John Tirki v. The State of Bihar & Ors.

proceeding, Mr. Singh has highlighted that the petitioner was also not given a reasonable opportunity of defending himself in the departmental proceeding, inasmuch as, the documents on which the complicity or otherwise of the petitioner could be established, were also never produced before the enquiry officer. Thus, summing up his submission, Mr. Singh, learned senior counsel for the petitioner has submitted that the impugned order of punishment against the writ petitioner cannot be sustained either on fact or in law.

7. Counsel for the State on the other hand has submitted that it would not be correct to say that the petitioner was not given reasonable opportunity of defending himself in the departmental proceeding specially when such charges against the petitioner were based on admitted documentary evidence.

8. As with regard to the case of Dr. A.K. Mishra, Civil Surgeon, he has referred to supplementary counter affidavit sworn and filed on 23.5.2008, wherein, it has been 5 stated that a departmental proceeding was also initiated against him and a decision as with regard to inflicting punishment against him was also under active consideration of the State Government. It has been accordingly contended by him that at least the point of parity in punishment was not available to the petitioner till an order of punishment was passed against Dr. Mishra, the then Civil Surgeon.

9. Explaining the case of Dr. Aman, the next Civil Surgeon, learned counsel for the State has submitted that whereas the charge against the petitioner was related to acceptance of joining of 48 persons illegally and fraudulently appointed by the Director in league with with Dr. Mishra, the then Civil Surgeon, the charge against Dr. Aman, the successor Civil Surgeon was confined to acceptance of joining of only two of such persons and thus the punishemtn inflicted on Dr. Aman could not be compared with the punishment inflicted on the petitioner.

10. In the opinion of this Court, while there would be no difficulty in rejecting the 6 submission of the learned senior counsel for the petitioner as with regard to the parity of punishment between him and Dr. Aman, inasmuch as, from the memo of charge of the petitioner and the order of punishment in the case of Dr. Aman, it would be clear that there was a world of difference in the charges against the both of them. As noted above, the charge against the petitioner and the then Civil Surgeon Dr. Mishra was that they were responsible in causing loss to the State exchequer by accepting joining of those 48 employees whose appointment was claimed to have been made illegally by the Directorate but, the charge against Dr. Aman was that he being successor of Dr. Mishra had accepted joining of only two of them.

11. This aspect of the matter becomes more clear from the enquiry report submitted in the case of Dr. Aman, wherein, it has been clearly held that it was actually the petitioner who had not only been responsible in issuing fraudulent 48 appointment letters in an illegal manner but, having issued it, had personally gone to the concerned 7 respective In-charge Medical Officer for its being acted upon by way of acceptance of their joining as would be apparent from the following findings of enquiry officer:- ^^…d‰ Jh izHkkr dqekj ,oa Jh jfoUnz dqekj ds fu;qfDr i=ksa esa Jh tkWu fVdhZ dk vk/kk{kj mu i=ksa dks mUgha }kjk fuxZr djus dh lkjh izfdz;kvksa ;su dsu izdkjs.k fd;k tkuk] Jh fVdhZ }kjk gh fuxZr gksus dh frfFk dks gh rqjar izHkkjh fpfdRlk inkf/kdkjh ukScriqj dks [kqn tkdj gLrxr djkuk] rFkk Vafdr fu;qfDr i= esa iq:"k d{k lsod in dks dkVdj vkns’kiky fy[kuk rFkk nwljh txg OgkbVuj yxkdkj vkns’kiky fy[k nsuk] iznf’kZr djrk gS fd ;g QthZ fu;qfDr Jh tkWu fVdhZ }kjk fd;s x;s QthZ fu;qfDr;ksa ds "kM;a= dk ,d fgLlk gS] mUgha ds tkylkth dk urhtk gS ftlds ihNs ds vlyh lw=/kkj dks idM+uk bl "kM;a= dks mtkxj djus ds fy, vko’;d gksxkA …[k‰ Mk0 ,l0 ds0 veu fuyfEcr flfoy ltZu] iVuk] fulansg Jh izHkkr dqekj ,oa Jh jfoUnz dqekj dh vuqdEik ds vk/kkj ij dh xbZ fu;qfDr ds i=ksa dks fcuk tkWp fd, gLrk{kfjr dj fuxZr djkus ds nks"kh gSa fdUrq Mk0 veu }kjk nksuks QthZ fu;qfDr;ksa dk irk pyus ds i’pkr dh xbZ rqjar dkjZokbZ elyu mu fu;qfDr;ksa dks jn~n dj LFkkuh; Fkkuksa esa izkFkfedh ntZ djkus ds fy, vkns’k nsuk ladsr djrk gS fd mu nksuksa QthZ fu;qfDr;ksa esa Mk0 veu dh fu;r mruh dyqf"kr ugha FkhA izR;{kr% iwoZ ls vk jgs tkyh fu;qfDr;ksa ds xksj[k/ka/ks ds] viuh ykijokgh dh otg ls] Mk0 veu f’kdkj yxrs gSaA**

12. In that view of the matter, the charge culpability itself distinguish nature misconduct committed by the petitioner vis-(cid:224)-vis Dr. Aman. Dr. Aman, in fact, had also taken immediate step for getting his only two of his appointments cancelled by lodging a First Information Report, whereas, the petitioner 8 was found to be involved in the racket of being instrumental not only preparation of forged appointment letter but also going out of way for its being acted upon. In that view of the matter, the plea of discrimination in the matter of punishment raised by the petitioner as against Dr. Aman, who has also not been made party to this writ application, must fail.

13. The submission of the learned senior counsel for the petitioner of there being no action against the other civil surgeon Dr. Mishra can also not be accepted, inasmuch as, a departmental proceeding against him is still going on and, therefore, it cannot be said that the Government has left Dr. Mishra untouched.

14. Coming to the issue of procedural irregularity vitiating the impugned order of punishment against the petitioner, it has to be taken into consideration that the enquiry officer in his enquiry report dated 31.5.2003 has indicated the non-cooperative attitude of the petitioner, inasmuch as, even after his being placed under suspension, he did not 9 hand over the charge of the post of Head Clerk of the office of Civil Surgeon, as a result whereof, the enquiry proceeding was obstructed by the deliberate efforts of the petitioner himself. In this regard, he has taken note of the written application dated

8.2.2003 of one Gopal Sharma, senior most Clerk in the office of Civil Surgeon, who was directed to take over the charge of the duties of the petitioner of the post of Head Clerk. Mr. Sharma had, in fact, requested the Civil Surgeon of Patna district to get the inventory of the records and documents made available to him from the petitioner and when the petitioner was directed to handover the charge to Sri Sharma by the order of the Civil Surgeon dated 8.2.2003, he had not complied the said order, whereafter, the First Information Report had to be lodged against the petitioner on 11.2.2003 by the civil surgeon for removal and disappearance of the relevant registers and documents relating to illegal appointment and transfer having a direct complicity of the petitioner.

15. From the reading of the enquiry 10 report, it is also clear that the petitioner was given adequate opportunity by the enquiry officer and in this context, reference of letter no. 201 dated 28.2.2003 of the Enquiry Officer to the petitioner followed by his another letter no. 302 dated 28.5.2003 giving him an opportunity to submit his written statement of defence would go to show that right from the inception the petitioner was given adequate opportunity to defend himself. It is rather interesting to note here that the petitioner, who had himself made the document disappear and did not hand over the charge of the office of the Head Clerk, was trying to disrupt the enquiry by filing applications before the Enquiry Officer for supply of those very documents to enable himself to file written statement of defence. From the reading of the enquiry report, it also becomes clear that the enquiry was held on 21.4.2003 in which the petitioner had appeared

25.4.2003 petitioner, in course of enquiry proceeding, had submitted his written statement of defence. His request for supply of transfer 11 and posting order of the 48 persons appointed on the basis of forged appointment letters was specifically dealt by the Enquiry Officer and he had held that when inventory of the official records of the post of Head Clerk held by the petitioner was prepared, the files, containing appointment and transfer orders of those 48 persons, were missing and it was the petitioner who alone could have explained the availability of such files and documents as he was the custodian and the in- charge Headclerk prior to his being suspended for those very allegation.

16. It also appears that in course of enquiry proceeding in the present case of the petitioner on 19.5.2003, the Civil Surgeon Dr. Mishra had appeared and had made an unequivocal clear statement before the enquiry officer that none of the order of transfer and posting were issued by him or had contained his signature. Under such circumstances, when the petitioner was also given a last opportunity to submit his written statement of defence by the enquiry officer vide his letter no. 489 dated 12

13.5.2003 and the petitioner came out again with only an evasive reply dated 18.5.2003, the enquiry officer had been left with no option but to hold that the petitioner was deliberately delaying the disposal of the departmental enquiry. In any event, the enquiry was held in presence of the petitioner on 23.5.2003 and the defence of the petitioner that in the alleged forged appointment/transfer/posting orders, there was also a role played by Gopal Sharma, Senior Clerk and Ramjee Singh, Clerk was gone into and both of them, namely, Gopal Sharma and Ramjee Singh had appeared before the Enquiry Officer and had given their statement against the petitioner which could not be shaken in course of their cross examination by the petitioner on 29.5.2003.

17. This Court also must indicate here that the petitioner was deliberately trying to create a plea of prejudice in his ongoing departmental proceeding by raising a plea of non-supply of document when in fact it was the petitioner who himself was the custodian of such documents and was being repeatedly 13 asked by the Controlling Officer, namely, Civil Surgeon, Patna to handover such document as would be evidenced from the memo no. 547 dated 18.1.2003 (Annexure-A), memo no. 815 dated 21.5.2003 (Annexure-B), memo no. 857 dated 30.1.2003 (Annexure-C), memo no. 83 dated 29.1.2003 (Annexure-D), memo no. 134 dated 11.2.2003 (Annexure-E). All these documents, therefore, are by themselves is the proof of the fact that the petitioner had himself taken away the relevant records and files under his custody and did not handover the charge of post for making those documents available and, thereafter, when the charge of his post was assumed for preparation of inventory reporting missing of such documents and files, he had started demanding those documents from the Enquiry Officer.

18. In that view of the matter, when the petitioner facing criminal prosecution for taking those documents, he cannot be heard to say that he was prejudiced in the departmental proceeding on account of non-supply of the documents.

19. From the reading of the enquiry 14 report and its aforesaid analysis, this much would be clear that sufficient opportunity was given to the petitioner to defend himself in course of his departmental proceeding but, he himself had adopted a wholly non- cooperative attitude simply with a view to delay the disposal of the departmental proceeding for concealing his misconduct.

20. Thus, having held that there was no procedure infirmity in the departmental proceeding against the petitioner whether he was prejudiced on account of non-supply of documents nor even the order of punishment as against him for the proven charges, can be said to be vitiated, this Court has to consider the last submission of the learned senior counsel as with regard to the discrepancy and treating the petitioner differently as against Dr. A.K. Mishra, the Civil Surgeon.

21. The findings of the Enquiry Officer, holding that the order of appointment and transfer of posting issued under the signature of the petitioner in the capacity of Head Clerk pertaining to the persons 15 fraudulently appointed, clearly went to show racket illegal appointment/transfer/ posting in the office of Civil Surgeon was being carried out with the active connivance of the petitioner. The enquiry officer in this context has also gone into the order passed of Jatesh Chaudhary, Male Ward Servant and Vidya Sagar, Dresser whose appointments were found to be forged but, their order of posting was issued with the signature thereon of the petitioner as was also admitted by him. Thus, the petitioner cannot get benefit only because he was also alleging that on the order of transfer/posting/appointment, there was also the signature of other Clerks and/or of Dr. Mishra, the civil surgeon.

22. In fact, when an earlier order of punishment dated 18.10.2003 based on the aforementioned findings of the enquiry officer was passed against the petitioner was passed dismissing him from service, the whole issue was also examined by this Court in his earlier writ application CWJC No. 13760 of 2003, wherein, this Court in its order dated 16

7.5.2004 had as follows:- “In paragraph 2 of the order it has been clearly observed that at the State level the report submitted by the enquiry officer was scrutinized and that the allegations/charges against petitioner/delinquent employee proved. It further says that consequent to the proof of charges, major punishment was proposed to be awarded. A perusal of this paragraph would clearly show that the disciplinary authority was bound by the orders/discussions of the State Government. Annexure-5 does not consider the charges, the evidence, the report of the enquiry officer or the defences raised by the petitioner. It simply says that at the State level the second show cause notice was considered in detail, but in absence of new facts punishment of dismissal can be awarded. In the opinion of this Court, the order contained in Annexure-5 firstly does not show application of mind and secondly it shows to have been influenced by certain discussions made at the State level or the consideration made at the State level. When an order is to be passed by an authority then the authority must record its independent finding. It cannot say that as he has been ordered by the superior authority to pass an order the authority would pass such an order. If such a procedure is adopted, then the order passed by the authority does not remain to be an order passed by the said authority, but would also be termed to be 17 a bad order passed at the behest of the superior authority. In the present matter, the tenor and texture of the language used in the order leave no room for doubt that the order was passed at the behest of the State Government. Even otherwise the order does not show application of mind, nor does it show that for what reason the charges were found proved or for what reason the defence were rejected. The order contained in memo no. 1566 (4) dated 18.10.2003 is hereby quashed. The respondent authority shall now proceed further in the matter. It consider petitioner, shall take into consideration the defences and show cause filed by the petitioner and shall pass a speaking order in the matter. As a consequence of quashing of annexure-5, the petitioner who was dismissed will have to be reinstated. He will be reinstated on the same post in the same position as was occupied by him before the order dated

18.10.2003 was issued.”

23. In fact, the respondents had passed a fresh order of punishment i.e. the impugned order against the petitioner by recording the following reasons:- (cid:222)…4‰ ekuuh; mPp U;k;ky; iVuk ds mDr vkns’kksa ds vuqikyu esa Jh frdhZ ds fo:) yxk;s x;s vkjksiksa] tkWp inkf/kdkjh ls izkIr tkWp izfrosnu rFkk Jh frdhZ ls izkIr fnukad 13-9-2003 ds f}rh; dkj.k i‘PNk izR;qrj dh iqu% xgu leh{kk esjs }kjk dh x;hA tkWp 18 izfrosnu esa LFkkukUrj.k inLFkkiu ds uke QthZ fu;qfDr i= ij Jh frdhZ dk gLrk{kj ik;k x;k ftlds cpko esa Jh frdhZ us vius izR;q(cid:217)kj esa dksbZ Bksl vk/kkj ugha fn;k gS Jh frdhZ us vius fnukad 13-9-2003 ds izR;q(cid:217)kj esa rRdkyhu flfoy ltZu ,oa foHkkxh; dk;Zokgh ds lapkyu inkf/kdkjh] {ks=h; mifuns”kd] LokLF; lsok,W] iVuk ize.My iVuk ds fo:) Hkh vkjksi yxk;k gS tks mfpr ughs gSA iz/kku fyfid ds in ij dk;Zjr jgrs gq, Jh frdhZ dk ;g nkf;Ro Fkk fd os QthZ fu;qfDr ds okLrfod rF;ksa dks vius mPpkf/kdkjh ds le{k ykrs vkSj lafpdk ds ek/;e ls Li"V earO; nsrs A ijUrq blds foifjr Jh frdhZ us LFkkukUrj.k@inLFkkiu QthZ fu;qfDr lEcU/kh ekeyksa esa viuk iw.kZ ;ksxnku fn;k gS ftlls Li"V gS fd bl vfu;fer dk;Z esa Jh frdhZ lgHkkxh utj vkrs gSA iz/kku fyfid dk nkf;Ro gS fd vfu;fer dk;ksZ dks mtkxj djrs ;k ml dk;Z ls vyx gks tkrs ysfdu bugksaus okLrfod rRoksa dks fNikdj rRdkyhu flfoy ltZu] iVuk dks xqejkg dj vius futh LokFkZ gsrq dk;Z fd;k] tks xyr gSA KkrO; gks fd xyr dk;Z esa pqipki lkFk nsuk Hkh vkjksi ds ifjf/k esa gh vkrk gSA ,slh fLFkfr esa Jh frdhZ }kjk fnukad 13-9-2003 dks lefiZr f}rh; dkj.k i‘PNk@izR;q(cid:217)kj fo’oluh; ,oa fopkj.kh; ugha gSA …5‰ vr% mDr f}rh; dkj.k i‘PNk@izR;q(cid:217)kj fnukad 13- 9-2003 ds izR;q(cid:217)kj dks vLohd‘r djrs gq, mDr tkyh fu;qfDr djus esa lgHkkfxrk ds izekf.kr xaHkhj vkjksi ds fy, Jh frdhZ dks ljdkjh lsok ls rRdkfyd izHkko ls c[kkZLr fd;k tkrk gSA(cid:222)

24. The appellate authority in his reasoned order dated 30.3.2005 had also dealt each and every aspect of the matter in the following terms:- (cid:222)4- fuEufyf[kr dafMdkvksa esa Jh fVdhZ }kjk mBk;s x;s izR;sd fcUnq dh miyC/k vfHkys[kksa ds vk/kkj ij tk¡p dj eSa viuk vkns’k ikfjr dj jgk gw¡ %& 19 …1‰ lapkyu inkf/kdkjh us mUgsa izR;{k vFkok vizR;{k :i ls vuqca/k esa yxk, x, vkjksiksa ds fy, lh/ks nks"kh ugha Bgjk;k gSA lapkyu inkf/kdkjh }kjk lefiZr tkWp izfrosnu ds voyksdu ls Li"V gksrk gS fd lapkyu inkf/kdkjh ds le{k Jh tkSu fVdhZ }kjk vius vkosnu fnukad 14-2- 20003 esa Lohdkj fd;k x;k gS fd QthZ fu;qfDr @ LFkkukUrj.k fu;qfDr @ inLFkkiu vkns’k esa muds gLrk{kj ds lkFk&lkFk Jh xksiky ’kekZ] ojh; fyfid ,oa Jh jketh flag] fyfid dk gLrk{kj gSA bl izdkj Jh fVdhZ }kjk Lo;a vkjksi dks Lohdkj fd;k x;k gSA vr% Jh fVdhZ dk ;g rdZ fd lapkyu inkf/kdkjh }kjk mUgsa lh/ks nks"kh ugha Bgjk;k gS] xyr gSA …2‰ Jh fVdhZ us vius cpko esa vihy vH;kosnu esa nwljk fcUnq ;g mBk;k gS fd muds lg&vkjksih Mk0 v:.k dqekj feJk] rRdkyhu flfoy ltZu] iVuk ds gLrk{kj dh laiqf"V gLrfyfi fo’ks"kK ls djk;h tk;A Mk0 v:.k dqekj feJk] rRdkyhu flfoy ltZu] iVuk ij vyx ls dkjZokbz dh tk jgh gSA muds glrk{kj dh laiqf"V glrfyfi fo’ks"kK ls djk;h tk; ;k ugha ls Jh frdhZ dk nks"k de vFkok vf/kd ugha gksrk gSA vr% ;g cpko ekU; ugha gSA …3‰ tgk¡ rd rRdkyhu flfoy ltZu] iVuk Mk0 v:.k dqekj feJk ,oa vU; deZpkfj;ksa ds bl voS/k@QthZ dk;Z&dyki esa ’kkfey gksus dk iz’u gS] bl laca/k esa vU; yksxksa ds fo:) Hkh vyx&vyx dk;Zokgh tkjh gS vksj mDr vk/kkj ij Jh fVdhZ dks mu ij vkjksi esa vkReLohdkjksfDr c;ku ds ckn Hkh dksbZ jkgr nsus dk iz’u ugha mBrk gSA …4‰ tgkW rd Jh fVdh dk vius vihy vH;kosnu esa ;g dFku fd fdlh Hkh dk;Z ds fy, os lh/ks mRrjnk;h ugha Fks] cfYd dk;kZy; ds vU; fyfidksa ds ftEes vkoafVr dk;Z ds fuiVkjs esa mudk ek/;e viuk;k tkrk FkkA vkxz muds }kjk viyh vH;kosnu esa dgk x;k gS fd ftu 48 deZpkfj;ksa dh lwph lfgr f’kdk;r flfoy ltZu] iVuk …Mk0 ,l0ds0veu‰ }kjk funs’kky; dks miyC/k djk;k x;k Fkk mlesa ,d gh uke dh iqujko‘fr dj lwph dks yEck djds fn[kk;k x;k gSA bl lEcU/k esa oLrqfLFkfr ;g gS fd iz/kku fyfid dk;kZy; ds i;Zos{kd ds :i esa dk;Z dk fu"iknu djrk gSA iz/kku fyfid dks ns[kuk gS fd mlds v/khu ds dksbZ fyfid @deZpkjh vxj Hkzked@QthZ dk;Z izLrko miLLFkkfir djrs gSA rks mls ogha muds }kjk jksd fn;k tkuk pkfg, rFkk bldh tkudkjh vius fu;q=h inkf/kdkjh dks nsuk pkfg,A Jh fVdhZ ds }kjk dksbZ fujks/kkRed dkjZokbZ ugha dh x;h cfYd QthZ fu;qfDr@LFkkukUrj.k@inLFkkiu dks dk;kZfUor gksus fn;k x;k ftlds nkf;Ro ls os eqDr ugha gks ldrs gSA rFkk iw.kZr% nks"kh gSA tk¡ rd ,d gh uke dh iqujko‘fr djds lwph dks yEck dj fn[kkus dk iz’u gS] mlesa rF; ;g Hkh gS fd mug iqujko‘Rr ukeksa ds ckn Hkh vusd uke gSa ftudh iqujko‘fRr ugha gS vkSj fufoZjks/k :i ls ftudh QthZ fu;qfDr@LFkkukUrj.k@inLFkkiu dk dnkpkj izekf.kr gqvk gS ftlesa Jh fVdhZ nks"kh izekf.kr gSA vr,o bl lEcU/k esa Hkh Jh fVdhZ ds cpko dks Lohkdj ugha fd;k tk ldrk gSA 20 …5‰ vihy vH;kosnu esa Jh fVdhZ }kjk dgk x;k gS fd tk¡p lEiUu djkus esa muds }kjk dHkh Hkh vlgk;ksxkRed dkjZokbZ ugha dh x;hA Jh fVdhZ ds bl dFku ij eSa lapkyu inkf/kdkjh ds vf/kxe dk fuEufyf[kr va’k vn~n‘r dj jgk gw¡%& Jh tkSu fVdhZ }kjk lacaf/kr foHkkxh; dkjZokbZ dk vuqca/k vkjksi v/kksgLrk{kjh ls ekax dh x;hA QyLo:i bl dk;kZy; ds i=kad 489 fnukad 13-5-2003 ds }kjk lHkh okafNr dkxtkr Jh fVdhZ dks miyC/k djkrs gq, vafre ekSdk fyf[kr cpko c;ku dk fn;k x;k rFkk bl vk’k; dh lwpuk miLFkkiu inkf/kdkjh dks Hkh nh x;hA Jh tkSu fVdhZ …fuyfEcr iz/kku fyfid‰ flfoy ltZu dk;kZy;] iVuk ds }kjk fnukad 16-5-2003 dks tks fyf[kr oDrO; izLrqr fd;k x;k mlds voyksdu ls Li"V gksrk gS fd muds }kjk vuko’;d i=ksa dh ppkZ dj Vky&eVksy dh uhfr viukrs gq, tk¡p dk;Z dks ckf/kr fd;k tk jgk gSA bl dk;kZy; ds i=kad 522 fnukad 17-5-2003 ds }kjk iqu% foHkkxh; dk;Zokgha dh tk¡p dh frfFk 23-5-2003 dks fu/kkZfjr djrs gq, flfoy ltZu] iVuk dks tks miLFkkiu inkf/kdkjh gSa dks muds dk;kZy; ds i=kad 1650 fnukad 22-02-2003 esa mYysf[kr vuqiyC/k dkxtkrksa dh iwjh fooj.kh ds lkFk miLFkkfir gksus gsrq funsf’kr fd;k x;kA mi;qZDr ls Li"V gS fd Jh fVdhZ us foHkkxh; dk;Zokgh ls lg;ksx ugha fn;kA …6‰ Jh fVdhZ }kjk ;g Hkh dgk x;k gS fd lapkyu inkf/kdkjh }kjk mUgsa ckafNr dkxtkr miyC/k ugha djk, x,A bl lEca/k esa lk{;ksa ds vk/kkj ij fLFkfr Li"V gksrh gS fd vkjksfir @fuyafcr gksus ds ckn Jh fVdhZ }kjk dk;kZy; ds dkxtkrksa dk izhkkj vius izfrLFkkuh dks ugha fn;k x;kA muds }kjk dbZ fuxZr iath Hkh fnup;kZ fyfid ls ek¡x dj ys fy;k x;k gS ,oa iqu% mls okil ugha fd;k x;kA Jh fVdhZ ds vkyehjk ds dkxtkrksa dk izhkkj buHksUVjh ds }kjk nwljs deZpkjh dks fnyk;k x;k ysfdu Jh fVdhZ ds }kjk xk;c fd;k x;k dkxtkr@vfHkys[k okil ugha fd;k x;k ftlds dkj.k muds fo:) Fkkuk esa izkFkfedh ntZ djok;h x;hA vkjksi vuqca/k ds lkFk gha mUgsa flfoy ltZu] iVuk dk i=kad 415 fnukad 12-1-2003 rFkk izHkkjh fpfdRlk inkf/kdkjh] izkFkfed LokLF; dsUnz] fc(cid:216)e] iVuk dk i=kad 383 fnukad 19-10-2002 dh izfr mUgsa izkIr djk;h tk pqdh FkhA mlds ckn Hkh dkxtkrksa dks Lo;a xk;c dj] vU; dkxtkrksa dh ekWx djuk rFkk mUgsa miyC/k ugha djkus dk cgkuk cukuk] ;g ek= vkjksi dks Vky&eVksy rFkk mlls cpus dh prqjkbZ ek= gSA vr,o Jh fVdhZ dk ;g dFku Hkh Lohkdj ugha fd;k tk ldrk gSA …7‰ Jh fVdhZ ds }kjk dFku lefiZr fd;k x;k gS fd Mk0 v:.k dqekj feJk] rRdkyhu flfoy ltZu] iVuk ds gLrk{kj dh xgu tkWp vko’o;d gSA ;g dFku Mk0 feJk ds vkjksi ls lEcfU/kr gS ftl lEcU/k esa vyx ls dk;Zokgh dh tk jgh gSA …8‰ Jh fVdhZ ds }kjk vkxs dgk x;k gS fd Mk0 ,l0ds0 veu tks Lo;a xyr fu;qfDr ds vkjksi esa vkjksfir gS] 21 mudk dFku vkReHkkfjr ugha gks ldrk gS rFkk mUgksaus xyr <aax ls Jh fVdhZ dh Qalkus dk dke fd;k gSA Mk0 ,l0ds0 veu ij muds fo:) vkjksi ds fy, vyx ls dkjZokbZ dh x;h gSA Jh fVdhZ ds fo:) dkjZokbZ dk vk/kkj dsoy Mk0 veu dk dFku ugha gS cfYd vU; lk{; ,oa muds vius c;ku vkfn lHkh lk{;ksa ds vk/kkj ij mu ij dkjZokbZ dh x;h gSA vr% Jh fVdhZ dk ;g dFu Lohdkj ;ksX; ugha gSA …9‰ Jh fVdhZ us vius vihy vH;kosnu dh dafMdk &7 esa dFku lefiZr fd;k gS fd f}rh; dkj.k i‘PNk izkIr gksus ls iwoZ mudk lsok lekfIr dj fn;s tkus dh [kcj izeq[k nSfud lekpkj i= (cid:222)nSfud tkxj.k(cid:222) ds fnukad 10-3-2003 ds laLdj.k esa izdkf’kr djkus dk vfHkizk; Li"V gS fd dksbZ u dksbZ fojks/kh lf(cid:216); :i ls mUgsa viekfur djus ds fy, ijkftr djus esa rRij gSA bl lEcU/k esa rF; ;g gS fd foHkkxh; i=kad 1342 …4‰ fnukad 2-9-2003 ds }kjk Jh fVdhZ ls f}rh; dkj.k i‘PNk iwNk x;k FkkA Jh fVdhZ ls f}rh; dkj.k i‘PNk dk mRrj muds vH;kosnu fnukad 13-9-2003 ds }kjk funs’kd izeq[k dks mlh frfFk dks …13-09-2003‰ izkIr djk;k x;k gSA rRi’pkr mldh leh{kk ds ckn vuq’kklfud inkf/kdkjh }kjk vkns’k la[;k 1566 …4‰ fnukad 18-10-2003 ds }kjk fuxZr fd;k x;k gSA vr% lekpkj i= esa ;g lekpkj dc vkSj dSls izdkf’kr gqbZ] blls bl ekeys dk dksbZ laca/k ugha gSA …10‰ Jh fVdh ds }kjk vihy vH;kosnu esa dgk x;k gS fd lapkyu inkf/kdkjh dk i=kad 489 fnukad 13-5-2003 ls fy[ks i= ls Li"V fofnr gksrk gS fd os viuh xyr /kkj.kk eu esa cuk pqds Fks vkSj vk?kkr igq¡pkuk muds fu’kkus esa FkkA bl lEcU/k esa rF; ;g gS fd mDr i= ds }kjk lapkyu inkf/kdkjh us Jh fVdhZ dks tkWp esa lg;ksx ugha djus ds lEca/k esa rkdhn djrs gq, lalwpu fd;k gS tks mudk drZO; FkkA ;g dksbZ vU;Fkk dkjZokbZ ugha FkhA vr,o bl lEcU/k esa Hkh Jh fVdh ds dFku dks Lohdkj ugha fd;k tk ldrk gSA …11‰ Jh fVdhZ }kjk vihy vH;kosnu esa dgk x;k gS fd dfri; deZpkfj;ksa dk LFkkukUrj.k@lEiqf"V dk vkns’k funs’kky; ls fuxZr fd;k x;k Fkk rFkk flfoy ltZu ds foosdkf/kdkj dks muds }kjk pqukSrh nsuk iz/kku fyfid ds ekSfyd d(cid:217)kZO; esa ugha vkrk gSA vr,o vfu;fer LFkkukUrj.k@ inLFkkiu ;k lek;kstu esa ftEesnkj Bgjkuk }s"kiw.kZ fu.kZ; gks tkrk gSA tcfd flfoy ltZu }kjk fdlh Hkh fu;qfDr ls bUdkj fd;k x;k gSA bu rF;ksa ds lEcU/k esa iwoZ dh dafmdk esa Hkh foospu fd;k x;k gS fd lapkyu inkf/kdkjh ds le{k Jh fVdhZ }kjk vkReLohdkjksfDr c;ku lefiZr fd;k x;k gSA lapkyu inkf/kdkjh }kjk vkjksi dks izekf.kr ik;k x;k gSA lapkyu inkf/kdkjh }kjk fof/kor lHkh vkSipkfjdrk dk fuokZg dj fu;ekuqlkj tk¡p fd;k x;k gSA 5- Jh fVdhZ dk ;g dFku fd flfoy ltZu ds foosdkf/kdkj dks pqukSrh nsuk iz/kku fyfid dk d(cid:217)kZO; esa ugha vkrk gSA vfHkys[k esa miyC/k lHkh rF;ksa ls Li"V gS fd Jh fVdhZ ds fo:) vfu;fer fu;qfDr djus] vius dRrZO; dk ikyu ugha djus dk vkjksi izekf.kr gSA flfoy ltZu us vius vf/kdkjh dk nq:i;ksx fd;k] mlds fy, 22 mudks vyx ls ltk nh x;h gSA ysfdu Jh fVdhZ dk ;g dFku ekU; ugha gSA 6- vr,o ekeys ds lEcU/k esa lHkh rF;ksa ij fopkj ,oa lk{;ksa ds voyksdu ds ckn Jh fVdhZ ds vihy vH;kosnu dks vLohd‘r fd;k tkrk gS rFkk funs’kd izeq[k] LokLF; lsok,W] fcgkj] iVuk }kjk ikfjr Jh fVdhZ dh lsok ls c[kkZLrxh dk vkns’k dks ;Fkkor~ j[kus dk vkns’k fn;k tkrk gSA(cid:222)

25. Though the complicity and the involvement of the petitioner in the racket of illegal appointment in view of the aforesaid findings of the disciplinary authority and the appellate authority is writ large on the face of record but it cannot be forgotten that whatever charge of conspiracy has been brought to the petitioner in capacity of his being the Headclerk of the office either in respect of acceptance of joining 48 persons having forged appointment letters and issuance of their order of posting, the same cannot be of a bigger magnitude than that of Civil Surgeon Dr. Mishra himself under whose signature such order of transfer and posting were allegedly issued and acted upon. Dr. Mishra, in no view of the matter, therefore, can be said to be facing lesser charges than the petitioner and if the Government, till date, has not passed a final order of punishment holding Dr. Mishra, the then Civil Surgeon to be guilty 23 and has kept the departmental proceeding against him pending, there would be no justification punishing petitioner in isolation.

26. Counsel for the state, however, would submit that the counter affidavit in this case was sworn on 12.9.2005 and he is not aware of the present position.

27. In the opinion of this Court, the parity in the matter of punishment has to be maintained by the disciplinary authority as was held by the Apex Court in the case of Director General of Police & Ors. Vs. G.Dasayan reported in 1998(2)SCC 407, in the case of T.M.A. Pai Foundation & Ors. (II) Vs. State of Karnataka & Ors. reported in 1993(4)SCC 286, in the case of Basti Ram Vs. Union of India & Ors. reported in 1996(3)SLR 308 and again in the case of Anand Regional Coop. Oil Seedsgrowers’ Union Ltd. Vs. Shaileshkumar Harshadbhai Shah reported in 2006(6)SCC 548, wherein, it was held as follows:- “27. There is, however, another aspect of the matter which cannot be lost sight of. Identical allegations were made against seven persons. The management did not take serious note of misconduct committed by six 24 others although they were similarly situated. They were allowed to take the benefit of the voluntary retirement scheme.”

28. From the fact that Dr. A.K. Mishra, the then Civil Surgeon had continued in service and was allowed to retire without there being any order of punishment against him whereas the petitioner has been subjected to an order of punishment by way of dismissal from service on 26.8.2004 would go to show that a person having equally graver charge was left untouched at least in his entire service career and, therefore, the quantum of punishment against the petitioner would require reconsideration by the Principal Secretary of the Health Department, inasmuch as, the doctrine of proportionality in the matter of awarding of punishment will have to be followed by the respondents.

29. The Writ Court in appropriate cases in exercise of power under Article 226 can always direct the disciplinary authority to reconsider its decision as with regard to quantum of punishment. Reference in this connection may be made to the judgment of the 25 Apex Court in the case of Om Kumar & Ors. Vs. Union of India reported in 2001(2)SCC 386, wherein, it was held as follows:- “71. Thus, from the above principles and decided cases, it must be held that when an administrative decision relating punishment disciplinary case is questioned as “aribtrary” under Article 14, the court is confined to Wednesbury Prinicples as a secondary reviewing authoirty. The court will not apply proportionality a primary reviewing court because no issue of fundamental freedoms discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment.”

30. As a matter of fact, this aspect of the matter was again considered by the Apex Court in the case of Coimbatore District 26 Central Cooperative Bank Vs. Coimbatore District Central Cooperative Bank Employees Assn. & Anr. reported in 2007(4)SCC 669, wherein, the earlier judgment of the Apex Court in the case of M.P. Gangadharan Vs. State of Kerala was followed by laying down the law in following words:- “34. As observed by this Court in M.P. Gangadharan v. State of Kerala the constitutional requirement judging question reasonableness and fairness on the part of the statutory authoirty must be considered having regard to the factual matrix in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the Court must be satisfied that a case has been made out for exercise of power of judicial review. The Court observed that we are not unmindful of the development of the law that from doctrine “Wednesbury unreasonableness”, the Court is leaning towards the doctrine of “proportionality”. But in a case of this nature, the doctrine of proportionality applied having regard to the purport and object for which the Act was enacted.” 27

31. Thus, in the light of the aforementioned law laid down by the Apex Court, this Court would remit the matter back to the Principal Secretary, Health to reconsider mateials on record for passing a fresh order of punishment against the petitioner, which must be having parity in the light of punishment imposed on Dr. A.K. Mishra, the then Civil Surgeon. Such a decision in the case of the petitioner must be taken within a period of six months from the date of receipt/production of a copy of this order or from the date of passing an order of punishment againt, if any, Dr. A.K. Mishra, the then Civil Surgeon, whichever is later. If the Principal Secretary of the Health Department would find that the petitioner is still liable to be inflicted with the same punishment of dismissal of service, he will not only afford opportunity hearing petitioner demonstrating that such order of punishment would be disproportionate and not in parity with the order of punishment that has been passed against Dr. A.K. Mishra but would also 28 record reasons in support of his order.

32. Any financial benefit to the petitioner, however, would abide by the fresh decision to be taken by the Principal Secretary of the Health Department and for the time being the petitioner will not be paid any further amount beyond what has already been paid to him prior to the passing of the impugned order of punishment and its being affirmed by the appellate authority in the two impugned orders.

33. With the aforesaid obsertins and direction, this writ application is disposed of. (Mihir Kumar Jha, J.) Patna High Court Dated the 30th of September, 2010 N.A.F.R./Rishi