IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11784 of 2009 JANARDAN PRASAD SINGH, S/O LATE RAM KISHUN SINGH, R/O SARGAON KOTHI, WET KARYANAND NAGAR, CHITRANJAN ROAD, DISTRICT-LAKHISARAI. ………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR. 3. THE DIRECTOR, SECONDARY EDUCATION, GOVERNMENT OF BIHAR. 4. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, MUNGER DIVISION, MUNGER. 5. THE DISTRICT EDUCATION OFFICER, JAMUI. 6. BIHAR SCHOOL EXAMINATION BOARD THROUGH ITS SECRETARY. 7. THE ACCOUNTANT GENERAL, BIHAR, PATNA. ………………RESPONDENTS. ----------- For the Petitioner : Mr.Tej Bahadur Singh, Sr.Adv., Mr.Gyan Shankar, Adv. and Mr.Brisketu Sharan Pandey, Adv. For the State : AC to GP-VI. For the Board : Girijesh Kumar, Adv. ---------- 3 19.11.2010 In this writ application petitioner has challenged an order of punishment passed by the Director, Secondary Education in terms of Rule 43 (b) of the Bihar Pension Rules contained in memo no.1402 (Ka) dated 6.5.2009, annexed as Annexure-1 with the writ application, by which, on conclusion of the enquiry, 5% pension of the petitioner, as well as of some others, has been withheld. Short facts of the case are that at the relevant time petitioner was an Assistant 2 Teacher in High School, Shikandara, Jamui. For the secondary examination, to be held by the Board, petitioner was made Head Examiner of the Geography subject. Under him 18 co- examiners were appointed. Examination was held in March, 2005. After examination the answer-sheets were distributed among the co- examiners, details of which are in Annexure- 1/A. The answer-sheets were evaluated and submitted to the Head Examiner of different subjects, including the petitioner in respect of Geography subject by the said 18 co- examiners. Marks foils were prepared and thereafter answer-sheets with marks foils were sent to the Board for preparation of result and publication of the same. Thereafter petitioner superannuated from service with effect from 30.04.2005. Finally result was published by the Board in May, 2005. After the result was published, it transpired in the Board that some manipulation had been done in all the answer sheets of all the subjects, including Geography, in respect of one student having Roll Code 5207 and Roll No.310, whereby his 3 marks were enhanced and he got the highest rank in the entire State. Upon this preliminary finding, Board issued a notice to the petitioner through letter dated 14.2.2006, as contained in Annexure-3. It was alleged in the notice that after examination some cutting and overwriting had been done in the answer-sheet of the said candidate in the subject of Geography which prima facie petitioner had done for the purposes of some illegal gain and to provide undue benefit to the candidate by which the candidate had topped in the examination in the State. Petitioner filed his reply to the notice vide his letter dated 19.2.2006, as contained in Annexure-4, addressed to the Secretary of the Board. In the reply petitioner took categorical stand that the answer-sheet of Roll No.310 was in the bunch of answer-sheets which was allotted to a co-examiner, namely, Shyam Sunder Prasad Yadav. It was also stated in the reply that he had not evaluated the answer-sheet. It was further stated that in the sample checking of the answer-sheets of different co-examiners, he had evaluated the answer-sheets bearing Roll Nos. 281 to 285 4 from the bunch of answer-sheets allotted to said Sri Shyam Sunder Prasad Yadav. Thus, his categorical stand was that he had not done sample checking of this Roll No.310 and, therefore, there cannot be any presumption with regard to his connivance or his having committed interpolation and overwriting in that answer-sheet. Board was not satisfied with the said reply. Hence, the matter was referred to the Department. Department accordingly took a decision to initiate a proceeding against the petitioner and some others in terms of Rule 43(b) of the Bihar Pension Rules, as all of them had already superannuated. Charges were accordingly framed and were served on the petitioner under the signature of the Director, Secondary Education contained in memo no. 3153 dated 7.10.2006, annexed as Annexure-5. The single charge which was framed in the charge-sheet against the petitioner mentioned that in the answer-sheet of all subjects of the said candidate bearing Roll Code 5207 and Roll No.310 there had been some manipulation by the co-examiners in which the petitioner was also involved as it 5 was his duty to scrutinize the work of the co-examiners and to stop them from committing this mistake which showed that he was also involved in this matter. A Regional Deputy Director of Education was appointed as Inquiry Officer and District Education Officer was appointed as Conducting Officer. On receipt of the said charge-sheet petitioner filed his reply through his letter dated 3.4.2007 addressed to the Inquiry Officer, as contained in Annexure-6. In his reply, he again reiterated that 66 answer- sheets, which contained the answer-sheet of Roll No.310 also, were allotted to said Sri Shyam Sunder Prasad Yadav for evaluation. It was also reiterated that he had not crossed checked the said answer-sheet and, for the purposes of sample checking, as required to be done by the Head Examiner, he had sample checked only the answer-sheets of Roll No. 281 to 285. Thus, he completely denied the charge of any involvement in the interpolation of marks in the answer-sheet of the said Roll No.310. It appears that the Inquiry Officer had also sent a letter to the petitioner, contained in memo no.108 dated 6 9.2.2007, asking him to produce evidence in support of his show cause reply. Petitioner sent a reply to the same also through his letter, as contained in Annexure-7, in which he stated that he had already filed his explanation and the facts can be verified only from the records of the Board. He again reiterated that he was not responsible for any interpolation, manipulation or overwriting in the marks of Geography paper of the said Roll No.310. The Inquiry Officer thereafter proceeded with the inquiry and submitted his report to the Director, Secondary Education, along with his letter dated 14.3.2008, as contained in Annexure-8. The inquiry report enclosed with the said forwarding letter shows that he noticed that altogether 17 teachers and one headmaster were subjected to inquiry. After mentioning the names of all the delinquents, the Inquiry Officer noticed the stand of the delinquents that they were unable to produce any documentary evidence in support of their innocence as the copy of the marks foil was destroyed as per practice after submission of answer-sheets and the 7 original marks foil were sent to the Board. The Inquiry Officer also noticed in the report that by two letters, i.e. letter no.261 dated 22.3.2007 and letter no.342 dated 15.4.2007, he had asked the Secretary, Bihar School Examination Board to make available the evidence in support of the charges. He also noticed that inspite of the said request the same had not been produced in the inquiry. He finally concluded that the matter required detailed investigation and verification of handwritings of the teachers by a forensic expert. He observed that since all the teachers were claiming their innocence it was not possible to take a decision in the matter from the Department level. Therefore, he made a request in his report to the Director, Secondary Education to get the handwritings verified from a handwriting expert and thereafter to take a decision. After this report was received, the Director, Secondary Education, through his letter no.2932 dated 5.6.2008, as contained in Annexure-9, issued a common second show cause notice to all the delinquents with a 8 copy of the inquiry report, and they were asked to file their reply within sixteen days. Petitioner filed his reply to the second show cause notice also on 19.6.2008, as contained in Annexure-10. In his reply, he stated that he had filed his show cause before the Inquiry Officer and he further reiterated the stand taken in his earlier reply. After receipt of this second show cause reply, the impugned order was passed by the Director, Secondary Education, as contained in Annexure-1. It is mentioned in the impugned order that after receipt of the inquiry report the same was examined and charges were found proved. Therefore, in terms of Rule 43(b) of the Bihar Pension Rules they are being awarded punishment and being released from departmental proceeding. The punishment was withholding of 5% pension. Learned counsel for the petitioner submits that the petitioner had specifically asserted that he had not sample checked the answer-sheet of Geography of the said Roll No.310. Therefore, he could not be held guilty of wrong evaluation or cutting or interpolation, if at all, made in the said 9 answer-sheet of the said Roll No.310. He also submits that the inquiry report, which has been made basis for punishing the petitioner, did not find him guilt at all. On the other hand, the Inquiry Officer found that the evidence in support of the charges had not been produced in the inquiry by the Secretary of the Board. Therefore, the Inquiry Officer had found that the matter required more detailed examination and verification of the handwritings of the concerned teachers by a handwriting expert. He submits that this goes in favour of the petitioner. In the circumstances, he submits that punishment awarded to the petitioner is based on no material at all and without any finding of guilt. He submits that, for any action under Rule 43(b) of the Bihar Pension Rules, guilt of a delinquent of having committed grave misconduct or having caused pecuniary loss to the Government has to be established first. Neither of these two pre-conditions of Rule 43(b) are fulfilled in the case. Therefore, the impugned order of the disciplinary authority i.e. Director, Secondary Education is apparently illegal and fit to be quashed. 10 Learned counsel for the State, in reply, submits that as per the guidelines for a Head Examiner, as contained in Annexure-2, vicarious liability was put on the Head Examiner for any misconduct committed in the evaluation of the answer-sheets by a co- examiner. Therefore, if any interpolation, cutting or overwriting is found in the answer-sheet, which may have been done with oblique motive, the Head Examiner cannot escape from the liability of being held also guilty for the same. He also submits that the petitioner has an alternative remedy by way of appeal available to him which the petitioner ought to have availed first. Learned counsel appearing for the Bihar School Examination Board has also referred to clause 7 of the said guidelines and submits that, in case of cuttings or overwritings it was the duty of the Head Examiner to compare the allotted marks on the first page of the answer-sheet with the marks put on the marks foil and check the correctness of the same and then only countersign the same. He refers to Annexure-A and B of the counter affidavit filed on 11 behalf of the Board and submits that the first page of photocopy of answer-sheet of Roll No.310 of Geography paper, as contained in Annexure-A, clearly shows that there were many cuttings and overwriting in the marks mentioned therein. He thereafter refers to Annexure-B the marks foil submitted to the Board and submits that overwritten marks were mentioned in the marks foil and it was signed by the petitioner also. Therefore, it is apparent that without checking the reasons for said cutting and overwriting of the marks on the first page of the answer-sheet the said overwritten marks were entered in the marks foil and was submitted under the signature of the petitioner to the Board. He submits that, the moment the petitioner found that there were cuttings and overwritings in the answer-sheet on the first page of answer- sheet in respect of the marks allotted in different answers, the petitioner ought to have become alert and ought to have crossed checked the marks actually allotted in the answer-sheet against different answers written in the answer-sheet and ought to have sample checked the answers himself and only 12 after being satisfied with the correctness of the same, the petitioner ought to have countersigned the marks foil and submitted the same. He submits that, later on it was found in the Board that these cuttings and overwritings were manipulated and did not correspond to the marks allotted in the answer-sheet against the specific answers written therein, which showed that at the stage of preparation of marks foil these manipulations were done to give undue advantage to the candidate. He submits that this was done in all the papers in respect of the said candidate on account of which he topped in the examination in the entire State. Having heard learned counsel for the parties and after perusing the records, this Court finds that so far as cuttings and overwritings of marks on the first page of answer-sheet, as contained in Annexure-A with the counter affidavit of the Board, are concerned, they do create some doubt with regard to genuineness of marks allotted to the candidate in his answer-sheet. As per learned counsel for the Board this was 13 detected in the answer-sheet of the candidate in all the subjects and, hence, the matter was put under inquiry. Thereafter, the result of the candidate was also later on cancelled. This action of the Board may be correct and may be on the basis of the correct findings of the fact in respect of the answer-sheets of the said candidate. But the question is whether the inquiry was conducted properly and in the fair manner so as to rule out any procedural error in the same which only could sustain the order of punishment against the petitioner. It is apparent from the inquiry report that no material, whatsoever, was produced during the inquiry. It is mentioned in the report itself that twice Secretary of the Board was requested by the Inquiry Officer to produce evidence in support of the charges which was not done. The Inquiry Officer therefore, did not find the guilt of the petitioner and others proved and only concluded that the matter required further detailed examination and verifications of the handwritings of the concerned teachers by a handwriting expert first. This goes to show 14 that the findings of the Board were not accepted by the Inquiry Officer as conclusive and final. A departmental proceeding in terms of the Rules is a quasi judicial proceeding. The Inquiry Officer acts as an adjudicator and the parties have to prove their cases by producing evidence. The Presenting Officer acts as a prosecutor and he is required to establish the charges against the delinquent by producing sufficient materials by way of oral or documentary evidence to the satisfaction of the Inquiry Officer to hold the delinquent guilty. A finding arrived at by any authority prior to the initiation of the inquiry or outside its proceeding cannot be automatically held as conclusive to hold a delinquent guilty in the inquiry held against him. Apparently, there was no material at all produced in support of the charges levelled against petitioner in the inquiry. The Inquiry Officer had himself requested the Director, Secondary Education to take any further action only after getting the report from the handwriting expert in the matter. In 15 these circumstances, under what premises the Director, Secondary Education found the charges proved against the petitioner in the inquiry is beyond comprehension of this Court. On account of this misconception only the Director, Secondary Education has passed the order of punishment which is clearly an error of jurisdiction by him. As the proceeding was under Rule 43(b) of the Bihar Pension Rules, the guilt of grave misconduct committed by the petitioner had to be established first, which is apparently absent in the proceeding. As a result, this Court finds that the order of punishment passed by the Director, Secondary Education, as contained in Annexure-1, is unsustainable in law and the same is hereby quashed. The writ application is, accordingly, allowed. Arvind/ ( J. N. Singh, J.)