Dina Nath vs District Medical Officer and Others

V.D. Misra, C.J.—Dina Nath Petitioner was appointed as Malaria Inspector in March, 1956. Later on this post was redesignated as Sanitary Inspector. On 6-8-1968, the Petitioner was suspended. He was served with a charge sheet. It was alleged that he has married another girl without the consent of his previous wife Smt. Tara Devi which was in contravention of government servants conduct rules. The second wife''s name was given as Smt. Snehroo Devi. Enquiry was held and the enquiry officer reported that the charge was duly proved. The disciplinary authority thereafter issued a show cause notice to the Petitioner proposing a penalty of removing him from service. The Petitioner was thereafter removed from service. His appeal to Respondent No. 2, Director of Health Services, was rejected. The Petitioner then filed an appeal to the Governor which was never decided.

The Petitioner received a memo, dated 11-8-1972 intimating him that it was proposed to hold a fresh enquiry. The Petitioner objected to fresh enquiry. He requested that before holding the fresh enquiry, the order of his removal be set aside and he be reinstated. The Petitioner thereafter did not participate in any fresh enquiry.

The defence of the Petitioner was that he was already married to Tara Devi as well as Snehroo Devi before he joined service, and, therefore, no misconduct was committed by him. It is the contention of the Petitioner that the Government''s decision to hold fresh enquiry shows that the previous enquiry was not proper and should be set aside. It is also contended that the Civil Surgeon, who passed the order of Petitioner''s removal, was not the disciplinary authority since the Petitioner had been appointed by the Director of Health Services.

The relevant file containing the enquiry proceedings etc. is not available since it is stated to have been lost in a fire which gutted the building housing the office of the Director of Health Services. I have, therefore, to go by the paper book which fortunately was complete before the aforementioned fire. The State has annexed copies of the office memo, in respect of the appeal filed by the Petitioner before the Governor. Annexure ''Y'' to the return is a memo, from the Under Secretary (Health and Family Planning) to the Director of Health Services. It is pointed out that the case was referred to the Law Department for opinion which opined that there was a lacuna in the enquiry report. According to Law Department, the enquiry officer has not been able to establish the fact regarding the Petitioner''s marriages with two women. It was also mentioned that the declaration of plural marriages which was stated to have been submitted by the Petitioner at the time of joining the service, was not available on the record. It was, therefore, suggested that a fresh enquiry be conducted. The State does not deny that it decided to hold a fresh enquiry. It is stated that since the Petitioner did not co-operate so the fresh enquiry could not be held.

The very fact that the State had decided to hold a fresh enquiry shows that the State had come to the conclusion that the previous enquiry was not proper. The necessary consequence should have been to set aside the previous enquiry because without doing so no fresh enquiry could be conducted under the rules. The Petitioner was justified in not participating in the fresh enquiry and insisting that the order of his removal should be set aside before fresh enquiry is held. Even for this reason the Petitioner must succeed in the present writ petition 1, therefore, need not go into the questions which have been raised assailing the enquiry proceedings.

The Petitioner is also entitled to succeed on the ground that he was removed by a person who was subordinate to the appointing authority. It is not disputed that the Petitioner was, in fact, appointed by the Director of Health Services. He was removed by Civil Surgeon (D.M.O.), Mandi district, Mandi. The State supports the removal on the ground that by a notification dated 24-11-1963 issued under Sub-rule (2) of Rule 11, Clause (b) of Sub-rule (2) of Rule 14, and Sub-rule (1) of Rule 23 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, by the Administrator of Himachal Pradesh, the Civil Surgeon (D.M.O.) of the District concerned was a competent authority to impose the penalty. It is true that under the notification this authority has been vested in the Civil Surgeon (D.M.O.). But in the instant case the Petitioner was appointed by the Director of Health Services and under Article 311 of the Constitution, he could not be removed by any authority subordinate to the appointing authority. Admittedly, Civil Surgeon (D.M.O.) is an authority subordinate to the Director of Health Services.

A Full Bench of the Delhi High Court in the Management of Delhi Transport Undertaking v. B.B.L. Hajelay and Anr. 1972 S.L.R. 229, came to consider a somewhat similar situation. It was held that since at the time of appointment the powers of removal did not vest in an authority subordinate to the appointing authority, the subsequent conferment of the power of removal by the former would be of no avail.

A Full Bench of the Jammu and Kashmir High Court in State of J. and K. v. Raj Mohammad 1971 S.L.R. 828, took a similar view. It was held that if the appointing authority and the disciplinary authority are different, then they must be at least of co-ordinate and equal rank and the latter should not be subordinate to the former. It was pointed out that the subordination has to be understood in terms of rank and not in terms of the exercise of powers.

In the instant case though the power to impose a penalty of removal from service as a disciplinary authority had been duly conferred on the Civil Surgeon, it was conferred after the Petitioner had been appointed by the Director of Health Services. The Civil Surgeon could not, therefore, impose the penalty of removal on the Petitioner.

The petition is, therefore, allowed and the impugned order removing the Petitioner from service is hereby set aside. The Petitioner will be entitled to the costs of this petition.