IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5210 of 2002 ARBIND son of Sri Jagarnath Singh, resident of Village Nainee, P.O.Nainee, P.S.Chapra Muffasil District Chapra. Versus 1.THE STATE OF BIHAR 2.The Secretary/Commissioner,Prathmik Education Department of Education,Government of Bihar, Vikas Bhawan, Patna. 3.The Director,Prathmik Education,Bihar,Patna Department of Education,Bihar Patna. 4.The Regional Deputy Director of Education, Tirhut Division,Muzaffarpur. 5.The District Education Officer,District West Champaran,Bettiah. 6.The Conducting Officer,District Education Office,Bettiah. 7.The AssistantInspector of School,Brindawan, West Champaran,Bettiah 8.The Superintendent of Education,Bettiah, District West Champaran. ----------- 4 26.02.2009. This application has been filed for quashing the order contained in Memo no.802 dated 13.9.2000, passed by the Director, Prathmik Education, Bihar, (Respondent no.3) Patna whereby the petitioner has been dismissed from service with effect from the date of issuance of the letter. The impugned order has been passed by respondent no.3 in a departmental proceeding initiated against the petitioner. Further prayer of petitioner is for a direction to the respondents to re-instate him in service as Headmaster of Government Basic School Bakulahar in the district of West Champaran and to make payment of arrears of salary from 1.1.1996 and the current up-to-date salary. Petitioner was the Headmaster in Government Basic School, Bakulahar. He was drawing and disbursing authority of the school in question as well as Basic School, Loharia Choubey Tola and Raj Dhurwa. Some complaints were received by the Regional Deputy 2 Director (Education) Muzaffarpur regarding illegal payment of salary to the non existing teachers. The Regional Deputy Director had received this complaint from the District Superintendent of Education,Bettiah and he recommended the matter to the Director, Primary Education,Bihar, Patna for needful action vide letter no.5829 dated 18.9.1996. The Director, Primary Education in response to this letter directed the Regional Deputy Director(E) Muzafferpur for initiating a departmental proceeding against the Headmaster of Basic School, Bakulahar (petitioner) and also to institute F.I.R. This direction was issued vide letter no.939 dated 10.10.1996. The Regional Deputy Director in pursuance of the letter of respondent no.3 directed the District Education Officer, Bettiah to lodge F.I.R. against the petitioner and F.I.R. was instituted on the basis of the letter no.904 dated 15.10.1996, issued by the District Education Officer to the Assistant Inspector,Brindavan. Gopalpur P.S.Case no.50 of 1996 was registered against the petitioner under Sections 409 and 420 of the Indian Penal Code. The petitioner was put under suspension vide letter no.300 dated 25.6.1997 by order of the Director, Primary Education. The direction was issued by the respondent no.3 to respondent no.6 to initiate a departmental proceeding against the petitioner for illegal appointment of teachers in Government Basic Schools and for opening new pay book and treasury register on the basis of which illegally appointed teachers received the salary. The departmental proceeding was initiated vide Memo no.300 dated 25.6.1997 and the headquarter of the petitioner was fixed at the office of District 3 Education Officer, West Champaran. Respondent no.5 the District Education Officer Bettiah was appointed conducting officer of the departmental proceeding and the District Superintendent of Education was the departmental authority in the aforesaid proceeding. The petitioner was directed to join at his headquarter where he would have been paid his subsistence allowance during the suspension period. Copy of charge was supplied to the petitioner vide Memo no.583 dated 9.12.1997. Petitioner’s case is that he joined in the head office on 1.10.1997 and he stayed there till 3.10.1997. Thereafter due to non payment of subsistence allowance and scarcity of money he left the place and went to his residence at Bakulahar, giving this information to the concerned authority of the department. One of the ground taken by the petitioner for challenging the impugned order of dismissal passed in the departmental proceeding is that he was not paid his subsistence allowance as such he could not participate properly in the departmental proceeding. The departmental proceeding has been conducted in an ex-parte manner. Proper opportunity was not provided to him as such it is in violation of rule of natural justice. Necessary documents were not supplied to him as such entire departmental proceeding as well as the order of dismissal is completely illegal and arbitrary as such fit to be quashed. In the writ application in paragraph 49 and 50 this is the case of the petitioner that the departmental proceeding was initiated and charge was supplied to him vide Memo no.583 dated 4 9.12.1997. Headquarter of petitioner was fixed. He gave his joining in the head office on 1.10.1997 and left the place on 3.10.1997.Considering this admission it is apparent that knowingly and willfully the petitioner left the headquarter to his own disadvantage. Subsistence allowance would have been paid to the petitioner only in case of his presence at headquarter. He left the headquarter within three days of his joining and thereafter never came back even to submit his show cause or to participate in the departmental proceeding. Petitioner cannot allege that rule of natural justice was violated, because having full information regarding initiation of departmental proceeding he left headquarter and never come back. Charge was framed and supplied to him but instead of submitting show cause he left the headquarter within three days of his joining. In this situation, he could not have been paid subsistence allowance. The petitioner was put under suspension vide letter no.300 dated 25.6.1997. His headquarter was fixed but he gave his joining after three and half months on 1.10.1997. Latches is apparent on the part of the petitioner. Assailing the impugned order on the ground that the departmental proceeding was conducted illegally and arbitrary as well as in violation of rule of natural justice, cannot be entertained. Second ground which has been taken by the petitioner for assailing the impugned order is that for similar complaints a departmental proceeding as well as a criminal case was instituted. Chapra P.S.Case no.50 of 1996 was instituted under Sections 409 and 420 of the Indian Penal Code. The case was 5 investigated, charge sheet submitted, cognizance taken and case was committed for trial to the Judicial Magistrate,1st Class, Bettiah. Eight witnesses were examined by the prosecution to prove the charge. Non of the witnesses including the informant adduced evidence to show that the teachers were illegally appointed by the petitioner after receiving bribe and the salary payable to such illegally appointed teachers were misappropriated by the petitioner. The witnesses rather deposed that so called illegally appointed teachers were appointed in the year 1990. They filed C.W.J.C.No.8412 of 1991 for a direction to make payment of their salary. The High Court directed the respondents authorities for making payment of salary. This order was not complied then they filed M.J.C.No.1616 of 1993 and in the light of the order passed in M.J.C. the Regional Deputy Director,Tirhut division, Muzaffarpur vide Memo no. 107 directed to make payment of salary to those teachers in compliance of the direction of the High Court. Subodh Kumar Singh and Jai Prakash Choubey the so called illegally appointed teachers were examined as P.W.1 and P.W.2. In their evidence they stated that they were appointed in the year 1990 in Basic School as teachers. Their arrears of salary was paid to them. They received it and the petitioner did not take any money from them as bribe. Considering their evidence and also that the prosecution has failed to prove the charges framed against him due to which he was acquitted r of all the charges, now for similar charge he should not have been dismissed from service. 6 Counsel for the petitioner submits that the judgment of the trial court was delivered on 18.4.2000. which was duly brought to the notice of the Officer, conducting the departmental proceeding, inspite of that the conducting officer passed an order of dismissal against the petitioner even though there was no evidence before the conducting officer to hold that the charges have been proved in the departmental proceeding. The impugned order was passed on 13.9.2000 i.e. much after the order passed by the criminal court. Counter affidavit filed on behalf of respondent no.3 is complete denial of the statement made by the petitioner. It has been stated that the impugned order of dismissal has been passed by the competent authority i.e. by Director, Primary Education, who is the appointing authority of Subordinate Education Serv8ice to which the petitioner belonged. The impugned order has been passed on proving charge of withdrawal of Rs.35 lakhs from treasury by giving wrong information. Illegal withdrawal from treasury was made in the name of 31 persons showing them to be teachers in those schools, whereas there were no such teachers. Salary were withdrawn in the name of non existing teachers. The impugned order was passed giving sufficient opportunity to the petitioner to present his case. The petitioner was suspended vide Memo no.300 dated 25.6.1997 and the District Education Officer, West Champaran was made conducting officer of the departmental proceeding. During suspension period Head office of the petitioner was fixed at the office of the District 7 Education Officer,West Champaran. Petitioner continuously remained absent from his head office during his suspension period. Inspite of several notice and reminders petitioner did not participate in the departmental proceeding. One of the charges against the petitioner was relating to illegally keeping the official records in his possession. Despite several notice he did not produce those records. Finally the District Education Officer, West Champaran submitted enquiry report vide his letter no.35 dated 30.1.1999. In paragraphs 5(e) (f) (g) (h) (i) and (j) of the counter affidavit details of the dates and the notice issued to the petitioner in this regard have been mentioned in order to show that despite proper information petitioner chose not to participate in the departmental proceeding. In the counter affidavit it has further been stated that the allegation made by the petitioner regarding the conducting officer that he without giving him chance to defend proceeded with the departmental proceeding is far from truth. Opportunities were provided to the petitioner but he never co-operated in enquiry. Since the petitioner was adamant not to co-operate as such enquiry report cannot be said to be ex-parte. The conducting officer in his enquiry report has found all charges leveled against the petitioner proved. The charges being of serious nature relating to illegal withdrawal of Rs.35 lakhs from treasury. Presenting bills of 34 outsiders and withdrawal of amount in their name after opening new acquaintance register and new messenger book has been found substantiated on the basis of documentary evidence. 8 Allegation of the petitioner is that the enquiry rport was not furnished to him does not seem to be correct for the reasons that on submission of the enquiry report second show cause notice was issued to the petitioner vide letter no.5 dated 5.1.200 asking him to show cause as to why punishment of dismissal be not awarded. For the first time on receipt of second show cause notice the petitioner submitted his show cause. However, second show cause submitted by the petitioner has not been annexed with the writ application. From the second show cause the allegation regarding non furnishing of enquiry report could have been gathered. Petitioner submitted his second show cause and thereafter again date of hearing were fixed on different dates as stated in paragraph 11 of the counter affidavit. Despite several dates fixed for giving opportunity of hearing to the petitioner he did not turn up and finally the dismissal order has been passed. Petitioner in the writ application has suppressed this fact that he has preferred appeal against the order of dismissal passed in the departmental proceeding, but in the counter affidavit it is stated that the appeal preferred by the petitioner before the Commissioner and Secretary department of Primary & Adult Education has also been dismissed. There is no prayer of the petitioner for quashing the order passed by the appellate authority. Learned counsel for the petitioner however has submitted that there is no provision for statutory appeal and the appeal preferred by the petitioner was misconceived due to wrong advise as such the order passed by the appellate authority will not affect in any 9 way to the petitioner. I do not find substance in this submission. Once appeal preferred, and order has been passed by the appellate authority, it will amount confirmation of the dismissal order Petitioner’s case is that the charge framed in the criminal case and the departmental proceeding are identical. It is also stated that the payments were made by the petitioner only to the legally appointed teachers, who filed C.W.J.C.No.8412 of 1991 (Krishna Prasad Dutt and ors-Vrs-State of Bihar and others). In case of non compliance of order preferred M.J.C.No.1616 of 1993. This statement is falsified from the memo of charge. The memo of charge indicates that in C.W.J.C.No.8412 of 1991 there were only 32 petitioners and direction of the court was to make payment to 32 petitioners. However, payment was made by the petitioner as drawing and disbursing authority to 87 persons, when only 32 were legally appointed teachers. In the criminal case charges could not be proved as all relevant documents were kept by the petitioner and those documents could not be produced by the prosecution in support of the charges. This was one of the reason for acquittal of the petitioner. In the departmental proceeding also repeatedly petitioner was asked to submit relevant records, but he neither produced the record nor himself participated in the proceeding. This has become a normal practice of government employees, not to participate in the departmental proceeding and after the departmental proceeding concluded, punishment awarded, they challenge entire proceeding on the ground that it has been conducted 10 in violation of rule of natural justice. The rule of natural justice can never be interpreted in this mannter just for rescue of those who managed not to participate in departmental proceeding. The delinquent having proper knowledge of the departmental proceeding if willingly absent himself from participating in the departmental proceeding, it cannot be held that the departmental enquiry was conducted in violation of rule of natural justice. Considering all these facts I do not feel that the High Court sitting in a writ jurisdiction can act as an appellate authority for setting aside an order passed in the departmental proceeding. However, the subsistence allowance for which the petitioner is entitled and not paid to him for any reason, should be paid to the petitioner. This application is dismissed. Sss/- (Mridula Mishra, J)