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2004 DIGILAW 1025 (PAT)

Shyam Mohan Singh v. State of Bihar

2004-09-23

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JUDGMENT C.K. PRASAD, J.:- This application has been filed for quashing the notification dated 9th of March, 1999 (Annexure-6) of the State Government whereby the petitioner has been visited with the penalty of dismissal from service as a measure of punishment after a departmental enquiry. 2. Shorn of unnecessary details, facts giving rise to the present application are that while the petitioner was posted as Medical officer at Primary Health Centre Raghunathpur, Siwan by order dated 29.3.1989 he was put under suspension in contemplation of a departmental proceeding. During the pendency of suspension his headquarter was fixed in the office of the Civil Surgeon-cum-Chief Medical Officer, Singhbhum, Chaibasa. The State Government thereafter by resolution dated 27.5.1989 initiated a departmental proceeding under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. Petitioner was served with the memo of charge (Annexure-7), inter alia, stating that because of his undesirable and unrestrained conduct he has created law and order problem and along with the charge, report of the Commissioner Saran Division dated 26.8.1986 was also annexed Petitioner although aware of the initiation of the departmental proceeding and pendency of the enquiry, filed one reply before the enquiry officer but thereafter did not participate in the enquiry. The enquiry officer submitted his report dated 22.3.1995 (Annexure-8) and found the allegation levelled against the petitioner to be true. 3. It is relevant here to state that along with the charges the letter of the Commissioner which in turn incorporated the letters of the District Magistrate, Sub-divisional Officer, Block Development Officer, Raghunathur, Incharge Medical Officer and Civil Surgeon, Saran detailing the misconduct committed by the petitioner. From those letters the enquiry officer came to the conclusion that on account of misbehaviour with the non-gazetted lady employees and men employees they went on strike on 29.12.1986 and the petitioner was to be shifted at another Primary Health Centre. At the deputed place petitioner closed the Health Centre and asked all the male and female employees to live near him at the Additional Primary Health Centre and it is only after the intervention of the Civil Surgeon that the Health Centre was opened. The enquiry officer also observed that petitioner on 27.3.1987 assaulted the incharge Mixer which led to drawing of proceeding under Section 107 of the Code of Criminal Procedure. The enquiry officer also observed that petitioner on 27.3.1987 assaulted the incharge Mixer which led to drawing of proceeding under Section 107 of the Code of Criminal Procedure. The enquiry officer has also referred to the letter of Incharge Medical Officer dated 8.3.1998 in which it was alleged that on 7.3.1988 the petitioner in a drunken condition came to his residence and started pressurizing him to make payment of Rs. 40,000/- under the Family Welfare Scheme and on his refusal petitioner started abusing him, tore the name plate as also damaged the chairs. Relying on the letter of the Block Development Officer the enquiry officer observed that petitioner used to abuse the employees who lived in the residential colony of the Block and the petitioner is a drunkard and associated with anti social element. After referring to all these materials the enquiry officer took into consideration the report of the Divisional Commissioner and came to the conclusion that the petitioner is a drunkard and has become a problem for the employees of the Block. The copy of the enquiry report was made available to the petitioner to which he replied by his letter dated 17.12.189. In that he has stated that no resolution of the State Government initiating the departmental proceeding was ever served on him. He claimed to be innocent and accordingly requested for exonerating him of the charges so that he can get the benefit due to a Government employee. The State Government by the impugned order did not accede to his prayer and ultimately by the impugned order dismissed the petitioner from service. 4. Mr. S.B.K. Manglam appearing on behalf of the petitioner submits that the charge levelled against the petitioner is vague and on that basis the penalty of dismissal ought not to have been inflicted. I do not find any substance in the submission of the learned counsel. Along with the charge petitioner has been furnished with the report of the Divisional Commissioner dated 26.8.1988 which contained the letters of the District Magistrate, Sub-divisional Magistrate, Block Development Officer, Incharge Medical Officer and the Civil Surgeon. All the charges levelled against the petitioner are in relation to misconduct which have been narrated in those letters. In that view of the matter, it cannot be said that charge levelled against the petitioner is vague. 5. Mr. All the charges levelled against the petitioner are in relation to misconduct which have been narrated in those letters. In that view of the matter, it cannot be said that charge levelled against the petitioner is vague. 5. Mr. Manglam then submits that neither the report of the Commissioner nor the letters referred in his report have been made available to the petitioner. It is relevant here to state that the petitioner has filed his reply after submission of the enquiry report but there is no plea that either the letter of the Commissioner or other letters referred to in that have not been handed over to the petitioner. Petitioner has also not placed on record any communication addressed to the disciplinary authority or the enquiry officer to make them available. Therefore there is nothing on record to substantiate the petitioner's claim. It seems that after the enquiry report had gone adverse to the petitioner he has raised this plea. 6. Mr. Manglam then submits that no witness was examined and hence the enquiry officer, finding the petitioner guilty of the misconduct is vitiated on that account alone. There is no hard and fast rule that before holding a person guilty of misconduct in a departmental enquiry, witnesses have to be examined. It is well settled that in the departmental proceeding the strict rule of the Evidence Act does not apply and the enquiry has to be held in conformity with the principle of natural justice. With reference to the document on record the enquiry officer has come to the conclusion that the charges levelled against the petitioner have been proved. I do not find any error in the same. 7. Mr. Manglam then submits that order of dismissal is based on different charge than the charge levelled against him. In such contingency according to Mr. Manglam the respondents ought to have framed supplementary charge. In this connection he has drawn my attention to the order of dismissal. I do not find any substance in the same. In the first paragraph of the order of dismissal what has been referred is the ground which led to the suspension of the petitioner and initiation of the departmental proceeding. Thereafter the impugned order clearly states that it is on consideration of the reports of the enquiry officer that the decision to dismiss the petitioner from service was taken. 8. Mr. Thereafter the impugned order clearly states that it is on consideration of the reports of the enquiry officer that the decision to dismiss the petitioner from service was taken. 8. Mr. Manglam lastly submits that extreme punishment of dismissal from service is disproportionate to the gravity of allegation and the same is fit to be interfered with by this Court in exercise of its writ jurisdiction. It is well settled that what punishment a particular misconduct deserves is primarily to be decided by the employer and this Court interferes with the same only when it is found that the same is shocking to the conscience of the Court or in other words disproportionate to the gravity of allegation. Here the petitioner is a Medical Officer and according to the finding he, in a drunkard condition, visited the superior officer and pressurised him for payment of money illegally and on refusal went on rampage. He had misbehaved with the women employees and other employees which led to strike by them. Not only this, the misconduct committed by him caused law and order problem. In such situation, I am of the opinion that punishment of dismissal from service cannot be said to be disproportionate to the gravity of allegation. Hence, it is not fit to be interfered with in the present petition. 9. I do not find any merit in this application and it is dismissed accordingly.