IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16266 of 2004 1. Mahendra Sharma son of late Kailash Singh, resident of village Barhauna, P.S. Chandi, District- Nalanda ( Aged 50 years). ---Petitioner Versus 1. The State Of Bihar 2. Bihar School Examination Board, Sinha Library Road, Patna, through its Secretary. 3. The Chairman, Bihar School Examination Board, Patna, through its Secretary. 4. The Secretary, Bihar School Examination Board, Sinha Library Road, Patna. 5. The Deputy Secretary ( Legal), Bihar School Examination Board, Sinha Library Road, Patna. 6. The Deputy Secretary (Establishment) Bihar School Examination Board, Sinha Library Road, Patna. ---Respondents. ---------------------------------- 14. 21.11.2011 By filing the present application under Article 226 of the Constitution of India petitioner questions the sustainability of order dated 30.11.2004 (Annexure -11) passed by the Chairman of Bihar School Examination Board ( for short ‘Board’) whereby on conclusion of the departmental proceeding the petitioner was afflicted with punishment of dismissal from service. Aggrieved thereby, he preferred appeal which was considered by the Board and rejected which was duly communicated to the petitioner by communication dated 24.04.2008 issued under the signature of the Secretary of the Board as contained in Annexure-15. The said order is, thus, also under challenge. A brief statement of facts relevant for disposal of the application shall first be noticed:- Petitioner was appointed as Calligraphic Assistant in the Board. The Chairman of the Board undertook a surprise check of the office on 10.07.2004, in course whereof it was found that the 2 petitioner had permitted a dismissed employee of the Board to discharge duties ( preparation of duplicate certificate(s)) assigned to him. One Ram Briksha Singh was found filling up certificates a duty which was to be discharged by the petitioner. It was viewed as serious lapse/misconduct on the part of the petitioner. Confidentiality of the Board was blatantly breached. Accordingly an F.I.R. under diverse Sections of the Penal Code was lodged on 10.07.2004 (Annexure-1). This was followed by another order dated 12.7.2004 whereby the petitioner was placed under suspension in contemplation of departmental proceeding. An enquiry officer was thereafter appointed. Two specific charges were framed against the petitioner and memo of charge dated 16.7.2004 (Annexure-3) was served on him. Petitioner was called upon to furnish his show cause. Instead of filing his reply thereto he requested the authority to stay departmental proceeding on the ground that there was already a criminal case pending against him which was not acceded to. Petitioner initially evaded participation in the proceeding although notices were sent under registered cover. The enquiry officer in the meantime was transferred which necessitated appointment of Officer on Special Duty as the conducting officer in the proceeding. Another officer was appointed as the Presenting Officer. Yet another notice was thereafter issued on 29.09.2004 calling upon him to appear before the enquiry officer on 5.10.2004 at 1.00 P.M. and submit his defence. In response thereto petitioner appeared on 05.10.2004 before the enquiry officer and finally on 29.11.2004 he filed his reply (Annexure-10). The enquiry officer proceeded with the enquiry in course whereof the 3 petitioner as well as the dismissed employee employed by the petitioner to discharge duties assigned to him accepted their guilt. On a conclusion of the proceeding, the Enquiry Officer submitted his report (Annexure-7) wherein the charges were held proved. Petitioner was thereafter issued second show cause notice (Annexure-5) enclosing therewith copy of the enquiry report in reply whereof he filed an application praying for time to file his reply. Said document is Annexure-8. It appears that the petitioner was again issued a show cause notice to submit his reply on the proposed punishment. It appears that petitioner filed his reply to the second show cause notice on 29.11.2004 (Annexure-10). In the light of materials on record including the gravity of charge, statement of the delinquent petitioner and that of the dismissed employee who was found discharging duties assigned to the petitioner and the cause shown by the petitioner the disciplinary authority, by an order dated 30.11.2004 (Annexure-11), afflicted punishment in the shape of dismissal from service. Aggrieved thereby petitioner preferred appeal (Annexure-12). The appeal was placed before and considered by the member constituting the Board and after consideration thereof the same was not found fit to be allowed and accordingly the said Board dismissed the appeal. Petitioner was accordingly communicated about the decision of the Board by communication dated 24.04.2008 (Annexure-15) which is also under challenge in the present case. Learned counsel for the petitioner, while assailing the order, submits that the order inflicting punishment of dismissal from service is bad in law for the reasons that adequate opportunity was not 4 granted to the petitioner to defend his case. It is next contended that while inflicting punishment of dismissal from service the disciplinary authority has considered the past records of the petitioner, and as such, the order stands vitiated. Reliance in this regard has been placed on (2010) 11 SCC 278 ( Indu Bhushan Dwivedi Vs. State of Jharkhand & Anr.) (para 22 and 23). It is next contended that other employees of the Board was similarly found involved in employing outsider to discharge official duty but no action was taken against him and only the petitioner was proceeded against and held guilty. According to learned counsel for the petitioner, this is discrimination in the matter of initiation of proceeding, and thus the order requires interference as it violates the principle of parity to be strictly adopted by the authority. Reliance in this regard has been place on 2010(5) SCC 783 (State of Uttar Pradesh & Ors. Vs. Raj Pal Singh) (paragraph nos. 5 and 6). While assailing the appellate order (Annexure -15) it has been submitted that the same is cryptic and non- speaking. Dwelling on the requirements of law in passing a reasoned order in such matters, learned counsel for the petitioner has placed reliance on the following judgments:- 1. AIR 2010 SC 2794 (para 20) (East Coast Railway & Anr. Vs. Mahadev Appa Rao & Ors.) 2. 2009(3) PLJR 473 (SJ) (para 4) ( Rama Shankar Pandey vs. The State of Bihar & Ors.) The respondents have resisted the writ petition and filed a counter affidavit. No reply/rejoinder thereto has, however, been filed on behalf of the petitioner. 5 It is contended on behalf of the respondent that petitioner has been proceeded against departmentally after finding the evidence of gross indiscipline, cheating, fraudism and impersonation in course of inspection of different sections of the Board by the Chairman. He found a dismissed employee of the Board going through confidential document(s) in the certificate Section of the Board and discharging duties assigned to the petitioner as the Calligraphic Assistant. The petitioner as well as the aforesaid dismissed employee, namely, Ram Briksha Singh having been caught red handed pleaded guilty reduced in black and white. Petitioner had permitted a dismissed employee of the Board to access important and confidential document(s) of the Board such as Data Table register (DTR) and OTRs. Several written duplicate certificates were also found scattered. Petitioner unambiguously admitted that he was unable to discharge duties of Calligraphic, and as such, he had permitted a dismissed employee of the Board to discharge duties assigned to him. When the proceeding was levied and the petitioner was noticed he filed reply thereto taking a solitary stand that the authorities should desist from proceeding with the departmental enquiry as an FIR had already been lodged. Let it be recorded here that it has been informed at Bar that the criminal case is still pending trial. The respondents appointed enquiry officer and the Presenting Officer. The Enquiry Officer by communication dated 29.9.04 directed the petitioner to appear in the proceeding and to answer the charge. Similar notice was also dispatched under registered cover to Ram Briksha Singh, the dismissed Assistant, for appearance before the Enquiry Officer. Ultimately he appeared and 6 filed written statement. On a conclusion of the proceeding and on going through the materials brought on record including the statements duly signed by the petitioner, the dismissed employee and other relevant materials, the enquiry report was submitted wherein he was held guilty for those two charges. On an objection raised by the petitioner the matter was again referred to the Enquiry Officer to consider certain issues raised by the petitioner. The Enquiry Officer thereafter submitted another report concluding therein that charges were proved against the petitioner. While doing so, the petitioner was again afforded opportunity to appear before the Enquiry Officer which was utilized by him wherein he only explained the circumstances under which he had permitted the dismissed employee to discharge official duties assigned to the petitioner. The petitioner again raised an issue that some other employees had also indulged in such assignment of job to the dismissed employees. It is relevant to notice here that the aforesaid dismissed employee Ram Briksha Singh was similarly a Calligraphic Assistant and was proceeded against for preparing matriculation certificate showing fake/imaginary date(s) of birth in order to help the holder(s) of the certificate(s). The petitioner was thereafter given second show cause notice. In response whereof, he requested for time which was allowed and ultimately he filed his reply to second show cause notice in which somewhat identical issues were raised. The matter was thereafter considered by the disciplinary authority who, after considering the entire material, passed the impugned order of dismissal from service. Learned counsel submits that reference of previous punishment of censure afflicted on 7 the petitioner recorded in the impugned order is only with a view to lend credence to his order. It is not the foundation of the impugned order. In this regard he made attempts to highlight the gravity of charge levelled against the petitioner who was serving the Board as Calligraphic Assistant where confidentiality is of paramount. It is next contended that the appeal was considered by the duly constituted Board of the Respondent- Bihar School Examination Board and considering the issues raised in the memo of appeal the same was considered after affording personal hearing to the petitioner. No fault, thus, can be found therewith particularly when the said order affirms the order passed by the disciplinary authority (Annexure-11) which is a well reasoned order. I have considered the submissions of the parties and perused the materials on record. Petitioner has submitted that the order passed by the disciplinary authority stands vitiated since while passing the said order his previous record has been considered. Reliance in this regard has been placed on a judgment of the Supreme Court on (2010) 11 SCC 278. On a perusal of the said judgment, it appears the same was rendered in entirely different factual circumstances. In my view, ratio laid down in the aforesaid case does not apply to the facts of the present case. It is to be seen as to whether the guilt proved at the enquiry was itself serious in nature justifying imposition of penalty. Moreover, from perusal of the memo of appeal, it appears that the petitioner himself had not raised the said issue in the memo of appeal. Challenge is also made to the order on the ground that another employee, similarly placed, has not been proceeded against. Article 8 14 is a positive concept. Relevant pleadings in this regard are lacking as to under what circumstance another employee who, according to the petitioner, had indulged in similar activity was not proceeded against. Any illegality in not proceeding against another employee of the Board, in my view, would not justify interference with the order on that count alone. The petitioner was proceeded against departmentally. It is not the case of the petitioner that another employee of the Board, who had indulged in the similar activities, was also proceeded against and inflicted lesser punishment. On the strength of the aforesaid submission, this Court would not exercise its extraordinary and discretionary writ jurisdiction to interfere with the order. Petitioner in this regard has relied on 2010(5) SCC 783. That was the case where several employees were proceeded against on similar/identical charge and one of them was only inflicted with punishment of dismissal whereas several such others were awarded minor punishment(s). When challenge was made the writ Court interfered and quashed the order on the ground of apparent discrimination in the matter of inflicting punishment and directed for reinstatement. When the matter was carried to highest Court of the land the Hon’ble Supreme Court modified the order only to the extent that writ petitioner would be entitled to only 50% of the back wages. It has next been argued that the appellate order is non speaking order. Petitioner has relied on 2009(3) PLJR 473 (para 4). The respondents have also relied on the aforesaid judgment. What is deduced from the submission is that the issue(s) raised in the memo of appeal is required to be considered by the appellate authority. On 9 perusal of the appellate order, it appears that the petitioner was afforded personal hearing. Issues raised in the appellate order were taken note of but not acceded to. To me it appears that what weighed with the appellate authority is the defence taken by the petitioner that he was wrong in his action but that was usual course/practice prevalent in the Board. I am afraid any such defence can be appreciated and accepted. The appellate authority has therefore taken a view considering all the relevant materials on record including the issues raised in the memo of appeal. No fault, thus, can be found in the appellate order. Law is settled that when the appellate order seeks to affirm the order passed by the disciplinary authority then it may not set out in detail the reasons which can be seen from the order passed by the disciplinary authority. The order passed by the disciplinary authority is a well reasoned order. Moreover, in the case at hand, on going through the appellate order (Annexure-15) read in the light of stand taken in memo of appeal (Annexure-12), I am satisfied that it cannot be termed as cryptic and/or an order suffering from non application of mind. In the result, I do not find any good ground to interfere with the impugned order(s). It is, accordingly, dismissed. There shall be no order as to costs. Sym ( Kishore K. Mandal, J.)