Vibha Kumari vs The State Of Bihar & Ors on 30 September, 2011

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Patna High Court – Orders
Vibha Kumari vs The State Of Bihar & Ors on 30 September, 2011
                       IN THE HIGH COURT OF JUDICATURE AT PATNA
                             Civil Writ Jurisdiction Case No.4252 of 2007
                   Vibha Kumari Wife of Shri Ashok Kumar Sharma, Resident of
                   Village Dharampur, P.S. and District Vaishali ...         Petitioner
                                                  Versus
                   1. The State Of Bihar through Chief Secretary
                   2. Secretary, Primary & Mass Education, Government of
                      Bihar, Patna
                   3. Director (Administration)-cum- Deputy Secretary,
                      Secondary, Primary and Adult Education, Government of
                      Bihar, Patna               ...                   ... Respondents
                                     ----------------------------------

For the Petitioner :M/s Manoj Kumar Ambastha &
Uday Pratap Singh, Advocates
For the State :Mr. Avanindra Kumar Jha, AC to G.P.-18

03/ 30.09.2011 Heard learned counsel for the petitioner

and the State.

2. At the relevant time, petitioner served

as District Superintendent of Education, Buxar. By

the impugned notification, bearing Memo No. 535

dated 9.9.2004, Annexure-1, she has been inflicted

with punishment of censure and non-payment of

full salary beyond the subsistence allowance during

the period of suspension in the light of the enquiry

report dated 20.10.2003, Annexure-5 wherefrom it

appears that petitioner was proceeded against for

eight charges and she has been exonerated of the

seven charges, but held partially guilty of charge

no.8 that she accepted the joining of the two
2

teachers who were under unauthorized absence

without the approval of the District Magistrate or

the Education Establishment Committee.

3. It is submitted on behalf of the

petitioner that as she has been exonerated of the

seven charges levelled against her and found

partially guilty of charge no.8 only, she should

have been paid full salary for the suspension

period. In this connection, it is further pointed out

that from the enquiry report itself, it will appear

that the defence of the petitioner that the joining of

the two teachers was accepted under the orders of

the District Magistrate, was accepted by the

Enquiry Officer, yet petitioner has been held

partially guilty of the said charge as the joining of

the two teachers was to be accepted only for the

purposes of subjecting them to departmental

proceeding, but petitioner allowed them to

discharge the duties of teacher after accepting their

joining, which was held to be a procedural mistake

and in appreciation of such fact, full salary ought to

have been released for the suspension period.
3

4. As the petitioner has been found

partially guilty of charge no.8 levelled against her,

before proceeding to withhold the salary beyond

the subsistence allowance, the authorities should

have issued notice under sub-rule (2) of Rule 97 of

the Bihar Service Code and considered her

response to such notice.

5. Accordingly, I set aside paragraph

no.2 of the impugned notification dated 9.9.2004,

Annexure-1 directing the Director (Administration)

to issue notice to the petitioner to show cause as to

why her salary beyond the subsistence allowance

for the period of suspension be not withheld and

after considering her response, pass appropriate

order in the matter. Notice in compliance of this

order be issued to the petitioner as early as

possible, in any case within two months from the

date of receipt/ production of a copy of this order

before the Director (Administration) and

appropriate final order be passed within a

reasonable time of the receipt of the reply, which

the petitioner should file within two weeks of the
4

receipt of the notice. While considering the show

cause reply, the authorities should consider the fact

that Collector while directing the petitioner to

accept the joining of the two teachers never asked

the petitioner that the joining of the two teachers is

to be accepted for the limited purpose i.e. for

subjecting them to departmental proceeding. If that

was the intention, Collector should have clarified

in his order that after accepting the joining of the

two teachers, their joining report be put up for

further orders.

6. The writ petition is, accordingly,

disposed of.

Arjun/                                     ( V. N. Sinha, J.)
 

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