IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1646 of 1996 DR.ONKAR NATH JAISWAL, son of late Rajendra Prasad Choudhary, resident of village, P.O. and P.S. Mahnar, District Vaishali, presently residing at Sector D-A/11, Kankarbagh Colony, near Tempo Stand, Patna- 800020. Versus 1.STATE OF BIHAR 2.The Secretary and Commissioner, Health, Medical Education and Family Welfare department, Govt. of Bihar, Patna. 3.The Additional Commissioner, Health Medical Education and Family Welfare Deptt. Government of Bihar, Patna. 4.The Director-in-Chief, Health Services, Govrnment of Bihar, Patna. 5.The Deputy Secretary-cum-Chief Vigilance Officer, Health, Medical Eduction & Family Welfare Department, Govt. of Bihar, Patna. 6.The Under-Secretary to Government, Deptt. Of Health, Medical Education & Family Welfare, Govt. of Bihar, Patna. ----------- 4 22/6/2010 Heard Mr. Gyanand Roy, learned counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application is to quash the order of punishment in notification dated 16.12.1995 dismissing him from service. Mr. Roy has made very short submission which according to him should be good enough for disposal of this writ application. He would submit that though the petitioner was subjected to a departmental enquiry on a charge of dereliction of duty in course of preparation of an injury report of the alleged victim of rape in the capacity of the Orthopaedician, the Enquiry Officer himself in course of an enquiry had found the said charge to be not established, inasmuch as, in the concluding portion of the 2 enquiry report he had given benefit of doubt to the petitioner. He submits that once the Enquiry Officer had found the charge to be not proved against the petitioner, the disciplinary authority i.e. the State Government, could have inflicted punishment only after differing with the enquiry report and after giving notice and/or an opportunity to the petitioner by disclosing such reasons of difference. He in this context has invited attention of this Court that the show cause notice sent to the petitioner after the enquiry wherein nothing has been said about the disciplinary authority seeking to differ with the enquiry report. He, therefore, would submit that when charge against the petitioner was not proved and the petitioner has already attained the age of superannuation no gainful purpose will be served by now remitting the matter from the stage of submission of enquiry report. Counsel for the State, on the other hand, with reference to the materials on record would submit that the three persons, namely, the petitioner in the capacity of the Orthopaedician cum Incharge Dy. Superintendent of Hospital, the lady Medical Officer Dr. Smt. Asha Singh and the Pathologist, Dr. Rajendra Kumar Rajesh had jointly prepared a false injury report, the proportionate distribution of such negligence in course of preparation of the same injury report cannot be made subject matter of judicial review, inasmuch as, in the enquiry officer on ultimate analysis had found that the same injury report containing the signature of the petitioner and two other doctors, namely, Dr. 3 Asha Singh and Rajendra Kumar Rajesh was a false injury report. In the opinion of this Court, once a departmental proceeding is initiated, may be with regard to some misconduct, involvement and responsibility of each of the persons proceeded for the common charges have to be also made individually. In this case charge against the petitioner reads as follows:- “vkjksi&fooj.kh ftykinkf/kdkjh] lklkjke us i= l[;k 2116 fnukad 9&6&90 }kjk lwfpr fd;k x;k gS fd cykRdkj ds xaHkhj ekeys dh tkWp lfefr esa Mk0 tk;loky izHkkjh mik/;{kd lnL; ds tkWp izfrosnu ij mUgsa gLrk{kj ugha djuk pkfg;s Fkk tc rd larq"V ugha gks tkrs A ysfdu ,slk ugh fd;k x;k A mik/kh{kd ds ukrs os tkWp izfrosnu ns ldrs Fks] ysfdu muds }kjk ,slk ugha fd;k x;k A blls mudh xyr izo`fr dk >yd feyrh gS A fu%lnsg muds }kjk vfu;ferrk dnkpkj ,oa drZO;ghurk dk ifjp; fn;k x;k gS tks /kksj funauh; gS rFkk ljdkjh inkf/kdkjh ds vkpj.k ds izfrdwy gS Aa” As with regard to the aforementioned charge, the ultimate finding of the Enquiry Officer who had held the injury report so signed by the petitioner to be false was as follows:- “tgkW rd Mk0 vksadkjukFk tk;loky dk ekeyk gS] ;g lgh gS yM+dh dh mez ls lacaf/kr ,Dljs IysV dh tkWp lgh <a+x ls dh fdUrq esfMdy cksMZ esa ojh;re inkf/kdkjh gksus ds ukrs ml le; mik/kh{kd ds izHkkj esa jgus dkj.k] budk nkf;Ro Fkk fd os lqfuf’pr djrs fd t[eh dh iwjk tkWp djds lgh izfrosnu Hksatokus dh O;oLFkk djrs A blesa budh pqd gqbZ gS fdUrq blesa dksbZ cqjh fu;r Fkh] ;g izekf.kr ugha gksrk gS A vr%Mk0 tk;loky dks lansg dk ykHk fn;k tk ldrk gS A” 4 The said finding being partly in favour of the petitioner when he was subjected to show cause notice, all that said therein was as follows:- “lsok esa] Mk0 vksadkj ukFk tk;loky] gM~Mh jksx fo”s"kK] lnj vLirky lklkjke A iVuk] fnukad 26&7&91 fo"k;& @dqnjk Fkkuk dkaM@cykRdkj ds ekeys esa xyr tkap izfrosnu nsus ds izlax esa A egksn;] mi;qZDr fo"k;d LokLF; foHkkxh; i= la[;k 746 @18@ fnukad 18&7&90 ds }kjk vkids fo:n~/k foHkkxh; dk;Zokgh pyk;h x;h Fkh A foHkkxh; dk;Zokgh ds lapkyu inkf/kdkjh ds tkap izfrosnu ds vk/kkj ij vkids fo:n~/k vkjksiksa dh leh{kk dj ljdkj us ;g fu.kZ; fy;k gS fd vkidks ljdkj dh lsok ls gVk fn;k tk; A vr%vkils f}rh; dkj.k i`PNk dh tkrh gS fd vki i= izkfIr ds 15 fnuksa ds vUnj viuk Li"Vhdj.k nsa fd D;ksa ugha vkidks ljdkj dh lsok ls gVk fn;k tk; A” From reading of the aforementioned second show cause notice it would be thus clear that the findings recorded by the Enquiry Officer in favour of the petitioner was not at all taken into consideration while issuing second show cause notice. There was not even any inkling muchless expression of an opinion as with regard to the findings of the Enquiry Officer. Therefore, this Court is satisfied that the petitioner was prejudiced in the ultimate order of punishment. By now it is well settled that the Disciplinary Authority can always differ from the findings recorded in favour of the delinquent by the Enquiry Officer, but before doing so he 5 has to disclose reason in recording such difference of opinion and give opportunity by way of show cause notice and consider his explanation before holding the person guilty on the basis of such opinion differing with the enquiry report. Reference in this connection may be made to judgment of Apex Court in the case of Punjab National Bank and others Vs. Kunj Bihari Mishra reported in (1998) 7 S.C.C. 84. In the present case the impugned order of punishment, however has been passed without in fact considering this aspect of the matter, inasmuch as, the petitioner had submitted an exhaustive show cause reply to the aforementioned show cause notice dated 26.7.1991 running into as many as ten pages and yet order of punishment passed in this case reads as follows:- “iVuk] fnukad&16&12&95 la[;k&18@,&1&409@93&1457 @18@ Lok0] Mk0 vkadkj ukFk tk;loky] iwoZ gM~Mh jksx fo’ks"kK] lnj vLirky, lklkjke] jksgrkl @lEizkar fuyafcr@ dk ftyk inkf/kdkjh] jksgrkl ds i=kad&2116@ iks0] fnukad&9&6&90 }kjk vkjksi izfrosnu fd;k x;k fd dqnjk Fkkuk dkaM la0&60@90 esa cykRdkj ds xaHkhj ekeys dh tkWp lfefr esa Mk0 tk;loky] rRdkfyu izHkkjh mik/kh{kd] lg lnL; dh tkWp izfrosnu ij gLrk{kj ugha djuk pkfg, Fkk] tcrd os larq"V ugha gks tkrs ysfdu mUgksausa ,slk ugha fd;k ftlls mudh xyr izo`fr dh >yd feyrh gS A bu vkjksiksa ij ljdkj ds lE;d fopkjksijkUr LokLF; foHkkxh; vkns” la0& 656 @8@] fnukad& 25&6&90 }kjk Mk0 tk;loky dks fuyfcr djrs gq, foHkkxh; ladYi la[;k&746 @8@] fnukad 18&7&90 }kjk muds fo:n~/k foHkkxh; dk;Zokgh lapkfyr dh xbZ A lapkyu inkf/kdkjh ls izkIr vf/kxe] Mk0 tk;loky }kjk izLrqr f}rh; dkj.k i`PNk] fcgkj yksd lsok vk;ksx }kjk foHkkxh; izLrko esa lgefr rFkk eaf=ifj"kn dh Lihd`fr ds vkyksd esa Mk0 vksadkj ukFk 6 tk;loky dks vkns” fuxZr gksus dh frfFk ls ljdkjh lsok ls oj[kkLr @fMlfel@ fd;k tkrk gS A” It would thus be clear that despite the petitioner explaining the aspect that the Enquiry Officer had not found him guilty and yet he was subjected to an order of punishment of dismissal from service by choosing to differ with the findings of the Enquiry Officer and that too without taking into account the defence taken by the petitioner and therefore this court is constrained to hold that the impugned order of punishment cannot be sustained. It is also well settled that in a case of this nature an order of punishment has to be a speaking order, inasmuch as the Enquiry Officer had not found the petitioner guilty and the petitioner had, in reply to the second show cause, taken his defence to explain himself. Therefore all that was required to be done, was that at least the explanation of the petitioner could have considered so as to reflect the application of mind by the disciplinary authority time without number it has been held by the Apex Court and this Court that any order passed in the quasi- judicial proceeding of this nature, where the Enquiry Officer exonerates the delinquent, the same must be a speaking order. Reference in this connection may be made in the case of „The Siemens Engineering and Manufacturing Co. of India Ltd. Vs. The Union of India & Anr.‟ reported in 1976 S.C. 1785 and further in the case of „S.N.Mukherjee Vs. Union of India‟ reported in A.I.R. 7 1990 S.C. 1984, wherein it has been held that giving reasons in support of the conclusion arrived at is a part compliance of the principles of natural justice. That being so, this Court would find the impugned order to be a non-speaking order and in the facts of this case wholly unsustainable. The writ petition is accordingly allowed and the impugned order of punishment dated 16.12.1995 is quashed. As the charge of preparation of a false injury report of a rape victim is one relating to gross misconduct, this Court cannot direct for closure of the matter only because the petitioner during the pendency of the writ application has attained the age of superannuation. Rule 43 of Bihar Pension Rules itself envisages continuation of a departmental proceeding even after retirement if the charges are related to gross misconduct or causing financial loss to the government. In that view of the matter, the case of the petitioner is remitted back to the Respondents with a direction to proceed from the stage of submission of the enquiry report. The Disciplinary Authority on the basis of materials on record would now serve the petitioner a fresh show cause notice giving reasons for differing with the findings of the Enquiry Officer and upon service of such show cause notice the petitioner will submit his reply, where after final order will be passed by the competent authority in accordance with law. It is made clear that since the proceeding was 8 continuing against the petitioner prior to his reaching the age of superannuation the said proceeding shall now be continued and concluded in terms of Rule 43 of the Bihar Pension Rules. The petitioner however will not be entitled for any financial benefits till a final order is passed and in case he is held guilty for the charges he will also not get the benefit of payment of salary for the period he had remained out of service, i.e. from the date of his dismissal from service to the date of his deemed superannuation. In view of the fact that this writ application had remained pending before this Court for almost 14 years and is now being remitted for fresh consideration, this Court would expect that the resultant final order would be passed by the competent authority within a period of six months from the date of receipt/production of a copy of this order. The writ petition succeeds only in part and is allowed only to the extent indicated above. Abhay Kumar ( Mihir Kumar Jha, J.)