IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No. 4163 of 2009
DR. GAURI KANT MISHRA, S/O LATE TARAKANT MISHRA,
RESIDENT OF VILLAGE - NAWANI, P.S. - GHOGHARDIHA,
DISTRICT - MADHUBANI
................ PETITIONER
VERSUS
1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY,
OLD SECRETARIAT, PATNA
2. THE SECRETARY, DEPARTMENT OF HEALTH MEDICAL
EDUCATION, FAMILY WELFARE AND INDIGENOUS MEDICAL
GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA
3. THE SECRETARY, DEPARTMENT OF HEALTH SERVICES,
GOVERNMENT OF BIHAR
4. THE DY. SECRETARY, DEPARTMENT OF HEALTH,
GOVERNMENT OF BIHAR
5. THE REGIONAL DY. DIRECTOR FOR HEALTH SERVICES,
DARBHANGA
6. THE CIVIL SURGEON, MADHUBANI
7. THE PRINCIPAL, DARBHANGA MEDICAL COLLEGE
HOSPITAL
8. SHRI S. P. KESHAV, COMMISSIONER, DEPARTMENTAL
ENQUIRY, PERSONNEL AND ADMINISTRATIVE REFORMS
DEPARTMENT, GOVERNMENT OF BIHAR, OLD SECRETARIAT,
PATNA
...................... RESPONDENTS
*********
For the Petitioner: Mr. R. K. Shukla, Adv.
For the State: Mr. S. K. Ghosh, AAG-2
**********
03. 26.08.2011 This application has been filed by the petitioner for
following reliefs:
(i) For issuance of writ in the nature of
certiorari for quashing the order, contained
2
in Memo No. 492 (9), dated 26.04.2006,
issued under the signature of Mr. Parsuram
Mishra, Dy. Secretary to the Government in
the Department of Health and Family
Welfare, whereby and whereunder the
petitioner had been awarded punishment of
censure, withholding of one annual
increment with cumulative effect and also
that the petitioner will not get anything
except subsistence allowance, during the
suspension period.
(ii) For issuance of an appropriate writ in the
nature of mandamus, directing /
commanding the concerned respondents to
make payment of due amount and further to
give all consequential relief(s).
(iii) For issuance of any other appropriate writ /
writs, giving direction / directions, passing
order / orders for which the petitioner may
be found entitled in the facts and
circumstances of the case.
The reliefs, for which the petitioner has prayed in
this Writ Application is indicative of the fact that he is
aggrieved on account of punishment, awarded in a
3
departmental proceeding, whereby one increment has
been withheld with cumulative effect, punishment of
censure has been awarded and except subsistence
allowance, he will not be entitled for any monitory
benefit during the suspension period.
Petitioner was appointed as Medical Officer on
19.03.1988 under the Health Department at Addl.
Primary Health Centre, Pabia. Subsequently, he was
transferred to Referral Hospital, Andhara Thadi in the
district of Madhubani in the year 1992. Prior to the
petitioner’s joining, one Dr. Suresh Jha, was posted as
Medical Officer, Incharge-Referral Hospital, Andhra-
Thadi, Madhubani. In the year 1991, he had given order
by issuing indent for purchase of 10 medicine items, to
Medical Store Depot, Calcutta (MSD, Calcutta), vide
Memo No. 69, dated 09.06.1991. Petitioner took charge,
as Incharge, Medical Officer, Referral Hospital, Andhara
Thari in the district of Madhubani, vide Memo No. 1336,
dated 11.06.1992. In the year 1997, the Health
Department sought for options from the Doctors as to
whether they want to join Bihar Medical Education
Service Cadre or Bihar State Health Services Cadre. This
option was invited in the light of the decision taken by
the State Government in the year 1987, whereby Cadre
4
of Health Services and Bihar Medical Education Services
were separated from each other. Petitioner gave his
option for Bihar Medical Education Service Cadre, which
was accepted and he became Tutor in the Department of
Anatomy, Darbhanga Medical College Hospital,
Laheriasarai. He joined there on 07.01.1998. In the year
2001, petitioner was promoted to the post of Assistant
Professor. Petitioner was served with a letter dated
05.11.2003, issued under the signature of Shri B. B.
Pandey, Deputy Secretary to the Government in the
Health, Medical Education and Family Welfare
Department, whereby he was asked to submit his show-
cause with regard to the charge of purchasing medicines
from MSD, Calcutta, in excess of the budget allocation.
Petitioner submitted his show-cause, controverting
allegations leveled against him and requested to drop
the proceeding. A notification, contained in Memo No.
473 (9), dated 12.04.2004 was issued under the
signature of Deputy Secretary to the Government,
Health, Medical Education and Family Welfare
Department, whereby petitioner was placed under
suspension, and his services were taken back from
Health, Medical Education and Family Welfare with
immediate effect. Petitioner’s head-office was fixed in
5
the office of Regional Deputy Director, Health Services,
Darbhanga. The Department of Medical Education and
Family Welfare resolved to start a departmental
proceeding against the petitioner under Rule 55 of the
Civil Services (Classification, Control and Appeal) Rules
and the Departmental Enquiry Commissioner was made
Conducting Officer. The memo of charge was served
upon the petitioner, which indicated that the petitioner,
while posted as Incharge Medical Officer at Referral
Hospital, Andhara Thari, Madhubani has misappropriated
Government money in violation of Health Department’s
letter no. 176(10), dated 27.01.1982 by issuing voucher
no. 258/8/92 in favour of MSD, Calcutta for purchasing
medicine, beyond the budgetary allocated fund for the
same. Along with the memorandum of charge, list of
evidence was also furnished, which were, (i) letter no.
243, dated 04.04.1997, issued by MSD, Calcutta; (ii)
letter no. 176(10), dated 27.01.1982; and (iii) letter no.
2901, dated 26.12.2001, issued by the Civil Surgeon,
Madhubani, but these documents were not supplied to
the petitioner.
The Petitioner challenged his suspension order by
filing C.W.J.C. No. 16332 of 2004. The suspension order
was challenged on the ground that there is no progress
6
in the departmental proceeding and he has not been
paid even subsistence allowance. The charges, which
have been framed against the petitioner regarding the
purchase order, issued to MSD, Calcutta had never been
issued by him, but by his predecessor Dr. Suresh Jha.
The Writ Application was disposed of directing the
respondents to expedite the departmental enquiry and
conclude it within a period of four months from the date
of production / communication of the order. In case the
proceeding is not concluded within the said period,
suspension would stand revoked. The Commissioner
Departmental Enquiry, Conducting Officer of the
departmental proceeding, thereafter issued letter,
contained in Memo No. 498, dated 07.09.2005, asking
the petitioner to participate in the departmental
proceeding on 15.09.2005 at 11.25 a.m.
Petitioner’s case is that the letter, informing him
about the date fixed for his appearance in the
Departmental Proceeding, itself, was issued from Patna
on 21.09.2005. In support of which he has annexed the
envelope, which contains the seal of Postal Department.
Petitioner could not appear on that date. However,
subsequently, when he came to know about the date, he
sent a letter that some time may be allowed to him for
7
appearing in the departmental proceeding, as he was
suffering from Diabetes and Typhoid. Another letter was
issued by the Conducting Officer, fixing 27.09.2005 for
appearance of the petitioner in the departmental
proceeding. This letter was also received after expiry of
the date by the petitioner, but he came to know about
the date through other sources. Petitioner’s case is that
he appeared before the Conducting Officer on
27.09.2005, filed his attendance in writing, but he was
marked absent, stating that order has already been
passed. The next date was fixed in the departmental
proceeding was 03.10.2005, and the letter containing
the date of departmental proceeding, was delivered to
the petitioner on 07.10.2005. The letter contained in
Memo No. 571, dated 03.10.2005 was dispatched from
the Post Office on 05.10.2005 and delivered to the
petitioner on 16.10.2005, that is, after the date fixed for
hearing in the departmental proceeding. However,
petitioner was informed about the date by his
representative and on 07.10.2005, petitioner reached
the office of Conducting Officer, awaited till 02.30 p.m.,
but in stead of giving him any opportunity of hearing, he
was marked absent and the matter was reserved for
order. Petitioner was informed that enquiry report will be
8
sent to the Administrative Department and it will also be
sent to the petitioner. Petitioner made written request to
the Departmental Enquiry Commissioner to provide him
an opportunity, so that he may explain his position, but
that was not provided to him. Since the petitioner was
not allowed any opportunity to place his defence before
the Conducting Officer, the departmental proceeding was
concluded ex-parte. Petitioner received enquiry report,
which was much beyond the four months’ time, fixed by
the High Court for concluding the departmental
proceeding, as such he filed his application before the
Principal, Darbhanga Medical College Hospital,
Laheriasarai for acceptance of his joining. The Principal,
DMCH wrote letter to the Secretary, Health, Medical
Education and Family Welfare for a guideline regarding
acceptance of joining.
In the meantime, the petitioner received letter no.
1580 (9) dated 11.11.2008, issued under the signature
of Deputy Secretary to the Government in the
Department of Health and Family Welfare, asking the
petitioner to submit his second show-cause, in view of
the enquiry report submitted by the Conducting Officer,
in which the charges leveled against the petitioner has
partially been proved. Ten days’ time was allowed for
9
filing second show-cause, otherwise the final order will
be passed. Petitioner submitted his second show-cause,
stating that the Conducting Officer did not provide him
any opportunity for furnishing his defence. It was also
submitted by the petitioner that only charge framed
against the petitioner was with respect to issuance of
indent to MSD, Calcutta for purchasing medicine. In the
enquiry report, the Conducting Officer has recorded a
finding that petitioner has never issued any indent in
favour of MSD, Calcutta for purchasing medicine, since
no other charge was framed against the petitioner, as
such the finding recorded by the Conducting Officer that
charge has partially been proved, is baseless. The
Deputy Secretary, Department of Health, in capacity of
the Disciplinary Officer without considering the show-
cause filed by the petitioner, awarded punishment of
censure and stoppage of one annual increment with
cumulative effect as well as for non payment of salary
for the period of suspension, vide order contained in
Memo No. 492 (9), dated 26.04.2006. An appeal was
preferred by the petitioner before Joint Secretary to the
Government in the Department of Health, but that was
also dismissed without considering his case.
The order passed by the Appellate Authority,
10
affirming the punishment order, awarded by the
Disciplinary Authority, as well as the order passed by the
Disciplinary Authority has been challenged by the
petitioner on the ground that petitioner has always been
denied an opportunity of being heard, which is supported
by the documentary evidence on record. He was never
intimated in time with regard to the date of hearing in
the departmental proceeding, due to which he could not
appear before the Conducting Officer on one occasion.
On other two occasions, against all odds, he appeared
before the Conducting Officer, but deliberately he was
marked absent. This only shows the motive of the
Conducting Officer, which is apparent from his decision
to proceed in the departmental proceeding ex-parte.
Counter Affidavit has been filed on behalf of the
State, in which there is no denial to this fact, but it has
been stated that petitioner intentionally did not want to
participate in the departmental proceeding. He was
interested in delaying the conclusion of the departmental
proceeding, so that the direction of the High Court
regarding revocation of suspension can be effective.
However, the document, which has been annexed by the
petitioner in support of this contention, like, letters
issued by the Conducting Officer, informing the date for
11
appearance in the departmental proceeding, being
dispatched after the expiry of the date. Petitioner having
received all these letters subsequent to the date fixed
for his appearance, have not been denied in the Counter
Affidavit. Petitioner has also annexed documents to
show that on two occasions, when he came to know
about the date fixed from other sources, he appeared
before the Conducting Officer, filed his written
attendance, but he was marked absent, on this pretext
that he appeared after the time fixed for his appearance.
One thing is apparent that petitioner was not given
opportunity to look into the documents, to examine or
cross-examined witnesses. Even in the ex-parte
proceeding, not a single witness was examined by the
Department in support of the charge. The Conducting
Officer presumed that charge has partially been proved
merely on the basis of charge-sheet.
The one and only charge, which was framed
against the petitioner in the memo of charge, related to
issuance of a voucher in favour of MSD, Calcutta for
purchasing medicine, going against the guidelines of the
State Government and beyond the limit of fund allocated
for purchasing the same. The Conducting Officer himself
has recorded finding that only indent of the year 1991,
12
had been issued by Dr. Suresh Jha, petitioner’s
predecessor in office. So far petitioner is concerned, he
never had issued any indent for purchasing medicine.
Petitioner joined in the year 1992 and two of the
medicines, for which orders had already been placed by
Dr. Suresh Jha were delivered at Referral Hospital. So
far the distribution of medicine is concerned, for that no
charge had been framed against the petitioner. In
absence of any such charge, petitioner was not
supposed to place his defence with regard to the
distribution. Petitioner is not supposed to face any
proceeding with respect to the charge, which had not
been framed against him. The only charge framed, if not
found proved, the report submitted by the Conducting
Officer regarding charges being proved partially is
arbitrary, illegal and non-existent.
Counsel for the petitioner has brought on record a
copy of judgment passed in C.W.J.C. No. 11488 of 2005,
i.e., the Writ Application filed by Dr. Suresh Jha,
petitioner’s predecessor in office. He filed C.W.J.C. No.
11488 of 2005, challenging dismissal order passed
against him in a departmental proceeding. The charge
dated 12.06.2004 framed against him, was that in the
year 1991, while holding the post of Incharge Medical
13
Officer, Referral Hospital, Andhara Thari in the district of
Madhubani, he had issued indent in favour of MSD,
Calcutta, in violation of the Health Department’s letter
no. 176(10), dated 27.02.1982 and the financial rules as
well as beyond the limit of fund allocated for that. The
Writ Application was allowed. The order of punishment
was quashed on the ground that the charges were not
found to be proved. The order passed in the Writ
Application was challenged by the State by filing L.P.A.
No. 965 of 2008 and that has been also dismissed.
Counsel for the petitioner submits that considering
the fact that the charge framed against Dr. Suresh Jha
with regard to issuance of indent to MSD, Calcutta is not
found to be proved by the Writ Court, there is nothing
against the petitioner for which he could have been
awarded punishment of censure, withholding of one
increment with cumulative effect and non-payment of
salary and other monitory benefits, except subsistence
allowance, during the period of suspension.
In the Counter Affidavit it has been stated that the
Conducting Officer after considering all relevant
materials found charges framed against the petitioner
partially proved and awarded minor penalty of censure
and stopping of one increment with cumulative effect as
14
well as non-payment of salary except subsistence
allowance for the period of suspension. In the Counter
Affidavit there is no statement that any additional
charge had been framed against the petitioner, except
the charge framed vide letter dated 26.04.2002.
On perusal of the enquiry report, I fail to
understand which of the charge leveled against the
petitioner was partially found to be proved, if only
charge framed against him was found by the Conducting
Officer as not proved. The Conducting Officer has not
understood the scope of the departmental proceeding,
while he recorded a finding that charge has partially
been proved. The Conducting Officer could not have
traveled beyond the charge framed against the
petitioner. When only one charge was framed against
the petitioner, the Conducting Officer could not have
presumed that petitioner has to defend himself against
any other allegation, and punishment can be awarded
against non-existing allegation. I find that the
punishment awarded to the petitioner vide impugned
order dated 26.04.2006, contained in Memo No. 492 (9)
and the appellate order, affirming the order passed by
the Disciplinary Authority are fit to be quashed for the
reason that the departmental proceeding has not been
15
conducted following the procedure. The petitioner was
not afforded any opportunity to place his defence and
the ex-parte proceeding was concluded even without
examining a single witness to prove the charge. The
single charge framed against the petitioner was not
proved, despite the fact punishment has been awarded
against the petitioner for non-existing charge partially
been proved. For all these reasons, the impugned orders
are quashed. Respondents are directed to reinstate the
petitioner on the post on which he was working before
initiation of the departmental proceeding with all
consequential benefits.
(Mridula Mishra, J.)
SKM