Patna High Court
Kalp Nath Pandey vs The State Of Bihar And Ors on 8 January, 2024
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.21923 of 2013
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Kalp Nath Pandey, Son Of Late Raghvendra Pandey, Resident of Village-
Mundipur, P.O.- Huleshra, P.S. - Bhagwanpur Hat, District- Siwan, Retired
Head Master, Government Basic School, Siswania, District - Gopalganj
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Human Resources
Development Department (Primary Education) New Secretariat, Patna.
2. The Director, Human Resources Development Department (Primary
Education), New Secretariat, Patna
3. The District Magistrate, Gopalganj
4. The Sub-Divisional Officer, Gopalganj
5. The Regional Deputy Director, Saran Division, Chapra
6. The District Education Officer, Gopalganj
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Mahesh Narayan Parbat, Sr. Advocate
Mr. Praveen Prabhakar, Advocate
For the State : Mr. Sanjay Parasmani, AC to GP-4
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CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
Date : 08-01-2024
1. Heard learned Senior Counsel for the petitioner and
learned counsel for the respondents.
2. The petitioner has filed the instant application for
the following relief(s):-
"1.(a) To issue a writ of certiorari for quashing
the office order as contained in memo no. 6/75-
14/2003 dated 2.8.2003 (Annexure- 6), issued by the
Director, Primary Education, through which the
petitioner has been awarded punishment of
withholding of his amount of gratuity and 10% of
Patna High Court CWJC No.21923 of 2013 dt.08-01-2024
2/9
pension permanently having found him guilty in
alleged departmental proceeding initiated against
him.
(b) To issue a further writ of certiorari for
quashing the office order as contained in memo no.
472 dated 4.8.2003 (Annexure-7), issued by the
District Education Officer, Gopalganj, through
which the amount of gratuity of petitioner has been
adjusted in compliance of aforesaid order dated
2.8.2003
.
(c) To issue a further writ of mandamus,
commanding the respondents not to withhold 10% of
pension of petitioner and not to recover an amount
of rupees 2,50,000/- from his amount of gratuity by
way of punishment, dehors the rules, without holding
any proper inquiry or departmental proceeding in
this regard.
(d) To issue a writ of mandamus commanding
the respondents to discharge their legal obligation to
pay the dues arrear of salary of petitioner for the
period in between 1992 to 30.4.1998 as applicable
time to time, arrears of difference of revised salary
for the period in between 1.4.1996 to 30.4.1998,
Dearness Allowance at the rate of 45% since
1.5.1998 till date and also subsistence allowance of
suspension period, after deducting the ad-hoc
payments made in these regards, which have not
been paid to him in illegal and arbitrary manner
after revocation of his suspension yet.
(e) To issue further writ of mandamus
commanding the respondents to pay the deducted
amount of gratuity and 10% of pension of petitioner
Patna High Court CWJC No.21923 of 2013 dt.08-01-2024
which have been deducted in wholly illegal and
arbitrary manner.
(f) To issue further writ of mandamus
commanding the respondents to pay the entire dues
amount of salary and dues amount of gratuity and
pension of the petitioner aforesaid along with
interest at the rate of 18% per annum since the date
the amounts have become due, till the date of their
respective payments.
(g) To any other relief or relief's for which the
petitioner may be found entitled to."
3. The case of the petitioner in brief is that while
posted as the Headmaster in Government Basic School,
Siswania, District Gopalganj in the year 1993, as a result of a
conspiracy he was made an accused in Uchakagaon P.S. Case
no.33 of 1993 registered under sections 409, 467, 468, 471 and
420 of the Indian Penal Code. The allegations levelled against
the petitioner was that he allowed teachers appointed on the
basis of forged and fabricated appointment letters to join the
school on posts in excess of the sanctioned strength and as a
result of the amount dispersed by way of salary to them etc, a
total sum of Rs.3,74,112.63/- was defalcated.
4. Learned Senior Counsel for the petitioner submits
that the petitioner was proceeded against both departmentally as
also in the criminal case. So far as the criminal case is
Patna High Court CWJC No.21923 of 2013 dt.08-01-2024
concerned, the same ended in acquittal of the petitioner by
judgment and order dated 21.12.1996 passed by the learned
Judicial Magistrate, Ist Class, Gopalganj in Trial no.334 of 1996.
Even the appeal preferred against the said judgment of acquittal
by the State of Bihar was dismissed by this Court on 2.8.2011
(Annexure-8).
5. So far as the departmental proceeding is concerned,
it is submitted by learned Senior Counsel appearing for the
petitioner that as would be evident from the inquiry report
contained in Annexure-4 to the writ application, on the
petitioner submitting his response before the Inquiry Officer,
neither the District Education Officer nor any other person
appeared before the Inquiry Officer in the departmental
proceeding to substantiate the charges levelled against the
petitioner. As such, the Inquiry Officer in his inquiry report
came to the categorical finding that the respondents had been
unable to prove the charges levelled against the petitioner.
6. In reference to the order dated 21.8.2002
(Annexure-5) learned Senior Counsel for the petitioner submits
that on the petitioner retiring from service on 30.4.1998, the
departmental proceeding was converted into a proceeding under
Rule 43(b) of the Bihar Pension Rules. It is further submitted
Patna High Court CWJC No.21923 of 2013 dt.08-01-2024
that inspite of the inquiry report (Annexure-4) not finding the
charges against the petitioner to have been proved, the
respondent Director, Primary Education came out with an order
of punishment dated 2.8.2003 (Annexure-6) directing for
recovery of a total sum of Rs.2.5 lacs from the petitioner by
adjusting the same from the amount payable to the petitioner
under the head of gratuity as also for permanent deduction of
10% of the pension payable to the petitioner.
7. Learned Senior Counsel appearing for the petitioner
submits that the Inquiry Officer in the inquiry report having
found that the charges against the petitioner were not proved,
the respondent authorities differing with the contents of the
inquiry report issued a second show-cause notice to the
petitioner to which he submitted his reply. It is submitted from
the contents of the inquiry report, that none of the respondent
authorities appeared before the Inquiry Officer to prove the
charges and thus there was no material whatsoever in support of
the charges levelled against the petitioner. The order of
punishment impugned herein is bad in law as also in facts and
fit to be set aside.
8. In response, learned counsel for the respondents
submitted that the Inquiry Officer in the inquiry report found the
Patna High Court CWJC No.21923 of 2013 dt.08-01-2024
charges against the petitioner to have been proved and it was
only on humanitarian grounds that he recommended that the
petitioner be let off. So far as the criminal case is concerned, it
was submitted that the level of proof required in a criminal case
compared to that required in the departmental proceeding are
different and as such, no weight should be given to the acquittal
of the petitioner in the criminal case so far as the departmental
proceeding is concerned.
9. Having heard learned counsel and having perused
the material on record, at the outset it may be mentioned here
that by order dated 9.10.2023, the State respondents were
directed to produce the original file relating to conduct of the
departmental proceedings with respect to the petitioner.
10. The original records were not produced instead a
counter affidavit and a supplementary counter affidavit was filed
on behalf of the respondents stating therein that the file has been
misplaced and for the same an FIR has been registered as
Sachiwalaya P.S. Case no. 157 of 2023 on 7.11.2023.
11. From the material on record, it transpires that the
petitioner was proceeded against departmentally, as stated above
and an inquiry report was submitted by the Sub-Divisional
Officer, Gopalganj as contained in his letter dated 7.9.2001
Patna High Court CWJC No.21923 of 2013 dt.08-01-2024
(Annexure-4). From perusal of the same it clearly transpires that
the charges levelled against the petitioner in the departmental
proceeding were not proved.
12. During pendency of the departmental proceedings,
the petitioner having retired from service on 30.4.1998, the
proceedings were converted into a proceeding under Rule 43(b)
of the Bihar Pension Rules. The proceedings ended in an order
of punishment dated 2.8.2003 (Annexure-6) imposing the
punishment for recovery of Rs.2.5 lacs from the petitioner as
also permanent deduction of 10% of his pension.
13. Having gone through the material on record, this
Court is of the opinion that the respondent Inquiry Officer
having come to the finding that charges against the petitioner
were not proved, the respondents in case they differed with the
inquiry report were not only required to give a show-cause
notice to the petitioner stating the material and the reasons for
their differing with the inquiry report, but in case they did not
find the reply of the petitioner to be satisfactory, they were
required to narrate in detail the facts and material available with
them in the order of punishment. The order of punishment does
not deal with any of the relevant facts, the reason for the
authority differing with the inquiry report, the response of the
Patna High Court CWJC No.21923 of 2013 dt.08-01-2024
petitioner nor the reason as to why the petitioner's reply was not
found to be satisfactory. The order of punishment only states
that the charges of illegally accepting of joining of teachers and
payment of salary to them is proved and the order of
punishment is passed.
14. This Court further finds that it has been stated in
the order of punishment that the Inquiry Officer in his inquiry
report, exonerated the petitioner on humanitarian grounds in the
departmental proceeding. This in the opinion of the Court is
clearly an error of record and is not borne out from the contents
of the inquiry report as contained in Annexure-4.
15. Having perused the material on record, this Court
finds that for the aforesaid reasons, the order of punishment is
illegal and not sustainable. Accordingly the order of punishment
dated 2.8.2003 passed by the Director, Primary Education as
contained in Annexure-6 to the writ application is hereby set
aside with all consequential benefits.
16. The petitioner shall be paid full salary for the
period that he was kept under suspension till the date of his
retirement and full pension thereafter. The total dues shall be
calculated and paid to the petitioner within a period of three
months from today failing which the respondents shall pay cost
Patna High Court CWJC No.21923 of 2013 dt.08-01-2024
of Rs.10,000/- and simple interest on the total dues at the rate of
6% p.a. from today till the date of payment.
17. The writ application stands allowed.
(Partha Sarthy, J)
avinash/-
AFR/NAFR
CAV DATE N/A
Uploading Date 09.01.2024
Transmission Date N/A
