IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7789 of 2005 Dr. Binod, son of Sri Kameshwar Prasad Choudhary, village Bari Nagar, PS Barari, District Katihar – Petitioner. Vs. 1) The State of Bihar, 2) The Director, Health Services, Bihar, Patna. 3) The Addl. Secretary to the Govt. of Bihar, Health Medical Education & Family Welfare Department, Bihar, Patna. 4) The Joint Secretary, Health Department, Bihar, Patna. 5) The Dy. Secretary, Health Department, Bihar, Patna. 6) The Dy. Director, Health Services, Bihar, Patna. 7) The Regional Dy. Director of Health, Kosi Division, Saharsa. 8) The Civil Surgeon cum Chief Medical Officer, Madhepura. 9) The C.S. cum C.M.O. Supaul. 10) The Incharge Medical Officer, Referal Hospital, Udakishanganj, District Madhepura – Respondents. 11 4-7-2011. The petitioner has prayed for quashing of Annexure 17, the order of punishment dated 11.1.2005 by which the petitioner was found guilty and dismissed from service. The petitioner further prays that the petitioner’s appeal against the order of dismissal brought on record in the amendment petition being I.A. No. 538/2011 is required to be quashed, as it is non- speaking order. The petitioner also challenges the charge sheet and the enquiry report which have resulted in the order of dismissal. The questions raised in this writ petition are : a) Whether sufficient materials and documents were produced by the prosecution to bring home the allegations levelled against the petitioner? b) Whether the respondents were justified in passing an order of dismissal after a delay of several years since the incident took place? 2 c) Whether the punishment awarded to the petitioner is disproportionate to the findings recorded against him? d) Whether the order passed in the appeal can be sustained as it is non-speaking order? The facts of the case are that the petitioner was posted as Medical Officer Incharge in the Referal Hospital, Udakishanganj in the district of Madhepura between 15.5.1991 to 30.10.1992. During his period of posting, the petitioner ordered medicines from the Government Medical Store Depot, Kolkata (M.S.D. Kolkata) by an indent no. 157 (ka), dated 8.4.1992. The medicines were not supplied and as such the petitioner again sent a letter, dated 16.5.1992 for supply of the medicines. It is also said that the petitioner sent the annual requirements for the year 1992- 93. The first show cause was issued to the petitioner on 14.8.1996. The second show cause was also issued to the petitioner, dated 16.8.1998. The petitioner gave his explanation which is at Annexure 11/B to the writ petition. The petitioner was put under suspension on 20.5.2003. Thus the petitioner moved this court in CWJC No. 10829/2003 which was disposed of by order, dated 19.4.2004, as the petitioner had remained under suspension since the issuance of the show cause, this court, thus, directed that the respondents should serve a copy of the charge sheet on the petitioner, if they intend to take disciplinary action against him within a period of ten days. Accordingly, the petitioner was served a copy of the charges on 17.6.2004 after a delay of eight years. 3 The charge sheet contained in Annexure 15 indicates that the petitioner had ordered medicines from M.S.D. Kolkata vide indent nos. 157, dated 6.4.1992, 195, dated 27.6.1992 and 252, dated 21.9.1992. The enquiry report is at Annexure 16. It has been submitted on behalf of the petitioner that during the enquiry, the Enquiry Officer ought to have produced documentary as well as oral evidence to prove that the petitioner had in fact ordered medicines from M.S.D. Kolkata. The enquiry officer ought to have considered whether the medicines had been received and utilized at the Referal Hospital. The enquiry officer while discussing the allegations has found that the value of the medicines were not mentioned in the two indents sent by the petitioner; the first indent mentions about fifteen items whereas the second indent mentioned thirty items. The enquiry officer came to the conclusion that the petitioner ought to have mentioned the approximate value of the medicines and since there is no explanation given for increasing the order to almost double, there are lapses on the part of the petitioner. Annexure 16 also indicates that the value of the medicines even if they were taken on their face value would be Rs.4 lakhs and, thus, the withdrawal of Rs. 8 lakhs for the aforesaid two indents is not justified, nor can there be any explanation for the same. It has also been alleged that the petitioner should have taken into account the Government circular and letters regarding the limit to which an annual order of medicines could be placed. It was the duty of the petitioner to be 4 aware of the rules and regulations governing the supply and order of medicines and the explanation offered by the petitioner that he was never given a copy of the regulation is not acceptable for the purpose of showing that the petitioner had discharged his duties honestly and in accordance with law. The enquiry, thus, found that the petitioner had acted irresponsibly, was not aware of the rules and regulations and ordered medicines from M.S.D. Kolkata beyond the limit fixed by the Government for ordering such medicines. However, the petitioner was not found guilty of misappropriation of the money. The disciplinary authority on the basis of the enquiry report dismissed the petitioner from service. Counsel for the petitioner refers to the fact that there is no allegation against this petitioner that the medicines ordered from M.S.D. Kolkata, was not received at the Centre, or that the medicines were not distributed. In fact by the time the medicines were received at the Centre, the petitioner was transferred out. It appears from the perusal of the enquiry report that the cost of medicines was about Rs. 4 lakhs, whereas M.S.D. Kolkata charged Rs. 8 lakhs for the said medicines. The entire tenure of the enquiry report indicates that the onus to prove the petitioner guilty has been shifted on the shoulders of the petitioner who has been imposed with the duty to prove himself innocent. In fact the stock register and the register showing the distribution of the medicine has not been brought on record to bring home the allegations of guilt. As such this court concludes that the proceeding is vitiated on the grounds as mentioned above i.e. non- 5 production of relevant documents. In this back ground I conclude that this is a case in which no evidence has been produced by the presiding officer, to indicate that the petitioner had violated norms in placing an order with M.S.D. Kolkata in view of the fact that there is sufficient precedence to indicate that the order were placed by Medical Officers of the Referral Hospitals in accordance to their needs. It was Dr. Sahay, the next man who received the medicines was not examined by the presenting officer. There is literally no documentary evidence to establish the guilt of the petitioner. One of the questions that has been raised in this case is that there has been inordinate delay in initiating the disciplinary proceeding and issuing charge sheet. Since the issuance of the first show cause in 1996, charges were only served on the petitioner in the year 2004. It has been held in State of A.P. vs. Radhakrishnan, (1998) 4 SCC 154 and State of M.P. vs. Bani Singh, AIR 1990 SC 1308, that a delinquent employee has a right that the disciplinary proceeding against him should conclude expeditiously, so that he does not have to undergo the mental agony and monetary loss by prolonged proceedings for no fault of his. It is submitted in this case, that the plea aforesaid may not be available to the petitioner for the reason that it was because of an order of this court, that the proceedings was initiated and concluded within a fixed frame time. However, it may be noted that this court merely observed that the proceeding should be concluded expeditiously, if the department intended to institute a proceeding. At that stage the 6 departmental authorities ought to have considered the questions of delay, before proceeding with the matter. Therefore, the court finds that the proceeding would be vitiated on the ground of delay amongst other grounds. The next question is whether the impugned order can be supported on the ground that it is non-speaking order. The disciplinary authority is required to apply his independent mind and give some reasons for agreeing or for that matter disagreeing with the findings of the enquiry officer. The Supreme Court has held in the case of Ram Swaroop Kanwar vs. Union of India, AIR 1985 SC 744, that the appellate authority must apply its independent authority on the issues raised before it. In the present case it appears that the points raised on behalf of the appellate authority have not been considered by it and as such order passed by the appellate authority is set aside. Lastly, it has been argued that even if all the allegations are accepted, the punishment of dismissal does not commensurate with the material which has been brought on record to support the allegations. I am not inclined to go into the merit of this aspect of the matter, as I have already concluded that the departmental proceeding is vitiated for the reasons mentioned above. Accordingly, I quash the order, dated 11.1.2005 contained in Annexure 17. This writ petition is allowed. haque ( Sheema Ali Khan, J.)