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Judgment
Honourable Mr. Justice Vinod K. Sharma
The Petitioner while working as Nursing Assistant, Grade IIA, filed a complaint regarding missing of drugs. The respondents instead of holding
enquiry against the guilty person, issued a charge memo dated 11.09.1991 to the petitioner. The petitioner submitted a detailed reply to the charge
memo, On receipt of reply of the petitioner, the respondents did not proceed with the proposed departmental enquiry, but instead by treating it to
be a case of negligence, imposed a minor punishment of recovery of Rs. 27,615/-(Rupees twenty seven thousand six hundred and fifteen only).
The petitioner did not challenge the order imposing minor punishment, but, the respondents also did not proceed further to implement the order
of recovery against the petitioner.
Even though the order imposing punishment was passed against the petitioner on 17.10.1991. The audit department on 20.03.1992 raised
objection qua, the missing drugs and pointed finger against four doctors and three nurses working in the department, holding them to be
responsible for the loss. The value of the loss was assessed at Rs. 17,196/-(Rupees seventeen thousand one hundred and ninety six only).
The respondents did not reply to the audit objection nor any explanation of indicted Doctors and Nurses was called for. The respondents
thereafter issued a second charge memo on the same allegation as was levelled against the petitioner on 11.09.1991.
The petitioner again submitted reply to the second charge memo which was found to be not satisfactory, and an enquiry officer was appointed
to look into the charges levelled against the petitioner.
Surprisingly, the enquiry officer instead of proceeding against the petitioner, treated her to be a witness, and asked her to give the list of Doctors
and Nurses who were responsible for missing drugs. The enquiry officer did not proceed any further after receipt of requisite information.
On 30.07.1999, the department issued third charge memo against the petitioner alleging that the petitioner caused loss to the tune of Rs.
27,196/-(Rupees twenty seven thousand one hundred and ninety six only) being responsible for the missing drugs. This charge memo was also not
proceeded further, as no enquiry was held after issuance of the third charge memo.
On 20.12.1993, the petitioner was served with another charge memo qua missing drugs, but the value was shown as Rs. 17,196/-(Rupees
seventeen thousand one hundred and ninety six only). In this charge memo, instead of making the petitioner a single accused, Tmt. Shanthi, Staff
Nurse was also made as party to departmental proceedings.
In the enquiry, the petitioner as well as Tmt. Shanthi were held responsible for the loss on 50:50 basis, and a sum of Rs. 8,598/-(Rupees eight
thousand five hundred and ninety eight only) was ordered to be recovered from both the delinquents, i.e. petitioner and Tmt. Shanthi. The
department thereafter chose to take no action on this finding also as no recovery was made.
On 16.11.2003, another charge memo was issued against the petitioner and Tmt. Shanthi alleging loss on account of missing drugs. In this
enquiry report, Tmt. Shanthi was held solely responsible for the loss of drugs. Whereas the petitioner was held guilty of negligence. It is pertinent to
mention here that the enquiry officer did not examine any witness before recording a finding holding Tmt. Shanthi to be guilty for the loss and the
petitioner to be guilty of negligence.
The competent authority accepted the enquiry report and ordered recovery of loss from Tmt. Shanthi whereas imposed punishment of censure
against the petitioner.
The petitioner being aggrieved by the punishment of censure, filed a writ petition in this Court. The writ petition was admitted, but it came up
for final hearing, the writ petition was dismissed, in view of availability of alternative statutory remedy of appeal. The petitioner was permitted to file
statutory appeal with direction to the appellate authority to dispose of the appeal within stipulated period on merit.
Inspite of the fact that the appeal was filed within a period stipulated by this Court, the appellate authority did not take a decision as directed
by this Court which forced the petitioner to file contempt petition against the Principal Secretary to Government, Health and Family Welfare (I-2)
Department, the first respondent herein, for not deciding the appeal.
After filing the contempt petition the appellate authority accepted the appeal, and set aside the order of censure passed against the petitioner.
The reason for accepting the appeal was that enquiry was not conducted by following the principle of natural justice, as no witnesses were
examined nor the delinquents were given an opportunity to defend.
However, while setting aside the order of censure, the appellate authority remanded back the case to the enquiry officer to continue the enquiry
from the stage where it was held to be defective; i.e. to examine the witness of the prosecution and also to give opportunity to the delinquent to
defend.
The petitioner being aggrieved by the impugned part of the order of remand to the enquiry officer, has approached this Court for quashing the
order passed by the appellate authority.
The impugned order is challenged on the ground that it is not permissible that the respondent No. 1 held denovo enquiry, 21 years after the
date of occurrence. Because, with loss of time, the records have been lost and the petitioner''s right of defence has been prejudiced.
On consideration, I find that the impugned order cannot be said to be an order directing denova enquiry as contended. The appellate authority
while setting aside the order of punishment on technical ground, merely remitted back the case to the enquiry officer to proceed with the enquiry
from the stage, it was found to be defective, the procedure adopted therefore, cannot be said to be bad in law, as it is always open to the appellate
authority while setting aside the order, to remit the matter back to the enquiry officer to enquiry in accordance with law.
However, in view of the peculiar circumstances of this case, the impugned order as well as charge memo deserves to be quashed. The charge
memo issued against the petitioner cannot be sustained in law, being hit by Article 20 of the Constitution of India, as the petitioner was imposed a
punishment for negligence as far back as on 17.10.1991 and therefore cannot be prosecuted or punished more than once, whereas in this case it is
the fourth charge memo.
Even though in view of the order dated 17.10.1991, it was not open to the respondent No. 1 to hold departmental enquiry, but on the same
charges, the petitioner was made to face another enquiry by issuing fresh charge memo though no action was taken thereof. Thereafter, the
respondents issued charge memo on 30.7.1992 which was again dropped. The petitioner thereafter faced another enquiry on the same charges
vide charge memo dated 20.12.1992 in which the petitioner was held guilty of loss to the tune of Rs. 8,598/-(Rupees eight thousand five hundred
and ninety eight only).
The facts stated hereinabove clearly shows that the petitioner was repeatedly issued charge memo without application of mind, and the powers
vested in respondent No. 1 to hold departmental proceedings have been used as instrument of harassment to the petitioner, therefore, issuance of
charge memo amounts to misuse of process of law, thus, charge memo as also the impugned orders are not only hit by the article 20 of the
Constitution, but on the face of it are arbitrary, thus, hit by Art.14 of the Constitution of India. Furthermore, holding of enquiry at this belated stage
after 21 years of alleged misconduct has caused prejudice to the petitioner to effectively defend herself, due to loss of documents, material
evidence. The charge memo therefore, is also hit by the denial of right of natural justice. Consequently, this writ petition is allowed. Charge memo
as well as impugned order are set aside, but with no order as to costs.