IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4074 of 1999 DR.CHANDESHWAR PD.SHRIVASTAVA, S/O LATE KAMESHWAR PRASAD, RESIDENT OF B/79 PEOPLES CO-OPERATIVE COLONY, KANKARBAGH, DISTRICT- PATNA-800020 AT PRESENT POSTED AS EYE SPECIALIST, SADAR HOSPITAL, AURANGABAD. ………………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER OF HEALTH, GOVT. OF BIHAR, VIKASH BHAWAN, BAILY ROAD, PATNA. 2. THE DIRECTOR-IN-CHIEF, HEALTH SERVICES, GOVT. OF BIHAR, VIKASH BHAWAN, BAILY ROAD, PATNA. 3. THE DY. DIRECTOR, HEALTH SERVICES, GOVT. OF BIHAR, VIKASH BHAWAN, BAILY ROAD, PATNA. 4. THE DY. SECRETARY-CUM-CHIEF VIGILANCE OFFICER, HEALTH SERVICES, GOVT. OF BIHAR, VIKASH BHAWAN, BAILY ROAD, PATNA. 5. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, SADAR HOSPITAL, AURANGABAD. 6. THE DISTRICT MAGISTRATE, AURANGABAD. ………………RESPONDENTS. ---------- For the petitioner : Mr. S.K.P. Sinha, Adv. For respondents : Mr. Anil Kumar Jha, Govt. Advocate No. 2, Mr. U.B.Singh, Adv. and Mr. Sanat Kumar Mishra, Adv. ----------- P R E S E N T THE HON’BLE MR.JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J: Petitioner has filed this writ application for quashing of Anneuxre-16, a notification, containing the punishment order passed against the petitioner awarding him punishment of censure and stoppage of five increments with cumulative effect. The said notification was communicated to the petitioner vide memo no. 909 (18), Health, Patna dated 25.8.1998. Further prayer of the petitioner is for a direction to the respondents to re-fix his pay - 2 - with increments admissible to him and pay the remaining amounts of arrears also. 2. Facts of the case are that, in respect of a case registered with the Aurangabad Town P.S. under Section 326 of the Indian Penal Code, police forwarded an injured to Sadar Hospital, Aurangabad where petitioner was functioning as Medical Officer. Petitioner examined the injured and found his injuries as simple and gave his report on the back of the requisition of the police as appearing from Annexure-1. However, the injured was admitted in the hospital and was operated upon due to his eye infection and discharged on 21.10.1995, vide Annexure-2. It appears that later on the said injured made a verbal complain before respondent District Magistrate-cum-Collector, Aurangabad and complained about the injury report given by the petitioner finding the injury as simple. On the said verbal complain of the injured, the respondent Collector, vide Annexure-3 dated 3.11.1995, directed the Civil Suregon of Aurangabad to constitute a Medical Board for making an enquiry in respect of the injury of the person and the report submitted by the petitioner. Accordingly, Civil Surgeon constituted a Medical Board, vide Annexure-4 dated 4.11.1995, and directed the injured to appear before it on 6.11.1995. The said Medical Board examined the injured and submitted its report. It found that the right eye of the injured was operated and was removed only two days after his admission in the hospital. It had found - 3 - that as per the injury report the right upper eye lid was having pan-opthalmitis. Hence it was not very clear whether the injury of the right eye sustained in the occurrence needed evisceration or operation was done due to some other disease from before. The Board also opined that, if evisceration was done due to injury on right eye, then the injury was grievous in nature. It also came to the conclusion that only the petitioner could explain the cause of evisceration. 3. Learned counsel for the petitioner submitted that from the report of the Medical Board it is clear that the petitioner was not asked to appear before the Board and explain as to under what circumstances the operation was held and eye-ball was removed. He also submitted that the Medical Board did not give a definite finding that the eye-ball of the injured was removed only on account of injury caused to it during the occurrence. Upon receipt of the said report, the respondent Collector directed the Civil Surgeon to get the matter enquired into in detail and submit a report which was communicated to the Civil Surgeon vide Annexure-6 dated 30.1.1996. Petitioner also received a letter from the local police, vide Annexure-7, to clarify whether the eye of the injured was damaged from before or whether it got damaged in the incident. Petitioner replied to the said query of the police, vide Annexure-7/1, and clarified that upon examination he had found that the injured was suffering from pan-opthalmitis which - 4 - could not develop within six hours, when the occurrence is said to have happened and, therefore, as per his opinion and report the eye of the injured was damaged from before. 4. However, in the meanwhile, the respondent Collector reported the matter to the respondent Director-in-Chief, vide his letter dated 8.1.1996 as contained in Annexure-8, opining that the petitioner had given wrong injury report and, therefore, request was made to the respondent Director-in-Chief to take necessary action in the matter from his own level. Accordingly, a show cause was asked from petitioner by Deputy Secretary-cum-Chief Vigilance Officer of the Department, vide Annexure-9 dated 25.4.1996. Petitioner replied to the same, vide Annexure-10 dated 16.7.1996. 5. In his said reply petitioner gave details of the matter and mentioned that being an eye specialist he was in a position to distinguish injury caused to the eye of the injured within six hours and injury in the eye continuing from before. He explained in his reply that he could identify the damage in the eye of the injured as pan-opthalmitis which could not develop due to alleged occurrence which happened within six hours. He also explained in detail as to under what circumstances the injured was admitted in the hospital and operated upon. He also explained that independent eye operations were being conducted in the hospital since last many years and separate registers etc. were maintained for the - 5 - same in which proper entries were available to show that the injured was admitted in the hospital and was operated upon there, which falsified the allegation against him that he had taken the injured to his private clinic for operation. A copy of the said reply was sent to the said Deputy Secretary-cum- Chief Vigilance Officer in the Department. 6. However, it appears that the said reply of the petitioner did not reach the said Deputy Secretary and the petitioner received another reminder by Annexure-12 for filing show cause. Accordingly, petitioner filed another reply and, the then Chief Medical Officer forwarded the same to the Department, vide Annexure-13 dated 30.11.1996, with her opinion that the explanation of the petitioner appeared to be satisfactory and supported by the records of the hospital. After receipt of the show cause reply of the petitioner in the Department, the same was got examined by one Dr. S.N. Upadhyaya, Deputy Director (Eye) who submitted his report, vide Annexure-14. The said report was considered by the Disciplinary Authority and, on the orders of the Government, punishment order as aforesaid, contained in Annexure-16 dated 25.8.1998, was passed. Petitioner filed a representation against the same before the Commissioner of the Department, vide Annexure-17, which was rejected, vide Annexure-18 dated 5.5.1999, annexed with the I.A. No. 8573 of 1999. 7. Learned counsel for the petitioner has - 6 - challenged the said punishment order on three counts; firstly, before awarding punishment, no full-fledged enquiry was held as contemplated under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules 1930 (hereinafter referred to as the ‘Rules’) and the punishment was awarded to the petitioner only on the basis of a show cause and upon consideration of his reply to the same. He submitted that, stoppage of increments with cumulative effect is a major punishment as held by Division Bench of this Court in the case of Dr. Kanti Sinha Vs. The State of Bihar and Ors., reported in 2007 (3) PLJR 842. Hence, respondents were legally obliged to follow the procedure laid down in Rule 55 of the said Rules before awarding any punishment. His second ground of challenge was that, the enquiry report, as contained in Annexure-14, did not find the petitioner guilty of any charge and, therefore, the disciplinary authority was required to issue fresh notice to the petitioner, indicating his grounds of difference from the findings of the enquiry officer in respect of any particular charge, giving opportunity to the petitioner to show cause in the matter, before he could take an independent view in respect of any particular charge against the petitioner and differ with the findings of the enquiry officer and hold him guilty and pass orders of punishment against him. The third ground of challenge raised by learned counsel for the petitioner was that, in any case the enquiry report was not furnished to the petitioner to enable - 7 - him to file his representation against the same to the Disciplinary Authority for his consideration before passing any order of punishment against him. 8. Petitioner subsequently filed the amendment petition also, namely, I.A. No.8573 of 1999, for amendment of his prayer, praying therein to permit him to challenge Annexure-18 also. In view of the facts of the case the said petition is allowed and petitioner is permitted to challenge both Annexures-16 and 18. 9. Respondents have filed counter affidavit and supplementary counter affidavit. The documents annexed with the supplementary counter affidavit have been heavily relied upon by learned Government Advocate No. 2 to contend that petitioner had, in fact, participated in the enquiry and was given opportunity to explain his conduct. Photocopy of the pages of the file containing the enquiry report of the said Dr. S.N. Updhyaya, typed copy of which has been annexed by the petitioner as Annexure-14, has been annexed with the supplementary counter affidavit as Annexure-B. Respondents have also annexed two documents therein as Annexure-C from which it appears that the injured as well as petitioner were called upon by the said Dr. S.N. Upadhyaya, the Enquiry Officer, for their statements before him. They appeared before him and gave their statements. The documents shows that some questions were put to the petitioner by the Enquiry Officer and the petitioner was given liberty to explain his conduct and the - 8 - circumstances under which he had given the injury report. Relying upon the said documents, learned Government Advocate no. 2 strongly argued that, though steps for holding a formal enquiry in terms of Rule 55 of the said rules may not have been taken in the matter, but the petitioner was in fact called upon by the Enquiry Officer to explain his conduct and circumstances and, therefore, in substance, there was full compliance of Principles of Natural Justice in the case. He submitted that applicability of the Principles of Natural Justice can not be considered in a straight jacket formula and the same has to be examined in the facts and circumstances of each case. He submitted that, in the facts of this case, petitioner was given an opportunity to explain the circumstances under which he had given the injury report, in respect of the injured referred to him by the police, by holding his injury as simple, in spite of the fact that the eye-ball of the injured was taken out. He further submitted that, since the enquiry officer had submitted the report, the same was considered by the Disciplinary Authority and punishment orders were rightly passed against the petitioner. 10. However, when the enquiry report was placed in detail before the Court by learned counsel for the petitioner, it became clear that the Enquiry Officer had not held the petitioner guilty of any charge. It is true that, in the enquiry report, the Enquiry Officer found some lapses on the part of the - 9 - petitioner, in making proper entries in the admission form of the injured prepared in the hospital which, he opined, could only throw some light in respect of the charges framed against the petitioner. The Enquiry Officer, in concluding part of the report, as contained in Annexure-B, opined that it was difficult to hold the charges as proved against the petitioner due to some omission in the admission form of the injured prepared in the hospital, and also gave his opinion that the Deputy Secretary of the Department one Nagendra Prasad had also submitted some wrong report on the file which helped the petitioner in the matter. 11. After this finding of the Enquiry Officer was pointed out by learned counsel for the petitioner, learned Government Advocate No. 2 fairly contended that the enquiry report goes in favour of the petitioner and, therefore, as per the settled law, before passing any punishment order against the petitioner, the Disciplinary Authority was indeed required to issue a fresh show cause notice to the petitioner disclosing the grounds on which it intended to differ with the enquiry report and proposed to hold the petitioner guilty of the charges. He also fairly accepted that copy of the enquiry report was not furnished to the petitioner before the impugned order was passed. However, he submitted that the petitioner had not taken these stand in his representation or the appeal and, therefore, it was not open to the petitioner to raise - 10 - these issues before this Court. He lastly submitted that, even if the impugned order is quashed by this Court on the ground of the said procedural irregularities committed in the proceeding, the respondents should be given liberty to proceed in the matter afresh from the stage of submission of enquiry report. For this proposition, he relied upon a judgment of this Court in the case of Diwakar Prasad Sinha Vs. State of Bihar and Ors. reported in 2007 (Supplement) PLJR 405. 12. The pages of the file, which have been annexed by the respondents with their supplementary affidavit as Annexure-B, show that the enquiry report was placed before the Additional Secretary of the Department and the matter thereafter was discussed and proposal was submitted before the Minister of the Department which appears to have been approved and then consequential orders of punishment as contained in Annexure-16 was passed. These pages of file clearly establish that, neither a copy of the enquiry report was furnished to the petitioner, nor any opportunity was given to him to represent against the proposed punishment before the order of punishment was passed. Moreover, as pointed out above, the Enquiry Officer did not find petitioner guilty of charges levelled against him and, therefore, it was also a legal requirement from the Disciplinary Authority to issue notice to the petitioner disclosing the grounds on which he proposed to hold him guilty of the charges and proposed to award - 11 - punishment. Even if for arguments sake only, it is accepted that the petitioner had participated in the enquiry and, therefore, the requirement of Principles of Natural Justice stood substantially complied with by the Enquiry Officer, the lapses committed in the enquiry from the stage of submission of enquiry report and thereafter awarded punishment to the petitioner is legally invalid and fit to be quashed. 13. Now the question arises as to whether, in view of submission of learned Government Advocate No. 2, the respondents should be allowed to proceed in the matter afresh from the stage of submission of enquiry report or not. 14. Learned counsel for the petitioner submitted that the petitioner has superannuated from service with effect from May, 2007. He submitted that even if charges have been proved, any action against the petitioner, can now be taken only in terms of Rule 43(b) of the Bihar Pension Rules and within the scope and parameters of powers of the respondents laid down therein. He submitted that, as the lapses found against the petitioner by the Enquiry Officer, in not making proper entries in the admission form of the injured, could not in any way be termed as a gross misconduct or to have caused pecuniary loss to the Government due to misconduct or negligence, it will not be within the powers of the respondents to take any action against the petitioner under the provisions of Rule 43(b) of the Bihar Pension Rules. In this context, learned counsel for the petitioner - 12 - has relied upon a judgment of this Court in the case of Dr. Kanti Sinha Vs. The State of Bihar and Ors. reported in 2007 (3) PLJR 842 (Supra). 15. On the other hand, learned Government Advocate no. 2 submitted that since procedural irregularities in the proceeding against the petitioner has been found from the stage of submission of enquiry report and onwards, in all propriety, respondents should be given liberty to proceed in the matter afresh, after serving a copy of the enquiry report to the petitioner and giving him an opportunity to explain in respect of grounds on which the Disciplinary Authority proposes to differ with the Enquiry Officer and impose punishment on him, if necessary. Learned Government Advocate no. 2 has referred to a judgment of this Court for this submission in the case of Diwakar Prasad Sinha (Supra). 16. Normally, if a punishment order is quashed by this Court on the ground of technical flaw or procedural irregularities, the matter is remitted back with liberty to the concerned authorities to proceed in the matter afresh. However, this general practice has been given a go by in individual cases when this Court has found that, in the fact situation of the case, either the same will be an empty formality or will be too vexatious to the petitioner in proportion to the charges leveled against him. In cases in which the incumbents have superannuated during the pendency of the writ proceeding before - 13 - this Court, the Court has been circumspect in giving liberty to the respondents to re-open the matter. Besides, in cases in which this Court has found that the facts and circumstances appearing in the case may prove it to be a futile exercise and cause unnecessary harassment to the petitioner, this Court has refused to permit the respondents to proceed in the matter afresh. The general rule, as pointed out above, is reflected by the judgment of this Court as relied upon by Government Advocate no. 2 in the case of Diwakar Prasad Sinha (Supra); whereas exception to the same stands reflected by the judgment of this Court as relied upon by the learned counsel for the petitioner in the case of Dr. Kanti Sinha (Supra). 17. In the present case, from the materials noticed in the enquiry report (Annexure-B), it is apparent that it is difficult for any authority to come to a conclusion that the right eye of the injured had sustained injury in the accident and did not contain pan-opthalmitis infection from before. This fact could only be ascertained if the injured would have been examined by the Medical Board then and there on the date of operation, or at least on the next day. It is not disputed that the petitioner was an Eye Specialist, therefore, it was possible for the petitioner to distinguish the injury in the eye as injury sustained during the occurrence within six hours and injury due to infection in the eye from before. Therefore, in absence of any other objective finding on the basis of objective materials and - 14 - physical examination of the injured and the eye-ball eviscerated, the opinion and the finding of the petitioner, an Eye Specialist, can not be disbelieved and ruled out at this stage. As noticed above the Medical Board also did not give a categorical finding against the petitioner which only could be used against the petitioner for an enquiry and punishment. 18. Therefore, in the facts and circumstances, as noticed above, this Court finds that no useful purpose will be served by giving liberty to the respondents to proceed in the matter afresh from the stage of submission of enquiry report and come to a fresh conclusion and pass fresh orders. 19. In the result, this writ application is allowed Annexures-16 and 18 are quashed without any liberty to the respondents to proceed in the matter afresh. The respondents are directed to revise the pay scale of the petitioner by calculating the due increments as per law and pay the arrears of the petitioner, which may become payable to him on account of such revision, within a period of three months from the date of receipt/production of a copy of this order. 20. The writ application is allowed thus. Patna High Court The 28th October, 2009 A.F.R./Arvind/ (J. N. Singh, J.)