant teacher comes to 2 school according to his own wishes, receives salary without discharging his duties, shows aloofness towards his duties and puts his signature in different attendance registers, which he keeps with him and (ii) gross negligence of government duty. Petitioner was working as Assistant teacher in the Primary School, Ghanshyam Pakari, when he was put under suspension by the District Superintendent of Education, Motihari, in contemplation of a departmental proceeding. Two charges were framed and the charge memo was issued to the petitioner on 15.1.1999. Petitioner submitted his show cause before the Block Education Extension Officer, Chakia, who has been appointed Conducting Officer, in the departmental enquiry. Joint departmental proceeding against the petitioner and another Assistant teacher Dhrub Narayna Duwedi was conducted by the same Conducting Officer. The Conducting Officer submitted a joint enquiry report. So far charges against the petitioner relating to his absence and gross negligence from duty are concerned, were not found to be proved. The Enquiry Officer recommended for exonerating the petitioner from both the charges and also 3 suggested that petitioner be transferred to another school. However, differing with the Conducting Officer’s enquiry report, second show cause notice was issued by the D.S.E., East Champaran vide Annexure-5. No reason was shown in the second show cause notice, for differing with the enquiry report. A new allegation was made against the petitioner in the second show cause notice that he is not maintaining cordial relationship with the another teachers and while going out of the school, in connection with any govt. work, he never takes permission from his superior authorities neither makes any entry in the attendance register with regard to this. Petitioner submitted his second show cause denying new charge communicated to him through second show cause notice. Petitioner’s case is that being single teacher in the school he had to go out in connection with govt. works. On the concerned date i.e. 3.9.1998 when inspection was made by the Sub-divisional Education Officer, petitioner was found absent as he had gone for depositing the bank drafts of salary bills in the Bank. Counsel for the petitioner submits that despite the fact that charges were not proved against the petitioner and 4 no reason was assigned in second show cause notice, for differing with the enquiry report, the Disciplinary Authorities passed a composite order dated 6.6.2000, awarding punishing of dismissal from service, against the petitioner. Earlier writ application had been filed by the petitioner, which was disposed of, giving liberty for filing appeal. L.P.A. preferred by the petitioner was also disposed of, giving liberty to the petitioner for availing the remedy of statutory appeal within one month to the order. The Appellate Authority without discussing facts and law points raised by the petitioner dismissed the appeal, vide Annexure- 9. The grounds on which the petitioner has challenged the impugned order of dismissal is that the punishment of dismissal could not have been awarded to the petitioner for 3rd charge, which had never been framed against him and served upon hi. He was not given any opportunity to place his defence with regard to the 3rd charge. The other two charges framed against him were not proved, but in a most arbitrary and illegal manner the Disciplinary Authority awarded punishment, for such charge, which was neither framed nor proved against him. In the counter affidavit there is no specific 5 averment denying the allegations made by the petitioner. Simply it is stated that since the petitioner used to absent himself from the school on regular basis and several complains in this regard were made by the villagers, a departmental proceeding was initiated against him as on the date of inspection he was found absent by the Sub- divisional Education Officer. There is no denial so far composite departmental enquiry, composite enquiry report and the composite order, awarding punishment to the petitioner, is concerned. No reason has been shown why the Disciplinary Authority did not give any reasons for differing from the enquiry report recommending to exonerate the petitioner from both the charges. Legality of substituting new charge along with second show cause notice, has also not been substantiated. There is no averment in the counter affidavit that under which rule or legal provision, punishment of dismissal from service could have been awarded for such charge, which was never, framed neither proved against the petitioner. For these reasons, I find that impugned order, whereby the original petitioner had been dismissed from 6 service is completely illegal, arbitrary and against the settled law, relating to procedure to be adopted for conducting a legal departmental proceeding against a government employee. The impugned order dated 6.6.2000 contained in Annexure-6 as well as Appellate order dated 6.4.2009 passed by the Commissioner, Tirhut Division, Muzaffarpur are quashed, for apparent illegality. This application is allowed. The original petitioner has died, as such the monetary and consequential benefits for which he would have been entitled, now shall be paid to his widow and the other substituted legal heirs. The respondents will also pass necessary orders, relating to pension and pensionary benefits, considering entitlement of substituted petitioner on account of the death of Sanjay Kumar Mishra, the original petitioner. Respondents will pass necessary orders within twelve weeks from the date of receipt/communication of this order. DKS/ (Mridula Mishra, J.)