IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9651 of 2000 MD.AFAQUE & ORS Versus THE STATE OF BIHAR & ORS ----------- 05- 26.09.2008 Heard Mr. Dinu Kumar for the petitioners, and Mr. Sunil Kumar Mandal, learned Standing Counsel No.15. The three petitioners, namely, (1) Md. Afaque, (2) Md. Hasnain, and (3) Uzair Ahmad, have moved this Court for setting aside the different orders of punishment passed against them. 2. One writ petition at the instance of three petitioners with respect to separate cause of action is really not maintainable. However, the matter was first taken up on 22.9.2000, and thereafter on 18.10.2000 and 9.8.2007, but neither the Stamp Reporter, nor the learned Government Counsel, brought this fact to the notice of this Court. Law is well settled that if such a defect is detected at a belated stage, then the writ petition may not be dismissed on the ground of a combined writ petition. We are, therefore, constrained to dispose of the writ petition in its present frame. 2 3. Learned counsel for the petitioners presses I.A. No.5451 of 2007, wherein it is stated that petitioner no.3 (Uzair Ahmad) died on 24.7.2004 at Pilgrim Hospital, Gaya, leaving behind his widow and a son, namely, Farid Ahmad. The respondents have not placed on record their counter affidavit to the same, nor does the learned Government Counsel object to the same. In that view of the matter, let the name of petitioner no.3 be expunged and be substituted by his heirs mentioned in paragraph no.1 of I.A. No.5451 of 2007, who have entered appearance through counsel and filed duly executed Vakalatnama. 3.1) I.A. No.5451 of 2007 is accordingly disposed of. 4. The three original petitioners were in the services of the Bihar Government as teachers. They were separately charge-sheeted for being absent from duty, for not showing interest in their work, and their performance was found unsatisfactory by the villagers. The charge-sheet with respect to petitioner no.2 was dated 10.9.1990 (Annexure-3), and that of petitioner no.1 is dated 11.9.1995 (Annexure-2). The charge-sheet with respect to original 3 petitioner no.3 is not on record, though the enquiry report is on record. It appears from the appellate order dated 28.10.1996 (Annexure- 9), allowing appeal of petitioner no.1, passed by the Divisional Commissioner, that the Sub- Divisional Education Officer, Sadar Gaya, was the enquiry officer, who had exonerated petitioner no.1 of the charge. Respondent no.4 (The District Superintendent of Education, Gaya) passed different orders of punishment against the three petitioners, whereby identical punishments were inflicted on them, namely, deprivation of increment for one year, would not be considered for promotion for a certain period, and the order further stated that the petitioner shall be entitled to full salary for the period of suspension. The orders of the disciplinary authority are as follows: (i) Order dated 3.5.1991 (Annexure-7), passed by respondent no.4, imposing punishment on petitioner no.2. (ii) Order dated 10.4.1996 (Annexure-8), passed by respondent no.4, imposing punishment on original petitioner no.3. 4 (iii) Order dated 12.6.1996 (Annexure-6), passed by respondent no.4, imposing punishment on petitioner no.1. 5. The three petitioners preferred separate appeals before the Divisional Commissioner which were allowed by different orders and are indicated hereinbelow:- (i) Order dated 17.5.1995 (Annexure-10), whereby the appeal of petitioner no.2 was allowed. (ii) Order dated 28.10.1996 (Annexure-9), whereby the appeal of petitioner no.1 was allowed. (iii) Order dated 28.10.1996 (Annexure- 11), whereby the appeal of original petitioner no.3 was allowed. The substance of the three orders was the same, whereby the orders of punishment were set aside, and the District Establishment Committee was directed to re-consider the materials on record and pass a fresh order in accordance with law and after assigning reasons. Orders dated 17.5.1995 (Annexure-10), and 28.10.1996 (Annexure-11), are cryptic orders, but the order dated 28.10.1996 (Annexure-9), allowing appeal of petitioner no.1, is a 5 detailed order. On a perusal of the same, it appears that the enquiry officer had exonerated petitioner no.1, and respondent no.4 had issued order of punishment after taking approval of the District Magistrate in the capacity of the Chairman of the Establishment Committee. The learned Commissioner has found fault with the same, inasmuch as the appropriate authority is the District Establishment Committee which did not as a body consider the appeals. 6. This was followed by the impugned order which has dealt with the cases of a number of employees including the three petitioners and the orders of punishment have been re-affirmed without assigning any reason. Law is well settled that in case the enquiry officer has found in favour of the delinquent employee, then it is open to the disciplinary authority to disagree with the same after recording reasons for disagreement which is to be conveyed to the delinquent employees for show-cause. The District Establishment Committee did not show the least of deference to the order of the learned appellate authority, disposed of the matter in a most arbitrary manner, and in violation of the appellate order. 6 No material has been placed in the counter affidavit, nor does the impugned order disclose that such step was taken by the District Establishment Committee. The impugned order is illegal and has to be set aside. 7. This, however, does not conclude the matter. It still remains to be considered whether or not the matter may be remitted to the District Establishment Committee for a fresh consideration in accordance with law. It appears to me that the situation as on date does not dictate such a course. According to the charge-sheet dated 10.9.1990 (Annexure-3), petitioner no.2 was absent on 2.9.1990, and according to the charge-sheet dated 11.9.1995 (Annexure-2) with respect to petitioner no.1, he was absent on 2.9.1995. In other words, so much of time has lapsed since then. Petitioner no.2 retired way back on 31.12.1999. Original petitioner no.3 also retired and died on 24.7.2004. Although there is no material on record about petitioner no.1, learned counsel for the petitioner submits that he has also retired during the pendency of the present proceeding. In that view of the matter, it 7 would be a better course of action to close this matter finally. 8. The writ petition is accordingly allowed and the impugned order dated 30.11.1999 (Annexure-12), is hereby set aside in so far as the three petitioners are concerned. They shall be entitled to consequential benefits. In so far as original petitioner no.3 is concerned, the consequential benefits shall be paid to Most. Asmat Maayad, his widow. (S K Katriar, J.) S.K.Pathak/