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2011 DIGILAW 1701 (PAT)

Chandan Prasad Singh v. State of Bihar

2011-08-11

RAVI RANJAN

body2011
ORDER : The petitioner, by filing this writ application, has sought quashing of the ORDER :of dismissal of the petitioner as contained in memo no. 1986(9) dated 10.07.2004 (Annexure 8) and reinstatement with all consequential benefits. 2. It appears from the averment made in the writ petition that the petitioner was inducted in the Bihar Health Service and at the relevant time, i.e., in the year 1990, he was posted as District Leprosy Officer, Patna. In the year 1998, when the petitioner was posted as Medical Officer-in-Charge, Primary Health Centre, Mahua in the District of Vaishali, the Chief Vigilance Officer-cum-Deputy Secretary of the department of Health, Medical Education and Family Welfare sent a letter dated 22.06.1998(Annexure-1) to the petitioner making allegation with regard to purchase of medicines from M.S.D., Kolkota, beyond the allotment of fund and against the policy of the Government with regard to purchase of medicines, though he was not a competent officer to place ORDER :s for such purchase. All the allegations of such purchase were of the years 1990-91 while the petitioner was posted as District Leprosy Officer at Patna. It appears that the petitioner submitted his show-cause on 03.07.1998(Annexure-2) denying the allegation levelled against him. Though he did not deny the fact of placing the ORDER :for purchase of medicines, but had tried to explain that the ORDER :s placed by the petitioner were just and proper being compatible with the population of the district of Patna and the large number of leprosy patients suffering in the District. He also questioned the price mentioned by the M.S.D., Kolkota which, according to him, was much higher than the market price. He also accepted that the medicines ORDER :ed were supplied in different instalments. However, the petitioner was put under suspension by the ORDER :dated 23.02.1999, a copy of which is appended as Annexure 3. Subsequently, a copy of the resolution as contained in memo no. 547(18) dated 23.02.1999(Annexure-4) initiating a departmental proceeding along with the charge-sheet was also served upon the petitioner. It appears that the petitioner had challenged the suspension ORDER :by filing C.W.J.C. No. 12622 of 2001, however, during the pendency of the writ petition the ORDER :of dismissal, as contained in Annexure 8, was served upon the petitioner. Thus, the petitioner filed I.A. No. 3979 of 2004 for amendment in the relief portion so that he could challenge the ORDER :of dismissal also. Thus, the petitioner filed I.A. No. 3979 of 2004 for amendment in the relief portion so that he could challenge the ORDER :of dismissal also. That prayer was allowed on 24.08.2004 (Annexure 10). However, the aforesaid writ application was dismissed for non-prosecution on 05.07.2005 and a petition for restoration of the same being M.J.C. No. 1980 of 2006 was filed but later on withdrawn after seeking permission of the Court for filing a fresh writ application challenging the ORDER :of dismissal. Thereafter, the present application was filed. Coming back to the disciplinary proceeding, it is admitted that the petitioner appeared in the inquiry which was concluded and the inquiry report was sent to the Government in the month of April 2001. On 03.12.2002 the petitioner was served with second show-cause notice along with the inquiry report vide Annexure 6 to explain as to why he be not dismissed from service. The petitioner submitted his show-cause. However, by the resolution as contained in Annexure 8, the petitioner has been dismissed from the service. 3. Counter affidavit as well as supplementary counter affidavit have also been filed on behalf of the respondent no. 2. 4. I have heard learned counsel for the petitioner and the State and perused the records of this case. 5. The petitioner challenges the ORDER :impugned chiefly on the ground that the proceeding has been initiated in the year 1999 with regard to the stale charges related with the purchase of the year 1990-91 Secondly, though it has been held in the inquiry report that the petitioner has placed the ORDER :s in violation of the Government instruction issued under Circular no. 176(10) dated 27.01.1982, but he did not have any knowledge about such instruction as a copy of the said Circular was not available in his office. It is next contended that he has placed ORDER :for implementation of very ambitious scheme of the Government of India for eradication of leprosy which was to continue for three years and for the whole period of the scheme he was the competent officer for purchase of medicines. It is next contended that he has placed ORDER :for implementation of very ambitious scheme of the Government of India for eradication of leprosy which was to continue for three years and for the whole period of the scheme he was the competent officer for purchase of medicines. It has also been contended that the population of Patna was about 30 lacs, which, according to 1991 census, reached 38 lacs and the leprosy patients were nearly thirty thousand in number, therefore following the ratio, he had given ORDER :of larger amount of medicines which is in accordance with the guidelines issued under the scheme. It has further been urged that actually this is an issue of over-pricing by the M.S.D., Kolkota as the price shown by it is several times higher than what is available in the open market. That apart, he was not having price list of the M.S.D., Kolkota at the time of placing ORDER :so that he could have placed the ORDER :accordingly. Learned counsel further submitted that the charges have only been partially proved as the inquiry officer has come to the conclusion that no case with regard to misuse or embezzlement of Government money has been proved. In above view of the matter, it has been urged by learned counsel for the petitioner that even if it is assumed for the time being that the charges stand proved partially as per the inquiry report, the punishment granted is not commensurate with the charges proved. It is harsh because the petitioner is having unblemished career. Learned counsel has placed reliance upon a decision of this Court dated 27th of August, 2008 rendered in the case of Dr. Suresh Jha v. The State of Bihar and others in C.W.J.C. No. 11488 of 2005 by a single Bench of this Court. It is submitted that in that case also stale charges were framed after a lapse of about thirteen years for the purchase of medicine. However, on the ground that the Department could not have proceeded upon the stale charges and also that the charges could not be proved, this Court has quashed the ORDER :of punishment. It is submitted that the aforesaid ORDER :was challenged by filing L.P.A. No. 965 of 2008. However, a Division Bench of this Court has dismissed the appeal with cost of Rs. 5000/-. It is submitted that the aforesaid ORDER :was challenged by filing L.P.A. No. 965 of 2008. However, a Division Bench of this Court has dismissed the appeal with cost of Rs. 5000/-. The aforesaid JUDGMENT : stands reported in 2009(3) Patna Law Journal Reports, 403. Learned counsel has also placed reliance upon few decisions on the issue of quantum of punishment such as the decisions of the Apex Court in State Bank of India and others v. Samarendra Kishore Endow and Another ((1994) 2 Supreme Court Cases, 537), Union of India and another v. B.C. Chaturvedi ((1995) 6 Supreme Court Cases, 750), State of Gujarat v. Anand Acharya alias Bharat Kumar Sadhu ((2007) 9 Supreme Court Cases, 310) and State of Madhya Pradesh and others v. Hazarilal ((2008) 3 Supreme Court Cases, 273. Lastly, it has been submitted that the entire inquiry is vitiated due to non-supply of copies of vital documents to the delinquent for the purpose of defending his case and no oral evidence has been adduced for the purpose of proving charges. Thus, the entire proceeding, in the absence of the aforesaid, is liable to be quashed. 6. It has been submitted on behalf of the State that due opportunity was given to the petitioner to defend his case. Copy of charge-sheet was served. The petitioner was allowed to participate in the proceeding and upon consideration of the materials on record, the inquiry report has been submitted. Second show-cause notice was also issued to the petitioner and after consideration of his show-cause, the disciplinary authority has concurred with the findings of the inquiry officer and has passed the resolution/ORDER :of dismissal concerned. The matter was sent to the Bihar Public Service Commission for its concurrence and after such concurrence the same had also been considered by the Council of Ministers. Learned counsel further submitted that the petitioner has admitted the fact of placing the concerned ORDER :s and he has not been able to show his competency for doing the same. Even if it is assumed that the petitioner was ignoramus to the circular No. 176(10) dated 27.01.1982, he should have placed the ORDER :within allotment limit fixed by the State Government. Even if it is assumed that the petitioner was ignoramus to the circular No. 176(10) dated 27.01.1982, he should have placed the ORDER :within allotment limit fixed by the State Government. It is, thus, contended that, violating all norms and committing financial irregularities, the petitioner had placed the ORDER :s for purchase of excessive amount of medicines of the cost of several lacs rupees, and, thus, he is not fit to hold the post. 7. Learned counsel for the petitioner has placed heavy reliance upon a decision of the Division Bench of this Court in The State of Bihar and others v. Dr. Suresh Jha (2009 Patna Law Journal Reports, 403), whereby the ORDER :passed by a learned single Judge setting aside the ORDER :of dismissal of the petitioner of that case has been affirmed and appeal had been dismissed after imposing a cost of Rs. 5000/- upon the appellants. In the aforesaid case also, the disciplinary proceeding was launched against the concerned Medical Officer for purchase of medicine of more than rupees two lacs from M.S.D., Kolkota. However, in the opinion of this Court, the aforesaid case is clearly distinguishable on facts. It has been noticed by the Division Bench that there was no clear admission of the allegations by the officer concerned and the relevant documents to prove the purchases could not be brought on record. That apart, even after the inquiry was initiated after 13 years of misconduct, no reasonable opportunity was accorded to the concerned employee to defend his case, thus, there was clear-cut violation of the Principles of Natural Justice. In that case, it was also found that in spite of requirement to produce certain documents, on the basis of which the charged officer could have defended himself, the same were not produced. The Medical Officer was alleged to have placed certain ORDER :s, however, the purchase ORDER :s were not produced. Though it was stated that the ORDER :s were placed to the M.S.D., Kolkota, as per its report but that report was not marked. The concerned witnesses were not examined in course of departmental proceeding. That apart, the concerned Medical Officer was not the Civil Surgeon on duty at the time of alleged misconduct. Though it was stated that the ORDER :s were placed to the M.S.D., Kolkota, as per its report but that report was not marked. The concerned witnesses were not examined in course of departmental proceeding. That apart, the concerned Medical Officer was not the Civil Surgeon on duty at the time of alleged misconduct. However, in the present case, the petitioner himself has admitted the fact of placing the concerned ORDER :s at the time of the alleged misconduct in the year 1990-91when he was posted as District Leprosy Officer, Patna. Thus, this was a clear-cut case of admission so far the purchase of medicine is concerned. Though a point has been raised by the petitioner at the time of hearing that the copies of relevant documents were not given to him, but no specific description of any such documents could be pointed out by learned counsel at the time of hearing of this case. That apart, learned counsel for the petitioner could not point out any document or letter whereby any request was made by the petitioner to the inquiry officer for supply of the concerned document. Thus, in the absence of the aforesaid, this submission is only noted to be rejected. Once the factum of purchase is admitted and the petitioner has not been able to show that he was competent officer to place such ORDER :s, in my opinion, lack of examination of any witness would not vitiate the entire proceeding. It is not necessary that in every case there should be consideration oral evidence. Reference is made to a decision of this Court in Dr. Noorul Ahad v. The State of Bihar and ors. (2008 (3) Patna Law Journal Reports, 450) in this regard wherein it has been held that nature of evidence in a domestic inquiry is dependent upon the nature of allegation and nature of show-cause submitted by the concerned employee. It is not necessary that in every case there should be oral evidence. The proceeding can only be quashed if upon perusal of the inquiry report and the impugned ORDER :of the disciplinary authority it is revealed that the findings recorded in the inquiry report are perverse and are not based on admission or any document. In the opinion of this Court, learned counsel for the petitioner failed to show such ingredients in this case. In the opinion of this Court, learned counsel for the petitioner failed to show such ingredients in this case. It is also not a case where sufficient opportunity was not granted to the petitioner in violation of the Principles of Natural Justice. 8. So far the delay in initiation of proceeding is concerned, it appears that upon a letter of the District Leprosy Eradication Officer dated 21.02.1997 on receipt of a report of M.S.D., Kolkota dated 04.04.1997, a letter as contained in Annexure 1 was issued directing the petitioner to explain the irregular/illegal purchase. The petitioner submitted his show-cause vide Annexure 2, i.e. a letter dated 03.07.1998 and thereafter by the notification dated 23.02.1999, as contained in Annexure 3, the petitioner was put under suspension and the departmental proceeding was initiated vide a resolution dated 23.02.1999 along with which charge-sheet was served upon the petitioner. In Dr. Suresh Jha (supra) learned single Judge has taken notice that after serving a show-cause notice dated 14.05.1998 and the reply of the petitioner dated 26.05.1998, the matter was kept in abeyance till the year 2004 when at the belated stage after more than 12 years after the alleged misconduct the disciplinary proceeding was initiated. Whereas, in the present case, the notice was served on 22.06.1998 based on the report of the M.S.D., Kolkota dated 04.04.1997 and after submission of reply on 03.07.1998 charge-sheet was submitted on 23.02.1999 itself and the disciplinary proceeding was initiated. In Suresh Jha(supra), it has been found that the officer has not admitted to have placed the ORDER :s. That apart, it has also been noticed that the disciplinary authority had differed with the findings of the inquiry officer without assigning any reason and ORDER :of dismissal was passed without serving any notice upon the petitioner showing reasons for such difference of opinion. Whereas, in the present case, no such grounds are available. 9. In above view of the matter, this Court does not find any reason to interfere into the findings recorded either by the inquiry officer or by the disciplinary authority. 10. So far the quantum of punishment is concerned, it is well settled that in exercise of powers under Article 226 of the Constitution, of course, this Court can either remit back the matter to the disciplinary authority or can modify the ORDER :of punishment if the same is shocking to its judicial conscience. 10. So far the quantum of punishment is concerned, it is well settled that in exercise of powers under Article 226 of the Constitution, of course, this Court can either remit back the matter to the disciplinary authority or can modify the ORDER :of punishment if the same is shocking to its judicial conscience. However, in the present case, the inquiry officer has recorded a finding that though the petitioner has claimed that he was a competent officer under the Central Government Scheme to place purchase ORDER :s but he could not produce any document in support of his submission and even if he is accepted to be ignoramus to the Circular No. 176(10) dated 27.01.1982 of the Department, though the same was addressed to all concerned District Leprosy Officers, he could have placed ORDER :s only within the limit of allotment and sanction by the State Government. Even if he was proceeding under the scheme of the Central Government he should have made an effort to get the medicines from the concerned Establishment of the Central Government itself. It has been vehemently argued that no case of misappropriation of any fund was proved, however, in the absence of any charge to that nature, the inquiry officer has correctly held that consideration of same is beyond his scope. The disciplinary authority has also concurred with the findings of the inquiry officer regarding financial irregularities, violation of rules by placing ORDER :s much in excess to the allotment/sanctioned amount, which is not expected from an officer. The petitioner has not been able to show that the ORDER :of dismissal has been passed only on the trivial charge which would be shocking to the judicial conscience. The charges proved against him are very serious in nature. The petitioner has not been able to show that either the findings have been based on no evidence and as such, the same could not be reached by an ordinary prudent man or the ORDER :impugned is perverse. Thus, in the opinion of this Court, it cannot be held in the present case that the punishment awarded against the petitioner by the disciplinary authority is shockingly unwarranted and disproportionate to the misconduct of the petitioner and as such, no interference in the matter is warranted by this Court. 11. As a result, this writ application is dismissed.