IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 4163 of 2009 DR. GAURI KANT MISHRA, S/O LATE TARAKANT MISHRA, RESIDENT OF VILLAGE – NAWANI, P.S. – GHOGHARDIHA, DISTRICT – MADHUBANI ……………. PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, OLD SECRETARIAT, PATNA 2. THE SECRETARY, DEPARTMENT OF HEALTH MEDICAL EDUCATION, FAMILY WELFARE AND INDIGENOUS MEDICAL GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 3. THE SECRETARY, DEPARTMENT OF HEALTH SERVICES, GOVERNMENT OF BIHAR 4. THE DY. SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR 5. THE REGIONAL DY. DIRECTOR FOR HEALTH SERVICES, DARBHANGA 6. THE CIVIL SURGEON, MADHUBANI 7. THE PRINCIPAL, DARBHANGA MEDICAL COLLEGE HOSPITAL 8. SHRI S. P. KESHAV, COMMISSIONER, DEPARTMENTAL ENQUIRY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA …………………. RESPONDENTS ********* For the Petitioner: Mr. R. K. Shukla, Adv. For the State: Mr. S. K. Ghosh, AAG-2 ********** 03. 26.08.2011 This application has been filed by the petitioner for following reliefs: (i) For issuance of writ in the nature of certiorari for quashing the order, contained 2 in Memo No. 492 (9), dated 26.04.2006, issued under the signature of Mr. Parsuram Mishra, Dy. Secretary to the Government in the Department of Health and Family Welfare, whereby and whereunder the petitioner had been awarded punishment of censure, withholding of one annual increment with cumulative effect and also that the petitioner will not get anything except subsistence allowance, during the suspension period. (ii) For issuance of an appropriate writ in the nature of mandamus, directing / commanding the concerned respondents to make payment of due amount and further to give all consequential relief(s). (iii) For issuance of any other appropriate writ / writs, giving direction / directions, passing order / orders for which the petitioner may be found entitled in the facts and circumstances of the case. The reliefs, for which the petitioner has prayed in this Writ Application is indicative of the fact that he is aggrieved on account of punishment, awarded in a 3 departmental proceeding, whereby one increment has been withheld with cumulative effect, punishment of censure has been awarded and except subsistence allowance, he will not be entitled for any monitory benefit during the suspension period. Petitioner was appointed as Medical Officer on 19.03.1988 under the Health Department at Addl. Primary Health Centre, Pabia. Subsequently, he was transferred to Referral Hospital, Andhara Thadi in the district of Madhubani in the year 1992. Prior to the petitioner’s joining, one Dr. Suresh Jha, was posted as Medical Officer, Incharge-Referral Hospital, Andhra- Thadi, Madhubani. In the year 1991, he had given order by issuing indent for purchase of 10 medicine items, to Medical Store Depot, Calcutta (MSD, Calcutta), vide Memo No. 69, dated 09.06.1991. Petitioner took charge, as Incharge, Medical Officer, Referral Hospital, Andhara Thari in the district of Madhubani, vide Memo No. 1336, dated 11.06.1992. In the year 1997, the Health Department sought for options from the Doctors as to whether they want to join Bihar Medical Education Service Cadre or Bihar State Health Services Cadre. This option was invited in the light of the decision taken by the State Government in the year 1987, whereby Cadre 4 of Health Services and Bihar Medical Education Services were separated from each other. Petitioner gave his option for Bihar Medical Education Service Cadre, which was accepted and he became Tutor in the Department of Anatomy, Darbhanga Medical College Hospital, Laheriasarai. He joined there on 07.01.1998. In the year 2001, petitioner was promoted to the post of Assistant Professor. Petitioner was served with a letter dated 05.11.2003, issued under the signature of Shri B. B. Pandey, Deputy Secretary to the Government in the Health, Medical Education and Family Welfare Department, whereby he was asked to submit his show- cause with regard to the charge of purchasing medicines from MSD, Calcutta, in excess of the budget allocation. Petitioner submitted his show-cause, controverting allegations leveled against him and requested to drop the proceeding. A notification, contained in Memo No. 473 (9), dated 12.04.2004 was issued under the signature of Deputy Secretary to the Government, Health, Medical Education and Family Welfare Department, whereby petitioner was placed under suspension, and his services were taken back from Health, Medical Education and Family Welfare with immediate effect. Petitioner’s head-office was fixed in 5 the office of Regional Deputy Director, Health Services, Darbhanga. The Department of Medical Education and Family Welfare resolved to start a departmental proceeding against the petitioner under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and the Departmental Enquiry Commissioner was made Conducting Officer. The memo of charge was served upon the petitioner, which indicated that the petitioner, while posted as Incharge Medical Officer at Referral Hospital, Andhara Thari, Madhubani has misappropriated Government money in violation of Health Department’s letter no. 176(10), dated 27.01.1982 by issuing voucher no. 258/8/92 in favour of MSD, Calcutta for purchasing medicine, beyond the budgetary allocated fund for the same. Along with the memorandum of charge, list of evidence was also furnished, which were, (i) letter no. 243, dated 04.04.1997, issued by MSD, Calcutta; (ii) letter no. 176(10), dated 27.01.1982; and (iii) letter no. 2901, dated 26.12.2001, issued by the Civil Surgeon, Madhubani, but these documents were not supplied to the petitioner. The Petitioner challenged his suspension order by filing C.W.J.C. No. 16332 of 2004. The suspension order was challenged on the ground that there is no progress 6 in the departmental proceeding and he has not been paid even subsistence allowance. The charges, which have been framed against the petitioner regarding the purchase order, issued to MSD, Calcutta had never been issued by him, but by his predecessor Dr. Suresh Jha. The Writ Application was disposed of directing the respondents to expedite the departmental enquiry and conclude it within a period of four months from the date of production / communication of the order. In case the proceeding is not concluded within the said period, suspension would stand revoked. The Commissioner Departmental Enquiry, Conducting Officer of the departmental proceeding, thereafter issued letter, contained in Memo No. 498, dated 07.09.2005, asking the petitioner to participate in the departmental proceeding on 15.09.2005 at 11.25 a.m. Petitioner’s case is that the letter, informing him about the date fixed for his appearance in the Departmental Proceeding, itself, was issued from Patna on 21.09.2005. In support of which he has annexed the envelope, which contains the seal of Postal Department. Petitioner could not appear on that date. However, subsequently, when he came to know about the date, he sent a letter that some time may be allowed to him for 7 appearing in the departmental proceeding, as he was suffering from Diabetes and Typhoid. Another letter was issued by the Conducting Officer, fixing 27.09.2005 for appearance of the petitioner in the departmental proceeding. This letter was also received after expiry of the date by the petitioner, but he came to know about the date through other sources. Petitioner’s case is that he appeared before the Conducting Officer on 27.09.2005, filed his attendance in writing, but he was marked absent, stating that order has already been passed. The next date was fixed in the departmental proceeding was 03.10.2005, and the letter containing the date of departmental proceeding, was delivered to the petitioner on 07.10.2005. The letter contained in Memo No. 571, dated 03.10.2005 was dispatched from the Post Office on 05.10.2005 and delivered to the petitioner on 16.10.2005, that is, after the date fixed for hearing in the departmental proceeding. However, petitioner was informed about the date by his representative and on 07.10.2005, petitioner reached the office of Conducting Officer, awaited till 02.30 p.m., but in stead of giving him any opportunity of hearing, he was marked absent and the matter was reserved for order. Petitioner was informed that enquiry report will be 8 sent to the Administrative Department and it will also be sent to the petitioner. Petitioner made written request to the Departmental Enquiry Commissioner to provide him an opportunity, so that he may explain his position, but that was not provided to him. Since the petitioner was not allowed any opportunity to place his defence before the Conducting Officer, the departmental proceeding was concluded ex-parte. Petitioner received enquiry report, which was much beyond the four months’ time, fixed by the High Court for concluding the departmental proceeding, as such he filed his application before the Principal, Darbhanga Medical College Hospital, Laheriasarai for acceptance of his joining. The Principal, DMCH wrote letter to the Secretary, Health, Medical Education and Family Welfare for a guideline regarding acceptance of joining. In the meantime, the petitioner received letter no. 1580 (9) dated 11.11.2008, issued under the signature of Deputy Secretary to the Government in the Department of Health and Family Welfare, asking the petitioner to submit his second show-cause, in view of the enquiry report submitted by the Conducting Officer, in which the charges leveled against the petitioner has partially been proved. Ten days’ time was allowed for 9 filing second show-cause, otherwise the final order will be passed. Petitioner submitted his second show-cause, stating that the Conducting Officer did not provide him any opportunity for furnishing his defence. It was also submitted by the petitioner that only charge framed against the petitioner was with respect to issuance of indent to MSD, Calcutta for purchasing medicine. In the enquiry report, the Conducting Officer has recorded a finding that petitioner has never issued any indent in favour of MSD, Calcutta for purchasing medicine, since no other charge was framed against the petitioner, as such the finding recorded by the Conducting Officer that charge has partially been proved, is baseless. The Deputy Secretary, Department of Health, in capacity of the Disciplinary Officer without considering the show- cause filed by the petitioner, awarded punishment of censure and stoppage of one annual increment with cumulative effect as well as for non payment of salary for the period of suspension, vide order contained in Memo No. 492 (9), dated 26.04.2006. An appeal was preferred by the petitioner before Joint Secretary to the Government in the Department of Health, but that was also dismissed without considering his case. The order passed by the Appellate Authority, 10 affirming the punishment order, awarded by the Disciplinary Authority, as well as the order passed by the Disciplinary Authority has been challenged by the petitioner on the ground that petitioner has always been denied an opportunity of being heard, which is supported by the documentary evidence on record. He was never intimated in time with regard to the date of hearing in the departmental proceeding, due to which he could not appear before the Conducting Officer on one occasion. On other two occasions, against all odds, he appeared before the Conducting Officer, but deliberately he was marked absent. This only shows the motive of the Conducting Officer, which is apparent from his decision to proceed in the departmental proceeding ex-parte. Counter Affidavit has been filed on behalf of the State, in which there is no denial to this fact, but it has been stated that petitioner intentionally did not want to participate in the departmental proceeding. He was interested in delaying the conclusion of the departmental proceeding, so that the direction of the High Court regarding revocation of suspension can be effective. However, the document, which has been annexed by the petitioner in support of this contention, like, letters issued by the Conducting Officer, informing the date for 11 appearance in the departmental proceeding, being dispatched after the expiry of the date. Petitioner having received all these letters subsequent to the date fixed for his appearance, have not been denied in the Counter Affidavit. Petitioner has also annexed documents to show that on two occasions, when he came to know about the date fixed from other sources, he appeared before the Conducting Officer, filed his written attendance, but he was marked absent, on this pretext that he appeared after the time fixed for his appearance. One thing is apparent that petitioner was not given opportunity to look into the documents, to examine or cross-examined witnesses. Even in the ex-parte proceeding, not a single witness was examined by the Department in support of the charge. The Conducting Officer presumed that charge has partially been proved merely on the basis of charge-sheet. The one and only charge, which was framed against the petitioner in the memo of charge, related to issuance of a voucher in favour of MSD, Calcutta for purchasing medicine, going against the guidelines of the State Government and beyond the limit of fund allocated for purchasing the same. The Conducting Officer himself has recorded finding that only indent of the year 1991, 12 had been issued by Dr. Suresh Jha, petitioner’s predecessor in office. So far petitioner is concerned, he never had issued any indent for purchasing medicine. Petitioner joined in the year 1992 and two of the medicines, for which orders had already been placed by Dr. Suresh Jha were delivered at Referral Hospital. So far the distribution of medicine is concerned, for that no charge had been framed against the petitioner. In absence of any such charge, petitioner was not supposed to place his defence with regard to the distribution. Petitioner is not supposed to face any proceeding with respect to the charge, which had not been framed against him. The only charge framed, if not found proved, the report submitted by the Conducting Officer regarding charges being proved partially is arbitrary, illegal and non-existent. Counsel for the petitioner has brought on record a copy of judgment passed in C.W.J.C. No. 11488 of 2005, i.e., the Writ Application filed by Dr. Suresh Jha, petitioner’s predecessor in office. He filed C.W.J.C. No. 11488 of 2005, challenging dismissal order passed against him in a departmental proceeding. The charge dated 12.06.2004 framed against him, was that in the year 1991, while holding the post of Incharge Medical 13 Officer, Referral Hospital, Andhara Thari in the district of Madhubani, he had issued indent in favour of MSD, Calcutta, in violation of the Health Department’s letter no. 176(10), dated 27.02.1982 and the financial rules as well as beyond the limit of fund allocated for that. The Writ Application was allowed. The order of punishment was quashed on the ground that the charges were not found to be proved. The order passed in the Writ Application was challenged by the State by filing L.P.A. No. 965 of 2008 and that has been also dismissed. Counsel for the petitioner submits that considering the fact that the charge framed against Dr. Suresh Jha with regard to issuance of indent to MSD, Calcutta is not found to be proved by the Writ Court, there is nothing against the petitioner for which he could have been awarded punishment of censure, withholding of one increment with cumulative effect and non-payment of salary and other monitory benefits, except subsistence allowance, during the period of suspension. In the Counter Affidavit it has been stated that the Conducting Officer after considering all relevant materials found charges framed against the petitioner partially proved and awarded minor penalty of censure and stopping of one increment with cumulative effect as 14 well as non-payment of salary except subsistence allowance for the period of suspension. In the Counter Affidavit there is no statement that any additional charge had been framed against the petitioner, except the charge framed vide letter dated 26.04.2002. On perusal of the enquiry report, I fail to understand which of the charge leveled against the petitioner was partially found to be proved, if only charge framed against him was found by the Conducting Officer as not proved. The Conducting Officer has not understood the scope of the departmental proceeding, while he recorded a finding that charge has partially been proved. The Conducting Officer could not have traveled beyond the charge framed against the petitioner. When only one charge was framed against the petitioner, the Conducting Officer could not have presumed that petitioner has to defend himself against any other allegation, and punishment can be awarded against non-existing allegation. I find that the punishment awarded to the petitioner vide impugned order dated 26.04.2006, contained in Memo No. 492 (9) and the appellate order, affirming the order passed by the Disciplinary Authority are fit to be quashed for the reason that the departmental proceeding has not been 15 conducted following the procedure. The petitioner was not afforded any opportunity to place his defence and the ex-parte proceeding was concluded even without examining a single witness to prove the charge. The single charge framed against the petitioner was not proved, despite the fact punishment has been awarded against the petitioner for non-existing charge partially been proved. For all these reasons, the impugned orders are quashed. Respondents are directed to reinstate the petitioner on the post on which he was working before initiation of the departmental proceeding with all consequential benefits. SKM (Mridula Mishra, J.)