IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 2695 of 2008 Judgment reserved on: 22.11.2010 Date of decision: 17.12.2010 Dr. R.K.Sood …Petitioner. Versus State of H.P. and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Ms. Sunita Sharma, Advocate. For the Respondents : Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh, Judge The petitioner in the petition has prayed quashing of Annexure A-2 order dated 19.9.1994 dismissing the petitioner from service with immediate effect in exercise of powers under Article 311 (2) read with proviso (b) of the Constitution of India. The prayer has also been made to re-engage the petitioner with all consequential benefits like continuity in service and arrears of salary etc. 2. The necessary facts, in brief, are that petitioner joined as G.D.O.-II on ad hoc basis on 18.6.1984 at Civil Hospital, Dehra. He was regularised on 13.6.1985. The petitioner has done M.D.(Medicines) in October, 1989. He joined his duty at Civil 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Hospital, Kandaghat in October, 1991. The father of the petitioner was suffering from chronic lung ailment. The petitioner was sanctioned earned leave from 21.2.1994 to 19.3.1994 to look after his ailing father. The petitioner had submitted telegram on 12.4.1994 for extension of leave which was forwarded by the Medical Officer Incharge, Civil Hospital, Kandaghat to respondent No.3 on 10.5.1994. The petitioner had submitted another application for extension of leave on 25.8.1994. 3. The petitioner and other doctors were transferred from Civil Hospital, Kandaghat to Civil Hospital, Rohru vide notification dated 10.5.1994 Annexure A-1. The Chief Medical Officers etc.in the State were directed to relieve the concerned Medical Officers immediately and directed them to join their duties at the next place of postings. The Medical Superintendents were also directed to submit their joining reports to the Department along with the list of defaulting doctors who do not join their duties after availing the usual joining time for taking disciplinary action. The father of the petitioner was suffering from serious ailment, therefore, petitioner could not join his new place of posting at Civil Hospital, Rohru, but he had submitted leave applications. 4. The petitioner had no intention to disobey transfer order dated 10.5.1994. The respondent No.1 vide order dated 19.9.1994 dismissed the petitioner from service. It has been alleged that order dated 19.9.1994 is wrong, illegal inasmuch as no inquiry was held against the petitioner. The detailed representation was made by petitioner to respondent No.1 on 7.11.1994 with reminder on 3 13.1.1995 and representation on 14.3.1995 but no action was taken by respondents on the representations of the petitioner. 5. It has been alleged that order dated 19.9.1994 is illegal, arbitrary, unconstitutional and violative of Articles 14, 16 of the Constitution of India. The petitioner could not join at his new place of posting due to illness of his father. The order dated 19.9.1994 has been issued without application of mind. The respondents have no sufficient reasons and grounds with them for dispensing with inquiry. The impugned order has been passed to victimize the petitioner. The disciplinary authority is not expected to dispense with disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry. The decision to dispense with the departmental inquiry cannot be rested solely on the ipse dixit of the concerned authority. The satisfaction of the Government for not holding the inquiry is based on no facts and is the outcome of the whim or caprice of the Governor. The respondents have not enclosed the copies of the separate order assigning the reasons for not holding an inquiry. It was incumbent upon the respondents to enclose the reasons of dispensing with the inquiry. The invocation of Article 311(2) read with proviso (b) by respondents is malafide. The imposition of penalty of dismissal from service is excessive. Hence, the petitioner has filed the petition for reliefs noticed above. 6. The respondents No.1 to 3 have filed joint reply. It has been submitted that the petitioner was posted in the exigencies of public service but he failed to comply with the order of the Government which is an act of unbecoming of Government servant. 4 The respondents have given the background under which the transfer was made. It has been stated that the matter of restructuring the Health and Family Welfare Department was engaging the attention of the government so that the medical facilities may be provided to the general public in every part of the State. In order to achieve this object, a scheme under rationalization and restructuring of the Department was devised. 7. It has been further stated that prior to implementation of the scheme, specialists and GDO doctors were performing similar type of roles and duties in the hospitals. The specialist doctors services and talent could not be utilized properly under the hospitals where the infrastructure was available or proposed to be made available in near future. The existing arrangement was lopsided. The poor patients were huddled in some of the bigger hospitals which resulted into overstraining the medical services in those hospitals. The poor patients used to be referred for specialized treatment from outside the State causing them inconvenience and hardship. In order to provide medical services in every part of the State, efforts were made to fill up 84 posts of specialists forthwith in order to function the hospitals and institutions and to achieve this objective, a large number of doctors were transferred despite their short stay. In this context, the petitioner was transferred from Civil Hospital, Kandaghat to Civil Hospital, Rohru. 8. The further stand of respondents is that despite transfer the petitioner did not join at his new place of posting, rather he was evading the service of his transfer order and also to relinquish the 5 charge. The doctor has neither joined the duty at Civil Hospital, Rohru nor complied with the order nor made himself available for further instructions. This act of the petitioner generated an atmosphere of general indiscipline amongst the doctors defying the Government orders. The petitioner had not served in the rural areas and was managing to stick to the places in urban areas. The petitioner had been knowingly absenting himself willfully in order to evade the service of the transfer orders. The petitioner was not available at a given point of time to receive further instructions and hence there was no alternative but to dispense with his services. 9. The dismissal of the petitioner is in accordance with law. The petitioner had been sending leave applications without prior sanction or approval. The petitioner was relieved from his duties by Chief Medical Officer, Solan to enable him to join his duties at new place of posting after availing normal joining time and journey days. However, the petitioner disobeyed the Government order by not joining his duty at new place of posting. The petitioner was not available for further instructions. It was not possible to know about his whereabouts and to contact him personally. In these circumstances, the services of the petitioner were dispensed with so that new incumbent is appointed on the post to serve the public. There was urgency for providing medical services to the poor patients. The respondents have prayed for dismissal of the petition. 10. I have heard the learned counsel for the parties. The learned counsel for the petitioner has reiterated the stand taken by the petitioner in the petition. It has been submitted that the respondents had no sufficient reasons and grounds with them for 6 dispensing with the inquiry. The disciplinary authority is not expected to dispense with the disciplinary inquiry lightly or arbitrarily. The reasons for not holding the inquiry were not enclosed with the impugned order. The Article 311 (2) proviso (b) was invoked malafide to victimize the petitioner. The punishment imposed is excessive in view of alleged misconduct attributed to the petitioner. The learned Assistant Advocate General has supported the impugned order and has submitted that the petitioner was evading to join at his new place of posting at Rohru. The petitioner had not served in rural areas. He managed his postings in urban areas. The petitioner is M.D.(Medicine). It was thought fit to post him at Rohru so that his services could be availed in that part of the State to the poor patients. He avoided his joining at Rohru. He remained absent without leave for pretty long time. The indiscipline caused by petitioner gave wrong signal to the other doctors. The Governor left with no alternative but to invoke Article 311 (2) proviso (b) of the Constitution of India in dispensing with the services of petitioner. 11. In order to appreciate the respective contentions raised on either side it is necessary to notice some judgments on the point. In Union of India and another vs. Tulsi Ram Patel (1985) 3 SCC 398, the Supreme Court has held that a disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311 (3) is not binding upon the court so far as its power of judicial review is concerned. It has also 7 been held that it is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. It has also been held that the second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reasons for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311 (2). The recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reasons for dispensing with the inquiry need not, therefore, find a place in the final order. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. There is no obligation to communicate the reason to the government servant. 12. The Supreme Court in Tulsi Ram Patel has also held that if the reasons are not communicated to the government servant and matter comes to the court, the court can direct the reasons to be produced and furnished to the government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non-production of the written reasons. 13. In Jaswant Singh vs. State of Punjab and others (1991) 1 SCC 362 it has been held that clause (b) of the second proviso to Article 311 (2) can be invoked only when the authority is 8 satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. It is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. 14. The Supreme Court in Chief Security Officer and others vs. Singasan Rabi Das (1991) 1 SCC 729, has held that the reasoning given for dispensing with inquiry that it was considered not feasible or desirable to procure witnesses of the security/other railway employees since that would expose the witnesses and make them ineffective in the future, the witnesses were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence, constitute no grounds for dispensing with the inquiry under Article 311 (2) (b). 15. In Sudesh Kumar vs. State of Haryana and others (2005) 11 SCC 525, it has been held that the enquiry under Article 311 (2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311 (2) (b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. It has been held that this was no ground for dispensing with the inquiry. 9 16. In Tarsem Singh vs. State of Punjab and others (2006) 13 SCC 581, it has been held that dispensing with inquiry on the grounds that it is not reasonably practicable to hold such inquiry that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means, no material has been placed or disclosed either in the said order or before the court to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It was held that no material had been placed by the respondents therein to satisfy the Court that it was necessary to dispense with a formal enquiry in terms of proviso (b) appended to Clause (2) of Article 311 of the Constitution. The Supreme Court has held that impugned orders cannot be sustained. 17. In Southern Railway Officers Association and another vs. Union of India and others (2009) 9 SCC 24, it has been held that reasons so recorded must be cogent and sufficient. It must be based on objectivity. The Court is required to consider what a reasonable man taking a reasonable view would have done in the situation then prevailing. An order of disciplinary authority in a case of this nature must be judged by a court exercising power of judicial review by placing itself in the disciplinary authority’s armchair. 18. The learned counsel for the petitioner has relied CWP (T) No. 1978/2008 Mohinder Singh Malhi vs. Commissioner, Municipal Corporation and others decided by a co-ordinate Bench 10 of this Court on 7.5.2009. In that case Section 73 (2) (b) of the Himachal Pradesh Municipal Corporation Act, 1979 was considered by the Court in which there is a provision to remove or dismiss an officer or employee if the competent authority is satisfied that for some reasons to be recorded by that authority, it is not reasonably practicable to give that person an opportunity of showing cause. The Court has held that petitioner in that case was not served with any show cause notice before removing him under sub-section (2) of Section 73. It has been held that in case the employer was under impression that it was not reasonably practicable to give any opportunity to show cause to the petitioner, the reasons were required to be recorded separately. The Corporation has failed to place any contemporaneous material on record to tangibly establish that the separate reasons were ever recorded as per the provisions of clause (b) of sub-section (2) of Section 73 of the Act. The services of the petitioner, who was confirmed employee, could not be terminated in a summary manner by the employer. In fact, a regular inquiry was required to be instituted against the petitioner. 19. The learned Assistant Advocate General has relied Division Bench judgment dated 29.12.2008 of this Court in CWP No. 470 of 2001 Dr. Rajiv Mahendru Vs. State of H.P. and another. It has been submitted by the learned Assistant Advocate General that the facts in Dr. Rajiv Mahendru were very close to the facts of the present case. In that case also the services of the petitioner were terminated under Article 311 of the Constitution of India without holding an inquiry. The petitioner in that case challenged his termination before the Tribunal and the Tribunal rejected the original 11 application of the petitioner on 24.4.2001 and the Division Bench vide judgment dated 29.12.2008 upheld the order dated 24.4.2001 of the Tribunal. 20. The petitioner was initially appointed as G.D.O.-II on adhoc basis on 18.6.1984. He was regularised on 13.6.1985. It appears during service the petitioner acquired M.D. (Medicine) degree. He joined duty at Civil Hospital, Kandaghat in October, 1991. The petitioner was transferred from Civil Hospital, Kandaghat to Civil Hospital, Rohru vide notification dated 10.5.1994 vide which 99 doctors including petitioner were transferred. The notification dated 10.5.1994 was endorsed to all the Chief Medical Officers etc. in Himachal Pradesh. The notification provides that the joining reports of the concerned doctors be sent to the department alongwith the list of defaulting doctors who do not join their duties after availing the usual joining time for taking disciplinary action. 21. The petitioner was relieved on 28.5.1994 afternoon of his duties by Chief Medical Officer, Solan to enable him to join his duties after availing of his normal joining time and journey days. The petitioner was expected to join his duties at his new place of posting by 8.6.1994. The petitioner failed to join at Civil Hospital, Rohru in pursuance to transfer order 10.5.1994, therefore, the petitioner was dismissed from service under Article 311 (2) (b) vide order dated 19.9.1994 with immediate effect. 22. The Supreme Court in the aforesaid judgments has interpreted Article 311 (2) (b). It has also been held that decision of competent authority under Article 311 (2) (b) is subject to judicial review. It is the contention of the petitioner that respondent No.1 12 has arbitrarily dispensed with the departmental inquiry knowing fully well that the case of the Government against the petitioner was weak. It has also been contended that it is not a case where it was not reasonably practicable to hold departmental inquiry against the petitioner. The order dated 19.9.1994 has been assailed on the ground that neither separate reasons of satisfaction that it is not reasonably practicable to hold such inquiry recorded before the order dated 19.9.1994 was passed nor such reasons have been supplied to petitioner nor produced in the court nor such reasons have been recorded in the impugned order dated 19.9.1994. 23. The order dated 19.9.1994 states that the petitioner has willfully disobeyed the government order by not joining his duties at the place of his new posting and is thus reluctant to serve the public at the new place of posting which is unbecoming of a government servant ostensibly with malafide intention to evade serving at the new place of posting thereby creating indiscipline and insubordination in the medical service which is not conducive to public interest. It has also been stated in the order dated 19.9.1994 that reasons have been recorded separately. It has also been stated that the Governor of Himachal Pradesh is satisfied that for the reasons stated above (in the impugned order) it is not reasonably practicable to hold such inquiry against doctor R.K.Sood. 24. On 24.6.2010 the respondent No.1 was directed by this Court to place on record separate reasons mentioned in order dated 19.9.1994 by way of affidavit. On 29.10.2010 the learned Additional Advocate General has stated that the reasons are not now available as the record has been destroyed. In Tulsi Ram Patel the Supreme 13 Court has held that if reasons are not communicated to the government servant, the court can direct the reasons to be produced and furnished to the government servant and if the reasons are not still produced, a presumption should be drawn that reasons were not recorded in writing and the impugned order would then stand invalidated. But it has also been held that this presumption can be rebutted by satisfactory explanation for non-production of the written reasons. In the present case the learned Additional Advocate General has stated that the reasons cannot be produced in the court as the record has been destroyed. There is nothing on record not to believe the statement of learned Additional Advocate General to this effect. This being the position, no adverse inference can be drawn against respondents for not producing written reasons regarding satisfaction for not holding departmental inquiry against the petitioner. There is presumption under Section 114 of the Indian Evidence Act, 1872 that official acts have been regularly performed. In these circumstances, the petitioner cannot take any benefit on the ground that the respondents have failed to produce in the court separate reasons of satisfaction for not holding departmental inquiry. 25. The reasons recorded separately and stated so in the order dated 19.9.1994 cannot be different from the reasons given in the order dated 19.9.1994 more particularly when in the order dated 19.9.1994 it has been clearly stated that the Governor of Himachal Pradesh is satisfied that for the reasons stated above (in the impugned order) it is not reasonably practicable to hold such inquiry against petitioner and therefore, Governor in exercise of powers vested in him under Article 311 (2) (b) to the said sub Article of the 14 Constitution is pleased to order the dismissal of services of petitioner with immediate effect in public interest. 26. The petitioner in the representation dated 14.3.1995 addressed to Chief Minister has given his address H.No.616 Sector 36 N, Chandigarh(U.T.). In the said representation, he has stated that his father used to run a shop at Shimla. In 1989 his father developed chest problem to such an extent that it became difficult for him to stay at hill area. In 1993 he was medically advised to leave Shimla and settle in plains. In these circumstances, the petitioner shifted his father to Chandigarh and continued to look after him at regular intervals from Kandaghat. In March 1994 the petitioner was on leave as the condition of his father worsen. In the representation dated 14.3.1995 he has stated that last month the condition of his father worsen and the petitioner had rushed his father to PGI, Chandigarh. He improved but required the services of the petitioner. It has been stated that for this reason, he could not attend his duties. He has also stated that from February 1994 onwards he had been continuously looking after his father. 27. The petitioner in the petition has submitted that he was sanctioned earned leave from 21.2.1994 to 19.3.1994 to enable him to look after his ailing father. He has also stated in the petition that he submitted telegram on 12.4.1994 for extension of leave. He has also stated that he submitted another application for extension of leave on 25.8.1994. In the petition he has not stated that on or after 20.3.1994 his leave was sanctioned by the competent authority. Thus, it is clear that on or after 20.3.1994 the petitioner was not on leave and was also not attending his duties. 15 28. The petitioner including 99 doctors were transferred vide notification dated 10.5.1994. The respondents in the reply have taken the stand that a scheme under rationalization and re- structuring of the department was devised. The specialists and G.D.Os doctors were performing similar type of roles and duties in the hospitals. The specialists doctors could not be entrusted duties according to their specialized training and talent because their services were not being utilized under the hospitals where the infrastructure to this effect either was available or proposed to be made available in the near future. The existing arrangement was lopsided. In these circumstances, efforts were made to fill up 84 posts of specialists forthwith in order to function the hospitals and institutions and, therefore, transfers were ordered.