CIVIL WRIT JURISDICTION CASE No.1006 OF 2008 ----------- In the matter of an application under Article 226 of the Constitution of India. ----------- Dr.Narendra Narain Rai, son of Sri Laxmi Narayan Rai, resident of Sunder Sadan, Pakri Ara, District- Bhojpur, presently residing at Dharamshala Road, Post Office and Police Station- Kadam Kuan, Town and District- Patna …………. Petitioner Versus 1.The State Of Bihar through the Secretary-cum- Commissioner, Department of Medical Education, Family Welfare and Indigenous Medicine, Govt. of Bihar, New Secretariat, Bihar, Patna 2.The Secretary-cum-Commissioner, Department of Medical Education, Family Welfare and Indigenous Medicine, Govt. of Bihar, New Secretariat, Patna 3.The Additional Secretary, Department of Medical Education, Govt. of Bihar, New Secretariat, Bihar, Patna 4.The Deputy Secretary, Department of Medical Education, Family Welfare and Indigenous Medicine, Govt. of Bihar, New Secretariat, Bihar, Patna 5.The Joint Secretary, Department of Health, Govt. of Bihar, Patna 6.The Additional Director (Medical Education) Govt. of Bihar, Patna 7.The Secretary, Department of Health, Govt. of Bihar, Patna 8.The Director-in-Chief, Health Services, Govt. of Bihar, Patna 9.The Bihar Public Service Commission through its Secretary, Patna …………..Respondents ----------- For The Petitioner : M/s Pushkar Narain Shahi, Anil Singh, Patanjali Rishi and Gaurav Pratap, Adv. For The State : Mr.Ram Bilash Mahto,AAG8, Anil Kumar and Dilip Kr.Roy, A.C. to A.A.G.-8 For the B.P.S.C. : M/s Ashok Kumar Chaudhary and Anil Kumar Tiwary,Adv. ----------- P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh,J : In view of questions of law raised in this writ application, this Court had requested for the appearance of learned Additional Advocate 2 General in the case personally. He appeared and very fairly conceded on questions of law raised by learned counsel for the petitioner. 2. In the circumstances, this Court felt it appropriate to deliver judgment in open Court in presence of learned counsels for the parties. 3. Questions of law which have been raised by learned counsel for the petitioner were two fold. He submitted that, in view of first enquiry admittedly being pending, respondents had no authority to issue a fresh charge sheet, hold fresh enquiry and pass orders on conclusion of the same, dismissing the petitioner from service. He submitted that unless and until first enquiry was taken to its logical end, the said proceeding could not be just abandoned half way in order to initiate a fresh proceeding on substantially the same charges, hold the petitioner guilty and punish him. The second question which learned counsel for the petitioner raised was that, admittedly before passing the punishment of dismissal from service, respondents had not consulted Bihar Public Service Commission (in short `Commission’) which was mandatory in view of Rule 18(7) of the Bihar C.C.A. Rules, 2005 read with Article 320(3)(c) of the Constitution of India. He submitted that in view of this mandatory requirement, punishment order stands vitiated and same is fit to be quashed. 3 4. As stated earlier, learned Additional Advocate General No.8 fairly conceded to these questions of law raised by learned counsel for the petitioner. However, before entering into consideration of questions of law, a brief notice of the facts is necessary. 5. Before the Bihar Medical Education Service Teaching Cadre and Appointment to its Cadre Posts Rules, 1997 (in short “the Rules”) came into force, petitioner was appointed as Registrar in the department of Orthopaedics in Jawahar Lal Nehru Medical College and Hospital, Bhagalpur on 9.5.1994 vide Annexure-1. It is contended that during the Parliamentary Elections, petitioner was assigned with some election duty, which he defaulted. Accordingly, petitioner along with many other such doctors, who had also defaulted from attending their election duties, were put under suspension by order dated 4.9.1996 vide Annexure-2. The case of the petitioner is that his suspension was revoked with effect from 17.2.1997 itself, which he came to know only on 22.12.1997. In the meanwhile, Rules had come into force. Therefore, when petitioner approached the Principal of the College and submitted his joining, it was refused and he was asked to join in the Directorate. Petitioner accordingly submitted his joining in the Directorate with a request for his appropriate posting. He remained waiting for posting for some time and thereafter 4 by order dated 30.6.1998 he was posted as Orthopaedic Surgeon at Sadar Hospital, Dumka by showing him waiting for posting from 19.1.1998. Petitioner accordingly proceeded to join his place of posting and submitted his joining in the office of Civil Surgeon, Dumka where he was informed that the post in question had already been filled up as one Dr.Shesh Nath Jha had been posted on the post, vide Notification dated 28.5.1998. Accordingly, petitioner again submitted his joining in the office of the Commissioner-cum-Secretary, Department of Health and requested for his posting in the Bihar Medical Education Cadre against a teaching post as his suspension from the post of Registrar stood revoked prior to the Rules coming into force. Petitioner remained waiting for posting since then and, ultimately by letter dated 28.6.2002, he was informed that his services had been transferred to Jharkhand State. 6. Since petitioner was legitimately claiming his posting on a teaching post in the State, which was not considered by the respondents, he moved this Court in C.W.J.c.No.11332 of 2004 for appropriate posting and seniority. While the writ application remained pending, vide Annexure-4 dated 24.9.2004, he was put under suspension for unauthorized absence from duty. Vide Resolution dated 14.10.2004, as contained in Annexure-5, a departmental proceeding was initiated against him under Rule 55 of the 5 Civil Services (Classification, Control and Appeal) Rules, 1930. Memo of charges enclosed with the Resolution has been placed on record as Annexure-12 with the supplementary affidavit of the petitioner. The same shows that allegation against the petitioner was that after his posting at the Sadar Hospital, Dumka, by the said letter dated 30.6.1998 (wrongly mentioned as 31.6.1998), petitioner had not joined his transferred post and had remained absent which was apparent from his representation dated 16.3.2004. As such petitioner was liable to be awarded major punishment in terms of Rule 76 of Bihar Service Code. Petitioner submitted his reply denying the charges. Inquiry proceeded and the inquiry officer, after completing the enquiry, submitted his report vide Annexure-6 dated 12.2.2005. In the report, though the inquiry officer concluded that the petitioner was guilty of the charges, but he also held that the stand of the petitioner, that for his absence department was also responsible, also appeared to be correct. After submission of charge sheet, second show cause notice was issued to the petitioner vide Annexure-7 dated 12.5.2005. Reply to the same was filed by the petitioner on 6.6.2005. 7. The matter remained pending at that stage and the earlier writ application of the petitioner was taken up by this Court on 26.4.2006. This Court noticed that the suspension 6 of the petitioner had already been revoked by order dated 25.4.2006, and he was posted at headquarters and directions had been issued by the Department for appropriate posting of the petitioner. In the circumstances, this Court disposed of the writ application with a direction to the respondents to consider the case of the petitioner for his promotion and appropriate posting on the post of Assistant Professor as it was found that his status of Registrar stood restored prior to the Rules coming into force. This Court also directed that all consequential benefits have to be granted to the petitioner and exercise should be completed within four weeks from the date of receipt/production of a copy of the order. 8. Respondents aggrieved by the said order, preferred L.P.A. before the Division Bench of this Court, numbered as L.P.A.No.486 of 2006. It appears that one private respondent also preferred an L.P.A. numbered as L.P.A.No.465 of 2006 against the same order. It is said that both the appeals were earlier dismissed for default but has been later on restored and is pending for final disposal. In the meanwhile, after receipt of the second show cause reply from the petitioner, respondents referred the matter to the Commission with proposed punishment of his dismissal from service. Matter was considered by the Commission and by a reasoned opinion dated 13.7.2006, as 7 contained in Annexure-13, the Commission declined to concur with the proposed punishment against the petitioner. 9. It appears that in the wake of refusal of Commission to concur with the said proposal of the Department, respondents abandoned the said proceeding at that stage. Instead, they issued a fresh charge sheet to the petitioner vide Annexure-11 dated 24.8.2007, substantially with the same charges of his absence from duty during the said period. This charge sheet deals with his absence from duty during the said period and non- joining at his place of posting at Dumka and the other facts and circumstances which showed that he had not even reported to Civil Surgeon, Dumka and after remaining absent from duty for over 3 years started making attempt for his posting only in 2002. Petitioner, vide Annexure-10 dated 26.9.2007, raised specific objection with regard to this initiation of fresh proceeding during the pendency of the earlier proceeding. However, the inquiry officer proceeded with the inquiry and submitted his report, vide Annexure-14 dated 13.2.2008, finding the petitioner guilty of the charges. Accordingly, petitioner was given second show cause notice, vide Annexure-15 dated 13.3.2008. On receipt of second show cause notice, petitioner filed his reply and requested for several documents to enable him to file effective reply. The same was not supplied to him and order 8 of punishment dated 18.9.2008 (Annexure-18) was passed dismissing him from service. 10. Petitioner had moved this Court through this writ application challenging the very initiation of the second proceeding and praying to quash resolution, as contained in Annexure-11. However, after the order of punishment was passed, he filed amendment petitions for liberty to challenge the said punishment order as well as inquiry report and the second show cause notice. The said petitions of the petitioner were allowed by order dated 6.9.2010. Through supplementary affidavit filed in the case, petitioner has brought on record certain documents from which it appears that petitioner had sought for information under the Right to Information Act from the Department with regard to the status of the first proceeding as also whether before passing of the impugned punishment order, Commission was consulted or not in terms of Article 320(3)(c) of the Constitution of India. The information supplied by the Department are at Annexures 23 and 24 with the supplementary affidavit filed on behalf of the petitioner on 19.1.2010. The documents show that it is admitted position that the first proceeding had not been concluded and was still being treated to be pending and in respect of initiation of second proceeding by Annexure-11, concurrence of the Commission had not been obtained. 9 11. In this background of facts, learned counsel for the petitioner raised the issues as noticed above. As stated earlier, this Court requested learned Additional Advocate General No.8 to appear in the case and assist. He appeared and straightway conceded to the legal infirmities raised by learned counsel for the petitioner in initiation and conclusion of second proceeding and in passing of the punishment order. Besides, learned Additional Advocate General No.8 also did not raise any dispute on facts and did not dispute that the second charge sheet issued to the petitioner was substantially for the same lapses on the part of the petitioner, of his not joining at Dumka inspite of transfer order and having remained absent from duty for a number of years, as was mentioned in the first charge sheet. However, since the issue hinges on the pure questions of law, notwithstanding concession by learned Additional Advocate General No.8, this Court has to examine the same. 12. So far as second question raised by the petitioner is concerned, learned counsel for the petitioner has relied upon a judgment of the Apex Court in the case of A.N.D’Silva Vs. Union of India, reported in AIR 1962 S.C.1130, and has particularly referred to paragraphs 4 and 5 thereof. The observations of the Apex Court show that consultation with the Commission is obligatory on the part of the disciplinary 10 authority but the same is not binding on him. However, it appears that in view of the mandate of the Constitution, no order can be passed without referring the matter for consideration by the Commission. It is settled law now that the Commission’s role under Article 320(3)(c) of the Constitution of India is advisory and it is not mandatory for the disciplinary authority to accept the recommendations or opinion of the Commission. Therefore, even if the Commission does not concur the proposed punishment or it does not submit its views in terms of Article 320(3)(c) of the Constitution of India, action of the disciplinary authority does not become bad solely on that basis and justiciable under Article 226 of the Constitution of India. This has been made clear by the Apex Court in the said case of A.N.D’Silva (Supra) itself. 13. In view of the said judgment of the Apex Court, therefore, it cannot be held that non consultation with the Commission gives a right to the delinquent to challenge the validity of the order of punishment. Therefore, so far as this question of law raised by learned counsel for the petitioner to that extent is concerned, is not acceptable. But the said question does find substance from a different angle. It is true that on its own, the role of Commission under Article 320(3)(c) of the Constitution has been held as only advisory. But as per the decision of the Apex 11 Court in the said case of A.N.D’Silva (Supra), if the rules of the Government also provide for such consultation, then the said requirement becomes mandatory. The Apex Court has clearly held that where the relevant rules of the Government itself lays down said consultation as mandatory requirement, the same has to be followed. 14. Learned counsel for the petitioner has rightly pointed out that under Rule 18(7) of Bihar CCA Rules, 2005 an independent provision has been inserted where consultation with the Commission has been made mandatory. Rule 18 provides for action on the enquiry report and its sub-section (7) reads as follows : “(7) Notwithstanding anything contained in sub-rule (5) and (6), in every case where it is necessary to consult the Commission, the Commission shall be consulted and its advice shall be taken into consideration before making any order imposing any penalty on the government servant.” 15. From the reading of sub-section (7) of Rule 18, it is clear that the law makers have used the word “shall” for consultation with the Commission. Thus, this requirement of consultation has been made mandatory by the Rules. In the circumstances, infraction of the same read with Article 320(3)(c) of the Constitution makes the action justiciable and vulnerable in a court of law. [See (1978)2 scc 586 : Union of India Vs. Chothia]. As stated earlier, learned Additional Advocate General No.8 has conceded this. 12 16. So far as the first question of law raised by learned counsel for the petitioner is concerned, he has placed reliance on three judgments of the Apex Court in the case of K.R.Deb Vs. The Collector of Central Excise Shillong [(1971)2 SCC 102]; J.N.Roy Biswas Vs. State of Assam [(1976)1 SCC 234] and Kanailal Bera Vs. Union of India [(2007)11 SCC 517]. 17. Learned counsel for the petitioner has placed reliance on paragraphs 10,11 and 12 of the judgment of the Apex Court in the case of K.R.Deb (Supra). From the reading of said paragraphs, it appears that the entire consideration was made by the Court in reference to the Rules of the State of Assam and the Apex Court found that the Rules did not contemplate second enquiry. In that background, the Apex Court held that no second enquiry was contemplated in the Rules and therefore the same held by the respondents was bad in law. 18. In the case of J.N.Roy Biswas (Supra), first inquiry had concluded and the claim in the case was that in the first inquiry on the same charges petitioner was exonerated and reinstated in service and second inquiry was initiated illegally only to harass the petitioner. This was accepted by the high Court and the second inquiry was quashed. The Apex Court found the reasoning for grant of relief to the petitioner by the High Court as correct and dismissed the appeal 13 of the State of Assam. 19. Though the case of Kanailal Bera (Supra) was in reference to Rule 27 of CRPF Rules 1955, the Apex Court did come to the conclusion that when a proceeding is initiated, same must be brought to its logical end. The observations of the Apex Court made in paragraph 6 of the judgment is fit to be reproduced herewith : “6.The question as to whether a punishment of confinement to Civil Lines could have been directed or not should not detain us as we agree with the contention raised by learned counsel for the appellant that the purported order dated 5-4-1995 of the disciplinary authority was unsustainable in law. Rule 27 of the Central Reserve Police Force Rules, 1955, inter alia, lays down the procedure for conducting a departmental inquiry. Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges leveled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges leveled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry.” 20. Service conditions of an employee have to be governed by statutory rules, if statutory rules are in force dealing with the service conditions and, in respect of disciplinary action taken against an employee, the rules framed in this regard has to be followed. The three judgments relied upon by learned counsel for the 14 petitioner were rendered in particular reference to the rules governing the field. Therefore, in the present case also a reference to the provisions of Bihar CCA Rules has to be examined so as to locate the source of powers in the respondents to initiate second inquiry on substantially the same charges during the pendency of first inquiry. Rule 17 of 2005 Rules provides for procedure for imposing major punishment. It provides that no order imposing any of the penalties specified in clauses (vi) to (x) of Rule 14 shall be made without holding `an’ inquiry, as far as may be, in the manner provided in these Rules. Thereafter, the Rules contain elaborate procedure to be adopted for proceeding with the inquiry and for conclusion of the same. Clearly, Rules provides that once proceeding has started in terms of the said Rules, the same has to be taken to its logical end. Therefore, in view of this provision in the Rules, which is statutory in nature, it was not open to the respondents to abandon the first proceeding half way and initiate second proceeding for substantially the same charges. The proceeding initiated in terms of Rule 17 has to be concluded in terms of the said Rules itself. There is nothing in the Rules nor was it even remotely submitted by learned Additional Advocate General No.8 that respondents derived that power to initiate second proceeding under any other provisions of the said Rules or under any 15 other law in force. It is obvious that second proceeding on the same charges cannot be permissible in law, as, if the said power of the disciplinary authority is recognized in law, it may become a never ending process and for any infirmity committed in a proceeding each time, the respondents may find it convenient to abandon the same at any stage and each time initiate a fresh proceeding. It will obviously become vexatious to the delinquent without any end to the matter. 21. As per the respondents themselves, in the first inquiry, the inquiry officer had found the petitioner guilty and had submitted its report, on the basis of which second show cause notice was issued to him. Learned counsel for the petitioner has submitted that the observations of the inquiry officer was otherwise entirely in favour of the petitioner. Therefore, as per his submission, petitioner was not found guilty of the charges or was in effect exonerated from the charges. That was a matter for interpretation of the disciplinary authority. If he did not agree with any or some of the findings of the inquiry officer, it was open to him to differ with the same, assign reasons and issue notice to the petitioner in respect of the same. It appears that the disciplinary authority interpreted the inquiry report as having held the petitioner guilty, as it appears it did, and he issued a second show cause notice to the petitioner, in response to which 16 petitioner did file a reply. Learned counsel for the petitioner at this state points out that, in the earlier writ application, respondents had taken a stand that they were not going to proceed with the inquiry, which was recorded by this Court in its order while disposing of the writ application. He submits that this clearly meant that the petitioner was treated to be exonerated of the charges. However, this Court finds that technically, proceeding remained pending as no final order was passed. Therefore, abandoning the proceeding at that stage and initiating second proceeding by issue of fresh charge sheet was not open to the respondents. They were not authorized in law to do the same. Learned Additional Advocate General No.8 has not disputed this position of law nor has he raised any question of fact by asserting that the second charge sheet was not substantially the same and was for some other omissions and commission to which first charge sheet was not related. 22. In the circumstances, this Court is of the opinion that the respondents were not legally authorized to initiate the second proceeding, proceed with the charge based on the same allegation of non-joining at Dumka and absence from duty and after conclusion of inquiry were not authorized to pass orders of punishment. Therefore, this Court finds that Annexures- 11, 14, 15 and 18 i.e. resolution initiating second 17 proceeding, inquiry report, second show cause notice as well as punishment order, are bad in law and therefore are hereby quashed. 23. Since technically the first proceeding is pending, respondents are at liberty to pass orders in accordance with law. Whether they will pass orders in the first proceeding from the stage it is technically pending or they will go a stage back for further inquiry, or will pass orders as per their stand taken in the first writ application of the petitioner, or they will wait for final decision of the L.P.As., is their concern. This Court does not express any opinion on the same. Since there is no order of punishment against petitioner now, respondents are directed to reinstate petitioner in service, issue appropriate orders for his posting and other consequential benefits within three months from the date of receipt/production of a copy of this order. For the purposes of his appropriate posting, petitioner may represent the respondents along with a copy of this order. 24. With the aforesaid observations and directions, this writ application is allowed. Patna High Court The 13th September, 2010 A.F.R./Pradeep/ ( JAYANANDAN Singh,J.)