IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6167 of 2007 NARENDRA KUMAR, son of Sri Ram Navami Singh resident of village Dhurgaon, P.S. Madhepura, district Madhepura at present residing at and P.O. Gokula, district Muzaffarpur. Versus 1. THE STATE OF BIHAR 2. Deputy Development Commissioner, Muzaffarpur, district Muzaffarpur. 3. District Superintendent of Education, Muzaffarpur. 4. Deputy Superintendent of Education, Muzaffarpur. 5. Block Education Extension Officer, Mushahari, district Muzaffarpur. 6. Area Education Officer, Saraiya, district Muzaffarpur. ----------- 2 21.09.2010 No one appears for the petitioner. Counsel for the State is present. Prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of an appropriate writ, order or direction for setting aside the part of the order as contained in Memo no.3570 dated 10.11.2006 issued under the signature of the District Superintendent of Education, Muzaffarpur issued as per the order of the Deputy Development Commissioner, Muzaffarpur passed in compliance of order of this Hon’ble Court dated 2.8.2006 passed in C.W.J.C. No. 8361 of 2006, by which the order of punishment was passed against the petitioner, keeping pending the departmental proceeding against the petitioner while revoking his order of suspension, as under (i) the petitioner will be entitled to get subsistence allowance only during the period of his suspension and (ii) it has been ordered to stop two annual increments of the petitioner with cumulative effect, as well as for setting aside memo no.3720 dated 18.11.2006 issued under the signature of District Superintendent of Education Muzaffarpur by which fresh memo of charge for the same charges was issued.” From the pleadings on record it appears that when the petitioner was placed under suspension vide an order dated 21.12.2005, he had moved this Court assailing his aforesaid order 2 of suspension in C.W.J.C. No.8361 of 2006 and the same was disposed of by an order dated 2.8.2006 in following terms:- “Heard the parties. The petitioner is aggrieved by the suspension order dated 21.12.2005, Annexure-4 on the ground that the memo of charge as also appointment of enquiry officer was not made within the period of three months from the date of issue/service of the said suspension order and that is how his suspension is violative of sub rule 5 of rule 20 of the Bihar State Government Primary School Teachers Transfer and Disciplinary Action Rules, 2002 as thereunder it is mandatory on the authorities not only to serve the memo of charge but also to appoint the enquiry officer within three months from the date of issue of suspension order. Having perused the provisions of the Rule as also having come to learn the fact that the memo of charge was served on the petitioner on 17.5.2006 when the enquiry officer was also appointed, whereafter, the petitioner has also filed his written defence, without going into the aforesaid contentions raised by the petitioner I direct the enquiry officer as also the disciplinary authority to conclude the departmental proceeding initiated against the petitioner within a period of three months from the date of receipt/production of a copy of a certified copy of this order, failing which the suspension order dated 21.12.2005 shall stand vacated but the proceeding shall continue. It is made clear that the petitioner should be paid entire arrears of subsistence allowance within a month from the date of receipt of this order.” It appears that thereafter the impugned order dated 10.11.2006 was passed by the Respondent D.S.E., Muzaffarpur wherein order of suspension was revoked and the departmental proceeding was directed to continue. In the said order dated 10.11.2006 an order of punishment however was also passed by stopping two increments of the petitioner with cumulative effect and thereafter by a separate order 18.11.2006 a fresh memo of 3 charge was also issued against him. It is these two orders dated 10.11.2006 inflicting punishment of stoppage of two increments with cumulative effect and the order dated 18.11.2006 framing charge against the petitioner which have made subject matter of this writ application. No counter affidavit has been filed in this case in a period of more than two years even when the writ application was filed on 10.5.2007 after service of two copies of the writ application on the counsel for the State. Counsel for the State, however, prays for two weeks time to file counter affidavit. In the opinion of this Court, if counter affidavit could not be filed by the respondents in a period of 2-1/2 years they cannot be allowed any liberty to file their counter affidavit as and when they would like to do so. Coming to the merits of this case, it would be found that if the order dated 10.11.2006 was merely an order of revocation of suspension by keeping the departmental proceeding pending against the petitioner, no order of punishment could have been passed against him without conducting an enquiry and that too by way of stoppage of two increments with cumulative effect which under 2002 Rules is a major punishment. This Court also fails to appreciate as to how the earlier memo of charge dated 17.5.2006 was given a go bye by the authority and on what basis the District Superintendent of Education, Muzaffarpur had proceeded to frame another memo of charge on 18.11.2006. 4 In any event there being no discussion in the order dated 10.11.2006 muchless disclosure of any cogent reason for inflicting such punishment upon the petitioner the same cannot be sustained, inasmuch as, it is in clear violation of Rule 21 of Bihar State Nationalized Primary School Teachers (Transfer and Disciplinary Proceedings) Rules, 2002 inasmuch as the petitioner was not afforded even an opportunity against the proposed punishment. That being so, the impugned order dated 10.11.2006 so far it relates to inflicting punishment of stoppage of two increments with cumulative basis is hereby quashed and the matter is remitted back to the District Superintendent of Education, Muzaffarpur to now proceed afresh against the petitioner as against the memo of charge dated 18.11.2006 who would appoint an Enquiry Officer and follow the procedure of holding enquiry for major punishment in terms of Rule 21 of the Rules. It will be open for the competent authority authorized under 2002 Rules to inflict any order of punishment as also to take decision with regard to payment of salary for the period of suspension on the basis of a fresh departmental enquiry. It is also made clear that any financial benefit to the petitioner for the period of suspension or any other amount withheld on account of pendency of the departmental proceeding shall be extended to the petitioner only on completion of the departmental proceeding and the resultant order passed thereon. 5 With the aforementioned observations and directions this application is allowed only to the extent indicated above. Abhay Kumar ( Mihir Kumar Jha, J.)