Allowed

Nusrat Jahan v. The State Of Bihar and Ors.

Patna HC4 Dec 2015CWJC/9725/2015

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the suspension of a Panchayat teacher. The Court held that suspension under the applicable Rules requires specific conditions like police custody or embezzlement, none of which existed. The Court also found the initiation of departmental proceedings without a mandatory show-cause notice violated natural justice, rendering the order unsustainable.

What did the court decide?

The impugned order of suspension dated 25.09.2014 issued by the Block Development Officer was set aside, and the application was allowed.

Nusrat Jahan Vs The State Of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.9725 of 2015

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====================================================== Nusrat Jahan, W/o - Md. Kalimuddin, R/o - Village & P.O. - Bijai , P.S. - Ghorasahan, District - East Champaran, Presently posted as Prakhand Teacher in upgraded Middle School, Bijai (Urdu), Ghorasahan, East Champaran. .... .... Petitioner Versus 1. The State of Bihar through the Principal Secretary, Department of Education, Government of Bihar, Patna. 2. The Principal Secretary, Department of Education, Government of Bihar, Patna. 3. The Principal Secretary, Department of Finance, Government of Bihar, Patna. 4. The Director (Primary Education), Government of Patna, Patna. 5. The District Magistrate, East Champaran, at Motihari. 6. The District Education Officer, East Champaran, at Motihari. 7. The District Programme Officer (Establishment) East Champaran, at Motihari. 8. The Block Development Officer, Ghorasahan East Champaran. 9. The Block Education Officer, Ghorasahan , East Champaran. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Amarendra Kumar, Advocate For the Respondent/s : Mr. AC to Advocate General ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 3 04-12-2015 Heard learned counsel for the petitioner and the respondents. 2. The petitioner was initially appointed as Shiksha Mitra and after coming into force of Bihar Panchayat Elementary Teachers (Niyojan and Seva Sart) Rule, 2006, she was absorbed on the post of Prakhand Teacher in Upgraded Middle School, BijaI Urdu, Ghorasahan in the district of East Champaran.

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The petitioner seeks quashing of the order dated

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Patna High Court CWJC No.9725 of 2015 (3) dt.04-12-2015

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25.09.2014 issued by the Block Development Officer, Ghorasahan East Champaran, whereby she has been placed under suspension. A prayer has also been made for quashing charge-memo, dated 18.12.2013 and entire departmental proceeding being against the provision of law and principles of natural justice.

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The petitioner submits that a Panchayat/Prakhand Teacher can be suspended in case one is in police custody or prima facie found guilty of embezzlement of Government money. As there was no such charge against her, the suspension was unsustainable. She next submits that before initiating departmental proceeding, a show-cause ought to have asked by the Secretary of the Employment Unit and only after getting response and only after consideration of the same and approval of the President of the Employment Unit, a departmental proceeding can be started, which has not been done in this case. The State Government vide notification no. 2010, dated 03.04.2006 has promulgated Bihar Panchayat Elementary Teacher (Employment and Service Condition) Rules, 2012. Rule 15 (Chha) of Bihar Panchayat Elementary Teachers (Employment and Service) Rules, 2012, which deals with the disciplinary proceeding, including suspension, is quoted herein below for easy reference:

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“15 (N) vuq”kklfud dkjZokbZA& (i) fo|ky; ls vknru

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Patna High Court CWJC No.9725 of 2015 (3) dt.04-12-2015

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vuqifLFkr jgus, cPpksa dks izrkfM+r djus vFkok vU; dkj.kksa ls fu;ksftr f”k{kdksa ,oa vuqns”kdksa ds foL) fdlh vU; izdkj ds izkIr vkjksi ds lEc/k esa fu;kstu bdkbZ ds lfpo ds }kjk Li’Vhdj.k iwNk tk;sxkA Li’Vhdj.k izkIr gksus ij mldh leh{kk dj fu;kstu lfefr ds v/;{k dh vuqefr ls foHkkxh; dkjZokbZ izkjaHk dh tk;sxhA fdlh ekeys esa tsy tkus vFkok izFke nz’V;k ljdkjh jkf”k ds xcu ds nks’kh ik;s tkus ij mls fuyfEcr fd;k tk;sxkA vU; ekeys esa foHkkxh; dkjZokbZ dh tk;sxhA fuyEcu vFkok foHkkxh; dkjZokbZ ds dze esa vkjksi i= xfBr dj tk¡p inkf/kdkjh ls tk¡p djkbZ tk;sxh rFkk nks’kh ik;s tkus ij mUgsa fuEu naM fn;s tk ldsaxsA

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y/kq naM- (i) fuUnu

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(ii) izksUufr ij jksd

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(iii) osruof) ij jksd (vlapk;kRed@lap;kRed)

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o`gr naM& (i) fuEu in ij voufr

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(ii) lsokP;wfr tks Hkfo’; esa fdlh fu;qfDr@fu;kstu gsrq fugZjrk ugha gksxh(

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(iii) ijUrq ;g Hkh fd fdlh vU; ekeys fo”ks’k esa fo”ks’k dkj.k ls vfHkfyf[kr :i ls vU; dksbZ n.M vf/kjksfir fd;s tk ldsaxsA

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(iv) vkjksi izekf.kr gksus ij f}rh; dkj.k iPNk ds Ik”pkr ogr n.M fn;s tk ldsaxs]

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(v) fuyEcu vof/k esa fu;r osru dh 50% jkkf”k thou fuokZg HkRrk ds :Ik esa ns; gksxhA

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(vi) n.M lEcU/kh vkns”k fu;ksftr lfefr ds lfpo ds gLrk{kj ls fuxZr gksxkA bl vkns”k esa mu rF;ksa dk iw.kZ C;ksjk gksxk ftlds dkj.k f”k{kd@vuqns”kd dks izklafxd naM ds ;ksX; ik;k x;k gSA

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(vii) **ftyk iz”kklu vFkok f”k{kk foHkkx ds inkf/kdkjh }kjk fujh{k.k ds nkSjku fdlh f”k{kd ,oa vuqns”kd dks fo|ky; ls lwpuk vuqifLFkr ik;s tkus ij Li’Vhdj.k iwNk tk,xkA Li’Vhdj.k

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Patna High Court CWJC No.9725 of 2015 (3) dt.04-12-2015

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vlarks’kizn gksus ij lacaf/kr f”k{kd ,oa vuqns”kd dh vuqifLFkfr vof/k dk osru dkVus dk funs”k fn;k tk ldsxkA”

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It would appear from bare perusal of Rule 15 (Chh) of Rules, 2012 that none of the condition precedent for suspending the petitioner, existed prior to issuance of order of suspension. As per Rule 15 (Chh), a Panchayat or Block Teacher can be suspended when one is in custody or there is prima facie case of embezzlement. None of the charges levelled against the petitioner falls within the ambit of the conditions aforesaid. To be specific, the petitioner has been charged of not preparing food for the students, though there were sufficient rice and pulses in the store. Furthermore, she did not hand over the charge to the Headmistress nor she took steps to strengthen the system of the schools.

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Besides, this, as per the Rules, before initiating a departmental proceeding, show-cause must be asked by the Secretary of the Employment Unit and after consideration of response and only on approval of the President of Employment Unit, a departmental proceeding can be started. No such procedure was followed and as such the impugned order initiating departmental proceeding is not sustainable in law. In this context, reference can be gainfully made to a decision in case of Dipak

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Patna High Court CWJC No.9725 of 2015 (3) dt.04-12-2015

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Babaria & Ano. Vs. The State of Gujarat & Ors, reported in (2014) 3 SCC 502 particularly, para. 61. Para 61 of the judgment is quoted herein below for easy reference:

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“61. It is well settled that where the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. This proposition of law laid down in Taylor v. Taylor [(1875) LR 1 Ch D 426] was first adopted by the Judicial Committee in Nazir Ahmad v. King Emperor (AIR 1936 PC 253) and then followed by a Bench of three judges of this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh (AIR 1954 SC 322). This proposition was further explained in para.8 of State of U.P. v. Singhara Singh (AIR 1964 SC 358) by a Bench of three Judge in the following words: of the judgment:

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“8. The rule adopted in Taylor v. Taylor is well recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted.”

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As the requisite steps before passing the order of suspension were not complied with, the impugned order of

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Patna High Court CWJC No.9725 of 2015 (3) dt.04-12-2015

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suspension is not sustainable in law and is accordingly set aside.
8. In the result, this application is allowed.
(Samarendra Pratap Singh, J.)
Uday/-
U

Nusrat Jahan v. The State Of Bihar and Ors.

Case brief

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Nusrat Jahan v. The State Of Bihar and Ors.

Case brief

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