IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1653 of 2006 DR.ARUN KUMAR TIWARY, Son of Late Shivnath Tiwary, the then Incharge –Medical Officer, Leprosy Control Unit Bettiah, District – West Champaran, resident of village Ujjain Tola, Bettiah, district West Champaran. ….. Petitioner Versus 1. THE STATE OF BIHAR 2. The Director-in-Chef, Health Services Bihar, Vikash Bhawan, New Secretariat, Patna 3. The Deputy Secretary, Health Services, Bihar Vikash Bhawan, New Secretariat, Patna 4. The Regional Deputy Director of Health Family Welfare, Muzaffarpur 5. The Civil Surgeon – cum – Chief Medical Officer, West Champaran at Bettiah 6. Joint Secretary, Government of Bihar, Department of Health, New Secretariat, Patna ……. Respondents ----------- For the Petitioner : M/s Rajendra Pd. Singh, Sr. Advocate and Rakesh Kumar Singh, Advocate For the State : Mr. Deepak Kumar, A.C. to G.P. 3 -------- 9 18.03.2011 Heard learned counsel for the petitioner and the State. Petitioner seeks quashing of Annexure 6, which is resolution as contained in memo no. 824(9) dated 10.6.2005, whereby petitioner has been dismissed from service and seeks to be reinstated in service with consequential benefits. The case of petitioner is that while he was 2 working as Incharge Medical Officer, Leprosy Control Unit Bettiah, some complain was made regarding the irregularities committed in purchase of medicine in the Leprosy Department and accordingly after the preliminary inquiry a first information report was also lodged and the petitioner was made an accused. The investigation was later on, handed over to the Central Bureau of Investigation. However, the petitioner was suspended by the order as contained in memo no. 351(2) dated 30.3.2001 and was allowed to get subsistence allowance during the period of suspension. It is submitted that in the aforesaid letter it has been indicated that another order would be communicated regarding framing of charge and initiation of disciplinary / departmental proceeding. However, it is claimed by the petitioner that no chargesheet was ever served to him and he did not get to any opportunity to controvert the charges by filing written statement or leading evidence. It is also submitted that the factum of appointment of Inquiry Officer was also not communicated to the petitioner. The Inquiry Officer also did not communicate the dates of inquiry 3 even though by Annexure 3 dated 4.2.2003, he demanded supply of documents so that he could make out his point of view. It is submitted that he had indicated that no document was ever supplied to him and, thus, it would not be possible to him for taking a firm stand in absence of that document. Learned counsel has further submitted that belatedly in the year 2010 the Regional Deputy Director, Health, Tirhut Division, Muzaffarpur has served letter dated 10.6.2004 along with communication dated 3.2.2004 and a copy of enquiry report dated 29.10.2002. Copies of documents have been annexed as Annexures 9, 10 and 11. Learned counsel drew attention towards the inquiry report and submitted that even if it is assumed that the petitioner did not appear despite notice and inquiry proceeded ex parte, the Inquiry Officer was expected to make an inquiry regarding charges upon consideration of the documents and witnesses etc. and was obliged to record his firm finding thereupon. However, from the inquiry report it appears that there is no positive finding that the charges have been proved against the petitioner. The Inquiry Officer has 4 stated that in view of the matter that the petitioner had not appeared before him either he should be given one more opportunity or since he has not appeared and filed his show cause / written statement the charges framed against him should be deemed to have been proved. Learned counsel submits that this mode of inquiry can be termed as perverse as neither any evidence was produced by the Presenting Officer or by the Department concerned nor has anything been considered by the Inquiry Officer. There is no positive finding also that the charge stands proved. The Inquiry Officer has recorded its view only on the basis of presumption. Learned counsel places reliance upon a decision of Apex Court rendered in Sur Enamel and Stamping Works Ltd., v. The workmen (AIR 1963 Supreme Court 1914) to show what is required to be followed during the course of inquiry. It is submitted that the aforesaid decision of the Apex court still holds good in the field and, thus, since inquiry has not been conducted in the manner as should have been done, the order of dismissal passed 5 by the disciplinary authority is also liable to be set aside. Learned counsel appearing for the State submitted that charges have been served upon the delinquent officer, however, he never appeared before the Inquiry Officer. Therefore, he was compelled to proceed ex parte. It is also submitted that second show cause notice was also issued upon him, however, the same was not received and returned back. Thereafter disciplinary authority has passed the impugned order. But at the time of hearing learned counsel has tried to demonstrate from the records that the same was actually served upon the petitioner. Learned counsel also drew attention towards Annexure 3 filed by the petitioner to show that though the petitioner claims that he was not served with the charges, however, from his document it appears that he demanded some document and has stated that unless those documents are served upon him he cannot answer the charges. Thus, it is urged that the claim of petitioner that charge was not served upon him is not tenable. However, learned counsel for the State could not show from inquiry that 6 the same has been conducted in a manner in which that should have been conducted. There is no discussion at all with regard to the concerned charge having been proved and there is no positive finding also. The inquiry report does not show that any document or any witness or any record was considered while making such inquiry. Not only that, the Inquiry Officer is not even sure regarding his own finding as at one place he says that one more opportunity should be given to the petitioner and on the other hand he again says that since the petitioner has not submitted his show cause, the charges could be deemed to have been proved. In the opinion of this court, this application can be disposed of even without going into the disputed issue regarding the service of chargesheet or second show cause notice. In the opinion of this Court the Inquiry Officer has failed to consider the charges leveled against the petitioner in its proper perspective and the inquiry report does not show that any witness, document or records have been considered by him or discussions have been made for the purpose of proving 7 the charge. No positive finding has also been recorded to the effect that on the basis of inquiry charges stands proved against the petitioner. The Inquiry Officer was not sure in himself as to whether the charges stands proved or not. The positive finding after consideration of material on record was required even if the inquiry was ex parte. In that view of the matter, the proceeding conducted in the manner cannot be sustained in law and has to go. As a result, the proceeding from the stage of inquiry is hereby quashed. As a consequence, the Annexure 6, the impugned order, whereby the petitioner has been dismissed on the basis of such enquiry, also stands quashed and set aside. However, the authorities are expected to initiate fresh proceeding from the stage of service of the charges against the petitioner. Petitioner is also expected to cooperate in the inquiry and shall appear before the respondent no. 4 within eight weeks along with a copy of this order, who shall immediately serve a copy of the charges upon the petitioner. Since it has been submitted on behalf of the petitioner that address 8 shown in the supplementary affidavit filed on 7.1.2011, though on 19.11.2010, is the correct address of the petitioner, all future communication to the petitioner in future should be upon the aforesaid address. It is also made clear that despite of all efforts, if the petitioner again chooses not to appear in the inquiry, the authorities will be at liberty to proceed ex parte against him. The authorities are expected to conclude the proceeding as quickly as possible preferably within six months from the date of service of charges. It is goes without saying that the status of the petitioner would remain as same which he was availing at the time when the charges were framed initially. Petitioner would also be at liberty to make a representation before the authorities for payment of subsistence allowance, if already not paid, and the authority concerned shall consider the same in accordance with law. Accordingly this writ application stands allowed. Spd/- ( Dr. Ravi Ranjan, J.)