Heard learned counsel for respective parties.
In the instant petition, petitioner has prayed for the fol-lowing reliefs:-
“(A) For quashing the order dated 07.03.2018, bearing Memo No. 140 A) issued under the signature of the Director Secondary
Education, Depart-ment of Education,Government of Bihar, Patna whereby and whereunder the peti-tioner working as Lab Assistant (Auto-
mobile Engineering Technology) at Man-gal Seminary Inter College, Motihari has been dismissed from the service.
(B) For quashing the order dated 02.07.2018,bearing Memo No.331 issued under the signature of Principal Secretary-Cum-Appellate
Authority, De-partmentof Education,Government of Bi-har, Patna whereby and whereunder the appeal preferred by the petitioner has been
dismissed and the order dated 07.03.2018 (Annexure-P-1) issued by the Director Secondary Education has been affirmed and as such the
order relating to dismissal of the petitioner has re-mained un-interferred by the Appellate Authority.
(C) For holding that the im-pugned order dated 07.03.2018 (Annex-ure-P-1) and Appellate order dated 02.07.2018 have been issued by the
Re-spondents in violation to the Bihar CCA Rules, 2005 as also in violation the prin-ciples of natural justice moreover the de-partmental
proceedings against the peti-tioner suffers from procedural impropri-ety and thus the aforesaid impugned or-ders are fit to be quashed.
Further upon quashing the aforementioned order dated
(D) Further upon quashing the aforementioned order dated 07.03.2018 (Annexure-P-1) and Appellate 02.07.2018 the Respondents be
directed to reinstate the petitioner granting him the continuity of service with all conse-quential benefits.
(E) The Hon'ble Court may pass any other order/orders which it may deem fit in the facts and circumstances of the case and within the ends
of equity, justice and good conscience.â€
The petitioner was caught red-handed while alleged to have demanded and accepted illegal gratification. Arising out of the aforementioned incident
parallel proceedings were launched by the Department like departmental inquiry and criminal proceed-ings. Criminal proceedings is still pending
consideration. In the departmental proceedings matter was concluded in imposition of penalty on dismissal of petitioner vide order dated 07.03.2018
and petitioner has exhausted remedy of appeal and it was rejected, thus, the present petition.
Learned counsel for the petitioner vehemently con-tended that from the inception of issuance of charge memo till im-position of penalty and its
confirmation by appellate authority there are violation of various provisions under Bihar (Classifica-tion, Control and Appeal) Rules, 2005.
On this point, learned counsel for the respondent has not disputed and he had clear instruction from the Department to re-mand the matter.
In view of the aforesaid submission on behalf of learned counsel for respective parties, the impugned orders dated 07.03.2018 and 02.07.2018
(Annexure-P/1 & P/2) are set aside re-serving liberty to the disciplinary authority to initiate fresh inquiry and complete the proceedings within a period
of six months from the date of receipt of this order, while complying each and every relevant provisions under Bihar (Classification, Control and Ap-
peal) Rules, 2005. The intervening period from the date of dis-missal till fresh initiation of inquiry and its conclusion the disci-plinary authority is
required to examine whether petitioner could be placed under suspension or is he entitled for reinstatement or not in the light of Hon’ble Apex
Court decision in the case of ECIL vs. B. Karunakaran reported in (1993) 4 SCC 727 read with Chairman-cum-Managing Coal India Ltd. vs. Ananta
Saha and Ors. reported in (2011) 5 SCC 142. Paragraphs 46 to 50 reads as under:-
“46. In the last, the delinquent has submitted that this Court must issue direc-tions for his reinstatement and payment of ar-rears of salary
till date. Shri Bandopadhyay, learned Senior Counsel appearing for the ap-pellants, has vehemently opposed the relief sought by the
delinquent contending that the delinquent has to be deprived of the back wages on the principle of “no work-no payâ€. The delinquent
had been practising privately, i.e. has been gainfully employed, thus, not en-titled for back wages. Even if this Court comes to the
conclusion that the High Court was justified in setting aside the order of pun-ishment and a fresh enquiry is to be held now, the delinquent
can simply be reinstated and put under suspension and would be entitled to subsistence allowance as per the service rules applicable in his
case. The question of back wages shall be determined by the disciplinary authority in accordance with law only on the conclusion of the
fresh enquiry.
47. It is a settled legal proposition that the result of the fresh enquiry in such a case relates back to the date of termination. The submissions
advanced on behalf of the appellants that the result of the enquiry in such a fact situation relates back to the date of imposition of
punishment, earlier stands fortified by a large number of judgments of this Court and particularly in R. Thiruvirko-lam v. Presiding Officer,
Punjab Dairy Devel-opment Corpn. Ltd. v. Kala Singh and Graphite India Ltd. v. Durgapur Projects Ltd.
48. In ECIL v. B. Karunakar, this Court held that where the punishment awarded by the disciplinary authority is quashed by the
court/tribunal on some techni-cal ground, the authority must be given an opportunity to conduct the enquiry afresh from the stage where it
stood before the al-leged vulnerability surfaced. However, for the purpose of holding fresh enquiry, the delin-quent is to be reinstated and
may be put un-der suspension. The question of back wages, etc. is determined by the disciplinary author-ity in accordance with law after the
fresh en-quiry is concluded.
49. The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even af-ter
punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to
grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be
evolved, nor a rule of universal applica-tion can be laid for such cases. Even if the delinquent is reinstated, it would not automat-ically
make him entitled to back wages as en-titlement to get back wages is independent of reinstatement. The factual scenario and the principles
of justice, equity and good con-science have to be kept in view by an appro-priate authority/court or tribunal. In such matters, the
approach of the court or the tri-bunal should not be rigid or mechanical but flexible and realistic. (Vide U.P. SRTC v. Mit-thu Singh , Akola
Taluka Education Society v. Shivaji and Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale.
50. In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date
of first termination order till date, cannot be entertained and is hereby re-jected. In case the appellants choose to hold a fresh enquiry, they
are bound to reinstate the delinquent and, in case, he is put under sus-pension, he shall be entitled to subsistence al-lowance till the
conclusion of the enquiry. All other entitlements would be determined by the disciplinary authority as explained herein-above after the
conclusion of the enquiry. With these observations, the appeal stands disposed of. No costs.â€
The disciplinary authority is hereby directed to take note of the aforesaid judicial pronouncement in respect of whether peti-tioner is entitled for
reinstatement or he should be placed under suspension. Such decision shall be taken within a period of two months from the date of receipt of this
order. If the petitioner is en-titled for reinstatement he shall be reinstated subject to outcome of the disciplinary proceedings.
Accordingly, the present petition is allowed in part.