IN THE HIGH COURT OF JUDICATURE AT PATNA (CIVIL WRIT JURISDICTION) C.W.J.C. No.11488 OF 2005 *** DR.SURESH JHA------------------------------------------------------ (Petitioner) -:Versus:- THE STATE OF BIHAR & ORS---------------------------------- (Respondents) For The Petitioner : Ms. Pushkar Narain Shahi Mr. Santosh Kumar Jha Mr. Sanjeet Kumar Singh Mr. Nishan Choudhary For The Respondents : Additional Advocate General No.- V Mr. Shankar Kumar J.C. to A.A.G.- V ***** P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA M.K. Jha, J. :- This writ application has been filed for the following relief:- (i) Quashing the order dated 30.3.2005 issued vide memo No. 424(9) (Contained in Annexure-1) issued by Joint Secretary by which the petitioner has been dismissed from service on the basis of the charges being fully proved by the Inquiring Officer as contained in (Annexure-1/1). Though the Inquiry report does not suggest so. (ii) Quashing the Inquiry Report (contained in Annexure-1/1) whereby the Charge of issuing Purchase order to Government Medical Store Depot, Kolkata was found true without any 2 document to that effect on record. (iii) For issuance of mandamus commanding upon the respondent to pay 75% subsistence allowance with effect from 25.2.2004 on completion of one year of suspension without any latches on the part of the petitioner and in view of the Hon’ble High Court’s direction passed in CWJC No. 2413 of 2004 dated 3.8.2004. This amount should be paid after deducting the amount already paid to the petitioner. (iv) For issuance of mandamus commanding upon the respondents to provide all the promotions due including the 20% promotion which was confirmed prior to the departmental inquiry and also for payment of salary and regularization in service from 6.6.1985 to 28.6.1985 during the period in which the petitioner was kept waiting for posting. (v) For issuance of mandamus commanding upon the respondents to pay the Transfer allowance to the tune of Rs. 7250.00 which is due when the petitioner was transferred from Primary Health Centre, Dumra to District T.B. Centre, Samastipur. (vi) For issuance of mandamus commanding upon the respondents for payment of subsistence allowance from 1st March to 10th April, 2005. 3 From the tenor of the aforementioned reliefs as also the pleadings on record itself, it is absolutely clear that the petitioner is aggrieved by an order of punishment in a departmental proceeding whereby and whereunder he has been dismissed from the service by an order dated 30.3.2005. From the materials on record, it would transpire that the petitioner, a graduate in Medicine and Surgery (M.B.B.S.) of 1972 batch having completed his post graduation in 1977 had been appointed in the Bihar Health Service on 8.10.1997. The petitioner after completing almost 25 years of unblemished service, however, was placed under suspension in contemplation of a departmental proceeding vide an order dated 30.7.2002 and was also subjected to a departmental proceeding vide memo of charge dated 12.6.2004 pertaining to an allegation of the year 1991 while he was holding the post of In- charge, Medical Officer, Referral Hospital, Adhrantharhi in the district of Madhubani. The charges against the petitioner in the departmental proceeding was as follows:- ^^vkjksi Mk0 lqjs'k >k] rRdkyhu izHkkjh fpfdRlk inkf/kdkjh] jsQjy vLirky] va/kjkBkM+h] e/kqcuh esa fnukad 16-12-1989 & 31-5-92 rd izHkkjh fp0 ink0 ds in ij inLFkkfir jgdj Lok0 foHkkxh; i=kad 176 ¼10½ fnukad 27-2-82 esa fu:fir fu;eksa ds foijhr ljdkjh jkf'k dk nq:I;ksx foRrh; fu;eksa dk vogsyuk rFkk nok en esa vkoaVu jkf'k ds vfrfjDrjkf'k ,e0 ,l0 Mh0 dydrk ds 4 b';w Hkkmpj la0 145@6@91 ls 2]00]988@& :0 dh nok dz; ds fy, nks"kh izrhr gksrs gSA** The petitioner had denied the allegation in a memo of charge and consequently, the Departmental Enquiry Commissioner of the Government of Bihar in capacity of Enquiry Officer had initiated departmental proceeding vide an order dated 26.8.2004 and after hearing the petitioner, he had submitted an enquiry report on 20.10.2004. The Enquiry Officer in his enquiry report had found that the charges were partly proved against him. On receipt of the said enquiry report, the Government through the letter of the Deputy Secretary dated 25.11.2004 had solicited the comments of the petitioner on the enquiry report by a show-cause notice dated 25.11.2004 wherein it was mentioned that all the charges that were framed against him were found to be proved by the Enquiry Officer. There is a dispute as to whether the said show-cause notice or its reminder dated 27th January, 2005 along with enquiry report were served on the petitioner or not but it appears that in view of an order of this Court dated 3.8.2004 in CWJC No. 2413/2004, the order of punishment came to be passed on 30.3.2005 dismissing the petitioner from service by an order dated 30.3.2005 which being relevant for the purpose of this writ application, is quote hereinbelow:- 5 ^^fcgkj ljdkj Lok0 fp0 f'k0 ,oa i0d0 foHkkxA ladYiA vf/klwpukA iVuk] fnukad 30&3&05 la[;k&9@ ,e0dz;&01@98 424 ¼9½ @ Lok0 Mk0 lqjs'k >k] rRdkyhu fpfdRlk inkf/kdkjh] va/kjkx<+h] e/kqcuh lEizkar fuyafcr eq[;ky;] {ksf=; mi funs'kd] Lok0 lsok,W] frjgqr izeaMy] eqtQjiqj dk;kZy; dks ,e0,l0Mh0 dksydkrk ls vfu;fer :i ls yk[kksa :I;s dh nok dz; djus ds vkjksi esa foHkkxh; vf/klwpuk la0& 1238 ¼2½ fnukad 30-7-02 }kjk fuyafcr dj ladYi la0&912¼9½ fnukad 16-06-04 ds }kjk foHkkxh; dk;Zokgh lapkfyr dh x;hA lapkyu inkf/kdkjh }kjk lefiZr vk/kxe esa vkjksi iw.kZr% izekf.kr ik;k x;kA izekf.kr vkjksi ds vkyksd esa Mk0 >k ls dkj.k i`PNk dh ekax dh x;hA izkIr tckc larks"kizn ugha jgus ds dkj.k os bls vLohd`r djrs gq, mUgsa c[kkZLrxh dk fu.kZ; fy;k x;kA Mk0 >k ds ljdkjh lsok ls c[kkZLrxh ds izLrko ij fcgkj yksd lsok vk;ksx] iVuk ls lgefr dh ekWx fd;k x;kA vk;ksx ds i=kad 2806 fnukad& 10-3-2005 ds }kjk lgefr izkIr gqbZA ,rvo Mk0 lqjs'k >k] fpfdRlk inkf/kdkjh dks rRdkyhu izHkko ls ljdkjh lsok ls c[kkZLr fd;k tkrk gSA fcgkj jkT;iky ds vkns'k ls] g0@& ch0ch0ik.Ms;] ljdkjh ds la;qDr lfpoA** The said order of punishment against the petitioner having been passed with the approval of the Council of the Ministers, the petitioner has filed this writ application for the reliefs mentioned above. Mr. Pushkar Narain Shahi, learned Counsel appearing on behalf of the petitioner with reference to the pleadings on record has assailed the impugned order on various grounds as would be noticed herein after. The first and foremost ground on which the 6 impugned order of punishment has been assailed by the Counsel for the petitioner is that the initiation of departmental proceeding was itself not permissible inasmuch as the allegation of the year 1991 was made subject matter of a departmental proceeding after a lapse of thirteen years and therefore, the order of punishment passed of a stale charge is unsustainable both on facts and law. In this regard, Counsel for the petitioner has submitted that there is no reasonable explanation for initiating the departmental proceeding after a lapse of a period of thirteen years inasmuch as the Government and the authorities of the department were well aware of the allegations and yet they chose to keep the matter pending for no justifiable reasons. In this context, he has referred to a notice dated 14.5.1998 issued by the Deputy Secretary of the Health Department wherein the petitioner was asked to explain that the purchase of medicine by him in the year 1991- 92 for a sum of Rs. 2,00,988/- was found to be illegal in view of a report received from MSD, Kolkata vide letter no. 243 dated 4.4.1997. By the said notice, the petitioner was asked to explain as to why he should not be subjected to disciplinary and legal proceedings. Counsel for the petitioner has referred to his reply dated 14.5.1998 wherein he had denied each and every allegation and in fact came out with a plea that he had never placed any purchase order to MSD, Kolkata or 7 that had made any payment challans beyond the allotment for the Referral Dispensary, Adhrantharhi. His plea in defence was that when a requisition was received from MSD, Kolkata, he had only sent his reply with regard to the medicines that were required for utilization in the Referral Dispensary, Adhrantharhi. This reply of the petitioner dated 26.5.1998 denying the allegations is said to have remained pending consideration before the Government which after more than four years had chosen to place the petitioner under suspension for the allegations of the year 1991 and 1992 as with regard to the irregularity in the purchase of medicine from MSD, Kolkata. Almost two years of his order of suspension, the petitioner was served with a memo of charge dated 12.6.2004 as has been quoted above and was ultimately handed out the order of punishment vide an order dated 30.3.2005 dismissing him from his service. These facts have not been controverted and in fact stand admitted from the counter affidavit filed by the respondents which has been sworn by the Deputy Secretary cum Health, Education and Family Welfare Department. Counsel for the State in fact could not satisfy this Court as to why a departmental proceeding was initiated after more than thirteen years of the alleged misconduct. This Court in the light of the aforementioned 8 admitted facts and the submissions of the parties is of the opinion that the order of punishment is bad only on account of the stale charges. It is not the case of the respondents that they were not aware of the allegations against the petitioner rather from the counter affidavit itself and its annexures A & B namely the notice asking explanation from the petitioner dated 14.5.1998 and its reply by the petitioner dated 26.5.1998 it is absolutely clear that the authorities of the Health Department were well versed with all the facts and circumstances relating to the alleged misconduct on the part of the petitioner and yet it took them another six years in initiating the departmental proceeding by memo of charge dated 12.6.2004 vide Annexure-G to the counter affidavit. In such a situation, this Court must hold that the allegation against the petitioner which led to an order of punishment was wholly stale in nature and had vitiated the entire departmental proceeding and the consequential order of punishment. Reference in this connection may be only made to the judgment of the Apex Court in the case of State of Madhya Pradesh Vs. Bani Singh reported in AIR 1990 (SC) 1308 wherein in an almost identical situation, the Apex Court had held as follows :- “……… The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-1977. It 9 is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. ……” The said view of the Apex Court has been also reiterated in the case of State of A.P. Vs. N. Radhakrishnan reported in (1998) 4 SCC 154 wherein it has been held that – “……… The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the 10 delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charges officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceeding …….” Following the ratio of the aforesaid two cases this court would hold that the order of punishment is vitiated and bad and is fit to be quashed on this ground alone. 11 Mr. Shahi next contended that the departmental proceeding and the consequential order of punishment was also vitiated on account of incurable procedural irregularities committed in course of departmental proceeding. In this context, he had referred to the fact that the petitioner was not supplied the crucial documents which were required to by him for his defence and in this context, he has referred to a number of applications filed by the petitioner both to the Government and to the Enquiry Officer for supply of the document. In this context, he has referred to his application dated 9.12.2003 (Annexure-14), written statement of defence dated 28.9.2004, his another application dated 10.9.2004 and his yet another application dated 28.9.2004 whereby and whereunder he had been repeatedly asking for supply of the alleged purchase order placed by him to MSD, Kolkata as also the details and price of medicine and the proof of supply of such medicine to Referal Hospital, Adhrantharhi by MSD, Kolkata. These facts with regard to the non- supply of documents specifically asserted by the petitioner in paragraph no. 33, 49, 50, 52 and 53 of the writ application have not at all been controverted by the respondents in their counter affidavit and in fact, the counter affidavit which also does not give parawise reply to the averments made in the writ application is totally silent on this crucial issue. The Counsel for the 12 petitioner therefore seems to be also correct in submission that as a matter of fact, these documents were also not available with the department and the reliance placed by the petitioner for this purpose on a letter of the Deputy Secretary of the Health Department to the Department addressed to departmental Enquiry Commissioner, the Enquiry Officer vide letter no. 1490 dated 2.9.2004 (Annexure-19) seems to be correct wherein the said Deputy Secretary had while answering to the plea of defence of the petitioner in his written statement of defence, informed his Enquiry Officer that the documents as demanded by the petitioner were not available in the Referral Hospital, Adhrantharhi or in the office of Civil Surgeon, Madhubani. As a matter of fact, the Deputy Secretary had stated in his aforementioned letter that “tgkW rd Mk0 >k ds }kjk laiw.kZ vfHkys[kksa dh Nk;kizfr miyC/k djk;s tkus dk iz'u gS] og laHko ugha gSA”. In such a situation, this Court must hold that the grievance of the petitioner as with regard to the non- supply of the relevant documents had definitely prejudiced him both in the matter of filing his effective written statement of defence as also in course of the departmental proceeding conducted by the Departmental Enquiry Commissioner. This Court has to also take into account as to what 13 the petitioner was demanding in form of such documents. He was actually asking for a copy of the purchase order allegedly placed by him or any document to show that he had made payment of the alleged amount or that such medicine were actually received by him. These documents in fact were the basic documents without which the petitioner could not have defended himself in the departmental proceeding in support of charge framed against him. It has to be kept in mind that the petitioner was no longer posted at Referral Hospital, Adhrantharhi either on the date of framing of charge or in course of departmental proceeding so as to have access to these documents. The petitioner in fact had stood transferred from Referral Hospital, Adhrantharhi way back on 2.6.1992 and the departmental proceeding had been initiated after 12 years of his being relieved from the aforesaid post of In-charge, Medical Officer, Referral Hospital, Adhrantharhi. In that view of the matter when the respondents did not choose to supply the relevant documents, the adverse inference on account of prejudice suffered by the petitioner must be drawn against them. Counsel for the respondents however had tried to explain that the petitioner did not suffer any prejudice on account of non-supply of the documents and in this context, he had referred to the list of documents 14 enclosed with the memo of charge mentioning three documents namely letter no. 243 dated 4.4.1997 containing report of the M.S.D., Kolkata, departmental circular dated 27.1.1982 and letter of the Civil Surgeon, Madhubani bearing no. 2901 dated 26.12.2001. He had also referred to certain findings of the Enquiry Officer in the enquiry report to contend that the petitioner was not prejudiced on account of non-supply of the relevant documents. A question would arise as to how the aforementioned three documents could have been a substitute for the purchase order placed by the petitioner in the year 1991 which was the basis of the charge. In paragraph no. 16 of the enquiry report, there is a clear admission on the part of the Presenting Officer in course of departmental proceeding that the copy of the purchase order placed by the petitioner was not available in the department and that it was only on the basis of a report received from MSD, Kolkata that it could be found that the petitioner had sent a purchase order in the date of 6.6.1991 to MSD, Kolkata. It is true that law of evidence will not apply to any departmental proceeding but then, even when charges have to be established by preponderance of probability, the authorities framing charge and seeking to prove are still under obligation to prove the same on the basis of either the main document or some attending document. Here 15 the report of MCD is said to be the substitute evidence to contend that the petitioner had placed purchase order but even that report was not sought to be proved by the maker of the report. As a matter of fact, no witness was examined in course of departmental proceeding and the Departmental Enquiry Commissioner had rather adopted a novice mode of conducting enquiry by asking the petitioner to prove that the charges framed against him could not have been established. In fact, from the reading of the entire enquiry report, it would appear that the onus to prove the petitioner himself innocent as against the charges framed against him were shifted on the petitioner instead of directing the Presenting Officer to prove the charge. The next document on the basis of which the Enquiry Officer has found charge partly proved against the petitioner is a letter of the Civil Surgeon of Madhubani district dated 26.12.2001. Now this letter also containing certain report as with regard to the charge against the petitioner was also not proved by producing the Civil Surgeon, Madhubani. It has also to be noted that this document in the form of report of the Civil Surgeon dated 26.12.2001 was not of that Civil Surgeon in whose period, the irregularity in purchase of medicine was allegedly said to have been committed by the petitioner in June 1991. Therefore, the plea of 16 respondent that the petitioner did not suffer prejudice on account of non-supply of the relevant document is to be noticed for its being rejected and it must be held that the petitioner was denied of a reasonable opportunity to defend himself in course of departmental proceeding. Reference in this connection may be made to the judgment of the Apex Court in the case of Committee of Management, Kisan Degree College Vs. Shambhu Sharan Pandey and others reported in (1995) 1 SCC 404 and Pepsu Road Transport Corporation Vs. Lachhman Das Gupta and another reported in (2001) 9 SCC 523. As noticed above, there is also force in the submission of the Counsel of the petitioner that the departmental proceeding was conducted in a most perfunctory manner inasmuch as the Enquiry Officer had initiated the proceeding on 26.8.2004 on which day, nothing was done due to lack of authorization of holding such enquiry under the order of the Chief Secretary. On the next date of enquiry i.e. 10.9.2004, nothing was done except noting the grievance of the petitioner with regard to the supply of document and a direction issued to the Presenting Officer to make those documents available to the petitioner. Thereafter, even on the next date of enquiry i.e. 28.9.2004, the Enquiry Officer had only continued with his effort to get the document supplied to the petitioner. As a matter of fact, the enquiry proceeding came to an abrupt end 17 surprisingly on 28.9.2004 itself on which day, the Enquiry Officer had recorded that he will submit his enquiry report on 16.10.2004. In this manner, if a senior I.A.S. Officer holding the post of Departmental Enquiry Commissioner had conducted the enquiry, this Court will have no hesitation in holding that the authorities in the Government of Bihar are not aware even as to the basics of conducting a departmental proceeding. The manner in which the said Enquiry Officer has conducted himself in holding the departmental proceeding is itself a proof of the fact that even he is not aware of the basic norms of conducting a departmental proceeding. It has to be noted that the petitioner in this regard has made specific averments with regard to the fatal procedure lapses in course of departmental proceeding committed by the Enquiry Officer but there is not denial to this allegation in the counter affidavit filed by the respondent. In such view of the matter, this Court must hold that the whole enquiry was itself perfunctory. It is not the requirement of law that in a departmental proceeding, there must be examination of witness and there may be cases where the charges can be proved on the basis of documents alone but here was the case where the petitioner had denied each and every part of the charge and therefore, the Presenting Officer was under an obligation to produce his evidence either 18 oral and/or documentary but there is nothing in record to show that such a recourse was adopted in course of departmental proceeding. A departmental proceeding for a major punishment cannot be conducted by making query and/or interrogation from the delinquent as was done in this case. It appears to this Court that the Enquiury Officer in fact was expecting that the petitioner should prove himself to be innocent rather then asking the department and its Presenting Officer to prove the charge. Thus, this Court has no hesitation in holding that the entire departmental proceeding was conducted in a perfunctory manner. The perversity in the approach of conducting the departmental proceeding by the Enquiry Officer is further reflected from the evidence recorded by him in paragraph nos. 21 & 22 of the enquiry report wherein he has assumed many thing for holding that even a reply sent in response to a requisition of the MSD could be held as a purchase order. One fails to understand as to when the department was taking a specific plea that the petitioner had placed a purchase order dated 6.6.1991 alleged in the memo of charge where was the occasion for the Enquiry Officer to make out a third case. As a matter of fact, the Enquiry Officer