High Court Patna High Court - Orders

Dr.Gauri Kant Mishra vs The State Of Bihar & Ors on 26 August, 2011

Patna High Court – Orders
Dr.Gauri Kant Mishra vs The State Of Bihar & Ors on 26 August, 2011
                   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