IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7677 of 2009 MADAN SAO ,SON OF LATE MOTI SAO, RESIDENT OF VILLAGE AND POST BARNI, P.S. CHANARUA, DISTRICT PATNA DPRESENTLY POSTED AS ASSISTANT TEACHER, IDDLE SCHOOL KOSUT, DHANARUA, DISTRICT PATNA-- ----PETITIONER Versus 1.THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3 . THE DIRECTOR(PRIMARY EDUCATION) GOVT. OF BIHAR, PATNA 4. THE DISTRICT MAGISTRATE, PATNA. 5. THE DEPUTY DEVELOPMENT COMMISSIONER, PATNA 6. THE DISTRICT SUPERINTENDENT OF EDUCATION, PATNA 7. THE AREA EDUCATION OFFICER, PATNA SADAR, PATNA.----RESPONDENTS ----------- For the Petitioner:- Mr. Alok Kumar No.1,Advocate For the State:- AC to SC VI 4 19.05.2010 Petitioner has filed the present writ application for quashing of Office order vide Memo no. 2706 dated 5.7.2005 issued by the District Superintendent of Education, Patna, whereby major punishment of withholding one increment with cumulative effect has been inflicted upon the petitioner, as a result of conclusion of the departmental proceeding. 2 Further prayer is for quashing of Memo no. 896 dated 14.3.2009, issued by the same authority i.e. the District Superintendent of Education, Patna in Service Appeal No. 63 of 2005. Both the impugned orders have been assailed by the petitioner on the ground that these are violative of statutory Rule framed by the State Government to be followed, before awarding major punishment. The Rule provides for full-fledged departmental inquiry but that has not been done in the case of the petitioner. The order passed in appeal (Annexure-8) has been challenged by the petitioner stating that the Appellate Authority could not have delegated the power to the original disciplinary authority for passing the order as under Rule 23 of the Disciplinary Rules, 2002, the Appellate jurisdiction could not have been exercised by the original disciplinary authority. It has also been 3 submitted by the petitioner’s counsel that without giving any proper opportunity to the petitioner for defending his case, without serving the inquiry report and without ever summoning the petitioner to participate in the inquiry, and affording opportunity of second show cause to the proposed punishment, major punishment has been inflicted upon the petitioner. The petitioner is an Assistant Teacher in Middle School, Kosut, Dhanarua, Anchal Masaurhi, District Patna. A departmental proceeding was initiated against him while he was made In-charge Headmaster of the school, for sometime. He was placed under suspension and the departmental proceeding was initiated under Section 18 (2) (3) and Rule 23(2) of the Bihar State Nationalized Elementary School Teachers (Transfer and Disciplinary Action) Rules, 2002. Section 20(2) of 2002 Rules provide that 4 generally the Deputy Development Commissioner or the District Superintendent of Education would ask for a show cause from the delinquent Headmaster/teacher before placing him under suspension and upon finding this explanation unsatisfactory a suspension order shall be passed. Petitioner’s case is that before passing the suspension order dated 18.6.2004, no show cause was asked from him. The Area Education Officer, Patna Sadar was appointed as Conducting Officer of the departmental proceeding and Area Education Officer, Dhanarua II was appointed as Representing Officer for the proceeding. Four charges were framed against the petitioner, out of which two charges were specifically related to non production of the bills of payment of arrears of salary of Kumari Gayatri. These two charges were non-existent because Kumari Gayati had been paid her arrears of salary vide two bank drafts and the 5 same was acknowledged by her. Petitioner’s case is that the memo of charges dated 18.6.2004 were served on the petitioner but the Conducting Officer never fixed any date for hearing of the matter in the departmental enquiry. Without giving any opportunity to the petitioner vide letter No. 144 dated 4.3.2005 the Inquiry Officer without taking into consideration any explanation given in the show cause submitted by the petitioner, an inquiry report was submitted in a most mechanical manner. Thereafter relying upon the enquiry report, major punishment of withholding one increment with cumulative effect was inflicted upon the petitioner vide memo no. 2706 dated 5.7.2005. Counsel for the petitioner submits that different categories of punishments to be inflicted in a departmental proceeding have been mentioned under Rule 21 of the Disciplinary Rules, 2002. The punishment of 6 withholding of increment with cumulative effect has been placed under the category of major punishment. Rule 21(4) clearly indicates that before inflicting major punishment, the District Superintendent of Education shall serve copy of the enquiry report submitted by the Inquiry Officer to the delinquent Headmaster/teacher for asking second show cause on the point of punishment. Rule 21(5) further clarifies that the District Superintendent of Education shall give his own opinion on the second show cause reply of the delinquent employee and will submit entire record before the Deputy Development Commissioner, who is the competent authority for inflicting major punishment. Rule 21(6) indicates that order of major punishment awarded by the Deputy Development Commissioner shall be communicated by the District Superintendent of Education and its compliance shall be 7 placed in the meeting of the District Education Establishment Committee for approval. In the present case none of these procedure provided under rules were followed. The impugned order of major punishment was passed in violation of the statutory rules. The order of punishment was passed by the District Superintendent of Education, instead of Deputy Development Commissioner as provided under Rule 21(6) of the Rules. The D.S.E.. is simply a communicating authority but in the present case the D.D.C. delegated this power to DSE in violation of the Rules. Counsel for the petitioner submits that the appeal preferred by the petitioner before the Divisional Commissioner vide Service Appeal No. 63 of 2005 was initially heard by the Divisional Commissioner but instead of deciding the appeal, he transferred the memo of appeal to the Deputy Development Commissioner for hearing. The Deputy 8 Development Commissioner, issued notice to the petitioner for hearing of the service appeal. The petitioner also appeared and gave his explanation but the DDC instead of deciding the appeal, transferred it to the DSE, Patna for passing an order. The DSE being the disciplinary authority could not have been acted as an Appellate Authority. In the present case the DSE has passed the order in the appeal upholding punishment inflicted by himself vide memo no. 2706 dated 5.7.2005. Counter affidavit has been filed on behalf of the District Superintendent of Education, Patna, Respondent no.6. In the counter affidavit, the allegation made by the petitioner regarding non-supply of the enquiry report in the departmental proceeding and not giving any opportunity to second show cause as provided under the Rule, has not been denied. It has simply been stated that the Inquiry Officer, who inquired into the matter, 9 after proper inquiry and after giving opportunity of hearing submitted inquiry report. During the course of enquiry the charges levelled against the petitioner were found proved. It has also been stated that the DDC, Patna, who is the Chairman of the District Establishment Committee has awarded punishment of withholding one annual increment of the petitioner with cumulative effect. It has been admitted that the appeal preferred by the petitioner before the Divisional Commissioner, Patna was transferred to DDC, Patna, but it has been stated that appropriate order, in accordance with law was passed by the D.D.C. There is no specific averment in the counter affidavit, so far the allegation made by the petitioner regarding the violation of Rule 21(4) (5) (6) and Rule 23 of the Disciplinary Rule is concerned. It has not been stated in the counter affidavit that the enquiry report was furnished to the 10 petitioner. There is no averment regarding issuance of second show cause notice to the petitioner. It has also not been submitted that the statement of the petitioner regarding passing order in appeal by the DSE is incorrect. Counsel for the petitioner has submitted that it is a settled law that a delegatee cannot delegate power to any one. Under Disciplinary Rule 2002 the power to hear appeal, under Rule 23 has been delegated to the Divisional Commissioner. There is an admission in the counter affidavit that Divisional Commissioner had transferred the matter to the Deputy Development Commissioner to pass appropriate order in the appeal. The Appellate order Annexure-8 shows that even DDC did not pass the order but the order was passed by the District Superintendent of Education, Patna. Being the disciplinary authority inflicting punishment, 11 he could not have passed order in appeal, affirming his own order. The purpose of providing an opportunity to the party in appeal, against the order of punishment has completely been denied on account of illegal exercise of jurisdiction by the District Superintendent of Education. The Appellate authority and the Disciplinary authority being same person, the appellate order was passed in violation of rule of natural justice. Considering the submissions of the parties, it is apparent that the departmental proceeding initiated against the petitioner right from beginning was not conducted, as per the provision under the statutory Rules. There is no statement in the counter affidavit that the petitioner was given opportunity of hearing and considering the evidence, the charges were found to be proved. There is no statement regarding supply of the inquiry report to the petitioner and the second show 12 cause notice before inflicting major punishment. For all these reasons, I find that the order of punishment contained in Memo no. 2706 dated 5.7.2005 inflicted upon the petitioner as a result of conclusion of the departmental proceeding and the Appellate order passed by the same authority i.e. the District Superintendent of Education, Patna contained in memo no. 896 dated 14.3.2009 are fit to be quashed. Both the orders are quashed. The matter is remanded for fresh inquiry for the same charges framed vide memo of charge dated 18.6.2004. Petitioner must be given opportunity to participate in the departmental proceeding. Enquiry report must be furnished to him and observing all formalities as provided under Bihar Nationalized Elementary School Teachers ( Transfer and Disciplinary Action) Rules, 2002 the departmental 13 proceeding be concluded within a period of six months from the date of communication of this order. The writ application stands allowed. (Mridula Mishra,J.) A.kumar