IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 2984 of 2009 DR. ARUN KUMAR JHA, S/O LATE BRAJNANDAN JHA, AT PRESENT POSTED AS MEDICAL OFFICER, PRIMARY HEALTH CENTRE, RAHIKA, P.S. – RAHIKA, MADHUBANI …………………….. PETITIONER VERSUS 1. THE STATE OF BIHAR 2. SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, BIHAR, PATNA 3. DEPUTY SECRETARY TO THE GOVERNMENT, HEALTH AND FAMILY WELFARE, BIHAR, PATNA 4. SHRI YADAV SINGH, FATHER’S NAME NOT KNOWN, UNDER SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE-CUM-ENQUIRY OFFICER, BIHAR, PATNA 5. CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, SASARAM, DISTRICT – ROHTAS 6. CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, MADHUBANI …………….......... RESPONDENTS ----------- For the Petitioner: Mr. Yodendra Mishra, Advocate For the State: Mr. Tej Bahadur Singh, AAG-VII Mr. Rajesh Kumar Mishra, AC to AAG-VII ********** 06. 23.08.2011 Heard learned Counsel for the petitioner and the State. Petitioner has challenged the notification no. 2214 (9), dated 02.12.2004, issued under the signature of Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, whereby he has been awarded following punishments: (i) Censure; (ii) Withholding of two increments with cumulative effect; (iii) Non-payment of salary for entire period of 2 unauthorized absence and treating this period as break in service as well as non-pensionable; and (iv) Non-payment of salary or any other monetary benefits, except subsistence allowance for the period of suspension. By this order, the suspension of the petitioner has been revoked. Petitioner had joined the Health Service, as Medical Officer on 22.01.1981 and was transferred to various places. In the year 1990, he was posted as Medical Officer in the district of Kaimur and worked there for more than four years. On 21.09.1994, he fell seriously ill, made an application to Civil Surgeon-cum- Chief Medical Officer, Kaimur on 23.09.1994 and proceeded on three months’ leave. Petitioner’s case is that his illness prolonged and as such he sent applications on various occasions to Civil Surgeon-cum-Chief Medical Officer for extension of his leave. Petitioner remained absent from 21.09.1994 to 26.06.1997. While still continuing on leave, vide notification dated 21.06.1997, he was transferred from Kaimur to Madhubani. He gave his joining before Civil Surgeon, Madhubani on 27.06.1997. The Civil Surgeon, Madhubani posted him at Primary Health Centre, Rahika and he joined there. He was served with resolution 3 dated 17.11.2003, issued by the Deputy Secretary, Department of Health, Medical Education and Family Welfare, informing that a Departmental Proceeding has been initiated against him, in which Shri Yadav Singh, Under Secretary has been appointed as an Enquiry Officer. The Departmental Proceeding had been initiated with this allegation that he has remained absent unauthorizedly from 21.09.1994 to 23.07.1998. On receipt of the resolution, petitioner made an application to the Conducting Officer on 15.12.2003 for supplying a copy of letter dated 04.07.1998, issued by the Civil Surgeon-cum- Chief Medical Officer, Kaimur for filing his written show-cause. Since this document was not supplied to him, despite his repeated request, as such no show-cause was filed by him before the Conducting Officer. Petitioner’s case is that without giving any opportunity to participate in the Departmental Proceeding, suddenly vide letter no. 20.09.1994, a second show-cause-notice was issued. Through this letter, petitioner was asked to submit his second show- cause with regard to proposed punishment of dismissal from service due to his unauthorized absence for five 4 years from service. The enquiry report had also been annexed with the second show-cause-notice, from which petitioner came to know that on 17.01.2004, a registered letter had been issued for his appearance, but it returned un-served. On the date fixed in the Departmental Proceeding, even Presenting Officer did not appear before the Conducting Officer along with connected records. Petitioner did not appear, as the notice issued through registered post had returned un- served. The Conducting Officer admitted this fact in the enquiry report that due to non-supply of document, demanded by the petitioner, show-cause could not be filed by him. In absence of the Presenting Officer, the delinquent and without looking into the relevant records, the Conducting Officer submitted his enquiry report. The petitioner submitted his second show- cause, indicating all these irregularities, illegalities, observed in conducting the Departmental Proceeding. He also asked for an opportunity for defending himself. The second show-cause, submitted by the petitioner, was also not considered by the Disciplinary Authority and in most perfunctory manner, final order was passed, awarding four punishments. Petitioner’s case is that in the memo of charge, 5 supplied to him, there was no mentioning about any suspension order, issued against him. For the first time, through the second show-cause-notice, he came to know that he is deemed to be under suspension. The suspension order was never supplied to him or to his Controlling Officer, the Civil Surgeon, Madhubani and despite this fact for imaginary period of suspension, he has been deprived of his salary and a punishment has been awarded that except subsistence allowance, he will not be entitled for receiving any monetary benefits. It has also been stated that his right to get salary has illegally been withheld without any show- cause-notice in contravention of Rule 97 of Bihar Service Rules. So far other punishments are concerned, petitioner was not given reasonable opportunity to defend himself and to file show-cause in the Departmental Proceeding, because of non-supply of relevant documents, mentioned in the charge-sheet. The Enquiry Officer did not hold any enquiry as required under Rule 55 of the Bihar Civil Servants (Classification, Control and Appeal) Rules. The enquiry report annexed with the second show-cause-notice was submitted arbitrarily in violation of the Rules. The enquiry report itself revealed that the Enquiry Officer submitted his 6 report only on the basis of charge framed against the petitioner and the findings are based on presumption, surmises and conjectures. So far the alleged charge relating to absence for five years is concerned, that itself is completely non-existent. Petitioner was transferred on 21.06.1997 and on 26.07.1997, he gave his joining. In any case, his absence is for two years and nine months from 21.09.1994 to 21.06.1997. This period can also not be considered unauthorized, as time to time he had sent his leave applications for extending his leave. He was compelled to remain absent, because of his prolonged illness, which was completely ignored by the Enquiry Officer as well as by the Disciplinary Authority, while submitting enquiry report and awarding severest punishment. Petitioner had filed his appeal before the Hon’ble Governor for quashing of the order, awarding punishment. Since appeal, preferred on 31.08.2005 remained pending and undecided till date, the present Writ Application has been filed by the petitioner for quashing of the impugned order. Vide Order dated 29.07.2011, the records connected with the Disciplinary Proceeding had been called, in order to find out whether allegation made by 7 the petitioner with regard to procedural illegalities in conducting the Departmental Proceeding as well as non- supply of suspension order is correct. On perusal of the relevant records, I find that the petitioner was not given any opportunity to participate in the Departmental Proceeding. Document demanded by him was never supplied to him, as such he could not file his written statement in the Departmental Proceeding. The enquiry Officer simply on the basis of charge, has submitted his enquiry report. On the single date, fixed for Departmental Proceeding, even Presenting Officer was not present with the connected records. The Enquiry Officer as such had no opportunity to look into any of the documents in support of allegation and charge framed against the petitioner. However, there are sufficient materials for coming to this conclusion that suspension order had never been communicated to the petitioner, as such punishment regarding non-payment of salary for the period of suspension is based on completely non-existent grounds. The petitioner could not have been awarded such punishment when he never came to know about the order of suspension. However, facts, which has been brought on record by the petitioner through Supplementary affidavit 8 indicates that prior to the initiation of present Departmental Proceeding, petitioner was already facing another Departmental Proceeding for the period of his posting at Saharsa. In that Departmental Proceeding he had been put under suspension vide order dated 09.05.2002, contained in Memo No. 675 (Annexure – 14). The order of suspension was revoked on conclusion of the Departmental Proceeding, vide Memo No. 1067 (9), dated 18.09.2008 and the petitioner was exonerated from the charges framed against him. Counsel for the petitioner submits that since earlier suspension order has also been revoked and in present proceeding he was never informed about his suspension, he can not be deprived of his salary and other consequential benefits for the period during which Departmental Proceeding remained pending. For all these reasons, the final order passed in the Departmental Proceeding, awarding punishment as well as the charge framed against the petitioner and also the entire Departmental Proceedings is quashed. This matter is remitted back to the Secretary, Health, Medical Education and Family Welfare for initiation of Departmental Proceeding after framing fresh charge. In the reinitiated Departmental Proceeding, petitioner must 9 be given proper opportunity to participate and to defend himself. The final order shall be passed, observing all legal procedure for conducing Departmental Proceeding. The Departmental Proceeding, so initiated, be concluded within six months from the date of its initiation. Petitioner must also be supplied all documents relating to the charge framed against him. The competent authority will have liberty to pass an order of suspension, if it will be deemed proper and necessary for conducting the Departmental Proceeding. Petitioner must cooperate and participate in the departmental proceeding, otherwise it will proceed ex-parte. With these observations / directions, this Writ Application is disposed of. SKM (Mridula Mishra, J.)