IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2623 of 2005 Avinash Kumar Singh son of late Shri Ram Lal Singh(Assistant Teacher), Middle School, Ariaon within Anchal Dumraon,District- Buxer, permanent and presently resides at Village and P.O. Majhariya, P. S. Buxar(Industry), District-Buxar. ------Petitioner. -Versus- 1. The State of Bihar. 2. The Commissioner, Division, Patna, Patna. 3. The District Magistrate, Buxar. 4. The District Development Commissioner, Buxar. 5. The Sub-Divisional Officer, Dumraon, District-Buxar. 6. The Director, Primary Education, Patna. 7. The Regional Deputy Director, Primary Education, Patna. 8. The District Education Establishment Committee, through its Chairman-cum-the Development Commissioner, Buxar, District- Buxar. 9. The District Superintendent of Education, Buxar. 10. The Area Education Officer, Buxar, District-Buxar. 11. The Headmaster, Middle School, Arion Anchal , Dumraon, District-Buxar. 12. The District Superintendent of Education, Ara, District- Bhojpur. 13. The Mukhiya, Gram Panchyat Ariaon Anchal, Dumraon, District-Buxar. -----Respondents. ----------- For the petitioner: Mr. Rajendra Prasad, Senior Advocate & Mr. Nil Kamal, Advocate. For the Respondents: Mr. Himanshu Kumar Akela, Assistant Counsel to G.A. 5. ----------- 3. 26.02.2009. Heard the counsel for the petitioner and the respondents. This writ application has been filed for quashing the appellate order passed by the Commissioner, Patna Division, Patna, in Case No.87 of 2002 dated 4.1.2005, whereby the order dated 8.6.2002 vide Gayapank No.863 passed by the District Education Establishment Committee, Buxar, dismissing the petitioner from his service, has been confirmed. Petitioner’s grievance is that he has been dismissed from the service of Assistant Teacher without giving him - 2 - any opportunity to show cause as well as without holding any proper enquiry in this regard. Petitioner’s case is that he was appointed as an Assistant Teacher in the month of April, 1988. He proceeded on casual leave on 30.01.2002 for treatment of his son and came back to give his joining on 21.02.2002. The leave as provided under Rule 22 of Bihar Service Code was sanctioned by the District Superintendent of Education, Buxar, vide Gayapank No. 359 dated 04.03.2002. Inspite of this, the District Magistrate, Buxar, gave an order for initiating an enquiry, as the petitioner was not found present in the School during his visit.. The reason for petitioner’s dismissal from service, as mentioned in the impugned order is complain made by Villagers before the District Magistrate, Buxar, regarding his continuous absence from duty and School. Villagers complained that he visits School only to sign Attendance Register and get his salary. It was also complained that petitioner is a veteran criminal of Buxar town. Villagers and local people are being threatened by him and that is the reason that no one is ready to make any complaint in writing against him. On the basis of such allegations, a notice was issued to the petitioner to show cause and he submitted his show cause in response to such notice, which was rejected as not satisfactory. The impugned order dated 8.6.2002 was passed dismissing him from service without holding proper departmental enquiry. In the counter-affidavit it has been stated that a representation was submitted before the District Magistrate, Buxar, - 3 - signed by more than 100 Villagers. On this representation, an enquiry was conducted by the Sub Divisional Officer, Dumraon, who found the petitioner guilty. Evidence was collected from the Superintendent of Police, Buxar, regarding criminal antecedent of petitioner. Informations gathered disclosed that the petitioner was a notorious criminal, involved in several criminal cases. The Superintendent of Police, Buxar, has recommended for his detention under Section 12(2) of the Crime Control Act. These reports collected by the Sub Divisional Officer formed basis for his dismissal. In the counter- affidavit as well as in the impugned orders, it is admitted that proper departmental enquiry was not conducted, as on that basis of evidence collected, it was not found necessary. Evidence collected against him were sufficient to pass dismissal order, in consonance with provision under Article 311(2)(b) of the Constitution of India, which provides that where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry, an order of the dismissal can be passed even without holding proper enquiry. Counsel for the petitioner submits that the impugned order has not been passed in consonance with Article 311(2)(b)of the Constitution of India. Circumstances in which an order under Article 311(2)(b) can be passed, has already been laid down by the Apex court in several decisions. Counsel for the petitioner has placed reliance on a decision reported in 1991(1)S. C. C. page 362. In this - 4 - decision several earlier decisions of the Supreme Court has been considered and it has been held that so far order passed under Article 311(2)(b) is concerned, two conditions must be satisfied to sustain any action taken thereunder. These are (i) there must exist a situation which renders holding of any enquiry “not reasonably practicable” and (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. In this decision finding that two requisite criteria for passing of order under Article 311(2)(B) of the Constitution of India is not present, the impugned order of dismissal was quashed. Considering the counter-affidavit and the submission of the counsel for the petitioner as well as the State, what I find that no material has been brought on record in support of the statement in the counter-affidavit that reasonably it was not practicable to hold a departmental enquiry. No reasoning has been given in support of the satisfaction of disciplinary authority, for not holding proper enquiry, for passing order of dismissal. Representation signed by 100 Villagers before the District Magistrate, regarding the criminal antecedent of the petitioner as well as threats enhanced by him has also not been brought on record. Villagers if gather courage to sign representation, then there was no reason not to depose in the proper departmental enquiry against the petitioner to prove charges. Petitioner admittedly submitted show cause in response of notice. This fact does not show that holding departmental enquiry was not reasonably impracticable. Regarding absence of the petitioner, I find that the relevant - 5 - dates on which the petitioner is said to have been absent from the School was his casual leave period, duly sanctioned by the District Superintendent of Education, Buxer. The District Superintendent of Education, Buxer, has not made any statement that he sanctioned the casual leave in favour of the petitioner either under duress or threats. There is no material to show that inspite of all allegations, holding a proper departmental enquiry against the petitioner was not practicable for passing any order of dismissal. Finding the fact that two requisites criteria for passing an order under Article 311(2)(b) of the Constitution of India is absent and the impugned order has been passed in violation of the criteria laid down by the Supreme Court, the impugned order can not be considered to have been passed in accordance with law. Accordingly, the orders contained in Annexure-7 and Annexure-3 are quashed. The respondents are directed to reinstate the petitioner, forthwith with all consequential benefits. However, the respondents are free to initiate a departmental proceeding against the petitioner in accordance with law and pass necessary orders. This writ application is allowed. U.K. (Mridula Mishra,J)