IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.8788 of 2005
DR.RAGHAVENDRA KUMAR s/o late Parmeshwar Narain
Singh, resident of village- Morsand, P.S. Runnisaidpur, District-
Sitamarhi.
Versus
1. THE STATE OF BIHAR through the Secretary, Health,
Medical Education and Family Welfare Department,
Government of Bihar, Patna.
2.The Secretary, Health, Medical Education and Family Welfare
Department, Government of Bihar, Patna.
3. The Under Secretary, Health, Medical Education and Family
Welfare Department, Government of Bihar, Patna.
4. The Deputy Secretary, Health, Medical Education and Family
Welfare Department, Government of Bihar, Patna.
5. The Civil Surgeon, Rohtas.
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5 29.4.2011 The petitioner, who is the member of Health Services,
challenges the order dated 3.4.2004 ,by which pursuant to a
departmental proceeding conducted, he was found guilty and upon
second show cause having been issued, punishment has been imposed.
He filed an unsuccessful appeal, which was disposed of by
communication dated 3.11.2004.
On behalf of the petitioner, it is submitted that he was put
under suspension in the year 2001.His headquarters were fixed in the
Health Department, Patna . In 2002, his headquarters were shifted to
the office of the Regional Deputy Director, Patna. He submits that he
had no information about the departmental proceeding. No charge sheet
was served upon him nor any notices of departmental proceeding were
served upon him. He came to know of the departmental proceeding
when on 30.11.2003 a notice was published in the newspaper requiring
the petitioner to file a second show cause, which the petitioner field. In
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the second show cause, petitioner clearly points out that he was not
aware of the departmental proceeding. He was absent because of illness.
In support of the assertion, the petitioner first refers to the enquiry
report itself. The enquiry report is dated 29.8.2003.The enquiry report
itself states that the enquiry was commenced on 11.7.2003 and notices
in this regard were sent to the petitioner on various dates in his
headquarters in the Health Department.
Learned counsel points out that authorities failed to note
that he was not in the Health Department at Patna in 2003 having
already been shifted to the office of the Regional Deputy Director,
Patna, which fact, the authorities failed to take note of. He, therefore,
submits that admittedly no notices were served much less validly on the
petitioner. He submits that the newspaper advertisement was issued on
30.11.2003, which is after the enquiry proceeding has concluded. Thus,
he submits that the enquiry proceeding itself having been conducted
behind back of the petitioner, all subsequent orders, including the
appellate order cannot be sustained .
State has filed a counter affidavit. They have not denied that
the petitioner’s headquarters was shifted from the Health Department to
the office of the Regional Deputy Director in the year 2002 itself.
In my view as on the facts as they stand it appears that the
enquiry was conducted behind the back of the petitioner without due
notice to the petitioner. The disciplinary proceedings stands vitiated.
On behalf of the State it is urged that the petitioner had
ample opportunity to defend his case when he filed his appeal. I am
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afraid that cannot be accepted. The law enshrined fair enquiry and a
final order fairly passed after notice to the party followed by an appeal.
The law does not contemplate and unfair enquiry followed by fair
appeal , which takes away one form available to the petitioner. This has
been discussed in the case of Institute of Chartered Accountants of
India -v- L.K.Ratna since reported in AIR 1987 S.C. 71.The defect
at the original stage cannot be cured by a fair appeal hearing. The
foundation itself was defect .The building must fall. In that view of the
matter the writ petition has to be allowed. The orders of the disciplinary
authority, as contained in Annexure 10 and that of the appellate
authority, as contained in Annexure 12, are set aside giving liberty to
the State to re-initiate proceeding in accordance with law, if they are so
advised.
With the aforesaid observations and directions, the writ
petition is allowed.
singh (Navaniti Prasad Singh,J)