Dr. Jitendra Kumar Sharma vs State of Jharkhand and Others

R.R. Prasad, J.—The petitioner while was posted as Medical Officer at Primary Health Centre, Tisri (Giridih), a meeting was convened on 13.9.2005 wherein it was resolved to prepare a list of expired medicines so that information to that regard be furnished to Civil Surgeon-cum-Chief Medical Officer, Giridih, respondent No. 4 for obtaining necessary permission for its destruction. However, according to petitioner, while that process was going on, the petitioner underwent training conducted under National Tuberculosis Control Programme from 7.2.2006 to 11.2.2006 by handing over charge to Dr. Md. Saha Kalim but when the petitioner came to know that certain medicines were burnt at the Health Centre on 9.2.2006, information to that effect was communicated telephonically to the respondent No. 4. Surprisingly, the petitioner was put under suspension, vide order as contained in memo No. 119 (8) dated 25.3.2008 (Annexure 5) and the headquarter was fixed at Ranchi. While the petitioner was under suspension, Deputy Commissioner, Giridih directed the Sub-divisional Officer and also Civil Surgeon, Giridih to hold joint enquiry in that matter. Pursuant to that, they did hold enquiry and found that the petitioner is not involved in any manner with the act of the destruction of the medicines. Thereupon, the. petitioner made representation before the Secretary, Department of Health and Family Welfare to do needful in the light of the finding given by them but in stead of dropping the proceeding, an enquiry officer was appointed, who examined the witnesses in course of proceeding and found the petitioner not guilty of the charges and accordingly, submitted its report dated 16.1.2008 (Annexure 11) to the Disciplinary Authority but the, Disciplinary Authority awarded punishment of censure as well as stoppage of two increments with cumulative effect, vide its order as contained in memo No. 238(4) dated 12.4.2003 (Annexure 13) and under the same order, the petitioner was also transferred to a vacant post at Primary Health Centre Bhawnathpur, Gahwa.

Being aggrieved with the order of the Disciplinary Authority as contained in Annexure 13, the petitioner has preferred this writ application which was sought to be quashed on the ground of it being passed in violation of the principles of natural justice.

Learned Counsel appearing for the petitioner submitted that the enquiry officer in its enquiry report has not found the petitioner guilty of the charges and even made recommendation of revoking the. suspension and in that event, the Disciplinary Authority before awarding punishment should have recorded the tentative reason for such disagreement and should have given it to the delinquent for attending an opportunity to represent but it was never done by the Disciplinary Authority, though he was bound to issue second show cause notice to the delinquent employee communicating the grounds for such disagreement and seek his response but this has never been done by the Disciplinary Authority and hence, the order passed by the Disciplinary Authority is quite illegal in view of the ratio laid down by the Hon''ble Supreme Court in the case of Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, .

It was further submitted that the petitioner under the impugned order was also transferred to Garhwa to which place though the petitioner has joined under protest but the order of transfer being punitive in nature is fit to be set aside not only on the aforesaid ground but also on the ground that the order of transfer has never been passed by the competent authority.

A counter affidavit has been filed wherein it has been stated that a joint committee consisting of Civil Surgeon and Sub-divisional Officer, Giridih, constituted by the Secretary, Department of Health and Family Welfare after holding enquiry did find that the petitioner was very much involved with the destruction of the medicines. However, no statement has been made that Disciplinary Authority before passing order as contained in Annexure 13 had issued second show cause notice to the petitioner.

Having head leaned counsel appearing for the parties, it does appear that the enquiry officer in a departmental proceeding when did not find the petitioner guilty of the charges, he submitted a report to the Disciplinary Authority holding therein that the petitioner is not guilty of the charges but that was not accepted by the Disciplinary Authority rather he passed an order whereby he inflicted punishment as aforesaid but without differing with the finding given by the enquiry officer. In this regard it be slated that there is absolutely no dispute that the Disciplinary Authority has got right to disagree with the report of the enquiry officer but the Disciplinary Authority under law is bound to issue second show cause notice to the delinquent employee communicating the grounds for such disagreement and seek his response. He is also required to record the ground of disagreement while formulating its opinion. This proposition of law has been laid down by the Hon''ble Supreme Court in the case of Punjab national Bank and Ors. v. Kunj Behari Misra (supra) wherein the apex Court has observed as under:

The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, wherever the disciplinary authority disagrees with tire enquiry authority on any article of charge, then before it records Its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it record its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can Impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.

Thus, the impugned order passed by the Disciplinary Authority never seems to be in consonance with the ratio laid down by the Hon''ble Supreme Court, as referred to above, as the same has been passed without giving any opportunity to the petitioner, as a result of which, the petitioner could not persuade the Disciplinary Authority to accept the favourable conclusion of the enquiry officer and as such, the impugned order, under which punishments have been awarded, can be said to have been passed In gross violation of the principles of natural justice and therefore, the impugned order as contained in Annexure 13 is set aside to that extent only.

So far the matter relating to transfer is concerned, it has also been sought to be quashed on the ground of the order being punitive in nature but as the petitioner had joined his new posting, I do not propose to interfere with the order relating to transfer.

Accordingly, this writ application is allowed but in part.