IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4692 of 2006 SHIV NARAYAN JHA Son of Sri Bindeshwar Jha, resident of village Mehdi, Police Station Rupauli, District Purnea, a dismissed Head Master Prathmik Vidyalaya Barhara, Jagannath Tola (Narpatganj-South), P.S. Narpatganj, District Purnia, Now Araria … Petitioner Versus 1. THE STATE OF BIHAR 2. The Special Secretary, Department of Education, Bihar, Patna, 3. The District Superintendent of Education-cum-Sub- Divisional Education Officer, Araria, District Araria, 4. The Deputy Inspector of Schools, District Araria, 5. The Block Education- Extension Officer, Araria-2, District Araria, 6. The Block Education Officer, Narpatganj(South), Police Station Narpatganj, District Araria, .. Respondents For the Petitioner: Mr.J.P. Bhagat, Advocate For the State : Mr. Ashok Kumar Keshri, AAG XI Mr. Ujjwal Kumar Sinha, AC to AAG XI ----------- 5 24.02.2011 Heard learned counsel for the petitioner and the State. Petitioner seeks quashing of an order issued under Memo No. 960 dated 17.08.2005, a copy which is contained in Annexure 12, whereby and whereunder the District Superintendent of Education-cum-Sub-divisional Education Officer, Araria, has communicated the order of dismissal to the petitioner. Petitioner claims that he is Matric trained and he 2 was appointed as Headmaster in Prathamik Vidyalaya, Barhara Jagannath Tola, on 05.09.1982. However, he was served with a copy of the order of suspension issued under Memo No. 2914-19/Araria, dated 09.10.1983, issued by the respondent no. 4 along with the charges directing him to show-cause. The petitioner claims to have submitted his show-cause after joining on 15.10.1983. It was communicated to the petitioner that the Block Education Extension Officer, Araria has been appointed as Inquiry Officer, whereas the Block Education Officer, Narpatganj, was appointed as Presenting Officer. Charges against the petitioner were as under: (i) He remained absent from July 1983 without any authorization from his school; (ii) He had taken away all the files and is absconding, therefore, the daily work of the concerned school is hampered and he kept the school closed without any notice; (iii) He did not distribute the scholarship to the students of Scheduled Castes and Scheduled Tribes; (iv) Due to his unauthorized absence, “Poshahar” could not be distributed amongst the students, thus, he raised obstruction in implementation of 20-Point Programme; 3 (v) The District Education Officer, Purnea had called upon him to produce certificates regarding his educational qualification, which he did not submit. The petitioner after a long period of delay challenged the order of suspension and also for a direction for payment of subsistence allowance by filing C.W.J.C. No. 569 of 2000, which was disposed of vide order dated 30.03.2005 directing the petitioner to appear before the respondent no. 3 with a copy of the order and thereafter the respondent no. 3 was directed to take all required steps to ensure that the departmental proceeding is decided one way or other finally within a period of three months. The petitioner claims that he appeared before the authorities along with a copy of the aforesaid order of this Court on 25.04.2005. In support of his submission he has annexed his letter addressed to the District Superintendent of Education, Araria, duly received by his office. The petitioner was again served with a copy of the charges framed against him and he filed his show-cause on 01.06.2005 and from the inquiry report brought on record by the State as Annexure C, it appears that on 15.06.2005 4 the petitioner appeared before the Inquiry Officer. Thereafter the case of the petitioner is that the impugned order of dismissal dated 17.08.2005 was communicated to him. Learned counsel for the petitioner submits that the order of dismissal is in complete violation of the provisions as contained in Article 311 of the Constitution of India as well as r Rules 55 and 55A of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter to be referred to as “the Rules”), as neither a copy of the inquiry report was forwarded to him nor any show-cause notice was issued to him on the point of quantum of punishment. On 07.11.2006 this Court had directed the State to file counter affidavit answering the aforesaid contention raised on behalf of the petitioner. Counter affidavits have been filed, but that question does not seem to have been answered therein as to whether the inquiry report was served upon the petitioner or not or second show-cause notice was issued to him or not. However, at the time of argument, learned counsel for the State fairly submitted that it does not appear that either the inquiry report or second show-cause notice was served upon 5 the petitioner. Learned counsel for the petitioner further submitted that law is well settled in the case of Union of India and others v. Mohd. Ramzan Khan (AIR 1991 Supreme Court, 471) that the disciplinary proceeding being a quasi-judicial one would definitely attract the Principles of Natural Justice and even after 42nd Amendment in Article 311 of the Constitution of India if the Inquiry Officer records finding of the guilt of the delinquent then he is entitled to know the same and make a representation in this regard before the disciplinary authority. Learned counsel for the petitioner has further placed reliance upon yet another decision in the case of Managing Director, ECIL Hyderabad and others v. B. Karunakar and others (AIR 1994 Supreme Court, 1074) in support of his aforesaid contention. It is next contended that even after 42nd Amendment in Article 311 of the Constitution of India, the provision of issuance of second show-cause notice stands omitted, that would not be a bar if the relevant Rules still permit that. Learned counsel drew attention of this Court towards Rules 55 and 55A of the Rules to impress upon this Court that the supply of inquiry 6 report as well as second show-cause notice enabling the petitioner to file his representation is provided in the concerned Rules. It is further contended that though the inquiry report was not supplied to him, however, the same has now been brought on record by the State appended with the counter affidavit as Annexure C. It is urged that it goes to show that though the petitioner had filed his show-cause, the inquiry report was submitted without granting opportunity to the petitioner to lead any evidence etc. Then it is submitted that the said inquiry has highly prejudiced the petitioner. Mr. A.K. Keshri, learned AAG XI, appeared on behalf of the State and submitted that the petitioner remained absent for more than 17 years without any authorization and in that case no inquiry in terms of Rule 55 of the Rules was required as it would be evident from Rule 76 of the Bihar Service Code that after five years of absence the concerned employee or officer would be deemed to have been removed from the service itself. It has further been contended that the decision of the Apex Court rendered in Managing Director, ECIL Hyderabad and others (supra) has been considered by a learned single Judge of 7 this Court in the case of Tribeni Rai v. The State of Bihar and others (2010(4) Patna Law Journal Reports, 292) and after consideration of the decisions aforesaid and also in Mohd. Ramzan Khan(supra) and B. Karunakar and others(supra) it has been held that merely the fact that inquiry report has not been supplied, the same would not vitiate the entire proceeding. In fact the aggrieved officer or employee will have to demonstrate before the Court or Tribunal that some prejudice has been caused to him due to the same. It is also contended that since the inquiry is in accordance with law and no irregularity has been committed by the Inquiry Officer while conducting the same, the petitioner cannot be held to be prejudiced by that and, thus, that would not vitiate the entire proceeding. However, the facts of the case of Tribeni Rai (supra) are slightly on different footing. In the aforesaid case, though the report of the committee of high officials was not supplied to the petitioner, but he was given a second show-cause notice and he had given reply to the second show-cause and in that reply he had made no grievance with regard to the concerned charge in the inquiry. However, in the present case, it is admitted fact that 8 the petitioner was neither supplied any inquiry report nor was he served with a second show-cause notice. So far the point raised by the State that in case of long absence from the service, there was no need to proceed with the regular proceeding in terms of Rules 55 and 55A of the Rules, that also does not seem to be attractive to this Court for the reason that Rule 76 of the Bihar Service Code was examined by a Division Bench of this Court in the case of Sobhana Das Gupta v. The State of Bihar and Another (1974 Patna Law Journal Reports, 382), wherein it has been held that if the petitioner absents from duty for more than five years and the respondents merely inform the petitioner that his/her services are no longer required, it amounts to removal from service within the meaning of Article 311of the Constitution of India and removal can only be possible after following the due procedure of the disciplinary proceeding. Thus, that part of Rule 76 of the Bihar Service Code was declared ultra vires. Secondly, when the State has already proceeded with regard to proceeding under Rule 55 of the Rules and after holding inquiry and dismissed the petitioner from service, now it cannot take a stand that the said proceeding was not 9 required. Thus, in the present case, in the opinion of this Court, the non-supply of inquiry report as well as the non- service of second show-cause notice have definitely prejudiced the petitioner. This case would be on different pedestal than that of Tribeni Rai (supra) for the reason that in that case, the delinquent had filed his representation in response to the second show-cause notice and he did not raise the question of non-supply of relevant report of the committee and thereafter the order of dismissal was passed. In the aforesaid circumstances, this Court has held that there cannot be any prejudice caused to the concerned officer. However, in the present case, the petitioner did not get any opportunity to convey his point of view regarding the inquiry before the disciplinary authority at all and also neither any opportunity of representation was given to him nor has he, admittedly, made any representation. Thus, this Court is constrained to hold that in the aforesaid facts and circumstances the order of dismissal cannot be sustained in law. It is true that the petitioner has not availed of the statutory appeal. However, since this writ application is 10 pending since 2006 and after lapse of 4-5 years when this Court is specially of the opinion that the impugned order of dismissal cannot be sustained in law it would not be proper for this Court to relegate the petitioner now to the Appellate Authority to avail the statutory appeal. As a result, this writ application is allowed and the impugned order dated 17.08.2005 as contained in Annexure 12 is hereby set aside. It is accepted on behalf of the petitioner that since a copy of the inquiry report has been brought on record and served on learned counsel for the petitioner, there would be no need of fresh service of the same on the petitioner. Therefore, the petitioner is directed to file his response/representation before the disciplinary authority within ten weeks from today and the disciplinary authority shall consider the same and thereafter it shall pass necessary order in accordance with law. So far the question of subsistence allowance is concerned, the petitioner submits that with a copy of the earlier order of this Court dated 30.03.2005 passed in C.W.J.C. No. 569 of 2000 he had appeared before the District Superintendent of Education, Araria, and a receipt 11 thereof stands duly acknowledged by the office. Thereafter, he filed his show-cause and appeared before the Inquiry Officer. Thus, it is contended that it cannot be assumed that he did not join even after passing of the order of the High Court. In that view of the matter, let the petitioner file a representation within the same period before the respondent no. 2, who shall consider the earlier order passed by this Court in C.W.J.C. No. 569 of 2000 as well as the document(s) in support of his contention by the petitioner including the letter, as contained in Annexure 7, his show- cause and the inquiry report who shall pass a speaking order in this regard and the order should be communicated to the petitioner. AFR SC (Dr. Ravi Ranjan, J.)