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
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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.
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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
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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.)