DR. ARUN KUMAR v. The State Of Bihar

Patna High Court CR. WJC No.769 of 2019(5) dt.06-04-2023

9. The Officer-In charge, Bahadurpur Police Station, Patna. The Investigation officer of Bahadurpur P.S.- Case No. 62 of 2019, Bahadurpur Police Station, Patna. The Bihar School Examination Board, Patna through its Secretary. The Chairman, Bihar School Examination Board, Patna.

10. The Secretary, Bihar School Examination Board, Patna.

11. The Joint Secretary- Cum- Examination Controller, Bihar School Examination Board, Patna.

12. The District Education Officer, Patna.

13. The Chancellor, Universities of Bihar, Raj Bhawan, Patna.

14. The Patliputra University, Kankarbagha, Patna, District- Patna, through its Registrar.

15. The Vice- Chancellor, Patliputra University, Kankarbagh, Patna, District- Patna.

16. The Registrar, Patliputra University, Kankarbagh, Patna, District- Patna.

17. The Principal, A.N. College, Boring Road, Patna.

18. The Principal , B.D. College, Mithapur, Patna.

19. The Principal, J.D. Women's College, Bailey Road, Patna Bihar

20. The Principal, B.S. College, Danapur, Patna, Bihar.

21. The Principal, Mahila College, Khagaul, Patna Bihar.

22. The Principal, M.D. College, Naubatpur, District- Patna. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s For the Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR Mr. Navin Prasad Singh Mr. Prabhat Kumar Verma : : 5 06-04-2023 Heard learned counsel for the parties. ORAL ORDER This application has been filed for quashing of the F.I.R. vide Bahadurpur P.S. Case No. 62 of 2019 registered under section 10 of the Bihar Conduct of Examination Act, 1981. The present F.I.R. has been lodged on the basis of written complaint of the District Education Officer, Patna dated Patna High Court CR. WJC No.769 of 2019(5) dt.06-04-2023

06.03.2019. The allegation in the written complaint are as under:- “mi;qZDr fo’k;d fcgkj fo|ky; ijh{kk lfefr iVuk }kjk bUVjehfM,V okf’kZd lS)kfurd ijh{kk 2018 ds O;ogr mRrj iqfLrdk ewY;kadu dk;Z fnukad 06-03-2018 ls izkjaHk gSA mDr dk;Z gsrq mPp ek/;fed@fo|ky; ds f”k{kd ,oa f”kf{kdkvksa dks iz/kku ijh{kd ,oa lg ijh{kd fu;qDr fd;k x;k gSA ewY;kadu dsUnz ewY;kadu dk;Z ds fy, fu;qDr dqN f”k{kdksa }kjk ewY;kadu dk;Z dk cfg’dkj ;k ;ksxnku lefiZr ugha fd;k x;k gSA ftlds dkj.k ewY;kadu dk;Z izHkkfor gqvk gSA KkrO; gS fd ijh{kk fu;a=d] mPp ek/;fed fcgkj fo|ky; ijh{kk lfefr] iVuk dk i=kad 182 fnukad 16-03-2018 ds }kjk fo’k;kafdr ijh{kk ds o;og`r mRrj iqfLrdk ds fy, fu;qDr fd;s x;s lg&ijh{kd ,oa iz/kku ijh{kd dks lEcfU/kr ewY;kadu dsUnz ij ;ksxnku ugha nsus okys oSls lg&ijh{kd ,oa iz/kku ijh{kd ds fo++#) fcgkj ijh{kk lapkyu vf/kfu;e 1981 ds lqlaxr izko/kku ds vUrxZr izkFkfedh ntZ djus dk funs”k gSA ewY;kadu dsUnz funs”kd ckadhiqj] jktdh; xYlZ gkbZ Ldwy] iVuk] “kghn jktsUnz izlkkn flag jktdh; gkbZ Ldwy] xnZuhckx] iVuk] dkyst vkWQ dkWelZ vkV~lZ ,.M lkbZal iVuk] iVuk dkysft,V Ldwy] iVuk] ch0,u0 dkWysft,V Ldwy iVuk] rFkk cynso mPpfo|ky; nkukiqj ds }kjk iz/kku ijh{kd ,oa lg&ijh{kd ds ewY;kadu dsUnz ij ;ksxnku ugha djus dh lwpuk izkIr gqbZ gSA vr% ewY;kadu dsUnz funs”kd }kjk izkIr lwpuk ds vk/kkj ij i= ds lkFk layXu ewY;kadu dsUnz ij ;ksxnku ugha djus okys iz/kku ijh{kd ,oa lg&ijh{kd ds fo#) fcgkj ijh{kk lapkyu vf/kfu;e 1981 ds lqlaxr izko/kku ds vUrxZr izkFkfedh ntZ djus dh d`ik dh tk;A^^ The sum and substance of the allegation against the petitioners are that for evaluation of answer books of intermediate examination the petitioners and others were Patna High Court CR. WJC No.769 of 2019(5) dt.06-04-2023 appointed as Head Examiners and Assistant Examiners. However, some of the teachers, who were appointed for carrying on evaluation work did not report, as a result of which the evaluation work has been effected. Therefore, the present F.I.R. has been lodged against the teachers who have not reported for duty. Learned counsel for the petitioners submit that in the year 2018 an F.I.R. has been lodged against some of the teachers with the same allegation as has been alleged in the present F.I.R. and a co-ordinate Bench of this Court vide judgment dated

27.08.2018 passed in Cr. WJC No. 1112 of 2018 and other analogous cases quashed the said F.I.R. He further submits that this case is squarely covered by the aforesaid judgment of the co- ordinate Bench of this Court. Learned counsel for the Bihar School Examination Board also agrees to the submission of learned counsel for the petitioners. I have considered the submissions of the parties. I have also perused the materials including the judgment dated

27.08.2018 passed in Cr.W.J.C. No. 1112 of 2018 and other analogous cases. From reading of the judgment of the co-ordinate Bench Patna High Court CR. WJC No.769 of 2019(5) dt.06-04-2023 of this Court, it appears that the allegations levelled against the petitioners of the aforesaid cases are similar to the allegations levelled in the present case. It will be relevant to quote paragraphs no. 17 to 24 read as under: “17 Having heard learned counsel for the parties and upon perusal of the records, this Court finds that in the letter dated 22.02.2018 (Annexure-1 to Cr.W.J.C. No. 1112 of 2018), itself, the Controller of Examination had incorporated a stipulation in paragraph-5, which reads as under:- “5. fdlh dkj.ko”k ;fn iz/kku ijh{kd&ijh{kd ds :i esa dh x;h fu;qfDr lohdkj ugh gks] rks mls Bksl ,oa ekU; dkj.k ds lkFk okil dj nsaA”

18. It is also noticed from the letter dated

29.03.2018 written by the District Education Officer, Patna to the Officer Incharge of Bahadurpur Police Station that he was lodging the first information report in terms of the directions issued by the Controller of Examination (Higher Education) as contained in his letter no. 182 dated 16.03.2018. When this Court goes through the letter dated 16.03.2018, it is found that in paragraph-3 of the said letter, which has been quoted hereinabove, the Controller of Examination (Higher Secondary) had clearly stated that the District Education Officer, would take up the matter at his own level and would inform those Head Examiners and Assistant Examiners, who had not participated in the evaluation work to submit their joining Patna High Court CR. WJC No.769 of 2019(5) dt.06-04-2023 immediately so that the evaluation work may be completed on time. There is nothing on record to show that the District Education Officer ever took any step from his own level to inform the petitioners to submit their joining for evaluation work.

19. It also appears from the uncontroverted materials available on record that despite the fact that some of the petitioners were the employees of the Magadh University and some were employees of the Government Colleges, no step was taken either by the controller of examination or by the District Education Officer to contact the head of the Institutions/ Colleges to get them relieved from their respective duties so that they could have participated in the evaluation work. This Court has found and took note of the further uncontroverted facts that the F.I.R. has been lodged against some of the teachers who are Lecturers, Associate Professors and University Professors and their leaves were cancelled due to on-going election.

20. The petitioners in the second writ application being Cr. W.J.C. No.1113 of 2018 have come out with specific stand that they were never served with any information about their appointment as Assistant Examiner or Head Examiner. In the third writ application being Cr. W.J.C. No.1224 of 2018 rather Annexure-4 series have been shown to this Court which have not been denied by the State and the B.S.E.B. Annexure-4 series, which are uncontroverted documents clearly Patna High Court CR. WJC No.769 of 2019(5) dt.06-04-2023 demonstrate that the Professor Incharge of the Institution or the Head of the Institutions have informed the District Education Officer that for reasons such as the scheduled election of the student union or the examination of the B.Ed. to be conducted in these Institutions, it was not possible for them to relieve the petitioners to do the evaluation work. Since Annexure-„4‟ series have remained uncontroverted following four steps tests laid down by the Hon‟ble Supreme Court in the case of Prashant Bharti (supra) , this Court would rely upon the same and accept that what has been shown to this Court demonstrate it is not a case of boycott of the evaluation work, in the opinion of this Court, the District Education Officer and the controller of examination BSEB were not required to act in haste towards lodging of the first information report. It is well said that an action taken in haste itself is an act indicating „malafide‟ in action. It is to be kept in kind that these petitioners are teachers, Assistant Professor and Associate Professor and to put them in the category of an accused by lodging the first information report in haste was not desirable and it could not have been expected from a responsible officer such as the controller of examination (Higher Education) and the District Education Officer.

21. Learned counsel representing petitioners in the second writ application has rightly submitted and this Court would agree with the submission that if the letters of engagement were not served Patna High Court CR. WJC No.769 of 2019(5) dt.06-04-2023 upon the petitioners and if at all the letters were sent to the Institution and the Head of the Institution did not relieve them to participate in the evaluation work, it cannot be said to be a kind of entrustment which has been envisaged under Section 9 of the Act of 1981. The „entrustment‟ of the work of evaluation cannot be taken as Unilateral Act on the part of the authority of the Board, if the Board was of the opinion that some teachers or professors who are working in the Government Colleges or in the colleges under the University are required to be taken for evaluation work, it was incumbent upon the Board to contact the Professor Incharge/ Head of the Institution of the College and the University and only surplus teachers/Professors, who could have been relieved by the Institution or the University as the case may be for such evaluation work could have been engaged for evaluation. Further a retired University Professor cannot be fastened with a criminal liability if he or she did not accept the engagement to act as evaluator. Such engagements may be done only with their prior consent. In the garb of Section 9 of the Act of 1981, the authorities of the B.S.E.B. or the State cannot be allowed to exercise their power unreasonably and arbitrarily. A mere failure to participate in the evaluation work, when there is neither proper entrustment nor there is a prima- facie case of avoidance or boycott cannot invite lodgment of an F.I.R. The District Education Patna High Court CR. WJC No.769 of 2019(5) dt.06-04-2023 Officer in the present case is said to have acted under Sections 9 to 12 of the Act, 1981 which read as under:- “9. Bar to refuse to discharge duties by person concerned entrusted with proper conduct of examination, etc.- Whoever is entrusted with invigilation or supervision or evaluation work of any examination, tabulation, publication of result and any work connected with examination and publication of result shall not refuse to discharge the duties entrusted with.

10. Penalty.- Whosoever contravenes any of the provisions in sections 3 to 9, shall be punished with imprisonment for a term of one month which may extend to six months, or with fine not exceeding two thousand rupees, or with both.

11. Nature of offence and trial.- Offences committed under this Act are cognizable and non- bailable, and Executive Magistrate who is duly and properly authorised, will dispose of the same by summary trial.

12. Investigation of the case.- Cases under the provisions of this Act will be investigated by Patna High Court Cr. WJC No. 1112 of 2018 dt.27-08-201822/25 an officer not below the rank of a Deputy Superintendent of Police.”

22. A bare perusal of the aforesaid provisions would show that according to Section 9 of the Act of 1981 whoever is entrusted with the evaluation work he cannot refuse to discharge the duty so entrusted. In the opinion of this Court, the „entrustment‟ must be taken as some significant Patna High Court CR. WJC No.769 of 2019(5) dt.06-04-2023 action on the part of the person entrusting in the matter of evaluation work of answer sheets, if the „entrustment‟ is being done of a retired university teacher or of a professor in service of a University or College which is not under the command of the Controller of Examination of the B.S.E.B., such entrustment may be done only after doing a prior exercise by obtaining consent of a retired person and/or involving the head of the Institution under whom the person is working. The availability of that person and consent of the employer would be required to be ascertained. Further if entrustment has been done properly, it is only in the case of refusal to discharge the duties Section 9 of the Act of 1981 would be attracted. Unavailability or inability of a person for some valid and bonafide reasons or due to unavoidable circumstances which were beyond his/her control cannot be taken as refusal within the meaning of Section 9 of the Act of 1981 to discharge the duties entrusted him/ her. This would be the only reason why paragraph 5 of the letter Patna High Court Cr. WJC No.1112 of 2018 dt.27-08-2018 23/25 dated

22.02.2018 and Regulation 16 of the Regulation of 1964 provide that if a person is unable to discharge his duty he/she will inform the same. In the facts of the present case what has transpired is that the petitioner in the first case had certain health issue, she had informed the Health Examiner in this regard by Speed Post and her representation remained pending without Patna High Court CR. WJC No.769 of 2019(5) dt.06-04-2023 rejection. If this is the position, apart from the fact that it was not a case of proper entrustment it cannot be said to be a case of refusal on her part in carrying the evaluation work.

23. In the second case being Cr.W.J.C. No. 1112 of 2018, the petitioners have shown that they were not served letter of appointment or entrustment and these facts have not been denied by the State or the District Education Officer or the Board and, therefore, this Court would accept the same. If it is a case of no entrustment, Section 9 of the Act of 1981 would again not be attracted. These petitioners have stated in the writ application that they have shown that how they were working under their employer during this period. Thus, apart from the fact that there was no proper entrustment, again it cannot be said that these petitioners had refused to discharge the duties.

24. The petitioners in Cr. W.J.C. No.1224 of 2018, as stated above have come out with a categorical case on the strength of uncontroverted Annexure-„4‟ series, this Court has also discussed the same hereinabove. The Stand of Magadh University which has been taken note of above is also significant. The university had cancelled leave of all the teachers including those petitioners working with the University, during 05.03.2018 to 17.03.2018. In all these cases, the Court is satisfied that the first information report lodged against these petitioners is only an abuse of the process of the Patna High Court CR. WJC No.769 of 2019(5) dt.06-04-2023 judicial system and if first information report is allowed to exist it would be a sheer tool of harassment against them. Apparently, no case of avoidance or boycott of evaluation work could be made out against these petitioners. It is to be kept in mind that these petitioners are not criminals rather they are engaged in imparting education in the Educational Institutions and the manner in which the first information report has been lodged implicating hundreds of teachers in one go does not indicate well about the reasonableness on the part of the authorities of the State and the Board, they have acted in haste is also evident from the uncontroverted materials. The respondents have not denied that even dead person like Shima Sahin has been made accused in the F.I.R. The retired old aged Professors like petitioner nos.1 and 2 and many others have been made accused in like manner. Further it is found that the offence under Section 10 of the Act of 1981 has been made punishable by way of imprisonment up to 6 months but power has been vested with the Executive Magistrate to try the offence. This is not permissible being in complete conflict with the provision Section 3(4)(a) of the Code of Criminal Procedure, 1973. These are other reasons which necessitate quashing of the entire F.I.R. to secure ends of justice.” For the reasons mentioned in the order dated

27.08.2018 passed in Cr.WJC No. 1112 of 2018, this application Patna High Court CR. WJC No.769 of 2019(5) dt.06-04-2023 is allowed with regard to the petitioners only. In the result, the F.I.R. being Bahadurpur P.S. Case No.62 of 2019 dated 29.03.2018 under Section 10 of the Act of 1981 is hereby quashed. (Sandeep Kumar, J) Ranjeet/- U T