IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1958 of 1996 DR.RAJENDRA KUMAR RAJESH, son of Sri Laldhan Mahto, resident of village Abgil, P.O. Paharpur, P.S. Medanichawki, Via Surajgarha, District Lakhisarai … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary cum Commissioner, Department of Health, Bihar, Patna 3. Under Secretary to the Government, Department of Health, Bihar, Patna 4. Dy. Director, Department of Health, Bihar, Patna 5. Deputy Secretary cum Chief Vigilance Officer, Department of Health, Govt. of Bihar, Patna 6. District Magistrate, Rohtas at Sasaram 7. Civil Surgeon cum Chief Medical Officer, Rohtas at Sasaram … Respondents. ----------- 3. 24.6.2010 Heard Mr. D.K.Sinha, learned Senior counsel appearing on behalf of the petitioner and Mr. Sanat Kumar Mishra, A.C. to G.A.II, for the State. In this writ application the petitioner has assailed an order of punishment passed pursuant to a departmental proceeding and in this regard the relief claimed by him in paragraph 1 of the writ application reads as follows: “I. To quash the order of dismissal issued by Memo No. 1456(18) dated 16.12.1995 issued by respondent no.3 contained in Annexure 16. II. To hold the inquiry report dated 7.2.91 held by respondent no.3 as vitiated in law and thereby 2 quash the same, contained in Annexure 13. III. To quash the order dated 26.7.1991 issued by respondent no.4 by which decision of the Government has been communicated that the petitioner be removed from the service on the basis of enquiry report submitted by conducting officer, contained in Annexure 14. (iv) To direct for payment of all consequential benefit.” Mr. Sinha, learned Senior counsel for the petitioner, while assailing the aforementioned order of punishment of the petitioner had initially raised the question of bias of the Minister of Irrigation as also of the Collector of the District. He had submitted that the report of the Collector dated 9.6.1990 would go to show that it was the Minister of Irrigation who had directed the Collector to hold enquiry as with regard to irregularities committed by the police and the doctors of the Sadar Hospital in respect of a victim of rape and therefore, it has to be presumed that the petitioner and other doctors were made target on account of interference of the Irrigation Minister. He has also in this 3 regard referred to the following passage of the fact finding report submitted by the Collector on 9.6.1990: ^^ vr% mi;qZDr rF;ksa vkSj mlds fo'y"k.k ds vk/kkj ij esjh ;g Li"V] Bksl vkSj dM+h vuq'kalk gS fd bu lHkh MkWDVjksa dks vfoyEc fuyafcr fd;k tk, vkSj bu ij iw.kZ foHkkxh; dk;Zokgh pykdj mUgsa dBksjre :i ls nf.Mr fd;k tk, D;ksafd blls T;knk vkSj xaHkhj vijk/k eSa ugha ekurk gWaw fd 8 o"kZ dh ,d xjhc ?kj dh yM+dh ds lkFk cykRdkj tSls t?kU; ?kVuk gks vkSj ogkWa MkWDVjksa ds }kjk fdlh fufgr LokFkZ ls ekeys dks jQk&nQk djus gsrq mfpr le; ij tkap dj fjiksVZ u fn;k tk, vkSj ckn esa le; chr tk, rks ;g dgk tk, fd ^^16-5-90^^ vc Lokc dk fjtYV fuxsfVo vk jgk gS tks fd bruk le; chr tkus ds ckn fuxsfVo gh vk ldrk gS& ,sls MkWDVjksa ij ;fn dBksjre dkjZokbZ ugha fd;k x;k rks iz'kklu dk dksbZ vFkZ ugha jg tk;sxk vkSj ,sls t?kU; vijk/kksa dks gksus vkSj vfHk;qDrksa dks cp fudyus esa ,sls xyr MkWDVjksa }kjk c<+kok gh feysxkA^^ On the basis of the aforementioned portion of the fact finding report Mr. Sinha is of the view that the Collector of the District had prejudged the issue which would be indicative of his bias. Such submission of Mr. Sinha has to be noted for its being rejected, inasmuch as the plea of bias as known in law has two facets namely malice on fact and malice in law. Obviously when Mr. Sinha has tried to allege malafide against the Minister and the Collector his plea is of one malice on fact. In fact he had proceeded that had the 4 Minister not interfered and had the Collector not submitted fact finding report no action has been taken against the petitioner and others. Such plea first of all cannot be looked into in absence of Minister and the Collector, inasmuch as none of them have been impleaded as party by name. It is well settled that the plea of personal malafide can be gone into in a writ petition only if such persons have been impleaded party by name so that they can file their affidavits with regard to individual allegation of malafide. That apart the plea of malafide must fail also on the ground that an Irrigation Minister belonging to that very area in course of his official visit when informed about certain being lings and atrocities committed by the local officials including police and/or doctors with regard to a victim of rape could not have remained a mute spectator. His conduct of directing the Collector of the District for holding an enquiry for taking appropriate action cannot be termed as malafide, inasmuch as both on account of being a representative of people 5 of the area and also being part of Government machinery, he was well within his powers to have got initiated a fact-finding enquiry by the Collector. He had therefore done only his duty by brining the matter to the notice of the head of district administration i.e. the Collector. So far the Collector of the District is concerned, he being the head of the administration of the entire activities in the district it was well within his jurisdiction to hold a fact finding enquiry and if after holding such enquiry he had come to a prima facie conclusion that the doctors including the petitioner had in a calculated manner given a false injury report for hushing a grave offence of rape involving an eight years old girl, and thereafter had gone to only recommend to the State Government in the Health Department for placing them under suspension and initiating departmental proceeding against the erring doctors, such action of the Collector cannot be even questioned much less termed as malafide. The Collector of the District cannot be expected to remain a mute spectator even if he would 6 find that the police and doctors were instrumental in hushing an offence of rape. The plea of malafide, therefore, as usually held by the courts, is a resort of loosing litigants and unfortunately in this case, that has been the first plea taken by the learned counsel for the petitioner probably by taking into account that he had otherwise also no case on merit as would be evidenced from the facts and circumstances recorded hereinbelow. The next submission of the petitioner that the petitioner in capacity of a Pathologist could not be held guilty for any error in the report of board can also not be accepted. It is not in doubt that the petitioner was posted as a Pathologist in Sadar Hospital, Sasaram and was a joint signatory to the medical report prepared by three doctors including himself. It is also not in dispute that the Civil Surgeon of Rohtas at Sasaram by a general order had made it clear that whenever an alleged case of rape was referred to for reporting injury, the same was not only reported by the lady doctor in capacity of 7 Gynaecologist but by a team of doctors consisting of an Orthopedeacian cum Radiologist, a lady doctor Gynecologist and a Pathologist. Such fall proof system in fact had a laudable object inasmuch as the age and injury to the victim of rape could be scientifically determined by such three specialists of their field. Thus the repeated submissions of the learned counsel of the petitioner of there being no utility or purpose of a Pathologist being member of such board would also be of no avail inasmuch as the presence of the petitioner in capacity of the Pathologist was secured with a view to get his report, crucial for finding out and for recording the objective finding of rape inasmuch as alone by taking samples of vaginal swab could have detected the presence of spermatozoa, a relevant finding for the offence of rape. The petitioner also does not deny that he had voluntarily participated in the proceeding of the Board when the case of the victim girl was referred to the Board for recording her injury report. It has to be also kept in mind that it was not a case of 8 the victim girl being directly sent to the Board for her medical examination, rather on 14.5.1990 the victim Girl, Rengani Kumari, aged about eight to nine years with an injury in her private part was initially brought to Kudra State Dispensary and one Dr. Uday Shankar Pathak, the In-charge Medical Officer of Kudra State Dispensary, without even examining the victim girl had straightway forwarded her for being examined in Sadar Hospital, Sasaram. Dr. Pathak however had recorded in the patient register and also on his forwarding O.P.D. slip that the victim girl had sustained “injury to the private parts”. The materials brought on the record in the departmental proceedings would further go to show that Dr. Uday Shankar Pathak had also informed the police and had referred the victim girl to Sadar Hospital by giving a note on OPD slip that the victim girl had injury in Vagina and perineum. It has to be noted that when such an information was given to police by Dr. Pathak, it had registered Kudra P.S.Case No. 60/1990 dated 14.5.1990 under section 376 of the Indian Penal Code. The Officer In-charge 9 of Kudra Police Station also in his forwarding note to the Chief Medical Officer (Civil Surgeon), Sasaram had not only mentioned about the alleged offence of rape but had also enclosed the OPD slip of the In-charge Medical Officer of Kudra State Dispensary and had also sent the blood stained apparel of the victim girl, as would be evidenced from the copy of the forwarding note of the Officer In-charge dated 14.5.1990 reading as follows: “eq[; fpfdRlk inkf/kdkjh ^lh0,l0^ lklkjke izlax&dqnjk Fkkuk dk.M la0 60@90 fnukad 14-5-90 /kkjk 376 Hkk0 n0 fo0 A fo"k;& jsaxuh dqekjh firk jke xgu 'kekZ dks mfpr bykt ,oa izfrosnu gsrqA egk'k;] mijksDr izlax ,oa fo"k; ds lEcU/k esa lwfpr djrs gq, vkxzg djuk gS fd jsaxuh dqekjh firk jke xgu 'kekZ lk0 dqnjk ftyk jksgrkl ds mfpr bykt gsrq fpfdRlk inkf/kdkjh dqnjk egksn; us lnj vlirky lklkjke vxzlkfjr fd;s gSaA vr% vuqjks/k gS fd mijksDr jsaxuh dqekjh dk fpfdRlk dj izfronsu nsus dh d`ik djsaA t[eh dk [kwu yxk diM+k lkFk esa Hkstk tk jgk gSA lefiZr ,e0 ,l0 [kkW 14&5&90 v0 fu0 dqnjk Fkkuk A” It is not in doubt that under the prevailing practice in Sasaram Sadar Hospital under the orders of the Civil 10 Surgeon dated 21.12.1989 and reiterated by the Deputy Superintendent of Sadar Hospital, Sasaram vide his order dated 25.1.1990 the cases of rape were invariably referred for medical opinion and preparation of the injury report by a Board of three doctors consisting of Orthopadician cum Radiologist, the Gynecologist and Pathologist and thus, the same procedure was also followed in the case of the victim girl Rengani Kumari. The injury report prepared by the aforesaid Board of three doctors dated 14.5.1990, including the petitioner, would go to show that the petitioner in capacity of the Pathologist even without examining the private part of the victim girl had prepared the following injury report: “Examined Regini Kumari, D/o Ram Gahan Sharma, Kudra, Rohtas on 14.5.1990 at 3 p.m. and found the following injury on her persons: (1) One lacerated wound on her perineum about ½” x ½” skin deep. The injury is simple in nature caused by hard blunt substance. The age of the injury is within 12 hours. X-ray plate shows that ossification centre of Redius appeared but not fused. 11 Ossification centre of ulna has not appeared. According to X-ray plate Dr. O.N.Jayaswal Ortohpedic Surgeon, Sadar Hospital, Sasaram given the opinion that her age is near about 7-8 years (seven to eight years). An old would scar mark on knee joint. X-ray report and X-ray plate is handed over to police. Countersigned. Sd/-O.N.Jayaswal Sd/-AshaSingh Sd/-R.K.Rajesh” In fact this shocking injury report with regard to a victim girl subjected to rape, whose blood stained apparel and forwarding note of the police could leave nothing for speculation that there had to be an exhaustive examination for recording the finding with regard to rape, had left the police with no alternative but to seek a clear report and that is how the Officer In- charge of Kudra Police Station on 16.5.1990 had again sought specific opinion on the following points: “vr% fuosnu gS fd fuEufyf[kr foUnqvksa ij tkWp izfrosnu nsus dk funsZ'k iznku djsaA 1- D;k jsaxuh dqekjh ds lkFk cykRdkj fd;k x;k gS ;k ugha\ 2- cykRdkj dk le; 12 3- D;k cykRdkj ds dkj.k xqikax dk {kfrxzLr gqvk gS ;k dksbZ nqljk vaxA 4- jsaxuh dqekjh dk mez d`I;k crk;saA g-@&vLi"V lefiZr 16&5&90 v- fu- dqnjkA” On receipt of the said requisition of the police the Civil Surgeon had again directed the Gynaecologist- lady doctor to submit a clear report by a Board of doctors consisting of specialist in Gynecology, Radiology/Orthopaedics and a Pathology. Thereafter on 16.5.1990 itself Dr. (Mrs.) Asha Singh, the lady doctor- gynecologist alongwith Dr. O.N.Jaiswal the radiologist/orthopaedician and this petitioner the pathologist had submitted their report dated 16.5.1990 after re- examining the victim girl wherein it was recorded that it was not possible to give any definite opinion on the said report in view of the earlier injury report as also as per negative swab report of vaginal swab examination for sperm. Therefore, in the said report Dr. (Mrs.) Asha Singh in capacity of lady doctor had also indicated that there was a definite injury on the 13 perineum but it was not possible to comment whether it was due to rape. The Board consisting of the petitioner had also reiterated the age of the victim girl to be same as recorded in the earlier report and in this context it would be quite useful to also quote in extenso the second opinion of the Board as with regard to the injury on the victim girl: “To, O/c Kudra Sub: Examination of the Ragini Kumari D/O Ram Gahan Sharma Kudra as per your requisition dated 16.5.90 (second requisition). In continuation of examination report submitted on 15.5.90 as per your requisition dated 14.5.90 the girl Ragini Kumari is re-examined today. On 16.5.90 at 9.10 A.M. by Medical Board constituted by the order of the Civil Surgeon Sasaram comprising of the following doctors Dr. O.N.Jayaswal Orthopaedic Surgeon, Dr.Smt. Asha Singh lady doctor, Dr.R.K.Rajesh Patholigist and found the following Regarding Q.No.(1) and (2) as per injury report submitted on 15.5.90 and as per negative swab report of the veginal swab examined for sperm. It is not possible to give 14 any definite opinion about the rape on the girl. Regarding Q.No.(3) there is definite injury on the perineum but it is not possible to comment whether it has been due to rape. There is no injury on the other parts of the body. Regarding Q.No.(4) the age determination report has already been submitted in the report of 15.5.90. Report of vaginal Swab is attached Herewith. Sd/-O.N.Jayaswal Sd/- Mrs.Asha Singh Sd/- R.K.Rajesh. 16.5.90” From a reading of the said reference it would be clear that the police had already recorded the case under section 376 I.P.C. which is an offence of rape. Additionally blood stained apparels of the victim were also sent by the police to the Chief Medical Officer. In that view of the matter, neither the petitioner in capacity of pathologist nor the lady doctor in question can feign ignorance of there being no prior knowledge to them of the victim 15 being subjected to alleged rape. That in fact is not also the case of the petitioner and/or lady doctor, inasmuch as it has come in course of enquiry that the lady doctor herself had admitted before the enquiry officer that it was a suspected case of rape. Once one of the doctor of the Board had suspected it to be a case of rape her conduct or the conduct of the petitioner in capacity of Pathologist to ignore the all important aspect of examining the objective finding of rape by holding pathological test of vaginal swab cannot be held to be a minor lapse on the part of the petitioner. The petitioner cannot be also heard to say that since the lady doctor did not collect the vaginal swab and therefore, he had not conducted pathological test. All the three members of doctors were well qualified doctors who must have in their student life read the subject of Medico Legal Jurisprudence which is a part of the M.B.B.S. course. The matter gets even worse when it is found that the three doctors of the Board had admittedly found an injury in perineum of a eight years old victim girl. 16 Such medical terminology of “Perineum” may be unknown to a common man but is well known to the doctors. In fact this part of the explanation had also been admitted by the lady doctor in course of the common enquiry who had explained that “Perineum means the region of the body between the anus and the urethral opening including both skin and underlying muscle. In females it is perforated by the vaginal opening”. Thus, the moment the petitioner in capacity of Pathologist failed to collect the vaginal swab despite there being bleeding injury on perineum of the victim girl for its Pathological examination, and became joint signatory to the medical report holding no trace of rape, the misconduct on his part had stood automatically proved. If in this background the first report of the medical board including that of the petitioner is examined, the same easily would not only expose the defence of the petitioner but also make him squarely liable for being equally responsible in dereliction of his duty in capacity of Pathologist. The presence of blood stained 17 cloth, the opinion of the lady doctor of a possible case of rape in the presence and to the knowledge of the petitioner, a pathologist, was sufficient for the petitioner to insist for collection of vaginal swab for its pathological examination for finding out the presence spermatozoa, a significant link for establishing the offence of rape. Thus the aforesaid chain of events examined either individually or collectively will lead to one and only one conclusion that the petitioner had in league with the lady doctor and the Orpadaecian cum Radiologist submitted a false and misleading first injury report reading as follows: “Examined Ragini Kumari, W/o Ram Ghan Sharma, Kudra, Rohtas on 14.5.90 at 3 P.M. and found the following injury on her persons (i) One lacerated wound on her perineum about 2”x1/2”xskin deep. The injury is simple in nature caused by hard blunt substance. The age of the injury is within 12 hours. X-ray plate shows that ossification centre of radius appeared but not fused. Ossification centre of ulna has not 18 appeared. According to X-ray plate Dr. O.N.Jayaswal orthopedic Surgeon, Sadar Hospital asaran given the opinion that her age is under about 7-8 years (seven to eight years) An old found scar mark on knee joint. X-ray report and X-ray plate is handed over to police.” Sd/- O.N. Jaiswal Sd/-Asha Singh Sd/- R.K. Rajesh There would be thus no difficulty to also come to a finding that the petitioner was well aware of the life of a Spermatozoa, inasmuch as he himself in his second report on the insistence of the police had stated that in swab test no spermatozoa could be found because 48 hours already had elapsed. In that view of the matter, the petitioner in capacity of Pathologist was in fact solely responsible for failing in collecting vaginal swab from the victim of rape, about which there was no doubt from the beginning, in view of the requisition with blood stained cloth of victim, sent to them by the doctor of Kudra Primary Health Centre and the Officer In- charge of Kudra Police Station. Consequently, this Court would not 19 find any merit in the aforesaid defence of the petitioner as was also taken before the Enquiry Officer, who had rightly rejected the same while coming to the following conclusion: ^^ Mk0 jkts'k dqekj ^^jkts'k^^ bl xyr t[e izfrosnu ds fy;s Hkkxhnkj gS] D;ksafd Lokc dk iSFkksyksftdy tkWp] iSFkksyksftLV dh tokonsgh Fkh vkSj blds fy, iSFkksyksftLV dks esfMdy cksMZ esa lfEefyr fd;k tkrk gSA Mk0 jktsUnz dqekj dks pkfg;s Fkk fd ;fn efgyk pfdRlk inkf/kdkjh us izFke fnu ;kfu fnukad 14-5-90 dks tkWp gsrq Lokc ysus ds fy, Mk0 ^^Jhefr^^ flag dks dgrsA fdUrq mUgksus ,slk ugha fd;kA bruk gh ugha] bUgksus vius C;ku esa vuko';d :i ls ;g fl) djus dk iz;kl fd;k gSa fd ;g jsi ds'k dk ekeyk ugha gSaA** In fact the aforesaid finding of the Enquiry Officer would also unquestionably raise a direct finger of accusation against the petitioner, inasmuch as it was he who all along had taken a consistent stand in course of enquiry that even an eight years old girl having bleeding injury in her perineum region had not at all been made victim of rape. Dr. (Mrs.) Asha Singh, the lady doctor in question, alongwith the petitioner and Dr. Jaiswal, the Orthopaedician were in fact after being subjected to the same enquiry were given the same punishment of 20 dismissal from service and this Court by a separate judgment dated 22.6.2010 in the case of a lady doctor Smt. Asha Singh in C.W.J.C.No. 901/1996 has already dismissed her writ application. In the case of Orthopaedician cum Radiologist, Dr. O.N. Jaiswal, since the Enquiry Officer had given finding in his favour holding the charge against him to be not proved by giving him the benefit of doubt and yet the disciplinary authority had passed the order of punishment of his dismissal without giving any notice and/or an opportunity of hearing this Court therefore has only remitted the matter back to disciplinary authority by a separate judgment dated 22.6.2010 in C.W.J.C.No. 1646/1996 by directing to proceed against him from the stage of submission of enquiry report. Thus, once this Court comes to the conclusion that there was a direct complicity on the part of the petitioner and the misconduct on his part was writ large on record, this Court would not also accept the remaining part of the submission of Mr. Sinha, the learned Senior counsel for the 21 petitioner, that the impugned order of punishment is not a speaking order. It is not a case where the Enquiry Officer had exonerated the petitioner from the charge, rather as noted above, he had held the petitioner completely guilty of the charge framed against him. In such cases there would be no need to pass a reasoned order of punishment as was held in the Constitution Bench judgment of the Apex Court in the case of State of Assam & ors. vs. Bimal Kumar Pandit, reported in AIR 1963 S.C. 1612. It is in fact only in those cases where the enquiry report is either partly in favour and partly against the delinquent or wholly in favour of the delinquent that the disciplinary authority would be required to pass a reasoned order in the event of filing of show cause reply by the delinquent. The impugned order of punishment of the petitioner in fact cannot be interfered even on alleged ground of violation of the principles of natural justice inasmuch as there is no procedural infirmity specially when there is also no pleading to this effect in the whole of the writ petition. 22 Normally this Court in fact was not required to go into all these aspects after coming to the conclusion, on re-appraisal of the entire materials on record, that the charges against the petitioner