IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.397 of 2003 1. RATAN LAL CHOUDHARY, son of Shri Bhagwan Choudhary, resident of village Karman Tola, Ara, P.S. Nawada (Ara), District Bhojpur, (aged 31 years) at present posted as an Assistant Teacher, Primary School, Duboul, Bihia Ara 2. S.M.Nafisul Haque, son of Shri Wajihul Haque, resident of Mohalla Brahbatra, P.S. Town, District Ara, Bhojpur (aged 33 years), presently posted at Primary School, Udwant Nagar, Mushhar Toli, Pachim, Ara 3. Uday Narayan Chaubey, son of Shri Chandra Bhushan Chaubey, resident of village Vishnupura, P.S. Imadpur, District Bhojpur (aged 35 years), presently posted as Primary School, Chauri, Sahar West 4. Mukesh Kumar Srivastava @ Mukesh Prasad Srivastava, son of Shri Pandey Ramchandra, resident of Mohalla Pakari (West of Dal Mill), P.S. Ara Nawada, District Bhojpur, age 35 years, posted at Primary School, Mushhar Toli, Sikrahatta, Tarari 5. Jagesh Narayan Tiwary, son of late Raghubansh Twiary, resident of village + P.O. Berath, P.S. Chouri, District Bhojpur (aged 33 years), at present posted at Primary School, Paharpur Khurd, Sandesh 6. Sheo Shankar Rai, son of Shri Chandradeo Rai, resident of village Bara, P.O. Pawar, P.S. Sandesh, District Bhojpur, (aged 36 years), presently posted at Primary School, Ratanpur 7. Brajendra Kumar, son of Shri Ram Vilash Pandey, resident of village + P.O. Vakura (Karath), P.S. Tarari, District Bhojpur (aged 32 years), posted at B.E.P. Primary School, Chaprapur, Piro-1 … Petitioners Versus 1. THE STATE OF BIHAR through the Secretary, Department of Primary Education, Govt. of Bihar, Patna 2. The Director, Primary Education, Bihar, Patna 3. The District Magistrate, Bhojpur at Ara 4. The District Superintendent of Education, Bhojpur at Ara … Respondents ----------- 4. 12.7.2010 Heard counsel for the petitioners and the counsel for the State. 2 In this writ application seven petitioners have assailed their separate order of punishment, as contained in Annexures 6 series, and their prayer in this regard in this writ application has been summarized in paragraph 1 in the following terms: “This is an application for issuance of a writ in the nature of certiorari to quash the punishment imposed upon the petitioners vide various memo numbers but all dated 26.12.2002, whereby and whereunder while revoking the suspension of the petitioners, two annual increments of the petitioners have been withheld without cumulative effect and it has also been directed that the petitioners will not be entitled to anything except the subsistence allowance already paid to them for the period of suspension and warning has been issued to the petitioners as a last resort so as to prevent them from repeating such incidents in the office and for issuance of a consequential writ in the nature of mandamus directing and commanding the respondent-authorities to pay the whole salary for the suspension period and pay their annual 3 increments regularly without any interruption and/or for issuance of any other writ, order or direction, for which the petitioners may be found legally entitled to in the facts and circumstances stated hereinafter.” Mr. Ganesh Prasad Singh while assailing the impugned order in cases of all the seven petitioners has submitted that the petitioners do not intend to question the punishment of censure and stoppage of their increments and their grievance is only with regard to denial of salary beyond subsistence allowance for the period of suspension. He has also submitted that since no enquiry report was supplied to any of the petitioners, such order of punishment of denial salary for the period of suspensi. He has finally submitted that the power of inflicting punishment on the petitioners, holding the post of teacher, is with the District Education Establishment Committee and not its Chairman, the Collector of the District. He has also placed reliance on the judgment of this Court in the case of Sri Mahabir Prasad vs. the State of Bihar & ors., reported in 1988 PLJR 82 and in the 4 case of Pramod Kumar vs. Champaran Kshetriya Gramin Bank & ors., reported in 2003(4) PLJR 68, for seeking support to his submission that denial of salary for the period of suspension cannot be made unless there is a separate show cause notice issued to the delinquent. Counsel for the State, on the other hand, would submit that this writ application is not maintainable in absence of petitioners’ invoking remedy of statutory appeal against such order of punishment. He would further submit that there was no question of holding a regular departmental proceeding, inasmuch as the petitioners were asked to file their show cause and on the basis of such show cause reply filed by them the order of punishment has been passed. He would further rely on the Discipline and Appeal Rules of Primary Teachers providing inflicting of minor punishment under the orders of the Chairman of the Establishment Committee. The fact that the seven petitioners as with regard to seven different memo of charge and seven different order of 5 punishment have joined together in one writ petition and have enclosed only one memo of charge as with regard to petitioner no.1 by itself would go to show that the petitioners cannot maintain this joint writ petition as with regard to their separate cause of action. Each of the petitioner was subjected to a separate disciplinary proceeding with regard to his individual charge of misconduct and was also subjected to separate order of punishment. A joint writ petition by them only on the ground that such separate orders of their punishment came to be passed on the same date, is not permissible under Patna High Court Rules. Their plea that the copy of the enquiry report was not given to them which in turn would amount to violation of principles of natural justice, therefore, statutory remedy of appeal could be circumvented by them, is also an unacceptable proposition of law. The moment this Court comes to a finding that there was no regular departmental proceeding and there is recourse given in the Bihar Rajya Rajkiyakrit Prarambhic Vidyalaya Shikshak 6 (Sthantaran Evam Anushasnik Kararvai)Niyamavali 1994 (hereinafter referred to as the Rules) framed under proviso to Article 309 of the Constitution of India for also inflicting certain minor punishment without taking recourse to the departmental proceeding there would be no question of violation of principles of natural justice on account of non-supply of enquiry report. In this regard it would be useful to quote Rules 7 to 10 of the 1994 Rules which reads as follows:- ^^7- fuyEcu& 1- vkSpd fujh{k.k es ik;h x;h vukf/kd`r vuqifLFkfr ds fy, f'k{kd dks fuEu inkf/kdkjh fuyafcr dj ldsaxs rFkk rRlaca/kh vkns'k dh izfr ftyk f'k{kk v/kh{kd dks vuqorhZ dkjZokbZ gsrq Hkstsaxs%& 2- {ks=h; f'k{ksi funs'kdA 3- ftyk inkf/kdkjhA 4- mi fodkl vk;qDrA 5- ftyk f'k{kk inkf/kdkjhA 6- ftyk f'k{kk v/kh{kd 7- ftyk fo|ky; fujhf{kdk dsoy dU;k fo|ky;ksa ds fy,A 2- mi fu;e ¼1½ dks NksM+ vU; lHkh ifjLFkfr;ks esa ftyk v/kh{kd rFkk ftyk inkf/kdkjh f'k{kd dk fuyEcu dj ldsaxsA 3- mi fu;e ¼1½ ,oa ¼2½ ds v/khu f'k{kd ds fuyEcu ds dze esa ftyk f'k{kk v/kh{kd Li"Vhdj.k ekxsxsA 4- Li"Vhdj.k izkIr ugha gksus vFkok vlarks"ktud jgus ij ftyk f'k{kk v/kh{kd foHkkxh; dk;Zokgh izkjaHk dj ldsaxsA 5- fuyEcu ls eqfDr rFkk foHkkxh; dk;Zokgh dks lekIr djus dk vkns'k ftyk inkf/kdkjh ds vuqeksnu ls ftyk f'k{kk v/kh{kd fuxZr dj ldsxkA 8- naM ¼1½ vuq'kklfud dkjZokbZ ds v/khu f'k{kd dks fuEukafdr y?kq naM fn;k tk ldsxkA ¼ 7 i½ psrkouh] ¼ii½ fuUnu] ¼iii½ osru&o`f} ij jksd] vlap;kRed izHkko ls] ¼iv½ n{krk vojks/k ikj djus ij jksdA ¼v½ ljdkj dks gqbZ vkfFkZd {kfr dh olwyh ijUrq ,slk y?kq naM ds iwoZ f'k{kd ls Li"Vhdj.k ekaxk tk;sxkA ¼2½ vuq'kklfud dkjZokbZ ds v/khu f'k{kd dks fuEukafdr o`gr naM fn;k tk ldsxkA ¼i½ inkoufr ¼i½ lsok&eqfDr ¼i½ lsok ls c[kkZLrxhA ijUrq ,slk o`gr naM nsus ds iwoZ f'k{kd ds fo:} foHkkxh; dk;Zokgh dh tk;sxhA ¼3½ ftyk f'k{kk v/kh{kd dks y?kq naM ns ldsxk rFkk LFkkiuk lfefr ds vuqeksnu ls f'k{kd dks o`gr nsM ns ldsxkA 9- vfuok;Z lsok&fuo`fr& LFkkiuk lfefr ds fu.kZ;kuqlkj ftyk f'k{kk v/kh{kd f'k{kd dh vfuok;Z lsok fuo`fr dj ldsxkA 10- vihy%& ¼1½ fu;e 8 ds mi fu;e ¼3½ ds v/khu ftyk f'k{kk v/kh{kd }kjk ikfjr vkns'k ds fo:} vkns'k fuxZr gksus dh frfFk ls rhl fnuksa ds vUnj ftykf/kdkjh ds le{k vihy dh tk ldsxh ijUrq ;fn ;g vkns'k LFkkiuk lfefr ds vuqeksnu ls ikfjr fd;k x;k gS] rks vkns'k fuxZr gksus dh frfFk ls 30 fnuksa ds vUnj izeaMyh; vk;qDr ds le{k vihy dh tk ldsxhA ¼2½ vihy esa ikfjr vkns'k vafre gksxkA** Thus it would be clear from the aforesaid statutory Rules applicable to the petitioners that no departmental proceeding was required to be held for inflicting minor punishment and further the order of suspension against the petitioners could be revolved only with the approval of the Collector being the Chairman of Establishment Committee. Moreover this Court 8 would find that the petitioners themselves have straightway submitted their show cause and did not demand any enquiry in the matter as would be evident from the reading of Annexures 5 series, containing their show cause reply and as such there was no occasion for supply of enquiry report. Once this Court comes to a conclusion that there was no question of principles of violation of natural justice on account of non-supply of enquiry report, the obvious conclusion would be that the petitioners have tried to circumvent the statutory remedy of appeal under Rule 10, wherein at the relevant point of time the Divisional Commissioner was vested with the power of appeal. More over, when the petitioners do not question the order of punishment either of censure or stoppage of three increments with non-cumulative effect, both of which are minor punishment in terms of the 1994 Rules, there would be hardly any scope for this Court to interfere with the order of punishment inasmuch they become a final order only on disposal of Appeal as provided 9 in Rule 10(2) of the Rules. Thus the impugned orders of punishment even in respect of withholding of salary for the period of suspension has to be gone into only by the appellate authority. In that view of the matter, this writ application without exhausting the statutory alternative remedy of appeal is not maintainable. The petitioners however may avail statutory remedy of appeal and in the event such an individual separate appeal is filed by the petitioners, the appellate authority without insisting on the issue of delay by taking into account that this writ application has remained pending from 8.1.2003 till this date, would dispose of such appeal on merits. With the aforementioned observations and direction this writ application is disposed of. (Mihir Kumar Jha,J.) Surendra/