IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.1667 OF 2007 PRAVIN KUMAR CHOUDHARY, S/O LATE BASUNDHRA CHOUDHARY, R/O VILLAGE KHUKHSENA, P.S BHATOTAR CHAKLA DISTT. PURNEA RESIDING AT PROF.COLONY, DURGA ASTHAN, KATIHAR, AT PRESENT HOLDING THE POST OF ROUTINE CLERK, D.S. COLLEGE, KATIHAR. …………………PETITIONER. VERSUS 1.BHUPENDRA NARAYAN MANDAL UNIVERSITY, LALOO NAGAR, MADHEPURA, THROUGH ITS REGISTRAR. 2.VICE CHANCELLOR, B.N.M.U, MADHEPURA. 3.THE REGISTRAR, B.N.M.U MADHEPURA. 4.THE PRINCIPAL, D.S. COLLEGE, KATIHAR. 5.DR. GAUTAM PRASAD SINGH, S/O NAME NOT KNOWN TO THE PETITIONER PRESENTLY RESIDING AT PROF. COLONY, DURGA ASTHAN, AT KATIHAR,P.S. KATIHAR, DISTT. KATIHAR. ……………………Respondents. ----------- 04/ 06.09.2011 Heard counsel for the parties. The prayer of the petitioner reads as follows:- “That this is an application for issuance of a writ in the nature of Certiorari for quashing of the letter issued vide No. 1137 dated 07.03.2001 issued under the signature of respondent no. 5 under which the petitioner was relieved to join the University headquarter and further for issuance of a writ in the nature of mandamus directing the respondents concerned to make the payment of dues salary to the petitioner from 08.03.2001 till the date and also to make the payment of current salary and further for issuance of an appropriate writ/order/direction to the respondents concerned to post the petitioner in the D.S College, Katihar and allowed him to continue in the service of the said College and further for issuance of an appropriate writ/order/directing the respondents not to interfere with the working of the petitioner and D.S College, Katihar save and except in accordance with law.” 2 When this writ application was heard also on 29.07.2011, this Court having examined the tenor of the impugned order as contained in Annexure-4 reading as follows:- lsok esa] Jh izoh.k dqekj pkS/kjh] fnup;kZ fyfid] Mh0 ,l0 dkWyst] dfVgkj A fo’k;%& vuqifLFkr vof/k lsok esa VwV ekurs gq, iqu% ;ksxnku djus dh vuqefr ds laca/k esaA egk”k;] mi;qZDr fo’k;d vkids vkosnu i= fnukad 17-04-2003 ij fo”ofo|ky; }kjk xfBr esfMdy cksMZ dh vuq”kalk ds vkyksd esa funs”kkuqlkj lwfpr djuk gS] fd vkidks fo”ofo|ky; eq[;ky; esa ;ksxnku dh Lohd`fr iznku dh tkrh gS A lkFk gh vkidh ewy lsok esa vkidh vuqifLFkr vof/k lsok esa VwV ekuh tk;saxh rFkk mDr vof/k dk dksbZ Hkqxrku vkidks ns; ugha gksxk vkSj u gh dksbZ osru o`f) ns; gksxh A vuqifLFkfr dh frfFk ds iwoZ dk osru gh ns; gksxk A fo”oklHkktu g0@& dqy lfpo had passed the following order reading as follows:- “Having heard counsel for the parties, this Court is both shocked and surprised in the manner in which the University Authorities have dealt with service condition of the petitioner. Right or wrong when the petitioner was absent from duty, he could have been subjected to any punishment including non payment of his salary only after undergoing departmental proceeding It has been the settled law made in the pronouncement made by Apex Court as also this Court that in cases of unauthorized absence, 3 there cannot be any automatic removal or punishment without conducting a departmental proceeding. From Annexure-4, it is however clear that the Registrar of the University had passed the order by way of an executive fiat depriving the petitioner from payment of salary as also causing break in service without any departmental proceeding. Such order can not with stand scrutiny of this Court. At this stage, Mr. Hemendra Prasad Singh, learned counsel for the University, who has not filed his counter affidavit controverting the facts asserted by the petitioner, would submit that since there was some sort of proceeding going as would appear from Annexure-7, he would require a month’s time to enable the University to take a final decision. He also assures this Court that the petitioner will be given full justice by the Authorities and his payment of salary and other service conditions will be secured strictly in accordance with law. List this case after one month at the top of the list in order to enable Mr. Singh, learned counsel for the University to file his affidavit stating therein, full facts and the final decision taken as with regard to the payment of salary to the petitioner from 07.03.2001 onwards.” The counter affidavit which has been filed today by the Registrar of the University to say the least does not answer the query made by this Court in the aforementioned order, inasmuch as, nothing 4 has been brought on record to show that the aforesaid order dated 14.08.2003 was passed after conducting Departmental Proceeding and/or even affording an opportunity of hearing to the petitioner. In that view of the matter, this Court will have no option but to quash the impugned order dated 14.08.2003. Learned counsel for the petitioner in fact has brought to the notice of this court that a Departmental Proceeding against the petitioner was initiated on 08.06.2006, and the proctor of the University was made Inquiry Officer. The notification dated 08.06.2006, a copy whereof has been produced by the learned counsel for the petitioner in case of making his submission would go to show that the said Departmental Proceeding was initiated for going into the charge of his being unauthorized absent from duty for a long period. In view of the fact that the order of punishment had already been passed on 14.08.2003 without even initiating Departmental Proceeding, the unauthorized absence of the petitioner being the subject matter of the Departmental Proceeding in 5 the notification dated 08.06.2006 will not normally be for any period after 14.08.2003. In that view of the matter, this court would direct for payment of salary to the petitioner for the period from 08.03.2001 to 14.08.2003 as such order depriving the petitioner from payment of salary as also withholding his increment with break in service could not have been passed without conducting Departmental Proceeding. Admittedly, the petitioner had never been placed under suspension in the aforementioned period and therefore, if the petitioner was really deputed or transferred and his joining could not be accepted at one place or another in between 08.03.2001 to 14.08.2003, he (petitioner) cannot be blamed for creating such impasse. Thus this Court would hold the petitioner entitled for payment of salary for the period from 08.03.2001 to 14.08.2003, which must be paid to the petitioner within a period of three months from date of receipt/production of a copy of this order. As with regard to the alleged absence of the petitioner from duty after 14.08.2003 since, the Departmental 6 Proceeding had already been drawn against the petitioner by notification dated 08.06.2006 and the petitioner has a defence that he was actually reporting on duty before his mother became seriously ill and had ultimately died, this court would direct the Competent Authority of the University to ensure that the Departmental Proceeding initiated against the petitioner on 08.06.2006 should be completed within a period of six months from the date of receipt/production of a copy of this order. It is made clear that as the charges against the petitioner in the notification dated 08.06.2006 is vague, it will be open for the University to reframe the charge but in any event the Departmental Proceeding against the petitioner must come to an end within the aforementioned period of six months. As the petitioner has never been placed under suspension and has been only subjected to Departmental Proceeding, the petitioner’s working in the University at his present place of posting shall be continued and if the petitioner would discharge his duty as allotted to him by 7 the Registrar he should also be paid salary for that period commencing from today. The payment of salary for the period from 15.08.2003 to 05.09.2011 of the petitioner would however, abide by the result of the Departmental Proceeding. At this stage learned counsel for the petitioner would also point out that the petitioner has assailed the order dated 07.03.2001 in this writ application, whereby and whereunder, he was relieved from D.S College, Katihar for joining the University Headquarter. Mr. Jha, learned counsel for the petitioner would explain that the petitioner is an employee of the constituent College and his services could not have been transferred to the University Headquarter, inasmuch as, he is not a member of the cadre of the employees of the University Cadre. First of all the writ petition filed on 08.02.2007 assailing the order dated 07.03.2001 and that too after submission of joining in terms of the order dated 07.03.2001, is wholly misconceived and in fact not maintainable both on the ground of delay and principles of acquiescence. The petitioner being an 8 employee of the University though belonging to the cadre of class-III employee of a constituent College could have been easily brought on deputation to the University Headquarters. The issue as to whether there was a written order or oral order would pale into insignificance, inasmuch as, after being relieved by the College on 07.03.2001 the petitioner had submitted his joining and the same was also accepted by the Registrar of the University dated 14.08.2003 (Annexure-4) to the writ application. Therefore, the petitioner cannot now turn around and assail the order which was already acted upon by him. In that view of the matter, the challenge of the petitioner to Annexure-1 seems to be wholly misconceived and to that extent the writ application must fail. Nonetheless as this Court has held the petitioner entitled for payment of salary pursuant to the aforementioned deputation for the period from 08.03.2001 to 14.08.2003 and such deputation of the petitioner still continues, the petitioner will be required to report at the University Headquarter till his such 9 deputation is terminated and he is sent back to his parent College, D.S College, Katihar. The Registrar of the University may therefore, also take a decision as to whether the continuance of the petitioner on deputation would be in the interest of the University. In the event the services of the petitioner is returned back to the College, the petitioner will immediately report for duty to the principal of the College whereafter his absentee statement for payment of his salary shall be submitted by the Principal of the College. Till it is done so the petitioner shall continue to be on deputation and his absentee statement for the purposes of payment of salary shall also be submitted by the Registrar of the University. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)