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2013 DIGILAW 1233 (PAT)

Raj Kumar Sharma v. State of Bihar

2013-10-09

MIHIR KUMAR JHA

body2013
ORDER Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows: “For quashing the impugned order dated 03.04.2013 passed by the respondent No. 3 the Hon’ble Chairperson Bihar Human Right Commission, Patna the same order has been issued by the respondent No. 4 vide letter B.H.R.E/Comp. 945 of 2012, 4435 dated 05.04.2013 as contained in annexure-13 to this application by which the respondent No. 3 has been pleased to order to give compensation Rs. 40,000/- (Rs. Forty thousand) to respondent No. 11 for his harassment from the petitioner. And further he has ordered to deduct Rs. Forty thousands from the salary of petitioner and paid to respondent No. 11 to the Civil Surgeon, Muzaffarpur and Treasury Officer, Muzaffarpur cum chief Medical Officer jointly within six weeks. And further the respondent No. 3 has been pleased to order initiate departmental proceeding against the petitioner for interpolation/forgery in the official records. And further for issuance of an appropriate writ in the nature of mandamus for commanding and directing the respondents to discharge free from all the baseless allegation/charges against the petitioner by the respondent No. 3. 3. Learned counsel for the petitioner in support of the aforementioned prayer has submitted that the Human Rights Commission (hereinafter referred to as the Commission) has failed to consider that the petitioner could not have been held guilty for the alleged misconduct, inasmuch as, he had joined as Incharge Medical Officer, Meenapur, Muzaffarpur on 15.11.2011 and had started functioning only since, 09.12.2011 and as such could not have accepted the joining of respondent No. 11. He has further submitted that the petitioner had made repeated correspondence with the higher authorities but in absence of any instruction as with regard to acceptance of joining of respondent No. 11, he could not have himself taken the decision for which alone he has been held guilty by the Commission. According to learned counsel for the petitioner, the main person responsible for non acceptance of joining and payment of salary to respondent No. 11 was one Dr. Sudhir Kumar Sinha and for this purpose reliance was placed on a fact finding report of Additional Chief Medical Officer, Muzaffarpur absolving the petitioner. 4. According to learned counsel for the petitioner, the main person responsible for non acceptance of joining and payment of salary to respondent No. 11 was one Dr. Sudhir Kumar Sinha and for this purpose reliance was placed on a fact finding report of Additional Chief Medical Officer, Muzaffarpur absolving the petitioner. 4. Learned counsel for the State on the other hand has supported the findings recorded by the Commission and has submitted that the same is absence of procedural infirmity was not required to be interfered by this Court is exercise of power under Article 226 of the Constitution of India. 5. Before this Court would analyse the aforementioned submission it has to be only noted that a complaint was filed by one Smt. Renu Sinha before the Chairman of the Human Rights Commission on 12.03.2012, wherein, she had alleged that it was the petitioner in capacity of Incharge Medical Officer, Primary Health Centre, Meenapur who had caused mental, physical and financial torture by not allowing respondent No. 11 to mark his attendance as also by depriving payment of salary, travelling allowance and other admissible allowances. In the complaint before the Commission it was also alleged that the petitioner was not accepting the property statement and the income-tax return of the respondent No. 11. 6. The Commission after issuing notice to the concerned authorities including the Director-in-Chief of the Health Services, Civil Surgeon and the petitioner in capacity of Incharge Medical Officer had not only afforded opportunity of hearing but has also looked into the original records before passing the impugned order. In that view of the matter the petitioner cannot be allowed to raise any issue for the first time in the writ court which was not raised by him in the written statement filed by him before the Commission. 7. Learned counsel for the petitioner has very fairly produced the copy of the written statement which has been kept on records of this case. In the written statement, the petitioner had taken a plea that respondent No. 11 after being transferred by the Civil Surgeon on 30.06.2011 and on being relieved from Primary Health Centre, Sahebganj, PHC on 24.10.2011 has submitted his joining in the Primary Health Centre on 25.10.2011 and after submission of joining, he became traceless though his name was entered in the attendance register of the employees of PHC. From the written statement of the petitioner filed before the Commission, it is clear that he had taken a plea that an explanation was called for by him from respondent No. 11 on 29.11.2011 as with regard to his absence from duty in the Primary Health Centre, Meenapur but the respondent No. 11 had neither submitted his explanation nor had appeared before him. 8. It was the further case of the petitioner in his written statement before the Commission that after he had received the direction of the Civil Surgeon, Muzaffarpur contained in letter No. 2975 dated 24.12.2011 and on 02.01.2012, he had written a letter to respondent No. 11 of 04.01.2012 for producing his last pay certificate (LPC), bank A/C number and his service-book as also the reason for unauthorized absence. The said letter dated 04.01.2012 was claimed to have been sent to respondent No. 11 by ordinary post through Incharge Medical Officer, Sahebganj where the respondent No. 11 was earlier posted. 9. The petitioner in paragraph No. 9 of the written statement had also taken a plea that in the first week of January 2012, he was pressurized by respondent No. 11 to mark his attendance and on refusal of the petitioner to do so, he had used unparliamentary language and had again disappeared. The petitioner claims that he has also informed the Civil Surgeon on telephone with regard to aforesaid misconduct on the part of respondent No. 11 and thereafter had also submitted a written report on 11.04.2012 as with regard to misbehaviour of respondent No. 11. According to the petitioner he had also sought for explanation from respondent No. 11 on 26.06.2012. 10. Reference was also made to an inquiry in this regard conducted by the Additional Chief Medical Officer who had submitted his report on 09.08.2012. It was also the case of the petitioner that another enquiry report was submitted by Additional C.M.O. to the Civil Surgeon on 22.02.2013 in reply to the letter of the Civil Surgeon contained in memo No. 235 dated 06.02.2013. The petitioner has also taken a plea that respondent No. 11 was paid his salary regularly w.e.f. 02.07.2012. It has to be noted that the petitioner had also claimed to have produced the issue and dispatch register, attendance register for the perusal of the Commission in support of his stand taken in his written statement. 11. The petitioner has also taken a plea that respondent No. 11 was paid his salary regularly w.e.f. 02.07.2012. It has to be noted that the petitioner had also claimed to have produced the issue and dispatch register, attendance register for the perusal of the Commission in support of his stand taken in his written statement. 11. From the reading of the entire written statement the plea of the petitioner as sought to be highlighted in course of submission does not appear to have been raised before the Commission inasmuch as, he had never stated before the Commission that it was Dr. Sudhir Kumar Sinha, who was the main person responsible for not making payment of salary to respondent No. 11. In fact before the Commission, he had also not taken a plea of his being not responsible for acceptance of joining and payment of salary to Respondent No. 11 prior to the date of 9.12.2011. Such plea of the petitioner, therefore, seems to have been raised for the first time before this Court. 12. It is in this backdrop that the finding of the Commission has to be examined. In such finding of the Commission, it has been recorded that there was interpolation in the attendance register which went to show that respondent No. 11 was being harassed despite his joining on the post at Meenapur, Primary Health Centre. The Tribunal in this regard had held as follows: Om Prakash Sinha, no doubt, is shown to be absent. The column against his name has been scored out and has been written on some of the dates, but from the naked eye it is evident that all entries have been written subsequently and in a different ink against the name of Om Prakash Sinha shown at the bottom i.e. last name in the list of employees. Having regard to the fact that he submitted his joining on 25th of October it is understandable that his name would be added to the list of the employees posted in the PHC and therefore find place at the bottom of the list-and in a different ink-but it is not understandable as to why his name was subsequently added/included in the attendance register after the Commission directed the records to be produced vide its order dated 26.02.2013. Even Dr. Gyan Bhushan, Civil Surgeon Muzaffarpur and Dr. Even Dr. Gyan Bhushan, Civil Surgeon Muzaffarpur and Dr. Nagendra Prasad Singh, Deputy Director, Health Services, fairly agreed that the entries were in a different ink and appear to have been made later. The Commission in the circumstances is satisfied that the applicant joining was not formally accepted by the Incharge Medical Officer Dr. Rajkumar Sharma and he was not allowed to sign the attendance register. The applicant has brought on record copy of memorandum-signed by as many as 47 employees of Minapur PHC-about manufacturing of record on 13.03.2013 showing Om Prakash Sinha absence during the period. The exercise backfired and on protest by the employees the manufactured record was allegedly destroyed by none else than Dr. Rajkumar Sharma himself. It is relevant to point out that from the month of August 2012, to be precise, from 8.8.2012 after he returned from deputation to Motipur PHC- Om Prakash Sinha is shown to have duly signed the attendance register until 21.12.2012 when he was relieved for joining at the Ghosault Additional PHC. Interestingly, he was shown to be absent for the whole month of July 2012 even tough he was posted at Motipur PHC on deputation as mentioned above. The record (attendance register) is evidence of interpolations amounting to forgery in the official record and it strongly suggests that this was done with some ulterior motive. It is to be mentioned here that the complaint before the Commission was filed on about 12.3.2012 and by order dated 23.3.2012 report was called from the Health Department on the intervention of this Commission and having learnt the same, Dr. Rajkumar Sharma interpolated the record. The interpolation not only nails lie in the stand of Dr. Rajkumar Sharma and based on his version the report of the Addl. C.M.O. Muzaffarpur about Om Prakash Sinha being unauthorisedly absent from 23.10.2011, it strongly suggest and proves the applicant case that his joining was not being accepted and he was not being allowed to sign the attendance register. The interpolation not only nails lie in the stand of Dr. Rajkumar Sharma and based on his version the report of the Addl. C.M.O. Muzaffarpur about Om Prakash Sinha being unauthorisedly absent from 23.10.2011, it strongly suggest and proves the applicant case that his joining was not being accepted and he was not being allowed to sign the attendance register. It is relevant to mention that during this period between 25.10.2011 and 21.06.2012 (when he was deputed to Motipur PHC)- he submitted as many as seven representations to the Civil Surgeon, three representations to the Director-in-chief, Health Services, and one representation to Principal Secretary, Health Department, besides representations made to the Incharge Medical Officer, Minapur PHC, pointing out that his joining was not being accepted, he was not being allowed to sign the attendance register and consequently he was not being paid salary. The manner in which Om Prakash Sinha kept approaching the authorities bringing to their notice his plight is a prima facie proof of the fact that he was not absent from duty; no initiative whatsoever was taken by the Medical Officer Incharge on his representations on the other hand. If he was really unauthorisedly, absent from duty, in the normal course, his conduct should have been reported to the higher authorities and suitable action taken or recommended against him. But nothing of the kind happened. In the facts and circumstances, the commission has not hesitation in concluding that the stand of Dr. Rajkumar Sharma is a bundle of lies, and the complaint of the applicant about harassment meted out to Om Prakash Sinha at the hands of the Rajkumar Sharma is well founded. In course of hearing on 19.03.2013, the commission confronted Dr. Rajkumar Sharma with loopholes in his stand but he failed to give any satisfactory reply. The commission is of the view that for his acts of omission and commission including interpolation/forgery in the official records, departmental proceeding should be initiated against him. The commission is also of the view that the applicant should be awarded monetary compensation payable by Dr. Rajkumar Sharma for his acts of harassment resulting in non-payment of salary-amounting to violation of human rights. In the facts and circumstances, the compensation is quantified at Rs. Forty thousand. (Underlining for emphasis) 13. The commission is also of the view that the applicant should be awarded monetary compensation payable by Dr. Rajkumar Sharma for his acts of harassment resulting in non-payment of salary-amounting to violation of human rights. In the facts and circumstances, the compensation is quantified at Rs. Forty thousand. (Underlining for emphasis) 13. In the considered opinion of this Court, such underlined finding of fact recorded by the Tribunal based on perusal of the original records and the admission on the part of both the Civil Surgeon and the Deputy Director of Health Services cannot be lightly interfered with by this court on a more ipse dixit of the petitioner. The Commission has gone into the aspect that it was the petitioner who had not only interpolated in the attendance register as with regard to the name of respondent No. 11 but had also manufactured the records to justify his action of not allowing respondent No. 11 to work and draw his salary. 14. Reverting back to the submission of Mr. Ishwar, learned counsel for the petitioner that Dr. Sudhir Kumar Sinha was the actual Incharge Medical officer of Primary Health Centre, Meenapur, this plea has not been raised by the petitioner before the Commission in his written statement. The Commission has therefore committed no error in deciding the whole matter on the basis of the materials on record specially the attendance register which as noted above was found to be interpolated in every month. 15. The reliance placed by learned counsel for the petitioner on the report of the Civil Surgeon dated 22.02.2013 which came into existence after the Commission had already taken cognizance of the complaint of the wife of respondent No. 11 is wholly misconceived inasmuch as the same Civil Surgeon who had submitted a report to the Director-in-Chief claiming that respondent No. 11 was not present on duty, in course of personal hearing before the Commission had gone to accept that there was an interpolation in the attendance register at the instance of the petitioner. This Court therefore, cannot reappraise the evidence which has been minutely looked into and examined by the Commission. 16. This Court therefore, cannot reappraise the evidence which has been minutely looked into and examined by the Commission. 16. The very fact that the petitioner could not prove his defence before the Commission as with regard to alleged misbehaviour of respondent No. 11 in the first week of January 2012 even in presence of the Civil Surgeon to whom he had allegedly informed of the incident on telephone will by itself altogether demolish the case of the petitioner. If the respondent No. 11 had misbehaved with him, nothing had prevented him to either lodge a criminal case or at least submit a report in the month of January-2012. It has to be noted that the complaint of the wife of respondent No. 11 with the Commission was filed on 02.03.2012 and therefore, any document sought to relied by the petitioner after the date of 02.03.2012 has to be looked into with great care and caution because these were found to have been manufactured documents as found by the Commission. 17. Thus having given anxious consideration to the submission of Mr. Ishwar as also on perusal of the materials on record, this Court does not find any error in the order of the Commission directing the petitioner to pay Rs. 40,000/- by way of compensation of the harassment caused to respondent No. 11 as also a direction to the State Government for initiation of the departmental proceeding against the petitioner for the misconduct by way of interpolation and manufacturing the documents including all important attendance register found to have been committed by him. 18. Having analysed the facts this Court is fully satisfied that there is no error in the decision making process of the Commission. This Court therefore would find it difficult to interfere with the findings and conclusion arrived by the Commission. 19. 18. Having analysed the facts this Court is fully satisfied that there is no error in the decision making process of the Commission. This Court therefore would find it difficult to interfere with the findings and conclusion arrived by the Commission. 19. Judicial Review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court while exercising the power of Judicial Review must remain conscious of the fact that if the decision has been arrived at by the Administrative after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute, its judgment for that of the Administrative Authority on a matter which fell squarely within the sphere if jurisdiction of that authority. 20. It is also well settled principle that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at Juridical Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Haltom in Chief Constable of the North Wales Police v. Evans (1982)3 All ER 141, observed. “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the Court. 21. It is also useful to note the following observations of Apex Court in Union of India v. Sardar Bahadur (1972) 4 SCC 618 : (1972 Lab IC 627 at Pp. 630-31): “Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent findings in the materials. 630-31): “Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent findings in the materials. If the enquiry has been properly held the question of adequacy of reliability of the evidence cannot be canvassed before the High Court. 22. Thus having regard to very limited scope of judicial review against an order passed by the Commission, this Court in view of the aforesaid discussion would not like to interfere with the impugned order which would in a long way to go restore faith of commoners in rule of law and generate a hope for the have-nots in their struggle for survival against have hads. 23. Before parting with, this Court would however make it clear that though the petitioner would be liable to pay a sum of Rs. 40,000/- to the respondent No. 11 within a period of one month from today, nothing said in the impugned order of the Commission or even in this order would bind the departmental authorities while conducting and concluding the departmental proceedings which would be held and decided on its own merits. Such departmental proceedings however also must be initiated and concluded within a period of six months from the date of receipt of this order. 24. That being so, this application is wholly misconceived and is, accordingly, dismissed. 25. Let a copy of this order be sent to the Principal Secretary, Health for its strict compliance. Petition dismissed.