IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16362 of 2004 RAM JEE SINGH Versus THE STATE OF BIHAR & ORS With CWJC No.11903 of 2003 RAMJEE SINGH Versus THE STATE OF BIHAR & ORS ----------- 4. 10.9.2008 In the writ application C.W.J.C. No. 16362/2006 the petitioner has assailed the validity and correctness of an order of punishment dated 2.6.2003 passed by the District Superintendent of Education, Rohtas (Sasaram) whereby and whereunder while revoking the order of suspension the petitioner has been subjected to a punishment of Censure and also break in service for the period 7.7.2000 to 2.6.2003 as also non-payment of salary for the aforesaid period of 7.7.2000 to 2.6.2003 beyond the subsistence allowance. The petitioner has further assailed the appellate order dated 31.8.2004 passed by the Commissioner of Patna Division in Service Appeal No. 25/2004 whereby and whereunder the aforementioned order of punishment dated 2.6.2003 has been affirmed with an observation that if the petitioner was not paid his subsistence allowance for 2 the period of his suspension i.e. 28.11.2000 to 2.6.2003 the same must be paid immediately. In the other writ application (C.W.J.C. No. 11903/2003) the petitioner has made a prayer for payment of retirement benefits and other admitted dues which in view of an order dated 02.12.2005 is to be heard and governed by the result of the C.W.J.C. No. 16362/2004 in view of the stand taken by the counsel for the petitioner that payment all admissible retirement and other have fit during the pendency of the writ application have been made to the petitioner save and except the salary/subsistence allowance for the period of his suspension. The facts giving rise to the writ application are that the petitioner, at present a retired teacher of a Primary school, while in service on being transferred from Prathmik Vidhyalaya, Kahirahan- Dehri to Prathmik Vidhyalaya, Mahipal- Bigha, Nasriganj North vide an order dated 30.6.2000/ 6.7.2000 and relieved on 07.07.2000 did not comply the same as a result where of his payment of salary was withheld. The petitioner at that stage had 3 moved this Court by filing a writ application, C.W.J.C. No. 12011/2000 both for payment of his salary as also for quashing the transfer and relieving order but this Court on a plea of the respondents in their counter affidavit that the petitioner had been placed under suspension w.e.f. 28.11.2000, for not complying the order of transfer had refused to interfere with the transfer order and had also held that as the petitioner had not joined in the transferred school he was not entitled to be paid his salary for the aforesaid period. As a matter of fact from the order of this Court dated 25.2.2003 in the aforesaid C.W.J.C. No. 12011/2000 (Annexure 7) it is also apparent that this Court neither quashed the relieving order of the petitioner nor had chosen to give any finding on the plea of the petitioner with regard to non-service of transfer order on him by observing that the departmental proceeding against the petitioner was pending for the aforesaid charge of non- compliance of transfer order. The appeal of the petitioner before the Division Bench in L.P.A. No. 308/2003 against the 4 aforementioned order dated 25.2.2003 in C.W.J.C. No. 12011/2000 also did not get fruitful result and the aforesaid order of the Single Judge was not interfered save and except that the appellate court by an order dated 13.4.2003 while disposing of the appeal (L.P.A. No. 308/2003) had directed for disposal of the departmental proceeding against the petitioner within a period of two months from the date of petitioner reporting in the headquarters fixed during the period of suspension i.e. in the office of the District Superintendent of Education, Rohtas. The payment of salary as claimed by the petitioner in the writ application and reiterated even in the appeal was made subject to result and out come of the departmental proceeding. From the materials on record it is also apparent that while the petitioner was contesting the aforesaid writ application and the appeal before the authorities after placing the petitioner under suspension vide an order dated 28.11.2000 had also framed charge against the petitioner on 12.12.2000 wherein the charges were namely : (i) Non-compliance of the transfer 5 order dated 30.6.2000 by the petitioner despite his being relieved by the Block Education Extension Officer vide his Memo No. 50 dated 5.7.2000. (ii) Forcibly marking attendance by the petitioner in the attendance register of the school despite being relieved from that school and (iii) Using intemperate language by the petitioner in the communication made by him to the higher authorities. As stated above, it appears that thereafter a departmental proceeding was conducted and the petitioner was punished by the aforementioned impugned order dated 2.6.2003 as against which the petitioner had filed C.W.J.C. No. 12603/2003 which was disposed of by this Court by an order dated 5.4.2004 holding that the writ application was not maintainable in view of the petitioner not availing the remedy of statutory appeal and as such, the petitioner should file an appeal challenging the order of his punishment dated 2.6.2003. It is only thereafter that the petitioner had preferred an appeal against the order of his punishment dated 2.6.2003 before the 6 Divisional Commissioner of Patna Dvision in Service Appeal No. 25/2004 which as stated above was disposed of without interfering in the order of punishment by an order dated 31.8.2004. Counsel for the petitioner at the out set had submitted that the order of punishment was unsustainable because safeguard of natural justice in course of departmental proceeding was not followed and that the enquiry Officer who had conducted the departmental proceeding was biased against the petitioner and was not replaced despite an objection raised by him on 30.1.2001. It was also submitted that even if the order of punishment in all other respect either with regard to censure or withholding of salary for the period of suspension was held to be valid, the remaining part of the order of punishment with regard to break of service from 7.7.2000 till 1.6.2003 was unsustainable as the same would deprive him of counting his service till the date of his retirement for the purposes of his pension i.e. for the period 7.7.2000 to 30.6.2003. Counsel for the State with 7 reference to two separate counter affidavits filed on behalf of respondent no.2 and respondent no.5 respectively had stated that the petitioner was working in the school for the last 21 years i.e. at Prathmik Vidhyalaya, Khodahan, Dehri and accordingly he was sought to be transferred under a decision taken by the District Education Establishment Committee in the meeting held on 24.6.2000 posting him in Prathmik School, Mahipat Bigha (Nasriganj) in course of a chain transfer of a large number of teachers of primary school and in pursuance of the aforementioned decision of the Establishment Committee the transfer order was issued vide Memo No. 2589 dated 30.6.2000 with a copy thereof to the immediate controlling officer of the petitioner, namely, Block Education Extension Officer. It has been further submitted on the basis of counter affidavit of respondent no.5, District Superintendent of Education (D.S.E.), Rohtas that as a matter of fact the petitioner was also relieved by the controlling officer of the petitioner, namely, B.E.O., Dehri vide his memo no. 50 dated 6.7.2000 but the petitioner even after 8 receipt of the said relieving order refused to join in the transferred school and insisted to work in the school from where he was transferred vide his application dated 8.7.2000 submitted to his controlling officer, namely, Block Education Extension Officer (B.E.E.O.), Dehri. Counsel for the State in this regard by referring to the letter of the petitioner dated 8.7.2000 vide Annexure „B‟ to the counter affidavit has also impressed upon this Court that the language used by the petitioner in his aforementioned application for not complying the order of transfer and not accepting the relieving order was not only intemperate but also disclosed an indisciplined behavior and attitude of the petitioner. It has been also explained that there was no justifiable reason for the petitioner to disobey and disregard the order of his transfer and relieving from the post, even when he was specifically directed to join in the transferred school by a subsequent order of dated 26.09.2000 to join in the transferred school by 27.09.2000. It has been also explained by the counsel for the state that despite service of order dated 26.9.2000 on 9 the petitioner, he did not join in the transferred school and as such, when the B.E.E.O., Dehri had submitted a report on 11.10.2000 that the petitioner despite being relieved had not joined at the new place of posting, he was placed under suspension by the order of the D.S.E. dated 28.11.2000 and a departmental proceeding was drawn against him vide a memo of charge dated 12.12.2000. He has also relied on the counter affidavit of Respondent no.5 who in his separate counter affidavit has explained that the petitioner did not participate and/or co-operate in the departmental proceeding and accordingly, when the Enquiry Officer had found all the charges framed against the petitioner to have been proved had submitted his enquiry report on the basis of which the petitioner was given a show cause notice by the D.S.E., Rohtas vide his memo No. 3148 dated 21.9.2002 enclosing the copy of the enquiry report and asking him to submit his comments, if any, on the enquiry report as to why he should not be dismissed from service. It has been finally submitted in light of facts mentioned in the counter 10 affidavit that the petitioner did not file reply to the aforementioned show cause notice and did not choose to file any comment on the enquiry report and accordingly, when a direction in the order dated 13.04.2003 in L.P.A. No. 308/2003 was received from this Court for concluding the departmental proceeding and passing a final order, the impugned order came to be passed on 2.6.2003 punishing the petitioner in the manner indicated above which had also been affirmed by way of dismissal of the appeal filed by the petitioner under the orders dated 31.08.2004 of the Divisional Commissioner, the appellate authority. It has to be noted that though the copy of the two counter affidavits were served on the counsel for the petitioner, on 22.03.2007, the petitioner has not choosen to file any rejoinder to either of them and as such the facts mentioned therein have remained uncontroverted and would be deemed to have been admitted. It would thus be clear and infact there is no iota of doubt that the petitioner did not choose to comply the order of transfer issued by the competent authority, namely, the District 11 Education Establishment Committee and as such, this by itself was sufficient to prove the misconduct. A Government servant including a teacher in a Primary School does not have liberty to continue in one school from the date of his appointment to the date of his retirement at a particular place of posting and therefore, when the petitioner was transferred by an order dated 30.06.2000 after continuing in the earlier school for a period over 21 years it was enjoined upon him under the Service Rules itself that he had to comply the order and join at the new place of posting. There is no denial to this effect specifically asserted by respondent no.5 that the order of transfer and the order relieving him from the school were served upon him (petitioner) and yet he did not chose to comply the order of transfer. In such a situation, this Court has to accept the submission of the counsel for the State that there was sufficient material to prove that the petitioner was a disobedient and defiant government servant who had intentionally and deliberately flouted the order of his transfer. This Court in fact would also hold 12 the second charge against the petitioner to have been fully substantiated and proved when it is found that he had used harsh and intemperate language in his representation, Annexure-B to the counter affidavit, against his controlling Officer while protesting/ questioning the order of his being relieved upon service of order of his transfer. Annexure „B‟ and the portion underlinde for emphasis by this Court as quoted hereinbelow by itself is a proof of indisciplined attitude and behavior of the petitioner, which reads as follows : iqu% izsfÔr & iz[k.M fÓ{Ak izlkj inkf/kdkjh] fMgjh & 1] ftyk jksgrkl A izsÔd & jketh flag] iz0 fÓ0 ]jk0 izk0 fo0 [kSjgkWa ¼fMgjh½ foÔ; & jketh flag dks vius iwoZr~ fo|ky; esa dk;Zjr jgus ds laca/k esa A egkÓ;] mi;qZDr foÔ; ds lanHkZ esa Lkknj dguk vkSj vxkg djuk gS A ¼1½ ;g fd Kkikad 50 fnukad 06&07&2000 ds vuqlkj efg;r fcxgk ¼ukljhxat½ esa dksbZ Hkh izk0 fo0 ugha gS A blfy, ^^;ksxnkukFkZ fojfer** Lor% lekIr gks x;k rFkk LFkkukUrj.k Hkh izekf.kr gks x;k vkSj lEiw.kZ izHkkj lkSaius dk [;ky gh ugha mBrk A ;g rks nqHkkZoukiw.kZ lkftl gS ftldk foLr`r tkudkjh l{ke mPp inkf/kdkfj;ksa dks Hkst nh xbZ gS A bl i= esa fn;k x;k vknsÓ cnys dh Hkkouk ,oa lkftl rFkk {kfr igqWapkus dh Hkkouk ls xzflr gS A tks nh xbZ /kefd;ksa dk iwjd gS A ¼2½ ;g fd Kkikad 2589 dk fnukad 30&06&2000 dk ftdz vkius fd;k gS A ,slh ifjfLFkfr esa tc rd mldh izfrfyfi eq>s miyC/k ugha djk;h tkrh A rc rd eSa izk0 fo0 [kSjgkWa esa gh dk;Zjr jgus dks ck/; gwWa A ¼3½ ;g fd Kkikad 2302 fnukad 31&5&2000 ds }kjk >wBk vkjksi vkius yxokdj osru LFkxu dk xyr vknsÓ fd;k x;k gS Ablfy, Hkh mlds 13 fujkdj.k rd eSa vius jk0 izk0 fo0 [kSjgkWa ¼fMgjh 1 ½ esa gh dk;Zjr jgwWaxk vkSj dk;Zjr gwWa A ¼4½ ;g fd yksHk] izfrÓks/k vkSj lkftl dh Hkkouk ls esjk vUrj jkfÓ ¼ekg Qjojh 99 ls vizSy 99 rd ½ jksdh xbZ jkfÓ dk fujkdj.k vkSj Hkqxrku tc rd ugha fd;k tkrk rc rd eSa jk0 e0 fo0 [kSjgkWa ¼fMgjh 1½ esa gh dk;Zjr jgwWaxk vkSj gwWa A ¼5½ ;g fd mY>uksa ,oa ck/;rk rFkk ck/kkvksa ds fy, vki ftEesokj vkSj tckcnsg gSa A ¼6½ ;g fd vkidh fu;fr jk0izk0fo0 [kSjgkWa ds fÓ{kdksa dk vfgr djus ,oa {kfr igwWapkus dh jgrh gS A blds en~nsutj vki fojks/kh ekus tk,Waxs vr% vkbUns ls vkids vknsÓ dk ikyu djuk lansg ds ?ksjs esa vkids }kjk Mky fn;k x;k gS A vr% vkidks lwfpr ,oa vkxkg fd;k tkrk gS fd mijksDr fLFkfr ds dkj.k Jh flag jk0 izk0 fo0 [kSjgkWa ¼fMgjh 1½ esa dk;Z djrs jgsaxs tc rd fd LFkkukUrj.k dks lgh rkSj ij mfpr fo|ky; esa ugha dj nh tkrh gS A bldh ,d izfr vius ikl j[kh xbZ gS fd oDr t:jr ij dke vkos A bl dze esa gqbZ [kpZ jkfÓ ds nsunkj vki gSa A vU;Fkk ;s ekeys U;k;ky; esa ys tkus ds fy, ck/; ,oa fooÓ gks tkmWaxk A ** This Court in fact cannot approve such conduct of the petitioner who had not only questioned the authority of B.E.E.O., Dehri, his immediate controlling officer, but had virtually borne to call names and make allegations against his superior officer. His use of expression against his superior officer of malicious conspiracy (nqHkkZoukiw.kZ lkftÓ) and making allegation of stopping payment of his salary under a false allegation ( >wBk vkjksi) and a wrong order (xyr vkns'k) and his defiant attitude that he was still continuing and would remain to function in the school despite his being 14 relieved from the school (eSa gh dk;Zjr jgwWaxk vkSj dk;Zjr gwWa) and his further audacity to make direct allegation against his superior officer of being governed by feelings by greed revenge and conspiracy (yksHk] izfrÓks/k vkSj lkftÓ dh Hkkouk) and his pointed reference of shifting responsibility for transfer and relieving on his immediate controlling officer coupled with a threat of suing in his expression „my>uksa ,oa ck/;rk rFkk ck/kkvksa ds fy, vki ftEesokj vkSj tckcnsg gksaxs * can have no two opinion about such gross indisciplined behavior of the petitioner. This Court in fact having noticed a defiant attitude of the petitioner against his controlling officer as is clearly borne out of his letter of protest dated 8.7.2006 (Annexure-B) penned by him after service of the relieving order, would find that the Respondents have treated the petitioner rather leniently by imposing punishment of Censure instead of straightway dismissing from service for his complete disobedience of this order of transfer and total disregard shown to his higher controlling authority. The B.E.E.O., Dehri who infact 15 against whom the petitioner has made reckless and wild allegation and that too in an intemperate language who had only sought to implement order of the District Education Establishment Committee as forwarded to him under the orders of the D.S.E., Rohtas. Such use of language by the petitioner against his superior officer, can have no two opinion that the petitioner had exceeded all norms of decency when he had directly refused to comply the order of transfer and had in fact gone to warn his controlling officer (vkxkg fd;k tkrk gS fd mijksDr fLFkfr ds dkj.k Jh flag jk0 izk0 fo0 [kSjgkWa ¼fMgjh 1½ esa dk;Z djrs jgsaxs tc rd fd LFkkukUrj.k dks lgh rkSj ij mfpr fo|ky; esa ugha dj nh tkrh gS A). Can anything else be said about such indecent and intemperate use of language by a teacher these ideals have to be imbibed by the students of his school ? This Court, therefore, is constrained to hold that the petitioner is out and out a totally reckless and indisciplined person who had exceeded known norms of decency while making communication with his superior officers and his application dated 8.7.2000 by itself was sufficient to hold him guilty 16 and in fact the respondents have been rather lenient in inflicting the punishment by the impugned order as against one initially proposed i.e. dismissal from service as originally proposed in the show cause notice dated 21.9.2002 accompanying the enquiry report. This Court on the materials on record would also hold that the petitioner had not only defied and disobeyed the order of his transfer but also had deliberately and forcefully marked his attendance in the attendance register despite being relieved and his such erratic behavior was not only unbecoming of a teacher but also a gross misconduct under the Bihar Government Servant Conduct Rules. The submission of the counsel for the petitioner that the petitioner was not afforded a reasonable opportunity in course of enquiry is only to be noticed for its being rejected inasmuch as it has come on record that when the petitioner was asked by the Enquiry Officer to appear before him he had himself refused to avail such an opportunity by taking a plea in writing on 17 27.01.2001 (Annexure-7) that “ lEcfU/kr ekeys mPp U;k;ky;] iVuk esa ¼C.W.J.C.No. 12011/2007) py jgk gS vr% foi{kh ikVhZ ds fdlh Hkh fy[kk&i<+h ¼i= O;ogkj½ dh dkjZok;h dksVZ ds e;kZnk ,oa fu;e ds f[kykQ vkSj vuqfpr gksxk ** A Thus, if the petitioner had himself not chosen to appear before the Enquiry Officer in the departmental proceeding he cannot at least complain of being deprived a reasonable opportunity in course of departmental proceeding. Such utterances on the part of the petitioner in his handwriting and signature dated 27.1.2001, as contained in Annexure „F/1‟ of the counter affidavit filed by respondent no.5 would, therefore, by itself be sufficient to show that the petitioner has no defence inasmuch as C.W.J.C. No. 1211/2000 was not directed any departmental proceeding or memo of charge and as noted above it was only against an order of transfer and relieving from the school pursuant to the decision of the District Education Establishment Committee. This Court, therefore, would not find any merit in that part of the submission of the counsel for the petitioner 18 that the petitioner was not afforded a reasonable opportunity in course of departmental proceeding and in fact when in this regard the averments made by the petitioner in the writ application is perused it would be found that not a word has been said as with regard to the petitioner being not afforded a reasonable opportunity and his only averment in paragraphs 27 and 28 to the extent that the departmental proceeding was bad and vitiated on various grounds and the enquiry report was malafide, does not really contain any material so as to even make out a case of violation of principle of natural justice. On the other hand the materials which have come on record in the counter affidavit which have also remained unrebutted on account of its not being controverted by the petitioner by any rejoinder affidavit, this Court has no hesitation in holding that if the petitioner had not participated in the departmental proceeding or had not submitted his reply to the second show cause notice and/or comments to the enquiry report, at least he cannot be permitted to raise a grievance with regard to his being not given 19 a reasonable opportunity in course of departmental proceeding. This Court, therefore, would also concur with the view taken by the appellate authority who has also found no substance in any of the issues raised by the petitioner in his memo of appeal and has not only found the charges to be proved but has also held that the grievance of the petitioner that the enquiry report was not served on the petitioner prior to passing of the order of punishment was not correct. In fact even this aspect of the matter has categorically asserted by respondent no.5 in his counter affidavit that the petitioner was sent a copy of the enquiry report alongwith the second show cause notice vide Annexure „H‟ to the counter affidavit and he did not choose to submit his reply to the same. Thus, even that part of the grievance of the petitioner as with regard to any prejudice on account of non-supply of enquiry report as alleged by him is not only totally incorrect but also not substantiated in any manner from the pleadings made by him in the writ application. The submission of the counsel for 20 the petitioner that the Enquiry Officer was biased and that he was not changed despite a protest made by the petitioner vide his letter dated 30.1.2001 as contained in Annexure 12 is also fit to be rejected, inasmuch as his application expressing lack of confidence in the Block Education Extension Officer, Dehri in no way could have affected the outcome of the departmental enquiry when it is found that he was not the Enquiry Officer rather the Enquiry Officer was Block Education Extension Officer, Karakat (East) as would be evidenced from the memo of charge itself. In that view of the matter, the allegation of bias and malafide against the Enquiry Officer as raised by the petitioner in the writ application is also fit to be rejected. In view of what has been held above, this Court, therefore, would not find that the order of punishment is in any way disproportionate rather this Court is of the view that the petitioner has been treated very leniently by the respondents probably taking into consideration that the petitioner was only a month away from his retirement when the order of punishment was 21 passed on 2.6.2003. In fact if the respondents had even inflicted punishment of dismissal from service as was proposed by the D.S.E. the same could not have been held to be disproportionate in the light of proven misconduct committed by the petitioner. The petitioner in fact cannot claim payment of salary and continuity in service when he had admittedly himself remained absent from duty and as such, the decision of not paying any amount of money for the period he did not chose to comply the order of transfer to the date of his revocation of suspension can also not be faulted with. Counsel for the petitioner in fact realizing this aspect