IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13150 of 2006 DR.(MRS.)VIBHASHNI PRASAD wife of Dr. Navin Kumar residentof Mohalla- Patliputra Colony, P.S.-Patliputra Colony,, District- Patna. ... Petitioner. Versus 1. THE STATE OF BIHAR 2. The Commissioner-cum-Secretary, Health Medical Education & Family Welfare Department, Govt. of Bihar, Patna. 3. The Deputy Secretary to the Government, Health, Medical Education & Family Welfare Department, Govt. of Bihar, Patna. ... Respondents. ----------- For the Petitioner :- Mr. Mukul Sinha, Advocate For the State :- Mr. Amish Kumar Jha, A.C. to S.C.-18 --------------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (25.11.2010) Mihir Kumar Jha, J. Heard Mr. Mukul Sinha, learned counsel for the petitioner and Mr. Amish Kumar Jha, A. C. to S. C. I8 on behalf of the State. 2. The prayer of the petitioner in this writ application is to quash the order of punishment dated 20.3.2006 whereby and whereunder she has been dismissed from service on the charge of proven misconduct. 3. The facts which are not in dispute and need to be noticed for the disposal of this writ application lie in a narrow compass. The petitioner was appointed as 2 Civil Assistant Surgeon on 1.1.1991 in the Bihar Health Services and had been assigned rural posting in the Primary Health Centre, Baraul in the district of Gopalganj. Within a space of four months she was made Medical Officer Incharge Leprosy Control Unit, Gopalganj in May 1991 and is said to have continued in the same capacity till 22.1.1994 whereafter she had applied for study leave for doing her post-graduation and accordingly was relieved of her responsibility of the post of Incharge Leprosy Control Unit. Subsequently, after completing her post-graduation, she is said to have continued with her different assignments. 4. The petitioner was however subjected to a departmental proceeding by serving her a memo of charge dated 29.7.2000 for the alleged misconduct and disobedience of the government order relating to her period of posting as Incharge of Leprosy Control Unit in between 3.7.1991 to 22.1.1993. The memo of charge against the petitioner containing the details of allegations reads as follows;- Þvkjksi fooj.kh %& Mk0 foHkkf"k.kh izlkn] rRdkyhu fp0 ink0] dq"V fu0 bZ0 xksikyxat lEizfr orZeku irk Mh0,e0lh0,p0 njHkaxk us vius inLFkkiu dk;kZy; esa o"kZ 1993&94 esa foHkkxh; i=kad 176 ¼10½ fnukad 27&1&82 esa fu:fir fu;eksa ds foijhr ljdkjh jkf'k dk nq:i;ksx] foHkkxh; fu;eksa dh vogsyuk rFkk vkoafVr jkf'k ls vR;f/kd jkf'k dh nok ,e0,l0Mh0 dydRrk 3 }kjk b';w Hkkmpj la[;k 31@7@93 ls 5]31]511 5@3@93 ls 2]03]005@& 13@12@93 ls 1]32]808@] 7@7@93 ls 3]97]352@& :0 dh nok Øs; ,oa izkfIr esa nks"kh izrhr gksrs gSAÞ 5. The petitioner had filed a written statement of defence denying the aforesaid charge wherein her main defence was that she had no experience or training of discharging financial duty and that the procurement of medicine by her was also made at the behest of office of Civil Surgeon whose head clerk had presented the required requisition form of medicine for its being obtained from Medicine Supply Depot (MSD, Kolkata). It is, also very significant to note here that she had categorically denied her signature on 3 out of 4 alleged vouchers and had admitted only her signature on the remaining one voucher mentioned in the memo of charge. 6. A departmental proceeding against the petitioner was thereafter conducted and the Enquiry Officer in his conclusive his finding in the enquiry report dated 27.2.2002 had held her partly guilty in the following words: Þ40& earC; %& vr,o vkjksi bl gn rd izekf.kr gS fd Ø; laca/kh fu;eksa dh vogsyuk gq;h] vkoaVu jkf'k ls vR;f/kd jkf'k dh nok dk Ø; ,e,lMh ls djkus dh iwjh i`"BHkwfe vkjksfir }kjk laiUu dh x;hA nokvksa dh izkfIr ds ekeys esa mudk nks"k vkaf'kd gh gSA 41& lkjka'k % vkjksi va'kr% izekf.kr gSAÞ 4 7. The said enquiry report was supplied to the petitioner by Joint Secretary to the Government in the Department of Health by her letter dated 7.5.2003 in form of a second show-cause notice asking her to explain as to why she be not held guilty for the charge framed against her and to that extent it would be relevant to quote the contents of second show-cause notice which reads as follows ; Þizs"kd] Jhefr ,fy"k m"kk jkuh flag] ljdkj ds la;qDr lfpo lsok esa Mk0 Jhefr foHkk"k.kh izlkn] rR~dkyhu fpfdRlk ink0] d0 fu;a=.k bdkbZ] xksikyxatA lEizfr fuyafcr] eq[;ky; Lok0 foHkkx] fcgkj iVukA iVuk] fnukad fo"k; % f}rh; dkj.k i`PNk ds laca/k esaA egk’k;] mi;qZDr fo"k;d lapkyu inkf/kdkjh ls izkIr vf/kxe dh Nk;k izfr layXu djrs gq, funs’kkuqlkj dguk gS fd izekf.kr vkjksi ds vk/kkj ij D;ksa ugha vkidh lsok lekIr dj nh tk;A vr% vuqjks/k gS fd vki viuk dkj.k i`PNk i= izkfIr ds ,d lIrkg ds vanj v/kksgLrk{kjh dks fuf’pr :i ls miyC/k djkus dh d`ik djsa] vU;Fkk le>k tk;sxk fd bl laca/k esa vkidks dqN ugha dguk gS vkSj ,drjQk fu.kZ; ls fy;k tk;sxkA fo’oklHkktu g0@& ljdkj ds la;qDr lfpoÞ (underlining for emphasis) 8. The petitioner thereafter had filed her reply to second show-cause notice as contained in Annexure 13, 5 whereafter the order of punishment was passed on 20.3.2006 which reads as follows:- ÞMk0 ¼Jherh½ foHkkf"k.kh izlkn] rRdkyhu fpfdRlk ink0] dq"B fu;a=.k bdkbZ] xksikyxat ¼lEizfr fuyafcr &eq[;ky; }ks=h; mi funs’kd] LokLF; lsok;sa] iVuk izeaMy ] iVuk dks dk;kZy;½ dks ,e0,l0Mh0 ls vfu;ferk ok@jlk;u Ø; djus ds vkjksi esa foHkkxh; vf/klwpuk la[;k 651 ¼18½ fnukad 20-4-99 }kjk fuyafcr djrs gq,] foHkkxh; ladYi fuxZr Kki la0 812 ¼18½ fnukad 29-7- 2000 }kjk buds fo:) foHkkxh; dk;Zokgh lapkfyr dh x;hA lapkyu inkf/kdkjh ls izkIr vf/kxe esa vkjksi izekf.kr ik;s x;s] ftldh izfrfyfi ds lkFk foHkkxh; i=kad 114 ¼9½ fnukad 7-5-03 }kjk fd;s x;s f}rh; dkj.k i`PNk dk mRrj leh{kksijkUr vLohd`r djrs gq, Mk0 ¼Jherh½ izlkn dks ljdkjh lsok ls c[kZkLrxh dk fu.kZ; fy;kA rn~uqlkj mi;qZDr fu.kZ; esa eaf=ifj"kn dk vuqeksnu ,oa fcgkj yksd lsok vk;ksx] iVuk ds i=kad 2266 fnukad 31-12-04 }kjk izkIr lgefr ds vkyksd esa Mk0 ¼Jherh½ foHkkf"k.kh izlkn] fuyafcr fp0ink0 eq[;ky; {ks=h; mi funs'kd] Lok0 lsok;sa] iVuk izeaMy] iVuk dk dk;kZy; dks ljdkjh lsok ls c[kZkLr fd;k tkrk gSA vkns'k vknsf'kr gS fd bl ladYi dks Mk0 ¼Jherh½ izlkn lfgr lHkh lacaf/krksa dks vko';d dkjZokbz gsrq Hksth tk;A fcgkj jkt;iky ds vkns'k ls g0@& vLi"V ¼ij'kqjke feJ½ ljdkj ds mi lfpo Kkikad 9@l0vi0&113@03&282 iVuk fnukad 20-3-06 Izkfrfyfi v/kh{kd] lfpoky; eqn.kky;] xqytkjckx] iVuk dks lwpukFkZ ,oa fcgkj jkti= ds vxyh ad esa izdk'kukFkZ izsf"krA ljdkj ds mi lfpo Kkikad 282 ¼9½ iVuk fnukad 20-3-06Þ (underlining for emphasis) 9. Mr. Sinha, learned counsel appearing on behalf of the petitioner while assailing the aforementioned order of punishment has mainly concentrated on the following issues; (i) The petitioner was not provided with the documents despite demand made by her and as 6 such she was prejudiced in defending herself in the departmental proceeding. (ii) The Enquiry Officer went beyond the scope of the charge in holding the petitioner guilty inasmuch as four specific vouchers which was made subject matter of charge had been sought to be replaced by the Enquiry Officer by taking into consideration some other vouchers without even amending the memo of charge. (iii) The charge against the petitioner of violating the circular of the Government dated 27.1.1982 for misappropriation of the government fund was absolutely vague and in fact if the same was read along with the circular in question dated 27.1.1982, it could hardly lead to the conclusion which had been arrived by the Government while inflicting the punishment on her. (iv) The Disciplinary Authority in fact again went beyond the scope of the Enquiry Report inasmuch as even when the Enquiry Officer had held charge against the petitioner to be only partly proved, the order of punishment from the stage of second show-cause proceeded as if the whole of the charge was proved against the petitioner. (v) The impugned order of punishment being one thus in part disagreement with the finding recorded by the Enquiry Officer and holding 7 the petitioner guilty for the charge as a whole is in violation of principles of natural justice inasmuch as the petitioner was never given further show-cause notice for such part disagreement. (vi) The impugned order of punishment is a cryptic order and does not contain any reason for rejecting explanation offered by the petitioner pursuant to the second show-cause reply. (vii) In any event the order of punishment by way of major penalty of dismissal of the petitioner from service is not only disproportionate but also in teeth of the finding and recommendation of the Central Bureau of Investigation. 10. Mr. Amish Kumar Jha, learned counsel for the State on the other hand defending the impugned order of punishment has submitted that once this fact has been admitted by the petitioner that she had sent requisition to M.S.D. for obtaining medicine it would be futile for her to contend that she had not committed the alleged misconduct inasmuch as an Incharge Medical Officer could not have sent such requisition on her own. He has also submitted that there was no fatal procedural infirmity in course of enquiry which could have vitiated 8 the order of punishment which can not be held disproportionate considering financial loss caused to state exchequer. He has also explained that the opinion or recommendation of C.B.I. of initiating an enquiry against the petitioner for minor punishment was not binding on State Govt. 11. In the considered opinion of this Court the issue as with regard to the charge initially framed against the petitioner being vague is well established from the contents of memo of charge itself. The fact such memo of charge was sought to be expanded by the Enquiry Officer and again by the disciplinary authority in altogether different manner would go to show the charge was vague. Mr. Sinha seems to be correct that the petitioner or any prudent person reading the memo of charge could have only gathered impression that obtaining of medicine from MSD to the tune of Rs.12 lakh and odd by the petitioner was bad because her such an act was in violation of the government circular dated 27.1.1982. His such submission as with regard to the scope of the aforesaid circular dated 27.1.1982 has to be also accepted inasmuch as it is not in doubt that Incharge Medical Officer or any one who is 9 authorized to purchase medicine could make direct requisition from MSD. Paragraph 3 of the said circular reading as follows:- ^^Hkkjr ljdkj ds izfr"Bkuks ,oa ,e0,l0Mh0 ls vkS"kf/k bR;kfn ;fn izkIr djus ds fy, tks vkns'k Hkstk tk;] og fucaf/kr Mkd ls Hkstk tk; vksj mldh ,d izfrfyfi mi funs'kd] LokLF; lsok,a lkexzh iVuk dks Hkh Hksth tk; vkSj Mk;jsDVj ,e0,l0Mh0 dydRrk vkns'k izkIr gksus ij vkS"kf/k bR;kfn dks vkiwfrZ lh/ks dj nsaxsA ;fn vkiwfrZ esa rhu pkj lIrkg ls vf/kd le; ls yxsxk rks os bl lEca/k esa vkns'k@O;kns'k Hkstus okys inkf/kdkjh dks lwfpr djsaxs fd dc mudh vkiwfrZ dj ldrs gS ;k ugha vkSj ;fn dj ldrs gSa rks fdrus fnuksa esaA bl i= dks izfrfyfi os mi funs'kd AlkexzhA iVuk dks Hkh nsxsA bl izdkj dk i= izkIr gksus ds ckn vkns'k@O;kns'k Hkstus okys inkf/kdkjh fu.kZ; ysxas fd os bl vkS"kf/k;ka bR;kfn dks djus ds fy, mrus fnu Bgjsaxs ;k mi;qZDr uhfr ds vuqlkj nwljs Jksrksa ls izkIr djus ds fy, dkjZokbZ djsaxsA** clearly envisages that the person concerned can obtain medicine for its being supplied to the patients. 12. Thus the crucial question however would be as to whether such requisition was made by the petitioner on her own or at the instance of the office of the Civil Surgeon and whether submitting such a requisition to the MSD for supply of medicine can itself be said to be a misconduct in terms of government circular dated 27.1.1982 ?. It is however clear from the circular in 10 question that such submission of requisition by itself will not amount to misconduct and therefore when there is nothing else explained in the memo of charge it was really difficult for the petitioner to understand that actually for which part of action she was being accused whether for requisitioning medicine without first making effort to obtain such medicine from establishment of Government of India (central government) or making requisition beyond allotment of fund. To that extent the following finding of the enquiry officer; Þ28& LFkkfir uhfr ds vuqlkj vkS"kf/k;ksa dk Ø; igys Hkkjr ljdkj ls fd;k tkuk gSa Hkkjr ljdkj ds izfr"Bkuksa esa nok miyC/k ugha gksus ij ,e,lMh] dydRrk] ls izkIr djus dk vuqns’k gSA bu nksuksa L=ksrksa ugha izkIr gks ldus ij vkxs rhljs&pkSFks fodYi crk;s x;s gSA ,slk dksbZ izek.k ugha gS fd vkjksfir us Hkkjr ljdkj ds izfr"Bku ls nok Ø; gsrq dksbZ igy dh Fkha vr% uhfr dk mYya?ku fd;k tkuk izekf.kr gksrk gSAÞ was itself well beyond the scope of memo of charge inasmuch as it was not even remotely alleged in the memo of charge that the petitioner ought to have first made requisition for medicine from the agencies of Government of India and since she had not done so and had straightway submitted requisition to MSD Calcutta for supply of medicine, her such action was contrary to the norms laid down in the government circular dated 27.1.1982. 11 13. As noted above the complete purchase procedure laid down in the government circular dated 27.1.1982 was capable of being acted upon by different authorities in different manner and so far the petitioner was concerned, she had no direct access or power to approach Government of India agency for supply of medicine. Paragraph no. 3 of the Government Circular dated 27.1.1982 quoted above will also go to show that such requisition was to be made from MSD, Calcutta under the conscious decision with a prior information to the headquarters of the Health Directorate. There is however no allegation in the memo of charge against the petitioner that any portion of instructions contained paragraph 3 of the circular was in any way infringed and in fact the memo of charge also does not give any inkling to this extent. The Enquiry Officer as noted above had held the petitioner guilty only for this part of the violation of the government circular namely she did not approach the agency of the Govt. of India before sending her requisition to M.S.D. when this aspect was not at all even remotely mentioned in the memo of charge. 14. Yet again this Court would find that when 12 nothing specific was mentioned about the amount of allotment, the petitioner could not have been expected to defend herself as with regard to allegation in the memo of charge of making requisition of medicine beyond allotment of fund. All that could have been understood by the petitioner that she had to explain requisition of medicine worth Rs. 12,81,676/- by four requisitions but how that was beyond allotment and for what amount if any having been not mentioned, the petitioner could not have satisfactorily explained this part of cheque. 15. The whole aspect of vagueness of charge therefore is writ large on the face of record and in fact the same is also established from the fact that the charge as framed and the finding arrived by the Enquiry Officer are itself absolutely at variance. It has to be kept in mind that even when the Enquiry Officer was satisfied with three of the four requisitions/issue vouchers for a sum of Rs.2,03,005/-, 1,32,808/- and 3,97,352/- as specifically mentioned in the memo of charge were not in the pen and signature of the petitioner and therefore also not admitted by her, even then he has gone to hold the petitioner guilty by taking into account some other issue 13 vouchers/requisitions for different amount which were not subject matter of memo of charge. To that extent the finding of the Enquiry Officer without amending the memo of charge by taking into account some other requisitions/issue vouchers will itself go to show that the charges were vague and infact incorrect. Infact the Enquiry Officer traveling beyond the scope of charges and issue vouchers mentioned therein had held that:- Þ31& fo'ys"k.k % vkjksfir inkf/kdkjh us pkj C;kns'kksa ij gLrk{kj fd;s tkus dh ckr dks Lohdkj fd;k gSA tks pkj b';w Hkkmpj ;k muls lacaf/kr nLrkost izLrqr gq;s gS] mudk vkjksfir }kjk fd;s x;s rhu C;kn'kksa ls lacaf/kr gksuk Hkh I;kZIr :Ik ls izekf.kr gSA vkjksfir us ,d fcanw ;g mBk;k gS fd vkjksi i= esa pkj b';w okmpj dk ftØ gS blesa ls rhu b';w okmpj ls lacaf/kr dksbZ dkxtkr nkf[ky ugha fd;k x;k dk;Zokyh izkjaHk gksus vksj lquokbzZ ds chp vU; rhu b';q okmpjksa ds dkxtkr yk;s x;s gSA vius bl dFku dks mUgksaus fdlh Li"V rdZ ;k ekax ds :i esa ifjos'k ugha fd;k gSA laHkkfor vk'k; ;gh gks ldrk gS fd muds dFkukuqlkj ckn esa lk{;ksa ds :i esa izLrqr fd;s x;s rhu b';w okmpj] ;Fkk 122@4@94, 118@5@94 ,oa 110@12@94 dks xzg.k ugha fd;k tk;s] D;ksafd os vkjksi i= esa of.kZr ugha gSA blds flok cpko ds c;ku ,oa lquokbZ esa fn;s x;s bl rdZ dk vksj dksbZ iz;kstu ugha fn[krk gSAÞ 16. It, thus, becomes clear that vague memo of charge gave sufficient amplitude to the Enquiry Officer to travel beyond the memo of charge who had gone to hold the petitioner guilty even in respect of such allegation which was not part of the memo of charge. The law however is well settled that a charge sheet should disclose with adequate clarity and precision the charge leveled 14 against the employee and the requirement is one of the essential adjuncts of the concept of a reasonable and adequate opportunity of defending oneself. Reference in this connection may be usefully made to the judgments of Apex Court in the case of Suresh Chandra Chakraberty Vs. State of West Bengal reported in A.I.R. 1971 S.C. 752, Swami Singh Vs. State of Rajasthan reported in A.I.R. 1986 S.C. 995 and Deputy Inspector General of Police Vs. K.S. Swaminathan reported in (1996) 11 S.C.C. 498. The submission of Mr. Jha, learned counsel for the State that since the petitioner had participated in the enquiry she cannot be allowed to assail the memo of charge on any ground including its being vague cannot be accepted by this Court inasmuch as mere participation of the delinquent in the enquiry would not exonerate the department to bring home the charge and therefore such participate would not confer to the validity of proceedings based on vague charges as was infact held by the Apex Court in the case of Sawai Singh (supra). 17. The plea of Mr. Sinha, as with regard to non-supply of documents prejudicing the petitioner in the submission of her written statement of defence and in 15 course of enquiry also has sufficient force inasmuch as the petitioner on receipt of memo of charge had specifically made demand of five documents namely; ^^dkxtkrksa dh lwph 1- {ks=h; funs'kd] LokLF; lsok,a] lkj.k izeaMy] Nijk ds i=kad 54 fnukad 27-1-97 ds lkFk yxk gqvk lkjk vuqyXudA 2- vuqcU/k ls of.kZr ,e0,l0Mh0 dydRrk }kjk izkIr lHkh b'kw Hkkmpj dh izfrA 3- nokvksa ds ewY; dh lwphA 4- fpfdRlk inkf/kdkjh ds }kjk O;kns'k djus ls lacaf/kr vf/kdkj ,oa drZO;ksa ds fu"iknu ls lacaf/kr dkxtkrsa rFkk O;kns'k djus dh fu;ekoyhA 5- foHkkxh; i=kad& 176@10@fnukad 27-1-82 dh Nk;kizfrA mijksDr dkxtkrksa ds miyC/k gksrs gh eSa viuk cpko C;ku rqjUr lefiZr dj nwaxhA** 18. It is true that the petitioner had thereafter submitted her written statement of defence denying the charge even without supply of any of the aforementioned five documents but when this aspect was raised by the petitioner before the Enquiry Officer, the Departmental Enquiry Commissioner, he had rejected the same on the plea of there being no prejudice to her holding that if the issue vouchers mentioned in the memo of charge was not referable to the petitioner and other relevant issue vouchers were brought on record in course of proceeding that would not make any difference in the nature of misconduct alleged against the petitioner. It is thus clear 16 that the finding therefore recorded in paragraph 31 and 32 of the Enquiry Report is based on such documents which was not even made subject matter of charge or the copy thereof was also not supplied to the petitioner at the time of submission of her written statement of defence. Such documents being extraneous materials and not referable to the memo of charge could not have been taken into consideration as the memo of charge was never amended. It is thus more than clear that the petitioner was also gravely prejudiced also on account of non-supply of documents. It has been a long standing rule of natural justice that if any relevant material is not disclosed in the memo of charge, then the decision making process would be vitiated. Procedural fairness in departmental proceedings demands proper disclosure of materials to be used against the delinquent. Reference in this connection may be usefully made to the judgment of Apex Court in the case of State of Punjab Vs. Bhagal Ram reported in A.I.R. 1974 S.C. 2335, and Kashi Nath Dikshita Vs. Union of India reported in A.I.R. 1986 S.C. 2118. 19. Once this aspect becomes clear that the Enquiry Officer had also proceeded to examine certain 17 other three issue vouchers, which were not made subject matter of charge, there would be no difficulty in holding that the Enquiry Officer had also travelled beyond the scope of charge and had gone to hold the petitioner even partly guilty in respect of such allegations for which she was never sought to be proceeded by the Government. The brief of the Enquiry Officer in course of a departmental proceeding is absolutely confined to the memo of charge alone and he cannot make any improvement even by amending the charge or substituting the nature of allegation on his own. Here in the present case, when the memo of charge had specifically disclosed the number and date of issue vouchers with the amount, the Enquiry Officer could not have gone beyond those issue Vouchers by looking any other vouchers for the purposes of holding the petitioner partly guilty. 20. Mr. Mukul Sinha, learned counsel for the petitioner also seems to be correct in pointing out that the Disciplinary Authority had also gone beyond the scope of the findings recorded by the Enquiry Officer and had gone to hold the petitioner guilty even for such charges which was not found to be proved in course of enquiry by the 18 Enquiry Officer. The finding of the Enquiry Officer was specific that charge against the petitioner was proved only in part to the extent of violation of the circular of the State Government leading to furnishing a background for purchase of medicine of an excessive amount beyond the allotment. It thus becomes clear that that the Enquiry Officer had found the charges only partly proved against the petitioner but when the Disciplinary Authority had either issued the second show-cause notice or had gone to pass the order of punishment as shown in the underlined portion thereof it has proceeded as if the whole charge against the petitioner was proved. 21. It has to be noted that the charge against the petitioner was that she had herself misappropriated the government amount by flouting the Government Circular dated 27.1.1982 and had gone to make purchase and also receive medicine from MSD beyond the amount of allotment to the tune of Rs. 12,86,676/- lakhs by forged vouchers. The Enquiry Officer however did not hold the petitioner guilty either of misappropriation or misuse of the Government amount and had only found the petitioner to have furnished a base for purchase of medicine by 19 submitting requisition to M.S.D. He had also not found the petitioner guilty either for purchase of medicine or its receipt. In such a situation, if the Disciplinary Authority had found it necessary to inflict punishment for the charge originally framed against