Disposed¶47

Shivnath Kumar v. The State of Bihar

Patna HC29 Aug 2024CWJC/12803/2024

Case brief

AI extract

What is this about?

Natural justice; audi alteram partem; nemo judex in causa sua; hearing before penalty; permanent deduction of honorarium; 10% salary deduction; contractual employee; short-term contract; Bihar Education Project Council; BEPC; deputation cancellation; ex-parte termination of contract; District Executive Committee; alternative remedy; mandamus; certiorari; State Bank of India v. Rajesh Agarwal; Student Credit Card scheme; Jehanabad; Patna High Court CWJC 2024; Purnendu Singh, J.

What did the court decide?

Writ petition disposed of with a direction to the Divisional Commissioner to take appropriate action on the petitioner's Appeal/Revision against the order contained in Memo no.4725 dated 04.08.2022 expeditiously, the Court observing that the order itself is penal in nature; the penalty order was not quashed by this Court. ¶47

Shivnath Kumar Vs The State of Bihar — Patna HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the order dated 04.08.2022 (memo no.4725) of the State Project Director, BEPC imposing permanent deduction of 10% in the petitioner's monthly honorarium, passed after remand without affording him an opportunity of hearing, is vitiated by violation of the principles of natural justice. +1 more

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Court's answer

Applying State Bank of India & Ors. v. Rajesh Agarwal & Ors (Civil Appeal No.7300 of 2022), the Court observed that the principles of natural justice are substantive obligations of decision-making authorities and that audi alteram partem has to be read to save administrative action from the vice of arbitrariness, in the context of a penalty order passed after remand without hearing the affected employee; the merits of this point were left to the appellate forum.

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Ratio / Principle

In view of the efficacious remedy of Appeal availed by the petitioner before the Divisional Commissioner, the writ petition was disposed of with a direction to the Divisional Commissioner to take appropriate action on the Appeal/Revision.

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Key takeaways

The Divisional Commissioner was directed to act on the Appeal/Revision against the order contained in Memo no.4725 dated 04.08.2022 expeditiously to avoid any further delay, the Court recording that the order itself is penal in nature.ratio¶47

Detailed headnote1 paragraphs

Patna High Court, CWJC No.12803 of 2024 (Purnendu Singh, J.), order dated 29-08-2024. A contractual Accounts Assistant-cum-Data Entry Operator of Bihar Education Project, posted at Block Resource Centre, Kako (Jehanabad), challenged the order dated 04.08.2022 (memo no.4725) of the State Project Director, BEPC imposing permanent deduction of 10% from his monthly honorarium. The deduction was imposed when the State Project Director, while allowing his appeal and setting aside the cancellation of his contract (memo no.891 dated 03.06.2022), nonetheless penalised him; the petitioner alleged the penalty was passed after remand without any opportunity of hearing. Invoking State Bank of India & Ors. v. Rajesh Agarwal & Ors (Civil Appeal No.7300 of 2022) on natural justice and audi alteram partem, and noting the efficacious appeal remedy availed before the Divisional Commissioner, the Court disposed of the writ petition directing the Divisional Commissioner to take appropriate action on the pending Appeal/Revision expeditiously, observing that the impugned order is penal in nature.

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12803 of 2024

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Shivnath Kumar, Son of Radheshyam Sharma, Resident of House No.- 15, Road No.- 9C, Keshri Nagar, P.S.- Rajiv Nagar, District- Patna presently working as Accounts Assistant-cum- Data Entry Operator, Block Resource Centre, Kako, Jehanabad, District- Jehanabad.

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... ... Petitioner/s

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Versus

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

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

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The Development Commissioner-cum- Chairman, Executive Committee and Appellate Authority, Bihar Education Project Council, Bihar, Patna.

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The State Project Director, Bihar Education Project Council, Shiksha Bhawan, Rashtrabhasha Parishad Campus, Saidpur, Rajendra Nagar, Patna.

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The District Magistrate-cum- Chairman, District Executive Committee, Bihar Education Project, Jehanabad, District- Jehanabad.

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The District Programme Officer, Elementary Education and Surv Shiksha Abhiyan, Jehanabad, District- Jehanabad.

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The Block Education Officer, Block Resource Centre, Kako, DistrictJehanabad.

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... ... Respondent/s

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====================================================== Appearance :

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For the Petitioner/s : Mr. Vijay Kumar Singh, Advocate For the State : Mr. Saroj Kumar Sharma, AC to AAG-3 For the BEPC : Mr. Girijesh Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL ORDER

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2 29-08-2024 Heard Mr. Vijay Kumar Singh, learned counsel

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appearing on behalf of the petitioner, Mr. Saroj Kumar Sharma, learned AC to AAG-3 appearing on behalf of the State and Mr. Girijesh Kumar, learned counsel appearing on behalf of the Bihar Education Project Council.

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Patna High Court CWJC No.12803 of 2024(2) dt.29-08-2024 2/8

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The Petitioner in Paragraph no.1 of the present writ

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petition has sought inter alia following relief(s), which is reproduced hereinafter:

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“i). For issuance of an appropriate writ in the nature of CERTIORARI for quashing the part of the order dated 04.08.2022 passed by the Respondent no.4 and contained in his memo no.4725 dated 04.08.2022, whereby and where under the Respondent no.4 was pleased to pass an order for permanent deduction of 10% in the monthly honorarium of the petitioner.

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ii). Alternatively for issuance of an appropriate writ in the nature of MANDAMUS commanding and directing the Respondent no.3 to dispose of the revision filed by the petitioner before the Respondent no.3 on 17.12.2023 against the part of the order dated 04.08.2022 passed by the Respondent no.4 contained in memo no. 4725 dated 04.08.2022 whereby and where under the Respondent no.4 has been pleased to pass an order for permanent deduction of 10% in the monthly honorarium of the petitioner.

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iii). For issuance of any other appropriate writ / writs, order / orders direction/ directions for which the writ petitioner would be entitled under the facts and circumstances of the case.”

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Learned counsel appearing on behalf of the

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petitioner submitted that the petitioner was appointed as an Accounts Assistant- cum- Data Entry Operator on the basis of short term contract and he was posted in Block Resource Centre, Kako, Jehanabad vide letter no. 2455 dated 10.09.2007

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issued by the Bihar Education Project, Jehanabad and the contract of the petitioner is extended time to time.

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Learned counsel further submitted that the

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petitioner pursuant to the direction of the Bihar Education Project Council contained in letter no.

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Patna High Court CWJC No.12803 of 2024(2) dt.29-08-2024 3/8

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MGT/SLO/322/2009/6368 dated 17.08.2016 was deputed in AC/DC Cell of Education Department, Bihar and he was relieved vide memo no.1956 dated 29.08.2016 issued by the Bihar Education Project. The petitioner was associated with the work of scheme of Student Credit Card in State Project Management Unit. During the course of discharge of duty under the scheme of Student Credit Card in the State Project Unit, the Special Secretary, Education Department, Bihar requested the State Project Director, Bihar Education Project Council, Patna to cancel the deputation of the petitioner as well as his joining to his original place of posting for the alleged charges of absence of the petitioner from duty vide letter no.94 dated 31.03.2021. By the said letter, the Special Secretary also directed for 10% deduction from the salary of the petitioner for a year and pursuant to the aforesaid request of the Special Secretary, the State Project Director, Bihar Education Project Council, Patna has cancelled /terminated the deputation of the petitioner and directed the petitioner to submit his joining to his original place of posting on 15.04.2021 vide letter no.2686 dated 13.04.2021. However, the petitioner became seriously ill and did not submit his joining at his original place of posting in compliance of the direction of the State Project Director, Bihar Education Project

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Patna High Court CWJC No.12803 of 2024(2) dt.29-08-2024 4/8

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Council, Patna. Petitioner further submitted that he was suffering from Jaundice, as well as, Tuberculosis and doctor had advised the petitioner for complete bed rest and during the interregnum period there was COVID-2019 pandemic in full swim and due to ill health and weakness, the petitioner could not join to his original place of posting.

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The petitioner has sought interference with the penalty order on the ground that after long treatment, the petitioner recovered from his ailment and after doctor’s advice petitioner had gone to join the Block Resource Centre, Kako Jehanabad on 26.03.2022 with medical certificate but the joining of the petitioner was not accepted by the competent authority. The petitioner came to know that during the period of ailment as well as COVID 2019 pandemic the meeting of District Executive Committee was held on 18.09.2021 in the chairmanship of District Magistrate-cum- Chairman in which, a decision was taken for termination of the contract of the petitioner ex-parte and pursuant to the decision of District Executive Committee, the District Programme Officer, Jehanabad was pleased to cancel the contract of the petitioner vide memo no. 891 dated 03.06.2022 without applying his independent mind. The petitioner had preferred appeal before

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Patna High Court CWJC No.12803 of 2024(2) dt.29-08-2024 5/8

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the State Project Director, Bihar Education Project Council, Patna with supporting documents mentioning all the facts in detail for not joining at his original place of posting after cancellation of his deputation vide letter no. 2686 dated 15.04.2021. After filing application of appeal by the petitioner before the Additional State Project Director, Bihar Education Project Council, Patna vide his letter no. 3174 dated 01.07.2022 directed District Programme Officer, Jehanabad to submit fact finding report against the appeal filed by the petitioner and the District Programme Officer, Jehanabad submitted his fact finding report vide his letter no. 1108 dated 06.07.2022. After going through the plea taken by the petitioner in memo of appeal with supporting documents, as well as, the fact finding report submitted by the District Programme Officer, Jehanabad, the State Project Director, Bihar Education Project Council, Patna arrived at a finding that due to ailment, the petitioner could not join his original place of posting at Block Resource Centre, Kako, Jehanabad, and he was pleased to set aside the order passed by the District Programme Officer, Jehanabad contained in memo no.891 dated 03.06.2022. However, the State Project Director, Bihar Education Project Council, Patna has passed an order for permanent deduction of 10% from the

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Patna High Court CWJC No.12803 of 2024(2) dt.29-08-2024 6/8

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honorarium of the petitioner vide memo no. 4725 dated 04.08.2022.

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Learned counsel appearing on behalf of the petitioner submitted that the petitioner aggrieved with penal action of permanent deduction of 10% in the monthly honorarium of the petitioner vide order contained in Memo no.4725 dated 04.08.2022, has filed an Appeal/Revision before the Development Commissioner, Bihar against the said order for considering his grievance that no such deduction can be made unilaterally, which is against the principle of natural justice.

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Heard the parties.

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The petitioner is aggrieved by the unilateral action of the respondent authorities, who after remand, instead of giving any opportunity of hearing to the petitioner, had passed the penalty order. The Apex Court in the case of State Bank of India & Ors. v. Rajesh Agarwal & Ors reported in (Civil Appeal No. 7300 of 2022) has held that the Principle of natural justice are not mere legal formalities but are substantive obligations that need to be followed by the decision making and adjudicating authorities. Therefore, principles of audi alteram partem has to be read to save it from the vice of arbitrariness. I find it apt to refer paragraph no 29, which is, inter alia

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Patna High Court CWJC No.12803 of 2024(2) dt.29-08-2024 7/8

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reproduced hereinafter:

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“ we need to bear in mind that the principles of natural justice are not mere legal formalities. They constitute substantive obligations that need to be followed by decision-making and adjudicating authorities. The principles of natural justice act as a guarantee against arbitrary action, both in terms of procedure and substance, by judicial, quasi-judicial, and administrative authorities. Two fundamental principles of natural justice are entrenched in Indian jurisprudence: (i) nemo judex in causa sua, which means that no person should be a judge in their own cause; and (ii) audi alteram partem, which means that a person affected by administrative, judicial or quasi- judicial action must be heard before a decision is taken. The courts generally favor interpretation of a statutory provision consistent with the principles of natural justice because it is presumed that the statutory authorities do not intend to contravene fundamental rights. Application of the said principles depends on the facts and circumstances of the case, express language and basic scheme of the statute under which the administrative power is exercised, the nature and purpose for which the power is conferred, and the final effect of the exercise of that power.”

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Considering that petitioner has availed efficacious

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remedy of Appeal before the Divisional Commissioner, the present writ petition is disposed of with a direction to the Divisional Commissioner to take appropriate action on the

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Patna High Court CWJC No.12803 of 2024(2) dt.29-08-2024 8/8

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Appeal/Revision filed by the petitioner against the order contained in Memo no.4725 dated 04.08.2022 expeditiously, to avoid any further delay, as the order itself is penal in nature.

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(Purnendu Singh, J.)

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Ashishsingh/- U

Procedural history

How this case reached the court

AI extract

Order under challenge
Order dated 04.08.2022 passed by Respondent No.4 (State Project Director, Bihar Education Project Council, Patna) under memo no.4725 dated 04.08.2022 imposing permanent deduction of 10% from the petitioner's monthly honorarium - the part of the order sought to be quashed.¶21
State Project Director, Bihar Education Project Council, Patna (Respondent No.4) · 04.08.2022
Prior proceeding
Petitioner appointed as Accounts Assistant-cum-Data Entry Operator on short-term contract and posted at Block Resource Centre, Kako, Jehanabad vide letter no.2455 dated 10.09.2007 issued by Bihar Education Project, Jehanabad; contract extended time to time.¶25
Prior proceeding
Pursuant to Bihar Education Project Council letter no.MGT/SLO/322/2009/6368 dated 17.08.2016, petitioner deputed to AC/DC Cell of Education Department, Bihar; relieved vide memo no.1956 dated 29.08.2016 issued by Bihar Education Project.¶30
Prior proceeding
On alleged charges of absence from duty during Student Credit Card scheme work, the Special Secretary, Education Department requested the State Project Director, BEPC to cancel the deputation and also directed 10% deduction from salary for a year vide letter no.94 dated 31.03.2021.¶30
Prior proceeding
State Project Director, BEPC cancelled/terminated the deputation and directed the petitioner to submit joining at his original place of posting by 15.04.2021 vide letter no.2686 dated 13.04.2021.¶30
Prior proceeding
Petitioner's plea that he could not join owing to Jaundice and Tuberculosis, medical advice of complete bed rest, and the COVID-19 pandemic prevailing in the interregnum.¶32
Prior proceeding
Meeting of the District Executive Committee held on 18.09.2021 under the chairmanship of the District Magistrate-cum-Chairman took an ex-parte decision to terminate the petitioner's contract.¶33
Prior proceeding
District Programme Officer, Jehanabad cancelled the petitioner's contract vide memo no.891 dated 03.06.2022, allegedly without applying his independent mind.¶33
Prior proceeding
Petitioner appealed to the State Project Director, BEPC; Additional State Project Director sought a fact-finding report (letter no.3174 dated 01.07.2022); DPO Jehanabad submitted report (letter no.1108 dated 06.07.2022); the State Project Director found the petitioner could not join due to ailment and set aside memo no.891 dated 03.06.2022.¶35
Prior proceeding
However, the State Project Director, BEPC imposed permanent deduction of 10% from the petitioner's honorarium vide memo no.4725 dated 04.08.2022 (the impugned order).¶37
Prior proceeding
Petitioner filed an Appeal/Revision before the Development Commissioner against memo no.4725 dated 04.08.2022 contending that no such deduction could be made unilaterally as it violates natural justice; per the writ prayer, the revision was filed before Respondent No.3 on 17.12.2023.¶38

Shivnath Kumar v. The State of Bihar

Case brief

What is this about?

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Shivnath Kumar v. The State of Bihar

Case brief

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