IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2644 of 2007 Dr. Sanjay Kumar Sharma, S/o Sri Chidanand Sharma, Village P.O. Hulas, Via Raghopur, Distt. Supaul, Presently posted as Medical Officer, Referral Hospital, Gogari (Jamalpur), Distt. Khagaria. ------- Petitioner Versus 1. The State of Bihar through the Secretary-cum-Commissioner, Department of Health, Medical Education & Family Welfare, Govt. of Bihar, Patna. 2. Deputy Secretary, Deptt. of Health, Medical Education & Family Welfare, Govt. of Bihar, Patna. 3. Civil Surgeon-cum-Chief Medical Officer, Khagaria, District Khagaria. 4. District Magistrate, Khagaria. ---------- Respondents ----------- For the Petitioner : Shree Ganesh, Advocate For the State : Government Pleader No. 4 ------------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (16.09.2010) Mihir Kumar Jha, J. Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- “1. That this application has been filed for Quashing of the order of Punishment Contained in Notification no.9/Aa 4-7/05971(9) dated 21.08.2006 issued under the signature of Deputy Secretary to the Govt. Deptt. of Health, Medical Education and Family Welfare, Bihar, Patna whereby and whereunder following Punishments have been imposed upon the petitioner (a) Warning for future (b) Three 2 increment, were withheld without cumulative effect.----” 3. Counsel for the petitioner in support of the aforesaid prayer would submit that the cryptic impugned order of punishment does even deal with the show-cause reply filed by the petitioner and as such, the same is in violation of the principle of natural justice. In this context, he has explained that a show-cause was issued to the petitioner and other doctors by a common letter dated 29.10.2005. The petitioner had filed his exhaustive show-cause reply on 8.1.2006 through registered letter no. 753 dated 21.2.2006 but, the same was not at all taken into consideration as would be evident from the impugned order dated 21.8.2006. He would, therefore, submit that the impugned order is unsustainable only on the ground of violation of principle of natural justice, inasmuch as, mere issuance of a show-cause notice is not good enough unless there is also application of mind on such show-cause reply filed by the delinquent. 4. In this case, two counter affidavits have been filed but, none of them really answer the issue as raised by the 3 petitioner specifically in paragraph no.8 of the writ application, which reads as follows:- “8. That the petitioner immediately after receiving the letter mentioned in paragraph-6, called explanation letter on 26.12.05 gave proper and effective reply of show cause to the Deputy Secretary to the Govt. Deptt. of Health, Medical education, and Family Welfare, through proper channel on 08.01.2006. The petitioner gave a detailed report about his treatment of out door patient and Emergency outdoor patient for the year 2002 to 2005. He explained all the charges leveled against the petitioner well and said that he has not violated any rules of Govt. Servant as well as he is properly attending his duty. It is pertinent to mention here that the petitioner filed his reply show cause in the office and subsequently it was sent to the proper authority through registered post on 21.02.2006.” 5. It has to be noted that while the counter affidavit filed by the respondent nos.1 & 2, does not even deal with the respective paragraphs of the writ application, the other one filed by the respondent no.3 even when it addresses to aforesaid averments made in paragraph no.8 of 4 the writ application but there is no denial to the fact of filing of the show-cause reply and the connected defence documents by the petitioner inasmuch the same reads as follows:- “7. That with regard to the statement made in paragraph no.8 of the writ application it is humbly submitted that the claim of the petitioner regarding Hospital duty during 2002-2005 as stated in Annexure-4 to the writ petitioner is totally false. In this regard it is further humbly submitted that the had joined in the Referral Hospital, Gogri on 11.7.2002. He was without earn leave from July, 2002 to September, 2002. The petitioner was on earn leave (granted by R.d.D., Munger) from 18.10.2002 to 17.10.2002. A comprehensive chart of duty performed by petitioner in out patient department/indoor of Referral Hospital Gogri has been shown in letter no. 367 dated 9.5.2008 which is Annexure A to this counter affidavit. However a comparative list of duty performed/claimed has been given below:- Year No. of patients seen as per claim of petitioner as per Annexure-4 Actual No. of patients seen (as per M.O. Incharge, Gogri, Letter no. 967 dated 9.5.08 Difference of no. of patients Seen/claimed by the petitioner 2003 8013 6863 1150 2004 5353 4918 435 2005 6351 4457 1894” 5 6. Now in this background if the content of the impugned order is examined the same does not even refer to aforesaid consideration as disclosed in the counter affidavit. The impugned order infact is bald and non-speaking order which infact has given no reason for rejection of the defence of the petitioner given in his show cause reply inasmuch as the same reads as follows:- fcgkj ljdkj LokLF; ,oa i0 d0 foHkkx vf/klwpuk iVuk] 21-8-06 la[;k 9@vk-4&7/05 971¼1½ @ Lok0 LokLF; foHkkxh; i= la[;k 1551 A9A fnukad 29-10-05 ds }kjk Li"Vhdj.k iwNk x;kA Li"Vhdj.k le; lhek chr tkus ij Hkh ugh fn;s tkus ds dkj.k leh{kksijkar Mk0 lat; dqekj 'kekZ] fp0 ink0] js0 v0 xksjh] [kxfM+;k@Mk0 foey dqekj jk;] fp0 ink0 vfr0 izk0 Lok0 dsUn jkuhldjiqjk] [kxfM+;k@Mk0 v:.k dqekj xqIrk] vfr0 izk0 Lok0 dsUnz ekulh] [kxfM+;k@Mk0 AJherh vfurk dqekjh] fp0 ink0] v0 izk0 Lok0 dsUnz iljkagk] [kxfM+;k ,oas Mk0 AJherhA jtuh dqekjh] flfoy ltZu dk;kZy;] [kxfM+;k dks fuEukafdr ltk nsrs gq, fu"ikfnr fd;k tkrk gSA 1- Hkfo"; ds fy, psrkouhA 2- rhu osruo`f} vlap;kRed izHkko ls LFkfxrA fcgkj jkT;iky ds vkns'k ls g0@& Aij'kqjke feJA ljdkj ds mi lfpoA** 7. As would be clear the impugned order proceeds on the premises that the petitioner had not filed his explanation 6 whereas the filing of such written defence of the petitioner had not been controverted in the counter affidavit. Moreover a common order of punishment for five doctors including the petitioner has been passed without discussing their individual cases. Additionally this Court would find that the impugned order is not only a cryptic order but also does not take into account any of the explanation offered by the petitioner. Moreover, from paragraph no.7 of the counter affidavit filed by the respondent no.3, it would appear that certain statistics as with regard to the number of patients examined by the petitioner were taken into account for inflicting punishment against him but then the impugned order does not refer to any of them. 8. The impugned order, in fact, even if it be held under Rule 55A of Civil Services (Classification, Control and Appeal) Rules has to disclose application of mind as was held by a division bench of this Court in the case of Dr. Rabindra Nath Singh Vs. The State of Bihar & Ors. reported in 1983 PLJR 92, wherein, it was held as follows:- "The impugned order manifests that in this case not only there has 7 been abdication of power to consider in favour of the Vigilance Department, but nothing is decipherable from the impugned order to convince me that there has been at al an application of the mind either by the authority, who has imposed the punishment or on the part of the Vigilance Department. No reasons have been assigned as to why the show cause reply is unsatisfactory. Giving of reasons in support of order which affects a person is also a basic need of the principles of natural justice (See the Siemens Engineering and Manufacturing Co. of India Ltd. V. The Union of India and another A.I.R. 1976 Supreme Court 1785). The error of law is apparent on the face of the impugned order. There is no scope but to quash the said order as contained in Annexure-1. The petitioner is entitled to the consideration of the show cause by the Disciplinary authority and the application of the mind of the said authority before imposing any punishment under rule 55-A of the Rules. The authority is required further to give reasons in support of the said order. Before I Part with the judgment, I want to make it clear that fair play is the soul of natural justice. If any prejudicial material is used by the Disciplinary authority against the delinquent employee the later must have knowledge of the said material in order to file an effective representation for the consideration of disciplinary 8 authority. The charge must not lack in particulars and must furnish sufficient details to enable the delinquent employee to prepare his defence. It should also not be lost sight of that the delinquent employee is called to answer charges in the year 1977 with respect to matters, said to have occurred between the years 1959 and 1963." 9. The same view has been consistently reiterated by this Court even in subsequent cases including in the cases of Md. Mahmudul Hassan Vs. State of Bihar reported in 1997(2) PLJR 953 and Chandradip Sinha Vs. State of Bihar reported in 2000(3) PLJR 64. 10. Thus when it becomes absolutely clear that the show-cause reply filed by the petitioner, though received in the office of the Civil Surgeon and in the office of the State Government assuming even belatedly, was not at all taken into consideration, the over simplistic explanation of the learned counsel for the State that the figures and statistics of the patients given by the petitioner in Annexure-4, the show-cause reply, could not have made a difference as explained in the counter affidavit has to be only noted for its being rejected. Such consideration of the show-cause reply of the petitioner had not to 9 be made in the counter affidavit but in the impugned order that was passed by the authority. Way back in the case of the Siemens Engineer & Manufacturing Co. of India Ltd. Versus Union of India and Anr. reported in AIR 1976 SC 1785 followed by the judgment of the Apex Court in the case of S.N. Mukherjee Vs. Union of India reported in 1990 SC 1984, it has been laid down that any order must contain reasons and in absence of reason, the same cannot be sustained, be it an administrative order or a quasi judicial order. 11. In any event the reasons given in the counter affidavit in support of the one word conclusion recorded in the impugned order cannot be looked into by this Court as was held by the Apex Court in the case of Mohinder Singh Gill Vs. Election Commission reported in AIR 1978 S.C. 851, wherein law was laid down in the following words:- “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time 10 it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at p.18): “Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older.” 12. Thus, this writ application is allowed and the impugned order dated 21.8.2006 as contained in Annexure-1 is hereby quashed and the matter is remitted back to the State Government to reconsider the explanation of the petitioner as contained in Annexure-4, along with his supplementary show cause reply to be filed by him on or before 16.11.2010 dealing with the 11 materials referred to by the Respondent no. 3 in his counter affidavit including Annexure-A giving statistics of the patents examined by him whereafter, a fresh order in the light of observation made above may be passed strictly in accordance with law within a period of six months from the date of receipt/production of a copy of this order. Patna High Court Dated the 16th Sept'2010 N.A.F.R/Rsh (Mihir Kumar Jha, J.)