IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13840 of 2009 ====================================================== 1. Anil Kumar S/O Late Dukh Haran Prasad Vill-Kalyanpur, Via- Chak Sikandar, Distt- Vaishali .... .... Petitioner/s Versus 1. The State Of Bihar Through Its Chief Secretary, Old Secretariat, Patna 2. The Principal Secretary Health Department, Government Of Bihar, Patna 3. The Director-In-Chief Health Services, Government Of Bihar, Patna 4. The Principal Anugrah Narayan Magadh Medical College, Gaya .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.15503 of 2009 ====================================================== 1. Shivbarat Ram S/O Late Nathun Ram Village + P.O.- Solara, P.S.- Paraiya, Distt.- Gaya .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Director-In-Chief Health Department, Patna 3. Anugrah Narayan Magadh Medical College, Gaya Through Its Principal, Gaya 4. The Superintendent Anugrah Narayan, Magadh Medical College, Gaya 5. The Head Of Department Forensic Medicine And Texicalogy Department, Anugrah Narayan, Magadh Medical College, Gaya .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.1650 of 2010 ====================================================== 1. Ram Briksh Yadav S/O Late Janki Yadav R/O Vill Bhaismera , P.S.Tekari, Distt-Gaya .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Director -In-Chief, Health Services Bihar,Patna 3. Anugrah Narayan Magadh Medical College Gaya Through Its Principal , Gaya 4. The Principal , Anugrah Narayan Magadh Medical College Gaya 5. The Superintendent , Anugrah Narayan Magadh Medical College Gaya 6. The Head Of The Department ,Forensic, Medicine And Toxicology,Anugrah Narayan Magadh Medical College Gaya .... .... Respondent/s ====================================================== Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 2 Appearance : (In CWJC No.13840 of 2009) For the Petitioner/s : Mr. Chakradhari Sharan Singh Mr. Chandan Jha Mr. Amit Kumar Singh For the Respondent/s : Mr. (Sc1) (In CWJC No.15503 of 2009) For the Petitioner/s : Mr. S.K.Bharti For the Respondent/s : Mr. (Gp17) (In CWJC No.1650 of 2010) For the Petitioner/s : Mr. Rohit Mishra Mr. Nityanand Sharma For the Respondent/s : Mr. (Sc14) ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 6 26-08-2011 Prayer of the petitioners in all three writ applications is for quashing of the order of dismissal dated 29.12.2008 passed by the Disciplinary Authority in a departmental proceeding initiated against them. Allegation against all three petitioners was that they have changed the metallic bullet extracted from the body of the deceased by the autopsy Surgeon in the post mortem and replaced it with small plastic beads. All three petitioners have been awarded punishment of dismissal from service by the Disciplinary Authority vide order dated 29.12.2008. Anil Kumar petitioner in the first writ application was working on the post of Lab Technician, at Anugrah Narayan Magadh Medical College, Gaya, other two petitioners, namely, Shivbarat Ram, (CWJC No. 15503 of Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 3 2009) and Ram Briksh Yadav (CWJC No. 1650 of 2010) were working as Sweeper and Lab Boy in the Department of Forensic Medicine and Toxicology, (for short ‘FMT’) at Anugrah Narayan Magadh Medical College, Gaya. On 12.5.1999 a post mortem had been conducted by Dr. Abrind Prasad, Assistant Professor Department of Forensic Medicine and Toxicology, on the dead body of one Ram Lakhan Prasad and one bullet was extracted from the body. It was packed, sealed and lebelled with Medico Legal Seal of the Head of the Department of F.M.T. On the relevant date Anil Kumar petitioner in CWJC No. 13840 of 2009 was on two days leave. He re-joined on 14.5.1999. The extracted bullet had been kept in a match box and sealed for sending it to CFSL New Delhi for submitting opinion and report. The sealed and labelled packet was sent to CFSL, New Delhi on 17.5.1999 but when sealed cover was opened, it was found that in place of bullet, there were six plastic beads in the match box. It was a very serious matter. An F.I.R. was instituted and all employees of F.M.T., as well as three petitioners were questioned. They denied their involvement in this act of changing of the extracted bullet by six plastic beads. Subsequently, as directed by the High Court the investigation of the police case was transferred to C.B.I Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 4 and Central Bureau of Investigation submitted its report raising doubt against petitioners’ and their involvement in the matter. A departmental proceeding was initiated against all three petitioners, on the basis of report of C.B.I, vide resolution contained in Memo No. 338(4) dated 26.3.2004 issued under the signature of Director-in-Chief, Health Services, Government of Bihar, Patna. All three petitioners were asked to submit their statement of defence with regard to draft article of charge and the statement of imputation of misconduct in support of the article of charge, within a period of three weeks before the Inquiry Officer. By this very resolution, the Superintendent of Anugrah Narayan Magadh Medical College, Gaya was appointed as Inquiry Officer and Dr. Arbind Prasad, Head of the Department of FMT was appointed as Presenting Officer. Along with the resolution copies of draft articles of charge, statement of imputation of misconduct in support of the charge framed against the petitioners, the list of documents and the list of witnesses were made available to the petitioners. It has been alleged by the petitioners that none of the documents mentioned in the list of documents, were supplied to them with articles of charge and imputation of misconduct. The Inquiry Officer issued letter dated 12.7.2004 to the petitioners asking them to submit Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 5 report of statement of defence. Since the documents listed in support of the charge had not been supplied, as such petitioner Anil Kumar made a request to the Inquiry Officer for supply of documents and to make available the photographs taken by the CFSL, New Delhi of the labelling done on the sealed packets of exhibits of post-mortem report No. 229 dated 12.5.1999. Petitioner Anil Kumar had demanded these documents, as these were crucial evidence for the purpose of disciplinary proceeding and for indicating that the extracted bullet had not been sealed by him. Petitioner Anil Kumar vide his letter dated 16.6.2004 made a prayer for extension of time for filing his written statement because documents and materials demanded by him had not been supplied. It is case of all petitioners that despite their repeated demand for supply of necessary documents and evidentiary materials, those were never supplied to them. However, they submitted their written statement of defence, out of fear that the Inquiry Officer might proceed ex-parte. Petitioners’ case is that they never received any indication from any corner for years together regarding any progress in the Disciplinary Proceeding, after submission of their written statement, Since, there was complete silence from the side of conducting Officer, as Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 6 such they were under the impression that their defence have been accepted and departmental proceeding is not going to proceed any further. After three years of submission of their written statement, petitioners suddenly received communication from the Director-in-Chief, Health Service, Bihar Patna, vide memo No. 428(4) dated 5.4.2007 enclosing a copy of the Inquiry Report dated 18.11.2006, submitted by the Inquiry Officer, whereby petitioners were asked to submit their reply to the second show cause within a fortnight. The Inquiry Officer in his Inquiry report did not come to a conclusive finding of any misconduct against the petitioners but at the same time, he opined that the petitioners could not get away from their responsibilities. Second show cause was submitted by the petitioners for dropping the charge against them, as there were no material against them of said misconduct, nor there was any specific finding recorded against them in the enquiry report. Their second show cause was not considered by the Disciplinary authority and vide impugned order contained in Memo No. 1979(4) dated 29.12.2008; petitioners were dismissed from the service. All three petitioners initially filed writ applications challenging the dismissal order but the writ applications were permitted to be withdrawn, giving liberty to file Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 7 statutory appeal as prescribed under the Rule. Petitioners thereafter preferred appeal but that was also dismissed. The appeal preferred by Anil Kumar was dismissed vide order dated 3.9.2009 contained in memo no, 1388(4) issued by the Principal Secretary, Department of Health, Bihar, Patna . The appeal preferred by other two petitioners were also dismissed vide orders dated 29.7.2009 and 9.12.2009 by different memo numbers. Petitioners have challenged the impugned orders of dismissal and the Appellate Order affirming order of dismissal, on the ground that the Disciplinary proceeding has been conducted, observing gross procedural lapses and in violation of principles of natural justice as well as in breach of the statutory rules. Another ground is that no misconduct was made out against them on the basis of article of charge and in view of the finding of the Inquiry Officer, despite the fact they were awarded severest punishment of dismissal from service and that was affirmed by the Appellate Authority without considering these illegalities. Mr. Anil Kumar Sinha, counsel representing the petitioner in CWJC No. 13840/2009 has referred to Rule 55 of the Civil Services (Classification, Control & Appeal) Rules under which the present proceeding had been initiated. Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 8 Counsel for the petitioner submits that rule requires that for proving charge, oral evidence be adduced in support of the allegation and entitlement of the delinquent employee to cross-examine such witnesses. The Rule also provides that after affording adequate opportunity to a Government Servant to defend himself, if the charges are found to be proved, punishment can be awarded in a disciplinary proceeding. But in the case of the petitioners, all these mandatory requirements were given a go-bye and without observing the mandatory provision for awarding punishment in a departmental proceeding, petitioner was dismissed from service. The gross procedural lapses, which according to the petitioners has affected the legality of the departmental proceeding are categorized as follows:- (i) The documents relied upon by the Department in support of the charges were never supplied to the petitioners. (ii) No witness was examined in the petitioner’s presence and the petitioner was, therefore, not given any opportunity to cross-examine the witnesses. (iii) The documents/material demanded by the petitioner were not supplied to him which seriously prejudiced them. Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 9 Counsel representing the petitioner in the first case has also submitted that the Inquiry Officer in his report has referred to the inquiries made by him from Dr. Arvind Prasad, Head of the Department of FMT, this inquiry had not been done in presence of the petitioner and he was not afforded any opportunity to cross-examine him. Any material which the Inquiry Officer collected at the back of the petitioner could not have been used against him in the departmental proceeding. Another illegality pointed out by the petitioner is that Dr. Arvind Prasad was appointed Presenting Officer and also shown as one of the witnesses in the list of witnesses. Dr. Arvind Prasad was the doctor, who had conducted the post mortem in this case, as such being an interested person, he should not have been appointed Presenting Officer in the departmental proceeding, rather he should also have been proceeded with a disciplinary proceeding. Specific case of petitioner Anil Kumar is that the bullet was extracted on 12.5.1999 from the dead body of Ram Lakhan Prasad by autopsy Surgeon and sealed by the F.M.T. Department on the same date. In the sealed condition, it was sent to the C.F.S.L., New Delhi, petitioner was on leave on 12.5.1999, joined on 14.5.1999, as such he was not present at the time when bullent was extracted, Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 10 packed sealed and labelled. It was humanly not possible for him to indulge in changing the exhibit which had been kept in the sealed cover and found sealed when sent to CFSL, New Delhi. The finding recorded by the Inquiry Officer against Anil Kumar is that he should have been vigilant and gathered information as to what had happened, behind his back. This finding cannot constitute misconduct for awarding punishment of dismissal from service, when charge regarding changing of extracted bullet by the petitioners was not found to be proved. The specific case of Ram Briksh Yadav is that the sealed cover, on which Medico legal seal was put was kept in the custody of Dr. M.K.Sinha, who was the Head of the Department of F.M.T. till September, 2009. Medico Legal Seal was handed over to Dr. M.K.Sinha, immediately after the material exhibit was sealed. There was no opportunity to this petitioner for being in possession of the Medico Legal seal for the labelling of the sealed packed, in case it is alleged that he re-opened the sealed packet, changed the bullet kept plastic beads, re-packed, resealed and relabelled it. There is no such evidence also that the medico legal seal was ever found in his possession. It has also been stated by the petitioners that the Inquiry Officer himself has admitted that all relevant Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 11 documents, which are mentioned as evidence in the memo of charge, were in the custody of Investigating Officer, of Central Bureau of Investigation Ramesh Kumar. These documents were not even supplied to the Inquiry Officer, when he asked for those documents from Ramesh Kumar. When the Inquiry Officer himself had no opportunity to go through these documents listed as evidence in memo no. 338(4) dated 26.3.2004, then there was no occasion for petitioners to peruse those documents and material before the Inquiry Officer for coming to this conclusion that the charges have been proved against the petitioners. The enquiry report had been submitted by the Conducting Officer, merely on the basis of an opinion recorded by the Investigating Officer of C.B.I, in his report. Except that there was nothing to rope the petitioners with alleged charge. Counsel for the petitioner submits that the facts are very obvious that it was Dr. Arvind Kumar, the then Associate Professor of F.M.T. who had extracted the bullet from the body of the deceased. In the process of extraction of bullet, its packing and sealing, there were three persons involved. Jamui Ram, Sweeper who died before initiation of the departmental proceeding, Ram Briksha Yadav and Dr. Arvind Prasad. There was no reason Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 12 for not proceeding against Dr. Arvind Prasad and placing him among the witnesses. The person, who is a party to extraction of bullet from the dead body and participated in packing and sealing of object was allowed to become a witness and Presenting Officer in the Departmental Proceeding, which in itself is sufficient for holding that entire departmental proceeding was conducted illegally and in violation of Rules. Counter affidavit has been filed by the respondent no.3, in which there is no specific denial, so far the questions raised by the petitioner in the writ application are concerned. In the enquiry report it has been admitted that petitioner Anil Kumar was on leave in between 12.5.1999 and 13.5.1999 and joined on 14.5.1999. However, it is stated that the petitioner could not absolve himself from the responsibility to ensure the safe custody of the sealed packet. In the counter affidavit, there is no denial so far the procedural lapses pointed out by the petitioner are concerned. In order to examine the correctness of the statement regarding procedural lapses made by the petitioner, the record connected with the Disciplinary Proceeding had been called. On perusal of the connected record, it is apparent that since the date of submission of Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 13 the written statement by the petitioners and till the date the second show cause notice was issued to the petitioner along with the Inquiry Report, nothing was done for conducting the departmental proceeding. No opportunity was given to the petitioner to examine and cross-examine the witnesses. There is nothing to show that documents were supplied to the petitioners. No dates were fixed for petitioners’ appearance to defend themselves. Not a single notice was issued to intimate these petitioners for their appearance and participation in the departmental proceeding. In an exparte proceeding, even without perusing documents essential for proving charges, enquiry report was submitted with the finding that action may be taken against these petitioners for the alleged charge framed against them. Considering these facts and also the finding recorded by the Inquiry Officer that the documents mentioned in Annexure-3 were not even supplied to him by the Investigating Officer of Central Bureau of Investigation ,is sufficient for coming to this conclusion that the Inquiry report was submitted by the conducting officer, without being satisfied that there are enough evidence in support of charge. Facts indicate that without following the procedure as provided under Rule 55 of Civil Services Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 14 (Classification, Control and Appeal) Rules severest punishment was awarded against the petitioners. The Appellate Authority has recorded findings which are beyond the material available on the records of the case. The Appellate Authority also failed to consider grounds taken by the petitioners, though it was its’ bounden duty to consider the grounds taken by the appellant, being a statutory forum for challenging the order passed in the departmental proceeding. Serious punishment like dismissal from service could not have been awarded to the petitioners by the Disciplinary Authority, without considering the materials on record and without charges being proved in accordance with law. Only conclusion to which, on account of such latches, one could reach, is that in a most illegal and arbitrary manner, without properly conducting departmental proceeding, punishment of dismissal from service was awarded in a complete violation of rule of natural justice as well as in contravention of the Rule 55 of the Disciplinary Rule. In this view of the matter, the impugned orders dated 29.12.2008 passed by the Disciplinary authority awarding punishment of dismissal from service and the appellate order affirming the order passed by the Patna High Court CWJC No.13840 of 2009 (6) dt.26-08-2011 15 Disciplinary authority, awarding punishment of dismissal from service are quashed. The respondent Director-in- Chief, Health Services, Bihar Patna is directed to reinstate petitioners on their posts. Petitioners will also be entitled for salary and consequential benefits for the period, they remained under suspension as well as the period during which they were dismissed from service. However, the respondents may proceed with the departmental proceeding afresh, after supplying all relevant documents to the petitioners and giving them opportunity to examine and cross-examine the witnesses before submitting inquiry report by the conducting Officer. All three writ applications are allowed. The re- initiated proceeding so initiated must be concluded within three months from the date of initiation. Three writ applications are allowed. Arun Kumar/- (Mridula Mishra, J)