CIVIL WRIT JURISDICTION CASE No.6553 OF 1993 ----------- IN THE MATTER OF AN APPLICATION UNDER ARTICLES 226 227 OF THE CONSTITUTION OF INDIA. ----------- NAGINA SINGH----------------------- PETITIONER. -Versus- THE STATE OF BIHAR AND OTHERS---------RESPONDENTS. ---------- For the petitioner: M/S. Dilip Kumar Tewari and K.K.Tiwary, Advocates. For the Respondents: Mr.Satyendra Kumar Jha,J.C.to A.A.G.7. ----------------- P R E S E N T THE HON’ BLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan, The petitioner has challenged the order dated 20.1.1993 issued vide Memo No.24 by which the petitioner has been awarded punishment in a disciplinary proceeding. The petitioner was posted as an Assistant Inspector of Basic School(Acting),Brindawan, Chanpatia in the district of West Champaran. The then Regional Deputy Director of Education, Tirhut Division, Muzaffarpur appointed several Assistant Teachers by different letters issued on 15.10.1990. The newly appointed persons joined in different Schools where they were posted. The new appointees were asked to appear before the District Education Officer, West Champaran for verification of their certificates and the appointment letters, and after verification, the District Education Officer, West Champaran vide letter no.3349 dated 13.3.1991 directed that the newly appointed persons except a few, should be paid their salaries. This letter issued on 13.3.1991 is annexure-1 to the writ application. In pursuance to the letter of the District Education Officer, the petitioner sent a list of 89 persons appointed in different Basic Schools and sought for directions from the District Education Officer with respect to payment of their salaries on 27.3.1991. Vide annexure-3 bearing Memo No. 1794 dated 30.3.1991 an order was 2 issued by the District Education Officer referring to the letters no. 3359 and 101 directing for payment. Accordingly, the petitioner vide letter no.117 dated 2.4.1991 addressed a letter to the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur informing him that he has received letters from the District Education Officer ordering him to make payments to the newly appointed assistant teachers, a copy of letters nos. 3359 and 101 addressed to the petitioner are annexed in the writ application. It would appear from the facts stated above that some of the persons had joined the Basic School on the basis of forged and fabricated letters of appointment and an enquiry was conducted against the then Regional Deputy Director of Education as well as the petitioner. The petitioner was put under suspension and charges were framed against the petitioner on 1.6.1992. It would be relevant to summarize the charges framed against the petitioner which are six in numbers and are as follows: (1) The petitioner was responsible for payment of the salary of the newly appointed teachers and sent a letter to the Treasury to make payment to the newly appointed teachers. (2) The petitioner had acted beyond his jurisdiction. (3) The petitioner passed an order for payment of salary to the Assistant Teachers, including those who had obtained false appointment letters on the basis of which they moved the High Court and the Department, had unnecessary difficulty in filing an affidavit on behalf of the State to explain the said order of the petitioner. (4) The petitioner had counter signed on the bills of the teachers who had joined on the basis of fake appointment letters and this caused loss to the 3 government. (5) The petitioner was responsible for helping the teachers who had joined on the basis of fake appointment letters which caused unnecessary difficulty to the government. (6) Lastly it is alleged that the petitioner has not obeyed the orders of the higher authorities. Before I proceed with this order, I may clarify that the teachers who had joined various schools on the basis of forged and fabricated appointment letters were in fact not paid their salary. An enquiry was conducted, and the Enquiry Officer Sri Rajdeo Prasad Sinha had exonerated the petitioner of all the Six charges which is contained in annexure-11 to the writ application. The Regional Deputy Director of Education was not satisfied with the enquiry report and thus ordered for a fresh enquiry and appointed Sri Madan Lal Rajak as an Enquiry Officer. Sri Rajak issued a letter asking for explanation from the petitioner and thereafter the petitioner was put under suspension. It has been submitted on behalf of the petitioner that except for copy of the charge sheet and the enquiry report the petitioner was not supplied a list of documents or any material, so that he could counter act the allegations made against him. It would be relevant to state here that the petitioner had challenged the order dated 1.6.1992 whereby the petitioner was put under suspension, and the order dated 15.7.1992 passed by the Director, Primary Education by which the second enquiry had been ordered by filing a writ application. A Division Bench of this Court did not interfere with the order by which a fresh enquiry was ordered, rather the court disposed of the writ application stating therein that if the disciplinary proceeding is not concluded within three months from the date of communication of the order, the order of suspension would stand revoked. 4 Apart from the fact that the petitioner has challenged the procedure in which the enquiry was conducted, inasmuch, as he was not supplied any documents during the proceeding, the main point raised in this writ application is that the petitioner has been punished on allegation for which no charge had been framed. While this Court cannot act as an appellate authority, it can certainly examine the findings to test whether the authorities have based their findings on the documents and materials that were placed before them. This Court can also take into account the well settled law that non-supply of documents on which the disciplinary authority has based its finding are good grounds for setting aside the findings in a Departmental Proceeding. I shall now proceed to examine the order punishing the petitioner i.e., annexure-16. The first charge against the petitioner is that the petitioner is said to have sent a letter for payment to the Treasury enclosing a list of teachers who were said to have obtained forged appointment letters. While discussing the charge, the enquiry officer has stated “Thos Praman Ke Abhaon Men Yah Mana Jayaga ki Yah Patra Koshagar Ko Nahi Bheja Gaya Tha Balki Khestriya Up Shiksha Nidashak, Muzaffarpur Ko Bheja Gaya Tha.” After holding there is no evidence to show that the petitioner had sent a letter for payment to the Treasury Officer, the Enquiry Officer has nevertheless held the petitioner guilty, on the basis of a letter issued to the Regional Deputy Director of Education for his perusal and directions which letter is said to have contained the names of 65 persons who obtained forged appointment letters. I can not see how the enquiry officer could have found the petitioner guilty, because he has issued a letter to the Regional Deputy Director of Education asking him for directions with respect to the payment of the teachers named in the letter. It was no ones plea that the letter issued to the Regional Deputy Director of Education, Tirhut 5 Division, Muzaffarpur was the order of payment. This finding is contrary to the charges which have been framed. The offencive letter is contained in annexure-4 which has been referred in the first part of the order and which in fact does not reveal that the petitioner had taken any independent steps for approval of payment to the teachers holding fake and forged appointment letters. This finding of mine would further be relevant while discussing charge no.3 as well. It has also been alleged that “he has ordered for the payment of teachers holding forged/fake appointment letters”. The Enquiry Officer finds that letter no.117 dated 3.4.1991 (annexure-4) is a letter by which the order of payment has been issued by the petitioner. I have already discussed the contents of the letter (annexure-4) and at the risk of the repetition; I shall again refer to the contents of the aforesaid letter. The letter reveals that in reference to the letter no.3559 dated 13.3.1991 the petitioner had received an order for payment of the salary of the newly appointed teachers. It has also been stated that in pursuance of the letter no.101 dated 27.3.1991 issued by the District Education Officer, the petitioner has sent a list of teachers working in different Basic Schools to the District Education Officer. The petitioner has sought for a direction from the Regional Deputy Director of Education regarding the said list sent to him which is annexed to letter no.117 dated 2.4.1991. The contents of this letter does not show that the petitioner had directed that the payments should be made to the newly appointed teachers but had merely sought instructions as to what was to be done with respect to the payment of salary of the teachers included in the list. The discussion of the enquiry officer is relevant for the purpose of showing that the charge has no nexus with the actual finding. The enquiry officer while discussing this charge has said that “Yeh Bat Sahi Hai Ki Sahi Niyukti Patro Ki Pratiya Kshetriya Up Shiksha Nidesak Dwara Sri Singh Ko Nahi Di Gayi Thi.” 6 Having observed that the petitioner was not given a list of those persons who were genuinely appointed as assistant teachers, I can not understand how any reasonable person could have concluded that the petitioner was guilty of the offence of “so-called order” for payment of newly appointed teachers. The two findings which have been quoted are sufficient to show that the petitioner had not issued any order for payment of newly appointed teachers. At the most it can be said that he has given a list to the Regional Deputy Director of Education on the direction of the District Education Officer for approval. This act would not constitute an offence as made out in Charge Nos. 2 and 3. The enquiry officer has referred to a number of letters which were fake/forged orders of appointment, as pointed out earlier, the copy of the orders were never supplied to the petitioner. It has been alleged that the petitioner was responsible for accepting the joining of two persons who had in their possession fake and forged orders of appointment. This is the subject matter of Charge No.5. Learned counsel for the petitioner submits that these letters on which the enquiry officer has based his findings were never supplied to the petitioner and it is secondly submitted that even it is presumed (not accepted) for the sake of arguments that the petitioner had directed such persons to join as Assistant Teachers, it can not be said that the petitioner had knowledge that the letters were forged and fabricated as at the relevant time of their joining, this fact had not come to the notice of any body leave alone the petitioner. Learned counsel also submits in this context, that the petitioner was neither the Appointing Officer and the joining was accepted by the Headmaster where the new appointees were asked to join. It is also contended that no charge has been framed with respect to the issue that the petitioner had accepted the joining of the teachers who had obtained forged appointment letters. It is alleged that the 7 petitioner allowed the teachers to join, and as such, on the basis of these findings the petitioner could not have been found to be guilty and punished for the offence for which he had not been charged. The enquiry officer has gone in detail discussing a number of persons who had joined on the basis of forged letters and it is further stated that the petitioner ought to have made an enquiry at the time of allowing them to join on the post of Assistant Teachers. The letter by which the petitioner is said to have accepted the joining of Assistant Teachers holding forged appointment letters were not supplied to the petitioner. The petitioner also did not have a list of Teachers who had obtained forged appointment( as accepted by the Enquiry Officer) and as such I find the petitioner is not guilty of Charge No.5.Learned counsel submits that the petitioner was not responsible for examining the appointment letters of those who were appointed. In fact, Charge no.6 discusses this aspect of the matter. The allegation in Charge No.6 is that the petitioner had disobeyed the order of the higher authorities. While referring to this aspect the Enquiry Officer has referred to the letter no.3359 dated 13.3.1991 and has alleged that the petitioner has not complied with the aforesaid letters. Letter no.3359 dated 13.3.1991 is annexed in the writ application as annexure-1. This letter has been issued by the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur and has been issued to all the Headmasters. The letter states that the Headmasters should examine certificates, documents and appointment letters of the newly appointed Assistant Teachers. This letter also directs that after being satisfied, steps should be taken by the Headmasters for approval of the payment of salary as it has come to the light that some of the appointment letters are forged and fabricated. This letter, as would be apparent, was not issued to the petitioner, and as such, it can not be concluded that the petitioner had disobeyed the contents of the letter. 8 Learned counsel for the petitioner submits that the petitioner was not supplied the copy of the letters on which the Enquiry Officer wanted to rely and he had not given explanation in the show cause filed by him as to how and why those letters were not complied with. It is further submitted that this aspect has not been specifically stated in the charge and submits that the charge itself was vague inasmuch as, the charge merely states that the petitioner has not obeyed the orders of the higher authorities. According to the petitioner either the department ought to have supplied him the letter on the basis of which such a charge was sought to be framed or should have specifically stated the grounds on which the said charge was based. The very basis of holding an enquiry after serving a show cause and giving the petitioner an opportunity to participate in the enquiry is to allow the encubent so charged to reasonably explain that the charges framed against him are not true. In this case the petitioner has been served a copy of charges but not served any documents or papers on which the petitioner could have justifiably met the allegations levelled against him, rather during the enquiry the petitioner was suddenly faced with fresh allegation, and as such, the petitioner could not have proper means to meet such allegation specifically in view of the fact that the charge itself was vague and did not specify the manner in which the petitioner had disobeyed the orders of his superior. On the basis of the aforesaid discussions, I find that the charge nos. 1, 3,5 and 6 are not substantiated by the reasoning given in the enquiry report. The petitioner has been exonerated of charge nos. 2 and 4 by the disciplinary authority. Since there are no procedural defects in the conduct of the proceeding, I do not think it to be a fit case, for remand for the purpose of conducting a fresh proceeding. The petitioner is thus 9 entitled to be reinstated and paid his back wages. In the result, I quash the order vide Memo No. 24 dated 20.1.1993 punishing the petitioner for the reasons indicated in the order. The writ application is accordingly allowed. Patna High Court Dated 4 th September, 2008. A.F.R./U.K./Secretary. (Sheema Ali Khan,J)