IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5200 of 2002 ASHOK KUMAR @ ASHOK KR.SINHA, S/O LATE JUGNU PRASAD, ASSISTANT TEACHER, PRIMARY SCHOOL, BHAWANIPUR, POLICE STATION-ISLAMPUR, DISTRICT-NALANDA. …………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE SECRETARY (PRIMARY EDUCATION) SECONDARY, PRIMARY AND ADULT EDUCATION DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 3. THE DISTRICT EDUCATION ESTABLISHMENT COMMITTEE, NALANDA THROUGH ITS SECRETARY (THE DISTRICT SUPERINTENDENT OF EDUCATION). 4. THE DISTRICT SUPERINTENDENT OF EDUCATION, NALANDA. 5. THE BLOCK EDUCATION EXTENSION OFFICER, HARNAUT, NALANDA. ………………RESPONDENTS. ----------- 4 30.04.2010 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for quashing of Memo no. 3466 dated 24.11.2001 issued from the office of the District Superintendent of Education, Nalanda, as contained in Annexure-1, by which, two punishments have been awarded to the petitioner, namely, his annual increment for one year has been stopped with cumulative effect and he has been held not entitled for any amount towards salary of the suspension period, except his subsistence allowance. Learned counsel for the petitioner submits that for alleged lapses on his part in 2 attending his duties as teacher in the school on different dates, petitioner was put under suspension by order of the District Superintendent of Education, Nalanda vide Annexure-4, and was placed under a departmental proceeding. It was also mentioned that a charge-sheet was being issued to him separately. After receiving the suspension order, petitioner filed his representation, vide Annexure-5, explaining his conduct and prayed for released from suspension. It is pleaded in the writ application that thereafter, neither any charge- sheet was served upon him, nor any opportunity was afforded to him to further represent, nor he was intimated about the proceeding, nor he was asked to appear before the enquiry officer and, all of a sudden, he received the order of punishment, as contained in Annexure-1. Learned counsel for the petitioner submits that in the suspension order, as contained in Annexure-4, it was clearly mentioned that, upon suspension, petitioner was being placed under a departmental proceeding, for which a separate charge-sheet was being issued to him. He also submits that the impugned 3 order also shows that there was some enquiry by some enquiry officer and, on the basis of charges having been found proved, the punishment was being awarded to him. He submits that the petitioner was totally kept in dark about the charges and the proceeding and, therefore, while awarding punishment to the petitioner, there has been gross violation of Principles of Natural Justice and fair play as the petitioner has been denied any reasonable opportunity to defend himself in the proceeding. Learned counsel for the respondents, referring to his office copy of the counter affidavit filed in this case earlier (copy not available on record) submits that in fact, a charge-sheet contained in Memo no. 1732 dated 19.6.2001 was served on the petitioner and, after considering his show cause as contained in Annexure-5, punishment was awarded to him. He submits that, as per 1994 Rules, withholding of annual increment with cumulative effect is a minor punishment. Therefore, no full-fledged enquiry by an enquiry officer was required in the case. He submits that the Rule itself provides that a minor punishment as enumerated 4 in Rule 8 (1) can be awarded after asking show cause only from the concerned delinquent. The said Rule, referred to by learned counsel for the respondents, does show that withholding of increment with cumulative effect is a minor punishment and it also shows that, for that, only a show cause from the concerned delinquent is required to be asked. However, in this case, it appears that, upon being suspended, petitioner was placed under a departmental proceeding. The suspension order also mentions that a separate charge-sheet was being issued to him. The reply of the petitioner, as contained in Annexure-5, shows that he filed his reply only in reference to the said suspension order contained in Memo no. 1328 dated 14.5.2001. This reply clearly was not in response to any charges served on him. As admitted by learned counsel for the respondents, this reply only was considered by the authorities for holding him guilty and awarding punishment to him. Therefore, admittedly there was no reply of petitioner in reference to the charges, allegedly served on him, before the respondents 5 before passing the impugned order. Had the charges been served on the petitioner as contained in memo no. 1732 dated 19.6.2001, as produced by learned counsel for the respondents, reply of the petitioner, as contained in Annexure-5, would have contained a reference of the said memo also. No reference of the said memo in the said reply shows that, either he had filed this reply prior to the receipt of the charges as contained in the said memo no. 1732 dated 19.6.2001 or he had not received the charges at all. If he had received the charges as claimed by the respondents and had not filed reply to the same, this ought to have been mentioned by the respondents in the said counter affidavit or in the impugned order. Moreover, the impugned order shows that there was an enquiry by an enquiry officer, who was someone other than the signatory of the order, namely, District Superintendent of Education, Nalanda. In that case a report must have been submitted and copy of the same was then also required to be served on the petitioner with a second show cause notice. These circumstances go against the submission of learned counsel for the 6 respondents that, as withholding of annual increment with cumulative effect was a minor punishment under 1994 Rules, no full-fledged enquiry was held in the case. At this stage one more significant fact is required to be noticed. Under Sub-Rule (3) Rule 8 of 1994 Rules, it has been laid down that minor punishments can be awarded by the District Superintendent of Education himself whereas major punishments can be awarded only on the recommendations of the District Education Establishment Committee. The impugned order shows that the punishment order was issued by the District Superintendent of Education, Nalanda on the basis of the decision of the said Committee. This shows that the respondents themselves had proceeded in the matter in terms of Sub-Rule (2) of the Rules which provides for a full-fledged proceeding before award of punishment. Learned counsel for the State submits that Rules 10 contains a provision of appeal and as such the petitioner has alternative remedy available against the order of punishment. It may be so, but two factors dissuade this Court 7 from relegating the petitioner to the appellate forum. The first is that the writ application has been pending since 2002 and this objection is being raised when the case is being heard finally, and second is that this Court has found that there has been violation of Principles of Natural Justice and principles of fair play at the first stage of the proceeding itself which vitiates the entire proceeding and the punishment order. In the circumstance, this Court does not find it appropriate to relegate the petitioner to the appellate authority. As a result, the writ application is allowed. The impugned order, as contained in Anneure-1, is quashed. The respondents will be at liberty to frame charges and serve on the petitioner, if advised, in terms of the order of suspension, as contained in Annexure-4, with due opportunity to the petitioner to meet the charges, and hold a proceeding in accordance with law and pass final orders in compliance with Principles of Natural Justice. In case the respondents decide to hold such a proceeding, the same must be concluded within four months 8 from the date of receipt/production of a copy of this order failing which petitioner shall be entitled to all benefits from which he was deprived of pursuant to the impugned order as contained in Annexure-1. Arvind/ (J. N. Singh, J.)