Nitu Singh v. The State of Bihar

Judgment

#1. The State of Bihar

#2. Additional Chief Secretary, Education Department, Government of Bihar, Patna.

#3. Principal Secretary, Education Department, Government of Bihar, Patna.

#4. Director, Secondary Education, Education Department, Budh Marg, Patna.

#5. Regional Deputy Director of Education, Koshi Division, Saharsa.

#6. District Magistrate, Supaul.

#7. Additional District Magistrate, Supaul.

#8. Deputy Collector Land Reforms, Supaul.

#9. District Education Officer, Supaul.

#10. District Program(Establishment) Officer, Supaul. ... ... Respondents ====================================================== Appearance : For the Petitioner/s : For the Respondent/s : Mr. Abhinav Srivastav, Advocate Mr. Ravi Ranjan, Advocate Mr. Madhaw Prasad Yadaw, GP-23 Mr. Arvind Kumar, AC to GP-23 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 27-09-2023 Heard learned counsel for the petitioner and learned counsel for the State.

#2. This writ application has been filed for the following reliefs:- (i) For issuance of an appropriate writ in the nature of certiorari or any other writ in similar nature, for quashing the order issued by Respondent no.4 and contained in memo no. 1324 dated 02-06-2023 whereby and where under he has been pleased to impose a major punishment upon the petitioner reducing her Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 payscale to lowest time scale of pay permanently and also pleased to direct that during the period of suspension, only subsistence allowance will be payable to her during period of suspension. (ii) For issuance of an appropriate writ in the nature of Mandamus or any other writ in similar nature, commanding and directing the Respondent Authorities to pay all consequential benefits after setting aside of said impugned punishment order. (iii) For issuance of an appropriate writ in the nature of certiorari or any other writ in similar nature for quashing the direction contained in letter no. 1357 dated 06-06-2023 whereby and where under the Respondent no.4 has directed Respondent no.5 to transfer the writ petitioner from Government Babujan Bisheshwar Girl higher secondary School (+2), Supaul to Shitalmani +2 Higher secondary school, Barhara, Manoharpatti, Supaul and also for quashing the consequential order issued under the signature of Respondent no.5 and contained in memo no. 657 dated 7-06-2023 on the ground that said transfer orders are thoroughly illegal and against the statutory provisions. (iv) For issuance of an appropriate writ in the nature of certiorari or any other writ in similar nature for quashing the show cause issued to the writ petitioner issued by Respondent no. 4 and contained in letter no. 1343 dated 05-06-2023 whereby and where under she has been asked to render show cause on certain allegations on the ground that not only said charges levelled against her are baseless but also illegal. (v) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner is entitled under the facts and circumstances of the case. Case of the petitioner

#3. The petitioner is aggrieved by and dissatisfied with the office order as contained in Memo No. 1324 dated 02.06.2023 passed by the Director (Secondary Education), Bihar, Patna whereby and whereunder the petitioner has been served with a major punishment by placing her to the minimum of the time scale of pay pursuant to a disciplinary proceeding initiated against her in accordance with the Bihar Government Servants (Classification,

Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 Control & Appeal) Rules, 2005 (hereinafter referred to as the ‘Service Rules’). She is also aggrieved by the order transferring her from Government Babujan Bisheshwar Girls Higher Secondary (+2) School, Supaul to Shitalmani (+2) Higher Hecondary School, Barhara, Manoharpatti, Supaul.

#4. Mr. Abhinav Shrivastava, learned counsel assisted by Mr. Ravi Ranjan, learned Advocate submits that the entire disciplinary proceeding conducted against the petitioner is in complete contravention of and in conflict with the procedures as contained under Rule 17 of the Service Rules. Learned counsel has specifically submitted with reference to the statements made in paragraph ‘61’ of the writ application that in this case the disciplinary authority has passed the order of punishment on the direction of the Minister-in-charge of the Department and there is an involvement of the Principal Secretary/Additional Chief Secretary as well in the mater of passing of the impugned order, therefore the petitioner has not only been punished at the instance of the Minister-in-charge of the Department but even the right to appeal of the petitioner has been taken away.

#5. Learned counsel has drawn the attention of this Court towards the memo of charge as contained in Annexure ‘P5/1’ and the supplementary memo of charge contained in Annexure ‘P9’ to Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 the writ application. Learned counsel submits that the first charge against the petitioner was that of insubordination and indiscipline but not a single instance of indiscipline or insubordination could be sighted as no imputation of allegation was served upon the petitioner. It is submitted that the petitioner was served with a charge that she had interfered with her service book and three different service books were maintained but in course of inquiry those three separate service books were never produced, in fact it was found that there was only one service book and the two were the xerox copies of the same.

#6. Learned counsel has submitted that the husband of the petitioner is a RTI Activist based in Supaul district and has been committed to the cause of corruption which has put numerous corrupt officials in trouble and that has resulted in lodging of criminal cases as also imposition of punishment on those erring officials.

#7. It is submitted that from the materials present on the record it would appear that in fact the then District Programme Officer (Establishment), Supaul was also subjected to vigilance inquiry which led to lodging of two FIRs. It is contended that for all these reasons the present petitioner has been subjected to the present proceeding on a completely frivolous kind of charge. Patna High Court CWJC No.10101 of 2023 dt.27-09-2023

#8. Learned counsel submits with reference to the documents enclosed with the supplementary affidavit filed by the petitioner that the official file of this case was called by the Minister-in-charge of the Department. Earlier, as back as

02.09.2022, the file was moved by the Department to the Additional Chief Secretary, Department of Education. On perusal of the office notes it would appear that the Additional Chief Secretary has proposed to pass an order of punishment of stoppage of two increments with non-cumulative effect. The Minister-in- charge was aware of the fact that the petitioner had filed a writ application bearing no. 10952 of 2016 which according to the learned counsel for the petitioner was a different case but the Minister had posed a question as to whether the decision as proposed would be affected by the judgment of the Court or not. Thereafter the notes were again placed and it moved through the Joint Director (Secondary Education) to the Director (Secondary Education), went to the Additional Chief Secretary and ultimately the file was placed before the Minister-in-charge.

#9. Learned counsel points out from the documents on the record that the Minister himself observed that the petitioner should be transferred to another place because her continuance in the school concerned would create uncongenial educational Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 atmosphere in the school and it would be difficult to maintain sanctity of the service book and sacredness.

#10. It is submitted that in case of the petitioner, the Director (Secondary Education) is the Disciplinary Authority but from the records it would appear that the Minister of the Department was himself writing/issuing directions to all concerned as to what should be done or what should not be done. On

28.05.2023, the Additional Chief Secretary of the Department directed to place the file before the Minister of the Department to take a view on the quantum of punishment. It is submitted that it is only after approval by the Minister as to the quantum of punishment, the impugned order under Rule 14(vii) of the Service Rules has been issued. It is submitted that in fact the Minister of the Department had himself endorsed the punishment proposed at page 119-120/n in the concerned file.

#11. Relying upon the judgment of the Hon’ble Supreme Court in the case of Purtabpore Co. Ltd. versus Cane Commissioner of Bihar and Others reported in AIR 1970 SC 1896, learned counsel submits that a statutory power which has been conferred upon the Director (Secondary Education) has been completely abdicated and the impugned order has been passed on the direction of the Minister of the Department which is not Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 proper. Learned counsel submits that in terms of the judgment of the Hon’ble Supreme Court, the Executive Officers entrusted with the statutory discretions are required to exercise their power in accordance with the established procedure, they should perform their duties to exercise their personal judgment in individual cases unless explicit statutory provision is made for them to be given binding instructions by a superior.

#12. Learned counsel has also relied upon the judgment of the Hon’ble Supreme Court in the case of Commissioner of Police Bombay versus Gordhandas Bhanji reported in AIR 1952 SC 16 wherein the Hon’ble Supreme Court struck down the order purported to have been passed by the Commissioner of Police in exercise of his powers under the Bombay Police Act and the Rules thereunder as the order in question was in fact that of the Government. Paragraphs ‘17’ and ‘26’ of the said judgment has been relied upon. Stand of the State

#13. The writ application has been contested by learned counsel for the State. A counter affidavit has been filed on behalf of the respondent which has been sworn by the District Programme Officer (Establishment), Supaul. Patna High Court CWJC No.10101 of 2023 dt.27-09-2023

#14. In sum and substance, the stand of the State respondents is that the disciplinary proceeding has been conducted in accordance with the established procedure of the Service Rules and the principles of natural justice have been followed. The statements made in the writ application in various paragraphs and the materials brought on record by the petitioner with the supplementary affidavit have not at all been denied. Consideration

#15. Having heard learned counsel for the petitioner and the State as also on going through the records, this Court finds as under.

#16. In the present case, the petitioner has raised basically two grounds for interference with the impugned orders. The first ground is that the entire disciplinary proceeding has been conducted dehors to the established procedure of the Service Rules and secondly that the disciplinary authority has abdicated his power and imposed the punishments on the dictate of the senior departmental officers and the Minister-in-charge of the Department.

#17. Before proceeding to discuss the matter, it would be appropriate to take note of the charges against the petitioner. It appears that the petitioner was suspended under Rule 9(i) of the Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 Service Rules in contemplation of a departmental proceeding. Vide Memo No. 1539 dated 15.09.2021, a charge-sheet vide Memo No. 1540 dated 15.09.2021 was served upon the petitioner. Annexure P-5/1 is the memo of charge which is being reproduced hereunder for ready reference:- “f”k{kk foHkkx] fcgkj] iVuk fcgkj ek/;fed f”k{kk dk; kZy;] cq)ekxZ] iVuk&1 ¼izi= *d*½ vkjksi i= ljdkjh lsod dk uke % & Jherh uhrw flag dk; kZy; dk uke osrueku lsokfuo`fr frfFk %& fuyafcr lgk;d f”kf{kdk ¼izHkkjh iz/kkuk/;kid½ %& fo”ks”oj ckfydk mPp fo|ky; lqikSy %& 9300&34800 %& 31-07-2027 Ø0 01 vkjksi vkids }kjk viuh lsokiqLr ds lkFk NsM&NkM dj lsokiqLr cnyus rFkk rhu vyx&vyx lsokiqLr la/kkfjr djuk 02 vkids }kjk vius drZO; ds izfr ykijokgh cjruk lk{; ftyk inkf/kdkjh lqikSy us i= la[;k & 843&2 fnukad 11-08-21 vuqyXud lfgrA vkjksi dk fooj.k ftyk dk;ZØe inkf/kdkjh ¼LFkkiuk½ lqikSy us i= la[;k & 21 fnukad 23-01-2018 ds }kjk vidh xyr fu; qfDr @ fu; qfDr ls v|ru vuq”kklughurk ds dbZ vkjksiks ij dMh vuq”[email protected] dkjZokbZ gsrq fcUnqokj izfrosnu lefiZr fd;k x;k FkkA mDr izfrosnu ds leh{kksijkar foHkkxh; i= la[;k & 764 fnukad 31-03-21 ds }kjk mDr izfrosnu dh Nk;k izfr ftyk inkf/kdkjh] lqikSy dks Hkstrs gq, vkjksiksa dh tk¡p dj llk{; izfrosnu miyC/k djkus gsrq vuqjks/k fd;k x;k Fkk A ftyk inkf/kdkjh] lqikSy ds mDr izfrosnu esa vafdr vkjksiksa dh tk¡p gsrq f=lnL;h; tk¡p ny dk xBu fd;k x;kA f=lnL;h; tk¡p ny ds la; qDr tk¡p izfrosnu ds vkyksd esa ftyk inkf/kdkjh lqikSy us i= la[kk & 843&2 fnukad 11-08-21 ds }kjk izfrosfnr fd;k gS fd vkids }kjk viuh lsokiqLr ds lkFk NsM&NkM dj lsokiqLr cnyus rFkk rhu vyx&vyx lsokiqLr la/kkfjr djus laca/kh vkjksi dks izekf.kr ik;k gSA fcgkj ljdkjh lsod vkpkj fu; ekoyh&1976+ esa vafdr izko/kkuksa ds fo:) vkpj.k djuk ftlds fy, vki nks’kh gSA g0@& funs”kd ¼ek/;fed f”k{kk½ fcgkj] iVukA Kkikad &9@lk0iz0v0&132@19 1540 iVuk fnukad & 15-09-2021”

#18. Since the inquiry was not completed within a stipulated period of three months, hence suspension of the petitioner was revoked vide memo dated 24.01.2021 and the Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 petitioner was directed to submit her joining at her original school i.e. Government Babujan Bisheshwar Girls Higher Secondary (+2) School, Supaul, however, the respondent no.4 issued an another Memo dated 24.01.2022 itself whereby the petitioner was again placed under suspension and a supplementary charge-sheet was served upon her. It is thus evident from the records that on the same day when she was directed to join after revocation of suspension, she was once again placed under suspension by the Director (Secondary Education) (Respondent No.4). The supplementary charge-sheet as contained in Annexure ‘P-9’ is being reproduced hereunder for ready reference:- “ f”k{kk foHkkx] fcgkj] iVuk fcgkj ek/;fed f”k{kk dk; kZy;] cq)ekxZ] iVuk&1 ¼izi= *d*½ vuqiwjd vkjksi & i= Jherh uhrw flag fuyacfr lgk;d f”kf{kdk ¼izHkkjh iz/kkuk/;kid½ jktdh;d`r ccqtu fo”os”oj ckfydk mPp ek/;fed ¼$2½ fo|ky;] lqikSy 9300&34800 31-07-2027 ljdkjh lsod dk uke dk; kZy; dk uke osrueku lsokfuo`r frfFk %& %& %& %& %& Ø0 01 vkjksi vkids fu; qfDr vkj{k.k fu; ekoyh ds fo:) gksukA vkjksi dk fooj.k ftyk inkf/kdkjh lqikSy us i= la[;k & 843&2 fnukad 11-08- 21 ds }kjk izfrosfnr fd;k gS fd vkids fo:) ftyk dk;ZØe inkf/kdkjh ¼LFkkiuk½ lqikSy ds i= la[;k & 21 fnukad 23-01- 2018 esa vafdr vkjksiksa dh tk¡p gsrq xfBr f=lnL;h; tk¡p ny ds la; qDr tk¡p izfrosnu esa vkidh fu; qfDr vkj{k.k fu; ekoyh ds fo:) vk0e0 vH;FkhZ ds :i esa lgk;d f”kf{kdk ds in fd;k x;k gS tks izFke nz’V;k voS/k fu; qfDr ds Js.kh esa vkrk gSA lk{; ftyk inkf/kdkjh lqikSy us i= la[;k & 843&2 fnukad 11-08-21 vuqyXud lfgrA g0@& funs”kd ¼ek/;fed f”k{kk½ fcgkj] iVukA Kkikad &9@lk0iz0v0&132@19 124 iVuk fnukad & 24-01-22” Patna High Court CWJC No.10101 of 2023 dt.27-09-2023

#19. Two separate inquiry reports were submitted with respect to the first charge and the supplementary charge. Copy of the inquiry report dated 28.03.2022 and 12.04.2022 respectively are Annexure P-11 and P-11/1 respectively to the writ application. It is specifically pleaded by the petitioner that against the respondent no.5 who was acting as an Inquiry Officer, the husband of the petitioner had made many complaints and in the inquiry conducted against him, the allegations were found to be true. Apprehending bias, the petitioner had represented before respondent no.4 for change of the Inquiry Officer but no action was taken thereon.

#20. The copy of the inquiry reports were served upon the petitioner and the petitioner was asked to submit her second show- cause. The writ petitioner requested the disciplinary authority to allow her to conduct inspection of the original of the three service books, as allegedly opened in her name and also called for certified/attested copies of the same and the documents. There is a specific case of the petitioner that the Deputy Director, (Secondary Education), Bihar vide his letter contained in Memo No. 1483 dated 25.06.2022 directed the respondent no.5 to fix a date within a week to allow examination of the original copy of the service books by the petitioner and to supply her the certified/attested Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 copies of the letters but on the same day vide another Letter No. 1484 dated 25.06.2022, the petitioner was asked to file her reply to the show-cause. Later on, on the direction of respondent no.5 respondent no.10 vide his letter no. 1043 dated 14.07.2022 fixed

16.07.2022 at about 2 pm for perusal of the three service books. The petitioner though asked for originals of the three service books as alleged, she was not made available the same for inspection and only one service book (original copy) was made available to her. The petitioner thereafter filed her second show-cause dated

29.07.2022 as contained in Annexure ‘P-16’ to the writ application. It is, at this stage specific statement has been made in the writ application that later on she learnt that her file had been put up before the Hon’ble Minister of the Education Department and is pending consideration.

#21. The file of the petitioner remained pending and ultimately vide order dated 02.06.2023 issued under the signature of respondent no.4 it was held that charge no. 1 and 2 were proved against the petitioner whereas charge no.3 could not be proved. The major punishment of reverting to lowest pay scale of time scale under Rule 14(vii) of the Service Rules has been imposed upon the petitioner and it has also been ordered that during the Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 period of suspension, the petitioner shall be entitled only for the subsistence allowance.

#22. It is not disputed that the post on which the writ petitioner was working is a non-transferable post as she is working as regular Assistant Teacher (Music) in Supaul District. She has been transferred from Government Babujan Bisheshwar Girls Higher Secondary (+2) School, Supaul to Shitalmani (+2) Higher Hecondary School, Barhara, Manoharpatti, Supaul.

#23. As taken note of hereinabove, the specific case of the petitioner is that the entire exercise in the matter of disciplinary proceeding has been conducted at the instance of the Minister-in- charge of the Department.

#24. With the supplementary affidavit, the records of the official files which have been obtained by the petitioner under Right to Information Act have been enclosed as Annexure ‘P-23 Series’ and on going through those records, this Court has no iota of doubt that the impugned order of punishment has been passed by respondent no. 4 at the instance and on the dictate of the Minister-in-charge of the Department of Education, Government of Bihar.

#25. It appears from perusal of the records that when the petitioner submitted her second show cause on 29.07.2022, Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 thereafter, the file was placed before the Additional Chief Secretary of the Department who in his note dated 05.09.2022 inter-alia recorded that the petitioner may be awarded with a punishment of a stoppage of two increments with non-cumulative effect. The proposal so made by the Additional Chief Secretary, Department of Education was placed before the Minister of the Department who made some query with regard to possible effect of the judgment in the pending CWJC No. 10952 of 2016 on the proposed punishment. Thereafter, the file kept on moving from one office to another and ultimately on the direction of the Minister in the official file recorded on 18.05.2023, the impugned order came to be passed. The relevant part of the office notes are being recorded hereunder for a ready reference:- “d`i;k ekuuh; ea=h] f”k{kk foHkkx dks vkns”k i`’B & 119&120@fV0 ij ns[kuk pkgsaxsA Jherh uhrw flag] fuyafcr lgk;d f”kf{kdk] jktdh;d`r ccwtu fo”ks”oj ckfydk mPp ek/;fed $2 fo|ky;] lqikSy ds vkjksi ls lacaf/kr fopkjkFkZ lafpdk ij ekuuh; ea=h] f”k{kk foHkkx ds }kjk vij eq[; lfpo] f”k{kk foHkkx ds izLrko i`B & 101@fV0 ds va”k 1 ,oa 2] va”k&*d* dks vuqeksfnr djrs gq, o`gr naM ds :i esa dkyeku osru ds U;wure osru izØe ij in vour djus dk vkns”k nsrs gq, fVIi.kh dh dafMdk& 05 ,oa 06 ds laca/k esa Li’Vhdj.k izkIr dj vxzŸkj dkjZokbZ dk vkns”k fn;k x;k gSA vkns”kkuqlkj] vkns”k dk ,d izk:i ,oa Li’Vhdkj.k dk ,d izk:i vuqeksnukFkZ d`i;k bl laca/k esa fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ r`rh; la”kks/ku½ fu; kekoyh 2010 dh O;k[;k bl laca/k esa fopkjkFkZ d`i;k n`’VO;A d`i;k ,d vkns”k ,oa ,d i= izk:i gLrk{kjkFkZ A g0 @& ¼ulhe vgen½ la; qDr funs”kd ¼ek0f”k0½ funs”kd ¼ek0f”k0½”

#26. On perusal of the impugned order of punishment dated 02.06.2023, this Court finds that as regards charge no. 1 and Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 2, the Disciplinary Authority has simply taken note of the submissions made on behalf of the petitioner in her second show- cause, nothing has been brought in course of inquiry to show that three service books were maintained by the petitioner. In fact, the Disciplinary Authority has taken note of the submission that the Deputy Director, Koshi Division, Saharsa-cum-Inquiry Officer has in his inquiry report recorded that there is no copy of three service books and at present the only service book which is maintained, is available. Similarly, as regards charge no. 2 also, nothing has been brought in course of inquiry to show that the petitioner had indulged in a misconduct. The Inquiry Officer has though referred to some letters received from various authorities such as District Education Officer, Supaul and the Director (Secondary Education), what were contained in those letters and what were the allegations against the petitioner were never made known and it has not been proved in course of inquiry.

#27. Part VI of the Service Rules lays down the procedure for imposing penalties. Rule 17 provides the procedure for imposing major penalties. According to sub-Rule 1 of Rule 17 of the Service Rules, no order imposing any of the penalties specified in clauses (vi) to (x) of Rule 14 shall be made without holding an inquiry, as far as may be, in the manner provided in these Rules. Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 Sub-Rule 3 of Rule 17 to Part VI of the Service Rules provides that where it is proposed to hold an inquiry against a government servant under this Rule, the Disciplinary Authority shall draw up or cause to be drawn up - (i) the substance of the imputations of misconduct or misbehaviour as a definite and distinct article of charge; (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain - (a) a statement of all relevant facts including any admission or confession made by the Government Servant; (b) a list of such document by which, and a list of such witnesses by whom, the articles of charge are proposed to be sustained. The DisciplinaryAauthority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, such statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained. In the present case, this Court finds that the procedure prescribed under sub-Rule 3 to Rule 17 of Part VI were not at all followed.

#28. This Court has already noticed the uncontroverted statements of the petitioner made in the supplementary affidavit which have been supported by producing the relevant pages of the official files. Under such circumstance, this Court is of the Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 considered opinion that it is one of those cases in which the Disciplinary Aauthority has abdicated his power and has passed the impugned order of punishment on the direction of the Minister- in-charge of the Department. At this stage, this Court would briefly take note of the judgment of the Hon’ble Supreme Court in the case of Purtabpore Co. Ltd (supra). In the said case, the two orders made by the Cane Commissioner, Bihar on November 14, 1967 came to be challenged under Article 226 of the Constitution of India. By the impugned orders, the Cane Commissioner had excluded 99 villages from the area reserved by him in favour of the appellant under Clause 6 of the Sugar Cane (Control) Order 1966 (hereinafter referred to as ‘The Control Order’) and included those villages in the area reserved in favour of New Siwan Mill (5th respondent in the appeal). The High Court dismissed the writ petition. The matter went to the Hon’ble Supreme Court. The Hon’ble Supreme Court noticed the facts of the case. One of the grounds raised before the Hon’ble Supreme Court was that the Cane Commissioner had practically abdicated his statutory functions and mechanically implemented the directions issued by the Chief Minister. It was a quasi-judicial function and the orders made by the Cane Commissioner were involving civil consequence. The orders were discriminatory and mala-fide. Patna High Court CWJC No.10101 of 2023 dt.27-09-2023

#29. In the aforementioned background when the Hon’ble Supreme Court proceeded to consider as to whether the orders in question though purported to have been made by the Cane Commissioner were in fact not so and the Cane Commissioner merely acted as the mouthpiece of the Chief Minister, in truth he had abdicated his statutory functions and, therefore the orders are bad. The Hon’ble Supreme Court observed from the materials on the record as under:- “It is clear from the documents before us that the Chief Minister directed the Cane Commissioner to divide the reserved area into two portions and allot one portion to the 5th respondent. In pursuance of that direction, the Cane Commissioner prepared two lists ‘Ka’ and ‘Kha’. Under the orders of the Chief Minister, the villages contained in list ‘Ka’ were allotted to the appellant and in list ‘Kha’ to the 5th respondent. The Cane Commissioner merely carried out the orders of the Chief Minister. It is true that the impugned orders were issued in the name of the Cane Commissioner. He merely obeyed the directions issued to him by the Chief Minister…”

#30. Having said so, the Hon’ble Supreme Court observed that the power exercised by the Cane Commissioner under Clause 6(1) is a statutory power. He alone could have exercised that power and while exercising that power he cannot abdicate his responsibility in favour of anyone - not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 Cane Commissioner. In paragraph nos. ‘14’ and ‘15’, the Hon’ble Supreme Court observed as under:- “14. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.

#15. In Commr. of Police, Bombay v. Gordhandas Bhanji, 1952 SCR 135 = (AIR 1952 SC 16), this Court struck down the order purported to have been passed by the Commissioner of Police in the exercise of his powers under the Bombay Police Act and the rules made thereunder as the order in question was in fact that of the Government. The rule laid down in that decision governs the question under consideration. This Court reiterated that rule in State of Punjab v. Hari Kishan Sharma, AIR 1966 SC 1081. Therein this Court held that the State Government was not justified in assuming jurisdiction which had been conferred on the licensing authority by Section 5(1) and (2) of the Punjab Cinemas (Regulation) Act. For the reasons mentioned above we hold that the impugned orders are liable to be struck down as they were not made by the prescribed authority.”

#31. The principles laid down by the Hon’ble Supreme Court in the case of Purtabpore Co. Ltd (supra) and Gordhandas Bhanji (supra) would be equally applicable in the facts of the present case. Patna High Court CWJC No.10101 of 2023 dt.27-09-2023

#32. Under the Service Rules, the Disciplinary Authority has been conferred with statutory powers to take action on the inquiry report. Rule 18 of the Service Rules incorporates the procedures which are required to be followed by the Disciplinary Authority in the matter of making of an order imposing a penalty. Under Sub-rule (7) of Rule 18, in every case where it is necessary to consult the Commission, the Commission shall be consulted and its advice shall be taken into consideration before making any order imposing any penalty on the Government servant. This is not one of those cases in which any consultation with the Commission was required. In this case, the Director (Secondary Education) being the Disciplinary Authority had to apply his independent mind to the materials on the record and it is he who had to form his opinion as to whether any of the penalties specified in clauses (vi) to (xi) of Rule 14 should be imposed on the petitioner. From the records it is crystal clear that the Disciplinary Authority was not applying his independent mind and the file was always being sent to the Additional Chief Secretary and the Minister-in-charge of the Department as if they had to decide the punishment which would be imposed upon the petitioner. Patna High Court CWJC No.10101 of 2023 dt.27-09-2023

#33. At this stage, it is worth mentioning that Part VII of the Service Rules contains the provisions of appeal. Rule 23 says that a Government servant may prefer an appeal against order of suspension or order of punishment. Rule 24 says that a Government servant, including a person who has ceased to be in Government service, may prefer an appeal against the orders specified in Rule 23 to the authority specified in this behalf by a general or special order of the Government or, where no such authority is specified:- (i) where such Government Servant is or was a member of Civil Service, Group-A or Group-B or holder of Civil Post, Group-A or Group-B,- (a) to the appointing authority, where the order appealed against is made by an authority subordinate to it; or (b) to the Government where such order is made by any other authority; (ii) where such Government servant is or was a member of a Civil Service, Group-C or Group-D, to the authority to which the authority making the order appealed against is immediately subordinate.

#34. It is evident from the aforementioned provision that in this case, the Director (Secondary Education) being Subordinate to the Additional Chief Secretary, an appeal against his order of punishment would have gone before the Additional Chief Secretary of the department and this is the contention of the petitioner also but because the Additional Chief Secretary was Patna High Court CWJC No.10101 of 2023 dt.27-09-2023 being engaged in the decision making and as respect the quantum of punishment to be imposed, a right to appeal available to the petitioner had been taken away. This is the reason which has been cited by the petitioner in paragraph ‘61’ of the writ application for not preferring an appeal against the punishment. This Court accepts the contentions of the petitioner.

#35. For the reasons stated hereinabove, this Court is of the considered opinion that the impugned order of punishment as contained in Memo No. 1324 dated 02.06.2023 and the order of transfer contained in Letter No. 1357 dated 06.06.2023 are wholly illegal, arbitrary and bad in law, thus, those are accordingly set aside. The petitioner shall be entitled to the consequential benefits. The respondents shall issue consequential orders within a period of 30 days from the date of receipt/production of a copy of this order.

#36. This writ application is allowed. (Rajeev Ranjan Prasad, J) Rishi/- AFR/NAFR CAV DATE Uploading Date Transmission Date

10.10.2023