JUDGMENT :

1. Leave granted.

2. Pregnability of order dated 21.1.2011 passed by the High Court of Judicature at Patna in L.P.A. No. 477 of 2009 whereby the Division Bench has overturned the order dated 26.2.2009 passed by the learned Single Judge in CWJC No. 5210 of 2002 and directed the Respondents therein to pay 50% of the arrears of salary and the subsistence allowance in full within a period of two months and to commence the departmental proceeding afresh after issuing notice to the employee has been called in question by the State of Bihar and its functionaries in the present appeal by special leave.

3. Filtering the unnecessary details, the facts which are essential to be stated are that the Respondent was appointed as a Headmaster (Education Service) by Memorandum No. 527 dated 27.9.1991 and he joined in the Government Basic School, Bakulahar on 1.10.1991. While he was functioning as the Headmaster, the District Superintendent of Education, Bettiah made a complaint to the Regional Deputy Director (Education), Muzaffarpur regarding illegal payment of salary by the Respondent to the non-existing teachers. A communication was sent by the Regional Deputy Director on 18.9.1996 to the Director. Primary Education, Patna, Bihar for needful action as the Respondent had illegally withdrawn Rs. 35 lakhs from the treasury by manipulating the attendance register and furnishing false information. The competent authority on 10.10.1996 directed for initiation of a departmental enquiry and lodging of an FIR against the delinquent employee. Thereafter, as the facts would undrape, an ITR was lodged which gave rise to GPS No. 50 of 1996 under Sections 409 and 420, Indian Penal Code The Respondent was put under suspension by order dated 26.5.1997 and a departmental proceeding was initiated against him on certain charges. While putting the Respondent under suspension, his headquarters was fixed at the office of the District Education Officer, West Champaran. The Respondent stayed at the headquarters till 3.10.1997 and subsequently left the place as he was not in a position to remain there due to paucity of money, for his salary was not paid for one year and further no subsistence allowance was paid. He submitted number of representations to release the subsistence allowance, but the authorities maintained sphinx-like silence. In the meantime, the criminal case continued and he was acquitted by the learned trial magistrate vide judgment dated 18.4.2000. As the Respondent did not participate in the departmental proceedings it continued ex parte and eventually on the basis of the enquiry report, the disciplinary authority passed an order of dismissal on 30.9.2000.

4. Being dissatisfied with the order of dismissal, the Appellant invoked the extra-ordinary jurisdiction of the High Court by preferring a writ petition being CWJC No. 5210 of 2002. It was not stated in the petition that he had already preferred a departmental appeal. The learned Single Judge took exception to the same and also did not accept the other contentions raised by the writ Petitioner and dismissed the writ petition.

5. Aggrieved by the order passed by the learned Single Judge, the Respondent preferred an intra-Court appeal before the Division Bench. It was contended that as he had been acquitted in the criminal case, the disciplinary authority would have been well-advised to drop the departmental proceeding and not proceed further since the charges in the criminal trial and the departmental proceeding were similar; and that the departmental proceeding was vitiated as the principles of natural justice had been flagrantly violated because he was not in a position to participate in the enquiry due to his penurious condition. Emphasis was laid on the factum of non-payment of salary for one year which was payable to him and further non-release of the subsistence allowance. The said submissions were strenuously opposed by the State on the ground that the charges were not similar and, t