IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2861 of 2007 DEVENDRA THAKUR, Son of Late Rameshwar Thakur, Resident of village Rajapa, P.O. Tira Jathmalpur, P.S. Kalyanpur, District Samastipur. Presently posted as Assistant Teacher Cum Incharge Headmaster, Middle School, Jathmalpur, District Samastipur. Versus 1. THE STATE OF BIHAR 2. The Commissioner, Darbhanga Division, Darbhanga. 3. The Collector, Samastipur. 4. The Deputy Development Commissioner Cum Chairman, District Education Establishment Committee, Samastipur. 5. The District Superintendent of Education, Samastipur. 6. The Area Education Officer, Rosera, District Samastipur. ----------- 2 21.09.2010 Having heard Mr. Pushkar Narain Shahi, learned counsel for the petitioner and learned counsel for the State with regard to the following prayer:- “(i)For quashing the order dated 10.7.2006 passed by the Commissioner, Darbhanga Division, Darbhanga (Respondent no.2) in Service Appeal No. (Misc.) 20 of 2002-03 as contained in Annexure-8, whereby and whereunder he has been pleased to reject the said appeal filed by the petitioner under the provisions of Rule 23 of Bihar State Nationalized Primary School Teachers (Transfer and Disciplinary Proceedings) Rules 2002, against the order of punishment passed by the Deputy Development Commissioner- Cum- Chairman, District Education Establishment Committee, Samastipur (Respondent No.4), which was communicated to the petitioner vide office order as contained in memo no.1710 dated 11.5.2002 issued under the signature of Respondent No.5. (ii)For quashing the order of punishment passed against the petitioner by Respondent No.4 which was communicated to the petitioner vide office order as contained in memo no.1710 dated 11.5.2002 issued under the signature of the District Superintendent of Education, Samastipur (Respondent No.5) as contained in Annexure 7, whereby and whereunder in pursuance to a departmental proceeding the petitioner has been inflicted with the punishment of withholding two annual increments with non cumulative effect and non payment of any amount other than subsistence allowance for the period the petitioner remained under suspension.” 2 this Court is of the opinion, that neither the order of punishment nor the appellate order affirming the same suffers from any infirmity, inasmuch as, such order of punishment of stoppage of increment of the petitioner with non cumulative effect under the relevant “Bihar State Nationalized Primary School Teachers (Transfer and Disciplinary Proceedings) Rules 2002” is itself a minor punishment under its Rule 21 (Ga) and for passing such punishment there would be no need to initiate a regular departmental proceeding. Admittedly when in the case of the petitioner the explanation on the allegations were called for him and the petitioner had also submitted an exhaustive reply, the resultant order of punishment passed by competent authority cannot be faulted in law as the same fulfils the requirement of rule 21 of the Rules quoted hereinbelow:- ^^naM %& ¼1½ fuEu naM] y?kq naM dh dksfV esa gksaxs %& ¼d½ psrkouh ¼[k½ fuanu ¼x½ osru o`fn~/k ij vlap;kRed izHkko ls jksd ¼?k½ ljdkj dks gqbZ vkfFkZd {kfr dh olwyh ¼2½ fuEu naM o`gr~ naM dh dksfV esa gksxs %& ¼d½ osru o`fn~/k ij lap;kRed izHkko ls jksd ¼[k½ inkoufr ¼x½ lsok foeqfDr ¼?k½ lsok esa c[kkZLrxh ¼3½ mi fodkl vk;qDr ;k ftyk f'k{kk v/kh{kd iz/kkuk/;kidksa@f'k{kdksa ls Li"Vhdj.k izkIr dj] mu ij fopkj djus ds i'pkr y?kq naM ns ldsaxsA ¼4½ o`gr~ naM nsus ds iwoZ ftyk f'k{kk v/kh{kd] lapkyu inkf/kdkjh ds izfrosnu dks vkjksih iz/kkuk/;kid@f'k{kd ij rkfey djrs gq, muls naM ds fcanq ij f}rh; dkj.k&i`PNk izkIr djsaxasA ¼5½ f}rh; dkj.k i`PNk ij viuk earO; vafdr djrs gq,] ftyk f'k{kk v/kh{kd] mi&fodkl vk;qDr ds le{k lHkh vfHkys[k izLrqr djsaxs vkSj mi fodkl vk;qDr o`gr~ naM fu/kkZfjr djus gsrq l{ke gksaxsA 3 ¼6½ mi fodkl vk;qDr ds }kjk fn;k x;k naM] ftyk f'k{kk v/kh{kd }kjk lalwfpr fd;k tk,xk ,oa blds vuqikyu dh lwpuk ftyk f'k{kk LFkkiuk lfefr dh vxyh cSBd esa nh tk,xhA** Mr. Pushkar Narain Shahi, learned counsel for the petitioner, however, has tried to develop an aspect of the matter which was never placed before the appellate authority, inasmuch as, he has submitted that the an enquiry was conducted in which the Enquiry Officer had not found any of the three charges framed against the petitioner to have been proved. He, therefore, has submitted that when the petitioner was neither given a copy of the enquiry report nor even an opportunity to show that the findings recorded by the Enquiry Officer in favour of the petitioner were not fit to be accepted and petitioner was also given notice by way of reasons of appointing authority for differing with the finding Enquiry Officer the resultant impugned order cannot be sustained as was held by the Apex Court in Punjab National Bank Vs. Kunj Bihari Mishra reported in (1998) 7 SCC 84. Such plea however cannot be raised for the first time before this Court when the petitioner did not raise it before the Appellate Authority where he assailed the order of punishment on the ground that neither the charges were communicated to the petitioner nor he was given an opportunity to file a show cause. The appellate authority, in fact, having verified this aspect from the record had found that the petitioner was very much acquainted with the charge and in fact he had also submitted his detailed explanation in response to a show cause notice issued to him. Therefore, even if the new plea raised by the petitioner is now 4 taken into consideration, which normally cannot be looked into for the first time in a writ application, it would be found that any superfluous mode of enquiry adopted by the Authority not prescribed by law will be also of no avail for the petitioner inasmuch as, requirement of Rule 21 is only to call for a show cause reply and pass a reasoned order in case of inflicting minor punishment. Admittedly, the petitioner was inflicted such minor punishment after undergoing the prescribed procedure under Rule 21 therefore this Court does not find any procedural error in passing of the order of minor punishment against the petitioner. The plea of the learned counsel for the petitioner on the merit of the charge that the petitioner had already handed over the draft and had obtained its receipt has to be considered in the backdrop that such Bank Draft had to be prepared for its being directly deposited in the account of holder of retired employee and not for its being handed over either to the teacher or her husband. Such conduct of the petitioner exercising power of a Drawing and Disbursing Officer cannot be held to the above board. That being so, this Court does not find any error in the impugned order. This writ application is, accordingly, dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)