IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 4176 of 2009 BILAYATI SINGH, SON OF LATE SURESH SINGH, RESIDENT OF VILLAGE – KAIYAR, POLICE STATION – SIKANDARA, DISTRICT – JAMUI, RETIRED ASSISTANT TEACHER, PRIMARY SCHOOL, BAJITPUR, ANCHAL – HALSI, DISTRICT – LAKHASARIA ……………………….. PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HUMAN RESOURCES, GOVERNMENT OF BIHAR, PATNA 2. THE DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA 3. THE DIVISIONAL COMMISSIONER, MUNGER DIVISION, MUNGER 4. THE DEPUTY DEVELOPMENT COMMISSIONER-CUM- CHAIRMAN, DISTRICT ESTABLISHMENT COMMITTEE, LAKHISARAI 5. THE DISTRICT SUPERINTENDENT OF EDUCATION, LAKHISARAI 6. THE BLOCK EDUCATION EXTENSION OFFICER, HALSI, ANCHAL- HALSI, DISTRICT – LAKHISARAI ………………… RESPONDENTS ----------- Fort the Petitioner: Mr. Arun Kumar, Advocate For the State: Mr. S. K. Jha, SC to GA-X ********** 04. 25.08.2011 Heard learned Counsel for the petitioner and the State. Petitioner’s prayer is for quashing of order, contained in Memo No. 2213, dated 16.07.2007, issued by the District Superintendent of Education, Lakhisarai, inflicting punishment of stoppage of two increments with cumulative effect and non-payment of salary or any other monetary benefits for the suspension period except subsistence allowance. The impugned order has been challenged by the petitioner on several grounds, which are as follows: 2 (i) Major punishments have been awarded in the Disciplinary Proceeding, without following the procedure for inflicting major punishment. (ii) Petitioner was not supplied the copy of enquiry report and second show-cause-notice was also not issued to him with regard to the proposed punishment. (iii) The punishment has been awarded by the District Superintendent of Education, who is not a competent authority for passing such order, either in view the provisions contained in Bihar State Nationalized Primary School (Transfer and Disciplinary) Rules, 2002 or under Bihar Civil Servants (Classification, Control and Appeal) Rules, 2005. In case of 2002 Rules, the DDC would have been the competent authority for passing such order on recommendation of the District Establishment Committee and in case of 2005 Rules the order could have been passed on recommendation of District Recommendation Committee by the Disciplinary Authority or the District Magistrate in capacity of Chairman of the Establishment Committee. So far District Superintendent of Education is concerned, he is not competent for passing such order under the provisions of any of the Rules. 3 Petitioner was posted as Assistant Teacher in Primary School, Bajitpur, under Anchal Halsi, District – Lakhisarai. He was placed under suspension for remaining absent from duty in contemplation of Departmental Proceeding, vide Memo No. 59, dated 15.04.2006. Petitioner challenged the suspension order by filing C.W.J.C. No. 8778 of 2006, as memo of charge had not been supplied to him even after expiry of the statutory period of three months. During the pendency of the Writ Application, the memo of charge was supplied to him and the Writ Application was disposed of directing to proceed with the enquiry proceeding and conclude it within three months. Petitioner’s case is that he submitted his show- cause before the Conducting Authority, but even after stipulated period of three months, the Departmental Proceeding was not concluded. The petitioner preferred MJC No. 141 of 2007. The Departmental Proceeding thereafter was concluded in haste without observing the procedure for conducting the Departmental Proceeding. He was not served with any enquiry report. No second show-cause-notice was issued and the impugned order contained in Annexure – 4 5, awarding two major punishments was passed. As regard second punishment, i.e., non-payment of salary or any monetary benefits during the period of suspension, except subsistence allowance, the stand taken by the petitioner is that the punishment has been awarded in violation of Rule 97 of the Bihar Service Code. Any order could have been passed with regard to non-payment of salary for the period of suspension, only following the procedure as provided under Rule 97 of Bihar Service Code, but that was not done. Counter Affidavit has been filed on behalf of the State, in which there is no denial to any of the grounds taken by the petitioner, challenging the impugned order. The Order dated 17.05.2007, issued by the Commissioner and Secretary, Human Resources Development Department has been annexed as Annexure – A to indicate that Bihar State Nationalized Elementary School Teacher (Transfer and Departmental Proceeding) Rules, 2002 was repealed and thereafter new rule came into existence as 2006 Rules. But so far 2006 rule is concerned that only govern the field of transfers, and there is no provision with regard to the Departmental Proceeding. In this circumstance, it has been decided that the Bihar Civil Servant (Classification, 5 Control and Appeal) Rules, 2005 will be made applicable in the matters of Disciplinary Proceedings of Teachers, which was earlier governed by 2002 Rules. The clarification letter, annexed as Annexure – A, had been issued on 17.05.2007. Counsel for the petitioner submits that even if cognizance is taken of the letter dated 17.05.2007, annexed as Annexure – A, it can not have any retrospective effect and it will have prospective effect only. The Disciplinary Proceeding had been initiated against the petitioner in 2006 and at that time, Annexure – A, was not being in existence. It can not have any retrospective effect on the Disciplinary Proceeding, being conducted against the petitioner. In case, CCA Rules, 2005 is made applicable then for awarding major punishment, the competent authority would have been the District Magistrate or the Disciplinary Authority. Any major punishment could have been awarded only by the Chairman of the District Establishment Committee or Disciplinary Authority on recommendation of the District Establishment Committee. The impugned order passed by the District Superintendent of Education is completely without jurisdiction. 6 Considering these facts and there being no denial in the Counter Affidavit filed on behalf of the State, I find that the major punishment awarded to the petitioner, without observing the procedure provided for holding Departmental Proceeding, is not sustainable. The impugned order is also fit to be quashed on account of being passed by an incompetent authority, without following the procedure for awarding major punishments. For all these reasons, the impugned order, contained in Annexure – 5 to the Writ Application is quashed. Accordingly, this Writ Application is allowed. SKM (Mridula Mishra, J.)