Jharkhand High Court
Dr. Amreshwar Prasad vs State Of Jharkhand & Ors on 21 August, 2015
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4994 of 2011
Dr. Amreshwar Prasad, son of Late Brij Narayan Lal, resident of C/3,
Bhabnesh Apartment, Road No.3, Birsa Nagar, P.O.-Hatia, P.S-Jagannathpur,
Dist- Ranchi, Jharkhand ..... ..... Petitioner
Versus
1. The State of Jharkhand
2. Principal Secretary, Health, Medical Education and Family Welfare
Department, Government of Jharkhand, Nepal House, Doranda, Ranchi.
3. Joint Secretary, Health, Medical Education and Family Welfare
Department, Government of Jharkhand, Nepal House, Doranda, Ranchi.
4. Special Secretary, Health, Medical Education and Family Welfare
Department, Government of Jharkhand, Nepal House, P.O. and P.S. Doranda,
Ranchi.
5. Secretary, Jharkhand Public Service Commission, Jharkhand, Ranchi,
Office at Circular Road, P.O. and P.S. Lalpur, Ranchi
6. Secretary, Cabinet, Jharkhand, office at Project Building, H.E.C. Dhurwa,
P.O. and P.S. Dhurwa, Ranchi .... Respondents
---------
CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
----------
For the Petitioner : M/s. Rajiv Ranjan Sr. Adv.& Shresth Gautam.
For the Respondents : M/s Vikas Kumar (J.C. to A.G.) & Sanjay
Piprawall, Adv.
-----------
th
CAV on:26 June, 2015 Pronounced on 21/08/ 2015
Per Pramath Patnaik, J.:
1. In the accompanied writ application, the petitioner has inter alia prayed
for issuance of an appropriate writ/order/direction particularly in the nature of
certiorari for quashing the notification as contained in Notification no.257(4)
dated 17.07.2010 (Annexure-19 to the writ petition) issued under the
signature of respondent no.4 whereby the petitioner has been punished with
the major punishment of dismissal from services, and for issuance of
writ/order/direction for quashing the appellate order dated 10.08.2011
(Annexure-20 to the writ petition) passed by the appellate authority
confirming the original order dated 17.07.2010 and also for issuance of an
appropriate writ/order/direction in the nature of mandamus, commanding
upon the respondents to forthwith reinstate the petitioner in services
alongwith the entire arrears of salary with penal interest and all consequential
benefits.
2. Sans details, the facts as averred in the writ application, in a nutshell is
that initially the petitioner joined his service in the year 1977 as Basic Health
2
Worker and subsequently he was appointed on regular basis in the year 1980
as Homeopathic Medical Officer. In course of time, the petitioner was posted
as the District Indigenous Officer, Ranchi and was given additional charge of
Principal, State Homeopathic College, Godda in light of his qualifications.
The Health Department of the State of Jharkhand issued advertisement for
filling the posts of doctors in the Indigenous Wing of Medicine
(Homeopathic, Ayurvedic and Unani) within the Health Department, inviting
applications from the eligible candidates for their selection on contractual
basis for a period of two years, as evident from annexures-4 and 4/1 of the
writ petition. Considering the qualification of the petitioner, being the senior
most amongst the Principals of all Ayush Colleges, the petitioner was
appointed as a Chairman of the Selection Committee by the order of the
competent authority of the State of Jharkhand alongwith other four members,
vide annexure-5 to the writ petition. After constitution of the selection
committee, the petitioner alongwith other members started scrutinizing the
application forms and after completion of process of scrutiny, the admit cards
were issued in favour of the eligible candidates for selection as Medical
Officer in the Indigenous Wing of Medicine and accordingly, the petitioner
being the Chairman of the selection committee constituted a different Board,
consisting of the expert members from outside the State for fair selection of
the meritorious and eligible candidates for the said post in terms of the
advertisement. After appearance of the candidates in the interview, a merit list
was prepared and on the basis of the said merit list, the selection committee
prepared a panel of the candidates and after preparation of the said panel, the
same was sent before the Department of Health for further necessary action.
It has been averred in the writ application that the moment the selection
committee sent the entire panel before the State Government, the function of
the selection committee ceased and now it is up to the Department of Health
to take further necessary action upon the recommendation having been made
by the said selection committee by sending the names of the successful
candidates contained in the said panel. It is further averred in the writ
application that the selection committee headed by the petitioner in the
capacity of Chairman was only a recommending authority and the
recommendation is not binding upon the State Government to accept the same
rather it is the prerogative of the State Government either to accept the said
panel or to refuse the same. Thereafter, the State Government issued offer of
3
appointment for the post of Ayush Medical Officer in favour of the candidates
vide order as contained in the order no. 261(3) dated 08.08.2008 directing the
selected candidates to give their joining within a period of one week from the
date of receipt of the said letter, vide annexure-6 to the writ application. Thus,
the appointment of the candidates have been made by the State Government
vide order dated 08.08.2008 and all the candidates started discharging their
duties till the period of contract and got their salary regularly without any
stoppage of the salary. After appointment of the candidates vide order dated
08.08.2008, the Health Department has again created certain further posts and by approval of the competent authority which was obtained up to the level of Minister-in-charge and the Secretary of the Department on 17.01.2009, which would be apparent from the noting of the file, which the petitioner has obtained under the provision of RTI, the appointment in the second phase was done vide order as contained in order number 19(3) dated 21.01.2009, issued under the signature of the Under Secretary, Department of Health, Government of Jharkhand.
It has been further averred in the writ petition that very surprisingly, one show cause notice was issued to the petitioner on 22.01.2009 under the signature of the then Secretary of the Health Department, whereby the petitioner has been directed to give reply for the reason that in issuance of notification the draft has not been approved which is against the rules of business and it appears that in the matter of issuance of notification the petitioner has shown great hurry, vide annexure-7 to the writ petition. After receipt of the show cause the petitioner on 28.01.2009 replied forthwith denying the entire allegation levelled therein with specific statement that he is not involved and he has shown no haste in issuance of notification dated 21.01.2009 rather in the matter of issuance of notification, the petitioner being the Chairman of the selection committee is in no way responsible for getting approval of the Secretary of the Department, copy of the reply dated 28.01.2009 is annexure 8 to the writ application. Thereafter, a committee was constituted vide order dated 24.01.2009 under the Chairmanship of the Joint Secretary, vide annexure-9 to the writ application and the said committee submitted its report on 02.02.2009 but no specific finding has been given against the petitioner with respect to the allegations leveled against the petitioner, as evident from annexure-10 to the writ petition. Thereafter, the petitioner was put under suspension vide order dated 13.02.2009 in 4 contemplation of departmental proceeding, vide annexure-11 to the writ application and the order of suspension was passed on 13.02.2009 but for a long period when no memo of charge was issued against the petitioner, the petitioner having no alternative moved this Court against the order of suspension dated 13.02.2009, vide W.P.(S) No.1014 of 2009 and the said writ application was disposed of by a Bench of this Court vide order dated 26.06.2009 wherein a specific direction was given to complete the enquiry within a period of two months from the date of receipt of the order, as per annexure-12 to the writ petition. After serving the memorandum of charges vide Circular no.190(4) dated 06.05.2009, the petitioner was directed to report before the enquiry officer, vide annexure-13 to the writ petition and after appointment of the enquiry officer and on going through the entire memo of charges, the petitioner has not been supplied the relevant documents which is the basis of the issuance of the memorandum of charge, the petitioner has made specific request before the enquiry officer with a copy to the disciplinary authority for supplying the relevant documents, vide number of representation, as per annexure-14 series. The petitioner has not been served with copy of charge alongwith relevant documents nor he has been permitted to cross examine the witnesses as per the provisions of Section 10 of the Public Servant Enquiries Act 1850 which is mandatory requirements of law under Rule 55 of the Civil Service (Classification, Control and Appeal Rule).
Finally, the enquiry officer concluded the enquiry and submitted report on 22.08.2009 in the absence of relevant documents and an opportunity to cross examine the relevant witnesses, the petitioner was compelled to give his reply to the memo of charge vide his reply dated 04.08.2009, as per annexure- 16 of the writ petition. Thereafter, the enquiry was concluded and the report was submitted before the disciplinary authority and the disciplinary authority issued second show cause notice on 22.09.2009. After receipt of the same, the petitioner again demanded relevant documents because in the second show cause notice there was proposal for imposing major punishment vide his application dated 10.10.2009, but no such document was supplied rather all of a sudden, the order of punishment has been passed without any opportunity of reply to the second show cause notice, copy of the second show cause notice dated 22.09.2009 with reply dated 10.10.2009 is annexure-17 to the writ petition.
5Ultimately, the disciplinary authority passed the order vide notification dated 17.07.2010 inflicting major punishment of dismissal from services, vide annexure-19 to the writ petition and the said order has been challenged before this Court but during pendency of the writ the appellate authority passed an order, confirming the original order dated 17.07.2010 vide order dated 10.08.2011, as per annexure-20 of the writ petition.
3. Per contra, counter affidavit has been filed on behalf of respondent no.1, controverting the averments made in the writ application. In the counter affidavit, it has been inter alia submitted that after the appointment of candidates it was found that huge irregularities has been made in the selection process and the appointment order was issued without proper approval. A committee of four members was constituted for enquiring into the matter by the Department of Health, Medical Education and Family Welfare vide letter no.30 (H.S) dated 24.01.2009 in which large number of irregularities were made by some persons of the Department. Dr. Prasad (petitioner) was the main culprit regarding those irregularities, as evident from Annexure-A to the counter affidavit. It has further been submitted in the counter affidavit that in the light of the report of the said committee five persons were suspended and departmental proceeding started against them including the petitioner. Total 21 charges alongwith 2 supplementary charge sheets were framed against the petitioner. The conducting officer submitted his report and it was found that 10 out of 21 allegations were proved against the petitioner. In light of the enquiry report, the Government decided to dismiss the petitioner from services. The petitioner has been given due opportunity to submit his second show cause which the petitioner has submitted and the same was not found to be satisfactory to revoke the order by the competent authority and accordingly the order of punishment has been passed on all available evidences and the copy of the charge sheet and report of the conducting officer have been marked as Annexures-B and C to the counter affidavit. It has also been submitted in the counter affidavit that a criminal case has also been lodged against the petitioner in Vigilance police station vide Case No.15 of 2009 dated 22.07.2009 and the petitioner was arrested and kept behind the bar for a period of almost nine months. The Government of Jharkhand had issued prosecution sanction letter in this case, vide annexures-D and E to the counter affidavit. Again, it has been submitted that after obtaining the concurrence of J.P.S.C., Jharkhand and approval of 6 council of advisors of Higher Education, the department has dismissed the petitioner vide notification no.257(4) dated 17.07.2010. Thereafter, the petitioner moved before this Court for quashing the notification no.257(4) dated 17.07.2010. During pendency of the writ petition, the petitioner has availed the recourse provided under Rule-57(5) of Civil Services (C.C. & A.) and he has filed appeal before the appellate authority and said appeal having been decided and the State Government has confirmed the order dated 17.07.2010. In view of the above facts, prayer has been made for dismissal of the writ petition. It has further been submitted in the counter affidavit that Dr. Suresh Prasad Singh the then Director, Ayush and Dr. Virendra Kumar are also prima facie accused of this departmental proceeding. Most of the allegation against Dr. Sinha has been proved and on this basis it has been decided to dismiss Dr. Sinha from service. The proposal of dismissal of Dr. S.P. Sinha was sent to J.P.S.C for concurrence but now Dr. Sinha has retired from the service. Therefore, the departmental action has been started according to Bihar/Jharkhand Pension Rules 43 (a), (b) and Rules 139. The final decision is awaited and the charge made against Dr. Virendra Prasad is different in nature than that of the petitioner. In case of Dr. Virendra Prasad charges were not proved and therefore, the matter was further viewed by the departmental secretary and the report of the enquiry officer has been accepted which has got approval of the Minister of the Department, copy of enquiry report is annexure-F to the counter affidavit. Accordingly, respondents have submitted that the writ petition is fit to be dismissed and the petitioner is not entitled to any relief as claimed by him.
4. During pendency of the writ petition, a supplementary affidavit has been filed on behalf of the petitioner for removing the defects no.2 and 3 in respect of annexure-23 series and as such fresh annexure-23 series has been annexed to the supplementary affidavit, which pertains to W.P.(S) no.4868 of 2009, wherein the petitioner has been impleaded as respondent no.5. In the said writ application, counter affidavit has been filed on behalf of respondent no.4. In the said counter affidavit, in paragraph 17, respondents have inter alia stated that the matter has thoroughly been enquired into by a senior officer of the department. In the enquiry all the allegations made against the respondent no.5 (present petitioner) were found to be false and baseless as is apparent from the enquiry report contained in Notification no.222(4) dated 24.03.2008 annexed as Annexure-A to the said affidavit. In the said affidavit, it has been 7 submitted that selection of the candidates was done purely on the merit basis as per criteria laid down in the resolution of the Government contained in letter no.204(4) dated 30.03.2007. Evaluation of marks of each candidate was done and a list was prepared as per the marks obtained by the candidates in descending order from top to bottom.
5. The petitioner has also filed a supplementary affidavit on 03.10.2013, wherein it has been submitted that the petitioner has been targeted in the departmental proceeding for oblique purposes. It appears that vague charges were framed to invent fault of the petitioner in the selection of Ayush Medical Officer on contractual basis. The respondents in order to anyhow implicate the petitioner targeted enquiry against the petitioner and in most unfair and prejudicial manner the enquiry was conducted and against all norms of departmental proceeding, the petitioner has been proved guilty and dismissed from services. It has further been submitted in the affidavit that in complete violation of the norms of conduct of departmental proceeding in the instant case no witness was examined by the prosecution to prove the charges. No document was adduced or proved in the departmental proceeding. It has further been submitted that as per the decision of the Hon'ble Apex Court Constitution Bench care like criminal trial has to be followed in departmental proceeding and suspicion howsoever strong cannot partake the character of proof. Moreover, it has been submitted that the second supplementary charge although not relatable to the selection of Ayush Medical Officer, was added in the enquiry and the petitioner was found guilty for his appointment as Chairman of the Selection Committee, which no prudent man can approve as reasonable conclusion. It does not appeal to reason as to how the petitioner has committed any misconduct in the manner of his appointment as Chairman of the Selection Committee. Moreover, it has been submitted that a show cause notice was issued in the instant case by Dudheshwar Prasad, who has in fact submitted a report against this petitioner which was the basis of supplementary charge and as such, in all fairness he should not have been associated in any manner with the disciplinary action against the petitioner. His involvement in the decision making process indicates real likelihood of bias and the decision of inflicting punishment against the petitioner undoubtedly suffered bias and influence of Dudheshwar Prasad to whom the petitioner submitted his second show cause reply. The involvement of Dr. Dudheshwar Prasad in the decision making process goes to the root of the 8 case and renders the entire decision vitiated. It has further been submitted that in this Hon'ble Court in W.P. (PIL) No.999 of 2009, a counter affidavit was filed on behalf of State of Jharkhand justifying selection of the Ayush Medical Officer. However, at subsequent stage Mr. Dudheshwar Prasad filed affidavit contrary to the previous affidavit wherein it has been mentioned that the Chairman of the selection committee was not eligible to be appointed as Chairman and as such the selection was vitiated. The affidavit filed by Mr. Dudheshwar Prasad in WP (PIL) No.999/2009 has been annexed to the supplementary affidavit.
6. A counter affidavit has also been filed by the respondents in reply to the supplementary affidavit, wherein it has been submitted that twice the petitioner was served show cause notice as per the direction of Indian Homeopathic Organization, Jharkhand but he did not file any reply and the petitioner without taking approval from the competent authority issued appointment letters to wait-list candidates (2nd merit list) and accordingly, the petitioner was suspended along with others in contemplation of the departmental proceeding. Hence, the selection process got vitiated since the selection committee was itself defective. Accordingly, recommendation was made for scrapping the entire selection relating to the Ayush Medical Officer and also recommended JPSC to make fresh appointment against the vacant post of Medical Officer of Ayush and forward the file before the Advisor of His Excellency, Governor for kind approval. The petitioner being the Chairman of the selection committee, by-passed the instructions of the Government without approval of the Government. The merit list was prepared with mala fide intention. The candidates who secured lower marks got higher marks in interview and were selected finally. Further, those candidates who secured higher marks were intentionally given very less marks in interview and their candidature were rejected. The selection committee intentionally submitted only merit list and not the mark sheet. Further, as per the report of the committee, Dr. Prasad was the main culprit regarding those irregularities. Further, it has been submitted that the departmental enquiry was not targeted with a motive and intention to oust the petitioner from consideration zone for the post of Director, Indigenous Medicine. But, the petitioner without taking prior permission of the Department obtained the MD Degree from G.D. Memorial Homeopathic Medical College, Patna and as the letter of the Deputy Advisor, Homeo, Department of Ayush, Government of India, the 9 aforesaid college is not authorized to conduct the course of MD. So far as charges against Dr. Virendra Prasad is concerned, it is stated that the charges against him was not proved and accordingly, the report of the enquiry officer has been accepted and so far the charges against Dr. Suresh Prasad Sinha is concerned, it has been submitted that the decision was taken to initiate departmental proceeding against him vide resolution as contained in Memo no.191(4)/Health, Ranchi dated 06.05.2009. Accordingly, charge sheet was issued to the petitioner and departmental proceeding was initiated against him. But, before any order of punishment could have been passed by the disciplinary authority, Sri Suresh Prasad Sinha retired from his service on attaining the age of superannuation. Accordingly, vide resolution as contained in memo no.420(4)/Health, Ranchi dated 09.08.2011, decision was taken to continue the proceeding under Rule-43 and Rule-139 of the Pension Rules. Show Cause was issued to Suresh Prasad Sinha vide letter no.30(19)/Health, Ranchi dated 06.07.2012 in compliance to the provision of law, final order has been passed against Sri Suresh Prasad Sinha vide Notification as contained in Memo no.103 (19), Ranchi dated 23.11.2012, vide annexures-A, A/1, A/2, A/3 of the counter affidavit. It is also further submitted that all relevant documents has been supplied to the petitioner during the departmental proceeding as evident from letter dated 10.07.2009 (annexure-B to the counter affidavit).
7. Heard Mr. Rajiv Ranjan, learned senior counsel for the petitioner and Mr. Vikas Kumar (J.C. to A.G.) & Sanjay Piperwall, appearing for the respondents.
8. Learned senior counsel for the petitioner has assiduously argued that the impugned order dated 17.07.2010 and the appellate order dated 10.08.2011 are fit to be set aside on the ground that the petitioner has not been provided adequate opportunity as claimed at the time of enquiry stage and as such enquiry proceeding is vitiated in the eye of law. Learned senior counsel has further submitted that the impugned order is liable to be set aside because the respondents have not provided opportunity even to cross examine the witnesses for which he made specific request before the authority as per mandatory provisions under Rule 55 of Civil Service (Classification, Control and Appeal Rule) read with Section 10 of the Public Servant Enquiries Act, 1850. Further, learned senior counsel has urged that the impugned order have been passed in violation of principles of natural justice since even the enquiry 10 officer was not satisfied with the information supplied and did not supply all document to the petitioner but the petitioner was forced to participate in the enquiry and ultimately final order of punishment has been passed. Learned senior counsel has further submitted that non-disclosure of the documents has caused great prejudice to the petitioner in the enquiry proceeding which is clearly a denial of reasonable opportunity to submit the plausible and effective rebuttal to the charges being enquired into against him and finally he has submitted that the action of the respondents is violative of Article 14 and Article 21 and 300-A of the Constitution of India.
9. Learned counsel for the petitioner further submitted on memo of charge and two supplementary charge sheet were served upon the petitioner and from the enquiry report, it is apparent that charge nos. 2, 3, 4, 8, 9, 10, 13, 14, 15 in the first charge memo was not proved and in 1st supplementary charge sheet, charge no. 1, 2, 3 was not proved and in 2nd supplementary charge sheet charge no.1 was not proved. The entire enquiry report is based on conjectures and surmises and is only opinion of the enquiry officer.
10. Learned senior counsel has further submitted that counter affidavits filed by the State in W.P.(S) Nos.4868 of 2009, 4532 of 2008 and W.P.(S) no.4413 of 2008 in which a categorical stand has been taken by the State that there was no irregularity or illegality in the selection process and the same selection process for which Govt. has taken stand in the Hon'ble Court, petitioner has been made scapegoat and has been hanged without any basis. Even in the Assembly questionnaire, as evident from annexure-24 to the writ petition, no irregularity was committed in the selection process. Learned senior counsel has further submitted that annexure-29, representation of the petitioner demanding documents and annexure-30 goes to show that the Vigilance report prepared by the department by which no irregularities were noticed or found in the selection process. Therefore, the submissions advanced on behalf of the petitioner that all the charges are vague, particularly Charge No.1 which is completely vague and cannot be established against the petitioner without any specific allegations of the role of the petitioner and cannot be proved on the basis of document alone. There was no enquiry at all since no oral evidence has been led in the enquiry proceedings and the enquiry officer has given his opinion merely on the defence filed by the petitioner and the documents enclosed with the memo of charges, conclusion and the opinion of the enquiry officer cannot be derived 11 from any logical conclusion from the documents on record. It has also been submitted that petitioner was not provided with documents to prepare his defence against the charge nos.1, 6, 9 and 14 and only some documents with respect to Charge No. 6 was given to the petitioner. However, petitioner became lucky in as much as Charge no.9 and 14 were not proved against him, however, charge no.1 and 6 has been proved against the petitioner and for the main charge being Charge No.1, no documents were given to the petitioner nor the petitioner was allowed to cross examine any witness on the sole premise that the proceedings was not a criminal proceedings. Learned senior counsel for the petitioner further submits that no witness was examined by the prosecution nor the Presenting Officer filed any documents nor presented his case and the enquiry officer also does not indicate and has not stated anywhere in the enquiry report about the statement of the Presenting Officer. He has merely stated the stand of the Charged Officer and giving his opinion thereafter based upon the documents furnished to the petitioner at the time of serving of memo of charges, no witnesses were examined by the Presenting Officer nor any documents were given.
11. Learned senior counsel has further submitted that Hon'ble Apex Court in catena of decisions has held that in the enquiry proceedings, the oral evidences is to be led against the delinquent persons to prove the charge against him and mere production of documents is not enough to conclude that the charge against the officer stands proved. Learned senior counsel has referred the decision rendered in the case of State of Uttar Pradesh and Ors. Vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772. In para 26, 27 and 28 of the said judgment the Hon'ble Apex Court have been pleased to hold:
"26. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges. Rule 7(x) clearly provides as under:
"7. (x) Where the charged government servant does not appear on the date fixed in the inquiry or at any stage of the proceedings in spite of the service of the notice on him or having knowledge of the date, the inquiry officer shall proceed with the inquiry ex parte. In such a case the inquiry officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged government servant."
27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed 12 failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-
examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.
28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."
12. Learned senior counsel appearing for the petitioner by referring para 14 and 15 of the judgment reported in 2009 (2) SCC 570 (Roop Singh Negi Vs. Punjab National Bank and Ors.) has submitted that similar view has been taken by the Hon'ble Apex Court in this case. Para 14 and 15 of the said judgment are reproduced hereinbelow:
"14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The enquiry officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigating by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct 13 evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left."
13. Learned senior counsel appearing for the petitioner has also referred to the decision reported in (2007) 7 SCC 206 (Bongaigaon Refinery & Petrochemicals Ltd. and Ors.) vs. Girishchandra Sarma, wherein the Hon'ble Apex Court has inter alia held that old proposition of law that Court cannot sit as appellate authority over the domestic enquiry. However, the findings of the domestic enquiry in this case found unsustainable inasmuch as one person alone made scapegoat for collective decisions in which others also collectively participated. Hence, the decision taken by the Division Bench of High Court has been rightly set aside. The penalty has been affirmed by the Hon'ble Apex Court on that analogy.
14. Finally, learned senior counsel appearing for the petitioner has submitted that order of dismissal and also the appellate order is non speaking order since no reason has been assigned against the petitioner nor the statement given by the petitioner has been found to be proved. The charge itself being vague and particularly charge no.1 and 6 are completely vague and there is no specific role of the petitioner in conspiracy on which the entire decision was taken as collective decision and not a decision of one man, and the document itself shows that the petitioner has no concern with the publication of the list, awards of the marks. But, merely on conjectures and surmises, opinion of the enquiry officer has been recorded by holding the charge proved. No oral evidence has been led against the petitioner impleading the petitioner or stating his role in conspiracy and in absence of the same proceedings cannot be said to be proved merely on the opinion of the enquiry officer without there being any cogent evidence much less any evidence at all as against the petitioner.
15. As against this, learned counsels for the respondents have dexterously argued that on the facts and circumstances, the norms of recruitment have not been followed by the petitioner being the Chairman of the Selection Committee and the disciplinary authority has neither distracted nor misrepresented the enquiry report nor the punishment is shocking so as to prick the conscience of this Hon'ble Court and the impugned order of dismissal from service dated 17.07.2010, vide Annexure-19 to the writ 14 petition and the appellate order dated 10.08.2011 vide Annexure- 20 to the writ petition do not warrant any interference of this Court.
16. Before proceeding further, it would be pertinent to mention here that altogether three memo of charge was served upon the petitioner. In the first memo of charge, there are 15 charges out of that charge nos. 3,4,9,10,13.14 and 15 have not been proved. In first memo of charge, there are 15 charges, out of that charge no. 3,4,9,10,13,14 and 15 have not been proved, in 1st supplementary memo of charge, charge nos 1, 2, 3 have not been proved and in 2nd supplementary memo of charge, sole charge, charge no. 1 has not been fully proved.
17. For better appreciation, it would be apposite to refer to the charges, which have been proved against the petitioner, as extracted from the departmental proceeding and same is mentioned herein below:
1st Memo of Charge:
So far charge no. 1 is concerned, it is alleged that many of the candidates having high academic marks have been awarded low marks in interview whereas candidates having low marks in academic career have been given high marks to place them above in the merit list, for this mainly the petitioner has been made responsible.
In this respect, the petitioner has submitted before the conducting officer that merit list is not being prepared by one person rather it is the committee, who made the merit list.
So far charge no. 2 is concerned, it is alleged that although there was no provision for making second merit list, but, it was prepared by the petitioner, being the chairman of the selection committee and even if it was found necessary why prior permission of Department has not been taken.
In this respect, the petitioner has submitted that in view of the resolution of Government, merit list was prepared in two parts; in first part name of eligible candidates according to vacancy has been mentioned and second part of merit list has been prepared for wait-list candidate, which is a policy decision.
However, the conducting officer has opined that since there is no clear-cut provision of second merit list, hence, the same has been done contrary to the departmental resolution.15
So far charge no. 5 is concerned, it is alleged that without getting permission from the Government, Technical Experts have been called for from outside.
In this respect, the petitioner submitted before the conducting officer that though there is provision of technical experts being called for from the State or outside the State, but, there is no specific averment that for that prior permission of Government is required.
However, the conducting officer has opined that in selection of experts there appears to be lack of transparency, hence, the petitioner is guilty of the charges.
Charge No. 6 implies that despite the petitioner being provided the list of technical experts according to their seniority but he has selected the technical experts of their own choice.
The petitioner has disputed and it was submitted before the conducting officer that though the list has been provided in the proceeding yet from perusal of it, it appears that there is no clear instruction as to who may be chosen as technical experts.
In charge no. 7, it is alleged that how much amount has been received in advertisement and where it has to be deposited, for that no permission has been taken from the department and it is alleged that the said amount has been utilized arbitrarily resulting into financial irregularity.
In this respect, petitioner submitted that since the bank draft/postal order was in favour of the Principal-cum-chairman selection committee, hence, the same was deposited in his name. The conducting officer opined that since there is no prior permission of the concerned department for withdrawal of the amount and there is no description of expenditure of the amount, hence, the charge of defalcation of money is being proved against the petitioner.
In Charge no. 8, it is alleged that the petitioner has not submitted how many applications were received, how many were rejected and from certain period of time how many candidates were interviewed and it is alleged that it shows his arbitrariness.
It was contended by the petitioner that in the proceeding of selection committee, there is every description, which was not accepted by the conducting officer.16
In Charge no. 11 it is alleged that it is obligatory on the selection committee to obtain sanction from the Personnel Department with regard to nomination of a Member (On reservation point) in accordance with the Govt. circular, but, it was not followed.
In Charge no. 12, it has been alleged that according to the Resolution, in the Selection Committee, concerned Regional Deputy Director, Health Service was to be kept for interview of each Division, but, the petitioner has only taken Regional Deputy Director, Health Services, Ranchi for all Divisions, and for which, no prior permission has been obtained.
In this respect, the petitioner has submitted that there is no provision in the Resolution that interview would be Division-wise and in Column 7, there is format of appointment committee, hence, the petitioner has not violated any Resolution.
1st supplementary charge-sheet:
Charge no. 2: Though the petitioner has submitted paper against the charge, but, it is stated by the conducting officer, it is a matter of verification.
In Charge No. 5 it is alleged that appointment letter of Ayush doctors on contractual basis has been offered without taking prior permission of the Secretary of the concerned department.
In this respect, it was submitted that merit list was submitted in two parts and after getting approval of the department concerned, in first phase 156 Ayush doctors were appointed and in second phase 70 Ayush doctors were appointed.
18. Having heard learned counsels for the parties and after perusal of the documents, charges levelled against the petitioner and after giving my anxious consideration to the factual and legal aspects, the impugned order of dismissal vide notification dated 17.07.2010 (Annexure-19 to the writ petition) and the order dated 10.08.2011 passed by the appellate authority confirming the order of the disciplinary authority vide annexure -20 to the writ petition, are not sustainable in view of the following facts, reasons and judicial pronouncements:
(I) On perusal of the records, it appears that the departmental proceeding has been proceeded in a very perfunctory manner as no witnesses have been examined by the prosecution to prove the charges 17 nor any document was adduced or proved in the departmental proceeding. In fact, the said departmental proceeding was only a window dressing whereby the petitioner has been found guilty and has been visited with major punishment.
(II) In the instant departmental proceeding, nothing worth evidence was adduced or proved and no oral evidence has been led yet the enquiry officer on ipsi dixit and on mere conjectures, surmises and suspicion has held the petitioner guilty. It appears that the enquiry report is not based on scrutiny of materials of departmental proceeding but on mere opinion of the enquiry officer.
(III) On the same set of materials for the same charges, the enquiry officer has adopted two different yardstick and without any rational justification the petitioner has been proved guilty whereas the then Director and Deputy Director of Indigenous Medicine were exonerated by the same enquiry officer. Moreover, the disciplinary authority without considering the doctrine of proportionality inflicted the punishment of dismissal and the disciplinary authority and the appellate authority have not examined the mitigating circumstances and other relevant factors before inflicting the punishment. So far as charges against Director is concerned, the enquiry officer has not found him guilty but so far charges against the Deputy Director is concerned, the decision was taken to initiate departmental proceeding against him and before any order of punishment could have been passed by the disciplinary authority, Deputy Director retired from service on attaining the age of superannuation and final order of punishment under Rule 43 of Pension Rule has been passed vide notification dated 23.11.2012 (Annexure-A/3 to the counter affidavit) reduction of 20 per cent of pension, but the petitioner has been subjected to major punishment.
19. The Hon'ble Apex Court in case of State of Uttar Pradesh and Others Vs. Raj Pal Singh reported in (2010 )5 SCC 783 has been pleased to hold in paragraph 6, which is quoted hereinbelow:
"6. It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents 18 differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution."
20. The Hon'ble Apex Court in the case of Lucknow Kshetriya Gramin Bank & Anr. Vs. Rajendra Singh as reported in (2013) 12 SCC 372 in the placitum held as under:
"However, the judicial review of the quantum of punishment is available with a very limited scope. The court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the court. Even in such a case when the punishment is set aside as shockingly disproportionate, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.
21. As a cumulative effect of the facts, reasons, judicial pronouncements and as a logical sequitur to the reasons stated in the forgoing paragraphs, the impugned order vide notification dated 17.07. 2010 (Annexure-19 to the writ petition) and the order passed by the appellate authority dated 10.08.2011 (Annexure-20 to the writ petition) confirming the order of the disciplinary authority are not legally sustainable and are hereby quashed and the matter is remitted back to the disciplinary authority/appellate authority with a direction to pass appropriate order on the quantum of punishment/delinquency proved against the petitioner, keeping in view the parity between the co-delinquents within a period of two months from the date of receipt/production of copy of this order, in accordance with law.
22. With the aforesaid observations and directions, the writ petition is disposed of.
(Pramath Patnaik, J.) Saket/-