Martha Kumari v. The State of Bihar & Ors

Mr. Mukund Mohan Jha, AC to GP 31 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 16-12-2013 Heard learned counsel for the parties. As with regard to the following prayer made in this writ application “…assailing the communication made by the Director- in-Chief, Health Service, Govt. of Bihar under memo no. 760 (6) dated 06.08.2009 whereby and whereunder without providing adequate and reasonable opportunity of hearing, had imposed the punishment by way of stop of one increment without cumulative effect as well as he was further inclined to order for the consideration of the candidature on the strength of no work no pay for the absence period including that the period will be counted for the pension purpose without touching the merit of factual and legal aspects…”, in the light of the specific averments made in paragraph no. 14 reading as follows: “14. That it is submitted that from perusal of the aforesaid facts and circumstances as mentioned above, it 2 Patna High Court CWJC No.19762 of 2013 (2) dt.16-12-2013 appears that neither the documents/papers supplied to the petitioner as petitioner has sought for to defend her case nor the enquiry report of second show cause annexing the enquiry report has been asked to the petitioner as well as no opportunity for examination and cross-examination of witness have been provided to the petitioner and the impugned order has been passed by exercising the authority in arbitrary and malafide when as such the impugned order contained in Annexure-4 is fit to be quashed in the ends of justice” and its not being controverted in any of the paragraph of the counter affidavit, and specially when the averments made in paragraph nos. 12, 13 and 14 thereof only reads as follows: “12. That it is stated that in view of the above said letter a departmental proceeding was ordered under the signature of the then Director in Chief vide memo no. 976(6), dated 21.03.08 and a copy of there of ws served upon the petitioner inviting her show cause if any.

13. That it is stated that after due consideration over the show cause filed by the petitioner as well as oral and written statement the charges framed against the petitioner were found to be true in the report dated 15.12.08 submitted by the conducting officer of the departmental proceeding.

14. That it is stated that in view of the above report submitted by the conducting officer of the departmental proceeding, the petitioner was inflicted upon the above said punishment vide the memo no. 760 (6) dated 6.8.09”, this Court must hold that even though the petitioner had appeared before the Enquiry Officer in course of departmental enquiry and had participated in the enquiry, the resultant enquiry report, as contained in Annexure-B, was essentially to be supplied to the petitioner for eliciting his comments/reactions before passing of the impugned order of punishment. The issue relating to supply of enquiry report in a duly concluded departmental proceedings stands settled by a judgment of the constitution bench of Apex court in the case of Managing Director, ECIL, Hyderabad and Ors v. B. Karunakar and Ors.;{(1993) 4 SCC 727}, wherein it has been held that in each and every departmental proceeding, 3 Patna High Court CWJC No.19762 of 2013 (2) dt.16-12-2013 where a memo of charges is followed by a departmental enquiry, the enquiry report has to be supplied for eliciting the reaction/ comment to the findings recorded in the enquiry report before an order of punishment can be passed. It is true that in the aforesaid judgment, it was also indicated that non-supply of enquiry report as a matter of fact should not mechanically lead to quashing of the order of punishment by the Court unless prejudice on account of non- supply of the enquiry report to the delinquent is established, but then keeping in view the finding is based on certain documents and that even those documents were also not supplied to her, this Court would hold that non-supply of enquiry report in this case materially prejudiced the petitioner. That being so, the impugned order of punishment dated 06.08.2009 is hereby quashed and the matter is remitted to the Director-in-Chief, Health Services for passing a fresh order. In view of the fact that the copy of the enquiry report now is available to the petitioner through the counter affidavit, she must file her comment/reaction to the enquiry report within a period of one month from the date of receipt/production of a copy of this order, whereafter the Director-in-Chief will pass his final order within a period of four months of filing of reply by the petitioner in accordance with law. It is, however, made clear that punishment, if any, inflicted against the petitioner, would be referable to the date on which the earlier order of punishment had been passed. Let it be also made clear that this Court has not expressed any opinion on the merit of the case or the issue raised by the learned counsel for the State that the petitioner had 4 Patna High Court CWJC No.19762 of 2013 (2) dt.16-12-2013 participated in the enquiry and as such would be stopped from questioning the finding of the enquiry report. These all aspects being of details will be looked into and decided by the Director-in- Chief in accordance with law. With the aforementioned observation and direction, this writ application stands disposed of. Sujit/- (Mihir Kumar Jha, J)