Dr.Arbind Kumar v. The State Of Bihar

Patna High Court CWJC No.12470 of 2012 (3) dt.30-08-2012 along with absence during Flood Relief Work because of which difficulty were being felt in Flood relief and medical facilities for epidemic control. The absence of the aforesaid medical officers during natural calamity and failure to discharge duties evidenced lack of commitment to work and negligence for which they appeared prima facie guilty.” Learned counsel for the petitioner submits that the District Magistrate was initially appointed as the conducting officer. The charge memo had originated on his complaint. The petitioner bona fide apprehended bias and requested for change of the conducting officer. No presenting officer was appointed by the department for several months. The petitioner gave repeated reminders. The petitioner filed his reply on 3.5.2005. The departmental proceedings have remained pending for no fault attributable to him. On

10.10.2011 he filed a representation before the Grievance Redressal Cell constituted under the State Litigation Policy, 2011, stating that the proceedings have remained pending for inordinately long and were affecting his career prospect. Even that did not propel the respondents to expedite the proceedings. The charges themselves were vague. In the nature of the charges, the pendency of the departmental proceedings since 2004, for no lapses attributable to the petitioner, evident the counter affidavit, further continuance of the same would be grossly arbitrary. The 3 Patna High Court CWJC No.12470 of 2012 (3) dt.30-08-2012 respondents should be restrained from proceeding any further. Learned counsel for the State, from the counter affidavit submits that the challenge to the proceedings eight years later is highly belated. The writ petition may be dismissed. Enquiry report has been submitted on 30.8.2006 and directions may be issued to conclude the departmental proceedings at an early date. Initiation of departmental proceedings is but a facet of enforcing discipline in service. Deviant conduct is required to be controlled so that not only efficiency in service is maintained but also others are not encouraged to indulge in deviant behaviour. Whether it be the employer or the employee, the holding of a departmental proceeding is an extremely serious matter. But, this does not vest unbridled power in the respondents to act arbitrarily and when questioned before a Court of law, furnish no defence whatsoever and yet seek to contest the litigation. Every human being has a sense of self respect, a social standing, based on the estimation in the eyes of his peers. The initiation of a departmental proceeding against a Government servant undoubtedly creates a dent in the same. If he is punished, he has to bear the burden. But, if he is exonerated, his reputation undoubtedly is affected. So long as the proceedings are kept pending it certainly casts a cloud over him, even without a finding. It is therefore necessary that 4 Patna High Court CWJC No.12470 of 2012 (3) dt.30-08-2012 departmental proceedings are initiated after proper application of mind, charges framed with seriousness and the proceedings concluded with utmost expeditiousness, unless the delay be attributable to the delinquent himself. The counter affidavit filed by one Sri Jagdish Singh, of the rank of the Deputy Director in the Health Department is extremely casual and perfunctory to say the least. It reflects a complacency that filing of the same was but a ritualistic formality and the State litigation policy was of no concern. The suggestion of the deponent that the writ application was highly belated is preposterous and has to be stated to be rejected. If enquiry report had been submitted on

30.8.2006, the proceeding then rested in the domain of the respondents for giving a second show cause notice. The petitioner had no role to perform till then. The counter affidavit does not contain even a suggestion of an iota of reason why the proceedings have remained stagnant since then. The departmental proceedings became the proverbial damocles sword hanging over the petitioner. Perhaps it has caused more agony and distress to him then a swift punishment. The conduct of the respondents in contesting what clearly appears to be an uncontestable case is disappointing. There can be no across the Board and 5 Patna High Court CWJC No.12470 of 2012 (3) dt.30-08-2012 generalized yardstick for holding a departmental proceeding to be delayed and the continuance unjustified. Each case has to be decided on its own facts. Cases of financial embezzlement, causing severe financial loss to the State, acts of moral turpitude are but some of the examples when delay by itself may not be sufficient. Yet again there may be cases where the charges constitute misconduct but the nature cannot sanctify continuance of the proceedings inordinately either on the test of arbitrariness, or justice, equity and good conscience. If the allegation was for unauthorized absence, the period undoubtedly should have been mentioned in the memo of charge. The contention that the charges were vague however need not be gone into as the writ petition can easily be disposed off on another ground. A charge of unauthorized absence cannot be put at the same pedestal as financial embezzlement or moral turpitude. There may be a plausible explanation for the delay. The petitioner had put forth a defence. The consideration whether departmental proceeding was unduly delayed shall be different in the former from the latter. The principle in this regard can well be extracted from (1998) 4 SCC 154 (State of A.P. Vs. N. Radhakishan) holding at Paragraph-19 as follows:- “19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances 6 Patna High Court CWJC No.12470 of 2012 (3) dt.30-08-2012 in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.” is serious The Court is satisfied that the present case falls in the category of such cases discussed in N. Radhakishan (supra) where the proceedings must not be allowed to continue giving a latitude to the respondents for their own lapses. The Grievance Redressal Cell was created under the State Litigation Policy in order to reduce litigation both for 7 Patna High Court CWJC No.12470 of 2012 (3) dt.30-08-2012 the Government and the Courts. It appears to be of little concern to the respondents and the deponent has not even considered it relevant to deal with the same. The State Litigation Policy to the effect that litigation shall not be resorted to for the sake of litigating, appears to be of no concern to the deponent or the concerned department. It were as if the State Litigation Policy was merely some pious observation not relevant to the respondents. In conclusion it is held that the petitioner has already suffered the ignominy of a departmental proceeding for no lapses attributable to him ever since 30.8.2006 when enquiry report was submitted. There is not even a semblance of an explanation by the respondents even after the challenge before the Court. The respondents are therefore restrained from proceeding any further with the memo of charge dated

18.9.2004 and the proceedings initiated consequentially on

25.9.2004. The proceedings stand closed by the order of the Court. The writ application appears to be raising another important question for consideration with regard to use of public powers and the issue of answerability and accountability for the same. Public power has to be used for a public purpose and for the public good. Every repository of public power is answerable and accountable for the exercise or failure to exercise the power. There is no absolute protection 8 Patna High Court CWJC No.12470 of 2012 (3) dt.30-08-2012 jacket available to him irrespective of all considerations. It has already been noticed that the respondents have not put forth an iota of a semblance of satisfaction for the delay in the departmental proceeding. Per se arbitrariness is writ large and needs no further discussion. Directions are therefore issued to the Principal Secretary, Department of Health and Family Welfare, Government of Bihar to initiate a departmental proceeding against those, who so ever they may be, who kept the departmental proceeding pending without any justification not acting in the best interest of the government which reposed the power in trust with them. Such action must be initiated and concluded after due opportunity to the concerned within a maximum period of four months the date of receipt/production of a copy of this order. The writ application stands allowed. P. Kumar/- (Navin Sinha, J)