The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 79 of 2024 1. The State of Jharkhand through Chief Secretary, Government of Jharkhand, Ranchi, having its office at Project Building, Dhurwa, P.O.- Dhurwa, P.S.- Jagannathpur, District- Ranchi. 2. The Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand, having its office at Yojna Bhawan, Nepal House, Doranda, P.O. and P.S.-Doranda, District- Ranchi, Jharkhand. 3. The Superintendent, MGM Medical College and Hospital, Jamshedpur having its office at Dimna Road, Hill View Colony, Mango, Jamshedpur, P.O.-Mango, P.S.- Mango, District- East Singhbhum, Jharkhand. ……Appellants Versus Dr. Ragini Singh, aged about 62 years, wife of Dr. S.N. Singh, resident of D- 19, Kharkai Enclave, Sonari (near Joggers Park), Jamshedpur, P.O.- Sonari, P.S.- Sonari, District- East Singhbhum, Jharkhand. … … Respondent ----- CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE NAVNEET KUMAR For the Appellants For the Respondent -------- : Mr. Anish Kumar Mishra, AC to Sr. SC-I : Mr. Ankit Vishal, Advocate Mr. Amitabh Prasad, Advocate -------- Per, Shree Chandrashekhar, A.C.J. 2nd May 2024 Dr. Ragini Singh being aggrieved by the order of dismissal from service vide Notification dated 21st October 2019 approached the writ Court in W.P(S) No. 563 of 2021. 2. The writ Court observed as under: “The impugned order dated 21.10.2019 merely reveals that the Enquiry Officer had recommended for dismissal from service but it appears on a perusal of the enquiry report that the factual aspects are otherwise. Infact the Enquiry Officer has taken into consideration the successive communications made by the petitioner along with the various medical prescriptions and it is not in dispute that the petitioner was not suffering from cancer and that regular intimations were not given by the petitioner to the department concerned for extension of the leave granted to her. Infact the Enquiry Officer had recommended for taking appropriate decision with respect to regularization of the services of the petitioner and posting her on her previous post. The author of the impugned order dated 21.10.2019 while differing with the findings given in the enquiry report has given no reasons as would be manifest from the impugned order dated 21.10.2019 and seems to have been passed without at all taking into consideration the contents of the enquiry report.
Decision
Although learned Standing Counsel L & C III has referred to Rule 76 of the Jharkhand Service Code but has failed to submit as to whether the case of the petitioner comes within the special circumstances as demarcated in the said rule or not. He has merely submitted that since the petitioner was absent for more than five years, as such the petitioner was liable to be dismissed and therefore no error is apparent in the impugned order dated 21.10.2019, though the same appears to be contrary to the enquiry report and infact has not at all considered the contents of the enquiry report and has also not given any appropriate reasons differing with the enquiry report while passing a major punishment of dismissal from service. In view of the aforesaid facts, therefore, the impugned order dated 21.10.2019, passed by the Under Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand, is not tenable in the eyes of law and the same is accordingly quashed and set aside. The concerned authorities are directed to pass appropriate orders for accepting the joining of the petitioner to the post, in which she was earlier working. So far as the back wages are concerned, the matter is remitted back to the respondent no. 2 to consider the same in accordance with law after giving an opportunity of hearing to the petitioner. This writ petition stands disposed of.” 3. The State of Jharkhand is in appeal against the order dated 14th March 2023 by which the writ Court interfered with the punishment of dismissal from service passed on the ground of unauthorized absence from duty for seven years. 4. Briefly stated, the respondent who was selected for the post of Medical Officer by the Bihar Public Service Commission tendered joining at Jugsalai, Jamshedpur and worked there for about ten years. She worked at Saraikella sub-division hospital for about three years and then joined the MGM Medical College and Hospital at Jamshedpur in the year 2003 as a Medical Officer in Post Partum (PP) Programme. There she was selected as a Senior Resident Doctor in the Department of Obstetricians and Gynecologists. While working at the MGM Medical College and Hospital, the respondent decided to enhance her qualifications and was granted permission for study leave for a period of 18 months by an order contained in Memo dated 29th May 2006 and was relieved by the Superintendent of the MGM Medical College and Hospital through an order contained in Memo dated 5th July 2006. 5. This is a fact not in dispute that the respondent enrolled herself in the Royal College of Obstetricians and Gynecologists, London in MRCOG course and made a request vide letter dated 18th December 2007 for extension of study leave for a further period of 12 months due to 2 LPA No.79 of 2024 rescheduling of the course and delay in obtaining Visa. Unfortunately, she was diagnosed with breast cancer and had to undergo surgery and follow-up treatment through chemotherapy and radiotherapy. She made a request for extension of leave period by 12 months vide letter dated 9th January 2009 which was followed by the letters dated 10th January 2010, 31st December 2010, 16th January 2012 and 4th February 2013. After regaining health, the respondent intended to tender her joining vide letter dated 12th November 2013 at MGM Medical College and Hospital but was not permitted to do so. 6. MGM Medical College and Hospital vide letter dated 4th March 2014 for Constrained, she made a request to the Superintendent of the accepting her joining who vide letter dated 21st March 2016 requested the Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand to take a decision in this regard. Around the same time, the respondent vide letter dated 31st March 2016 requested the Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand for her posting. But to her utter surprise, she was served Prapatra “Ka” dated 29th September 2016 appended to the show-cause notice dated 2nd December 2016 for initiating a departmental inquiry against her. 7. Mr. Anish Kumar Mishra, the learned State counsel contends that in the departmental proceeding the respondent was afforded sufficient opportunity to defend herself and the disciplinary authority passed the order of punishment based on the materials laid in the domestic inquiry. The submission made by the learned State counsel is that the findings of fact recorded in a properly constituted departmental inquiry cannot be put to test in a proceeding under Article 226 of the Constitution of India. The writ Court in its order dated 14th March 2023 referred to Rule 76 of the Jharkhand Service Code to hold that the punishment order was not in accordance with law. 8. The High Court in a proceeding under Article 226 of the Constitution of India shall have limited powers of judicial review. But at the 3 LPA No.79 of 2024 same time, the High Court shall keep in mind the plenary nature of the powers exercised by it which cannot be restricted on technical grounds. This is too well settled a law that the delinquent government employee shall have an opportunity to persuade the departmental authority to accept the favorable findings recorded by the Inquiring Officer and for that purpose wherever the Inquiring Officer records a finding exonerating the delinquent government employee the disciplinary authority must record reasons for his disagreement. In “Punjab National Bank & Ors. v. Kunj Behari Misra” (1998) 7 SCC 84 the Hon’ble Supreme Court held that the disciplinary authority when disagrees with the favourable findings recorded in the inquiry report must record his tentative opinion, give a copy of the notes of disagreement and provide an opportunity to the delinquent employee to respond to the same before he forms a final opinion in the matter and if that is not done, the penalty order would be rendered illegal having been passed in breach of the rules of natural justice. In “Kunj Behari Misra” the Hon’ble Supreme Court held, thus; “17.…. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.” 9. This is a matter of record that the disciplinary authority while disagreeing with the findings recorded by the Inquiring Officer did not record his reasons for disagreement and the delinquent government employee was therefore denied a reasonable opportunity to defend herself. 10. While the law on the subject is not in doubt, we find no reason to interfere with the writ Court’s order passed in W.P(S) No. 563 of 2021. However, there is another important aspect of the matter which requires consideration by this Court. This is quite a well settled proposition in law that wherever the punishment order is found wanting in compliance of the 4 LPA No.79 of 2024 rules of natural justice, the matter shall be remitted back to the departmental authority to proceed from the point at which the rules of natural justice were violated. Notwithstanding that, we are not inclined to follow the same route for the following reasons. The respondent was a brilliant student of medicine. She was admitted at Royal College of Obstetricians and Gynecologists, London in MRCOG for further studies. This is also not in dispute that she was suffering from breast cancer and received treatment over a period of three years. She made repeated communications for extension of her study leave but those were not responded to by the respondent authority. Surprisingly, she was issued a show-cause notice about more than nine years after the study leave was sanctioned by the competent authority. The other reason why we are not inclined to remand the matter back to the departmental authority is that the punishment order suffers from incurable defect inasmuch as a charge memo was served in Prapatra “Ka” on 29th September 2016 before a decision was taken by the competent authority on 14th February 2017 to start a departmental proceeding against her. 11. (Classification, Control & Appeal) Rules, 2016 reads as under: Sub-rule (3) of Rule 17 of the Jharkhand Government Servants “(3) Where it is proposed to hold an inquiry against a Government Servant under this rule, the Disciplinary Authority shall draw up or cause to be drawn up: (i) The substance of the imputations of misconduct or misbehavior as a definite and distinct article of charge. (ii) A statement of the imputations of misconduct or misbehavior in support of each article of charge, which shall contain:- (a) A statement of all relevant facts including any admission or confession made by the Government Servant; (b) A list of such document by which, and a list of such witnesses by whom, the articles of charge are proposed to be sustained.” 12. The procedure provided under Rule 17(3) of the Jharkhand Government Servants (Classification, Control & Appeal) Rules, 2016 mandates that the competent authority must apply his mind at the stage of taking a decision for proceeding against the delinquent government employee in a departmental proceeding. The second stage comes when a draft charge memo is produced before the competent authority who now again is required to apply his mind and grant approval thereon. As we have 5 LPA No.79 of 2024 noticed, before a decision was taken to proceed against the delinquent government employee departmentally a charge memo in Prapatra “Ka” was approved. 13. In “Union of India & Ors. v. B. V. Gopinath” (2014) 1 SCC 351 the Hon’ble Supreme Court elaborated upon the procedure under Rule 14 as under: “41. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge-sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge-sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge-sheet. Such a charge-sheet can only be issued upon approval by the appointing authority i.e. Finance Minister.” 14. the Hon’ble Supreme Court held as under: Later, in “State of T.N. v. Promod Kumar” (2018) 17 SCC 677 “22. Rule 8(4) of the All India Services (Discipline and Appeal) Rules, 1969 also mandates that the disciplinary authority shall “draw up or cause to be drawn up” the charge memo. We see no reason to take a view different from the one taken by this Court in B.V. Gopinath. We also see no substance in the submission made by the Senior Counsel for the State that the said judgment needs reconsideration. Assuming that Mr Giri is right in his submission that the initiation of disciplinary proceedings and issuance of charge memo are at the same stage, the mandatory requirement of Rule 8 which provides for the charge memo to be drawn by the disciplinary authority cannot be ignored. We reject the submission on behalf of the appellant that Gopinath case can be distinguished on facts. We are not in agreement with the contention of the appellant that the business rules and standing orders of the State of Tamil Nadu are quite different from the office orders and circulars issued by the Union of India which formed the basis of the judgment in Gopinath case. A close reading of the said judgment would disclose that reliance on the office note was only in addition to the interpretation of the Rule.” 15. Quite apparently, the respondent cannot be put to harassment for the fault on the part of the authorities of the State of Jharkhand. The punishment order was illegal and the appellate authority approved the same 6 LPA No.79 of 2024 without applying his mind to the issues in the question. 16. The normal procedure adopted by the writ Courts is to remand the matter to the departmental authority but this is only one of the options before the Court and in appropriate cases the Court may refuse to direct the government employee to undergo the rigors of the departmental inquiry. In “M.V. Bijlani v. Union of India” (2006) 5 SCC 88 the Hon’ble Supreme Court took a view that on account of a long lapse of time the matter was not required to be remitted to the disciplinary authority and the government employee was reinstated in service. Similarly, in “Allahabad Bank & Ors. v. Krishna Narayan Tewari” (2017) 2 SCC 308 the Hon’ble Supreme Court held as under: “8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand.” 17. While so, L.P.A No. 79 of 2024 is dismissed. (Shree Chandrashekhar, A.C.J.) (Navneet Kumar, J.) Sudhir/Vedanti NAFR 7 LPA No.79 of 2024