IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1332 of 2006 AMARNATH JHA, SON OF LATE YUGESHWAR JHA, RESIDENT OF VILLAGE BANGAM, P.S. BANGAM, DISTRICT- SAHARSA, PRESENT ASSISTANT TEACHER OF MIDDLE SCHOOL BHEEMNAGAR, P.S. BIRUPR, DISTRICT-SUPAUL. ………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE SCERETARY, SECONDARY, PRIMARY AND ADULT EDUCATION, VIKASH BHAWAN, PATNA. 2. THE HOME SECRETARY GOVT. OF BIHAR, OLD SECRETARIAT, PATNA. 3. THE DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA. 4. THE COLLECTOR, SUPAUL. 5. THE DISTRICT EDUCATION OFFICER, SUPAUL. 6. THE DISTRICT SUPERINTENDENT OF EDUCATION, SUPAUL. 7. THE AREA EDUCATION OFFICER, SUPAUL CUM ENQUIRING OFFICER, DEPARTMENTAL ENQUIRY. 8. THE BLOCK EDUCATION OFFICER, KISHANPUR, SUPAUL. ………RESPONDENTS. ----------- 03/ 26.11.2010 Having heard Mr. Gajendra Jha learned counsel for the petitioner and learned counsel for the State, this Court would find it difficult to sustain the impugned order passed by the District Superintendent of Education on 21.11.2005, whereby and whereunder a sum of Rs. 50,000/- was sought to be recovered from him for implementing certain orders and direction of the Human Rights Commission. Mr. Jha appearing on behalf 2 of petitioner would point out that before passing of such order, the petitioner was given no notice or opportunity as with regard to the proposed recovery of Rs. 50,000/- from him for implementing the order of Human Rights Commission. He has also referred to the counter affidavit to show that this aspect of specific assertion made by the petitioner in Paragraph-20 of the writ application has not been controverted. Counsel for the State, on the other hand by referring Paragraph No-9 of the counter affidavit would submit that the impugned order dated 21.11.2005, itself was a notice to the petitioner to deposit a sum of Rs. 50,000/- . In the opinion of this Court, the impugned order dated 21.11.2005, as contained in Annexure-1 cannot be read 3 as a notice given to the petitioner inasmuch as, by the said order there was a specific direction for implementation of a direction received from the Home Secretary, Government of Bihar, as with regard to recovery of a sum of Rs. 50,000/- each from two persons including the petitioner. In fact, the second paragraph of the said order dated 21.11.2005, was not a notice or Show Cause Notice rather a direction to the petitioner to get a draft of Rs. 50,000/- prepared for its being deposited by way of challan in the Treasury, failing which the amount shall be recovered from his salary. Thus, there can be no two opinion that Annexure-1 cannot be treated to be notice and in fact, the impugned order came to be passed by the authority for recovery of a sum of Rs. 50,000/- from the petitioner without giving the 4 petitioner notice and/or opportunity of hearing to him. It is not in dispute that the petitioner is a Assistant Teacher, who is covered by the statutory Rules, wherein under Rule-8(A) of the 2002 rules one of the punishment is by way of recovery of amount for the loss sustained to the Government exchequer. Even for inflicting such punishment, which has been categorized as a minor punishment in the aforesaid statutory 2002 Rules issuance of a Show Cause Notice was a condition precedent for passing the resultant order of recovery of Rs. 50,000/- from the petitioner. From the tenor of the impugned order, in fact, it would be self evident that the petitioner was never given any Show Cause Notice and/or any opportunity of hearing to explain him that he was not liable to pay sum of Rs. 50,000/- in 5 terms of the order of the Human Rights Commission. The silence on the part of the petitioner in Paragraph-20 of the writ application is by itself a proof of the fact that such procedure was never followed in the case of the petitioner. Counsel for the petitioner has informed this Court that a sum of Rs. 50,000/-has already been recovered from the petitioner and therefore, when this Court has found that the recovery against the petitioner on the basis of the impugned order dated 21.11.2005 (Annexure-1) was itself illegal, this Court while quashing the aforementioned order should remit the matter back to the District Superintendent of Education, Supaul with a direction that the petitioner must be supplied with the relevant information and documents including the order of Human Rights 6 Commission in case no. 2894/4/98-99, which had required the petitioner to deposit a sum of Rs. 50,000/-. In that view of the matter this Court would direct the concerned D.S.E. to give notice to the petitioner along with all relevant documents. It is further directed that the reply of the petitioner to the aforesaid show cause notice would be placed by the District Superintendent of Education, Supaul, before the District Education Establishment Committee for a final decision. If the said committee would find that there was a specific direction of the Human Rights Commission to recover the said amount of Rs. 50,000/- from the petitioner, it would pass an order to this effect otherwise if it finds that there was no such direction of the Human Rights Commission to recover the said amount 7 from the petitioner and/or another teacher, it would straightway pass an order for refunding the amount of Rs. 50,000/- to the petitioner, which had already been recovered from the petitioner. At this stage it must be remembered that for the said misconduct the petitioner was departmentally proceeded and the District Education Establishment Committee in its meeting held on 27.11.2004, after considering the whole matter had gone to pass an order of punishment of stoppage of two increments with cumulative effect, apart from denying him the payment of salary for the period of suspension and restricting him in future not to participate in any such exertion trip. Thus in the opinion of this Court, whereas, for the same misconduct the petitioner was already departmentally proceeded and punished, 8 he could not have been again subjected to further punishment by way of recovery of Rs. 50,000/- but then the position in law would be entirely different if the Human Rights Commission having fixed the responsibility in the name of the petitioner had passed an order for payment of compensation of Rs. 50,000/- by recovering from the petitioner and another teacher and also giving an opportunity to the State of Bihar to recover the same from the petitioner. It is however made clear, that if there was no such direction of the Human Rights Commission to recover the amount of Rs. 1,00,000/-from the petitioner and other teacher, and the State Government was merely directed to deposit the said amount of compensation of Rs. 1,00,000/-, the subsequent action taken by the Home Secretary 9 through the District Superintendent of Education, Supaul by way of recovery of Rs. 50,000/- would amount to adopting an arm testing method especially when the petitioner had already been subjected to order of punishment for the said same misconduct. That being so, this Court would direct the District Superintendent of Education to reconsider the whole thing within a specified time period of six months from the date of receipt/production of a copy of this order. It is further made clear that if no final order is passed in the case of the petitioner within the aforementioned period of six months, the amount of Rs. 50,000/- so, recovered from the petitioner shall be automatically refunded to him. It also goes without saying that if the petitioner is held liable for recovery 10 of Rs. 50,000/-, not only the reasons for the same will be recorded but a copy thereof shall also be given to the petitioner within the same period, so that he may agitate the matter before the Appellate Authority in accordance with law. If however, the order of punishment against the petitioner on 27.11.2004 has already been quashed or interfered and does not exist, nothing would come in the way of the State Government to recover the amount of Rs. 50,000/- from the petitioner after following the prescribed procedure and in accordance with law. With the aforementioned observation and direction, this writ application is disposed of. Ranjan (Mihir Kumar Jha, J.)