IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12329 of 1996 1. DR.AWADH KUMAR ANIL, son of Sri Harihar Maurya resident of village Amwa, P.O.- Bodh Gaya, P.S. Bodh Gaya, District- Gaya at present residing at Ander, P.O. & P.S. Ander, District- Siwan. ------------------ Petitioner Versus 1. THE STATE OF BIHAR. 2. The Health Commissioner-cum-Secretary, Department of Helath, Govt. of Bihar, Patna. 3. The Deputy Secretary, Department of Health, Govt. of Bihar, Patna. 4. The Director, Health Services, Govt. of Bihar, New Secretariat, Patna. 5. The Under Secretary, Department of Health, Govt. of Bihar, New Secretariat, Patna. 6. The Regional Deputy Director, Health Services, Govt. of Bihar, Saran Division at Chapra. 7. Sri P.N. Singh, Additional Secretary Health, Govt. of Bihar, Patna. 8. The Civil Surgeon-cum-Chief Medical Officer, Siwan. 9. Sri Laxmi Chaudhary, Ex-Civil Surgeon-cum-Chief Medical Officer, Siwan and at present Superintendent, Jawahar Lal Nehru Medical College & Hospital, Bhagalpur. -------------------- Respondents. ----------- For the petitioner :- Mr. R.K. P. Singh, Advocate Mr. Bal Bhushan Choudhary, Advocate For the Respondent :- Mr. Anil Kumar Jha, Govt. Advocate No.-2 3 14.11.2008 The petitioner challenges the order dated 17.7.1996 by which he has been awarded the punishment of stoppage of increment for five years with cumulative effect and censure along with stoppage of promotion for five years. The petitioner was posted as a Civil Surgeon as Incharge Medical Officer of Additional Primary Health Centre in village Asaw. On 22.5.1992 the Civil Surgeon, Siwan inspected the village and found that the petitioner was absent from the centre. Accordingly departmental proceedings against the petitioner were initiated and charges were - 2 - served on the petitioner vide annexure-7 on 17.10.1994 wherein it has been stated that the petitioner was absent from the Primary Health Centre and there was also a complaint that the petitioner on previous occasions was not attending to his duties in the Primary Health Centre and the villagers complained that they were not even aware of the fact that a Health Centre had been established by the Government in the village. On the basis of the aforesaid charges, show cause was issued to the petitioner and the petitioner filed his explanation to the show cause issued vide annexure-8. Thereafter it appears that the order impugned punishing the petitioner was issued. Learned counsel for the petitioner submits that the petitioner has been awarded major punishments and at the time of framing of charges, the enquiry was to be made under Rule 55 of Bihar Classification, Control and Appeal Rules. According to the petitioner the authorities did not follow any procedure before issuing the order of punishment. It is stated and submitted that the authorities did not even - 3 - care to serve him with a copy of the enquiry report nor was he given an opportunity to appear before the enquiry officer to give an explanation with respect to the charges framed against him. Specific statements have been made at paragraphs 20, 21 and 22 stating therein that no opportunity was provided to the petitioner and there has been a gross violation of the principles of natural justice in issuing the impugned order. A counter affidavit has been filed wherein it has been stated that the petitioner was given ample opportunity to explain his conduct however, no details have been given in the affidavit regarding the dates on which the enquiry was conducted. From the statements made in the writ application and the counter affidavit, one fact emerges which is that the petitioner was not given an opportunity to be present during the enquiry. There can be no doubt regarding the consequential order passed as a result of gross violation of natural justice. In a case where the incumbent is not given an opportunity to appear and defend himself, there can be no doubt with respect to - 4 - the out come of this writ application as the law on the question has been settled time and again by several judgments of this Court and the Supreme Court. There is still another aspect of the matter. The allegation against the petitioner is that he was not only absent on 22.5.1992 but there is also an allegation that in fact the petitioner did not attend to his duties in the Primary Health Centre. Since there is no enquiry report on the record, it appears that this aspect of the charges is not supported by any reasons given in the order awarding punishment. Therefore, it has also been submitted on behalf of the petitioner that the quantum of punishment awarded has no nexus with the allegations since the allegations of absence from duty have not been proved or substantiated by the materials on record. In the result, I quash Memo No. 1183 (12) Health dated 17.7.1996 by which the petitioner has been awarded punishment in pursuance of a departmental proceeding and enquiry. It is open for the authorities to consider whether they wish to proceed further - 5 - with the matter and initiate a fresh departmental proceeding against the petitioner. After the respondent Health Commissioner/Director, Health Services takes a decision regarding the desirability of proceedings with the matter further and comes to a conclusion that the department does not want to initiate a fresh proceeding, then the respondent aforesaid will also pass order and give the petitioner any consequential benefit which may arise if the authorities decide not to conduct a fresh departmental proceeding against the petitioner. The decision in any case should be taken within a period of three months from the date of receipt/production of a copy of this order. This writ application is allowed with aforesaid observations and directions. Sanjay (Sheema Ali Khan, J.)