Nirmala Bharti v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Letters Patent Appeal No.245 of 2024 In Civil Writ Jurisdiction Case No.354 of 2023 ====================================================== Nirmala Bharti Wife of Late Rajnikant Singh Resident of Mohalla- Jai Prakash Nagar, A.G. Colony, Police Station- Phulwarisharif, District and Town- Patna.

... ... Appellant/s

Versus

1.

The State of Bihar through the Additional Chief Secretary, Education Department, Government of Bihar, Patna.

2.

The Director, (Administartion)- cum- Additional Secretary, Education Department, Government of Bihar, Patna.

3.

The Director, Secondary Education, Education Department, Government of Bihar, Patna.

4.

The Joint Secretary-cum-Conducting Officer, Education Department, Government of Bihar, Patna.

5.

The Senior Executive Officer, Administration and Accounts Department, Bihar Board of Open Schooling and Examination, Patna. 6.

The District Provident Fund Officer, Patna.

7.

) The Accountant General, Bihar, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s :

Mr.Ram Sagar Singh, Advocate For the Respondent/s :

Mr.Sarvesh Kumar Singh, AAG-13 Mr.Ravi Kumar, AC to AAG-13 Mr.Rajat Kumar Tiwary, AC to AAG-13 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 24-07-2024 The present appeal is similar to that disposed of in LPA No. 1219 of 2023 (Kamini Kumari and Ors Vs. the State of Bihar and Anr. & its analogous cases). The writ petitions from which the appeals arise, were cases in which the challenge

2/13 was to the domestic enquiry proceedings initiated against teachers appointed long back, on allegations of their appointments having been made irregularly. The enquiries concluded with termination, some of which orders were once successfully challenged before this Court and again the very same consequence was visited on the teachers who were still in service; after a de novo proceedings as permitted by this Court. As against those who had retired; 100% of their pensions were withheld on the conclusion of enquiry proceedings. The domestic enquiry proceedings were initiated on the ground that the teachers who were the petitioners and the appellants, were appointed irregularly between 1980 to 1990.

2. In the earlier batch of writ petitions, it was noticed that in the year 1998 by reason of an order dated 18.12.1998 passed in a Public Interest Litigation; CWJC No. 9847 of 1998 (Brajesh Kumar Sinha and Ors Vs. the State of Bihar and Anr), there was a direction to the Central Bureau of Investigation to carry out investigation into the alleged irregular appointments. The CBI submitted its report on 09.11.2004 before the Chief Secretary, State of Bihar; but no FIR was registered or any criminal proceedings were initiated. The Government slept over the matter despite receipt of the CBI

3/13 report. In the year 2016, another PIL was filed numbered as CWJC No. 10002 of 2016 (Kaushal Kumar Vs. the State of Bihar and Ors) in which the State was called upon to apprise this Court as to what transpired after the CBI enquiry report was filed. This led to a spate of domestic enquiry proceedings which were carried out in total violation of the principles of natural justice and also absolute disregard of the principles governing domestic enquiries; as enjoined upon in the Bihar (Classification Control and Appeal) Rules as also the Bihar Pension Rules.

3. A number of writ petitions were filed and a group of them in Shanti Kumari Vs. State of Bihar (CWJC No. 17904 of 2016) were disposed of on 17.01.2017 finding that the petitioners, therein, who were teachers were deprived of a reasonable opportunity to canvass their respective cases, produce relevant documents and also the binding authorities relating to domestic enquiries. The Writ Court set aside the domestic enquiry proceedings and the termination orders passed, but left liberty to the State to proceed de novo with the enquiry proceedings.

4. It is based on such liberty reserved that the proceedings were taken against a number of teachers, some of whom had retired by the time the proceedings were initiated.

4/13 Others who were reinstated in service by reason of the earlier writ proceedings having set aside the termination orders, were also proceeded with. Some of the writ petitions were filed against the proceedings initiated, others against the termination orders and many against the withholding of pension after retirement; which withholding was also of 100 per cent of applicable pension.

5. This Court in Kamini Kumari (supra) found that the proceedings against retired employees were against Rule43(b) and Rule-139 of the Bihar Pension Rules. Reliance was also placed on the decision of the Hon'ble Supreme Court in State of Bihar Vs Md. Idrish Ansari; 1995 Supp 3 SCC 6.

6. Following the declaration in Md. Idrish Ansari (supra), it was held that the right of withholding of pension or any part of it permanently or for a specified period by virtue of Sub clause-(i) and (ii) of Clause-(a) of the proviso to Rule 43(b) of the Bihar Pension Rules had to necessarily satisfy two requirements. One, that it can be instituted only with the sanction of the State Government and second, it can only be with respect to an event which took place not more than four years before the institution of such proceedings. All the proceedings which were taken up against the retired employees

5/13 were with respect to the irregular appointments made between 1980 to 1990 far beyond the four-year period provided. There was also no sanction obtained from the State Government in any of the cases.

7. Reliance was also placed on Rule-139 which Rule was also interpreted in Md. Idrish Ansari (supra). Rule-139 of the Bihar Pension Rules, is extracted hereinbelow: - "Rule 139:- (a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper.

(c) The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under their control, if they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall, however, be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension, nor any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed."

8. Following the forecited judgment; in Kamini Kumari (supra), it was held so in paragraph no. 25, which is extracted hereinbelow: -

6/13 "25. We have to notice that there are two situations provided under Rule 139 as per clause (b) and clause (c), where there can be a reduction of pension. Clause (b) comes into play when the service is found to be thoroughly unsatisfactory. No such finding has been entered into any of the cases before us. Clause (c) relates to the power of revising an order of pension by the State Government, on the order being passed of any sub-ordinate authority. Therein also, there should be satisfaction, either that the pensioners service was not thoroughly satisfactory or that there was proof of grave misconduct on his part, while in service. There is no allegation of unsatisfactory service raised against any of the appellants, we recall.

There is also no allegation of misconduct and what is alleged is an appointment having been obtained irregularly, which relates back to more than three decades. The disciplinary inquiry initiated itself is illegal for want of sanction and the incident complained of being far earlier to that provided under Rule 43(b); thus the initiation itself stands vitiated. The punishment imposed under Section 139(c) is also not sustainable, going by the Pension Rules. We have to set aside both the impugned orders in C.W.J.C. No.8020 of 2022."

9. Based on the above findings, it was held so in paragraph no. 31, extracted hereinbelow: - "31. We have to notice the Explanation to Rule 43 which saves the application of the requirement, as per the proviso to the Rules for sanction or for the misconduct to be one committed within four years prior to retirement. The Explanation deems valid, any disciplinary proceeding instituted by framing of charges or by putting the Government servant under suspension, from an earlier date, as properly instituted from that earlier date. The appellants were not suspended before retirement. Though, disciplinary proceedings were initiated prior to retirement, the punishment imposed was set aside. De novo proceedings were permitted but despite opportunity so to do prior to retirement was available, no such proceedings were initiated till their retirement. The subsequent proceedings initiated hence, had to comply with the proviso to Rule 43(b). The proceedings are found to be illegally initiated and hence, the order of

7/13 punishment also is liable to be set aside."

10. Further, it was noticed that even in the enquiry carried out, the CBI report was not produced and it was not marked through the officer who prepared it; which alone can be valid proof of the document, even in a departmental proceeding. Mere, tabulation of the irregularity alleged against each teacher was produced but not proved in the enquiry through a witness. It was also held so, in the matter of the CBI report and the proceedings taken pursuant to it in paragraph no. 42, extracted hereinbelow: - "42. At the risk of repetition, it has to be stated that the appointments made in the year 1981, 1988 and 1989 were subjected to a CBI inquiry, the report of which was filed in the year 2004. Apparently no FIR was lodged and the reports submitted remained with the State Government, without any further action.

It was long after, in the year 2016 that a Public Interest Litigation motivated the State Government into taking action. The order in the PIL only directed the State Government to take proceedings in accordance with law. We have found that the State Government had flouted all principles of fairness in disciplinary inquiry and also violated the specific rules of procedure as brought out under Article 309 of the Constitution of India."

11. Roop Singh Negi Vs. Punjab National Bank; (2009) 2 SCC 570 was specifically noticed to reiterate that departmental proceeding is a quasi-judicial proceeding, the enquiry officer perform in a quasi-judicial function and the

8/13 charges levelled against the delinquent requiring to be proved. The enquiry officer, it was held had a duty to arrive at a finding based on the materials brought on record by the parties. A mere report filed by the investigating officer cannot be treated as evidence in the disciplinary proceeding, especially when, no witness was examined to prove the documents, was the authoritative pronouncement.

12. Based on the aforesaid findings, this Court set aside the orders of terminations as also the orders of withholding pension and directed interest to be paid on failure to compute the arrears and pay the same within four months as also awarded Rs. 5000/- as cost in the individual writ petitions.

13. We additionally observe that the allegations raised in the Enquiry Report of the CBI were that, an advertisement was not issued, candidates were not sourced from the Employment Exchange, reservation roster was not followed, sanction of the Competent authority was not obtained and there was no interview; in the appointment of the teachers who were proceeded with. These are allegations against the government officers who appointed the teachers and not necessarily a misconduct committed by the newly appointed teachers. Indisputably all the teachers who had service had an

9/13 unblemished record and there was nothing revealed in their service regarding their incapacity to discharge their duties or dis-entitlement to be so appointed.

14. The appellant was appointed as a Matric Trained Teacher by the order of the School Inspectress-cum-Deputy Director of Education dated 13.11.1981 and joined in the Government Girls Middle School, Jamui (Annexure-3) on 24.11.1981. The appellant was promoted and posted as an Assistant Teacher in the Government Girls High School, Dhanbad and later, as Lecturer in Women's Teacher Training College, Dumraon (Annexure-4 & 5). Thereafter, the appellant was promoted in Graduate Trained Pay Scale by Annexure-6 dated 09.07.1991 and transferred to Government Girls High School, Patna as an Assistant Teacher by Annexure-7 dated 19.03.1993. By a resolution of the Government dated 02.04.2013, the cadre of Subordinate Education Service merged with Bihar Education Service Class-II. Pursuant to the said resolution, the appellant was posted as District Programme Officer, Nawada by Annexure-9 dated 23.11.2014 and thereafter, by Annexure-10 dated 30.06.2017 she was transferred to Bihar Board of Open Schooling and Examination, Patna as Senior Executive Officer where she joined on 01.07.2017.

10/13

15. The appellant, while in service, was then proceeded with departmentally, alleging purported irregularities in her initial appointment, on the basis of the CBI report, from which one page of CBI report as relatable to the appellant along with a memo of charge in Prapatra 'K', was furnished to her. This was after 35 years of appointment and unblemished service throughout.

16. The memo of charge is produced at Annexure-11 dated 13.10.2016, to which the appellant filed her explanation on 02.11.2016 at Annexure-12. The Joint Secretary, who was the Enquiry Officer (Respondent No. 4), submitted enquiry report by Annexure-13 dated 31.12.2018 to the Director (Administration)-cum-Additional Secretary, Education Department (Respondent No.2). Pursuant to the said enquiry report, a second show cause notice dated 21.01.2019 (Annexure-14) was issued to the appellant, to which also she submitted a detailed explanation by Annexure-15 dated 21.02.2019 of the writ petition.

17. Thereafter, on 12.10.2020 by Annexure-16, the appellant was dismissed from service, which order was challenged in a writ petition, CWJC No. 5675 of 2021. The writ petition was disposed of granting liberty to the appellant to

11/13 prefer an appeal before the District Appellate Authority by Annexure 17 dated 30.03.2022.

18. During the pendency of the writ petition, the appellant superannuated from service on 31.08.2021. Thereafter, as per direction of the Court, since the District Appellate Authority was not functioning, the appellant filed OA No. 419 of 2022 before the State Appellate Authority, which was rejected on 09.12.2022, against which the appellant filed CWJC No. 354 of 2023, which was dismissed along with other analogous cases on 26.09.2023, which order is impugned in the present Memo of Appeal filed.

19. It is submitted by the learned Counsel for the appellant that the said departmental proceeding was initiated without complying with Rules 17 (4) and 17 (5) of the Bihar Government Servants (Classification, Control and Appeal) Rules 2005, which is against several judicial pronouncements of this Court in CWJC No. 5042 of 2016 passed on 04.09.2017 and the policy decision of the Govt. of Bihar as contained in Letter No. 15548 dated 06.12.2017.

20. It is stated that the enquiry report was submitted, but no enquiry report is produced. The CBI report was never furnished to the appellant nor marked in the enquiry

12/13 proceedings. The appointment of the appellant carried out on 13.11.1981 was found to be irregular, which finding was without any evidence. No witness was examined at the enquiry or the CBI report marked in evidence. This deprives the delinquent from cross-examining the witness and disproving the facts as coming out in the extract of the CBI report; which is the only basis of the allegation.

21. The facts are identical and the enquiry conducted against the appellant suffers from the same infirmities as pointed out in the decision of this Court in Kamini Kumari (supra). The appeal is allowed setting aside the impugned judgment dated 26.09.2023 as well as order of dismissal at Annexure-16 dated 12.10.2020. While the appellant was pursuing her case, she had attained the age of superannuation on 31.08.2021. In such circumstances, the appellant will be considered as continuing in service from the date of her dismissal i.e 09.10.2020 and would be paid the entire pay and allowances till her date of superannuation. The appellant would also be entitled to pension considering her services to be continuous, subject only to any other proceeding taken. Her pension will be computed on the basis of such continued payment of pay and allowances. Also, she would be paid arrears of pension from the date of her

13/13 superannuation. The directions for payment and the interest shall be, as directed in Kamini Kumari (supra).

22. The appeal is allowed setting aside the judgment of the learned Single Judge and allowing the writ petition with the directions hereinabove.

23. Interlocutory application, if any, shall stand disposed of.

(K. Vinod Chandran, CJ) Partha Sarthy, J:

( Partha Sarthy, J) Anushka/Sujit AFR/NAFR NAFR CAV DATE 16.07.2024 Uploading Date 24.07.2024 Transmission Date