IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16021 of 2007 VIVEKA NAND MISHRA, S/O LATE AWADH NARAIN MISHRA, R/O VILLAGE-MALCHAK, P.S.-HARPUR, DISTRICT-MUNGER. …………………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH COMMISSIONER-CUM- SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE COMMISSIONER-CUM-SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, SECONDARY EDUCATION, GOVERNMENT OF BIHAR, PATNA. 4. THE ADDITIONAL DIRECTOR, EDUCATION, GOVERNMENT OF BIHAR, PATNA. 5. THE DEPUTY DIRECTOR OF EDUCATION, BIHAR, SECONDARY EDUCATION OFFICE, PATNA. 6. THE DISTRICT EDUCATION OFFICER, MUNGER. 7. THE ACCOUNTANT GENERAL, BIHAR, PATNA. ………………RESPONDENTS. For the petitioner : Mrs. Shashi Priya Pathak, Adv. For the State : Mr. Binod Kumar, AC to SC-V. ----------- 4 29.10.2009 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for quashing of Annexure-5, by which the representation of the petitioner filed pursuant to earlier orders of this Court as contained in Annexure-1, has been rejected by the Director, Secondary Education, Government of Bihar, Patna and also for a direction to the respondents to pay his salary of the period 18.1.1979 to 21.8.1980. Stand of petitioner is that he was working in R.K. & L.J. High School, Barhoria, Munger as Assistant Teacher. In January 1979, a dispute arose between the management of the school and Secretary of the school in respect of posting of one Subodh Kr. - 2 - Singh, an Assistant Teacher as Headmaster of the school. When said Subodh Kr. Singh who was inimical to petitioner, took over charge as Headmaster, he, in collusion with the Secretary of the school prevented the petitioner from marking his attendance on the attendance register. However, petitioner continued in service and imparted teaching but marked his attendance on the separate register till August 1980 when the petitioner was transferred from said school to some other school. Petitioner subsequently filed a representation before respondent District Education Officer, Munger for payment of his salary of the aforesaid period. The said representation was considered and the respondent District Education Officer by his letter dated 21.8.1987, annexed as Annexure-2, recommended for orders for release of his salary. The said letter of the District Education Officer was considered and the Additional Director, Secondary Education by his letter dated 1.4.1989, annexed as Annexure-3, directed the respondent District Education Officer to take steps for release of his salary. The District Education Officer in reply, vide Annexure-4 dated 19.6.1989, reported that the total salary due of the petitioner of the period was Rs.14,029.20. However, as the fund was not - 3 - available, he submitted the pay bills, along with the said letter, to the department for payment. As the dues of the petitioner still remained unpaid, he moved this Court through C.W.J.C. No. 5265 of 1997 which was disposed of by order dated 20.8.1998, vide Annexure-1, giving liberty to the petitioner to file a representation before the Director, Secondary Education. Accordingly, petitioner had filed representation which has been rejected by the Director, Secondary Education, vide Annexure-5 dated 21.1.2000. The petitioner has challenged the same in this writ application with the aforesaid prayers. Contention of learned counsel for the petitioner is that, earlier, on application of the petitioner, matter was enquired into by the Regional Deputy Director of Education, Bhagalpur Division, and he found the petitioner not guilty of having not marked his attendance on attendance register. She submits that this fact was mentioned in Annexure-2, letter of the District Education Officer by which, on the basis of such report of the Regional Deputy Director of Education, recommendation was made for payment of salary of the petitioner. Considering the same, the Additional Director, vide Annexure-3 dated 1.4.1989, had rightly ordered for release of salary - 4 - of the petitioner. She submits that ignoring the materials available on record, the Director, Secondary Education has now rejected the representation of the petitioner by Annexure-5 on the basis of some enquiry report submitted to him by the District Education Officer through his letter no. 31 dated 5.1.1987. She submits that this alleged enquiry was held behind the back of the petitioner and he had absolutely no knowledge of the same. She also submits that while basing his findings on the enquiry report submitted through the said letter no. 31 dated 5.1.1987, the Director has completely ignored and overlooked the earlier enquiry held by the Regional Deputy Director of Education, in which the petitioner was not found guilty. Therefore, she submits that, the Director, Secondary Education, has rejected the representation of the petitioner in complete ignorance of the materials available on record and in violation of Principles of Natural Justice as the document relied upon by him for such rejection was never made available to the petitioner nor he was ever informed about such enquiry with a request to participate in the same. A counter affidavit has been filed by the respondents. In the counter affidavit, it is stated - 5 - that the enquiry report as referred to in the impugned order shows that petitioner had not worked in the school due to some internal dispute during the period and, therefore, he was not entitled for the salary for the period. Learned counsel for the State submits that had the petitioner worked in the school, in normal course, he would have complained the higher authorities against the Headmaster with regard to his preventing him from signing the register. He also submits that it may be that the school may be under private management during the period as the dispute was in respect of appointment of Headmaster by the Managing Committee. He submits that, although there is no material on record to show as to when the school was taken over, still, in case the school was under private management, State Government will not be liable to pay salary of the petitioner of the period. He also submits that, since the Finance Department has not given concurrence to payment of salary of the petitioner of the period in question, department was not in a position to order for payment of the same even if the claim of the petitioner is found genuine. Learned counsel for the petitioner, in - 6 - reply, submits that during the period, the school was under the control of the Bihar Secondary Education Board and, therefore, the Board and now the State Government was/is liable to pay the due salary of the petitioner for the period as he was working on sanctioned post on regular basis. Pleadings in the writ application as also in the counter affidavit do not disclose the details with regard to status of the school. However, from the documents on record, it appears that, when the petitioner filed an application for release of salary of the period, there was some inspection by the Regional Deputy Director who did not find the petitioner guilty. It appears from Annexure-2 that, on the basis of such report by the Regional Deputy Director of Education, recommendation was made by the District Education Officer, vide Annexure-2, for payment of salary of the petitioner, which was accepted by the department and orders were passed, vide Annexure-3, for release of the same. From Annexure-5, it is apparent that this aspect of the matter was not considered by the Director, Secondary Education while rejecting the representation of the petitioner. It is also apparent that the Director, Secondary Education based his - 7 - findings in the impugned order solely on the basis of some enquiry report submitted with letter no. 31 dated 5.1.1987 of the District Education Officer. There is no denial that this enquiry report and the said letter were never served on the petitioner. Hence, in this respect, violation of Principles of Natural Justice is writ large. The impugned order of the Director also suffers from non-consideration of relevant materials on record vide Annexures-2 and 3. In the circumstances, this Court is of the opinion that a fresh look has to be given to the claim of the petitioner in view of materials available on record as appearing from Annexures-2 and 3. This is also clear that before coming to any final conclusion against the petitioner, the petitioner must be given the said enquiry report or any other material adverse to him and, if necessary, he should be given a personal hearing in the matter. In the circumstances, this Court finds that Annexure-5 is unsustainable in law and as such the same is hereby quashed. The respondent Director, Secondary Education, is directed to look into the matter afresh taking into account the materials forwarded to the department though Annexure-2 and particularly the report of the Regional Deputy - 8 - Director of Education upon his inspection of the school as mentioned in Annexure-2. If he finds that there is such report by the Regional Deputy Director of Education finding the petitioner not guilty, it will be appropriate for him to accept the same and pass appropriate orders for payment of due salary of the petitioner i.e. Rs.14,029.20. This Court could have accepted the submission of learned counsel for the State that the writ application suffers from delay and laches, but for the fact that the earlier writ application of the petitioner was entertained by this Court and the petitioner was permitted to file representation before respondent Director, Secondary Education, which revived the belated claim of the petitioner. But for that reason petitioner’s claim for interest on the amount is not maintainable and the same is rejected. Arvind/ (J.N. Singh, J.)