Harish Chandra Thakur and Another vs State of Bihar and Others

Radha Mohan Prasad, J.—As both the M.J.C. applications arise out of similar order dismissing the connected writ petitions on account of non-appearance of the counsel for the Petitioners, as agreed, they have been heard for final disposal together.

In first, M.J.C. (M.J.C. No. 111 of 2002) there are three Petitioners and their writ petition, bearing C.W.J.C. No. 0516 of 1984, was dismissed, vide order dated 11.8.1995 (Annexure 1), as none had appeared on their behalf to press the same. The interim order passed by this Court on 6.4.1984, thus, stood vacated and this Court accordingly directed that let a copy of the said order be communicated to the Director cum-Additional Secretary (Secondary Education), Bihar, Patna (Respondent No. 1) for information. In second M.J.C. (M.J.C. No. 130 of 2002) there are two Petitioners whose writ petition, bearing C.W.J.C. No. 336 of 1984, was also dismissed by similar order passed on 11.8.1995 (Annexure 2). Thus, they have filed the present M.J.C. applications for restoring the said writ petitions.

Despite service of notice on 15/ 17.1.2002, no counter affidavit has been filed on behalf of the opposite parties.

This Court vide order dated 13.2.2002, after noticing the fact that the said order of dismissal was communicated to the Director-cum-Additional Secretary, Secondary Education, Bihar, Patna long back on 17.10.1996, vide Memo No. 9792, and still no action was taken, directed the Commissioner, Human Resources Development Department, Government of Bihar to enquire into the matter and submit his report within two weeks fixing responsibility for the above inaction.

On 28.2.2002 and on 15.3.2002 on the prayer made on behalf of the opposite parties, the matter was adjourned for two weeks and for two months respectively to enable the Secretary/Commissioner to complete the enquiry and submit the report in pursuance of the order dated 13.2.2002. Obviously, one of the reasons was to find out as to whether the Petitioners despite knowledge of dismissal continued to work by virtue of the interim order dated 6.4.1984. Despite aforementioned indulgences granted, no report has been submitted till date.

However, in M.J.C. No. 130 of 2002 a show cause has been filed in which the Secretary, Secondary Education, Bihar, Patna has admitted that he having taken over the additional charge of Secretary of the Department on 3.12.2001 and coming to know about the order passed by this Court only on 5.3.2002 could not comply with the order which was passed at the time of final hearing of the writ application, which remained pending in this Court for more than 11 years. However, he has stated that actions have been taken to comply with the said order by issuing explanations to the concerned officers as to whether memo regarding High Court''s order was received and as to what action had been taken at their level to comply with the same. In paragraph 9 of the said show causa he has, however, stated that since the matter is very old and requires investigation in different districts and with several persons, some of whom have since retired or transferred to other places and even other State (Jharkhand), two months more time was required for completing the enquiry and submitting the enquiry report as required.

In both the M.J.C. applications, the Petitioners have specifically stated that they had no knowledge about the order dated 11.8.1995, by which the writ petitions were dismissed.

In first M.J.C. it is stated that their Counsel neither informed the Petitioners about the aforesaid order nor took any steps for restoration of the writ application. It is also stated that they came know about the dismissal when information was issued, vide letter No. 1680 dated 20.12.2001 by the Regional Deputy Direct, tor of Education, Munger Division, Munger and Petitioner No. 3 was communicated about the same by the Headmistress of Adarsh Kanya High School, Sandalpur Munger, vide letter dated 2.1.2002. Copies of the said letters have been annexed as Annexures 2 and 3 respectively. It is further stated that thereafter the Petitioners camel to Patna and learnt about the death of their lawyer and thereafter consulted another Counsel and after obtaining certified copy of the order, the present restoration application has been filed on 15.1.2002.

In the second M.J.C. application the Petitioners have also asserted that the Counsel appearing on record had also no information about the dismissal of the case and it is only after six years and four months that the Regional Deputy Director of Education, Munger issued the above mentioned letter and communicated that same to all the District Education Officers indicating therein to terminate the services of the Petitioners and also directed for realisation of the salary paid to them. It is also asserted that it was in the first week of January, 2002 the Petitioners were sur (sic) know about the aforesaid development, by which time they had already entered 18 years of unblemished service now they are due to superannuate in year.

The above mentioned facts stated the said two M.J.C. applications remain coverted. The opposite parties have been able to bring anything on record show that the Petitioners had knowledge out dismissal of their writ petitions on count of non-appearance of the respected counsel.

It is submitted by the learned for the Petitioners that there can reason for the Petitioners to sit idle or almost seven years in filing these restoration petitions, especially when interim order stay was passed in their favour and under similar circumstances, exactly order of termination, which was under challenge in the writ petition, was ultimately quashed by the Division Bench comprsing Hon''ble Mr. Justice B.N. Agrawal and Hon''ble Mr. Justice Gurusharan sharma (as their Lordships then were) in C.W.J.C. No. 1740 of 1984, allowed on 30th March, 1999. Learned Counsel submitted that the Petitioners are in no way responsible for the dismissal of their writ petition or the delay in filing of the present applications and, in fact, there was international laches either on behalf of the for the Petitioners or the Petitioner thus it has been submitted that the of justice demands for restoration respective writ petitions.

Mr. Naiyar Hussain, learned Government Pleader No. II appearing for the parties has submitted that it is there is nothing on record to show Petitioners had the knowledge about (sic) dismissal of the writ petitions, but they should also have been vigilant in prosecuting their case. He has further submitted that on a writ petition tiled by Kaushlender Pandey, bearing C.W.J.C. No. 692 of 2002, another Bench of this Court vide order dated 17.4.2002 had directed for investigation by Investigation Bureau, Cabinet (Vigilance) Department to get a preliminary enquiry made by a competent officer.

Learned Counsel for the Petitioners, in reply, has submitted that the said writ petition has nothing to do with the restoration matter. He further submitted that the Petitioners cannot be blamed for not being vigilant in prosecuting their case in the facts and circumstances as stated in M.J.C. applications. In fact, in paragraph 10 of the Second M.J.C. application, the Petitioners have stated that during the period of interregnum the Petitioner was transferred from Ramanand Parsuram High School, Jalalabad, Munger to the High School, Rewata in the district of Lakhisarai. He submitted that in any view of the matter, the Petitioners cannot be held responsible for not being vigilant as the writ petition Itself remained pending for 11 years in this Court and even now it takes long time for listing of hearing matter.

This Court finds substance in the submissions of the learned Counsel for the Petitioners. Despite ample opportunity granted by this Court to find out as to whether the Petitioners had any knowledge about the dismissal of the writ Petitions and that they continued in service despite knowledge of dismissal, the Secretary has failed to submit his report now for almost three months. In the absence of any dispute with respect to the knowledge of the Petitioners of the dismissal of the writ petitions on account of non-appearance of the Counsel, in my opinion, sufficient ground has been made out for restoration of the writ petitions.

In the facts and circumstances aforementioned, both these M.J.C. applications are allowed. The connected C.W.J.C. No. 516 of 1984 and C.W.J.C. No. 336 of 1984 are restored to their original file for disposal on merit.