IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.339 of 2001 Suresh Prasad Mandal -Versus- The State of Bihar & Ors. ----------- For the Petitioner: Mr. Birendra Prasad Verma, Senior Advocate. Dr. Mrityunjaya Kr. Gautam, Advocate. M/S. Yogendra Kumar and R. N. Ray, Advocates. For the private Respondents : M/S. Pramod Mishra and Prafull Chandra Thakur, Advocates. For the Board : Mr. Bijay Kumar Pandey, Advocate. For the State : Mr. Sunil Kumar Mandal, S.C. 15. ------------ 6. 30.03.2009. Heard learned counsel for the petitioner, learned counsel for the official respondents no. 1 to 5 and respondent nos. 7 to 11. No one appears on behalf of the Managing Committee of the School in question, respondent no.10, who has been held to be fully aware of pendency of the present writ application in pursuance of the order dated 16.5.2008, consequent to the service of notice on respondent no.11, the Headmaster of the School. Learned counsel for the respondents no. 1 to 5 has raised an objection that the impugned order dated 24.10.2000 passed by the Chairman of the Bihar Sanskrit Shiksha Board is appealable under Section 24 of the Bihar Sanskrit Shiksha Board Act and therefore the writ petition is not maintainable. The writ petition was filed on 1.9.2001 and has remained pending before this court since then. The necessary respondents have appeared and one of them though not appeared but has been held to be fully aware of pendency of the writ petition. - 2 - A counter-affidavit has been filed on behalf of respondent nos. 7 to 9 and 11. The Sanskrit Shiksha Board has chosen not to file a counter- affidavit. This Court is satisfied that to entertain the objection of the Board at this belated stage, 9 years later, when the pleadings are complete and some of them have chosen not to appear and some of them have chosen not to file counter affidavit, as the case may be, this court is not persuaded to throw out the writ petition on the objection of availability of alternatively statutory remedy. The availability of alternatively statutory remedy, is an issue to be considered by the court while disposing the writ petition. Usually, the long pendency of the matter before the court, the pleadings of the parties being complete and on the facts of the present case that the order has been passed behind the back of the petitioner satisfies the court not to reject the writ application on the ground of alternative statutory remedy. Though learned counsel for the petitioner has raised certain arguments with regard to the short issue of his termination being the result of a fraudulent compromise arrived at between the respondent Institution and the private respondents in another writ petition, this court for the present does not consider it necessary to deal with the same as this issue can appropriately be reconsidered before the proper authority in light of the order to be passed hereinafter. This Court does not consider it proper to take note of the fact that the petitioner is in private dispute with private respondents - 3 - no.7 to 9.The dispute relates to appointment. The allegations are of fraud and collusion. Respondent no.11 is representing the Institution. His role should have been neutral and should not be giving the impression of siding with any of the private contesting parties. Unfortunately, Respondent No.11, the Headmaster of the School has chosen to file a counter-affidavit common with the private respondents. The services of the petitioner have been terminated by an order issued on 5.1.1997 in pursuance of resolution dated 10.4.1993. Learned counsel for the petitioner submits from the impugned order that the termination from service inter alia is on the ground of unauthorized absence with retrospective effect. The order dated 5.1.1997 of termination is made effective from 10.4.1993. It is his specific case in paragraph nos. 48 and 49 that prior to determination of his unauthorized absence from service neither any notice was issued nor any opportunity of hearing was given to him. The Managing Committee, respondent no.10, has chosen not to deny the averments. The pleadings, therefore, stands admitted. In the counter-affidavit filed on behalf of the Headmaster of the School(Respondent No.11) also does not deny these facts. Learned counsel for the Board is not in a position to answer these issues. Issue of unauthorized absence is issue of misconduct. Any order passed on misconduct has to be preceded by a proceeding in accordance with law. What such proceeding may be and what nature it may have, may depend on the nature of the Institution. But, if - 4 - it results in adverse consequences, the delinquent has to be heard. The petitioner appears to have come to this court earlier in C.W.J.C. No. 8064 of 1998 when the court declined to entertain the writ application on 2.2.2000 relegating him to the statutory remedy before the Sanskrit Shiksha Board. In pursuance thereof, the impugned order dated 24.10.2000 by the Chairman of the Board has been passed. This court finds that two limited issues raised by the petitioner, both being questions of law, ex-parte determination of alleged absence and retrospectivity of termination have not been discussed in the impugned order at all. The impugned orders dated 5.1.1997 and 24.10.2000 are, accordingly, set aside. The petitioner stands reinstated. The writ petition stands allowed. In the event that the respondent no.10 proposes to proceed afresh in accordance with law, and petitioner raises any allegations of fraud and collusion with regard to his ouster from service, this court directs that respondent no.10 shall be obliged to consider the allegations of fraud and collusion and dispose of the same by a reasoned and speaking order. U.K. (Navin Sinha,J)