IN THE HIGH COURT OF JUDICATURE AT PATNA ---------- Civil Writ Jurisdiction Case No.10692 of 1996 --------- In the matter of an application under Articles226 and 227 of the Constitutin of India. -------- Raghunath Sharma, Son of Shri Awadh Sharma, R/O within the Campus of Shrikrishna Medical College, Quarter no. 3, P.S. Ahiyapur, District- Muzaffarpur, at present working as Store-keeper, Shri Krishna Medical College and Hospital, Muzaffarpur.............. Petitioner Versus 1. State Of Bihar through the Commissioner-cum- Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna. 2. Director-in-Chief, Health Services, Department of Health, Medical Education and Family welfare, Gov t. of Bihar, Patna 3. Additional Director ( Administration), Health Services, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna. 4. Deputy Director ( Administration), Health Services, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna. 5. Superintendent, Shri Krishna Medical College and Hospital, Muzaffarpur. 6. Laliteshwar Pd.Singh, Administrative Officer, the only post in any of the Medical College in the State of Bihar, at present posted in Shri Krishna Medical College and Hospital, Muzaffarpur 7. Dr. Anil Kumar, Medical Officer ( Store ), Shrikrishna Medical College and Hospital, Muzaffarpur...................................... Respondents. --------- For the petitioner :- Mr. Banwari Sharma,Advocate For the State :- Mr. Shashi Bhushan Kumar,SC-7 --------- 14 12-10-2011 Heard the parties. 2 2. Petitioner a Class-III employee, was posted as store keeper in the Shri Krishna Medical College and Hospital, Muzaffarpur at the relevant time. In the year 1991 large number of irregularities were detected in the medical store of which petitioner was store-keeper and as a result he was placed under suspension on 2-5-1991 on the basis of a Committee’s report dated 25-4-1991 addressed to the Superintendent of the Hospital at Muzaffapur which is available at page 40 of the writ petition. The Superintendent of the Hospital issued a Memorandum dated 17-9-1991 ( annexure-2 A ) disclosing that an enquiry was being initiated against him under Rule 167 of the Bihar Board Miscellaneous Rules and under Rule 55 of the Bihar Civil Services ( Classification, Control and Appeal) Rules in respect of enclosed charges. The petitioner as required submitted his defence vide annexure-3 dated 5-10-1991. 3. The suspension order was revoked on 7th March, 1992 and thereafter by a letter issued from the office of Superintendent of the Hospital bearing memo no. 897 dated 7-6-1993, several persons including the petitioner were 3 informed that the enquiry initated and pending against them would be conducted by the Deputy Director, Health Services, Bihar, Patna as enquiry officer under the orders of the Director-in-Chief, Health Services, Bihar. They were also informed that the Deputy Director, the enquiry officer, would be available in the Chambers of Superintendent of the Hospital at Muzaffarpur on 9-6-1993 for conducting the enquiry. The delinquents were given notice that they could submit their written or verbal statement of defence in respect of the charges and may also submit evidence in support of their statement. 4. From annexure-D to the counter-affidavit of respondent no.2 it is evident that an enquiry report dated 7- 7-1993 was submitted by the Deputy Director, Health Services, Bihar, Patna. Pursuant thereto, by annexure-6 dated 9-2-1994 petitioner was given second show cause notice. The second show cause submitted by the petitioner dated 9-3-1994 is annexure-7 to the writ petition. A perusal of Annexure-7 shows that after replying to ten specific points/ paragraph in the second show cause notice , the 4 petitioner raised a grievance that he had not been given a copy of report of enquiry conducted by the Deputy Director, Health Services. He requested for the same so that he may submit further suitable reply. Annexure-C to the counter-affidavit contains a letter dated 4-6-1994 whereby the Deputy Director took notice of the aforesaid grievance and sent a copy of the enquiry report to the petitioner. The endorsement on the left column of that letter suggests that the reply was sent by registered post but there is no proof that it was actually sent to the petitioner. Since receipt of that letter and enclosed copy of the enquiry report has been denied by the petitioner by filing a rejoinder, we wanted to peruse the original records relating to the enquiry proceeding. Learned counsel for the State was granted earlier time to produce the same. Ultimately, he has informed this Court today that the original records are missing and could not be traced and in relation thereto an information has been given to the Officer-In-charge of Secretariat police station, Patna through a letter dated 11- 10-2011 issued by the Director-in-Chief, Health Services, Bihar, Patna for lodging a criminal case. 5 5. In the aforesaid facts and circumstances, we have applied our mind to the relevant issues. A perusal of annexure-8 dated 12-7-1995 which is a letter written by the petitioner shows that he again made a demand for the copy of enquiry report. In absence of the original records it is not possible to verify as to whether such letter was actually sent by the petitioner or not but prima facie Annexure-8 supports the stand of the petitioner that he had not received copy of the enquiry report allegedly sent to him with letter dated 4-6-1994. 6. The impugned order dated 19-9-1996 is annexure-9 to the writ petition and the same has been issued under the signature of Additional Director, Health services, Bihar, Patrna. It shows that as per orders of the Health Commissioner-cum-Secretary the petitioner had been held responsible for defalcation of Rs. 5,16,768.70 paise of Government money as well as for and other irregularities as Store Keeper of Shri Krishna Medical College and Hospital, Muzaffapur on account of proved charges. He was 6 dismissed from service from the date of issuance of the letter. There is further direction to the Superintendent of the Hospital to take steps for recovery of the said amount from the petitioner and to file a criminal case against him in the local police station. 7. According to averments in the writ petition a criminal case bearing G.R. No. 1005 of 1991 was already lodged against the petitioner long back on 24-5-1991 and the same is still pending for trial. 8. On behalf of petitioner it has been submitted that the second show cause submitted by the petitioner would disclose that the petitioner had made a demand for inspection and perusal of some documents/records but he was not given such opportunity. If lists of those documents or records or their specific details had been mentioned in the second show cause then it would have been easier to appreciate the grievance but unfortunately no details of such documents or records are mentioned in annexure-7 and in fact the subsequent letter of the petitioner to the Deputy 7 Director dated 12-7-95 annexure-8 does not reiterate such a grievance but is confined only to non-supply of copy of the enquiry report. In absence of specific details of the documents demanded, it is not possible to decide whether any prejudice could have been caused to the petitioner on account of his inability to peruse those documents. The problem has been further confounded by the subsequent development showing that original records are not traceable. However, copies of important records or documents may be available even in the file relating to the criminal case and hence in view of nature of the proposed order, we observe that if the petitioner makes a request for perusal of some important documents having relation to the charge and if such records/documents or their copies are available, the same should be shown to the petitioner for perusal. 9. Since we have recorded our prima facie, satisfaction that the respondents have failed to produce any proof that they had actually served a copy of the enquiry report upon the petitioner which he had demanded, we are inclined to set aside the impugned order dated 19-9-1996 8 contained in annexure-9 and remand the matter to the concerned disciplinary authority who had passed the order of punishment against the petitioner to reconsider petitioner’s comments against the enquiry report, which is now available to him, if such comments are submitted within four months from today . In the meantime if the petitioner approaches the concerned authority for perusal of any relevant documents or records along with a copy of this order, then the authority concerned shall make efforts to make the documents/records available to the petitioner for perusal if the documents or records are by then traced and are available. 10. On behalf of petitioner a strong grievance was made that the irregularities in the store were creation of some superior officers and they should have been held responsible for the irregularities/ lapses and not a Class-III emploee like the petitioner. Such issue, if so advised, may be raised by the petitioner in his comments in respect of the enquiry report for consideration of the disciplinary authority. We had the occasion to go through the 9 impugned order and we find that it does not refer to the second show cause submitted by the petitioner. Hence, we direct the disciplinary authority to pass a fresh order in accordance with law showing application of mind by referring to the defence of the petitioner, at least in brief. The defence of the petitioner would include his second show cause already submitted as well as his further comments, if any. 11. Since the matter has remained pending for long years, we direct the authorities concerned to ensure that final order in accordance with law, keeping in view the aforesaid direction, is passed at an early date, preferably within six months from the date of production/communication of a copy of this order. 12. Let a copy of this order be furnished to learned counsel for the State for communication to all concerned. 13. Since we have remitted the matter back to the concerned disciplinary authority, the issue of reinstatement in service shall abide by the decision that may be taken by 10 the authority finally. The writ petition is allowed to the aforesaid extent . There shall be no order as to costs. 14. If the criminal case is still pending, the State authorities should try to expedite the same so that it is disposed of at an early date. It goes without saying that this order shall not prejudice either of the parties in the criminal case. Naresh ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J)