IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.477 of 2009 ARBIND, SON OF SRI JAGARNATH SINGH, RESIDENT OF VILLAGE + POST OFFICE NAINEE, POLICE STATION CHAPRA MUFASSIL, DISTRICT CHAPRA. ……………PETITIONER-APPELLANT. 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 VIKASH BHAWAN, 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 OFFICER, BETTIAH. 7.THE ASSISTANT INSPECTOR OF SCHOOL, BRINDAWAN, WEST-CHAMPARAN, BETTIAH. 8.THE SUPERINTENDENT OF EDUCTION, BETTIAH, DISTRICT WEST-CHAMPARAN. …………RESPONDENTS-RESPONDENTS. For the appellant: Mr. Rajendra Prasad Singh and Mr. Suresh Kumar Ishwar. For the State: Mr.Prabhat Kumar Singh, A.C to G.A-1 and Mr. Alok Kumar, A.C to G.A-1. ----------- 9/ 21.01.2011 The present appeal is preferred by the appellant for setting aside the order of the learned Single Judge passed on 26.02.2009 in C.W.J.C No. 5210 of 2002. The case of the appellant, being the petitioner before the learned Single Judge, questioned the order of his dismissal vide memo no. 802 passed on 13.09.2000, by respondent no. 3 2 i.e Director, Prathmik Education Bihar, Patna in the departmental proceedings, contained in Annexure-26 of the writ application, on the ground that the authorities have failed to follow the principles of natural justice, firstly, by not furnishing the copy of the inquiry report and relevant documents and secondly for non payment of subsistence allowance. The contention of the appellant was that the departmental proceeding was conducted in an ex-parte manner and the dismissal was made ex-parte. The respondents had opposed the said writ petition on the ground that he was self drawing and disbursing officer for payment of salary, and a criminal case under sections 409 and 420 of the Indian Penal Code had been lodged vide Gopalpur P.S Case no. 50 of 1996 on the file of Judicial Magistrate, 1st Class, Bettiah, against the appellant and the Judicial Magistrate herein, acquitted the appellant of the criminal charge-vide his judgment passed on 18.04.2000. It is also further contended that the appellant remained without payment of salary for a period of one year. It is 3 also further contended that the appellant was suspended on 25.06.1997 and the departmental proceedings were started against the appellant herein by the concerned department. The charges were framed for defalcation of amount of Rs. 36 lakhs i.e towards the payment of salary to the teachers. It is further contended that the departmental proceedings were pending, the appellant was asked to report at the Headquarters by respondent no. 3 in the office of the District Education Officer, West Champaran (Respondent no. 5) on 25.06.1997 vide memo no. 300. Accordingly, appellant reported at the Headquarter and stayed till 03.10.1997 and subsequently left the place intimating the concerned department that he could not be able to stay and expressed his inability to stay on the ground of scarcity of money, as his salary was not paid for a period of one year. It is also contended that he made a number of representations by his letter dated 30.07.1998,14.10.1998,11.09.1999,22.07.1997, 07.08.1998 and 14.09.1999 to pay the subsistence allowance and also for supply of 4 relevant documents before the conducting officer. But however, the said representations remained unanswered by the concerned authorities. By virtue of the order passed by the disciplinary authority, appellant was dismissed from service on 13.09.2000(Annexure-26). It is also the case of the appellant that the criminal case ended and appellant was acquitted of the charges on 18.04.2000 by the Judicial Magistrate, 1st Class, Bettiah. Further contention is that bearing the same charges the departmental proceedings were started, could not be proceeded with, and questioned the same in C.W.J.C No. 5210 of 2002 filed by the appellant herein giving rise to this L.P.A and the learned Single Judge by his order dated 26.02.2009, dismissed the said petition stating that the rules of natural justice can never be interpreted in this manner just for rescue of those who managed not to participate in departmental proceeding. It is also the further finding of the learned Single Judge that the appellant herein had the knowledge of the departmental proceedings and he absented 5 himself willingly without participating in the departmental proceedings, and hence, it could not be held that the departmental inquiry was conducted in violation of the rules of natural justice. 2. Mr. Rajendra Prasad Singh, learned senior counsel has argued before this Court that the appellant was suspended on 25.06.1997 and subsequently he was asked to report at the Headquarters vide memo no. 300. He remained there for three days but however, he left after intimating the concerned authorities that he could not survive himself for non-payment of salary for a period of one year and also for non payment of subsistence allowance from the date of suspension i.e 25.06.1997. It is also further contended that on his call in Gopalpur P.S case no. 50 of 1996 by the lower Court, he made representation for payment of subsistence allowance and also asked for relevant documents but however, the authorities remained silent and they did not pay the subsistence allowance. Learned counsel for the appellant has relied on the judgment of the Hon’ble Supreme Court in the 6 case of Capt. M. Paul Anthony Vs Bharat Gold Mines Ltd and another reported in 1999 AIR SC 1416. 3. It is also contended that the entire proceedings of dismissal should be set aside on the ground that the appellant was acquitted of the charges in Gopalpur P.S Case no. 50 of 1996 passed on 18.04.2000. 4. Per contra the learned Government advocate argues that the appellant had the knowledge of departmental proceedings. It is a case, where charges were framed against the appellant for defalcating Rs. 35 lakhs. Even though he was acquitted of the criminal Gopalpur P.S Case no. 50 of 1996, it cannot be made ground for dropping the departmental proceedings, as the departmental proceedings has to be proceeded on its own merit and the appellant has no right whatsoever to say that the charges may be dropped. In view of the fact that he had been acquitted from the criminal proceedings. It is a case where the facts of the case reveal that the delinquent was not paid off his subsistence allowance and also the fact remains that the 7 respondents have not come forward with any reason for non payment of salary for a period of one year even though the said fact has been pleaded in the writ petition as well as in the grounds of appeal in the L.P.A. Even a counter affidavit has been filed by the respondents but it is also a fact that no reasons of delay have been discussed in it for non payment of the subsistence allowance. Except the arguments of the learned Government advocate that the subsistence allowance could not be paid as he left the Headquarters. But however, the fact remains that in the absence of any denial from the respondents in the counter affidavit and the reasons for not paying the salary for a period of one year and also for non payment of subsistence allowance, the following laws have been laid down by the Apex Court in the case of Capt. M. Paul Anthony Vs Bharat Gold Mines Ltd and another reported in 1999 AIR SC 1416, which are quoted herein below:- “where employee was not provided any subsistence allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly 8 supported by medical certificates, was refused resulting in ex parte proceedings against him, the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, on account of his penury occasioned by non-payment of subsistence allowance, during pendency of departmental proceedings he could not undertake a journey to attend the disciplinary proceedings from his home town, the findings recorded by the Inquiry Officer at such proceedings, which were held ex parte, stand vitiated”. 5. We accept the arguments of the learned counsel appearing on behalf of the appellant that the entire claim gets vitiated on the ground of principles of natural justice but however, we did not agree with his contention that merely the appellant has been acquitted in the criminal Gopalpur P.S Case no. 50 of 1996 dated 18.04.2000, it is a ground for quashing the dismissal order, as is the law. But however, the law is divergent on this point. It cannot be said that a right is conferred upon the appellant that merely because he is 9 acquitted in the criminal case the departmental proceedings have to be dropped. 6. In the absence of any reason with the respondents for non-payment of salary and subsistence allowance, we are of the opinion that the appellant cannot be asked to attend the departmental proceedings. So far as, this aspect is concerned, the circumstances laid down by the Apex Court in the case of Capt. M. Paul Anthony Vs Bharat Gold Mines Ltd and another reported in 1999 AIR SC 1416 apply to the extent that the entire departmental proceedings resulting in dismissal order gets vitiated. But however, in view of the charges framed and taking note of the contention of learned senior Government advocate that the charges are of very serious nature, as it would amount defalcation of Rs. 35 lakhs for payment of salary to the teachers, we deem it proper to direct the department to pay fifty per cent of the arrears of salary and the subsistence allowance in full within a period of two months and we also indicate that the departmental proceedings have to be 10 proceeded with after issuing a fresh notice to the appellant along with a copy of the inquiry report, and the departmental inquiry must be proceeded in accordance with law and must be completed within a period of six months from the date of payment of subsistence allowance. 7. Learned counsel for the appellant has submitted that the appeal has remained unanswered till today. The learned counsel for the respondent submits that the appeal has been disposed of. However, in the absence of any order of rejection being produced before this Court, we deem it proper not to delve in this argument in view of the directions issued supra. 8. With the above said observation, the order of dismissal is quashed on the ground of violation of principles of natural justice and the L.P.A is allowed, the order of the learned Single Judge is set aside. Ranjan (T. Meena Kumari,J) (Gopal Prasad, J)