IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 501 of 2008 Nand Lal Mandal, son of late Narayan Mandal, resident of village – Khwashpur, P S – Pirpainty, District – Bhagalpur - Petitioner Versus 1 The State of Bihar 2 The District Superintendent of Education –cum- Subdivisional Education Officer, Banka 3 Deputy Development Commissioner –cum- Executive Officer, District Board, Banka 4 District Education Officer, Banka 5 The Area Education Officer, Amarpur, Banka - Respondents *** For the petitioner : Mr Siddhartha Prasad, Advocate For the respondents : Mr Anshuman Singh, AC to AAG I *** 11 30.03.2011 The petitioner has challenged the order of punishment by which he has been dismissed from service. The petitioner was the Headmaster of a School and, on the allegation that he had allegedly withdrawn certain amount of money for payment of salary to the Teachers and Staff but not paid them, departmental proceedings were initiated against him. Charges having been framed, Enquiry Officer was appointed. The Enquiry Officer submitted his report exonerating the petitioner. This was in the year, 2004. The matter lay there for some time before the Disciplinary Authority. After two years, it was decided to have a de novo enquiry. A de novo enquiry was then set up in the year, 2006 and this time, the enquiry report held petitioner guilty. The matter was then placed before the Disciplinary Authority who noted in his order that as per the directions of the District Magistrate, the petitioner has to be dismissed from service and the Disciplinary Authority so ordered. It is 2 against that order, the writ petition is filed. Mr Siddhartha Prasad, learned counsel appearing in support of the writ petition submits that apart from others, there are two glaring infirmities in the decision making process. Firstly, even if it is conceded that the Disciplinary Authority had the jurisdiction to order a de novo enquiry, it must be for some good reason and not merely to get an appropriate result. Secondly, he submits that in the de novo enquiry, several new materials were taken on record without even disclosure to the petitioner only for the purposes of getting a particular result and thirdly, the Disciplinary Authority, who had to himself apply his mind, acted under the dictates of the Collector –cum- District Magistrate as is recorded in the order itself which is totally impermissible. On basis of the aforesaid, it is submitted that the entire proceedings, with the initiation of the de novo enquiry, the enquiry and the final order stand vitiated. On the other hand, Mr Anshuman Singh, AC to AAG I submits that the right or the jurisdiction of the Disciplinary Authority to order de novo enquiry cannot be questioned and if that be so then the de novo enquiry is not vitiated. To the other two submissions, he submitted these are questions of fact though they are not denied specifically. With consent of parties, the matter has been heard at length for disposal at this stage as the pleadings are complete. In my view, the entire proceedings stand vitiated culminating in the order of punishment which consequently cannot be sustained. Firstly, a disciplinary proceeding had been initiated and an 3 Enquiry Officer appointed. The Enquiry Officer submitted his report to the Disciplinary Authority exonerating the petitioner. It was open to the Disciplinary Authority to either accept the enquiry report and exonerate the petitioner or to disagree with the enquiry report giving reasons thereof and then communicating the same, proceed in the matter. As has been noticed above, the Disciplinary Authority did nothing. The matter lay for almost two years. After two years, the only ground for ordering de novo enquiry, which is to be done in very exceptional case and on very exceptional ground, is ordered not because it is found that the Enquiry Officer misconducted himself in any manner or the report suffered from fatal infirmities but only on the ground that the allegations were serious and petitioner ought not to have been exonerated. Thus, it is rightly submitted that the true reasons for ordering de novo enquiry was to get a particular result in the enquiry proceedings. I am afraid that is not within the jurisdiction of the Disciplinary Authority and the decision to order de novo enquiry would suffer from malice in law. That cannot be sustained. Now we come to the de novo enquiry itself. Petitioner has specifically averred that large number of important documents and records were collected by the Enquiry Officer totally behind the back of the petitioner. Those materials were neither disclosed to the petitioner nor were the petitioner confronted with them. Those materials, inter alia, include a letter from the Bank which condemns the petitioner. Petitioner had made serious allegations against the Bank officials pointing out that on forged signatures, amounts have been withdrawn from the Bank and it could only be possible with connivance of Bank officials. Petitioner 4 asserts it is only to regal out this situation and cover up their actions, Bank communicated its stand to the officials which was used ex parte in the enquiry proceedings. The Bank officials were not even summoned much less examined. What was said by them was taken to be sacrosanct truth to condemn the petitioner. Unfortunately, all this was done in violation of a fundamental principle of departmental proceedings that no evidence can be taken on record without its disclosure to other side and without affording them a right to challenge the same. That vitiates the very basis of the de novo enquiry report. Then we come to the third stage. The enquiry report having been received, a second show cause was issued to the petitioner annexing the enquiry report. The petitioner protested but all those were not considered. What was considered is apparent from the final order passed by the Disciplinary Authority that the District Magistrate wants the petitioner to be dismissed. That is recorded in the order itself and, accordingly, as a matter of punishment, petitioner is then dismissed from service. There cannot be anything more destructive of rule of law than this conduct. In my view, Mr Siddhartha Prasad rightly submitted that if all these three seemingly separate incidents are seen together, it would lead only to one conclusion that from beginning to end, authorities were pre-determined to mete out one and only one punishment to the petitioner and, accordingly, everything was orchestrated. Thus, considering the entire consequence, I have no option but to hold that the entire decision making process stands vitiated on 5 ground of malice in law as also procedural infirmities, as noted above. The result is that the writ application is allowed. The impugned order, as contained in Annexure-16, the order dated 02.10.2007 passed by the District Superintendent of Education, Banka ordering the dismissal of petitioner from service is set aside with consequential benefits. M.E.H./ (Navaniti Prasad Singh)