Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19048 of 2012 ================================================== Arvind Kumar Sharma S/O Late Tapeshwar Nath Sharma R/O 11b, Jagat Ajanta Apartment, Naya Tola, Opp.P.N.Anglo Sanskrit School, Patna .... .... Petitioner/s Versus 1.The State Of Bihar Through The Principal Secretary, Health Department , Govt. Of Bihar, Patna ’ 2.The Director In Chief, Health Service, Govt. Of Bihar, Patna 3.The Superintendent Of P.M.C.H, Patna 4.The Superintendent , Sri Krishna Medical College And Hospital, Muzaffapur 5.The Deputy Director, Health Services, Govt. Of Bihar, Patna. .... .... Respondent/s ================================================== Appearance : For the Petitioner/s:Mr. Ray Saurabh Nath For the Respondent/s:Mr. Kaushal Kr. Jha SC4 =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4 22-08-2013 Heard learned counsel for the parties. 2. In the considered opinion of this court the impugned order of the appellate authority, the Principal Secretary, has to be examined in itself and as such the other issues including the difference of opinion of the disciplinary authority with inquiry report leading to earlier order being bad looses its relevance and significance. The petitioner, a Speech Therapist was found to be lacking in performance of his duty and as such he was bound to be proceeded departmentally for that misconduct. If all the
Legal Reasoning
Patna High Court CWJC No.19048 of 2012 (4) dt.22-08-2013 2 charges were proved against the petitioner, he had to be removed from service, inasmuch as, the allegation of demanding illegal gratification which could not have been proven in the departmental proceeding, had it been found to be correct in the Vigilance inquiry, could have itself led to institution of a criminal case and his consequential removal from service. Therefore if demand of illegal gratification was not the ground for inflicting punishment by the disciplinary authority who had only found the misconduct committed by him in performance of his duty, which infact became the subject matter of the departmental proceeding no prejudice can be said to have been caused to him in the punishment inflicted on him when this part of charge had stood proved from the materials on record. 3. It was actually in this regard that the Principal Secretary of the Health Department has gone into the whole issue and has found the stand of the petitioner to be full of fallacies that he could not be held responsible if the patient did not respond to him in the correct manner. The findings of the appellate authority in the impugned order therefore, cannot be Patna High Court CWJC No.19048 of 2012 (4) dt.22-08-2013 3 faulted either in fact or in law which reads as follows:- ^^7- v/kksgLrk{kjh }kjk lafpdk ij jf{kr vfHkys[kksa ds voyksdu ls Li"V gqvk gS fd Li"V fcUnqvksa ij] ftldk mYys[k mij fd;k tk pqdk gS] Jh ’kekZ ls f}rh; dkj.k i‘PNk dh ekax i=kad 440…4‰ fnukad 21-04-2009 }kjk dh x;h FkhA Jh ’kekZ }kjk f}rh; dkj.k i‘PNk esas ;g dguk fd buds mij yxk;s x;s lHkh 6 …N%‰ vkjksiksa esa ls fdlh ds fy, nks"kh ugha ik;k x;k] lR; ugha gSA tkap inkf/kdkjh }kjk lefiZr vf/kxe esa vkjksi la[;k&6 ds fy, f’kdk;rdRrkZ dh f’kdk;r dks lR; ik;k x;k gS ,oa vkjksi la[;k&5 ds fy, Hkh eaf=eaMy fuxjkuh foHkkx }kjk dh x;h takp ds vk/kkj ij muds }kjk bl vkjksi dks izekf.kr ik;k x;k Fkk] ijUrq vkj{kh mi egkfujh{kd] eaf=eaMy fuxjkuh foHkkx }kjk ;g dgk x;k fd tkap ds nkSjku bl lEcU/k esa Li"V lk{; ugha ik;k x;k vkSj Li"V vfHker tkap inkf/kdkjh }kjk bl vkjksi ds fy, ugha fn;k x;kA ,slh fLFkfr esa vuq’kklukRed izkf/kdkj }kjk Li"V vfHker xfBr dj f}rh; dkj.k i‘PNk dh ekax dh x;h gSa pyUr bdkbZ }kjk ekeys dh tkap esa f’kdk;rdRrkZ dh tkap izfrosnu esa ;g vfHker dgha ugha fn;k x;k gS fd ;g vkjksi izekf.kr ugha gksrk gSA 8- Jh ’kekZ }kjk vius vihy vH;kosnu esa dsoy tkap dh izfdz;k dks foLrkj ls crkdj ;g dguk fd ^^tkap iwjh rjg ls subjective gksrk gS vkSj dksbzZ ejht lqudj Hkh maxyh ugha mBk;s ;k speech repeat ugha djs rks eSa D;k dj ldrk gwW**] izekf.kr vkjksiksa dks xyr lkfcr djus ds fy, i;kZIr ugah gSA bl ckr ls f}rh; dkj.k i‘PNk es Jh ’kekZ }kjk bUdkj ugha fd;k x;k gS fd buds }kjk Li"V rF; vafdr ugha djus ds dkj.k vkSj bl vk/kkj ij izek.k i= ugha nsus ds dkj.k f’kdk;rdRrkZ dks feyus okys ykHk ls cafpr gksuk iM+kA ,slh fLFkfr esa Jh ’kekZ ds fo:n~/k vius dRrZO; ds izfr ykijokgh dk vkjksi Li"V :i ls izekf.kr gksrk gS tkap inkf/kdkjh }kjk vius vf/kxe esa Hkh Jh ’kekZ dks vkjksi la[;k&5 ,oa 6 ds fy, funksZ"k ugha ekuk x;k gSa ,slh fLFkfr esa bu fcUnqvksa ij Jh ’kekZ }kjk vihy vH;kosnu esa mBk;k x;k vk/kkj Lohdkj ;ksX; ugha gSA bUgsa dRrZO;ghurk ,oa f’kdk;rdRrkZ dh f’kdk;r dks lgh ik;s tkus ds vkjksi ds fy, nks"kh ik;k tkrk gSA 9- tgka rd budk vihy vH;kosnu esa nks"k ds vk/kkj ij ltk dh vR;f/kd gksus dk iz’u mBk;k x;k gS] bl vkyksd esa vfHkys[k voyksdu ls Li"V gS fd bUgsa mijksDr daafMdk&4 esa vafdr rhu n.M fn;s x;s gS] ftlij lE;d fopkjksijkUr dRrZO; esa ykijokgh vkSj pyUr bdkbZ }kjk f’kdk;rdRrkZ ds f’kdk;r dks lgh ik;s tkus ds vkjksiksa ds fy, nks"k fln~/k ik;s tkus ,oa Jh ’kekZ }kjk vius vihy vH;kosnu esa dgs x;s rF;ksa ds vk/kkj ij uje :i viukrs gq, bUgsa fuEu:is.k nafMr fd;k tkrk gSA Patna High Court CWJC No.19048 of 2012 (4) dt.22-08-2013 4 …d‰ lap;kRed izHkko ls rhu osruo‘fn~/k ij jksdk …[k‰ fuyEcu vof/k ds fy, thou fuokZg HkRrk ds vfrfjDr dqN Hkh ns; ughaA** 4. In fact when the appellate authority has also reduced the punishment by modifying the earlier punishment to the extent of recalling the withholding his promotion for ever in his service career, this Court will only hold that whatever due was admissible to the petitioner either in fact or in law has been given to him and in fact he should treat himself fortunate that he was left out in a very lenient manner by the appellate authority. As a matter of for such misconduct the respondents could have even dismissed him from service. 5. The grievance of the petitioner that such modified punishment will be of no benefit to the petitioner because there is no promotional post for the petitioner has to be appreciated in the background that even if the petitioner does not have a promotional post, he would be definitely entitled for grant of ACP or other anti stagnation benefit in absence of avenue for regular promotion by the Government from time to time. Had the earlier order of punishment stood there, which was to the effect of also withholding his promotion forever, the Patna High Court CWJC No.19048 of 2012 (4) dt.22-08-2013 5 petitioner could not have been entitled to get even the ACP or any other benefit of higher pay scale by way of anti stagnation removal measures. Therefore, the petitioner should be thankful to the appellate authority that at least that part of the punishment has been taken away. 6. This Court having perused the impugned order passed by the Principal secretary of the Health Department is therefore satisfied that he has gone into the issue in a very elaborate manner. The petitioner himself had agreed for pressing his appeal before the Principal Secretary of the Health Department and that is how the earlier order of this Court directing the Principal Secretary to dispose of the appeal was passed. 7. That being so, this application is wholly misconceived and is, accordingly, dismissed. Ranjan/- (Mihir Kumar Jha, J)