CIVIL WRIT JURISDICTION CASE No.12938 OF 2007 Jugal Kishore Prasad Sinha, S/o Late Radhe Prasad Sinha, resident of Village-Faldoo, P.O. & P.S.-Nardisganj, District-Nawadah, at present posted as Headmaster, Bari Pahari Rastriya High School, Biharshariff, Nalanda. ----------------------------Petitioner Versus 1. The State of Bihar. 2. Secretary to the Government, Department of Human Resources, Bihar, Patna. 3. Director, Secondary Education, Bihar, Patna. 4. Regional Deputy Director of Education, Magadh Division, Gaya. 5. District Education Officer, Nalanda. --------------------------Respondents For the Petitioner : MR.YOGENDRA MISHRA & Mr.Raghunath Kumar For The Respondent : Mr.S.K.Singh,SC22. P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA Heard counsel for the petitioner and the counsel for the State. In this writ application the petitioner, a Headmaster of a Government High School, namely, Bari Pahari Rastriya High School, Bihar Sharif, Nalanda (hereinafter referred to as the „School‟) has assailed the order of punishment dated 28.12.2006 whereby and whereunder his three annual increments have been permanently withheld on cumulative basis. The case of the writ petitioner is that while he was functioning as Headmaster of D.P.Rai High School, Deepnagar, Nalanda he had accepted the joining report of Santosh Kumar Mishra, Baldeo Prasad and Rajiv Kumar Mishra, who had appeared before him with their transfer order, relieving order, Last Pay Certificate (LPC) and the service book. It has been claimed by the petitioner that as it appeared to him that the aforementioned three teachers were transferred to the School of the 2 petitioner, he had accepted their joining report and had assigned them the duty to teach the subject of Civics, Geography and Biology in the school. Subsequently when the petitioner had learnt about the fake appointment of the teachers in different schools on the basis of forged letter of transfer, he became alarmed and had reported this fact to the District Education Officer (D.E.O.), Nalanda as with regard to accepting the joining of the three teachers. The petitioner has stated that when the D.E.O., Nalanda had directed him to submit the service book, order of transfer and other papers of the aforementioned three teachers, he had also prepared a file and while he was in the process of submitting them to the D.E.O., Nalanda, three persons approached him claiming to be the Personal Assistant of the Deputy Secretary, Vigilance Department and had informed him that they had been deputed to make enquiry as with regard to the fake teachers and as such, the details and documents of three teachers of the school of the petitioner should be handed over to him. The petitioner has stated that on such order of the inspecting team he had handed over the entire papers of three newly transferred teachers of his school and had also obtained a receipt from them. The petitioner is also said to have given an information to the D.E.O., Nalanda in this regard and has also enclosed a copy of the receipt of the documents received by the authorities of the Vigilance 3 Department. The further case of the petitioner is that thereafter no action was taken by the D.E.O., Nalanda or any higher authority and in fact after almost seven years he was subjected to a departmental proceeding by a memo of charge dated 12.4.2004. The charges against the petitioner read as follows: ^^ 1&Jh larksÔ dqekj feJ] Jh latho dqekj feJ ,oa cynso izlkn dks fo|ky; esa QthZ fu;qfDr i=] QthZ lkeatu i=@LFkkukUrj.k i= ds vk/kkj ij ;ksxnku djkuk A 2&QthZ fÓ{kdksa dk osrukfn Hkqxrku QthZ i=ksa ds vk/kkj ij djk;k x;k A rFkk Hkqxrku ds iwoZ lR;kiu foHkkfx; Lrj ij ugha fd;k x;k A 3&QthZ fÓ{kdksa ds Hkqxrku ds dze esa mldh olwyh ds fy, ftyk fÓ{kk inkf/kdkjh]ukyUnk ds i=kad 1909 fnukad 24-12-98 }kjk i=kpkj fd;k x;k fdUrq mldk mRrj le; ij ugha nsuk A 4&QthZ fÓ{kdksa dks dh xbZ Hkqxrku dh dqy jkfÓ olwyh D;ksa ugha lqn ds lkFk dh tk;s A 5&QthZ fÓ{kd dk ekeyk mn~Hksnu gksus ij vius dks fufyZIr ekuus dk iz;kl djuk A 6&ljdkj dh jkfÓ dks {kfr igqWapkus ds dkj.k D;ksa ugha lafyIr ekuk tk;s A ** Having received the memo of charge the petitioner had submitted his explanation to the Regional Deputy Director of Education, Magadh Division, Gaya, the Enquiry Officer, wherein his only defence was that when he had accepted the joining of three teachers as he had no reason to believe that their transfer order and other papers produced by them were forged or fake and in fact when he had handed over those documents to the authorities of the Vigilance Department he had no reason to doubt the authenticity and genuineness of the 4 document. It is significant to mention here that having furnished his explanation in respect of the charges framed against him he had mentioned that “ esjs }kjk fn;s x;s LiIVhdj.k eq>s funksZÔ izekf.kr djus ds fy, dkQh gSa A ** It is not in dispute that thereafter the Enquiry Officer had conducted a departmental proceeding and found the charges to be fully proved. The Enquiry Officer had also held that nothing was produced before him by the petitioner which could establish that the papers submitted by the three transferred teachers relating to their transfer and joining in the school were genuine and correct and that his plea that these papers were taken away by the authorities of the Vigilance Department could also not be proved by the petitioner. Followed by the enquiry report the petitioner was given a second show cause notice alongwith the copy of the enquiry report by the disciplinary authority, namely, Director, Secondary Education, who vide his letter dated 21.7.2006 gave him an opportunity to submit his comments/ explanation in relation to finding of the enquiry report. The petitioner is also said to have submitted his reply to the enquiry report on 11.10.2006 and it was stated therein that the explanation submitted by the petitioner to the Enquiry Officer was not at all taken into consideration and when a criminal case as also certificate case had already been launched against the three transferred 5 teachers, he (the petitioner) should be exonerated from the charges. The impugned order of punishment dated 28.12.2006 withholding three increments on cumulative basis against the petitioner came to be passed by the Director, Secondary Education, by Memo No. 1087 dated 28.12.2006 which has been impugned in this writ application. The petitioner claims that he had also filed an appeal on 20.2.2007 which however was disposed of by an order dated 30.4.2007 under communication of the disciplinary authority dated 30.4.2007 informing the petitioner that his appeal had been rejected by the Commissioner and the Secretary of the Education Department on the ground that the impugned order of punishment had been passed with the approval of the State Government itself and as such, there was no scope for entertaining an appeal. Counsel for the petitioner has submitted that the impugned order of punishment was absolutely unsustainable in law, inasmuch as no enquiry was actually conducted by the Enquiry Officer, who had disposed of the enquire enquiry only on the basis of memo of charge and its reply submitted by the petitioner. He had further stated that the finding recorded by the Enquiry Officer in the enquiry report is not supported by any reasons. It was also contended that the petitioner was not supplied with the copy of the enquiry report. Counsel for the petitioner had also stressed that when he had no document left to himself 6 as the entire documents were taken away by the authorities claiming to be the officials of the Vigilance Department, he was not in a position to produce either the transfer order or appointment order of three teachers on the basis of which he had earlier accepted their joining. Counsel had further relied on a communication made by the petitioner dated 5.5.1996 for the D.E.O., Nalanda reporting the fact of acceptance of joining of the three teachers on the basis of which he had sought necessary guidelines and instructions with regard to continuance of three teachers and as such, the D.E.O., Nalanda could have been asked the petitioner to produce those documents relating to three teachers. It was finally submitted that the impugned order of punishment was both vague and non-speaking. Counsel for the State, however, had submitted that the grievance of the petitioner against the procedure adopted in enquiry was wholly misconceived, inasmuch as the petitioner had never demanded an opportunity to lead any evidence and had himself stated in his reply to the charges that his explanations being submitted to the charges were by themself sufficient to prove his innocence. It was also submitted that from the reading of paragraph 31 of the writ application it would be clear that the petitioner had received the enquiry report and as such, the grievance of non-supply of enquiry report was absolutely misconceived. Learned counsel for the State in fact was of the view that the 7 charges were themselves established by the stand taken by the petitioner in his explanations to the charges. It was in this context sought to be also canvassed by him that the Government on account of negligent and collusive role played by the petitioner in the capacity of Headmaster had suffered a huge financial loss inasmuch as payment of salary was also made to the three transferred teachers by the petitioner in the capacity of the Headmaster of the School and the same resulted into loss of substantial amount of Government exchequer because all three of them were found to be fake teachers who were never appointed by the Government. Explaining this aspect the counsel for the State had also stated that the plea taken in the supplementary affidavit by placing reliance on the letter of the petitioner himself dated 5.5.1997 as with regard to giving information about the acceptance of joining of three teachers is a new plea which was never taken by the petitioner before the Enquiry Officer. On the basis of materials on record the first submission of the counsel for the petitioner of there being procedural irregularity in course of departmental proceedings has to be noticed for its being rejected. The procedural part of the enquiry has been dealt by the petitioner in paragraphs 20 and 21 which reads as follows: “20. That during the course of enquiry, the petitioner proved beyond any doubt that he had 8 acted bonafide in accepting the joining report of the aforesaid three teachers and had also informed the authorities about the same and since no direction was given, the petitioner made payment of salary for sometime. 21. That the respondent no.4 felt satisfied about the bonafide act of the petitioner.” From the aforementioned pleadings it cannot be said that the petitioner was not given any opportunity in course of enquiry. It has to be always kept in mind that the specific plea of the petitioner in his reply to the charges was that his explanations be given in the reply were themselves sufficient to prove his innocence. This Court, therefore, would find the first grievance of the petitioner of there being procedural infirmity in course of enquiry to be wholly without substance. The plea of the petitioner that though he had submitted the order of transfer and order of appointment of three teachers alongwith other documents to the D.E.O., Nalanda vide his letter dated 5.5.1996 is also fit to be rejected, inasmuch as in the said letter dated 5.5.1996 (Annexure 11) allegedly written by the petitioner his plea is that he had reported the fact with documents to the D.E.O., Nalanda and had sought his guideline in the following terms: 9 ^^ i=kad 27@96 izsÔd] Jh ;qxy fdÓksj izlkn flUgk] iz/kkuk/;kid] Mh0 ih0 jk; mPp fo|ky;] nhi uxj dksjbZ ¼ukyank½ A lsok esa] ftyk fÓ{kk inkf/kdkjh] ukyank A fnukad 5&5&1996 foÔ; %& u;s fÓ{kdksa ds LFkkukarj.k i= ,oa fu;qfDr i= ds vk/kkj ij ;ksxnku djus ds laca/k esa A egkÓ;] fuosnu iwoZd dguk gS fd esjs fon~;ky; Mh0 ih0 jk; m0 fo0 nhiuxj dksjbZ] ukyank esa nks fÓ{kd ¼1½ larksÔ dqekj feJ ¼2½ cynso izlkn rFkk ,d fÓ{kd Jh jktho dqekj feJ us ;ksxnku fd;k gS A dze la0&1 ,oa 2 LFkkukarj.k i= ,oa lsok iqfLrdk rFkk dzekad & 3 fu;qfDr i= ds vk/kkj ij ;ksxnku fd;s gSa A bu rhuksa fÓ{kdksa dk LFkkukarj.k i=] fu;qfDr i=] lsok iqfLrdk ,oa ;ksxnku izfrosnu dh Nk;k izfr vkids lwpukFkZ ,oa ekxZnÓZu ds fy, izsfÔr dj jgk gwWa A bl laca/k esa ;fn dksbZ ekxZnÓZu gks rks vfoyac miyC/k djkus dh d`ik dh tk; A fojoklHkktu iz/kkuk/;kid Mh0 ih0 jk; m0 fo0 nhuuxj dksjbZ] ukyank A ** This part of the statement of the petitioner which is not only a new fact and also was never disclosed by him in his written statement of defence filed by him vide Annexure 5 to the writ application in the year 2004 on receipt of the memo of charge but is also completely contradictory to his own statement made in paragraphs 11 and 12 of the writ application which reads as follows: 10 “11. That shortly thereafter there was some rumour about the farzy appointment and transfer of teachers. On such rumour the petitioner informed the respondent DEO about the joining of aforesaid three teachers. 12. That the respondent DEO directed the petitioner to send the service book, transfer and appointment letter etc. of those teachers. On receipt of the aforesaid letter, the petitioner prepared file and intended to submit the same to the respondent DEO. In the meantime, three persons in Police Uniform came in Ambassador car. One of them disclosed himself as Personal Assistant to the Deputy Secretary, Vigilance Department, Bihar, Patna, who gave out that necessary enquiry about the transfer and appointment of teachers is going on in the Vigilance Department and therefore all the original papers viz Service book, transfer letter and appointment letter be given to him for the purpose. The petitioner believing in their statement handed over all those original papers to the so called P.A. to the Deputy Secretary, Vigilance, who granted receipt and sealed and signed the same.” As a matter of fact from the reading of aforesaid statements of the petitioner his subsequent new plea raised by him in a supplementary affidavit of having 11 sent the photo stat copy of the letters of appointment, transfer, joining, service book by him to D.E.O., Nalanda vide his letter dated 5.5.1996 is not only falsified but also fully further exposed from a perusal of his own subsequent letter dated 17.10.1997 sent by him to D.E.O., Nalanda in response of the letter no. 1860 dated 1.10.1997 which read as follows : ^^ jktdh;d`r Mh0 ih0 jk; mPp fo|ky; nhiuxj] dksjbZ i=k0&nhiuxj ¼ukyUnk½ izsÔd & iz/kkuk/;kid] lsok esa] ftyk fÓ{kk inkf/kdkjh] ukyUnk A lanHkZ %& Kkikad 1860 fnukad 01-10-97 esa fÓ{kdksa ds lsok iqfLrdk] LFkkukarj.k i= ,oa fu;qfDr i= Hkstus ds laca/k esa A egkÓ;] mi;qZDr foÔ; ds lanHkZ esa lkuqjks/k lwfpr djuk gS fd eSa lHkh dkxtkr vkt fyfid ds ek/k;e ls Hkstus ds gh dze esa Fkk fd 3 ctdj 45 feuV esa fuxjkuh foHkkx ds vf/kdkjh vk;s vkSj lHkh fÓ{kdksa dk mi;qZDr dkxtkr ysdj pys x;s ftldk izek.k fyf[kr layXu gS A fojoklHkktu g0 vLiIV iz/kkuk/;kid Mh0 ih0 jk; mPp fo|ky; nhiuxj& dksjbZ ¼ukyUnk½ ** From the combined reading of Annexure 11 and Annexure 3 it would be clear that the petitioner had never sent the documents to the office of the D.E.O. in the year 1996 because had he actually sent them on 5.5.1996 there was no question of mentioning this fact 12 in his letter dated 17.10.1997 that while he was in process of sending the same papers to the office of D.E.O., Nalanda they had been taken away by the authorities of the Vigilance Department. In fact, had the petitioner actually sent the letter dated 5.5.1996, he could have easily said his letter dated 17.10.1997 that the photo copies of such documents had already been sent by him on 5.5.1996 and must have been in custody of the D.E.O. and only their originals thereof were taken away by the authorities of the Vigilance Department. It is thus apparent that the petitioner had never apprised immediate controlling officer, namely, D.E.O., Nalanda till the latter had himself called for documents vide his letter No. 1680 dated 1.10.1997 and only then the petitioner took a very conveniently plea on 17.10.1997 of its being taken away on the same day by the authorities of the Vigilance Department. It would thus be clear that the petitioner had never informed the fact with regard to acceptance of joining of three teachers to the D.E.O., Nalanda much less on 5.5.1996, inasmuch as till 16.10.1997 he was still in the process of collecting them and had merely intended to submit them to the D.E.O. which also he could not do on account of such documents having been allegedly taken away by the authorities of the Vigilance Department. There being infact no proof of the aforementioned letter dated 5.5.1986 (Annexure-11) to have been ever sent and received in the office of 13 the D.E.O., Nalanda, it appears to this Court that this part of the defence in absence of its being placed before Enquiry Officer has been developed only for the purposes of this writ application, inasmuch as if there was a conscious attempt on the part of the petitioner to appraise his controlling authority, namely, D.E.O., Nalanda, there was actually no need or occasion for him to inform the fact with regard to transfer/ appointment of three teachers to be doubtful/ fake as has been claimed in paragraphs 11 and 12 of the writ application. In any event this document as contained in Annexure 11 was never brought to the notice of the Enquiry Officer nor such a plea with regard to the same was taken before the Enquiry Officer in the explanation submitted by the petitioner in the month of April, 2004 and therefore, the plea of the petitioner that he had given a prior information of accepting the joining of three transferred/ appointed teachers is definitely an improvement sought to be made for strengthening his defence only before this Court. Consequently such belated plea of the petitioner in absence of its being raised before disciplinary authority can not be permitted to be raised before this Court. It has to be kept in mind that in this letter dated 5.5.1996 (Annexure 11) the petitioner claims that he had submitted photo copy of the entire documents, such as transfer letter, appointment letter, service book and joining report of all the three teachers. If that 14 be so, the petitioner being the head of the school was expected to be also aware that the original of such documents could be handed over by him to any authority only after preserving a photo copy thereof. Such inconsistent plea of the petitioner, however, is exposed to the brink when it is found that he had allegedly given all the original documents, namely, appointment letter, transfer letter, relieving letter, joining acceptance letter and the service book of three teachers to the authorities of the Vigilance Department without retaining its copy for his future reference and records. Such plea of the petitioner, therefore, that he had been left neither with the original documents of the three teachers nor photo copies thereof was/is a very convenient and clever plea in order to rule out any further enquiry against him. It has to be noted that as per own showing of the petitioner the joining of three teachers, two of them transferred and one of them being newly appointed were accepted some time before the month of May, 1996 and all three of them were favoured also with payment of salary under the direct orders and authorization of the petitioner. In such a situation if the petitioner was handing over three original documents he had to still retain photo copies thereof for his own use to justify the payment of salary already made by him. In this context the entire defence of the petitioner that he had believed such transfer order/ 15 appointment order to be genuine leading to acceptance of their joining in the school of the petitioner gets also exposed from paragraph 9 of the writ application, inasmuch as while two other teachers,namely, Santosh Kumar Mishra and Baldeo Prasad are said to have been transferred teachers who had come to the school of the petitioner with their service book but as in regard to one Rajiv Kumar Mishra it is the case of the petitioner that he was a newly appointed teacher who had submitted his joining with original certificates and medical certificate. A question would arise as to how the petitioner accepted the joining of Rajiv Kumar Mishra and also went to make payment of his salary even without opening of service book. The Headmaster of the school was not entitled to open a service book without endorsement and signature of the District Education Officer nor could he have allowed payment of salary to Rajiv Kumar Mishra without there being specific approval of the D.E.O., Nalanda. Counsel for the State, therefore, seems to be correct in submitting that the petitioner in clear violation of the departmental instructions prescribing verification/ certification of the transfer order/ appointment order from the competent authority who had issued such transfer order/ appointment order could not have even accepted their joining much less could have released their payment of salary. Such submission of the counsel for the State gets support also from the 16 pleading in the writ application wherein the petitioner in the capacity of Headmaster is shown to have allowed payment of salary to the newly appointed teacher even without opening of the service book. It has always to be kept in mind that the petitioner was not only the Headmaster of the school but also a Drawing and Disbursing Officer on whose approval and signature on the pay bill of the teachers the payment could be made by the Treasury. Such payments of salary to three teachers were made only on the authorization and passing of the pay bills by the petitioner as is clearly admitted by him in his explanation to the memo of charge wherein he has stated ^^ 1- ;g lR; gS fd Jh larksÔ dqekj feJ] latho dqekj feJ ,oa Jh cynso izlkn dh fu;qfDr i= @lkeatu i=@LFkkukarj.k i= ds vk/kkj ij fo|ky; esa ;ksxnku djk;k x;k] fdUrq QthZ i= le>dj ugha A fÓ{kdksa }kjk ;ksxnku ds le; izLrqr izFke n`IV;k dgha ls QthZ ugha fn[k jgs Fks vkSj mls okLrfod ekudj ;ksxnku dj;k x;k A 2- eSaus uo inLFkkfir fÓ{kd ds lEcU/k esa lkjh vkSipkfjdrk,Waiwjh djus ds ckn gh mudk Hkqxrku fd;k gS A esjs ikl lk{;Lo:i vfHkys[k lajf{kr ugha gS D;ksafd mi lfpo ea=h&e.My ¼fuxjkuh½ foHkkx]fcgkj]iVuk ds }kjk 16-10-97 dks foHkkxh; tkWap gsrq fo|ky; esa uo inLFkfir fÓ{kdksa ls lEcfU/kr lsok&iqfLrdk] LFkkukarj.k izek.k&i=] fu;qfDr i= vkfn fo|ky; ifjlj esa] Lo;a mifLFkr gksdj vius v/khu dj fy;s ftldh izkfIr jlhn dh Nk;k izfr layXu gS rFkk rr~dky 17-10-97 dks i=kad 92 }kjk ftyk fÓ{kk inkf/kdjh ukyUnk dks bl vkÓ; dh lwpuk ns nh x;h A ¼Nk;kizfr layXu½ ** Thus, it becomes clear that the charges as framed against the petitioner were virtually admitted by the petitioner with only difference that when the petitioner had accepted joining of those three 17 transferred teachers or had made payment of their salary he was under a bonafide belief such transfer/ appointment of three teachers were genuine and not fake. In such a situation, the onus to prove this fact of his bonafide circumstances was strictly on the petitioner himself but as notice above, the petitioner did not produce any document much less the documents on the basis of which he had drawn satisfaction regarding genuineness of transfer/ appointment of three teachers. The plea of the petitioner that a team of Vigilance officials came and he had handed over the entire original documents of three teachers to them is a plea of