IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4232 of 2004 SMT.PREMA MISHRA, WIFE OF SRI SATISH CHANDRA MISHRA, RESIDENT OF VILLAGE RAWAICH, P.S. BAKHTIYARPUR, DISTRICT PATNA. ---------------------------------------------------------------------------------------------------- PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, PRIMARY EDUCATION DEPARTMENT, VIKASH BHAWAN, PATNA. 2. THE DIRECTOR, PRIMARY EDUCATION DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 3. THE DISTRICT SUPERINTENDENT OF EDUCATION, BUXAR, DISTRICT BUXAR. 4. THE DEPUTY DEVELOPMENT COMMISSIONER, BUXAR. 5. SRI INDRANAND SINGH, AREA EDUCATION OFFICER, BUXAR. 6. SMT. SHAKUNTALA, BLOCK EDUCATION EXTENSION OFFICER, BUXAR. 7. SRI SHIV BACHAN RAI, HEADMASTER, PRIMARY SCHOOL, ISARISRI RAM, DISTRICT BUXAR. ------------------------------------------------------------------------------------------------ RESPONDENTS ********* 8 18.1.2011 Petitioner is an Assistant Teacher and was put under suspension and was called upon to face departmental proceeding on the ground of being absent from the school where she was posted and on other grounds. On several occasions, the petitioner had come to this Court challenging the order of suspension and also making a prayer that the subsistence allowance should be paid to the petitioner during the pendency of the departmental proceeding. Finally by the last order of this Court contained in Annexure-13, passed in CWJC No. 12570 of 2002, a prayer was made on behalf of the petitioner to pay the arrears of salary for different periods and for quashing the order 2 of suspension. The Court while dealing with the various contentions raised on behalf of the petitioner finally ordered that the Court did not feel it proper to grant salary to the petitioner or order for payment of subsistence allowance during the period of suspension due to the reasons mentioned in the order. Rather this Court directed as follows: “Instead of going further into the matter, I would direct the respondents, particularly, the District Magistrate, Buxar as Chairman of the District Education Establishment Committee to place the two enquiry reports submitted in connection with the proceedings initiated on 5.4.99 and 27.12.2000 before the Committee for appropriate decision. The question of payment of salary and/or subsistence allowance as aforesaid shall abide by the decision of the Committee.” It has been argued on behalf of the petitioner that the entire departmental proceeding is mala fide and that the enquiry reports would disclose that absolutely no evidence was led to indicate that the petitioner was absent from the school where she was posted, inasmuch, as the Headmaster of the school has not been examined in the departmental enquiry to indicate whether the attendance register showing that the 3 petitioner was present is factually correct or incorrect. All these aspects of the matter have to be decided by the Establishment Committee as directed by this Court in its earlier order, keeping in view of the fact that mere allegation is insufficient for proving any misdemeanor or indiscipline of an employee. It requires the enquiry officer to look into the materials that are available on the subject matter of the charges. As per the directions of the Court, the enquiry reports were placed before the Establishment Committee which would be apparent from the impugned order issued vide memo no. 1177 dated 5.7.2003. After the enquiry report was placed before the Establishment Committee, the petitioner was given second show cause. In second show cause, the petitioner had asked for an opportunity to examine the records which was granted to the petitioner. The final order however, has been issued by the District Superintendent of Education which was not envisaged by this Court in its order contained in Annexure-13. Apart from which 4 the District Superintendent of Education before 2002 did not have the power to inflict punishment. Counsel for the State has submitted that the order of the District Superintendent of Education is merely a communication of the decision taken by the District Establishment Committee. Due to the tenor of the order, a doubt was created in the mind of the Court regarding the submissions made on behalf of the State in the counter affidavit, and as such this Court called for the records. An affidavit has been filed on behalf of the State stating therein that the Clerk Deenanath Singh was to hand over the records however, it appears that the Clerk had not handed over the records to the Clerk who had succeeded him, as a result the records are not available. It has been stated that action is being taken by filing an F.I.R. against Deenanath Singh who has now retired from service. If Deenanath Singh had not handed over charge, it is bit surprising that the records should disappear from the office. In any event, considering all these 5 aspects, this Court has no option but to quash the order of the District Superintendent of Education, Buxar and remand the matter back to the District Establishment Committee to reconsider the enquiry reports. If the enquiry reports are not now available, it would be incumbent on the petitioner to supply a copy of the enquiry reports so that the District Establishment committee would have the opportunity to examine them along with reply to the second show cause that had been submitted by the petitioner. As far as the claim of the petitioner that she should be given an opportunity to examine the records, she has perhaps already been given the opportunity and had the opportunity to make whatever comments she had to make after examining the records. The petitioner is granted eight weeks time to bring this matter to the notice of the District Magistrate, Buxar who would convene a meeting and call upon the petitioner to file an additional statement in his defence which should be filed within time allotted to the petitioner. The Establishment Committee 6 will take its decision and pass a reasoned order which may be communicated by either the District Magistrate, Buxar or the District Superintendent of Education, Buxar for and on behalf of the District Establishment Committee. The matter should be disposed of within a period of four months after the petitioner files her additional written statement. This writ application is thus, disposed of with the aforesaid directions and observations. Sanjay ( Sheema Ali Khan, J.)