IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9400 of 1997 DR.SANT CHAUDHARY, son of late Sri Ganeshi Chaudhary, resident of 4-M/152, Bahadurpur Housing Colony, Kankarbagh, Patna- 800 020, at present posted as Dy. Director (Aids) Health Department, Bihar, Patna … Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner cum Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, New Secretariat Building, Patna 3. The Additional Commissioner, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, New Secretariat Building, Patna 4. The Deputy Secretary cum Chief Vigilance Officer, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, New Secretariat Building, Patna 5. The Accountant General, Bihar, Patna … Respondents ----------- For the Petitioner : Mr. Rajendra Pd. Singh, Senior Advocate. For the State : Mr. Shyam Kishore Sharma, Govt. Advocate No.-V. For the Accountant General : Mr. P.K. Rajgarhiya, Advocate. ----------- P R E S E N T HON’BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (03.08.2010) Mihir Kumar Jha,J. Heard Mr. Rajendra Prasad Singh, learned Senior counsel for the petitioner and Mr. Shyam Kishore Sharma, learned Govt. Advocate No.V for the State as also Mr. P.K.Rajgarhiya, learned counsel for the Accountant General. 2. The prayer of the petitioner in this writ application reads as follows: “This is an application for quashing the impugned order contained in Memo No. 1465(18) dated 18.9.1997 (Annexure 1) 2 whereby the petitioner has been awarded major punishment of reduction in rank from Senior Selection Grade (4100-5300) to Junior Selection Grade (3000-4500) for nonest charges in a most arbitrary and malafide manner in complete violation of Rule 55 of the CS (CCA) Rules and Article 311(2) of the Constitution of India as well as in complete violation of rule of natural justice and fair play in defiance of Article 14 of the Constitution of India.” 3. With reference to the aforementioned prayer Mr. Singh, learned Senior counsel for the petitioner, has made his elaborate submissions on the following three issues: (i) The petitioner was not supplied even with the basic documents referable to the memo of charge and therefore, the petitioner was prejudiced in submitting his written statement of defence. (ii) After the charges were framed against the petitioner and he had denied them by filing his written statement of defence, no oral enquiry was conducted before inflicting major punishment against 3 him. (iii) The Enquiry Officer had found the petitioner guilty only for charge nos. 1 and 5 but the disciplinary authority had also gone to hold the petitioner guilty in respect of charge nos. 3,6 and 9 for which no separate show cause by way of difference of opinion was either recorded or given by the disciplinary authority to the petitioner. 4. This Court however is not at all impressed with the plea of prejudice to the petitioner for non-supply of documents, inasmuch as the memo of charge was served on the petitioner enclosing the Collector‟s report, which was actually the basis for framing of such charge against him and thereafter he had submitted his exhaustive written statement of defence without making demand for supply of any document. Once the petitioner, therefore, had understood the scope of charge and had submitted his exhaustive written statement of defence without demanding supply of any documents. he did not suffer any prejudice on this score and as such, the resultant order of 4 punishment cannot be quashed on the ground of non-supply of documents. Reference in this connection may be made to the following passage of the judgment of the Apex Court in the case of State Bank of Patiala vs. , reported in A.I.R. 1996 S.C. 1669, where the prejudice theory has been explained in the following words:- “In the case of violation of a procedural provision, the position is this; procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under „no notice‟, „no opportunity‟ and „no hearing‟ categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz, whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of 5 punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. ………” 5. There is however considerable force in the submission of Mr. Singh that the order of punishment is bad because no oral enquiry was held and in fact the Enquiry Officer had submitted the enquiry report even without issuance of any notice to the petitioner. This aspect of the matter is fully proved not only from the pleadings on record but also from the records which was produced by the learned Govt. Advocate as has been made available to him by one Ramesh Chandra Gupta, an Assistant of the Health Department who has remained present in course of hearing of this case. In this context it would be relevant to first refer to the pleadings in paragraphs 11 and 12 of the writ petition which read as follows: “11. That after the petitioner had submitted his explanation he remained awaiting for notice from the conducting Officer regarding fixation of the date for hearing in the Departmental proceeding in vain. 12. That after giving the reply against the charges as aforesaid to the conducting officer, the 6 conducting Officer unilaterally and behind the back of the petitioner conducted an enquiry, examined certain documents and explanations of the petitioner and came to the findings that petitioner is guilty of charge no. 1 and 5 and submitted the enquiry report to the disciplinary authority vide report dated 5.5.1992.” 6. The aforesaid statement has been answered by the respondents in paragraphs no. 12 and 13 of the counter affidavit which read as follows: “12. That with regard to the statements made in paragraph no.11 of the writ petition under reply it is stated that the statements made by the petitioner in this para is misleading. The Government has already directed the petitioner to pray before the conducting officer that he is himself willing to appear before the conducting officer for hearing and to cross examine the evidences as per last time of the Annexure 2 of the writ application. 13. That with regard to the statements made in paragraph no. 12 and 13 of the writ application under reply it is stated that although it is a matter of records but it is also stated that it is a fault on the part of the petitioner that he had not appeared himself 7 before the conducting officer as per the directions of the said resolution of the departmental proceeding.” 7. From the pleadings it becomes clear that the petitioner was not given any notice by the Enquiry Officer to appear in course of oral enquiry after he had submitted his written statement of defence denying the charges and thus when there is also not a single piece of paper in the file and documents produced by the state showing issuance of notice to the petitioner by the Enquiry Officer fixing any date of departmental there would be no difficulty in holding that the so called enquiry conducted by the Enquiry Officer without any notice to the petitioner was in flagrant violation of principles of fairplay and natural justice. 8. As a matter of fact from the reading of the enquiry report itself it becomes clear that upon receipt of the explanation of the petitioner the Enquiry Officer had merely paraphased and discussed the defence as disclosed by him in his written statement of defence and thereafter had gone to record his findings in respect of the charges. In this context it would be rather interesting to note here that for 8 recording the following finding in respect one of the charges, charge no.3, the Enquiry Officer holding enquiry at Patna in his office of Additional Director, Health Services, had personally gone to the office of Civil Surgeon, Samastipur since he was not given any co-operation by the Presenting Officer by providing him with the details of the alleged illegal appointment made by the petitioner in capacity of Civil Surgeon, Samastipur as is apparent from the following passage of his enquiry report: “p;u lfefr ds fo"k; ds vuqlkj cqfu;knh LokLF; dk;ZdRrkZ ds 21 ifjpk;d ds in ij 29 ,oa QkekZflLV ds in ij 33 dqy 83 O;fDr;ksa dh fu;qfDr;ka fn[kyk;h x;h gS fdUrq ekuuh; mPp U;k;ky; esa tks ;kfpdk nk;j dh x;h gS mles Ng fu;qfDr i= fuxZr fd;s x;s gSA bl vkjksi ds laca/k esa Mk0 lar pkS/kjh us dksbZ Li"V lqpuk vafdr ugha dh gS ek= budk izfrosfnr fd;k gS fd 'ks"k rhu fu;qfDr;ksa izrh{kk lwph ls dh x;h gSA miLFkkiu inkf/kdkjh us Hkh bl fcUnw ij dksbZ izdk’k ugha Mkyk gSA oSls leLrhiqj tkdj Mk0 lar pkS/kjh ds dk;Zdky esa dh x;h fu;qfDr;ks dk C;ksjk ,df=r fd;kA izkIr lqpukuqlkj cqfu;kfn LokLF; dk;ZdRrkZ ds 21 ifjpk;d ds 29 ,oa QekZflLV ds 30 in ij Mk0 pkS/kjh }kjk fu;qfDr dh x;h gSA bl izdkj fu;qfDr ds dqy la[;k 80 tkrh gSA ;g vkjksi Hkh vLi"V gS vr% bl ij vkSj vf/kd earO; nsuk mfpr tku ugha iM+rk gSA** 9. Admittedly no notice of such enquiry being conducted by him at Samastipur 9 was ever given to the petitioner and infact when the records of departmental proceeding produced before this Court itself establishes that no notice of holding the departmental proceedings was ever given to the petitioner it becomes more than clear that the Enquiry Officer had not actually conducted any oral enquiry and has submitted his enquiry report after collecting materials and information behind the back of the petitioner. In such a situation a major punishment like one in the present case of reverting the petitioner from the post of Civil Surgeon to the basic grade cannot be sustained on this ground alone, inasmuch holding of an oral enquiry upon denial of charges by the delinquent is the basic requirement of Rule 55 of Civil Services (Classification Control and Appeal) Rules, 1930, hereinafter referred to as the Rules, which reads as follows: “Without prejudice to the provisions of the Public Servants Inquiries Act, 1950, no order of dismissal, removal, compulsory retirement (or reduction) shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a criminal court or by a Court- Martial) unless he has been 10 informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and on any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer, conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to cal a witness. The proceedings shall contain a sufficient record 11 of the evidence and a statement of the findings and the grounds thereof…………….” (Underlining for emphasis) 10. From the aforementioned extracted provisions of Rule 55 it becomes absolutely clear that an oral enquiry after notice has to be conducted before inflicting a major punishment in terms of Rule 49 of the Rules. Infact that is the subtle line of distinction drawn in procedure for inflicting minor or major punishment under Rule 49 inasmuch holding of such an enquiry is not contemplated under Rule 55A of the Rules which reads as follows:- “Without prejudice to the provisions of rule 55, no order imposing the penalty specified in clauses(i), (ii) or (iv) of rule 49 (other than an order based on facts which led to his conviction in a Criminal Court or by a Court- Martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for the post) on any Government Servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed; 12 Provided that the requirements of this rule may for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing them and where they can be waived without injustice to the officer concerned.” 11. Thus on a comparative analysis of Rule 55 and 55A of the Rules it has to be held that holding of an oral enquiry and recording of evidence in respect of the charges not admitted by the delinquent is a condition precedent for inflicting major punishment of dismissal, removal compulsory retirement and reduction in rank as enumerated in Rule 49. In absence of oral enquiry in the present case against the petitioner, it has to be therefore held that the impugned order of punishment against him is also by unsustainable either of facts or in law. 12. Learned counsel for the petitioner in fact is also correct in raising the issue as with regard to recording difference of opinion in respect of the finding of the Enquiry Officer of charge nos. 3, 6 and 9, inasmuch as from the second show cause notice issued by the disciplinary authority it would not become clear as to whether the disciplinary 13 authority had chosen to record any difference of opinion with the finding recorded by the Enquiry Officer. 13. In this context it would be first useful to refer to the following finding of Enquiry Officer as with regard to charge no. 3, 6 and 9: ^^Charge No. 3 - ;g vkjksi Hkh vLi"V gS vkSj bl ij vkSj vf/kd earO; nsuk mfpr tku ugha iM+rk gSA Charge No. 6 - vr% dkxtkr miyC/k ugha djkus dk vkjksi tks Mk0 lar pkS/kjh ij yxk;k x;k gS og izekf.kr ugha gksrk gSA Charge No. 9 - ,slh fLFkfr esa Mk0 Jh pkS/kjh dks bl vkjksi ds fy;s nks"kiw.kZ ugha ekuk tk ldrk gSA** 14. As a matter of fact the Enquiry Officer in his enquiry report had held the petitioner guilty only in respect of charge nos. 1 and 5 and for the rest of charges no. 2, 3, 4, 6, 7, 8 and 9 it was clearly recorded that these charges were not proved against him. However, when a second show cause notice dated 17.8.1994 was issued, the disciplinary authority had held him guilty for charges no. 1, 3, 5, 6 and 9 in the following terms: fcgkj ljdkj LokLF; fp0 f'k{kk ,oa i0 d0 foHkkx la[;k 18@,&7&322@88&1789¼18½ @Lok0 izs"kd Jh vjfoUn dqekj >k] ljdkj ds voj lfpoA 14 lsok esa] Mk0 lUr pkS/kjh] funs'kd] yksd LokLF; laLFkku] iVuk&4 iVuk] fnukad 17@8@94 fo"k;& f}rh; dkj.k i`PNk ds lefiZr djus ds laca/k esa egk'k;] vki blls voxr gS fd LokLF; foHkkx ds ladYi la0 671 A18A fnukad 4-7-91 ls dfri; vkjksiks ds fy, vkids fo:n~/k foHkkxh; dk;Zokgh izkjEHk gks xbZ FkhA foHkkxh; dk;Zokgh ds lapkyu inkf/kdkjh ds vf/kxe ANk;kizfr layXuA ls vkids fo:n~/k izFke vkjksi izekf.kr gksrk gS fd vkius LokLF; foHkkxh; njeqnzd laokn la[;k 144 fnukad 10-5-90 ls fuxZr vkns'k dk vuqikyu ugha fd;kA vkids fo:n~/k rhljs vkjksi ds lanHkZ esa lapkyd inkf/kdkjh us ;g fy[kk gS fd bl vkjksi ds laca/k esa Mk0 lUr pkS/kjh us dksbZ Li"V lwpuk vafdr ugha dh gS ek= bruk izfrosfnr fd;k gS fd 'ks"k rhu fu;qfDr;ka izrh{kk lwph ls dh xbZ gSA bl izdkj vkids bl dFku ls vkjksi Lor% izekf.kr gks tkrk gS D;ksafd p;u lfefr }kjk ek= 83 O;fDr;ksa dh fu;qfDr dk fu.kZ; fy;k x;k Fkk tcfd vkius rhu vkSj O;fDr;ksa dks Hkh fu;qfDr dj MkyhA lapkyu inkf/kdkjh ds tkap izfrosnu ds vuqlkj vkids fo:n~/k ikapok vkjksi Hkh izekf.kr gksrk gS fd tgka ljdkj ds vkns’k ds vuqikyu esa lsok lekfIr dk vkns'k fuxZr ugha fd;k x;k ogha nwljh vksj ekuuh; mPp U;k;ky; ds vksn'k fnukad 23-8-98 ds vuwqikyu esa fnukad 25-8-98 dks iwoZor osru Hkqxrku dk vkns'k rRijrk iwoZd fuxZr fd;k x;k] tcfd bl gsrq ljdkj ds funsZ'k dh izrh{kk gks tkuh pkfg, FkhA tkap lfefr dks okafNr dkxtkr ,oa rF; foyEo ls miyC/k djkus dk NBk vkjksi Hkh vkids fo:n~/k izekf.kr gksrk gSA vkids fo:n~/k yxk;s x;s uosa vkjksi ds laca/k esa lapkyu 15 inkf/kdkjh dk earO; gS fd tc foHkkx }kjk fnukad 1-1-90 ds ckn dh xbZ fu;qfDr;ksa dks jn~n djus dk vkns'k fuxZr fd;k tk pqdk Fkk rks vkidksa Hkh bu fu;qfDr;ksa dks lkekU;r% jn~n dj nsuk pkfg, Fkk bl izdkj ;g vkjksi Hkh vkids fo:n~/k izekf.kr gksrk gSA bl lanHkZ esa ftyk inkf/kdkjh leLrhiqj ds i=kad 2529@lh fnukad 18-9-91 ANk;k izfrfyfi layXuA ls Hkh vkids fo:n~/k vfu;fer fu;qfDr dk vkjksi lEiq"V gksrk gSA vr,o vki i= izkfIr ds ,d ekg ds vUnj v/kksgLrk{kjh dks viuh f}rh; dkj.k i`PNk lefiZr djsaA mij of.kZr izekf.kr vkjksiks ds fy, D;ksa ugha vkidks in ls vodzfer dj nf.Mr fd;k tk,A fo'oklHkktu g0@& ljdkj ds voj lfpoA (Underlining for emphasis) 15. It is equally important to note here that the petitioner in his exhaustive 15 pages second show cause reply filed by him on 1.9.1994 running into 42 paragraphs he had specifically referred to this aspect in paragraphs 31 to 35 in the following manner: “That it would appear from the letter no. 1789(18) dated 17.8.94 issued by Under Secretary in the Health Department that he has traveled beyond the findings dated 5.5.92 recorded by the Conducting Officer Dr. Prabhash Chandra in the Departmental Proceedings against me and has averred in the letter (supra) that not only two charges viz. (1) & (2), which has been 16 declared substantiated against me by the conducting Officer, rather, according to him, the allegation no. 3, 6 and 9, as were leveled against me in the charge sheets, else stated proved against me. 32. That it is not clear from the letter of the Under Secretary that, it is his opinion, that the allegation no. 3, 6 and 9 have also stand proved, or it is the decision of the disciplinary authority ? 33. That however it may be presumed that the disciplinary authority has differed from the Enquiry Officer on the point of charge no. 3, 6 and 9 although it has not been said in the letter in as many words. 34. That the legal position is on this subject is well settled, that in such circumstances, (when Disciplinary Authority differs from Enquiry Officer), it is the obligatory duty on the part of the disciplinary authority to assigns sufficient and cogent reason in the event he intended to differ with the findings of Enquiry Officer. Besides when there is disagreement between the Enquiry Officer and the Disciplinary authority to the disadvantage of the delinquent, then before taking decision to imposing punishment on the delinquent he should be served with a notice and he should be given opportunity of hearing. 17 35. That it would appear from the contents of the letter of the Under Secretary (supra) that far the conclusion arrived at by the disciplinary authority that the charge no. 3, 6 and 9 also stands proved for which sufficient and cogent reason has not been explained. It is obvious that this decision is to my disadvantage, but before arriving at the prejudicial decision against me, opportunity of hearing has not been allowed to me. As a matter of fact the decision to punish me is based on conjuncture and surmises and suspicion, hence such decision is not tenable in law, and nullity.” 16. However, from the perusal of the impugned order of the punishment dated 18.9.1997 it is manifest that not a word was said by way of consideration of any of the aforesaid aspect and the same was passed in a mechanical manner in the following terms: ^^fcgkj ljdkj LokLF; fp0 f'k{kk ,oa i0 d0 foHkkx ladYi la[;k& 18@,&322@88&1465 A18A@Lok0&18-9-97 Mk0 lar pkS/kjh rRdkyhu vlSfud 'kY; fpfdRlk lg eq[; fpfdRlk inkf/kdkjh] leLrhiqj ds fo:n~/k ljdkj }kjk nok ,oa fu;qfDr esa vfu;ferrk djus vkfn vkjksiksa ds vk/kkj ij Lok0 foHkkxh; ladYi la0 671 ¼18½ fnukad 4-7-91 }kjk foHkkxh; dk;Zokgh lapkfyr dh xbZA izklkafxd vkjksiksa ij lapkyu inkf/kdkjh }kjk izLrqr 18 vf/kxe] vkjksfir fp- ink- }kjk izLrqr f}rh; dkj.k i`PNk rFkk foHkkx }kjk izLrkfor naM ij fcgkj yksd lsok vk;ksx iznRr lgefr ij ljdkj }kjk lEidZ leh{kksijkUr vfu;fer :I ls fu;qfDr;ksa djus rFkk foHkkxh; funs'kksa ds fcuk Hkqxrku djus ds vkjksi izekf.kr gksus ds dkj.k Mk0 pkS/kjh dks inkuofr (Reduction in Rank) dh ltk nsus dk fu.kZ; fy;k x;k gSA ftlds QyLo:Ik Mk0 pkS/kjh ojh; izoj dksfV 20% ds osrueku 4100&5300@& :0 ls duh; izoj dksfV 20% ds osrueku 3000&4500@& :0 esa ladYi fuxZr gksus dh frfFk ls izR;kofrZr gks tk;saxs rFkk bUgsa blh dksfV dh osru ,oa vU; lqfo/kk;sa egkys[kkdkj fcgkj }kjk fu/kkZfjr gks tk;sxhA vkns'k& vkns'k fn;k tkrk gS fd bl ladYi dks fcgkj jkti= ls vxys vad esa loZlk/kkj.k dks tkudkjh gsrq izdkf'kr djkbZ tk, rFkk bldh lwpuk Mk0 pkS/kjh ,oa vU; lacaf/kr dks Hkh ns nh tk;A g0@& n;kkdkUr feJ mi lfpo lg eq[; fuxjkuh ink0 17. Such a cryptic order without considering the specific plea raised by the petitioner by itself amount to violation of the principles of natural justice as was held in the case of The Siemens Engineering and Manufacturing Co. of India V. The Union of India and another reported in 1976 S.C. 1785 and S.N. Mukherjee V. Union of India reported in 1990(4) S.C.C. 594. 18. By-now it is also well settled that the disciplinary authority is not bound by the findings recorded by the Enquiry Officer and can always choose to differ with 19 the Enquiry Officer but then a clear notice to this effect has to be given with the reasons for recording such difference of opinion. Reference in this connection may be made to the judgment of the Apex Court in the case of Punjab National Bank & ors. vs. Kunj Behari Misra, reported in (1998) 7 SCC 84. 19. In such a situation, when this Court would find that the order of punishment against the petitioner cannot be sustained only on account of there being no oral enquiry against the petitioner, after service of notice to him and further that it was passed even by taking into consideration those charges which were not found proved by the Enquiry Officer without disclosing the reason for difference of opinion and a notice to this effect it will have no option but to quash the impugned order of punishment dated 18.9.1997, as contained in Annexure 1 to this writ application. 20. This Court, however, even after quashing the order of punishment in keeping with the nature of seriousness of the charges against the petitioner constituting gross misconduct on his part, would give liberty to the respondents to 20 take necessary action in terms of Rule 43(b) of the Bihar Pension Rules. 21. At this stage Mr. Singh would