Patna High Court CWJC No.7467 of 2009 (4) dt.15-09-2011 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7467 of 2009 ====================================================== Umesh Prasad .... .... Petitioner/s Versus The State Of Bihar & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Girish Nandan Pd.Singh Mr. Satyendra Narayan Singh For the Respondent/s : Mr. (Aag1) ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 4 15-09-2011 Heard counsel for the petitioner and the counsel appearing for the State. This application has been filed by the petitioner for quashing an order contained in memo no. 7783 dated 28.9.2008 ( Annexure-4) issued by Civil Surgeon-cum-Chief Medical Officer, Patna, whereby he has been put under suspension with effect from the date of the issuance of the order. Further prayer of the petitioner is for quashing of order contained in memo no. 389 dated 14.2.2009 ( Annexure-5) issued by the Civil Surgeon –Cum-Chief Medical Officer, Patna, initiating a departmental proceeding against the petitioner by furnishing charge-sheet and appointing the Conducting Officer. Further prayer is for quashing an order contained in Memo NO. 3053 dated Patna High Court CWJC No.7467 of 2009 (4) dt.15-09-2011 3.6.2009, whereby Chief Medical Officer, Patna instead of passing final order in the departmental proceeding receiving the enquiry report, has ordered for conducting the departmental proceeding afresh, for same charge, appointing a new conducting Officer but with the same Presenting Officer. Petitioner was working on the post of Clerk at Jai Prabha Hospital Patna. He had been transferred from Additional Primary Health Centre, Bharatpura (Bikram), Dulhin Bazar to Jai Prabha Hospital Patna and there he joined on 21.6.2008. Few months after his joining at Jai Prabha Hospital, Patna the suspension order dated 28.9.2008 (Annexure-4) was issued by the Civil Surgeon-cum-Chief Medical Officer, Patna. A departmental proceeding was initiated by the order of the Civil Surgeon-cum-Chief Medical Officer, vide order dated 14.2.2009. Charges in Performa-‘Ka’ were and charges found in proforma’Ka’ was furnished upon him for filing show cause. Petitioner submitted his show cause and appeared before the Conducting Officer on each and every date, fixed for conducting the departmental proceeding. The presenting Officer requested for adjournment on two occasions i.e. 4.3.2009 and 14.3.2009 and finally date of hearing was fixed on 22.4.2009, and on that date both the parties appeared Patna High Court CWJC No.7467 of 2009 (4) dt.15-09-2011 before the conducting Officer. Hearing in departmental proceeding was concluded but no enquiry report was being submitted by the Conducting Officer, as such the petitioner made a prayer before the Disciplinary authority for revocation of the suspension order. The conducting Officer thereafter submitted the enquiry report vide letter no. 286 dated 4.5.2009. The Conducting Officer, in the enquiry report recommended for exoneration the petitioner from all the charges, as none of the charges were found to be proved. Petitioner’s grievance is that the Disciplinary authority, receiving the enquiry report either should have accepted the recommendation made in the inquiry report or in case of disagreement, should have issued second show cause notice to the petitioner with the proposed punishment. But no such action was taken by the disciplinary authority and by order dated 3.6.2009 contained in memo no. 3053 he ordered for a fresh enquiry by appointing a new conducting Officer and the former Conducting Officer, for same set of charge. Counsel for the petitioner submits that this action of the disciplinary authority is illegal, arbitrary and without jurisdiction. Since the conducting Officer has already submitted his inquiry report, there was no reason for issuing a Patna High Court CWJC No.7467 of 2009 (4) dt.15-09-2011 direction for fresh inquiry by the disciplinary authority. Recommendations in the inquiry report have created a valuable right in favour of the petitioner and that could not have been snatched away, arbitrarily by the disciplinary authority. The reason for passing order contained in Annexure-11 was that the Presenting Officer failed to produce relevant connected records before the Conducting Officer, and that resulted into recommending for exoneration by conducting Officer from the charges framed against the petitioner. Counsel for the petitioner submits that role of the Presenting Officer in a departmental inquiry is only like an agent of prosecutor, who produces all relevant records before the Conducting Officer, which could be taken as evidence for proving the charge. In the present case, the Presenting Officer, despite several opportunities, failed to produce record, as such it could not have been a ground for ignoring the enquiry report submitted by the Conducting Officer after holding a departmental inquiry. Some development did take place, during the pendency of writ application and that was being brought on the record of the case by Respondent, by filing supplementary counter affidavit. The disciplinary authority vide order Patna High Court CWJC No.7467 of 2009 (4) dt.15-09-2011 contained in Memo No. 4923 dated 1.8.2009 has revoked the suspension order and directed to make payment of entire arrears of salary to the petitioner for the period of suspension and vide order dated 30.6.2009 contained in Memo No. 3053, newly appointed Conducting officer and the Presenting Officer has been directed to expedite the departmental proceeding and submit inquiry report within three months. Counsel for the petitioner submits that one of the reliefs claimed by the petitioner regarding revocation of the order of suspension has already been allowed by the respondent by issuing an order contained in memo no. 4923 dated 1.8.2009. So far the fresh inquiry is concerned, that cannot continue for the same charge. I find that the impugned Annexuyre-11 issued by the disciplinary authority, whereby a direction for conducting fresh departmental proceeding for the same charges has been issued by appointing a new Conducting Officer, cannot be allowed. The Disciplinary authority, in case of disagreement with the inquiry report could have issued second show cause notice to the petitioner with the proposed punishment, showing reason for dis-agreement. Order passed for holding fresh departmental proceeding (Annexure-11) is not in consonance with the law, Patna High Court CWJC No.7467 of 2009 (4) dt.15-09-2011 relating to the departmental enquiry. The impugned order Annexure-11 is quashed. The Disciplinary authority can now proceed with the matter by issuing second show cause notice to the petitioner on the basis of the same inquiry report. In case of disagreement with the enquiry report and can pass an order in accordance with law. With this observation direction the writ application is disposed off. Arun Kumar/- (Mridula Mishra, J)