Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21210 of 2012 ====================================================== Dr. Sheo Nandan Sharma S/O Late Hardwar Sharma R/O Lakhibagh Manpur, P.S.- Muffasil, District- Gaya Versus .... .... Petitioner/s 1. The State Of Bihar 2. Principal Secretary Health & Family Welfare Department, Government Of Bihar, Patna 3. Joint Secretary Health & Family Welfare Department, Government Of Bihar, Patna 4. Deputy Director, Health Service, Government Of Bihar, Patna 5. Incharge, Tuberculosis Section, State Health Society Pariwar Kalyan Bhawan, Sheikhpura, Patna-14 6. Civil Surgeon-Cum-Chief Medical Officer, Jehanabad 7. Civil Surgeon-Cum-Chief Medical Officer, Gaya .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Vivek Prasad, Adv. For the State : Mr. Ram Balak Mahto AG & Mr. Prabhu Narayan Sharma AC to AG. For respondent no. 5 : Mr. K. K. Sinha, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 21-11-2013 Heard learned counsel for the parties. The petitioner in this writ application has assailed the order of punishment as contained in Memo No. 874 dated 13.07.2012 (Annexure-10), whereby and whereunder, the earlier order of punishment of the petitioner dated 26.11.2011 has been modified to the extent of withholding of two increments with cumulative effect has been reduced to withholding of two increments with non cumulative effect. Mr. Vivek Prasad, learned counsel appearing on behalf of the petitioner while assailing the aforementioned Patna High Court CWJC No.21210 of 2012 (2) dt.21-11-2013 2 order has basically concentrated on the aspect that there is a clear discrimination in the matter of passing of the order of punishment, inasmuch as, for the same charge when the District T.B. Officer was also held to be responsible, his being not at all subjected to any recovery and the cost of the entire medicine of Rs. 1,75,000/- only to be recovered from the petitioner by itself would establish that such order of punishment was by way of giving protection to Dr. Gupta, District T.B. Officer only with a view to punish the petitioner. He has also submitted that the order of punishment is wholly disproportionate.
Legal Reasoning
Proceeding further Mr. Prasad has explained that it was really absurd on the part of the authorities to hold the petitioner guilty with regard to expiry of the medicines when the period of six months had not even reached the date on which the petitioner has got transferred from Jehanabad. He has finally also submitted that the order of this Court dated 20.06.2012 passed in C.W.J.C No. 10402 of 2012 has not been complied in letter and spirit, inasmuch as, no reasons has been given while disposing of the appeal of the petitioner by the impugned order dated 13.07.2012. The first and foremost question with regard to responsibility of the petitioner in relation to the charge can be Patna High Court CWJC No.21210 of 2012 (2) dt.21-11-2013 3 better understood if the relevant portion of memo of charge is reproduced which reads as follows:- ^^vuqca/k 1- fpfdRlk ink0 dk uke %& Mk0 f’kouUnu ’kekZ 2- inuke ,oa inLFkkiu LFkku %& rRdkyhu HkaMkj fpfdRlk inkf/kdkjh] ftyk ;{ek dk;kZy;] tgkukckn] lEizfr izHkkjh fpfdRlk inkf/kdkjh] izkFkfed LokLF; dsUnz] e[knqeiqj] tgkukckn 3- osrueku %& 6500 & 10500@& 4- vkjksi %& jkT; LokLF; lfefr] ’ks[kiqjk iVuk us vius i=kad 275 fnukad 11-05-07 ,oa 915 fnukad 14-03-08 }kjk izfrosfnr fd;k gS fd izR;sd jkT; Lrjh; leh{kkRed cSBd esa lHkh ftyk ;{ek inkf/kdkjh dks Li"V funsZ’k fn;k tkrk jgk Fkk fd ;{ek fujks/kd nokvksa dks frfFkokn gksus ds N% ekg iwoZ dkjZokbZ djrs gq, mDr nokvksa dks jkT; HkaMkj esa ykSVk fn;k tk; rkfd mu nokvksa dks lle; mi;ksx esa yk;k tk ldsA ijUrq mi;qZDr funsZ’k dk vuqikyu ftyk ;{kek dk;kZy;] tgkukckn esa vkjksfir fpfdRlk inkf/kdkjh }kjk ugha fd;s tkus ds dkj.k 1]75]000@& :i;s dk LVzsiVksukblhu ,oa bFkeqcqVksy frfFkokn gks x;k] ftlds fy, vkjksfir inkf/kdkjh nks"kh gSa gsYFk esuqvy ds vuqlkj izR;sd rhu ekg ij nok HkaMkj dk HkkSfrd lR;kiu djus dk izko/kku gS] ftldk Hkh vuqikyu vkjksfir fpfdRlk inkf/kdkjh }kjk ugha fd;k x;k] tks jkT; ljdkj ds izfrikfnr fu;eksa ,oa vkns’kksa dk Li"V mYya?ku gS ftlds fy, vkjksfir inkf/kdkjh iw.kZr% nks"kh gSA lk{; rkfydk %& g0@& 1- jkT; Lok0 lfefr] ’ks[kiqjk ljdkj ds voj lfpo iVuk ds i=kad 275 fn0 11-05-07 ,oa 915 fn0 11-05-0 It is not in doubt that the petitioner was the Store Medical Officer in District T.B. Centre and the charges relates Patna High Court CWJC No.21210 of 2012 (2) dt.21-11-2013 4 to his period of posting. The petitioner, therefore, was required to follow the guidelines of the Health Manual which prescribed periodical inspection of the medical store every three months so that the date of expiry of the medicines could be well detected in advance. That is how the petitioner had also understood the charge and in fact when the learned counsel for the petitioner has not produced the written statement of defence filed by the petitioner, this Court will have to accept that whatever defence has been recorded by the inquiry officer in his inquiry report as against the aforementioned charge is correct which reads as follows:- ^^9- cpko c;ku %& foHkkxh; ladYi la[;k&65…9‰ fnukad 18-01-10 }kjk fuxZr foHkxh; dk;Zokgh ds vuqca/k es a xfBr vkjksi dh izfrj{kk esa fnukad 06-04-10 dks lefiZr vius cpko c;u i‘0 15@i0 }kjk foHkkxh; dk;Zokgh ds vuqca/k esa xfBr vkjksi dks cscqfu;kn ,oa rF;ghu djkj djrs gq, bls ekufld :i ls izrkfMr djus dk lkft’k dgk gSA vius cpko&c;ku }kjk vkjksfir fpfdRlk inkf/kdkjh us lwfpr fd;k fd fnukad 12-11-2002 dks ftyk ;{ek inkf/kdkjh] tgkukckn ds vkns’k ds vkyksd esa muds }kjk nok HkaMkj dk lR;kiu fd;k x;k Fkk rFkk o"kZ 2002 ls o"kZ 2006 rd ftyk ;{ek inkf/kdkjh }kjk mUgsa dHkh Hkh HkaMkj dk lR;kiu ;k HkaMkj ls lacaf/kr dk;Z dk vkns’k ugha fd;k x;k Fkk rFkk lacaf/kr vkjksi dh frfFk ls lkr ekg iwoZ gh mudk LFkkukUrj.k jsQjy vLirky] e[keqneiqj tgkukckn esa gks x;k FkkA** From the reading of the aforementioned defence of Patna High Court CWJC No.21210 of 2012 (2) dt.21-11-2013 5 the petitioner, it becomes clear that he did not question either his assignment of duty to inspection of stores or the requirement in the Health Manual. Thus, today the petitioner cannot take help of extraneous materials by way of guidelines for the District T.B. Control Society which was not referred to and relied by him in his defence before the inquiry officer. It is in this background that this Court will have to examine the finding given by the inquiry officer. The inquiry officer has looked into the specific defence and the petitioner in relation to the documents available on record and the findings of the inquiry officer while holding the charge against the petitioner to be proved, reads as follows:- ^^flfoy ltZu tgkukckn ds mDr izfrosnu d voyksdu ds ckn vkjksfir fpfdRlk inkf/kdkjh us fnukad 06-04-10 dks lefiZr cpko&c;ku i‘0 15@i0 dk Hkh voyksdu fd;k x;k ftlls Li"V gksrk gS fd vkjksfir fpfdRlk inkf/kdkjh }kjk muds inLFkkiu dky esa gsYFk eSuqvy dk vuqikyu ugha fd;k x;k gSa vkjksfir fpfdRlk inkf/kdkjh }kjk fnukad 06-04-10 dks vius lefiZr cpko&c;ku i‘0 15@i0 esa lwfpr fd;k x;k gS fd ftyk ;{kek inkf/kdkjh] tgkukckn us fnukad 12-11-02 ds vkns’k ds vkyksd esa muds }kjk nok HkaMkj dk lR;kiu fd;k x;k Fkk] ijUrq muds bl dFku dh lEiqf"V esa muds }kjk dksbZ Hkh lk{; ugha fn;k x;k gSA gsYFk eSuqvy ds vuqlkj izR;sd rhu ekg ij nok HkaMkj dk lR;kiu djus dk jkT; ljdkj dk fu;e izfrikfnr gS] ijUrq vkjksfir fpfdRlk inkf/kdkjh ds fnukad 06-04-10 dks lefiZr cpko&cp;u i‘0 15@i0 ls Li"V gksrk gS fd muds }kjk gsYFk eSuqvy dk vuqikyu muds inLFkkiu dky esa ugha gqvk gSA muds Patna High Court CWJC No.21210 of 2012 (2) dt.21-11-2013 6 }kjk ;g lk{; ugha fn;k x;k gS fd muds }kjk dHkh Hkh ;{ek dsUInz esa dk;Zjr HkaMkj fyfidksa dks HkaMkj dk lR;kiu djus gsrq dksbZ i= fn;k x;k gSA mDr dsUnz ds HkaMkj fyfidksa }kjk Hkh nok HkaMkj dk lR;kiu djus ds laca/k esa dksbZ i= vkjksfir fpfdRlk inkf/kdkjh dks fn;k x;k gS] ds laca/k esa dksbz earO; flfoy ltZu] tgkukckn }kjk ugha fn;k x;k gS cfYd lR;kiu ugah gkus ds dkj.k mDr dsUnz es a inLFkkfir lHkh lacaf/kr inkf/kdkfj;ksa ,oa deZpkfj;ks a dks bl vkjksi ds fy, nks"kh cryk;k gSA pwafd flfoy ltZu] tgkukckn us Hkh vius i=kad 1508 fnukad 19-06-10 …i‘0 20&19@i0‰ }kjk lHkh inkf/kdkfj;ksa ,a deZpkfj;ks a dks blds fy, nks"kh ekuk gS vr% mi;qZDr fo’ys"k.k ds ifjis{; esa vkjksfir fpfdRlk inkf/kdkjh dks bl foHkkxh; dk;Zokgh ds vuqca/k esa xfBr vkjksi ds fy, nks"kh ekuk tk ldrk gS D;ksafd vkjksfir fpfdRlk inkf/kdkjh us fnukad 06-04-10 dks lefiZr vius cpko&c;ku i‘0 15@i0 }kjk vkjksi dh izfrj{kk esa u dksbZ Li"V c;ku fn;k gS vkSj u dksbZ lk{; gh fn;k gS rFkk muds }kjk mDr frfFkokn nokvksa dks fnukad 08-10-04 dks izkIr fd;k xk; Fkk rFkk muds }kjk nwljk LVkWd iath ’kq: fd;k x;k tks fu;e ds fo:n~/k gS ftlds fy, os nks"kh ekus tk ldrs gSA** As noted above, the inquiry officer has gone into the relevant aspect of the matter and this Court in exercise of its power under Article 226 of the Constitution of India cannot substitute the findings arrived by the inquiry officer. Law in this regard is well settled and reference in this connection may be usefully made to the judgment of the Apex Court in the case of B.C. Chaturvedi Vs. Union of India & Ors. reported in 1995 (6 ) SCC 749.. The aspect on which great emphasis was laid by Mr. Patna High Court CWJC No.21210 of 2012 (2) dt.21-11-2013 7 Prasad relating to discrimination in the matter of punishment also does not impress this Court. The plea of discrimination is based against the award of punishment to Dr. C.P. Gupta, the District T.B. Officer, Jehanabad. First of all, his memo of charge contained in resolution no. 65 dated 18.01.2010 has not been produced and in any event the inquiry report exonerating Dr. C.P. Gupta has also not been brought on record. There is also nothing on record to show that what material the State Government had differed with the views of the inquiry report, inasmuch as, Dr. Gupta was exonerated by the inquiry officer. His order of punishment of withholding one increment with non cumulative effect by way of censure was passed which by itself would go to show that appropriate order of punishment was passed against Dr. Gupta. The plea of discrimination of the petitioner that since no recovery was directed to be made from Dr. Gupta will actually amount to going into the respective responsibility of the District T.B. Officer vis a vis Store Medical officer, the two posts which were held by Dr. Gupta and petitioner respectively. That however simply cannot be done within the limited parameters of Article 226 of the Constitution of India specially when nothing has been brought on record by the petitioner in his written statement of defence before the inquiry officer leading any evidence that Patna High Court CWJC No.21210 of 2012 (2) dt.21-11-2013 8 for the entire charge Dr. Gupta alone was to be held responsible. The plea of discrimination is a plea of fact and if those facts were not brought on record before the inquiry officer the same cannot be now allowed to bed raised in the writ petition while assailing the finding given in the inquiry report. Such plea of discrimination therefore must fail. As with regard to the plea of disproportionate punishment while this Court will be absolutely loathe to examine the quantum of punishment in relation to charge. It must be kept in mind that medicine supplied to hospital is bought from tax payers' money, and thus it is public money which is entrusted to the officials including even a Doctor, Incharge of Stores. The life saving drug such as streptomycin and Ethymibutanol which were kept in the stores could have saved lives of the patients suffering from T.B. and as such they could not have been allowed to be wasted in the manner it was done by the negligent act of the petitioner. Thus if for such negligence in performance of duty which was in breach of the provisions of the Health Manual, if the Government had decided to recover the sum of Rs. 1,75,000/- from the petitioner that cannot be said to be excessive punishment. A time has come where every public authority/public official have to account for his act which results into the loss of Patna High Court CWJC No.21210 of 2012 (2) dt.21-11-2013 9 Government exchequer which is nothing else but the public money. The fact that the District T.B. Officer was also not let off and was given punishment of the same nature of censure as also stoppage of one increment with non cumulative effect and the petitioner's punishment also now stands on same footing of censure as also stoppage of two increments with non cumulative effect. The recovery of the cost of medicine which was in direct control and supervision of the petitioner therefore cannot be held to be bad much less disproportionate punishment. The petitioner, the Incharge Medical Officer being the immediate controlling authority of the store, if the medicines were wasted on account of its not being sent back before its expiry date its cost has to be realized from the petitioner. The submission that the inquiry officer has also referred to the report of the Civil Surgeon as with regard to role of Mr. Lalan Kumar and Mr. Arun Kumar who were posted as an employee in that Centre will also be of no avail, inasmuch as, there is nothing on record to show that any averment has been made in the writ application as with regard to drawing a proceeding against Mr. Lalan Kumar and Mr. Arun Kumar and their being exonerated. In absence of such pleadings, this Court therefore must hold that Mr. Lalan Patna High Court CWJC No.21210 of 2012 (2) dt.21-11-2013 10 Kumar and Mr. Arun Kumar, the two class-III employees could not have been held guilty for a charge which was relating to violation of the guidelines given in the Health Manual in respect of stores in custody of Incharge Medical Officer. Finally, this Court would also not find any error in the impugned order on account of their being no reasons. It has to be kept in mind that there is no appeal against the order of punishment which has been passed against the petitioner. The petitioner is a gazetted class-II Officer and such order of punishment dated 25.11.2011 had been passed by the competent authority with the approval of the cabinet minister under Rule-32(2)(VII) of the Rules of Executive Business. As against this order of the State Government notified in the name of the Governor of Bihar, there is no provision for appeal under the Bihar Government Servant(Classification, Control & Appeal) Rules-2005 and there is only a provision of review but then the scope of review and scope of appeal are entirely different. Therefore, when the petitioner cannot satisfy this Court as with regard to availability of any statutory appeal, there would be no question of impugned order being bad on account of absence of reasons in the impugned order. In any event, it cannot be said that the respondents did not Patna High Court CWJC No.21210 of 2012 (2) dt.21-11-2013 11 apply their mind because the earlier order of punishment dated 25.11.2011 by which the petitioner has been inflicted punishment of censure as also withholding of two increments with cumulative effect has now been revised as withholding of two increments with non cumulative effect. The difference between such punishment of withholding of two increments with cumulative effect and withholding of two increments with non cumulative effect in service jurisprudence will altogether have different effect, inasmuch as, the petitioner now can at least get back his salary after loosing two increments with non cumulative effect. In that view of the matter, this Court does not find any merit in the application and the same is, accordingly, dismissed. Ranjan/- (Mihir Kumar Jha, J)