IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5150 of 2003 BINOY KUMAR SRIVASTVA, SON OF LATE BALESHWAR PRASAD SRIVASTAV, RESIDENT OF MOHALLA- NAWAL KISHORE ROAD, KADAMKUAN, PATNA, P.S.- KADAMKUAN, PATNA, DISTRICT- PATNA. AT PRESENT WORKING AS AN ASSISTANT IN CERTIFICATE SECTION OF BIHAR SCHOOL EXAMINATION BOARD, SINHA LIBRARY ROAD, PATNA:--PETITIONER . Versus 1. THE BIHAR SCHOOL EXAMINATION BOARD, SINHA LIBRARY ROAD, PATNA THROUGH ITS SECRETARY. 2. THE CHAIRMAN, BIHAR SCHOOL EXAMINATION BOARD, SINHA LIBRARY ROAD, PATNA. 3. THE SECRETARY, BIHAR SCHOOL EXAMINATION BOARD, SINHA LIBRARY ROAD, PATNA :--- RESPONDENTS. ----------- For the petitioner : Mr. Rajendra Prasad Singh, Senior Advocate & Mrs. Pusapa Sinha, Advocate. For the Board : Mr. Girijesh Kumar, Advocate. ===== 7. 08.10.2010. Heard learned counsel for the petitioner and the Bihar School Examination Board (hereinafter referred to as the “Board”). 2. Petitioner is aggrieved by the office order dated 14.07.2001, Annexure-1, whereunder after conclusion of the departmental proceeding he has been placed at bottom of the pay-scale payable to him with further direction that during the suspension period he shall not be paid beyond subsistence allowance further the suspension period shall not be counted as service period. He is also aggrieved by the order dated 04.03.2003, Annexure-1/A, whereunder his appeal filed against the order dated 14.07.2001, Annexure-1 has been rejected. Earlier petitioner was placed under suspension under orders dated 12.12.2000, Annexure- 4, whereafter he was served with memo of charge dated 17.01.2001, Annexure-5, perusal whereof indicate that he is alleged to have submitted incorrect verification report in regard to two out of 26 mark-sheets given to him for verification. Under letter dated 31.01.2001, Annexure-6 petitioner requested for supply of documents and the list of witnesses to be relied upon in 2 support of the charge-sheet. The authorities appointed Enquiry, Presenting Officer, whereafter petitioner again made request for supply of documents and the list of witnesses to be relied upon and examined in support of the charge-sheet. On 05.05.2001 the documents asked for were given to him but the list of witnesses was not furnished. Petitioner filed his reply dated 22.05.2001, which is contained in Annexure-7 to this application, perusal whereof indicates that thereunder he accepted that on account of pressure of work he committed mistake while submitting verification report in connection with two out of the 26 mark-sheets given to him for verification. Perusal of the show-cause reply filed by the petitioner further indicates that thereunder he gave his explanation as to why mistake was committed by him in the case of two out of twenty six mark-sheets and requested the authorities to grant him further opportunity to explain the circumstances in which he submitted incorrect verification report in case of two mark-sheets. The explanation was submitted to the Secretary of the Board, who had issued the memo of charge. The Secretary of the Board having received the show-cause reply of the petitioner, Annexure-7 forwarded the same along with the charge-sheet to the Enquiry Officer. It is submitted on behalf of the petitioner that the Enquiry Officer without giving the petitioner any further opportunity to explain the circumstances in which mistake was committed in submitting the verification report in connection with the two mark-sheets submitted report dated 11.06.2001, contained in Annexure-10 to this application, perusal whereof indicates that thereunder the Enquiry Officer has been fair enough to note the submission of the petitioner that he desires opportunity of being heard to 3 explain the circumstances in which incorrect verification report was submitted, as regards the two mark-sheets. After receipt of the Enquiry Report petitioner was given second show-cause notice dated 12.06.2001 which is contained in Annexure-8 to this application. In response to the second show-cause notice petitioner again submitted his reply and requested the disciplinary authority to reconsider the matter in the light of the fact that he was not given any opportunity to explain the circumstances in which he submitted incorrect report in regard to two out of the 26 mark-sheets given to him for verification. The disciplinary authority i.e. Administrator of the Board without giving any opportunity to the petitioner to explain the matter passed the impugned office order punishing the petitioner. It is submitted on behalf of the petitioner that petitioner was neither given opportunity of being heard before the Enquiry Officer nor by the Administrator, as such, the Enquiry Report and the punishment order passed by the Administrator both suffers from the vice of arbitrariness, as both the report and the punishment order have been passed without giving any opportunity of being heard to the petitioner. 3. Counsel for the Board has opposed the submission. He states that from perusal of the show- cause filed by the petitioner dated 22.05.2001, Annexure-7 it will appear that petitioner himself has admitted his guilt as he candidly accepted that there was mistake in 2 out of 26 verification report, as such, no further opportunity of being heard was required to be given to him either by the enquiry officer or the disciplinary officer(s). 4. I regret not to accept the aforesaid submission of the counsel for the Board in view of the 4 clear averment made by the petitioner in his show- cause reply explaining in detail the circumstances in which the mistake was committed by him in respect of two out of twenty six mark-sheets given to him for verification with further statement that on account of being over-pressed with so many duties of varied nature, such mistake was committed by him and if the verification report submitted by him would have been further verified by the superiors such mistake could have been avoided. The Enquiry Officer has fairly noted in his report that petitioner desired opportunity of being heard but still for reasons best known to the Enquiry Officer petitioner was not granted such opportunity of being heard. In the circumstances, there is no difficulty in concluding that the Enquiry Report dated 11.06.2001, Annexure-10 has been submitted without giving the petitioner opportunity of being heard. The punishment order has also been passed by the Administrator without giving the petitioner any opportunity of being heard. It is well settled that enquiry officer is enjoined with the duty to grant personal hearing to the proceedee before recording the finding of guilt. It is equally well settled that the disciplinary authority should also grant opportunity of being heard to the proceedee before accepting the finding of guilt recorded by the enquiry officer. Having accepted the finding of guilt after granting opportunity of being heard to the proceedee the disciplinary authority should issue second show-cause notice proposing the punishment. In the instant case, none of the aforesaid three steps have been taken by the Enquiry Officer, Disciplinary Authority. Reliance in this connection be placed on the judgment of the Hon’ble Supreme Court in the case of Managing Director, ECIL, 5 Hyderabad, etc.etc. Vs. B. Karunakar, etc. etc., reported in A.I.R. 1994 Supreme Court 1074. Accordingly, the Enquiry Report dated 11.06.2001, Annexure-10, punishment order dated 14.07.2001, Annexure-1 and the appellate order dated 04.03.2003, Annexure-1/A are set aside. Petitioner having retired with effect from 30.4.2008, the authorities of the Board are directed to pay his retrial dues. 5. The writ application is, accordingly, allowed. AFR P.K.P. (V.N.Sinha,J.)