Dr. Arvind Kumar Lal v. 1. The State of Jharkhand through the Chief Secretary, Govt. of Jharkhand, Project Bhawan
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1855 of 2022 --------- Dr. Arvind Kumar Lal ... … Petitioner Versus 1. The State of Jharkhand through the Chief Secretary, Govt. of Jharkhand, Project Bhawan, P.O., P.S. Dhurwa, District- Ranchi. 2. The Principal Secretary, Health, Medical Education & Family Welfare Department, Govt. of Jharkhand, Project Bhawan, P.O., P.S. Dhurwa, District- Ranchi. 3. The Principal Secretary, Department of Health, Government of Bihar, 1st Floor, Vikas Bhawan Bailey Road, P.O., P.S.- Bailey, Patna, Bihar. 4. The Additional Secretary, Health, Medical Education & Family Welfare Department, Govt. of Jharkhand, Nepal House, P.O., P.S.- Doranda, District- Ranchi. 5. The Joint Secretary, Health, Medical Education & Family Welfare Department, Govt. of Jharkhand, Nepal House, P.O., P.S.- Doranda, District- Ranchi. --------- ... … Respondents CORAM : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY For the Petitioner --------- : Mr. Ajit Kumar, Sr. Advocate For the Resp. Nos. 1, 2, 4 & 5. For the Resp. No. 3. Mrs. Aprajita Bhardwaj, Advocate Ms. Tejaswita Safalta, Advocate : Mr. Gaurav Abhishek, AC to AG : Mr. Ranjit Kumar, JC to GA (Bihar) --------- 07/03.04.2023 Heard Mr. Ajit Kumar, learned Senior Counsel for the petitioner and Mr. Gaurav Abhishek, learned AC to AG, for the respondent nos. 1, 2, 4 & 5 as well as Mr. Ranjit Kumar, learned JC to GA (Bihar) for the respondent no. 3. In this writ application, the petitioner has prayed for quashing of the order of dismissal passed in departmental proceeding vide Memo No. 218(18) dated 31.03.2022 issued by the respondent no. 5 as the same is violative of the prescribed rules, norms and procedures that govern the service condition of the petitioner. A further prayer has been made by the petitioner to immediately reinstate him after quashing the order of dismissal dated 31.03.2022 to the post of he last held before passing of the punishment order with all consequential benefits.
Legal Reasoning
Submission has been advanced by Mr. Ajit Kumar, learned Senior Counsel for the petitioner that the departmental proceeding initiated against the petitioner was after almost -2- 21 years. It has been submitted that the respondent had formulated three charges and two of the charges were with respect to contesting of elections in the year 1995, 2000 and 2005 while one of the charges was of violation of Rule 6 of the Bihar Government Servant’s Conduct Rules, 1976. It has been submitted that though the charge with respect to contesting the election for the year 1995 and 2000 was not proved in course of inquiry but by taking recourse to the fact that the petitioner had contested the elections in the year 2005 and consequently on account of his conduct not coming within the purview of Rule 6 of the Bihar Government Servant’s Conduct Rules, 1976, the petitioner has been dismissed from service. Learned Senior Counsel has further submitted that the petitioner prior to his contesting the elections had submitted his resignation letter which was not accepted and after the petitioner lost his elections he was permitted to join his duty and in the year 2006 he was allotted Jharkhand Cadre. It has been submitted that the concerned respondents were not inclined to take any punitive measures against the petitioner as his resignation was not accepted and he was allowed to join and thereafter his service was allotted to Jharkhand Cadre. It has further been submitted that the charge which was formulated by the respondents was not approved by the competent authority and the same will also vitiate the enquiry proceedings for which reference has been made to the case of “Union of India and Others versus B.V. Gopinath” reported in (2014) 1 SCC 351. Reference has also been made to the case of “Roop Singh Negi versus Punjab National Bank and Others” reported in (2009) 2 SCC 570, with respect to the fact that mere production of documents is not enough in an inquiry proceeding. It has been submitted that the only document of substance which was the basis for formation of the opinion by the Enquiry Officer was an affidavit of the petitioner submitted before the Election Commission of India and no other oral or any documentary evidence were produced in course of the inquiry. Mr. Ajit Kumar, furthered his argument by referring to the case of “State -3- of Madhya Pradesh versus Bani Singh” reported in (1990) Suppl SCC 738, while submitting that the considerable delay in initiating a department proceeding has not been appropriately explained by the department and hence it was unfair on the part of the concerned respondents from the very inception to have initiated the proceeding after more than a decade. Learned Senior Counsel has also submitted that repeatedly the petitioner had asked for the relevant documents from the concerned authority in order to put up appropriate defense in his case but in fact the Presenting Officer as well as the Presiding Officer had themselves also several times written to the competent authority for submission of the documents which however was never supplied and ultimately the Enquiry Officer on the basis of an affidavit submitted by the petitioner before the Election Commission of India had based his findings on the Enquiry report. Concluding thus, it has been submitted that the principles of natural justice have been violated and the petitioner has been discriminated against and such facts have prompted the petitioner to approach this Court in its writ jurisdiction as this Court has the power to consider the said case irrespective of the fact that there is a provision of a departmental appeal against the order impugned. Mr. Gaurav Abhishek, learned AC to AG, for the respondent nos. 1, 2, 4 & 5 has relied on his counter affidavit and has submitted that several complaints were received against the petitioner with respect to his contesting Jhanjharpur election in the State of Bihar which ultimately led to initiation of a departmental proceeding against the petitioner. Learned counsel has further referred to a Circular dated 28.08.1985 which reveals that any government servant who fights an election and gives his resignation letter, it would mean that he has foregoed his status of being a neutral person. It has been submitted that the petitioner himself has admitted that the resignation submitted by him was on account of some family problems and not specifically with respect to his contesting Jhanjharpur election for the Samajwadi Party. -4- So far as the delay in initiation of the departmental proceeding is concerned, submission has been advanced that from 2014 the department had started receiving complaints against the petitioner which ultimately culminated in initiation of the departmental proceeding in the year 2016 and, therefore, it cannot be said that there has been an inordinate delay in initiating such proceedings. It has also been submitted that the Enquiry Officer had considered all aspects of the matter including the show cause submitted by the petitioner as well as the affidavit filed before the Election Commission of India and the petitioner cannot get over the fact that he had fought election in the year 2005 and his resignation having not indicated about the reason for resignation being specifically that of fighting election the petitioner cannot at this stage take a stand that all the factual aspects were brought to the notice of the concerned authorities at the time of submitting his resignation letter. It has further been submitted that the petitioner was initially issued a show cause and on finding the charges proved a second show cause notice was also issued and ultimately the petitioner was dismissed from service vide Memo No. 218(18) dated 31.03.2022 and in none of the circumstances the principles of natural justice were violated by the concerned respondents. It has also been submitted that the resolution to initiate a department proceeding against the petitioner was with the approval of the competent authority. Mr. Ajit Kumar, learned Senior Counsel for the petitioner in reply has submitted that though there is no doubt that resolution dated 14.06.2018 was issued on the approval of the competent authority but that by itself would not mean that the charge can be framed by any other authority. He has submitted that even the allegations constituting the charge needs approval of the competent authority which in the present case has not been taken note of by the concerned respondents. I have heard the learned counsel for the respective parties and have also perused the records. -5- The petitioner as would appear has been proceeded against in a departmental proceeding and three charges were served upon him; i) The petitioner contested in the Bihar General Assembly election in the year 2005 as a candidate from Jhanjharpur Vidhan Sabha Constituency and got 2737 votes. ii) While posted in the Department of Health, Medical Education and Family Welfare, Government of Bihar the petitioner in the year 1995, 2000 contested as a candidate in the Bihar Legislative Assembly Elections. iii) The above mentioned conduct of the petitioner is violative of Rule 6 of the Bihar Government Servant’s Conduct Rules, 1976. The precursor to the charges having been served upon the petitioner is of the petitioner who had joined the Bihar Health Services on 06.11.1990 submitting his resignation before the Secretary, Department of Health, Medical Education and Family Welfare, Patna, Bihar in the year 1997 on account of contesting the Vidhan Sabha election from Jhanjharpur Assembly Constituency. The petitioner contested the election and lost the same as he got 2737 votes but in spite of intimating the department his resignation letter was not accepted and the petitioner was allowed to continue and in the year 2006 the petitioner was allotted Jharkhand Cadre. The learned AC to AG has though submitted that the resignation submitted by the petitioner was primarily based upon some family issues and not on account of he having contested the election in the year 2005 but it appears that the said resignation letter has not been brought on record to substantiate what has been stated by the learned AC to AG. It, therefore, appears that prior to allotting Jharkhand Cadre to the petitioner his services were regularized and his joining was accepted vide letter dated 12.12.2006. The petitioner in course of the inquiry proceeding had repeatedly asked the authorities to submit various documents which -6- according to the petitioner would undermine the charges leveled him against in the departmental proceeding but it appears that such request were never acted upon as the documents were never served upon the petitioner. Not only was the petitioner finding it difficult to defend himself in the departmental proceeding on account of dearth of documentary evidence, in fact the Presenting Officer as well as Presiding Officer were themselves seeking documents from the authorities to further proceed in the departmental proceeding. After conclusion of inquiry the petitioner was directed to submit a reply to the second show cause notice and the petitioner in reply had once again demanded certain documents and at the same time the department had also requested for submission of certain documents. The request made by the petitioner, the Presenting Officer as well as the Conducting Officer which has not been disputed clearly reveals that such request were made on account of the documents being unavailable on the record. However, the said documents were never made available to either the petitioner or the Presenting Officer or for that matter the Enquiry Officer and ultimately on the basis of the affidavit which has been submitted before the Election Commission of India the Enquiry Officer came to a conclusion that Charge Nos. 1 and 3 were proved which consequently led to issuance of a second show cause notice and the dismissal of the petitioner from the service. I may at this juncture refer to the case of “Roop Singh Negi versus Punjab National Bank and Others” reported in (2009) 2 SCC 570, wherein it has been held as follows: “14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the collected during parties. The purported investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents evidence -7- thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. 23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” As noted above the affidavit submitted by the petitioner at the time of contesting the election in the year 2005 was the basis for the Enquiry Officer while coming to a conclusion of Charge Nos. 1 and 3 having been proved against the petitioner. Admittedly no oral evidence was led and the documents which had repeatedly been requested by the petitioner as well as by the Presenting Officer and the Enquiry Officer were not made available to them but in spite of the same the Charge Nos. 1 and 3 were found to be proved against the petitioner. The Enquiry Officer has not taken into consideration the fact that prior to contesting the election admittedly the petitioner had submitted his resignation letter which was not accepted and when the petitioner after his election result has joined, his joining was also accepted and subsequent thereto he was allotted Jharkhand Cadre. It would, therefore, mean that the issue was settled in the year 2006 itself but the department has raked up the issue after all these years that there has been a violation of the provision of the Rule 6 of the Bihar Government Servant’s Conduct Rules, 1976, while initiating a departmental proceeding in the year 2016. -8- Mr. Ajit Kumar, learned Senior Counsel for the petitioner has submitted that the charge was not approved by the competent authority and reference has been made to the case of “Union of India and Others versus B.V. Gopinath” (supra) wherein it has been held as follows: “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 the imputations of misconduct or misbehaviour and 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 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.” initiation of the Although the resolution by virtue of which the enquiry proceeding was initiated against the petitioner was approved by the competent authority but there is nothing on record to indicate that the said authority had approved the charges which was served upon the petitioner. The same is also contrary to the settled principles of law laid down in the case of “Union of India and Others versus B.V. Gopinath” (supra). The disciplinary authority while passing the order of dismissal vide Memo No. 218(18) dated 31.03.2022 has not considered the fact that the petitioner was deprived from properly defending his case in absence of certain important documents which were repeatedly sought by him as well as the Enquiry Officer and the Presenting Officer and, therefore, in -9- absence of such documents the Enquiry Officer could not have found Charge Nos. 1 and 3 proved against the petitioner especially in view of the fact that the issue of resigning from service prior to contesting the election had already been settled by the concerned department in the State of Bihar wherein the joining of the petitioner was accepted and thereafter he was allotted Jharkhand Cadre. Learned AC to AG has submitted that the petitioner has an alternative remedy of appeal. However, in view of the fact that the petitioner has not been given an opportunity to appropriately defend himself apart from the fact that initiation of the departmental proceeding was after more than a decade from the time he had contested the elections and there being other frailties with respect to initiation of the proceeding and its conduct as well as its culmination, this Court has the jurisdiction under Article 226 of the Constitution to interfere in such matters and, therefore, such plea of the learned AC to AG also is negated. On conclusion, therefore, since the impugned order dated 31.03.2022 vide Memo No. 218(18) issued by the respondent no. 5 dismissing the petitioner from service is not in consonance with the legal provisions, the same is hereby quashed and set aside. The respondent no. 5 is directed to pass necessary orders for reinstatement of the petitioner. So far as the salary and other consequential benefits are concerned, the respondent no. 5 shall consider the same and pass appropriate order within a period of six weeks from the date of receipt/production of a copy of this order. This writ application stands allowed.
Decision
Pending I.A., if any, stands disposed of. Alok/- (Rongon Mukhopadhyay, J.)