IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9148 of 1993 GUNA NAND JHA, S/O LATE SHALIGRAM JHA, R/O MOHALLA-BARMASIA, P.S.-KATIHAR, DISTRICT- KATIHAR. ………………PETITIONER. Versus 1. THE STATE OF BIHAR, THROUGH THE SECRETARY, HUMAN RESOURCES DEPARTMENT, GOVT. OF BIHAR, NEW SECRETARIAT, PATNA. 2. THE COMMISSIONER, PURNIA DIVISION, PURNIA. 3. THE DISTRICT SUPERINTENDENT OF EDUCATION, KATIHAR, DISTRICT-KATIHAR. 4. THE DISTRICT MAGISTRATE, KATIHAR. 5. THE SUB-DIVISIONAL EDUCATION OFFICER, KATIHAR, DISTRICT-KATIHAR. 6. THE AREA EDUCATION OFFICER, KATIHAR, DISTRICT-KATIHAR. 7. BRAHMDEO JHA, ASSISTANT TEACHER, RAM DAS MIDDLE SCHOOL, DEHARIA, KATIHAR, DISTRICT- KATIHAR. 8. PRABHUNATH SINGH, S/O LATE DEO NATH SINGH, R/O MOHALLA-NAYA TOLA, DEHARIYA, KATIHARI, DISTRICT-KATIHAR. ………………RESPONDENTS. ----------- 8 06.04.2010 Heard learned counsel for the petitioner and learned counsel for the State. In this writ application, petitioner has challenged the order of his dismissal, as contained in the office order of the respondent District Superintendent of Education, Katihar, by which after conclusion of the enquiry and, as per the resolution of the District Education Establishment Committee, his services were terminated. Petitioner while working as Headmaster in Ramdas Middle School, Deharia, Katihar was put under suspension on 21.8.1991. He challenged 2 his suspension order in this Court through CWJC No. 6059 of 1991. The respondents appeared in the case and informed the Court that the suspension was in contemplation of a departmental proceeding. The Court found that inspite of passage of more than one year, the proceeding had not started. Therefore, while disposing of the writ application by order dated 20.07.1992, as contained in Annexure-10, this Court directed the respondents to conclude the enquiry within a period of three months failing which suspension of the petitioner was to stand revoked. Thereafter, as per the direction of this Court, proceeding was started and show cause notice was issued to the petitioner, as contained in Annexure-11. Petitioner replied to the same and report was submitted by the enquiry officer. Enclosing a copy of the enquiry report second show cause notice was issued to the petitioner as contained in Annexure-15. Petitioner filed a detailed reply to the same vide Annexure-16. The matter was thereafter placed before the District Education Establishment Committee of the District and it resolved to terminate the services of petitioner. Pursuant to that resolution, the 3 impugned office order of the District Superintendent of Education was issued as contained in Annexure-20. Petitioner filed an appeal against the same which was also rejected by the Commissioner of the Division vide Anneuxre-21. Learned counsel for the petitioner, while challenging the impugned order of termination as well as order of the Appellate Authority, has raised a short point. He submits that in response to the second show cause notice, petitioner had filed a detailed representation. The representation, as contained in Annexure-16, which is running into 14 pages, shows that petitioner had met each and every finding of the enquiry officer against him and had referred to numerous documents in support of his defence. He submits that the impugned order does not show that any of his grounds, mentioned in the said representation in reply to the second show cause notice, was considered and the documents relied upon by the petitioner in the said reply were taken into account or perused. The impugned order only mentions that the enquiry report and his reply were placed before the Committee and the Committee after examining 4 the same did not find any merit in his reply and, therefore, found charges against him proved and resolved to dismiss him. He submits that Appellate Authority while proceeding to consider the appeal of the petitioner has merely assumed that since the matter was considered by the Committee it must have considered all the grounds of defence taken by the petitioner in his reply. He submits that the consideration of grounds of defence and that of documents relied upon by the petitioner cannot be a matter of presumption. He submits that the Principles of Natural Justice as also fair play require that actual consideration of the same must reflect in the impugned order and the order has to be a speaking one in this respect. Learned counsel for the respondents submits that in the enquiry the show cause filed by the petitioner was considered and the enquiry officer had found the petitioner guilty of all charges. The enquiry report and the reply to the second show cause notice were considered by the Committee and no merit was found in the same. Since the Committee had considered the reply of the petitioner in detail and then it resolved to dismiss the petitioner, it was not required in 5 the impugned order to mention the details of the consideration. Likewise since the consideration was by the Committee, the Appellate Authority was also not required to mention the details and meet the grounds of defence of the petitioner. Legal requirements of giving second show cause notice to delinquent against proposed punishment or against the findings of the enquiry officer is not an empty formality. It is settled law that in the matter of a departmental proceeding, at every stage the Principles of Natural Justice should be complied with and it must be shown that the same has been proceeded with all fairness. Even if, at the first stage i.e. upto the submission of enquiry report, the requirement of Principles of Natural Justice stands complied with, that does not absolved the disciplinary authority to cut short the consideration of the case of the petitioner at the stage of consideration of the second show cause reply and pass a cryptic order. At this second stage of the enquiry also, the defence taken by a delinquent in his reply and challenges to the findings of the enquiry officer arrived at in his report has to be considered in detail and the consideration must 6 reflect in the order of punishment. This obviously has not been done in this case. Therefore, this Court finds that the petitioner stands prejudiced by non- consideration of his reply to the second show cause notice which he filed in detail taking all possible grounds available to him in defence to the findings of the enquiry officer by relying upon several documents. In this reply to the second show cause, petitioner had also taken the ground that after submission of his show cause to the charges he was never asked by the enquiry officer to appear before him and lead evidence. That means that the petitioner had claimed violation of Principles of Natural Justice at the first stage of the enquiry also before the disciplinary authority itself. This fact was required to be ascertained first by the disciplinary authority and then only it could proceed with the consideration of the matters on merits. The impugned order does not reflect consideration of any of these. In the circumstances, this Court finds the impugned order of punishment, as contained in Annexure-20, and the order of the Appellate Authority, as contained in Annexure-21 7 unsustainable in law and the same are fit to be quashed which are hereby quashed. The question remains what consequential relief petitioner can get. Impugned orders are of 1992 and petitioner had filed this writ application in 1993 i.e. soon after he was terminated from service. By order dated 7.4.1994 this application was admitted for hearing. It appears that thereafter petitioner had filed an I.A. No. 6416 of 1999 for its early hearing as the petitioner was going to reach his normal date of superannuation, but it did not find favour. Matter remained pending and now it is 2010. In the circumstances, even if the writ application has been allowed on the ground of procedural irregularities and due to infraction of Principles of Natural Justice and fair play at the second stage of enquiry, this Court does not consider it proper to grant any liberty to the respondents to proceed in the matter afresh. In normal circumstances, petitioner would have superannuated with effect from 31st January, 2000. Now after 10 years, allowing respondents to reopen the matter of the petitioner will be against equity. 8 In the circumstances, respondents are restrained from reopening the matter and proceed in the matter afresh. Therefore, as a result of quashing of the termination order and the Appellate order, the respondents are directed to consider the petitioner as having superannuated from service on his normal date of superannuation and pay him his retiral dues on that basis. However, since there were charges of some financial irregularities against the petitioner, this Court holds that the petitioner will not be entitled to salary from the date of his termination till his normal age of superannuation. This period will otherwise be counted in service for determining the pay scale etc. of the petitioner as on the date of his retirement for computing his pensionary benefits only. The writ application is allowed with the aforesaid observations and directions. Arvind/ (J. N. Singh, J.)