Dr. Tauhid Hossain vs State of West Bengal and Others

P.K. Banerjee, J,

This Rule is directed against an order passed by the Appointing Authority of the petitioner by which the petitioner''s pay was reduced to 5 stages below his present basic pay in the time scale for a period of 5 years and that during the said period he will earn no increment of pay and on the expiry of the said period, the reduction will have the effect of postponing future increments of his pay. This order was made on 23rd August, 1972, This order was affirmed by the Director of Health Service by order dated 28th August, 1978. The provisional order was affirmed after the representation was considered. by the Director of Health Service, The confirmation order is annexure ''J'' to the petition which is quoted below :-

ORDER

No. A 9565.

Calcutta, the 28th August, 1978. After careful examination of the representation dated 8.2.78 submitted by Dr. Tauhid Hossain, Medical Officer formerly of Barrah P. H. C. now attached to Nakrakonda P.H.C., Birbhum in reply to this directorate order No. A--500 dated 13.1.78. the Enquiring Officer''s report and other evidence on record, I the Director of Health Services, West Bengal, being the appointing authority, have come to the conclusion that no new case has been made out by said Dr. Hossain for a revision of the provisional decision contained in this dated order referred to above.

Now. therefore. I the Director of Health Services, West Bengal being his appointing authority do, herby impose unon him the followiing penalty with immediate effect.

that his pay shall be reduced to five stages below his present basic nay in the time scale of nay of Rs. 300-10-420-15-600|- for a period of five years and during the said period he will earn no increment of nay and on the expiry of the said period the reduction will have the effect, of postponing future increments of his pay".

A note to this effect shall be recorded in his Service Book.

I have quoted annexure ''J'' here-in-before, as the argument advanced by Mr. Majumdar on the basis of this order is that the order in violation of subrule (10) of rule 10 of the West Bengali Service (Classification, Control and Appeal) Rules, 1971.

The petitioner, being a Licentiate Medical Faculty, joined the Health Department, Government of West Bengal, as a Medical Officer on 1.4.67. The petitioner at the material point of time, that is, during the year 1972. was working as the Medical Officer in-charge, Barrah Primary Health Centre, Birbhum. From the said place of posting, the petitioner was transferred to Nakrakonda Primary Health Centre, Birbhum. It is alleged that while he was working as Medical Officer, Barrah Primary Health Centre, a sum of Rs. 100|- was given to the said Barrah Primary Health Centre to observe the Family Planning Fortnight which was received by one Bishnu Pada Ash on behalf of the petitioner. The said sum was given to the Primary Health Centre to observe the Family Planning Fortnight starting from 10th December, 1972 to 23rd December, 1972. It is stated that the petitioner, after receiving the said money, spent the same in connection with the said programme and the voucher in connection with the said expenses was collected from Bishnu Pada Ash. Allegations were made about the mis-appropriation of Rs. 100|- and a fact finding enquiry was held. On the basis of the said fact finding enquiry, a charge-sheet, was framed against the petitioner regarding the mis-appropriation of the aforesaid sum of Rs. 100|-. The petitioner renlied to the charges. A Depart mental enquirv was held by the Commissioner for Departmental Enquirv. Vigilance Commission and the petitionor was found guilty of the charges levelled against him On consideration of the enquiry report, the appointing authority came to a provisional finding about the punishment regarding reduction of pay to 5 stages. The petitioner made representartion and the said representation was rejected and the appointing authority made an order dated 28th August, 1972 as hereinbefore quoted. Being aggrieved by the said order, the petitioner moved this Court and obtained the present rule on 13th September. 1978.

Though the notice was served on the Government on 4th August, 1979, the Government did not file any affidavit but Mr. Partha Dutta appearing for the respondent has produced before me the records of the case.

Mr. Mahitosh Majumdar appearing for the petitioner argued firstly that under rule 10(9) of the Rules, it is incumbent on the part of the appointing authority to direct a common enquiry and without such common enquiry the petitioner cannot be tried by the Disciplinary Authority. Secondly Mr. Majumdar drgued that the Disciplinary Authority, while passing the order, has not applied his mind and has not considered the representation made by the petitioner and mechanically passed the impugned order. Mr. Majumdar thirdly argued that there was violation of the principles of natural justice for not allowing a Lawyer. This argument cannot be upheld This is a simple charge of misappropriating the money to the extent of Rs. 100|- in collusion with another. Therefore, in my opinion, in the facts and circumstances of the case, rejecting the petitioner''s application does not violate the principle of natural justice.

The question is whether e common enquiry should have been ordered by the authorities concerned. It eppeara from the chargesheet Itself that the charge was drawn up against two persons, that is the petitioner as also one Bishnu Pada Ash and they are. It Is alleged in collusion with each other committed the offence. it apoears that an enquiry against both the officers was held under the order of by the Director of Health Service who was admitted by the appointing authority of the Officers In that view of the matter, In my opinion, there Is no merit in this contention that rule 10(9) of the rules has been violated The last point argued by Mr Majumder however, in my opinion, will succeed It is argued by Mr Majumdar that after the provisional punishment was passed by the authorities concerned, the petitioner made representation against the provisional punishment and the appointing authority did not apply his mind and mechanically came to a decision as hereinbefore quoted in the body of the judgment.

In a case reported in The Divisional Personnel Officer, Southern Railway and Another Vs. T.R. Chellappan and Others, the Supreme Court held as follows :-- "The term consider'' postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person". In the present case however the petitioner is not entitled to be heard after the Interim punishment has been Imposed on him but his representation must be considered. In the present case it appears from the order Itself that the representation which was submitted by the petitioner was not considered in a proper perpective and the order Itself disclosed non-application of mind end did not consider the pros end cons as la necessary under rule 10(10) of the West Bengal Service (Classification, Control and Appeal) Rules, 1971 as the authority is required to ''consider'' the representation. The word "consider" in Rue 10(10) of the Rules must be construed In the same way as construed in the case reported in The Divisional Personnel Officer, Southern Railway and Another Vs. T.R. Chellappan and Others, .

It appears to me that the order was passed on 13th January, 1978 after the appointing authority accepted the finding regarding the guilt of the petitioner and made the provisional order and asked the petitioner to show cause and the petitioner replied to It. the final order was passed by the respondent appointing authority but he did not at all apply his mind to the representation made by the petitioner. In that view of the matter In my opinion, the final order parsed en 28th August, 1978 cannot be sustained and must be set aside which I hereby do.

The Rule Is made absolute to the extent as Indicated above. There will be no order as to costs. The Director of Health Service will now reconsider the representation made against the proposed punishment and pass order in accordance with law.