Srimati Dipali Kundu vs State of Bihar and Others

M.P. Varma, J.—In this application filed under Articles 226 and 227 of the Constitution of India, the petitioner has impugned the order, dated 11th June, 1981 (vide annexure ''1''). He has further prayed for issuance of writ for quashing the order in question on amongst others the following grounds.

(a) Reasonable and proper opportunity was denied to the petitioner, by way of withholding certain document from her relevant to the charge in issue which has caused prejudice in defending herself in the departmental enquiry.

(b) The charge-sheet served on the petitioner was not accompanied with the documents relating to the charge, as required under the rules and the guide-lines, given by the State of Bihar, under Appointment Department (now Department of Personnel) letter dated 29th of April, 1963 under memo No. 13046 dated 7.7.1978, the extract of which has been annexed to the petition as annexure ''4''.

(c) There was no enquiry under the statutory rules meant for conducting an enquiry or at any rate the same was done in a perfunctory manner and that the order of discharge passed on such enquiry report is violative of the principle of natural justice.

(d) The order impugned offends the statutory rule, i.e. note (i) below rule 2 of the Rules read with rule 166 (ii) and rule 167(g) of the Board''s Miscellaneous Rules in not getting the second show cause notice before imposing punishment.

(e) The enquiry has been assailed on the ground of bias and malice also.

The petitioner at the relevant point of time was employee as a Matron in the Government After-care Home (for brevity to be referred as ''Home'') at Patna City. On 27th of November, 1978 she was placed under suspension on the charges of commission of various sorts of irregularities and malfunctioning of the Home and on 21st of December, 1978 she was served with a charge-sheet, vide annexure ''3'' enumerating different heads of charges.

The departmental enquiry into the affairs against the petitioner was conducted by respondent No. 3. The enquiry came to a close finally on 4th of December, 1980. Respondent No. 2 Director in the Department of Social Welfare, on consideration of the report submitted by respondent No. 2 discharged the petitioner from service.

The case of the petitioner is that the necessary document which formed the basis of the charges were not handed over to her along with chargesheet, inasmuch as none of the relevant document brought in evidence against her were made available during the enquiry stage in the proceeding in spite of the repeated demands. The conduct of the respondents not only offends the principle of natural justice, but it caused prejudice to her and that the whole enquiry stands vitiated. It is also her case that she has not got happy relation with respondent No. 4 Smt. Mohini Bala Verma, Sub-divisional Welfare Officer of the Home, Patna City and that she was carrying some relation with respondent No. 3 the enquiry officer. At the relevant time Smt. Mohini Bala Verma was the Superintendent of the Home. She got some complaint filed before the inmates of the Home. The respondent No. 3 deputed a Magistrate to enquire into the allegation made against the petitioner. She therefore, at the earliest stage made a complaint that she might not get a fair deal at the hands of respondent No. 3 in the Departmental enquiry.

A counter affidavit has been filed on behalf of respondents 1, 2 and 3 In spite of the service of notice there has been no appearance on behalf of Smt. Mohini Bala Verma respondent No. 4.

On behalf of the respondent the allegation of non-supply of the copies of the relevant document has been strongly controverted. The learned Advocate General has argued that the petitioner was free to obtain copies and to take the extracts of the documents purported to have been filed in evidence against her. The learned Advocate General has further said that in fact copies of some of the documents were given to her under receipt vide annexure A/3 of the counter affidavit, and it is no gain saying now that any prejudice was caused to her. However, there is no denial of the fact that no such paper was attached to the chargesheet. The learned Advocate General contended, in my opinion rightly, that this procedural lapses will not vitiate the departmental proceeding and at the same time, I am conscious of the fact that as a writ court, we are not to adjudicate the question of disputed facts.

Annexure A/1 is a letter written to the petitioner from the Director, Health Services and along with it I find that copies of relevant documents relating to the charge were sent to her. In the letter it has also been made clear that some of the documents were kept in the office of Sub-divisional Welfare Officer and the petitioner was asked to examine all those documents before filing her show cause. Annexure A/2 is another letter addressed to the petitioner stating therein that on inspection of the records, if she makes a demand of some such relevant documents the copies thereof could be made over to her and annexure ''3'' is another letter dated 12.5.1980 which affirmatively speaks that copies of some of the documents were made over to the petitioner and there is no denial regarding it.

Thus, on consideration of the facts as discussed above, it has rightly been contended that the writ'' petitioner was directed to collect all the relevant documents from the office of the respondent No. 4 and it also appears that other relevant documents were handed over to the petitioner. In paragraphs 12 and 15 of the counter affidavit that all the relevant documents relating to the charge were furnished to the petitioner and that the enquiring officer has based his findings on the documents filed by the respondents relating to the charge. It is also stated on behalf of the respondent in paragraph 18 that the writ petitioner also filed some documents in support of the defence version and the writ petitioner, at any stage, did not express and desire much less any grievance to examine or cross examine any witness in support of her defence and at this stage, therefore, it cannot be argued, that the reasonable opportunity was denied to her within the meaning of the statutory rules under the Bihar and Orissa Subordinate Service (Disciplinary and Appeal) Rules, 1935.

Relying on the decision laid down in the case of Gopinath Singh Vs. State of Bihar and Others, in which my learned Brother Hari Lal Agrawal was also a party, the learned Counsel Sri Mukherjee has next argued that the statutory rules framed under the Board''s Miscellaneous Rules, as referred to in the foregoing paragraphs in giving second show cause notice before imposing penalty has not been followed. The learned Advocate General attempted to advance the same argument as contended in the case of Gopi Nath Singh that the rule now must be deemed to be non-existent in view of the constitutional amendment of Article 311. In the aforesaid case it has been held that notwithstanding the amendment of the Constitution there was no bar for the employer to give the benefit of the procedure which is not in conflict with the constitutional provisions. Issuance of second show cause notice gives an advantage to the employees of the State Government and in any view it is in no way derogatory to the constitutional amendment made under Article 311 of the Constitution. In the course of argument the learned Advocate General rather conceded that clause (ii) of rule 167 of the Board''s Miscellaneous Rules requires service of a second show cause notice on the delinquent before inflicting punishment and to call upon to show cause why such penalty be not imposed.

Thus, on consideration of the material facts and attending circumstances, referred to above, I am inclined to allow this application on the ground that punishment should not have been inflicted without affording further opportunity to the petitioner to file her explanation.

In the result, the application succeeds to the extent indicated above and as a result thereof the impugned order (vide annexure ''1'') is hereby quashed. The respondents are however, at liberty to issue a second show-cause notice against the proposed punishment to be imposed upon the petitioner and to pass a fresh order thereafter in accordance with law. In the circumstances, there will be no order as to costs.