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2014 DIGILAW 901 (PAT)

Shiva Narayan Singh v. State Of Bihar

2014-08-21

CHAKRADHARI SHARAN SINGH

body2014
ORDER : The petitioner has challenged two notifications of the State Government. By notification issued vide memo no. 220(9) dated 07/03/2006 (Annexure- 12B), issued by the Department of Health Medical Education and Family Welfare the following punishments have been imposed upon him: (i) Censure (ii) Stoppage of five increments with cumulative effect. (iii) Withholding of promotion for three years from year of ‘charge’. (iv) The period during which he remained absent shall be adjusted as leave without pay. By another resolution/notification dated 16/07/2009 (Annexure 16) issued by Health Department, Government of Bihar, petitioner has been dismissed from service in exercise of power under Rule 76 of the Bihar Service Code. These are the two notifications which are under challenge in the present proceeding. 2. Bare perusal of the impugned orders/notifications show that both the orders have been passed on the basis of one and the same disciplinary proceeding initiated against him with the issuance of charge-sheet vide memo no. 974 (9) dated 29/06/2004. Both the orders are based on the same departmental enquiry and enquiring report and same charge sheet, which fact is not under dispute. In this background, learned counsel for the petitioner has submitted that once the disciplinary authority exercised its power of imposition of punishment by issuing notification dated 07/03/2006 (Annexure- 12/B), for the same purpose, subsequent notification dated 16/07/2009 after more than three years could not have been passed. The subsequent order dated 16/07/2009, he submits, is absolutely beyond jurisdiction and is hit by doctrine of double jeopardy. 3. I am satisfied with the submission made on behalf of the petitioner that once the State Government passed the final order in a disciplinary proceeding against the petitioner on consideration of the report of the enquiry officer and imposed punishment vide order dated 07/03/2006, the disciplinary proceeding stood terminated and therefore on the basis of same departmental enquiry for same set of charges, it could not have passed subsequent order dated 16/07/2009 imposing upon the petitioner punishment of dismissal from service. The impugned order issued by the Health Department, Government of Bihar, dated 16/07/2009, as contained in Annexure 16 to the writ application, is not sustainable, on the principle that for the same charge, the petitioner could not have been punished twice. The impugned order issued by the Health Department, Government of Bihar, dated 16/07/2009, as contained in Annexure 16 to the writ application, is not sustainable, on the principle that for the same charge, the petitioner could not have been punished twice. As a matter of fact, there was no disciplinary proceeding pending against the petitioner after final order dated 07/03/2006 was passed imposing upon the petitioner punishment as indicated above. There is no rule or other statutory provision which confers upon the disciplinary authority any jurisdiction to pass an order after termination of departmental proceeding. The resolution dated 16/07/2009 is thus beyond jurisdiction and is quashed. 4. Learned counsel appearing on behalf of the petitioner has also contended that even the earlier order dated 07/03/2006 imposing the punishment upon the petitioner is not sustainable for more than one grounds. He submits that after the conclusion of departmental enquiry, the enquiry officer submitted its report and upon consideration of the evidence on record, came to the specific finding that charge against the petitioner could not be established. The charge against the petitioner was that he remained absent unauthrozedly for the period 26/10/1992 to 19/09/1997 and 20/09/1997 to 22/06/2001. The petitioner was at the relevant point of time, posted in Patna Medical College Hospital. He contends that no tentative notes of disagreement with the findings of the enquiry officer were ever served upon the petitioner before imposing the punishment vide notification dated 07/03/2006. He has further contended that admittedly the petitioner had replied to second show cause notice served upon him after submission of the report of the enquiry officer. Referring to the impugned order dated 07/03/2006, he contends that the petitioner submitted his reply to the so called second show cause notice, which has not been considered by the Respondent as would be evident from the impugned order and the said order, therefore, suffers from the vice of “non- application of mind”. He contends that the impugned notification is a cryptic one, unreasoned and deserves to be set aside on this score also. 5. He contends that the impugned notification is a cryptic one, unreasoned and deserves to be set aside on this score also. 5. Learned counsel appearing on behalf of the State of Bihar referring to the show cause notices dated 22/09/2004 and 03/05/2005 issued by the Health Department, Government of Bihar, to the petitioner has contended that the disciplinary authority recorded the tentative notes of disagreement from the findings of the enquiry officer and asked the petitioner to submit his reply and, therefore, the plea that no notes of disagreement were served upon him before taking a final decision cannot accepted. He has further submitted that after considering the petitioner’s reply to second show cause notice, the impugned notification dated 07/03/2006 was issued. 6. I have perused the show cause notices dated 22/09/2004 and 03/05/2005, served upon the petitioner after submission of the report of the enquiry officer in which the enquiry officer came to a finding that the charges could not be proved. The communication dated 22/09/2004, in my opinion, does not contain tentative notes of disagreement from the report of the enquiry officer. The said communication does not discuss at all as to on basis of which evidence or material on record of the disciplinary proceeding, it could be said that the charges against the petitioner of remaining absent unauthorizedly and without any communication could be proved. It is well settled that non-supply of tentative notes of disagreement by the disciplinary authority differing from the findings of the enquiry officer exonerating the charge sheeted employee of the charge framed against him would amount to violation of principle of natural justice; if on the basis of such materials on record of the disciplinary proceeding the disciplinary authority proposes to impose punishment upon the delinquent. 7. The impugned order dated 07/03/2006, as contained in Annexure 12/B is, therefore, also quashed. 8. Since I have already quashed the order dated 16/07/2009 by which punishment of dismissal from service has been imposed upon the petitioner, he will be required reinstated forthwith. As regards the petitioner’s claim for arrears of salary, he will be at liberty to file a representation before the concerned authority raising such claim. 8. Since I have already quashed the order dated 16/07/2009 by which punishment of dismissal from service has been imposed upon the petitioner, he will be required reinstated forthwith. As regards the petitioner’s claim for arrears of salary, he will be at liberty to file a representation before the concerned authority raising such claim. He will be required to file an affidavit, in that case, before the concerned authority to the effect that during the period he remained out of service by virtue of the said order of dismissal dated 16/07/2009, he was not gainfully employed elsewhere. The petitioner’s back wages for the said period can be denied by the authority only after they come to a finding on the basis of material available on record that the petitioner was gainfully employed elsewhere, during the said period. However, as a result of quashing of the order/notification dated 07/03/2006 (Annexure- 12B), the matter will go back to the disciplinary authority to proceed further from the stage of submission of the enquiry report. If the disciplinary authority proposes to proceed against the petitioner they will have to serve upon the petitioner tentative notes of disagreement from the findings of the enquiry officer and will proceed thereafter accordingly. They will be required to serve upon the petitioner the said tentative notes of disagreement within a period of two months from the date of receipt/production of a copy of this order. The Court expects that the Respondents will take a final decision within four months thereafter. The petitioner’s other claims as raised in the present proceeding will depend upon the final out come of the disciplinary proceeding, with respect to which final decision has to be taken by the Respondent in the light of present order. 9. The writ application is, accordingly, allowed. There will, however, be no order as to costs.