IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7920 of 2005 John Tirki, son of Angustin Tirki, resident of Mohalla Kajipur, Quarter No.14, Road No.3, P.S. Kadamkuan, District Patna. ------- Petitioner Versus 1. The State of Bihar. 2. That Commissioner-cum-Secretary, Health Department, Government of Bihar, Patna. 3. Director-in-chief, Health Services, Bihar, Patna. 4. Deputy Director, Health Services, Bihar, Patna. 5. Regional Deputy Director, Health Service, Patna Division, Patna. 6. Civil Surgeon-cum-Chief Medical Officer, Patna. -------- Respondents ----------- For the Petitioner :- Mr. Abhya Kumar Singh, Sr. Adv. Mr. Baidya Nath Thakur, Adv. Mr. Shankar Kumar Thakur, Adv. For the State :- Mr. Prahalad Kumar Bhagat, AC to AAG-5 PRESENT HON’BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (30.09.2010) Mihir Kumar Jha. J. Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- “1(i) For quashing the order dated 26.8.2004 passed by the Respondent No.3 by which the petitioner has been dismissed from service with immediate effect on the ground of his involvement in forged appointment in Patna Surgency on illegal transfer/posting. (ii) For quashing the appellate order dated 2.4.05 passed by the 2 Respondent No.2 by which the appeal was rejected and the order of dismissal of the petitioner from service affirmed. (iii) For directing to the respondent concerned to reinstate the petitioner on the post of Head Clerk with effect from the date of dismissal with all consequential benefits.” 3. Mr. Singh, learned senior counsel, with respect to the aforementioned prayer while assailing the impugned order of punishment in a departmental proceeding and its appellate order, has submitted that the charge of conspiracy against the petitioner of conniving with the Civil Surgeon in allowing the fraudulent posting cannot be said to be proved against him in isolation leaving the Civil Surgeon unpunished. In this context, he has invited attention of this Court to the two basic documents forming substratum of the charge, namely, the report of the successor Civil Surgeon dated 12.1.2003, wherein, he had reported both against his predecessor Civil Surgeon as also the petitioner in the following terms:- ^^fpfUgr 48 deZpkfj;ksa dk inLFkkiu flfoy ltZu iVuk ds i=kad ,oa fnukad vafdr gS tks rRdkyhu flfoy ltZu Mk0 v:.k feJk ,oa 3 fyfid Jh tkWu fVdhZ dk gLrk{kj izrhr gksrk gSA** 4. He has further submitted that for the same identical charge and in fact graver as against the Civil Surgeon, namely, Dr. A.K. Mishra, no order of punishment has been passed against him till date and he has also been happily allowed to superannuate with full retirement benefit. 5. He has also submitted that almost there was same charge against the successor Civil Surgeon Dr. S.K. Aman but he was also let off by the authority of the Health Department leniently by only inflicting a nominal punishment and much less than punishment of removal from service of the petitioner. In this context, he has placed reliance on the judgment of the Apex Court in the case of Director General of Police & Ors. Vs. G. Dasayan reported in 1998(2)SCC 407 and Akhilesh Kumar Singh Vs. State of Jharkhand & Ors. reported in 2008(2)SCC 74 as also this Court in the case of Jitendra Prasad Singh Vs. M/s Tata Engineering & Locomotive Company and Anr. reported in 1998(3) PLJR 277. 6. Commenting further on the procedural infirmity in the departmental 4 proceeding, Mr. Singh has highlighted that the petitioner was also not given a reasonable opportunity of defending himself in the departmental proceeding, inasmuch as, the documents on which the complicity or otherwise of the petitioner could be established, were also never produced before the enquiry officer. Thus, summing up his submission, Mr. Singh, learned senior counsel for the petitioner has submitted that the impugned order of punishment against the writ petitioner cannot be sustained either on fact or in law. 7. Counsel for the State on the other hand has submitted that it would not be correct to say that the petitioner was not given reasonable opportunity of defending himself in the departmental proceeding specially when such charges against the petitioner were based on admitted documentary evidence. 8. As with regard to the case of Dr. A.K. Mishra, Civil Surgeon, he has referred to supplementary counter affidavit sworn and filed on 23.5.2008, wherein, it has been 5 stated that a departmental proceeding was also initiated against him and a decision as with regard to inflicting punishment against him was also under active consideration of the State Government. It has been accordingly contended by him that at least the point of parity in punishment was not available to the petitioner till an order of punishment was passed against Dr. Mishra, the then Civil Surgeon. 9. Explaining the case of Dr. Aman, the next Civil Surgeon, learned counsel for the State has submitted that whereas the charge against the petitioner was related to acceptance of joining of 48 persons illegally and fraudulently appointed by the Director in league with with Dr. Mishra, the then Civil Surgeon, the charge against Dr. Aman, the successor Civil Surgeon was confined to acceptance of joining of only two of such persons and thus the punishemtn inflicted on Dr. Aman could not be compared with the punishment inflicted on the petitioner. 10. In the opinion of this Court, while there would be no difficulty in rejecting the 6 submission of the learned senior counsel for the petitioner as with regard to the parity of punishment between him and Dr. Aman, inasmuch as, from the memo of charge of the petitioner and the order of punishment in the case of Dr. Aman, it would be clear that there was a world of difference in the charges against the both of them. As noted above, the charge against the petitioner and the then Civil Surgeon Dr. Mishra was that they were responsible in causing loss to the State exchequer by accepting joining of those 48 employees whose appointment was claimed to have been made illegally by the Directorate but, the charge against Dr. Aman was that he being successor of Dr. Mishra had accepted joining of only two of them. 11. This aspect of the matter becomes more clear from the enquiry report submitted in the case of Dr. Aman, wherein, it has been clearly held that it was actually the petitioner who had not only been responsible in issuing fraudulent 48 appointment letters in an illegal manner but, having issued it, had personally gone to the concerned 7 respective In-charge Medical Officer for its being acted upon by way of acceptance of their joining as would be apparent from the following findings of enquiry officer:- ^^¼d½ Jh izHkkr dqekj ,oa Jh jfoUnz dqekj ds fu;qfDr i=ksa esa Jh tkWu fVdhZ dk vk/kk{kj mu i=ksa dks mUgha }kjk fuxZr djus dh lkjh izfdz;kvksa ;su dsu izdkjs.k fd;k tkuk] Jh fVdhZ }kjk gh fuxZr gksus dh frfFk dks gh rqjar izHkkjh fpfdRlk inkf/kdkjh ukScriqj dks [kqn tkdj gLrxr djkuk] rFkk Vafdr fu;qfDr i= esa iq:"k d{k lsod in dks dkVdj vkns'kiky fy[kuk rFkk nwljh txg OgkbVuj yxkdkj vkns'kiky fy[k nsuk] iznf'kZr djrk gS fd ;g QthZ fu;qfDr Jh tkWu fVdhZ }kjk fd;s x;s QthZ fu;qfDr;ksa ds "kM;a= dk ,d fgLlk gS] mUgha ds tkylkth dk urhtk gS ftlds ihNs ds vlyh lw=/kkj dks idM+uk bl "kM;a= dks mtkxj djus ds fy, vko';d gksxkA ¼[k½ Mk0 ,l0 ds0 veu fuyfEcr flfoy ltZu] iVuk] fulansg Jh izHkkr dqekj ,oa Jh jfoUnz dqekj dh vuqdEik ds vk/kkj ij dh xbZ fu;qfDr ds i=ksa dks fcuk tkWp fd, gLrk{kfjr dj fuxZr djkus ds nks"kh gSa fdUrq Mk0 veu }kjk nksuks QthZ fu;qfDr;ksa dk irk pyus ds i'pkr dh xbZ rqjar dkjZokbZ elyu mu fu;qfDr;ksa dks jn~n dj LFkkuh; Fkkuksa esa izkFkfedh ntZ djkus ds fy, vkns'k nsuk ladsr djrk gS fd mu nksuksa QthZ fu;qfDr;ksa esa Mk0 veu dh fu;r mruh dyqf"kr ugha FkhA izR;{kr% iwoZ ls vk jgs tkyh fu;qfDr;ksa ds xksj[k/ka/ks ds] viuh ykijokgh dh otg ls] Mk0 veu f'kdkj yxrs gSaA** 12. In that view of the matter, the charge and culpability would itself distinguish the nature of misconduct committed by the petitioner vis-à-vis Dr. Aman. Dr. Aman, in fact, had also taken immediate step for getting his only two of his appointments cancelled by lodging a First Information Report, whereas, the petitioner 8 was found to be involved in the racket of being instrumental not only preparation of forged appointment letter but also going out of way for its being acted upon. In that view of the matter, the plea of discrimination in the matter of punishment raised by the petitioner as against Dr. Aman, who has also not been made party to this writ application, must fail. 13. The submission of the learned senior counsel for the petitioner of there being no action against the other civil surgeon Dr. Mishra can also not be accepted, inasmuch as, a departmental proceeding against him is still going on and, therefore, it cannot be said that the Government has left Dr. Mishra untouched. 14. Coming to the issue of procedural irregularity vitiating the impugned order of punishment against the petitioner, it has to be taken into consideration that the enquiry officer in his enquiry report dated 31.5.2003 has indicated the non-cooperative attitude of the petitioner, inasmuch as, even after his being placed under suspension, he did not 9 hand over the charge of the post of Head Clerk of the office of Civil Surgeon, as a result whereof, the enquiry proceeding was obstructed by the deliberate efforts of the petitioner himself. In this regard, he has taken note of the written application dated 8.2.2003 of one Gopal Sharma, senior most Clerk in the office of Civil Surgeon, who was directed to take over the charge of the duties of the petitioner of the post of Head Clerk. Mr. Sharma had, in fact, requested the Civil Surgeon of Patna district to get the inventory of the records and documents made available to him from the petitioner and when the petitioner was directed to handover the charge to Sri Sharma by the order of the Civil Surgeon dated 8.2.2003, he had not complied the said order, whereafter, the First Information Report had to be lodged against the petitioner on 11.2.2003 by the civil surgeon for removal and disappearance of the relevant registers and documents relating to illegal appointment and transfer having a direct complicity of the petitioner. 15. From the reading of the enquiry 10 report, it is also clear that the petitioner was given adequate opportunity by the enquiry officer and in this context, reference of letter no. 201 dated 28.2.2003 of the Enquiry Officer to the petitioner followed by his another letter no. 302 dated 28.5.2003 giving him an opportunity to submit his written statement of defence would go to show that right from the inception the petitioner was given adequate opportunity to defend himself. It is rather interesting to note here that the petitioner, who had himself made the document disappear and did not hand over the charge of the office of the Head Clerk, was trying to disrupt the enquiry by filing applications before the Enquiry Officer for supply of those very documents to enable himself to file written statement of defence. From the reading of the enquiry report, it also becomes clear that the enquiry was held on 21.4.2003 in which the petitioner had appeared and again on 25.4.2003 the petitioner, in course of enquiry proceeding, had submitted his written statement of defence. His request for supply of transfer 11 and posting order of the 48 persons appointed on the basis of forged appointment letters was specifically dealt by the Enquiry Officer and he had held that when inventory of the official records of the post of Head Clerk held by the petitioner was prepared, the files, containing appointment and transfer orders of those 48 persons, were missing and it was the petitioner who alone could have explained the availability of such files and documents as he was the custodian and the in- charge Headclerk prior to his being suspended for those very allegation. 16. It also appears that in course of enquiry proceeding in the present case of the petitioner on 19.5.2003, the Civil Surgeon Dr. Mishra had appeared and had made an unequivocal clear statement before the enquiry officer that none of the order of transfer and posting were issued by him or had contained his signature. Under such circumstances, when the petitioner was also given a last opportunity to submit his written statement of defence by the enquiry officer vide his letter no. 489 dated 12 13.5.2003 and the petitioner came out again with only an evasive reply dated 18.5.2003, the enquiry officer had been left with no option but to hold that the petitioner was deliberately delaying the disposal of the departmental enquiry. In any event, the enquiry was held in presence of the petitioner on 23.5.2003 and the defence of the petitioner that in the alleged forged appointment/transfer/posting orders, there was also a role played by Gopal Sharma, Senior Clerk and Ramjee Singh, Clerk was gone into and both of them, namely, Gopal Sharma and Ramjee Singh had appeared before the Enquiry Officer and had given their statement against the petitioner which could not be shaken in course of their cross examination by the petitioner on 29.5.2003. 17. This Court also must indicate here that the petitioner was deliberately trying to create a plea of prejudice in his ongoing departmental proceeding by raising a plea of non-supply of document when in fact it was the petitioner who himself was the custodian of such documents and was being repeatedly 13 asked by the Controlling Officer, namely, Civil Surgeon, Patna to handover such document as would be evidenced from the memo no. 547 dated 18.1.2003 (Annexure-A), memo no. 815 dated 21.5.2003 (Annexure-B), memo no. 857 dated 30.1.2003 (Annexure-C), memo no. 83 dated 29.1.2003 (Annexure-D), memo no. 134 dated 11.2.2003 (Annexure-E). All these documents, therefore, are by themselves is the proof of the fact that the petitioner had himself taken away the relevant records and files under his custody and did not handover the charge of post for making those documents available and, thereafter, when the charge of his post was assumed for preparation of inventory reporting missing of such documents and files, he had started demanding those documents from the Enquiry Officer. 18. In that view of the matter, when the petitioner is also facing criminal prosecution for taking those documents, he cannot be heard to say that he was prejudiced in the departmental proceeding on account of non-supply of the documents. 19. From the reading of the enquiry 14 report and its aforesaid analysis, this much would be clear that sufficient opportunity was given to the petitioner to defend himself in course of his departmental proceeding but, he himself had adopted a wholly non- cooperative attitude simply with a view to delay the disposal of the departmental proceeding for concealing his misconduct. 20. Thus, having held that there was no procedure infirmity in the departmental proceeding against the petitioner whether he was prejudiced on account of non-supply of documents nor even the order of punishment as against him for the proven charges, can be said to be vitiated, this Court has to consider the last submission of the learned senior counsel as with regard to the discrepancy and treating the petitioner differently as against Dr. A.K. Mishra, the Civil Surgeon. 21. The findings of the Enquiry Officer, holding that the order of appointment and transfer of posting issued under the signature of the petitioner in the capacity of Head Clerk pertaining to the persons 15 fraudulently appointed, clearly went to show that the racket of illegal appointment/transfer/ posting in the office of Civil Surgeon was being carried out with the active connivance of the petitioner. The enquiry officer in this context has also gone into the order passed of Jatesh Chaudhary, Male Ward Servant and Vidya Sagar, Dresser whose appointments were found to be forged but, their order of posting was issued with the signature thereon of the petitioner as was also admitted by him. Thus, the petitioner cannot get benefit only because he was also alleging that on the order of transfer/posting/appointment, there was also the signature of other Clerks and/or of Dr. Mishra, the civil surgeon. 22. In fact, when an earlier order of punishment dated 18.10.2003 based on the aforementioned findings of the enquiry officer was passed against the petitioner was passed dismissing him from service, the whole issue was also examined by this Court in his earlier writ application CWJC No. 13760 of 2003, wherein, this Court in its order dated 16 7.5.2004 had as follows:- “In paragraph 2 of the order it has been clearly observed that at the State level the report submitted by the enquiry officer was scrutinized and that the allegations/charges against the petitioner/delinquent employee were proved. It further says that consequent to the proof of charges, major punishment was proposed to be awarded. A perusal of this paragraph would clearly show that the disciplinary authority was bound by the orders/discussions of the State Government. Annexure-5 does not consider the charges, the evidence, the report of the enquiry officer or the defences raised by the petitioner. It simply says that at the State level the second show cause notice was considered in detail, but in absence of new facts punishment of dismissal can be awarded. In the opinion of this Court, the order contained in Annexure-5 firstly does not show application of mind and secondly it shows to have been influenced by certain discussions made at the State level or the consideration made at the State level. When an order is to be passed by an authority then the authority must record its independent finding. It cannot say that as he has been ordered by the superior authority to pass an order the authority would pass such an order. If such a procedure is adopted, then the order passed by the authority does not remain to be an order passed by the said authority, but would also be termed to be 17 a bad order passed at the behest of the superior authority. In the present matter, the tenor and texture of the language used in the order leave no room for doubt that the order was passed at the behest of the State Government. Even otherwise the order does not show application of mind, nor does it show that for what reason the charges were found proved or for what reason the defence were rejected. The order contained in memo no. 1566 (4) dated 18.10.2003 is hereby quashed. The respondent authority shall now proceed further in the matter. It shall consider the case of the petitioner, shall take into consideration the defences and show cause filed by the petitioner and shall pass a speaking order in the matter. As a consequence of quashing of annexure-5, the petitioner who was dismissed will have to be reinstated. He will be reinstated on the same post in the same position as was occupied by him before the order dated 18.10.2003 was issued.” 23. In fact, the respondents had passed a fresh order of punishment i.e. the impugned order against the petitioner by recording the following reasons:- Þ¼4½ ekuuh; mPp U;k;ky; iVuk ds mDr vkns'kksa ds vuqikyu esa Jh frdhZ ds fo:) yxk;s x;s vkjksiksa] tkWp inkf/kdkjh ls izkIr tkWp izfrosnu rFkk Jh frdhZ ls izkIr fnukad 13-9-2003 ds f}rh; dkj.k i`PNk izR;qrj dh iqu% xgu leh{kk esjs }kjk dh x;hA tkWp 18 izfrosnu esa LFkkukUrj.k inLFkkiu ds uke QthZ fu;qfDr i= ij Jh frdhZ dk gLrk{kj ik;k x;k ftlds cpko esa Jh frdhZ us vius izR;qÙkj esa dksbZ Bksl vk/kkj ugha fn;k gS Jh frdhZ us vius fnukad 13-9-2003 ds izR;qÙkj esa rRdkyhu flfoy ltZu ,oa foHkkxh; dk;Zokgh ds lapkyu inkf/kdkjh] {ks=h; mifuns”kd] LokLF; lsok,W] iVuk ize.My iVuk ds fo:) Hkh vkjksi yxk;k gS tks mfpr ughs gSA iz/kku fyfid ds in ij dk;Zjr jgrs gq, Jh frdhZ dk ;g nkf;Ro Fkk fd os QthZ fu;qfDr ds okLrfod rF;ksa dks vius mPpkf/kdkjh ds le{k ykrs vkSj lafpdk ds ek/;e ls Li"V earO; nsrs A ijUrq blds foifjr Jh frdhZ us LFkkukUrj.k@inLFkkiu QthZ fu;qfDr lEcU/kh ekeyksa esa viuk iw.kZ ;ksxnku fn;k gS ftlls Li"V gS fd bl vfu;fer dk;Z esa Jh frdhZ lgHkkxh utj vkrs gSA iz/kku fyfid dk nkf;Ro gS fd vfu;fer dk;ksZ dks mtkxj djrs ;k ml dk;Z ls vyx gks tkrs ysfdu bugksaus okLrfod rRoksa dks fNikdj rRdkyhu flfoy ltZu] iVuk dks xqejkg dj vius futh LokFkZ gsrq dk;Z fd;k] tks xyr gSA KkrO; gks fd xyr dk;Z esa pqipki lkFk nsuk Hkh vkjksi ds ifjf/k esa gh vkrk gSA ,slh fLFkfr esa Jh frdhZ }kjk fnukad 13-9-2003 dks lefiZr f}rh; dkj.k i`PNk@izR;qÙkj fo'oluh; ,oa fopkj.kh; ugha gSA ¼5½ vr% mDr f}rh; dkj.k i`PNk@izR;qÙkj fnukad 13- 9-2003 ds izR;qÙkj dks vLohd`r djrs gq, mDr tkyh fu;qfDr djus esa lgHkkfxrk ds izekf.kr xaHkhj vkjksi ds fy, Jh frdhZ dks ljdkjh lsok ls rRdkfyd izHkko ls c[kkZLr fd;k tkrk gSAÞ 24. The appellate authority in his reasoned order dated 30.3.2005 had also dealt each and every aspect of the matter in the following terms:- Þ4- fuEufyf[kr dafMdkvksa esa Jh fVdhZ }kjk mBk;s x;s izR;sd fcUnq dh miyC/k vfHkys[kksa ds vk/kkj ij tk¡p dj eSa viuk vkns'k ikfjr dj jgk gw¡ %& 19 ¼1½ lapkyu inkf/kdkjh us mUgsa izR;{k vFkok vizR;{k :i ls vuqca/k esa yxk, x, vkjksiksa ds fy, lh/ks nks"kh ugha Bgjk;k gSA lapkyu inkf/kdkjh }kjk lefiZr tkWp izfrosnu ds voyksdu ls Li"V gksrk gS fd lapkyu inkf/kdkjh ds le{k Jh tkSu fVdhZ }kjk vius vkosnu fnukad 14-2- 20003 esa Lohdkj fd;k x;k gS fd QthZ fu;qfDr @ LFkkukUrj.k fu;qfDr @ inLFkkiu vkns'k esa muds gLrk{kj ds lkFk&lkFk Jh xksiky 'kekZ] ojh; fyfid ,oa Jh jketh flag] fyfid dk gLrk{kj gSA bl izdkj Jh fVdhZ }kjk Lo;a vkjksi dks Lohdkj fd;k x;k gSA vr% Jh fVdhZ dk ;g rdZ fd lapkyu inkf/kdkjh }kjk mUgsa lh/ks nks"kh ugha Bgjk;k gS] xyr gSA ¼2½ Jh fVdhZ us vius cpko esa vihy vH;kosnu esa nwljk fcUnq ;g mBk;k gS fd muds lg&vkjksih Mk0 v:.k dqekj feJk] rRdkyhu flfoy ltZu] iVuk ds gLrk{kj dh laiqf"V gLrfyfi fo'ks"kK ls djk;h tk;A Mk0 v:.k dqekj feJk] rRdkyhu flfoy ltZu] iVuk ij vyx ls dkjZokbz dh tk jgh gSA muds glrk{kj dh laiqf"V glrfyfi fo'ks"kK ls djk;h tk; ;k ugha ls Jh frdhZ dk nks"k de vFkok vf/kd ugha gksrk gSA vr% ;g cpko ekU; ugha gSA ¼3½ tgk¡ rd rRdkyhu flfoy ltZu] iVuk Mk0 v:.k dqekj feJk ,oa vU; deZpkfj;ksa ds bl voS/k@QthZ dk;Z&dyki esa 'kkfey gksus dk iz'u gS] bl laca/k esa vU; yksxksa ds fo:) Hkh vyx&vyx dk;Zokgh tkjh gS vksj mDr vk/kkj ij Jh fVdhZ dks mu ij vkjksi esa vkReLohdkjksfDr c;ku ds ckn Hkh dksbZ jkgr nsus dk iz'u ugha mBrk gSA ¼4½ tgkW rd Jh fVdh dk vius vihy vH;kosnu esa ;g dFku fd fdlh Hkh dk;Z ds fy, os lh/ks mRrjnk;h ugha Fks] cfYd dk;kZy; ds vU; fyfidksa ds ftEes vkoafVr dk;Z ds fuiVkjs esa mudk ek/;e viuk;k tkrk FkkA vkxz muds }kjk viyh vH;kosnu esa dgk x;k gS fd ftu 48 deZpkfj;ksa dh lwph lfgr f'kdk;r flfoy ltZu] iVuk ¼Mk0 ,l0ds0veu½ }kjk funs'kky; dks miyC/k djk;k x;k Fkk mlesa ,d gh uke dh iqujko`fr dj lwph dks yEck djds fn[kk;k x;k gSA bl lEcU/k esa oLrqfLFkfr ;g gS fd iz/kku fyfid dk;kZy; ds i;Zos{kd ds :i esa dk;Z dk fu"iknu djrk gSA iz/kku fyfid dks ns[kuk gS fd mlds v/khu ds dksbZ fyfid @deZpkjh vxj Hkzked@QthZ dk;Z izLrko miLLFkkfir djrs gSA rks mls ogha muds }kjk jksd fn;k tkuk pkfg, rFkk bldh tkudkjh vius fu;q=h inkf/kdkjh dks nsuk pkfg,A Jh fVdhZ ds }kjk dksbZ fujks/kkRed dkjZokbZ ugha dh x;h cfYd QthZ fu;qfDr@LFkkukUrj.k@inLFkkiu dks dk;kZfUor gksus fn;k x;k ftlds nkf;Ro ls os eqDr ugha gks ldrs gSA rFkk iw.kZr% nks"kh gSA tk¡ rd ,d gh uke dh iqujko`fr djds lwph dks yEck dj fn[kkus dk iz'u