IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10459 of 2001 ALIM JUNG KHAN S/O LATE YUNUSH JUNG KHAN R/O VILL- JAUKHAR, PS- SHAHKUND, DISTT- BHAGALPUR AT PRESENT RESIDING AT MOHALLA- HAROON COLONY ANISHABAD, PS- GARDANIBAGH DISTT-PATNA—PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECY,PATNA 2. THE SECY. DEPARTMENT OF SECONDARY PRIMARY & ADULT EDUDCATION, GOVT. OF BIHAR, PATNA 3. DIRECTOR ADMINISTRATION-CUM-SECY, DEPTT. OF SECONDARY, PRIMARY & ADULT EDUCATION,GOVT. OF BIHAR,PATNA 4. AMIT KHARE, IAS, AT PRESENT WORKING AS SPL. SECY. IN THE STATE OF JHARKHAND RANCHI S/O CHIEF SECY, STATE OF JHARKHAND, RANCHI 5. JAI PRAKASH NARAYAN YADAV, MLA ( THE THEN CABINET MINISTER, THROUGH THE SECY. BIHAR VIDHAN SABHA, PATNA- ------------------------RESPONDENTS. ----------- For the Petitioner: Mr. Chitranjan Sinha, Sr.Advt. For the State: Mr. S.K.Mandal, SC-15 with Mr. Bipin Kumar, Advocate ----------- 7 30 /7/2010 Annexure-33 dated 20th June, 2001 is under challenge in the present writ application. By virtue of this impugned order petitioner has been dismissed from service as a measure of punishment on the basis of the departmental enquiry carried out on a set of charges brought against him. Petitioner wants quashing of that order and reinstatement in service with consequential benefits. However, it may be recorded that the petitioner would have any way superannuated on 31.7.2002 provided the punishment has not come to visit him. Petitioner was posted as District Superintendent of Education in the district of Rohtas with its headquarter at Sasaram in the year 1982. He worked on the post for a period of a year and half before being transferred to some other place. For certain acts of omission and commission committed by petitioner while being posted at Rohtas, the Government of Bihar in its wisdom decided - 2 - to initiate a departmental enquiry against him. One of the primary charges was illegal appointment of 170 persons on various posts during his tenure as a District Superintendent of Education. It is the case of the petitioner that he demanded a long list of documents which was necessary to dispel the allegation but he never got them. He was only told to go and make a visit to the office of District Superintendent of Education and peruse the documents and file his written statement. According to him he never got copy of the documents demanded. However the enquiry proceeded. The enquiry report submitted and the Government proceeded on that basis towards imposition of punishment. However it seems that on the basis of objection of the petitioner Government decided to give him yet another opportunity to the petitioner by holding the enquiry afresh and Sri S.K. Choudhary came to be appointed as the enquiry officer. The enquiry officer could not complete the job as he got transferred and yet another enquiry officer, namely, S. K. Negi, IAS was appointed. He too got transferred and the enquiry did not proceed and dragged on for these reasons. The government finally vide resolution dated 26.2.98 appointed the Director Primary Education as the enquiry officer by post and not by name. Petitioner states that he again demanded documents for his defence. It is his case that he never really got copy of those documents but he filed his statement of defence. - 3 - Though some documents came to be given but that did not meet the needs of the petitioner. The enquiry proceeded by adopting a perfunctory approach and enquiry report was submitted which was served to him along with the second show cause. The enquiry report annexed with second show is annexure-26 to the writ application. According to the petitioner even at the stage of second show cause he insisted for certain documents to put up his defence but the same was not provided. The matter was examined by the authority on the basis of his response and the disciplinary authority after consulting the Cabinet, the Bihar Public Service Commission imposed the punishment of dismissal against the petitioner and therefore the present writ application. The stand of the State which emerges from their counter affidavit is that the enquiry was necessitated from the material background that the petitioner made a kill by appointing 170 persons in his short span of a year and half when he was posted as District Superintendent of Education at Rohtas. There was neither any due procedure adopted for appointment nor even proper verification of certificates and qualifications were made. The reason for delay in the enquiry is indicated in the counter affidavit because the petitioner carried the matter to the High Court at every stage and some of these issues even travelled to Hon’ble Supreme Court. Only when it got judicial go ahead singed that steps were taken by the department to continue with the - 4 - disciplinary proceeding after the order passed by Hon’ble Supreme Court on 1.10.1993. It is the categorical stand of the respondents that the petitioner deliberately refused to co-operate with the enquiry despite several notices. He evaded the departmental proceeding and his whole effort was geared up to see that he superannuates without allowing departmental proceeding to conclude. The question of demanding documents and supply thereof is an after thought. The petitioner was given documents and also allowed to inspect but he avoid doing so. That was one of the reasons why several enquiry officers had to be changed. The demand made by the petitioner for documents at the stage of second show cause was also misplaced. The enquiry officer was left with no option but to proceed with whatever little co-operation was rendered by the petitioner. The fact of illegal appointments stood proved in the enquiry. That fact further stands fortified because the appointees of the present petitioner stood removed by the Government. They happened to move the High Court challenging such termination but no evidence has come to show that those termination orders were interfered with by the High Court. In fact, the Court put a pointed question to learned counsel for the petitioner whether any of those appointees of the petitioner have found their way back to the service on the basis of any judicial order passed by the Court. The counsel representing the petitioner - 5 - skirted the issue that he had no knowledge. However, counsel representing the State informed the Court that even the High Court refused to interfere with the orders of termination of those illegal appointees which is a circumstance to be taken into consideration with regard to the validity or authenticity of such appointments made by the petitioner. From the narration made in the writ application as well as in the counter affidavit there is ample material to show that the so called failure alleged against the respondents in conduct of the department enquiry was not actually a failure but was outcome of the stonewalling as well as efforts made by the petitioner to sabotage the proceeding by using all the tactics he had in his armoury. If that is so then the Court will have to seriously consider whether the delinquent can be allowed to take advantage of his own creation and non-cooperation. There are findings against the petitioner that he made large scale illegal appointments when he was posted as District Superintendent of Education at Rohtas and in the counter affidavit it has also been stated by the State that he did similar kind of things when he got posted to yet another station subsequently. However that is yet another issue and the Court is not concerned with the same. However it is reflection on the kind of an officer the petitioner was. In the totality the so called objection and infirmity - 6 - pointed out by the petitioner is not worthy of consideration in the given facts and circumstances. The order of punishment has been passed after due deliberation at the various levels of the Government which included approval of the Cabinet in consultation with Bihar Public Service Commission and looking at the nature of the charge which was serious, the order of dismissal is not excessive or disproportionate. This writ application has no merit and it is dismissed. RPS (Ajay Kumar Tripathi, J.)