IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9767 of 2002 JAGDISH PANDEY, son of late Ram Pravesh Pandey, resident of village Itimha, P.S. Tarari, District Bhojpur (Ara), presently posted as Headmaster, Guru Nanak Abhayasarth Madhaya Vidyalay, Maulabag, Ara … Petitioner Versus 1. THE STATE OF BIHAR 2. The Collector, Bhojpur at Ara 3. The District Education Officer, Bhojpur at Ara 4. The District Superintendent of Education, Bhojpur at Ara … Respondents. ----------- 3. 23.6.2010 Heard Mr. B.P.Pandey, learned Senior counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “ This is an application for issuance of writ in the nature of certiorari or any other appropriate writ, rule, direction, for quashing the Memo No. 552 dated 13.8.2002 (Annexure 12) passed by District Superintendent of Education, Bhojpur (respondent no.4) directing the petitioner to deposit an amount of Rs. 300862/- within fifteen days in the Treasury and submit the copy of chalan in most illegal and arbitrary manner” Mr. B.P.Pandey, learned Senior counsel, with reference to the aforementioned prayer would submit that it is really travesty of justice that after the 2 respondents have failed to prove the same charge in the criminal case and had also closed the departmental proceeding, they had proceeded to pass the impugned order seeking to recover the amount of loss to the Government without any basis. Mr. Pandey in this context has referred to the judgment of acquittal of the trial court dated 6.12.1993 as also the order passed by the District Superintendent of Education dated 21.1.1995 to support his submissions that the petitioner was given a clean chit in course of both the criminal proceeding and the departmental proceeding pertaining to the same matter for which the petitioner has now been subjected to an order of recovery of a sum of Rs. 3,00,862/-. Counsel for the State, on the other hand, on the basis of the counter affidavit has taken a plea that the petitioner had got an acquittal in the criminal case due to want of evidence as is apparent from paragraph 8 of the judgment of acquittal. He has also submitted that as a matter of fact the petitioner was never exonerated in the departmental proceeding, inasmuch as the 3 same was closed on the order of the Collector of the District. He would, therefore, submit that when the authorities had clear and clinching the evidence in form of affidavit of the aforementioned five persons, namely, Radhamohan Singh, Kali Mohan Singh, Dineshwar Ram, Mahendra Singh and Amrendra Prasad to the effect that their salary was not paid by the petitioner and the same was misappropriated by him, the respondents had no option but to recover the said amount. From the facts noted above, it would appear that either the respondents were unaware of the basic procedure required in passing of an order of recovery or were too anxious to recover such amount on account of pending retirement of the petitioner. True it is that the petitioner was acquitted for the same charge by the trial court in the criminal case by the judgment dated 6.12.1993 wherein it was noted by the trial court that the informant, the Investigating Officer, did not appear for recording of evidence and in fact other 4 important witnesses were also not produced by the prosecution. The court, therefore, on the basis of recording of evidence of formal witnesses had held that the charges were not proved against the petitioner. As a matter of fact on the basis of the aforementioned order of acquittal the petitioner wanted dropping of pending departmental proceeding but this Court by an order dated 2.8.1994 in C.W.J.C.No. 1961/1994 had refused such relief and in this context it was held as follows: “ With respect to the second submission that the departmental proceeding for the same charges for which the petitioner has been acquitted, cannot continue, we are not inclined to accept such plea. It is well settled that a departmental proceeding can very well proceed with respect to the same charges for which in a criminal case acquittal was granted. This is a different matter that departmental proceeding and a criminal case with respect to same charges cannot proceed at the same time. But there is no such bar after the grant of acquittal. However, as we have already noticed the departmental proceeding 5 was started against the petitioner as back as on 1.11.1991. In that view of the matter we direct the concerned authority to dispose of the departmental proceeding within three months from the date of receipt/ production of a certified copy of this order. The petitioner is also directed to co-operate with the concerned authority in disposal of the departmental proceeding. In case, however, it is found that the petitioner is not co-operating, the concerned authority may pass ex parte order, but after giving a notice to the petitioner.” Thus, when this Court on the earlier occasion did not find the order of acquittal to be good enough for dropping of the same charges of departmental proceeding, the logical outcome of the aforesaid direction of this Court was to complete the proceeding. It, however, appears that the District Superintendent of Education, Bhojpur by an order dated 28th January, 1995 had closed the departmental proceeding purportedly under the order of this Court in C.W.J.C.No. 1961/1994 and the order of the Collector, Bhojpur dated 21.1.1995. 6 Though the order dated 21.1.1995 of the Collector is not on record of this case but then the judgment of this Court in C.W.J.C.No. 1961/1994 did not contemplate much less direct for closure of the departmental proceeding as has been noted above. In that view of the matter, the order dated 28.1.1995 passed allegedly on the order of this Court in C.W.J.C.No. 1961/1994 cannot be sustained. That apart assuming that the Collector of the District had passed an order for closure of the departmental proceeding and had issued a direction to this effect by his order dated 21.1.1995 that also cannot be held as a valid ground for dropping of the departmental proceeding, especially when there was a direction of this Court in C.W.J.C.No. 1961/1994 to complete the departmental proceeding . Counsel for the petitioner has not produced before this Court either the enquiry report or any order showing that the departmental proceeding was completed and the petitioner was exonerated from the 7 charges. Therefore, this Court has to proceed on the basis of that the departmental proceeding was closed but the petitioner was never exonerated from the charges. In such a situation, this Court will have to go into the aspect as to whether the Collector of the District was justified in closing the departmental proceeding. The Collector of the District does not have any power under any Statute with regard to a teacher of a Middle School. The Collector of the District is only a Chairman of the District Education Establishment Committee and the power with regard to disciplinary control of a teacher is vested in the Committee not in its Chairman. Accordingly, even if this be held that the Collector of the District had issued such an order that was wholly without jurisdiction and on the basis of that the petitioner could not have been given a clean chit with regard to the pending charges. Once this Court comes to a conclusion that Annexure 7, the order of closure of departmental proceeding, is 8 invalid order or order without jurisdiction, no mandamus can be issued by this Court on its basis. The petitioner, therefore, unless he is exonerated from the same charges for which the order of punishment has been passed, cannot claim exemption in the matter of recovery of the amount of salary of five teachers about whom it has been alleged that though the petitioner in capacity of the Headmaster had withdrawn this amount but did not pay the same to the aforementioned five teachers. At the same time this Court cannot approve the impugned order, as contained in Annexure 12, inasmuch as from its perusal it becomes clear that the said order was passed on the direction of the Collector, Bhojpur District, and the Deputy Development Commissioner, Bhojpur. As is apparent from the perusal of the relevant Disciplinary Control and Appeal Rules recovery of the amount of loss to the Government ex-chequer is also a punishment in terms of the aforementioned rules which can only be inflicted after undergoing departmental proceeding. As a matter of fact such 9 departmental proceeding was already continued against the petitioner and was left in the midway on account of the order of the Collector dated 21.1.1995 which in the circumstances as discussed above was wholly without jurisdiction. In that view of the matter, though the petitioner has not made a clear assertion that the impugned order dated 13.8.2002 was passed without any show cause notice and/or undergoing any proceeding but as the respondents also have not brought any material to this effect in their counter affidavit, it has to be presumed that the impugned order dated 13.8.2002 was passed without affording adequate opportunity to the petitioner. Such order, therefore, cannot be countenanced in law and is, accordingly, quashed. As noted above, the departmental proceeding drawn against the petitioner will be deemed to be pending because the same had to be completed in terms of the earlier direction of this Court in C.W.J.C.No. 1961/1994. That admittedly having not been done, this Court would direct the 10 respondents to complete the departmental proceeding for the charges relating to withdrawal of salary of Radhamohan Singh, Kalimohan Singh, Dineshwar Ram, Mahendra Singh and Amarendra Prasad and its alleged misappropriation by him which was the subject matter of the order of punishment dated 13.8.2002 (Annexure 12). Inasmuch as even Rule 43(b) contemplates completion of pending departmental proceeding as was held by the Full Bench of this Court in the case of Shambhu Saran vs. the State of Bihar & ors., reported in 2000(1) PLJR 665, and the charges against the petitioner has a bearing of recovery of Rs. 3 lacs, this Court would direct the Director, Primary Education, to hold a departmental proceeding either by himself or entrust such enquiry to one of the senior officials of the Directorate of Primary Education at Patna. Upon completion of such enquiry the Director, Primary Education, will transmit the enquiry report to the District Education Establishment Committee headed by the Collector of the District who thereafter would take necessary action as per finding and conclusion arrived 11 at in the departmental proceeding. Considering the fact that the petitioner is a superannuated employee such proceeding must be completed and final order must be passed within a period of nine months from the date of receipt/ production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/