IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12338 of 2008 AJAY KUMAR, S/O LATE SARYU PRASAD, R/O VILLAGE-TELHADHA, P.S.-TELHADHA, IN THE DISTRICT OF NALANDA. ……………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HUMAN RESOURCES, GOVT. OF BIHAR, PATNA. 2. THE DIRECTOR, PRIMARY EDUCATION, GOVT. OF BIHAR, PATNA. 3. THE DISTRICT MAGISTRATE-CUM-COLLECTOR, NALANDA. 4. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, PATNA DIVISION, PATNA. 5. THE DISTRICT SUPERINTENDENT OF EDUCATION, NALANDA. 6. THE BLOCK DEVELOPMENT OFFICER, HILSA IN THE DISTRICT OF NALANDA.…………RESPONDENTS. ----------- 4 25.10.2011 Facts, as appearing from the order of the Appellate Authority dated 30.04.2008, as contained in Annexure-2, are that there was a surprise inspection of the School by the Block Development Officer, Hilsa on 22.02.2006. He found the petitioner absent on that day and reported the matter to the higher authorities. Accordingly, by order of the District Superintendent of Education, Nalanda, contained in memo no.4157 dated 17.11.2006, petitioner was suspended and a show cause notice was issued to him to which he replied. Thereafter, an order of punishment was passed by the District Superintendent of Education contained in his 2 office order dated 05.06.2007, vide Annexure- 1, imposing two punishments on the petitioner, namely, (i) withholding of two annual increments without cumulative effect and (ii) withholding of his full salary of the suspension period except the subsistence allowance. Petitioner filed his appeal against the said punishment order and the same was considered and the Regional Deputy Director of Education, Patna passed the order, as contained in Annexure-2. These two orders are under challenge in this writ application. Defence of the petitioner in the proceeding was that in the evening of 21.02.2006, he suddenly fell ill. Hence, he had sent an application for leave through post to the headmaster and had also informed him through phone. It is submitted by learned counsel for the petitioner that before suspension, no show cause notice was issued to the petitioner nor any departmental proceeding was initiated against him giving him any opportunity to enter into his defence. From the order it appears that the 3 Appellate Authority called for the records and peruse the same. From the records, he found that no charges were framed and no proceeding was held against the petitioner. He also came to a conclusion that since it was the defence of the petitioner that he had fallen ill, in respect of which he had sent an application in writing to the headmaster and had informed the headmaster through phone also, the Disciplinary Authority should have given the matter a proper consideration. The Appellate Authority also found that no proceeding in terms of Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 was held. However he held that, since the petitioner was absent on that day from the school without prior permission of the competent authority, he found that the petitioner was at fault. Hence, he released the petitioner from the second punishment, i.e., withholding of full salary of the suspension period, but affirmed the punishment of withholding of two increments without cumulative effect. Learned counsel for the petitioner submits that once the Appellate Authority had 4 found that no proceeding was held and the Disciplinary Authority had not given a proper consideration to the defence of the petitioner, the order of punishment of the Disciplinary Authority stood totally vitiated. Hence, both the punishments against the petitioner should have been set aside by the Appellate Authority. He further submits that the order of the Disciplinary Authority, as contained in Annexure-1, shows that it is an altogether non-speaking order. The order only mentions that petitioner was suspended by memo dated 17.11.2006 and was being released from suspension with two punishments. The order does not at all show as to what consideration was made by the Disciplinary Authority to the defence taken by the petitioner in his reply to the show cause notice. A counter affidavit has been filed in this case on behalf of the respondents in which it is stated that, in the surprise inspection by the Block Development Officer, petitioner was found absent from the school. Hence, a report was submitted, pursuant to which, petitioner was put under suspension 5 and show cause notice was issued to him to which he replied and, after consideration of the same, the punishment order was passed. It is stated in the counter affidavit that the Appellate Authority has already considered the case of the petitioner and has reduced the punishment and hence the same does not need any interference. This Court is unable to agree with the stand of the respondents. First of all this Court finds that the show cause notice issued to the petitioner, vide Annexure-3, is a printed proforma in which the name and date have been filled up by hand on dotted lines. This shows that a proforma is maintained in the office of the respondents to issue notice to the teachers of the school the moment the report is received, without any application of mind by the Disciplinary Authority to the report. The reply to the show cause notice is Annexure-4 which shows that petitioner had taken a definite stand before the Disciplinary Authority that while coming back from the school in the evening on 21.02.2006 he had fell ill. He had shown to the doctor and thereafter had sent an application to the 6 headmaster on 22.02.2006 for leave. The order of the Disciplinary Authority does not show that any verification was made from the office of the headmaster with regard to submission of application by the petitioner and its receipt in the office nor the petitioner was given any opportunity to establish that, in fact, he had fell ill in the evening on 21.02.2006 on account of which he could not attend his duties in the school on 22.02.2006. The order of the Disciplinary Authority is apparently and absolutely a non- speaking one which shows non-application of mind by him in the matter. The order of the Appellate Authority though is a speaking one and has modified the punishment, but he has given his findings, after the perusal of the records, that the Disciplinary Authority had not given a proper consideration of the defence of the petitioner. He has also come to a finding that no proceeding in terms of the Rules was held before issuing the punishment order to the petitioner. Since the Appellate Authority has come to these two findings it was only appropriate for the Appellate Authority to set aside the 7 punishment order of the Disciplinary Authority and, if necessary, to remit the matter back to the Disciplinary Authority. Instead of doing so, and, in spite of the said findings, he has affirmed the order of punishment passed by the Disciplinary Authority with modification. Clearly the order of the Appellate Authority is vitiated and in contradiction to his own findings. The order of the Disciplinary Authority is also vitiated and bad in law for the reasons discussed above. In the circumstances, this Court finds that the order of the Disciplinary Authority, as contained in Annexure-1 and the order of the Appellate Authority, as contained in Annexure-2, are bad in law. The same are therefore quashed. The writ application is accordingly allowed. Arvind/ ( J.N. Singh, J.)