Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 847 (PAT)

Ravi Kant Mishra v. State of Bihar

2014-08-05

CHAKRADHARI SHARAN SINGH

body2014
ORDER : 1. The petitioner is aggrieved by an order dated 15.04.2008 issued by the Joint Secretary, Department of Health, Government of Bihar, whereby punishment of dismissal from service has been imposed upon him under Rule 76(b) of the Bihar Service Code. The petitioner also prays for setting aside the memo of charges issued vide letter dated 29.05.2004 by the Department by which departmental proceeding was initiated against him for continuous unauthorized absence for more than five years. He also prays for a direction for payment of subsistence allowance for the period 12.04.2004 to 15.04.2008 (the date of dismissal) during which the petitioner remained under suspension. 2. As per the petitioner’s case he had joined as Medical Officer on 29.08.1983 in Supaul, wherefrom he was transferred and posted as medical Officer in Buxar Block on 27.07.1984. Subsequently, he was transferred and joined as Medical Officer T.B. Hospital, Jamshedpur, on 31.07.1986. From Jamshedpur, by a notification issued by the Health Department dated 21.06.1997, the petitioner was transferred to District T.B. Centre, Gopalganj. It is the petitioner’s plea that in compliance of the said notification, he joined the place of his posting at Gopalganj on 22.07.1997. However, there was no post vacant at Gopalganj at the T.B. Centre where the petitioner was posted. The Civil Surgeon Gopalganj accordingly vide letter dated 22.07.1997 requested the Department to post the petitioner somewhere else and asked the petitioner to submit his joining at the Headquarters. Immediately thereafter he submitted an application for grant of leave. He thereafter, again applied for extension of leave on account of his father’s ailment. The petitioner also represented for adjusting him at a different place because of the inconvenience which he was facing. 3. The fact remains that thereafter the petitioner did not join. It is the petitioner’s plea that he had submitted his joining, referring to a communication dated 22.07.1997 made by the Civil Surgeon-cum-Chief Medical Officer, Gopalganj addressed to the Health Department, Government of Bihar. It is contended on behalf of the petitioner that at the place of petitioner’s posting, no post of Medical Officer was vacant. He had submitted his joining in the office of the Director, Health Services, Government of Bihar on 02.03.1998 whereafter he kept on making representations for changing his place of posting. He is also said to have applied for voluntary retirement. 4. He had submitted his joining in the office of the Director, Health Services, Government of Bihar on 02.03.1998 whereafter he kept on making representations for changing his place of posting. He is also said to have applied for voluntary retirement. 4. Finally, as the petitioner failed to join, by a Notification dated 12.04.2004 issued by the Department of Health, Government of Bihar the petitioner was put under suspension in contemplation of a disciplinary proceeding. A disciplinary proceeding was thereafter initiated against him by a Resolution dated 29.05.2004, with issuance of the chargesheet to the effect that the petitioner was transferred to Gopalganj vide Notification dated 21.06.1997 at T.B. Centre Gopalganj and because there was no vacancy at Gopalganj, his service was returned to the Headquarters of the Health Department. It was alleged in the chargesheet that by another Notification dated 23.06.1998, the petitioner was posted as Medical Officer, Additional Primary Health Centre, Sherpur, Begusarai and defying the said order of transfer, he did not submit his joining and, therefore, services were liable to be terminated in exercise of power under Rule 76(b) of the Bihar Service Code. An Enquiry Officer was appointed for the purpose of the said disciplinary proceeding. The petitioner submitted his written statement of defence and participated in the enquiry before the Enquiry Officer. 5. The Enquiry Officer submitted his report on 12.08.2004 (Annexure-12) exonerating the petitioner of the charges levelled against him. The Enquiry Officer came to a finding that the petitioner repeatedly made requests to the Department for giving him a proper posting; after having been returned by the Civil Surgeon-cum-Chief Medical Officer, Gopalganj vide his memo No. 2033 dated 22.07.1997 as there was no vacancy at the place of his earlier posting. The Enquiry Officer also came to a find that the Notification No. 329(2) dated 23.06.1998, posting the petitioner as Medical Officer, Additional Primary Health Centre, Sherpur, Begusari was not duly communicated to him. 6. The Disciplinary Authority, however, did not agree with the findings of the Enquiry Officer and by letter dated 01.11.2004, expressing his disagreement from the findings of the Enquiry Officer, asked the petitioner to submit his reply show-cause within fifteen days. 6. The Disciplinary Authority, however, did not agree with the findings of the Enquiry Officer and by letter dated 01.11.2004, expressing his disagreement from the findings of the Enquiry Officer, asked the petitioner to submit his reply show-cause within fifteen days. The Disciplinary Authority in the said letter dated 01.11.2004, while disagreeing with the report of the Enquiry, Officer observed that had the petitioner contacted the officers of the department and enquired about his place of posting, the information regarding his posting must have been made available to him. The Disciplinary Authority recorded that on the contrary, the petitioner was getting treatment at Jamshedpur, which was evident from the evidence available on the records of the disciplinary proceeding. The petitioner thereafter, submitted his reply on 30.11.2004 reiterating that he did not have any information regarding his posting at Primary Health Centre, Sherpur, Begusarai. The petitioner again made a request in his reply show cause dated 30.11.2004 that he should be allowed voluntary retirement. 7. It appears that the department, in the meanwhile, sought concurrence from the Bihar Public Service Commission on the proposal of the Department to impose upon the petitioner punishment of dismissal from service. The Bihar Public Service Commission vide its letter dated 03.06.2005 addressed to the Secretary, Department of Health, Government of Bihar recorded its disagreement with the said proposal. 8. Finally, by a resolution issued vide Memo No. 447(9) dated 15.04.2008, the Department of Health, Government of Bihar imposed upon the petitioner, punishment of dismissal from service under the provisions of Rule 76(b) of the Bihar Service Code. 9. Mr. Rajeev Kumar Verma, learned Senior Counsel appearing on behalf of the petitioner has contended that the communication dated 01.11.2004 addressed to the petitioner recording disagreement with the finding of the Enquiry Officer cannot be treated to be notes of disagreement from the report of the Enquiry Officer by the Disciplinary Authority. He contends that the Disciplinary Authority did not assign any reason much less cogent reason in the said letter dated 01.11.2004 as to how the findings of the Enquiry Officer were incorrect and as to on what basis the charge framed against the petitioner could be said to have been proved on the basis of material available on records of the disciplinary proceeding. 10. 10. It has been submitted that altogether new aspect was raised in the said communication dated 01.11.2004 that had the petitioner contacted by the Officers of the department, he would have been communicated the information regarding his posting at Additional Primary Health Centre, Sherpur, Begusarai though there was no change to this effect. He has further submitted that there is specific finding by the Enquiry Officer that in spite of petitioner’s repeated representations, no communication as regards petitioner’s posting at Primary Health Centre, Shepur, Begusari was made to the petitioner. He contends that there is no discussion by the Disciplinary Authority in its communication dated 01.11.2004 to the effect that finding of the Enquiry Officer was against evidence available on record and on the basis of material available before the Enquiry Officer, the charge could not be said to have been proved. Mr. Verma has also contended that in any view of the matter, after the petitioner submitted his reply to the letter dated 01.11.2004, it was incumbent upon Disciplinary Authority to have considered the reply and to have reached to its own finding on petitioner’s guilt on the basis of evidence available on records of the disciplinary proceeding. Referring to the impugned order dated 15.04.2008, learned Senior Counsel has submitted that it is cryptic, unreasoned and does not discuss at all the evidence on record on the basis of which charge against the petitioner could be said to have been proved. 11. A counter affidavit has been filed on the behalf of the Respondent-State of Bihar justifying the disciplinary action taken against the petitioner. It has been stated that the petitioner not only absented himself unauthorizedly for the period in question, he attempted to mislead the department showing himself to be waiting for posting since 23.06.1998 onwards, though he remained absent from duty continuously since 22.07.1997. It was in this background that the department took a decision by the impugned order dated 15.04.2008 to dismiss him from service after following due procedure. It has been contended in the counter affidavit that the recommendation of the Bihar Public Service Commission is not binding upon the department and department took a decision on the basis of material on record which cannot be faulted with. 12. It has been contended in the counter affidavit that the recommendation of the Bihar Public Service Commission is not binding upon the department and department took a decision on the basis of material on record which cannot be faulted with. 12. Learned counsel appearing on behalf of the State, referring to the counter affidavit and annexures brought on record alongwith the writ application has contended there has been no violation of principles of natural justice in holding disciplinary proceeding. He has contended that Disciplinary Authority on the basis of the evidence on record and after analyzing the report of the Enquiry Officer was of the view that had the petitioner approached the officers of the department with respect to his posting, he would have been informed about the place of posting. In that background, he submits that though the tentative notes of disagreement are brief but specific and to the point and the petitioner failed to meet the tentative notes of disagreement recorded by the Disciplinary Authority and accordingly the impugned order came to be passed. 13. Learned counsel for the State has also stated that in no circumstance, the petitioner should be allowed the backwages in view of his conduct leading to his dismissal from service. 14. I find substance in the submission made on behalf of the petitioner with reference to the judgments of the Supreme Court in case of Punjab National Bank Vs. Kunj Behari Misra reported in (1998) 7 SCC 84 that the Disciplinary Authority was required to come to specific finding of petitioner’s guilt after giving the petitioner an opportunity of hearing on the notes of disagreement. He is right in his submission that the communication dated 01.11.2004 cannot be treated to be notes of disagreement dealing with the findings of the Enquiry Officer. The said communication does not in any matter point out that how the findings of the Enquiry Officer were incorrect and on the basis of the evidence, the charge against the petitioner could be said to have been approved. Only disagreement has been recorded without assigning any reason. This in my opinion, was not sufficient opportunity to the petitioner to deal with the disagreement of the Disciplinary Authority with the respect of enquiry officer, holding the charges as not proved. 15. Only disagreement has been recorded without assigning any reason. This in my opinion, was not sufficient opportunity to the petitioner to deal with the disagreement of the Disciplinary Authority with the respect of enquiry officer, holding the charges as not proved. 15. Learned Senior Counsel for the petitioner is right in submission that the impugned order dated 15.04.2008 dismissing the petitioner from service is cryptic and unreasoned and does not discuss the petitioner’s reply to the communicated dated 01.11.2004 and for this reason also the order is not sustainable. 16. I am satisfied, on the basis of material on record that as a matter of fact, there is no specific finding of guilt dealing with material on record by the Disciplinary Authority. The Enquiry Officer came to a finding that the charge against the petitioner could not be proved. By communication dated 01.11.2004, the Disciplinary Authority just recorded his disagreement from the findings of the Enquiry Officer, and thereafter, without recording findings of the guilt on the basis of material on record. Finally by the impugned order, punishment has been imposed after recording that petitioner’s show-cause reply was not satisfactory, without any discussion. Thus, I am of the view that there is no specific finding by the Disciplinary Authority which can be said to be reasoned and speaking, holding the petitioner guilty of the charge. 17. In such circumstance, the impugned Resolution issued vide Memo No. 447(9) dated 15.04.2008 (Annexure-18) is quashed. 18. The matter is remanded back to the Disciplinary Authority to take a decision afresh from the stage of submission of enquiry report dated 12.08.2004. If the disciplinary Authority proposes to proceed against the petitioner disagreeing with the report of the Enquiry Officer, the Disciplinary Authority will be required to assign specific reason for such disagreement and give to the petitioner an opportunity to deal with the tentative notes of such disagreement. Once, such tentative notes of disagreement are served upon the petitioner, after receiving the petitioner’s reply or otherwise, disciplinary authority will be required to come to specific finding about the petitioner’s guilt on the basis of evidence on record of the disciplinary proceeding, if it intends to impose any punishment. Needless to say that the disciplinary Authority will also take into account the opinion of Bihar Public Service Commission before coming to a final decision. 19. Needless to say that the disciplinary Authority will also take into account the opinion of Bihar Public Service Commission before coming to a final decision. 19. There is no dispute that the petitioner remained under suspension from 12.04.2004. The petitioner has prayed for payment of subsistence allowance for the period during which the petitioner remained under suspension. Learned counsel appearing on behalf of the State has opposed this prayer on the ground that petitioner never marked any attendance for the said period. The petitioner in my view, will be entitled to subsistence allowance as per the rules for the period in question and if the subsistence allowance has not be paid to the petitioner, the same must be paid to him. It is trite law that a Disciplinary proceeding may vitiate on the ground of non-payment of subsistence allowance during the period of suspension. However, I do not wish to go into this aspect of the matter. The subsistence allowance must be paid to the petitioner as per rules within a period six months from the date of receipt/production of a copy of this order. 20. Pursuant to the present order, the petitioner will be reinstated forthwith. As regards payment of backwages, I leave the matter open to the department to consider the petitioner’s case for payment of backwages. The petitioner shall file a representation before the authorities and the authorities shall consider it and decide within a period of six months. 21. If the department proposes to proceed against the petitioner pursuant to direction by the present order, the process must be started within a period of six months and concluded within six months thereafter from the date of receipt/production of a copy of this order. 22. This application is allowed with the observations as above.