IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5448 of 2005 DR.MOSIBUR RAHMAN, S/O LATE HANIF ANSARI THE THEN INCHARGE MEDICAL OFFICER, BANMANKHI, DISTRICT-PURNEA AT PRESENT LINE BAZAR, NEAR SADAR HOSPITAL, DIWAKAR PATHO LAB, BANMANKHI, DISTRICT-PURNEA. ……………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH HEALTH COMMISSIONER-CUM-SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE REGIONAL DEPUTY DIRECTOR, HEALTH PURNEA RANGE, PURNEA. 3. DIRECTOR-IN-CHIEF, HEALTH SERVICES, BIHAR, PATNA. 4. CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, PURNEA. 5. THE INCHARGE MEDICAL OFFICER, BANMANKHI, PURNEA. 6. THE DEPUTY SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 7. DR. S.N.SINHA, S/O NAME NOT KNOW TO THE PETITIONER THE THEN DEPUTY DIRECTOR, GOVERNMENT OF BIHAR, PATNA. 8. ADDITIONAL SECRETARY-CUM-CONDUCTING OFFICER, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. ………RESPONDENTS. For the Petitioner : Mr. Dhrub Mukherjee, Adv. ----------- P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh, J.: In this writ application petitioner has prayed for quashing of the order of his dismissal from the post of Incharge Medical Officer, Primary Health Centre, Banmankhi, District Purnea (Annexure-1 dated 23.11.2004) as well as for quashing of the enquiry report dated 10.07.2003 (Annexure-2) and for a direction for payment of his subsistence allowance of the period of suspension. Through I.A. No. 6361 of 2007, which was allowed by order dated 11.12.2009, petitioner 2 has further prayed for quashing of the order dated 29.06.2005 (Annexure-A to the supplementary counter affidavit of the respondents) by which the appeal of the petitioner was rejected. As per the case of the petitioner, after his appointment in the State Health Service in 1981, in due course of posting, he was posted as In-charge Medical Officer in Banmankhi Primary Health Centre in the District of Purnea in 1997. While he was posted there in 2000, he was assigned with the duties of preparation and arrangements in respect of Pulse Polio Programme. He was required to make arrangements for proper preservation of polio vaccine and for proper publicity in respect of the Programme. It appears that the District Magistrate of Purnea, in course of his tour, visited the said Primary Health Centre on 26.07.2000 and enquired about the preparation in respect of the Programme on the date fixed. Upon enquiry he did not find the preparation and arrangements to his satisfaction. On return, he, therefore, sent a letter to the respondent Civil Surgeon on 27.7.2000 asking him to issue necessary directions to the concerned In-charge Medical Officer for making adequate and proper preparation for the said Programme. On receipt of the same, it appeared to the Civil Surgeon that the petitioner had not given correct information to the District Magistrate. Therefore, by letter dated 29.7.2000 3 he asked the petitioner to explain his conduct in respect of the wrong information he had supplied to the District Magistrate. The District Magistrate again wrote to the Civil Surgeon on 14.8.2000 specifically pointing out the indifference and lapses on the part of the petitioner in making preparations for the Programme. It appears that the petitioner did not improve his conduct and, therefore, by order dated 22.09.2000 the respondent Civil Surgeon withdrew the drawing and disbursing powers of the petitioner and also assumed the charge of the Primary Health Centre himself. Later on, the respondents also received complaint that the petitioner had not paid the salary of the staff of the Primary Health Centre and had embezzled huge amount, meant for the purpose, after drawing the same. Accordingly, a case was instituted with the police against the petitioner on 26.08.2001 which was registered as Banmankhi P.S. Case No. 198 of 2001. It is submitted by learned counsel for the petitioner that in the said case the police had submitted final form in favour of the petitioner. Thereafter, on protest, enquiry under Section 202 of the Cr.P.C. was initiated which has remained pending till now. The allegations of indiscipline, inaction, negligence of duty and embezzlement of 4 government money resulted into suspension of the petitioner by order dated 1.2.2002, which he challenged in this Court through C.W.J.C. No. 11767 of 2002. However, as it appeared to the Court that the suspension was in contemplation of enquiry, the writ application was disposed of with a direction to the respondents to proceed with the enquiry and conclude the same within a reasonable time. In respect of subsistence allowance, directions were issued to the respondents to pay the same immediately. After disposal of the said writ application a government decision was notified through resolution dated 27.11.2002 (Annexure-B with the first counter affidavit) in respect of initiation of a proceeding against the petitioner. In the meanwhile, charges were also framed against the petitioner and the same was sent to the respondent Director-in-Chief by the Civil Surgeon through his letter dated 8.11.2002 along with the list of documents. One Kristina Hansda was appointed as enquiry officer and she gave a notice to the petitioner on 8.1.2003 for submission of his defence. However, it appears from the pleadings, that she went on long leave. As such, since this Court had directed the respondents to complete the enquiry in a reasonable time, a new enquiry officer was appointed on 22.5.2003 who sent an unsigned copy of chargesheet to the 5 petitioner on the same day along with a notice to him to file his reply. Petitioner accordingly appeared before him on 26.6.2003 and submitted his reply on 28.6.2003 (Annexure-13). The enquiry officer thereafter submitted his report on 10.7.2003 (Annexure-2 and Annexure-2/A, which is a clean copy with the supplementary affidavit of the petitioner). Accordingly, a second show cause notice was issued to the petitioner on 16.12.2003 (Annexure-9) a reply to which was filed by the petitioner on 10.1.2004 (Annexure-15). Finally punishment order was passed on 23.11.2004 (Annexure-1). Petitioner filed his appeal (Annexure-16). Since the same remained pending, he filed this writ application on 29.4.2005. During the pendency of this writ application, by order dated 29.6.2005, his appeal was rejected, and a copy of the order was produced by the respondents as Annexure-A with the supplementary counter affidavit. Accordingly, petitioner filed the said I.A. for liberty to challenge the said order of rejection of his appeal, which was allowed. While assailing the punishment order and the enquiry report, learned counsel for the petitioner submitted that, the proceeding, which culminated into an order of major punishment, was not held as per procedure prescribed for holding a proceeding for major punishment, inasmuch as the enquiry report was submitted by the second enquiry 6 officer only on the basis of the show cause reply submitted by the petitioner. He submitted that the dates itself shows that no day to day proceeding was held and no opportunity was granted to the petitioner to lead evidence or to rebut the materials in the background of which charges were framed against him. He further submitted that the copy of the charge-sheet, enclosed with the letter of the Civil Surgeon to the Director-in-Chief dated 8.11.2002 (Annexure-A/1 to the first counter affidavit), shows that as many as 59 documents were relied upon by the respondents for framing of charge against the petitioner. He submitted that these documents were never supplied to the petitioner, which grievance was raised by the petitioner in his reply to the show cause itself, submitted on 28.6.2003. In spite of the same, only after 12 days, the enquiry officer submitted his report on 10.07.2003 without any further opportunity to the petitioner and without examining any evidence, oral or documentary in his presence. He further submitted that the approach of the enquiry officer, as evident from the enquiry report, is against all canons of law, which require the charges to be considered in the light of the materials available against the delinquent and produced in the enquiry, and the explanation of the delinquent in that respect, and 7 thereafter only to come to a finding in respect of the charges, either way. Learned counsel for the petitioner submitted that, from the enquiry report it is apparent that, the enquiry officer did not consider any of the documents available against the petitioner to come to a conclusion that the charges were proved. The enquiry officer, instead, threw the burden on the petitioner to disprove the charges and his alleged insufficient explanation to the same was taken as sufficient to hold that the charges were proved. Thus, instead of calling upon the respondents to discharge their onus to prove the petitioner guilty of all or any of the charges, he put the onus on the petitioner to prove that the charges were false and not established. He submitted that this approach of the enquiry officer is against the established principles of conduct of the departmental proceeding against a Government servant. He lastly submitted that the charge-sheet itself indicated that the respondents were biased against the petitioner as it clearly indicated the punishment proposed to be inflicted on the petitioner, which showed that the proceeding had been initiated against the petitioner with premeditated mind. He also submitted that no presenting officer was appointed in the proceeding and the enquiry officer himself assumed the role of presenting officer which also vitiated the enquiry report. 8 Respondents have appeared in the case and have filed their pleadings by way of two counter affidavits and one supplementary counter affidavit. In their affidavits they have brought on record various documents in connection with the conduct of the petitioner and action taken against him, from the first letter of the District Magistrate to the Civil Surgeon dated 27.7.2000, till the rejection of his appeal by order dated 29.06.2005. By producing these documents the respondents have contended that the charges framed against the petitioner were found proved. After considering his show cause reply, and finding no merit in his reply to the second show cause, punishment was imposed upon the petitioner on the basis of the findings in the enquiry report, which was affirmed in appeal also. Learned counsel for the respondents finally submitted that all submissions of learned counsel for the petitioner stands negatived from the records of the proceedings and therefore the writ application is fit to be dismissed. It appears that the respondents filed the supplementary counter affidavit on the orders of this Court, as indicated in the affidavit itself. With the supplementary counter affidavit the respondents have produced the order dated 29.06.2005 passed in the appeal of the petitioner as Annexure-A and copy of the entire records of 9 the proceeding against the petitioner as Annexure- B. Since the respondents have produced copy of the entire proceeding held against the petitioner, the same has to be taken into account, as the entire records in respect of the proceeding held against the petitioner. From perusal of the said records of the proceeding it appears that 11 charges were framed against the petitioner. After the 11 charges, in the second last paragraph of the charge-sheet, it is mentioned that as to why, upon proof of the charges, petitioner should not be removed from service. These wordings expressed in the charge- sheet shows that the respondents had, at least, tentatively, made up their mind in respect of the punishment to be inflicted on the petitioner. In Annexure-B, after the charge-sheet, are the enquiry report and the reply of the petitioner. There is nothing on the record to show that, after submission of reply by the petitioner on 28.06.2003, any date was fixed by the enquiry officer for appearance of the petitioner and for evidence in the enquiry from either side. The reply was admittedly submitted by the petitioner on 28.6.2003 and the enquiry report was submitted on 10.07.2003. Thus it is apparent that, without fixing any date in the enquiry for appearance of the petitioner and for production of evidence by either of the side, only after 12 days the enquiry 10 officer submitted his report. Hence in the opinion of this Court the submissions of learned counsel for the petitioner that the enquiry report was submitted by the enquiry officer without holding sittings and only on the basis of petitioner’s reply stands proved. In his reply dated 28.06.2003, petitioner had specifically indicated his desire to examine witnesses and produce the relevant papers, which were before the Dy.S.P when he submitted his supervision report in the police case. He also prayed in his reply to allow him to inspect the records of the office of the Civil Surgeon and to appear in the enquiry through a lawyer. It may be pointed out here that, in the charge memo itself, liberty had been granted to him, in the last paragraph, to present his case before the enquiry officer personally or through a lawyer. The same also clearly stand denied to the petitioner by the respondents. Further, upon going through the enquiry report, available in the said records, it is clear that the enquiry officer had found the defence of the petitioner against many of the charges as not acceptable and only on that ground had found charges proved and, in respect of the rest of the charges, he expressed his opinion that they are matter of further enquiry. It is clear that the enquiry officer submitted his report in a most perfunctory manner and without coming to his 11 independent conclusion with regard to the charges as proved, or otherwise on the basis of evidence produced in the enquiry. In this respect it is also appropriate to notice the letter of the Civil Surgeon to the Director-in-Chief dated 8.11.2002 along with which a list of evidence and the draft charges were submitted, in reference to one resolution of the Government dated 18.8.2002 and rejection of the earlier writ application of petitioner, namely, CWJC No. 9042 of 2001. The enclosure with this letter shows that as many as 59 documents were relied upon for framing of charges against the petitioner. This list of documents does not appear to have been served on the petitioner. Also, none of these documents find reference in the enquiry report. Thus it is clear that no independent material was taken into account and relied upon by the enquiry officer for considering the charges, some of which he found proved. On the other hand, he found those charges proved only on account of insufficiency and lacuna in the reply of the petitioner to the charges. Thus, apparently, onus was put on the petitioner to prove his innocence contrary to the principles of law governing conduct of the departmental proceeding. The question of non-appointment of presenting officer, and enquiry officer having assumed the role of presenting officer, does not arise in the case since this Court has already 12 found that no proceeding was held in the enquiry at all and no evidence, oral or documentary, was produced or considered by the enquiry officer. In the circumstances, it is clear that procedural irregularities were committed in the enquiry against the petitioner on more than one count. Therefore, the enquiry report as well as the punishment order stands vitiated. The enquiry itself having been found to have been held not in accordance with law, the rejection of the appeal of the petitioner is also meaningless. Therefore, this Court is left with no option than to quash the enquiry report, the punishment order as well as the appellate order which are quashed hereby. Petitioner has filed an affidavit putting it on record that the normal date of his superannuation was 1.1.2009. Therefore, any further action against the petitioner, if at all, can now be taken only in terms of the provisions of the Bihar Pension Rules. This Court, in normal circumstances, would not have granted liberty to the respondents to proceed in the matter afresh since the petitioner has crossed his normal age of superannuation. However, among the charges, there are charges of embezzlement of Government money by the petitioner to the tune of Rs.2,41,465.45 and charges of defalcation of other amount. This is a serious charge and the petitioner should not be allowed to escape the consequences, only due to 13 procedural irregularities committed by the enquiry officer in the enquiry and he having crossed his age of superannuation while this writ application remained pending in this Court. Therefore, this Court gives liberty to the respondents to proceed in the matter afresh from the stage of framing of charges in accordance with law and under the provisions of the Bihar Pension Rules, to hold the proceeding and take a final decision afresh after complying with the Principles of Natural Justice in its all facets. If the respondents decide to take steps against the petitioner afresh, as per the liberty granted by this Court, the same must be taken and concluded within a period of four months from the date of receipt/production of a copy of this order. In case the proceeding is not concluded and final decision is not taken either way, within that time, or is taken in favour of the petitioner, the petitioner will be entitled to be treated to have superannuated from service in normal course with full salary etc. and shall be entitled to his all pensionary benefits. In such a situation, the monetary benefits, as may be admissible to him, must be paid to him within two months from the date of expiry of the said four months. So far salary of the period 23.11.2004 to his normal age of superannuation, i.e. 1.1.2009, 14 is concerned, in view of the charges against him of embezzlement of government money and the dismissal order being quashed on the ground of procedural irregularities only, this Court holds that petitioner will be entitled for only 50% of his basic salary plus dearness allowance of the period, which shall be paid to him within the said four months. The writ application is allowed with the aforesaid observations and directions. Patna High Court, The 26th March, 2010 N.A.F.R./Arvind. (J. N. Singh, J.)