Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8579 of 2013 ====================================================== Wilson Kumar Son Of Sri Bhupendra Narayan Singh R/O Village - Orlha, P.O. Orlha, P.S. B. Kothi, District - Purnea .... .... Petitioner Versus 1. The State Of Bihar Through The Commissioner Cum Secretary, Department Of Education, Government Of Bihar, New Secretariat, Bihar, Patna 2. The Director, Department Of Primary Education, Government Of Bihar, New Secretariat, Bihar, Patna 3. The Director, State Project Government Of Bihar, Patna 4. The District Magistrate Vaishali At Hajipur 5. The District Education Officer Vaishali At Hajipur 6. The District Programme Officer ( Sarvsiksha Abhiyan ) Vaishali At Hajipur 7. The District Programme Officer ( Establishment ) Vaishali At Hajipur 8. The Block Education Officer, Sahdeo Buzurg, Vaishali .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13031 of 2013 ====================================================== Jagdish Mishra, aged about 58 years, son of Shri Darbeshwar Mishra, resident of village Alahdadpur, P.O. Chakalahdad, P.S. Vaishali, District Vaishali, Bihar .... .... Petitioner Versus 1. The State Of Bihar through the Principal Secretary, Human Resources Development Department, Govt. of Bihar, Patna 2. The Principal Secretary, Human Resources Development Department, Govt. of Bihar, Patna 3. The Director, Primary Education, Govt. of Bihar, Patna 4. The Project Director, Bihar Educational Project Council, Sarva Shiksha Aviyan, Rajbhasha Parishad, Saidpur, Patna 5. The District Education Officer, Vaishali at Hajipur 6. The District Programming Officer, Sarva Shiksha Abhiyan, Bihar Education Project, Vaishali at Hajipur 7. Block Education Officer, Vaishali at Hajipur 8. Smt. Namita Bhardwaj, Gender Equity Consultant, Bihar Education Project Council, Rajbhasha Parishad, Saidpur, Patna .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.11925 of 2013 ====================================================== Draweshar Ram Son Of Late Kanglali Ram Resident Of Village- Gorigama, P.O. + P.S.- Mahua, District- Vaishali Bihar .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary Human Resources
Legal Reasoning
Patna High Court CWJC No.8579 of 2013 (3) dt.19-07-2013 2
Legal Reasoning
Development Department, Govt. Of Bihar, Patna 2. The Principal Secretary Human Resources Development Department, Govt. Of Bihar, Patna 3. The Director, Primary Education, Govt. Of Bihar, Patna 4. The Project Director, Bihar Educational Project Council, Sarva Shiksha Aviyan, Rajbhasha Parishad, Saidpur, Patna 5. The District Education Officer, Vaishali At Hazipur 6. The District Programming Officer, Sarva Siksha Abhiyan, Bihar Education Project, Vaishali At Hazipur 7. Block Education Officer, Mahua, Vaishali 8. Smt. Namita Bhardwaj, Gender Enquity Consultant, Bihar Education Project Council, Rajbhasha Parishad, Saidpur, Patna .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.11950 of 2013 ====================================================== Veena Pandey Wife Of Shri Ishwar Chandra Upadhaya Resident Of Village - Hariwanspur, P.O. Warispur, P.S. Bhagwanpur, District - Vaishali, Bihar .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary Human Resources Development Department, Govt. Of Bihar, Patna 2. The Principal Secretary Human Resources Development Department, Govt. Of Bihar, Patna 3. The Director, Primary Education, Govt. Of Bihar, Patna 4. The Project Director, Bihar Education Project Council, Sarva Shiksha Aviyan, Rajbhash Parishad, Saidpur, Patna 5. The District Education Officer, Vaishali 6. The District Programme Officer, Sarva Siksha Abhiyan, Bihar Education Project, Vaishali At Hazipur 7. Block Education Officer, Vaishali At Hazipur 8. Smt. Namita Bhardwaj, Gender Equity Consultant, Bihar Education Project Council, Patna .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.12750 of 2013 ====================================================== Sushila Kumari Wife Of Shri Ram Briksha Singh Resident Of Village - Silathaur, P.O. Kalaphar, P.S. Jandaaha, District - Vaishali, Bihar .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary Human Resources Development Department, Govt. Of Bihar, Patna 2. The Principal Secretary Human Resources Development Department, Govt. Of Bihar, Patna 3. The Director, Primary Education, Govt. Of Bihar, Patna 4. The Project Director, Bihar Education Project Council, Sarva Shiksha Aviyan, Rajbhash Parishad, Saidpur, Patna 5. The District Education Officer, Vaishali 6. The District Programme Officer, Sarva Siksha Abhiyan, Bihar Education Patna High Court CWJC No.8579 of 2013 (3) dt.19-07-2013 3 Project, Vaishali At Hazipur 7. Block Education Officer, Vaishali At Hazipur 8. Smt. Namita Bhardwaj, Gender Equity Consultant, Bihar Education Project Council, Patna .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.11859 of 2013 ====================================================== Naveen Prakash Aged About 41 Years Son Of Late Arun Prakash Mishra Resident Of Village- Sadapur Mahua, P.O.- Mahua, P.S.- Mahua, District- Vaishali, Bihar .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary, Null Human Resources Development Department, Govt. Of Bihar, Patna 2. The Principal Secretary, Human Reosurces Development Department, Govt. Of Bihar, Patna 3. The Director, Primary Education, Govt. Of Bihar, Patna 4. The Project Director, Bihar Educational Project Council, Sarva Shiksha Aviyan, Rajbhasha Parishad, Saidpur, Patna 5. The District Education Officer, Vaishali 6. The District Programming Officer, Sarva Siksha Abhiyan, Null Bihar Education Project, Vaishali At Hazipur 7. Block Education Officer, Chehrakalan At Vaishali 8. Smt. Namita Bhardwaj, Gender Equity Consultant, Bihar Education Project Council, Rajbhasha Parishad, Saidpur, Patna .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13635 of 2013 ====================================================== Shankar Rai Son Of Late Ram Deo Rai Resident Of Village- Lodipur, P.O.+P.S.- Goraul, District- Vaishali, Bihar .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary, Human Resources Development Department, Govt. Of Bihar, Patna 2. The Principal Secretary, Human Resources Development Department, Govt. Of Bihar, Patna 3. The Director, Primary Education, Govt. Of Bihar, Patna 4. The Project Director, Bihar Educational Project Council, Sarva Shiksha Aviyan, Rajbhasha Parishad, Saidpur, Patna 5. The District Education Officer, Vaishali 6. The District Programming Officer, Sarva Siksha Abhiyan, Bihar Education Project, Vaishali At Hazipur 7. Block Education Officer, Vaishali At Hazipur 8. Smt. Namita Bhardwaj, Gender Equity Consultant, Bihar Educational Project Council, Patna .... .... Respondents ====================================================== with Patna High Court CWJC No.8579 of 2013 (3) dt.19-07-2013 4 Civil Writ Jurisdiction Case No.13659 of 2013 ====================================================== Kusheshwar Rai Brahmachari Son Of Late Ram Charitra Rai Resident Of Village- Bakarpur, P.O.- Vishnupur Said, P.S.- Rajapakar, District- Vaishali .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary, Human Resources Development Department, Govt. Of Bihar, Patna 2. The Principal Secretary, Human Resources Development Department, Govt. Of Bihar, Patna 3. The Director, Primary Educatiion, Govt. Of Bihar, Patna 4. The Project Director, Bihar Educational Project Council, Sarva Shiksha Aviyan, Rajbhasha Parishad, Saidpur, Patna 5. The District Education Officer, Vaishali 6. The District Programming Officer, Sarva Siksha Abhiyan, Bihar Education Project, Vaishali At Hazipur 7. Block Education Officer, Vaishali At Hazipur 8. Smt. Namita Bhardwaj, Gender Equity Consultant, Bihar Education Project Council, Patna .... .... Respondents ====================================================== Appearance : (In CWJC No.8579 of 2013) For the Petitioner/s : Mr. Shashi Bhushan Kumar For the Respondent/s : Mr. Neeraj Nandan For Bihar Education Project: Mr. Girijesh Kumar (In CWJC No.13031 of 2013) For the Petitioner/s : Mr. Aditya Prakash Sahay For the Respondent/s : Mr. Shashi Shekhar Pd.Sinha, AC to GP17 (In CWJC No.11925 of 2013) For the Petitioner/s : Mr. Aditya Prakash Sahay For the Respondent/s : Mr. Vishwambhar Prasad, AC to AAGIX (In CWJC No.11950 of 2013) For the Petitioner/s : Mr. Aditya Prakash Sahay For the Respondent/s : Mr. Vishwambhar Prasad (In CWJC No.12750 of 2013) For the Petitioner/s : Mr. Aditya Prakash Sahay For the Respondent/s : Mr. Shashi Shekhar Pd. Sinha (In CWJC No.11859 of 2013) For the Petitioner/s : Mr. Aditya Prakash Sahay For the Respondent/s : Mr. Shashi Shekhar Pd. Sinha (In CWJC No.13635 of 2013) For the Petitioner/s : Mr. Aditya Prakash Sahay For the Respondent/s : Mr. Shyam Kishor Sharma (In CWJC No.13659 of 2013) For the Petitioner/s : Mr. Aditya Prakash Sahay For the Respondent/s : Mr. Rajiv Kumar Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER Patna High Court CWJC No.8579 of 2013 (3) dt.19-07-2013 5 3 19-07-2013 Heard learned counsel for the parties in all these cases. The long and short of these cases is that the petitioners were working in Bihar Education Project and were assigned certain work with the funds. They are said to have not properly accounted for those funds and therefore, they have been subjected to two kinds of order. Firstly, they have been asked to refund the amount by way of recovery from their salary and emoluments and secondly, they have been also put to enquiry. This Court had directed the authorities of Bihar Education Project to file their counter affidavit and in the counter affidavit though explanations have been given in defence of their actions but this fact is not denied that the order of recovery against the petitioners was passed without even giving them a show cause notice and/or opportunity of hearing. Of course, an attempt has been made by the learned counsel for the respondents that the petitioners were asked explanation in relation to completion of work but that was not specifically directed for recovery of the specified amount. In the considered opinion of this Court there are two aspects which will be going in favour of the petitioners. Firstly, if the petitioners were entrusted with certain work and also fund and if the authorities on the basis of their own internal enquiry had Patna High Court CWJC No.8579 of 2013 (3) dt.19-07-2013 6 found that the work was not completed or the fund was not properly utilized and as such, the petitioners became liable for refund of the amount, they had to be given a specific show cause notice by the respondents. A mere letter seeking explanation without giving any inkling of proposed action of recovery and that too in a very hurried manner cannot be the substitute of well defined procedure of the compliance of principles of natural justice. The principle of natural justice in such cases can only be complied by allowing the person to know as to what is allegation against him and what action is proposed to be taken against him. The very fact that the respondents subsequently, after passing of the impugned order of recovery, have initiated an enquiry for the same charge will go to show that the principle of natural justice was not followed prior to passing of the impugned order of recovery which is penal in nature, inasmuch as all the petitioners have been asked to refund the huge amount. As a matter of fact when the authorities themselves have subsequently initiated enquiry against the petitioners, they ought to have not at least insisted for recovery of amount from the petitioners till conclusion of the enquiry against them. In the given circumstances such enquiry will only amount to giving them post facto hearing, an aspect which has been always deprecated in law because there Patna High Court CWJC No.8579 of 2013 (3) dt.19-07-2013 7 is always a tendency to affirm the action already taken earlier. For all these reasons the impugned orders against the petitioners subjecting them to recovery of amount is hereby quashed and the matter is now remitted back for holding an enquiry against the petitioners afresh and thereafter taking action. The parties have jointly agreed that such enquiry will be now held by the Director of Primary Education who is not directly connected with the day to day functioning of the Bihar Education Project. This Court would accordingly direct the Director of Primary Education to hold an enquiry. For holding such enquiry now no show cause notice is required because the petitioners have already come to know the allegation against them. Therefore, the petitioners will be now under obligation to file their self contained show cause reply on the basis of materials on record which has been brought in these writ applications and/or the counter affidavit. Once such show cause reply is filed by the petitioners, which must be done within a period of two months from today, the Director, Primary Education, shall after giving opportunity of personal hearing to the petitioners take a final decision as with regard to further action including realization of any amount from the petitioners which is found payable by them to the Bihar Education Project. Patna High Court CWJC No.8579 of 2013 (3) dt.19-07-2013 8 In order to expedite this exercise this Court would fix the date of 30th September, 2013 for the petitioners to appear in person before the Director, Primary Education, whereafter the Director, Primary Education may hear the petitioners either on the same day or fix another date of enquiry and the petitioners thereafter must participate in the enquiry on the date fixed without indulging into any delaying and/or evasive tactics. In the event the Director, Primary Education finds any of the petitioners in indulging into evasive or delaying tactics he will proceed ex-parte and pass his orders. If, however, the petitioners remain present in course of enquiry, the Director, Primary Education will be under obligation to give them opportunity of personal hearing to the petitioners. The entire exercise of holding enquiry and passing final order by the Director, Primary Education must be completed by 31st December, 2013. Till such an exercise is completed none of the petitioners will be also not subjected to coercive action for refunding the amount by way of recovery. It is made clear that once such enquiry will be held by the Director, Primary Education there will be no need for holding of parallel enquiry by the District Programme Officer. Therefore, the papers of the entire enquiry available with District Programme Officer will be sent to the Director, Primary Education who shall Patna High Court CWJC No.8579 of 2013 (3) dt.19-07-2013 9 now hold enquiry and pass his final order in accordance with law. The scope of such enquiry will be only confined to alleged financial irregularity against the petitioners. The result of the enquiry, therefore, as per decision of the Director, Primary Education will bind both the parties i.e. the authorities of the Bihar Education Project as also the petitioners. The departmental proceeding, which has been initiated against the petitioners who happen to be permanent employees of the State of Bihar while doing work of Bihar Education Project by way of contract during the period of deputation in Bihar Education Project, would remain stayed till a categorical finding on financial irregularity is recorded by the Director, Primary Education against any of the petitioner. Such findings recorded by the Director, Primary Education, however, could be utilized in the pending departmental proceeding wherein there may be more charges other than financial irregularity against the petitioners. Thus, for the time being the departmental proceeding against the petitioners shall remain in abeyance and once the Director, Primary Education will take his final decision on or before 31st December, 2013 such order may be made available to the competent authority for taking further action against the petitioners by way of continuation and conclusion of the departmental proceeding Patna High Court CWJC No.8579 of 2013 (3) dt.19-07-2013 10 already launched against the petitioners, if necessary. It is also made clear that the competent authority having received the order of the Director, Primary Education passed by him after holding enquiry against the petitioners may also take a decision for not continuing with the departmental proceeding if there is no other serious charge against any of the petitioners. With the aforementioned observation and direction, these
Decision
applications are disposed of. (Mihir Kumar Jha, J) surendra/-