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2015 DIGILAW 1422 (JHR)

Anjani Sinha v. State of Jharkhand

2015-11-06

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the instant writ application, the petitioner has inter-alia prayed for quashing of the Memo No.2535 dated 17.09.2010 (Annexure-16) issued by 2 the Civil Surgeon-cum-Chief Medical Officer, Deoghar (Respondent No.4) pertaining to dismissal from services and for direction upon the respondent no.4 for reinstatement of the petitioner on the post of Clerk (Class-III) with all consequential benefits and for direction to the respondent no.2 to take stern action against the respondent no.4 & 6 in pursuance to the order dated 06.08.2010 (Annexure-12) passed in W.P.S. No.3436 of 2010. 2. Sans details, the facts as emanated from the averments of the writ application, in a nutshell, is that the petitioner was initially appointed as Clerk (Class-III) in the Health Department, Deoghar on compassionate ground vide memo dated 19.12.1991 issued by the Civil Surgeon, Deoghar (respondent no.4). In pursuance to such appointment, the petitioner continued to discharge his duties to the utmost satisfaction of her superior authorities. The petitioner who was performing her duty regularly was surprised to receive memo dated 13.09.2005 issued by the respondent no.4 directing the petitioner to file a show cause on the basis of report of respondent no.6 vide letter dated 01.09.2005. The petitioner submitted her reply dated 23.09.2005 giving detailed reasons before the respondent no.4 due to non-payment of salary, the petitioner requested the respondent no.6 for payment of the same but respondent no.6 indulged in outraging the modesty of the petitioner for which the petitioner submitted a written report to the S.P., Deoghar for needful action. The respondent no.6 after coming to know about such fact lodged FIR. The respondent no.4 in connivance with the respondent no.6 placed the petitioner under suspension with immediate effect and the respondent no.4 decided to initiate Departmental Enquiry against the petitioner vide memo dated 24.01.2007 and issued charge memo vide Annexure-8 to the writ application. The petitioner on 06.02.2007 submitted her reply denying all the charges. After conducting the departmental inquiry the Inquiry Officer submitted Inquiry Report to respondent no.4 exonerating her from the charges and recommended to revoke the suspension of the petitioner, suggesting that the period of suspension be considered as sufficient punishment and Inquiry Officer has also mentioned that charges levelled against the respondent no.6 is outcome of his prejudiced action. After conducting the departmental inquiry the Inquiry Officer submitted Inquiry Report to respondent no.4 exonerating her from the charges and recommended to revoke the suspension of the petitioner, suggesting that the period of suspension be considered as sufficient punishment and Inquiry Officer has also mentioned that charges levelled against the respondent no.6 is outcome of his prejudiced action. Since, subsistence allowance was not paid to the petitioner, a representation to the respondent no.4 for payment of subsistence allowance as well as to take final decision in the departmental proceeding was filed, but to no effect. The writ petition bearing no.3436 of 2010 was disposed of on 06.08.2010 with a direction to the respondent no.2 to see that the pending enquiry against the petitioner be brought to an end within a period of 4 weeks from the date of receipt of a copy of the order and for payment of subsistence allowance. Thereafter, vide memo dated 27.08.2010 issued by respondent no.4 directed the petitioner to file show cause within 15 days as to why the punishment of dismissal be not awarded to the petitioner and on 14.09.2010, the petitioner submitted her detailed show cause before the respondent no.4 and requested to exonerate her from all the charges. The respondent no.4 without considering the show cause reply filed by the petitioner on 14.09.2010 has passed an order of dismissal of the petitioner from services vide Annexure-16 to the writ application. Being aggrieved by the impugned order of dismissal from services, the petitioner, left with no other alternative efficacious and speedy remedy has approached this Court invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India for ventilating her grievances. 3. Per-contra a counter-affidavit has been filed by respondent no. 4 controverting the averments made in the writ application. In the counter-affidavit, it has been submitted that the order of dismissal of the petitioner dated 17.09.2010 has been sent to the Director in Chief Health Services Jharkhand, Ranchi and Secretary Department of Health for information, review and approval. From the dismissal order, it is quite evident that clear reasons have been mentioned for her dismissal. During her service tenure, Primary Health Centre Sarwan, Primary Health Centre, Jasidih and Additional PHC Kushiml sent complaints against the petitioner for disobedience of order. From the dismissal order, it is quite evident that clear reasons have been mentioned for her dismissal. During her service tenure, Primary Health Centre Sarwan, Primary Health Centre, Jasidih and Additional PHC Kushiml sent complaints against the petitioner for disobedience of order. Due to differences in the opinions of the conducting officer and the then C.S. cum CMO Deoghar, the file was sent to the Regional Dy. Director (H.S) Santhal Paragana Division, Dumka for guidelines regarding further action to avoid controversies. The order of dismissal of the petitioner has been passed as per the rules. A counter-affidavit has also been filed by respondent no.6 repelling the contentions made in the writ application. It has been submitted that the respondent no.6 has also informed the local police vide memo dated 09.12.2005 and on the basis of which police instituted Jasidih P.S. Case No.274 of 2005 dated 17.12.2005 under Sections 448, 323 & 504 of the Indian Penal Code in which police after investigation submitted charge sheet against the accused vide charge sheet No.229 of 2005 under Sections 448, 323 and 504 of the Indian Penal Code. 4. Heard Mr. Anjani Kr. Verma, learned counsel appearing for the petitioner, Mr. Yogendra Prasad, J.C to S.C 1, learned counsel appearing for the respondents-State and Mr. Ashish Singh, learned counsel appearing for the respondent no.6 and perused the records minutely. 5. 4. Heard Mr. Anjani Kr. Verma, learned counsel appearing for the petitioner, Mr. Yogendra Prasad, J.C to S.C 1, learned counsel appearing for the respondents-State and Mr. Ashish Singh, learned counsel appearing for the respondent no.6 and perused the records minutely. 5. Learned counsel for the petitioner during course of argument has referred to reply of the counter-affidavit of the respondent no.4 where it has been submitted that punishment of dismissal order of the petitioner from service was passed in file on 04.06.2007 is nothing but a mere formality and is an eye wash, which cannot be appreciated by any Court of Law, since the petitioner was communicated the earlier unilateral decision for dismissal from services taken on 04.06.2007 in file by the then disciplinary authority i.e. the Civil Surgeon-cum-C.M.O., Deoghar vide memo dated 17.09.2010 (Annexure-16) and from bare perusal of the aforesaid memo it is evident that the disciplinary authority has passed the order of dismissal of the petitioner from service without mentioning any reason in the punishment order either to disagree with the finding recorded by the enquiry officer in the enquiry report dated 16.05.1997 or to reject the detailed show cause filed by the petitioner on 14.09.2010 and as such it reveals that the show cause was issued by the said authority vide his memo dated 27.08.2010 as a mere formality which is against the settled principles of law laid down by the Hon'ble Apex Court as reported in 1995 Supp (2) SCC 655, 1995 6 SCC 157 , 1986 (4) SLR 497 and 2009 (4) Supreme 118 . 6. As against this learned counsel for the State has referred to supplementary counter-affidavit filed on 18.12.2014 wherein it has been submitted that the then medical officer In-charge Additional P.H.C. Kushmil Jasidih (Deoghar) and the presenting officer of the said departmental proceeding namely Dr. Ranjan Sinha conducted inquiry against the petitioner filed a protest application but the Civil Surgeon-cum-Chief Medical Officer, Deoghar vide memo dated 02.06.2007 drawing attention with regard to non-consideration of the evidence and the material brought on record by the enquiry officer of the departmental proceeding conducted against the petitioner and filed improper enquiry report as evident from Annexure-A to the supplementary counter-affidavit and the then Civil Surgeon-cum-Chief Medical Officer, Deoghar as competent disciplinary authority after review of the said enquiry report dated 16.05.2007 and the protest letter dated 02.06.2007 of Dr. Ranjan Sinha passed an order dated 04.06.2007 in the file to take action regarding dismissal of the petitioner from services as evident from Annexure-B to the supplementary counter-affidavit. The disciplinary authority after following the rules and procedures passed an office order dated 17.09.2010 regarding dismissal from services vide Annexure-C to the Supplementary Counter-affidavit. 7. Having gone through the writ applications, counter-affidavit, supplementary counter-affidavit and the rivalized submissions, the impugned order of punishment of dismissal vide order dated 17.09.2010 (Annexure-16) deserves to be interfered with due to following facts, reasons and judicial pronouncements :- (i) So far departmental proceeding is concerned, the conducting officer submitted enquiry report vide Annexure-10 dated 16.05.2007 exonerating the petitioner from the charges by recommending to revoke the suspension of the petitioner and the inquiry officer has also mentioned that the charges levelled against the petitioner by the respondent no.6 is an outcome of his prejudiced action. When the petitioner was exonerated from the charges it is inconceivable as to how disciplinary authority inflicted the punishment of dismissal from services without assigning sufficient reasons for differing with the findings of the inquiry officer. The impugned order Annnexure-16 appears non-speaking and cryptic order based on not being supported by any cogent reasons, which is against the dictum of Hon'ble Apex Court when the disciplinary authority does not agree with the findings of the inquiry authority on an article of charge, which is open for him, it is obligatory for him to record reasons as to why he does not agree with the charge, but, in the case in hand there is no question of disagreement of the disciplinary authority on a finding of charge by the inquiring authority. (ii) The Hon'ble Apex Court in the case of U.P. State Agro Industrial Corporation Ltd. Vs. Padam Chand Jain as reported in 1995 Supp. (2) SCC 655 held that termination of service, relying upon adverse comments made by another officer though the report of the enquiry officer was in favour of the concerned employee, decision of the disciplinary authority was vitiated on account of the fact that it was influenced by some extraneous material in the form of adverse comments of another officer cannot sustained on law. (iii) Moreover, considering the gravity of charges and the exoneration and the findings by the inquiry officer from the said charges the proposed punishment appears disproportionate. (iii) Moreover, considering the gravity of charges and the exoneration and the findings by the inquiry officer from the said charges the proposed punishment appears disproportionate. The Hon'ble Apex Court in the case of Hari Shanker Sharma Vs. Commissioner, Agra Division, Agra and Others as reported in 1987 (1) SCC 262 has been pleased to set aside the order of termination passed by the disciplinary authority disagreeing with the enquiry report by which the enquiry officer had found the charges baseless and accordingly directed for reinstatement with all back wages. 8. On the cumulative effect of facts, reasons and judicial pronouncement, the impugned order of punishment dated 17.09.2010 (Annexure-16) is hereby quashed and the matter is remitted to the disciplinary authority to pass appropriate orders on the quantum of punishment strictly within a period of three months from the date of receipt/production of copy of this order, in accordance with law. 9. With the aforesaid observations and directions, this writ petition stands disposed of.