Meena Singh vs State Of Bihar And Ors

Heard learned counsel for the petitioner as well as learned AC to PAAG II for the State.

2 Brief facts giving rise to the instant writ petition is that the petitioner's husband, at the relevant point of time, was a District Malaria Officer. On account of certain allegations having been made against him, he was caught red handed by the Vigilance Department while accepting illegal gratification and arrested on 24.09.1994. This gave rise to the institution of the Vigilance Police Station Case No 25 of 1994. The petitioner's husband, thereafter, was released on bail on 21.11.1994. On 31.03.1995, he was placed under suspension with retrospective effect from 24.09.1994. The petitioner's husband, thereafter, moved this Court in respect of long period of suspension in other proceedings which, for the instant case, are not relevant.

3 On 27.11.1997, charge memo came to be issued on the petitioner's husband which was on the same charges for which the petitioner was being proceeded against in the criminal proceeding, i e, on account of alleged illegal purchase of medicine from MSD, Kolkata. Petitioner's husband submitted his response to the charge memo on 22.12.1997. It was his specific case that he was required to see some documents before he could submit his written statement of defence in response to the charges made out in the charge memo. Series of correspondence ensued thereafter on this score. It is only on 15.03.1999 that the petitioner's husband was given the second show cause notice issue under the signature of the Deputy Secretary in the Department of Health. Along with the second show cause notice, the petitioner's husband was given a Communication dated 11.12.1998 which is supposed to be the enquiry report. The petitioner's husband has responded thereto by Annexure 16 dated 30.03.1999. Raising various grievances including the fact that no proceeding has been conducted on any date and no document whatsoever, as requested by the petitioner's husband, has been made available to him.

4 The issue regarding non-supply of document is emphatically denied by the learned State Counsel. It is submitted that the petitioner's husband was given due opportunity to inspect the documents by the authorities. Petitioner's counsel, however, submits that on account of his headquarters being at a different place, it was not possible for the petitioner's husband to go and examine the documents at his erstwhile place of posting. This issue had been brought to the notice of the authorities and, therefore, they were obliged to make available the documents to the petitioner's husband.

5 Having taken note of this fact, this Court would observe that the manner in which the authorities have conducted the proceedings totally dilutes the issue. It is the stand of both the petitioner and the respondents that the Communication dated 11.12.1998 issued by the Regional Deputy Director, Health Services, Patna Division, Patna is the enquiry report. Specific stand to this extent has been taken in the counter affidavit filed by the respondent-State. The second show cause notice also contains the same Communication dated 11.12.1998 which is referred to as enquiry report. On going through the so-called enquiry report dated 11.12.1998, it is apparent that the same is in breach of the procedure and dehors the provisions under the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. The same does not refer to any date in the proceedings before the Enquiry Officer. It does not even take notice of the fact whether any Presenting Officer was presenting the case on behalf of the Department. Various documents have been referred to by the Enquiry Officer himself and after having referred to various documents, conclusion is that the Enquiry Officer is not even able to ascertain whether the petitioner's husband had the authority/power to indulge in the purchase on account of which he had been proceeded against. The requisite procedure for conducting the departmental proceeding was violated by the Enquiry Officer as is evident from the Enquiry Report. It also does not communicate any conclusion of the Enquiry Officer to the Disciplinary Authority.

6 This Court is, therefore, unable to appreciate what is the basis of the stand taken by the respondents in paragraph 10 of the counter affidavit that the Enquiry Officer found the charges to be proved. Such stand is taken with reference to Annexure 15 A of the writ petition which is the communication dated 11.12.2018 wherein there is no conclusion.

7 In the circumstance, the Department had various options under the Conduct Rules. They could either have directed for further enquiry, changed the Enquiry Officer or differed with the same and by assigning reason in support of difference with its tentative findings and could have issued show cause to the petitioner's husband. None of this have been done.

8 On the contrary, the Disciplinary Authority has treated the Communication dated 11.12.1998 to be a Communication of the Enquiry Officer recording a finding of charges having been proved which, on the face of the record, is false. The second show cause notice is clearly unsustainable in the eyes of law.

9 Petitioner's husband's response to the second show cause notice (Annexure 16) also appears to have been totally ignored by the Authority issuing the order of punishment dated 11.10.2003. The conclusion of the Disciplinary Authority having the consequence of the punishment such as dismissal is devoid of any reason whatsoever and manifests total non-consideration of the plea put forth by the petitioner's husband in his response to the second show cause.

10 This Court would consider it useful to reproduce the order

बिहार सरकार

स्वास्थ्य चि0शि0एवं प0क0 विभाग

संकल्प

श्डा0 सच्चिदानन्द सिंह, चि0 पदा0 गौतम बुद्ध कुष्ठ आश्रम, गया को कतिपय आरोपों के आधार पर स्वा0 विभागीय अधिसूचना ज्ञापांक 159 (18) दिनांक 31.03.95 के द्वारा निंलबित कर विभागीय संकल्प ज्ञापांक 1556 (18) दिनांक 27. 11.97 के माध्यम से विभागीय कार्यवाही संचालित की गयी। संचालप पदा0 से प्राप्त अधिगम पर सम्यक विचारोपरा ंत विभागीय कार्यवाही में डा0 सच्चिदानन्द सिंह के विरूद्ध निगरानी विभाग द्वारा घूस लेते हुय े पकड ़े जाने। दि0 24.09.94 से दिनांक 21.11.94 तक हिरासत में रहने एवं एम0एस0डी0 कलकत्ता के 25,70,360 की दवा के अनियमित क्रय करने संबंधी सभी आरोप प्रमाणित पाय े गय े।

उपर्युक्त आरोपो ं के आधार पर डा0 सिंह के विरूद्ध प्रमाणित आरोपों के आलोक में विभागीय ज्ञापांक 464 (18) दिनांक 15.03.99 के माध्यम से द्वितीय कारण पृच्छा की मांग की गयी जिसका उत्तर संतोष्प्रद पाया गया।

अतः उपर्युक्त आरोपों के आधार पर बिहार लोक सेवा आयोग की सहमति (पत्रांक 3032 दिनांक 7.2.03) एवं मंत्रिपरिषद की स्वीकृति के अनुपालन में डा0 सच्चिादानन्द सिंह, चि0पदा0, गौतम बुद्ध कुष्ठ आश्रम गया को तत्कालिक प्रभाव से सरकारी सेवा से बर्खास्त किया जाता है।श्

बिहार राज्यपाल के आदेश से,

ह0-बी0बी0पाणडेय

सरकार के उप सचिव

11 Apart from the various infirmities in procedure adopted by the Enquiry Officer, the order of the Disciplinary Authority inflicting the petitioner the greatest punishment of dismissal from service is unsustainable in law inasmuch as the same is without assigning any reason and without considering the plea raised by the petitioner. Order per se is unsustainable in the eyes of law. This Court, in this connection, would refer to the decision in the case of Kranti Associates Private Limited & Another -Versus- Masood Ahmad Khan & Others, (2010) 9 Supreme Court Cases 496 wherein the Hon'ble Apex Court has reiterated the importance of assigning reasons by authorities dealing with rights. It is only by assigning reasons that the scope of arbitrariness can be obliterated. The reasons can only demonstrate what is crossing the mind of the authorities and whether there is any consideration of the issues. Non-assigning of reasons in light of the decision of the Apex Court renders the order passed by the Disciplinary Authority per se illegal and unjustified.

12 The order of punishment dated 11.10.2003 issued by respondent No 4 suffers from various infirmities and is, therefore, quashed.

13 During pendency of the instant proceedings, the original writ petitioner has passed away. By virtue of the substitution in the instant proceedings, by order dated 16.11.2010, the widow of the original writ petitioner is before this Court.

14 In the circumstance, this Court would observe that there is no scope for the respondent-authorities to embark on any fresh exercise for conducting proceedings against the original writ petitioner.

15 In the circumstance, this writ petition stands allowed.

16 The widow/petitioner would be entitled to receive all consequential benefits permissible in law as a consequence of quashing the punishment order.