PRABODH JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) INITIALLY this application was filed by the petitioner for quashing the order of suspension, dated 20.4.1999. During the pendency of the writ application the departmental proceeding, which was initiated against the petitioner, was ccnciuded and a punishment of dismissal from service was communicated to the petitioner by the Additional Secretary, Department of Health and Family Planning, Government of Bihar, vide letter no. 9, dated 29.11.2005. Petitioner filed I.A.No. 917 of 2006. for amending the prayer. The amended additional prayer is for quashing the order, dated 29.11.2005 communicated by the Additional Secretary, Department of Health and Family Planning, Government of Bihar, whereby he has been dismissed from service. I.A. No. 917 of 2006 was allowed and the additional relief formed the part of the main writ application.

(2.) PETITIONER is an employee of the State Government in the Department of Health While posted as Incharge, Medical Officer at Referral Hospital, Bhore, Gopalganj, he sent an indent to M.S.D., Calcutta, for purchasing medicines. The procedure for purchasing medicines in the Government Hospitals, as provided under the different Circulars of the Government, is that the official authorities for purchasing medicines will first place his requirements before the medicine manufacturing firms of the Government of India. Only in case of non -availability certificate from medicine manufacturing firms an indent can be placed on M.S.D., Calcutta. Prior to sending an indent to M.S.D., Calcutta, it is also required that it should be placed before the Directorate of Health, Government of Bihar. Allegation against the petitioner is that he placed indent no. 728, dated 12.9.1993, on M.S.D., Calcutta, without obtaining non -availability certificate from medicine manufacturing firms of the Government and without assigning a copy of the indent to the Directorate of Health. The indent was prepared by Lallan Prasad Singh. The cost of medicine indented was Rs. 1,60,342/ - which was sent under the certificate of posting. The M.S.D., Calcutta, dispatched indented medicines which were received in the hospital and were dispatched to the Health Workers posted at various Primary Health Centres. When, for payment, the M.S.D., Calcutta, placed its demand before the authorities in the Department of Health, the petitioner was put under suspension, a departmental proceeding was initiated. The charges were framed and served upon the petitioner on 31.8.1999. The petitioner had approached this Court earlier in C.W.J. C. No. 5219 of 1999 challenging the order of suspension, dated 20.4.1999. The writ application was disposed of directing the respondents to conclude the departmental proceeding within six months from the date of service of the charge -sheet. The present writ application was filed by the petitioner as the departmental proceeding was not concluded within the period of six months as directed by this Court. The order of dismissal has been challenged by the petitioner specially on three grounds, (1) the major punishment of dismissal has been awarded for minor charge, (2) dismissal is disproportionate and requires reconsideration, and (3) another ground is that due to non -supply of the copy of evidence in the departmental proceeding the order of dismissal has vitiated.

(3.) IN support of the ground that for minor charge major punishment has been awarded and also that the punishment of dismissal is disproportionate the counsel for the petitioner has placed reliance on the official report submitted by the Central Bureau of Investigation under Section 173 of the Criminal Procedure Code. The petitioner was also made an accused by the Central Bureau of Investigation in a criminal case instituted for the same facts. In this case Central Bureau of Investigation submitted final report for closure of case against the petitioner for want of sufficient evidence, and the final report has been accepted. The final report has been annexed with the writ application. On perusal of the final report submitted by the Central Bureau of Investigation it is apparent that during investigation no material came on record to corroborate the dishonest intention of the petitioner in purchasing the medicine from M.S.D., Calcutta. The indented medicines were received by the hospital and properly distributed. The Health Department did not suffer any financial loss on account of purchase of medicine from M.S.D., Calcutta. This finding is also recorded in the departmental enquiry report. The enquiry officer has also recorded a finding that department has not been able to find any evidence of financial misappropriation. In sum and substance only charge which is found proved against the petitioner is that in violation of the departmental circular and without taking prior permission an indent was sent on M.S.D., Calcutta, for purchasing medicine in excess of the fund allotted for this purpose. The counsel for the petitioner has also submitted that entire service career of the petitioner has been very clean. He has never faced any departmental proceeding. It has also been stated that for similar charge two persons, namely, Lallan Prasad Singh and Sri Om Nath Prasad were also placed under suspension for having violated Government procedure in placing indents for medicine on M.S.D., Calcutta. These two persons have been awarded punishment of censure in the departmental proceeding by the order of the Director -in -Chief, Health Services, holding that there has not been violation of any procedure in placing indents for medicine. First Information Report had also been instituted against these two persons. In this view imposition of punishment of dismissal for similar charge is an example of disproportionate punishment.