IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.3644 of 2007
Devendra Prasad Yadav, son of Sri Shital Prasad Yadav, resident of
Village Kalyanpur, P.S. K. Nagar, Dist. Purnia.
-------- Petitioner
Versus
1. The State of Bihar.
2. Divisional Commissioner, Purnia Division, Purnia.
3. District Officer, Purnia.
4. District Superintendent of Education, Purnia.
5. Circle Officer, Purnia East Anchal, Purnia.
6. Area Education Officer, Purnia.
7. Block Education Extension Officer, East Block, Sadar, Purnia.
------- Respondents
-----------
For the Petitioner :- Mr. Pankaj Kumar Sinha, Adv.
Mr. Kamal Kishore Jha, Adv.
For the State :- Mr. Rajeev Kr. Singh, G.P.15
Mrs. Sunita Kumari, AC to G.P.15
———-
2 12.08.2011 Heard learned counsel for the
petitioner and counsel for the State.
The prayer of the petitioner in this
writ application to quash the order of
punishment dated 17.11.2003 and the appellate
order dated 20.10.2006 is based on a simple
and plain premises that even when the
petitioner was exonerated by the Enquiry
Officer in his enquiry report dated
13.6.2003, the resultant order of punishment
was passed either without differing with the
findings of the enquiry report and also
giving him notice and/or an opportunity of
hearing. Learned counsel for the petitioner
has also assailed the appellate order by
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taking a plea that this vital aspect was not
at all gone into by the appellate authority
who had some how read between the lines in
the show cause reply filed by the petitioner
for treating them as his admission that he
was unauthorisedly absent from duty in
afternoon on 7.4.2003.
Learned counsel for the State on the
other hand has supported the view taken by
the appellate authority, the Commissioner of
Purnia Division affirming the order of
punishment by pointing out that it was an
admitted position that the petitioner had
left the school on 7.4.2003 after luncheon
interval without taking any permission from
his controlling authority and, therefore,
once he was found to be absent in the
surprise inspection of the Collector of the
district, the order of punishment could not
be interfered only on account of the charge
being not found to have been proved by the
Enquiry Officer.
In the considered opinion of this
Court, neither the appellate authority nor
the counsel can be permitted to make out a
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third case, inasmuch as, in any disciplinary
enquiry, the procedure laid down has to be
followed. Such procedure ofcourse does not
contemplate that the report of Enquiry
Officer would be binding on the disciplinary
authority but, at the same time, if the
Enquiry Officer had fully exonerated the
petitioner by recording the following
conclusive finding:-
“vr% izkIr Li”Vhdj.k rFkk ZLFkkuh; tkWp ,oa iwN&rkN ds
vk/kkj Jh ;kno] lgk;d f’k{kd ds mij yxk;k x;k vkjksi rF;ghu]
fujk/kkj rFkk lR;rk ls ijs gSA pwfW d os e/;kUrj esa osrukfn Hkqxrku
ysus gsrq lec) fo|ky; genk vk;s gSa ftldh iqf”V lEc) fo0 ds
iz/kkuk/;kid }kjk fyf[kr :i esa fd;k x;k gSA”
and the same was sought to be differed by the
Collector of the district, the disciplinary
authority, he had to issue a show-cause
notice disclosing the reasons for his
difference of opinion and only thereafter, he
could have proceeded to pass an order of
punishment after considering the show-cause
reply filed by the petitioner. The law in
this regard stands settled in the judgment of
the Apex Court in the case of Punjab National
Bank & Ors. Vs. Kunj Behari Misra reported in
1998(7)SCC 84.
Admittedly the disciplinary
4
authority had never issued any show cause
notice to the petitioner before passing the
impugned order of punishment as is apparent
from the materials on record. Thus the
impugned order of punishment is in violation
of principles of natural justice as also in
teeth of law laid down by the Apex Court in
the case of Kunj Bihari Mishra (supra). Since
this vital aspect going to the root of the
matter has also been considered by the
appellate authority, who has curiously gone
into the merit of the charge, the appellate
order can also not be sustained in law.
Accordingly, both the order of
punishment dated 17.11.2003 and the appellate
order dated 20.10.2006 are hereby quashed.
Since the petitioner has already retired from
service, there would be no occasion for this
Court to remit the matter back to the
disciplinary authority for proceeding from
the stage of service of show-cause notice
after submission enquiry report and
accordingly, this Court would also direct the
District Programme Officer, Purnia to make
payment of full salary for the period of
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suspension of the petitioner as also refund
the amount of one increment which the
petitioner had been deprived by way of
undergoing the consequence of the impugned
order of punishment.
With the aforementioned
observations, this application is allowed.
(Mihir Kumar Jha, J.)
Rsh