IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3536 of 1999 Dulal Kanti Nandi, son of late Harendra Kumar Nandi, Resident of Village Bijahara Colony, P.S. Kadwa, Dist. Katihar. ----- Petitioner Versus 1. The State of Bihar. 2. The Commissioner and Secretary, Human Resources Department (Primary Education), Vikash Bhawan, Patna. 3. The Director, Primary Education, Govt. of Bihar, Vikash Bhawan, New Secretariat, Patna. 4. The District Magistrate, Katihar cum Chairman, Dist. Education Establishment Committee, Katihar. 5. The District Superintendent of Education, Katihar. --------- Respondents ----------- Counsel for the Petitioner :- Mr. Shyama Prasad Mukherjee, Sr. Adv. Mr. Gyanand Roy, Adv. For the Respondent State :- Mr. Anant Kumar Bhasker, AC to SC ----------- 6 12.08.2011 Heard learned counsel for the parties. The petitioner in this writ application has assailed the order of punishment dated 5.2.1999 in a departmental proceeding as also the appellate order dated 1.4.1999 affirming the order of punishment. The petitioner, a teacher in a primary school, after continuation for more than twenty years in service was subjected to a departmental proceeding vide memo of charge dated 14.2.1994. He was also placed under suspension pending departmental proceeding and it appears that a departmental proceeding was conducted, whereafter, an enquiry report was submitted by the Enquiry Officer holding 2 the petitioner guilty. The petitioner was subjected to a show-cause notice dated 19.7.1995, wherein, he was informed that the Enquiry Officer had held him guilty of obtaining the employment by producing a false/forged caste certificate of his belonging to a scheduled caste category. The petitioner, on receipt of such show-cause notice dated 19.7.1995, in his application dated 21.8.1995 had requested for supply of the enquiry report as also the evidence, if any, adduced before the Enquiry Officer and the order-sheet of the enquiry from 6.4.1994 to 22.4.1995. The petitioner was not supplied the copy of the enquiry report but, he was afforded an opportunity to inspect all the documents submitted by the Enquiry Officer and pursuant to the aforementioned order dated 29.8.1995, the petitioner seems to have inspected the records, whereafter, he had filed his exhaustive show-cause reply on 29.9.1995 along with documents. The matter thereafter was placed before the Collector of the district on 12.11.1995 and he, in capacity of the Chairman of the District Education Establishment Committee, had only revoked the order of suspension by giving him 3 full benefit of the period of suspension but, leaving the matter with regard to the final decision with the departmental proceeding open, as would be apparent from the last paragraph of the order of the Collector of Katihar district, which was passed by him in capacity of the Chairman of the District Education Establishment Committee. ^^xfBr vkjksi] lefiZr dkj.k i`PNk] lapkyu inkf/kdkjh dk izfrosnu ,oa vfHkys[k esa miyC/k lk{;ksa dh lE;d foospuk djus ds mijkUr Jh nqyky dkafr uanh] lgk;d f'k{kd] e/; fo|ky;] ewlyxkao dks lUnsg dk ykHk nsrs gq, fuyacu vof/k dk iw.kZ ykHk ds lkFk fuyacu ls eqDr fd;k tkrk gSA lkFk gh funs'kd] izkFkfed f'k{kk] ekuo lalk/ku fodkl foHkkx] fcgkj] iVuk dks ,d vkxzgiw.kZ i= fn;k tk; fd os Jh uanh ds firk Jh gjsUnz uanh tks pVxkao ¼caxykns'k½ ls foLFkkfir gksdj 'kj.kkfFkZ;ksa ds fy, ljdkj dh mnkjoknh uhfr ds fl}kUrksa dk vuq'kj.k djrs gq, dfVgkj esa iquokZflr fd;s x;s] ds tkfr dk lR;kiu caxykns'k ljdkj ls djkus gsrq vius Lrj ls x`g ¼fo'ks"k½ foHkkx] iVuk dks vuqjks/k djuk pkgsaxs rkfd bl ekeyk dk iVk{ksi lnk ds fy, lEHko gks ldsA vkns'k dh izfr ftyk f'k{kk v/kh{kd dks vuqiyukFkZ HkstsaA inLFkkiu LFkku iwoZor jgsxk ;fn og x`g&iz[k.M esa gks rksA g0@& ftyk inkf/kdkjh lg v/;{k f'k{kk LFkkiuk lfefr] dfVgkjA** Learned counsel for the petitioner has submitted that thereafter a formal order revoking the suspension of the petitioner was also issued by the District Superintendent of Education on 9.7.1996 and he was also given the full benefit of salary for the period of 4 suspension i.e. 4.2.1993 to 9.7.1996. It, however, appears that on 11.7.1996 both the petitioner and his wife Mrs. Nidra Mazumdar were directed to file their show-cause reply wherein it was indicated that the Collector of the district, having examined the record of the departmental proceeding both against the petitioner and his wife concurring with the findings of the Enquiry Report, had found the charges against the petitioner to be proved and had directed the petitioner and his wife to file their separate show-cause reply as to why the final order should not be passed in the departmental proceeding. The petitioner is again said to have filed his show-cause reply to the said show-cause dated 11.7.1996, whereafter, the matter was placed before the District Education Establishment Committee, which in its meeting held on 31.12.1998, had passed the impugned order dismissing the petitioner from service on the ground of producing a false/forged caste certificate. An appeal filed by the petitioner before the Commissioner of Purnia Division was also rejected only on the ground of limitation by holding that the period of 5 limitation was only thirty days, whereas, the appeal came to be filed more than two months after the order of punishment. Learned counsel for the petitioner would submit that the order passed by the Collector of the district revoking the order of suspension should also be treated to be closure of the departmental proceeding, inasmuch as, he had recorded findings that the charges against the petitioner were not proved. Such a submission however cannot be accepted by the Court in view of the order which was passed by the Collector of the district on 13.11.1995, which as noted above, was exclusively confined only to revocation of suspension and nothing more. As a matter of fact, the consequential order issued by the District Superintendent of Education, Katihar on 9.7.1996 would by itself be a clear proof of the fact that in view of the order passed by the Collector-cum-Chairman of the District Education Establishment Committee only the suspension of the petitioner was revoked and the departmental proceeding was not closed by also exonerating the petitioner of the charges framed against him in the departmental proceeding. In that 6 view of the matter, this Court would hold that mere revocation of suspension of the petitioner could not have been the end of the departmental proceeding, which was initiated on the basis of a charge and had to end either with an order of exoneration or with an order of punishment. This Court would also not be in a position to accept the next submission of the learned counsel for the petitioner that even when the show-cause notice dated 11.7.1996, asking the petitioner to file his further explanation in the light of the findings of the enquiry report of the charges having been found to have been proved was issued, the petitioner’s promotion or being granted efficiency bar had the effect of wiping off the charges framed against him. The added emphasis of the learned counsel for the petitioner that such decision for granting of promotion to the petitioner was consciously taken by the District Education Establishment Committee and would amount to not only exonerating the petitioner but also treating him to be member of scheduled caste has to be again noted for its being rejected. The issue was if the claim of promotion of the 7 petitioner was still pending and no final order had been passed, the District Education Establishment Committee could not have denied the promotion of the petitioner on account of pendency of the departmental proceeding. This Court, in fact, has found that the departmental proceeding against the petitioner was still kept alive and only order of suspension was revoked and in that view of the matter, the District Education Establishment Committee, which is the competent authority to pass a final order of punishment in terms of Rule 8 of the fcgkj jkT; jktdh;d`r izkjafEHkd fo|ky; f'k{kd ¼LFkkukUrj.k ,oa vuq'kklfud dkjZokbZ½ fu;ekoyh 1994, had the competence to take a final decision. This Court would not be in a position to accept the submission of the learned counsel for the petitioner that in terms of Rule 7 (5), the Collector of the district could have passed a final order in a departmental proceeding by exonerating the petitioner, inasmuch as, Rule 7 clearly covers the case of suspension and the context of departmental proceeding in Rule 7(5) has to be read in conjunction with Rule 7(4), which authorizes the District Superintendent 8 of Education to initiate a departmental proceeding. That would not mean that Rule 8(3) of the 1994 Rules as with regard to a decision for inflicting punishment in a departmental proceeding by the District Education Establishment Committee could be also taken by the Collector of the district, who is merely a Chairman of the Committee and has not been vested with any such power to exercise the power of the Committee. Thus there would be no difficulty in holding that the order contained in Annexure-1 is not by way of review of the earlier order passed by the Collector of the district with regard to revocation of suspension of the petitioner. The difficulty, however, for the respondents would still not be over, inasmuch as, the petitioner had categorically demanded the copy of the enquiry report and such enquiry report was never supplied to him. It is true that the petitioner had the opportunity of looking into the enquiry report at the time of inspection afforded to him after he had demanded the copy of enquiry report and other documents but, then, if such explanation submitted by him was already acted upon for the revocation of suspension 9 leading to some favourable findings in favour of the petitioner, the authority was still required to give a copy of the enquiry report with the show-cause notice that was slammed on him on 11.7.1996. From reading of the show-cause notice dated 11.7.1996, it is also clear that the Collector of the district was impressed with some complaint filed by local M.L.A. Sri Bhola Rai dated 6.7.1996 and the resultant action against the petitioner was initiated as a result of such a complaint filed by Bhola Rai M.L.A. There would be no difficulty in coming to the conclusion that a public representative can definitely point out to an official functionary with regard to any laches or lapse in the functioning of the officials of the State but, then, the authority, in exercise of statutory power, cannot be guided solely by such complaint of a public representative including M.L.A. In the present case, from the show-cause notice dated 11.7.1996, last paragraph whereof reads as follows:- ^^ekuuh; fo/kk;d ds f'kdk;r i= ds ckn ftyk inkf/kdkjh egksn; us lEcfU/kr nksuksa foHkkxh; dk;Zokgh vfHkys[kksa dk voyksdu fd;k rFkk mUgksaus ik;k fd lapkyu inkf/kdkjh us vkjksiksa dks lgh ik;k 10 gSA ,slh fLFkfr esa vki i= izkfIr ds lkr fnuksa ds vUnj vuqlwfpr tkfr gksus dk l{ke inkf/kdkjh dk izek.k&i= esjs dk;kZy; esa izLrqr djsa] vU;Fkk ekuuh; fo/kk;d dh vuq'klk ,oa ftyk inkf/kdkjh egksn; ds iwoZ ds dkjZokbZ esa lapkyu inkf/kdkjh ds eUrO; ds voyksdu ls izkIr rF;ksa ds vkyksd esa vkidks vuqlwfpr tkfr dk lnL; ugha gksus ij Hkh vuqlwfpr tkfr dk ykHk ysdj f'k{kd in ij cus jgus ds vkjksi esa vkids fo:) ftyk inkf/kdkjh ds vkns'kkuqlkj foHkkxh; dk;Zokgh ds lkFk&lkFk dkuwuh dkjZokbZ Hkh dh tk;sxhA** it would be clear that the Collector of the district was somehow impressed with the allegation made by Sri Bhola Rai M.L.A. and had sought to revive the pending proceedings against the petitioner which had been at a dormant stage in view of the earlier order of the Collector of the State dated 13.11.1995 seeking to refer the matter to the Director, Primary Education. Thus it becomes clear that the impugned order of punishment was not passed in a bonafide manner and infact was a product of the political pressure exerted by Mr. Bhola Rai, M.L.A. This Court would also not approve the approach of the earlier Collector either of revoking the order of suspension by going into the merit of the charge and directing for payment of salary for the period of suspension even when he had not passed any final order in the pending departmental 11 proceeding by exonerating the petitioner and closing the departmental proceeding. In the given facts, his approach of referring the departmental proceeding to Director, Primary Education was also wholly uncalled for, inasmuch as, 1994 Rules did not envisage interference of Director, Primary Education in the matter of departmental proceeding against the Teacher. The charge against the petitioner of having obtained employment by producing a forged/fake caste certificate having been framed at the district level, the same had to be decided in the light of the evidence adduced before the Enquiry Officer and the Director, Primary Education was not required to be approached. In the aforementioned circumstances, when this Court would find that the principles laid down by the Apex Court in the case of Managing Committee Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. reported in 1993(4) SCC 727 as with regard to supply of enquiry report was not followed it has to be held that the whole proceeding had been vitiated from the stage of submission of the enquiry report. Normally, this Court could have 12 itself gone into this aspect had the respondent annexed the copy of the enquiry report with the counter affidavit, a recourse which was also suggested in the B.Karunakar case (supra). Unfortunately learned counsel for the State, even after being directed by this Court to produce the records of departmental proceeding, could not get the same and in that view of the matter, this Court would hold that non-supply of the enquiry report to the petitioner by itself had prejudiced him specially when an order of punishment was passed on the basis of such enquiry report. Thus the impugned order of punishment is bad and cannot be sustained in law and is accordingly quashed. As the error in the departmental proceeding has crept from the stage of filing of the enquiry report, this Court, as a consequence of quashing of the order of punishment as also the appellate order, would remit the matter back with a direction to the District Programme Officer Establishment, Katihar to supply the copy of the enquiry report submitted by the Mrs. Manju Lata Kant, the Deputy Collector as also any other document as may be demanded by the petitioner 13 with reference to the enquiry report and the report of Sri Shaligram Pathak as referred in the impugned order. The petitioner after service of such enquiry report and/or any other relevant document would submit his show-cause reply, whereafter, the same would be placed before the District Education Establishment Committee for its final decision. Any consequential benefit to the petitioner shall abide by the result of the final order to be passed in the departmental proceeding against him. This application is accordingly allowed, only to the extent indicated above. Rsh (Mihir Kumar Jha, J.)