At, High Court of Bihar
By, THE HONOURABLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD
For the Appearing Parties: Uma Kant Shukla, Rajesh Ranjan, P.K. Singh, Advocates.
CHANDRAMAULI KR.PRASAD, J.
(1.) This application has been filed for quashing the order as contained in memo dated 5.7.1999 (Annexure 4) whereby the District Superintendent of Education, East Champaran at Motihari while revoking the order of suspension had inflicted various punishments including the punishment of withholding of two increments with cumulative effect. Further prayer made by the petitioner is to quash the order as contained in Memo dated 15th of April, 2004 (Annexure 8) whereby the appeal preferred against the aforesaid order has been dismissed by the Commissioner as barred by limitation.
(2.) In view of the order which I propose to pass, it is inexpedient to give in detail the facts of the case. Suffice it to say that by order dated 10.9.1997 petitioner was put under suspension. Thereafter by Memo dated 24.10.1997 petitioner was served with the memo of charge and he was asked to submit his explanation. Petitioner submitted his explanation dated 17.11.1997 (Annexure 2) denying the allegation made against him and for exonerating him from the charges. By the impugned order dated 5.7.1999 the District Superintendent of Education revoked the order of suspension but while doing so it inflicted various punishments including the punishment of withholding of two increments with cumulative effect.
(3.) It seems that aggrieved by the aforesaid, petitioner made representation which was placed for consideration before the District Establishment Committee in its meeting held on 22.12.2003 and it resolved to maintain the order of punishment inflicted on the petitioner. The decision of the District Establishment Committee was communicated to the petitioner by the District Superintendent of Education by letter dated 19.1.2004 (Annexure 6).
(4.) Thereafter petitioner preferred appeal as provided under Rule 10 of the Bihar State Nationalised Primary School Teachers' (Transfer and Disciplinary Action) Rules, 1994. It seems that the aforesaid appeal was filed in the office of the Commissioner on 10.2.2004. Commissioner finding that the aforesaid appeal has been preferred against the order dated 5.7.1999 passed by the District Superintendent of Education chose to dismiss the same as barred by limitation and the said order of the Commissioner was communicated to the petitioner by memo dated 15 of April, 2004.
(5.) Mr. Shukla appearing on behalf of the petitioner contends that in the facts of the present case; the Commissioner ought not to have dismissed the appeal as barred by limitation and he ought to have condoned the delay in filing the appeal. He points out that against the order dated 5.7.1999 passed by the District Superintendent of Education petitioner represented and the District Establishment Committee considered his representation in its meeting held on 22.12.2003 and resolved to maintain the punishment inflicted on him. He points out that the District Establishment Committee being in seisin of the matter, petitioner was not advised to prefer appeal before the Commissioner and only after the District Establishment Committee turned down the prayer that the petitioner preferred the appeal before the Commissioner. In such circumstance Mr. Shukla submits that Commissioner ought to have heard the appeal on merit.
(6.) JC to SC III however contends that in sum and substance the appeal preferred by the petitioner was against the order of the District Superintendent of Education dated 5.7.1999 and in case petitioner had chosen a remedy not provided in law, Commissioner was right in dismissing the appeal as barred by limitation.
(7.) Having considered the rival submission, I find substance in the submission of Mr. Shukla. Petitioner had resorted to remedy before the District Establishment Committee. The remedy, which technically speaking, may not be available to him but notwithstanding the same the District Establishment Committee considered the representation of the petitioner and resolved to reject the same in its meeting held on 22.12.2003. The decision of the District Establishment Committee was communicated to the petitioner by letter dated 19.1.2004. Thereafter the petitioner had preferred the appeal before the Commissioner which undisputedly was received in his office on 10.2.2004. In such circumstance, I am of the opinion that the Commissioner erred in dismissing the appeal as time barred without deciding the same on merits.
(8.) Accordingly, I quash the order of the Commissioner as contained in memo dated 15th of April, 2004 (Annexure-8) and remit the matter back to him for reconsideration on mer
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it in the accordance with law. (9.) As the matter is pending since long Commissioner shall make endeavour to dispose of the appeal expeditiously, preferably within a period of six months from the date of appearance of the petitioner before him. (10.) In the result, the application is partly allowed. The impugned order as contained in memo dated 15th April, 2004 (Annexure 8) is quashed with the direction aforesaid. In the facts and circumstances of the case, there shall be no order as to cost.