IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12040 of 1995 --------- In the matter of an application under Article 226 of the Constitution of India. ---------- DR.UDAY SHANKAR PATHAK, S/O LATE RADHA KRISHNA PATHAK, R/O VILLAGE-BHARKHAR, P.S.-BRAHAMPUR, DISTRICT-BHOJPUR AT PRESENT CIVIL ASSISTANT SURGEON, UNDER CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, ROHTAS. ………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA. 2. GOVERNMENT OF BIHAR, THROUGH COMMISSIONER- CUM-SECRETARY, DEPARTMENT OF HEALTH, BIHAR, PATNA. 3. THE ADDITIONAL SECRETARY, DEPARTMENT OF HEALTH, NEW SECRETARIAT, GOVT. OF BIHAR, PATNA. 4. THE DIRECTOR-IN-CHIEF, DEPARTMENT OF HEALTH, BIHAR, PATNA. 5. THE DISTRICT MAGISTRATE, ROHTAS AT SASARAM. 6. THE DEPUTY DIRECTOR (PLANNING), DEPARTMENT OF HEALTH, BIHAR, PATNA. 7. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, ROHTAS AT SASARAM. ……RESPONDENTS. ----------- For the Petitioner : Mr.Kamal Nayan Choubey, Sr.Adv., Ambuj Nayan Choubey, Adv., Siddharth Harsh, Adv., Ritu Priyadarshini, Adv. and Mr. Nagendra Dubey, Adv. For the State : Mr. Sanat Kumar Mishra, AC to G.A.-II. ------------- P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh, J: Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for quashing of the order of his 2 dismissal dated 16.12.1995 which is annexed as Annexure-9 with the writ application. Further prayer has been made for quashing of the entire proceeding and for his reinstatement in service with all consequential benefits. Facts emerging from the pleadings appear that in May, 1990 petitioner was posted as Civil Assistant Surgeon and In-charge Medical Officer in Kudra Primary Health Centre in the District of Rohtas. On 14.5.1990 a minor girl, namely, Rengini Kumari along with her guardian came to the Health Centre with a complain of injury on her private parts. The girl was aged about eight years. She reached the Centre at about 11.45 AM. Petitioner was the only Medical Officer in the Centre at that time and there was no lady Doctor and no lady nurse. Hence, he did not feel medically ethical to examine the private parts of the girl alone. Therefore, he referred the girl immediately to Sadar Hospital, Sasaram, for her examination and also informed the local Officer In-Charge of the police station with regard to the same, vide Annexure- 1. The reference to the Sadar Hospital, Sasaram made by him is annexed as Annexure-1/A. On receipt of information, police official from the local police station arrived at the Centre 3 immediately and recorded the fardbeyan of the guardian of the girl at the Centre at 12.15. Thereafter the girl was taken to Sadar Hospital, Sasaram, where she was medically examined by a team of Doctors. Petitioner received a communication from the Civil Surgeon, vide his letter no. 2041 dated 25.5.1990, asking him to furnish information whether before referring the girl to Sadar Hospital, Sasaram, she was examined by him or not and if examined, he was requested to send a photocopy of the injury report. In reply to the said communication, petitioner informed respondent no. 7, through letter dated 3.6.1990, that he had not examined the victim girl as she was complaining injury on her private parts. Information was sent to the police and she was referred to Sadar Hospital, Sasaram, accordingly. However, petitioner received another communication from the Civil Surgeon dated 30.5.1990, in the light of some confidential letter received from the District Magistrate, Rohtas, in which he was asked to explain as to why he did not give the injury report of the girl when she had reached the Centre under injured condition and why the petitioner felt it necessary to refer her to 4 Sadar Hospital, Sasaram, when there was no need of special treatment. Petitioner received the said letter on 30.5.1990 and sent a reply to the same immediately explaining that as per rules, private parts of a lady victim could not be examined without her written consent or the consent of her guardian, if she was a child. As he could not get the written consent, he did not examine her and the matter was reported to the police and she was referred to the Sadar Hospital, Sasaram. After receiving the reply from the petitioner, the Civil Surgeon submitted his report to the District Magistrate in which he justified the course adopted by the petitioner. However, the matter did not end there and, vide order contained in memo no. 655(18) dated 25.6.1990 passed under the signature of the Deputy Secretary of the Government, petitioner was put under suspension, in contemplation of a departmental inquiry, and his headquarter was fixed in the office of the Civil Surgeon, Patna. Petitioner was served with a show cause with charges, as contained in Annexure-2, and he was asked to submit his reply to one Dr. Prabhash Chandra, the Deputy Director, Health Services who was appointed as 5 Conducting Officer of the enquiry. Petitioner filed his written statement with regard to the said charges, vide his letter dated 7.9.1990 as contained in Annexure-3. In his written statement, petitioner referred to and quoted from several treatises of medical jurisprudence and contended that without written consent of the patient, and in case of a minor, that of the guardian, it was unethical for a male Doctor to examine private parts of a female patient. He submitted that in view of the established medical ethics, he did not feel it appropriate to examine the girl alone. He explained that he had immediately informed the police and within half an hour of arrival of the patient in the Centre, police had arrived and had recorded the fardbeyan of the guardian of the girl who was accompanying her and instituted a substantive case under Section 376 of the I.P.C. He also explained that in the Centre there was no lady Doctor, Pathologist or Radiologist. In his written statement, he also referred to memo no. 5643 dated 21.12.1989 which, he asserted, contained the decision of District Level Monitory Committee according to which victims of rape were to be examined only by a Committee of doctors and, only on the basis of report of the 6 Committee, injury report could be issued. He also disclosed in the written statement that in spite of his request, the guardian of the girl had not given written consent to him to get the private part of the girl examined by him alone. In the end, the petitioner requested the conducting officer to allow him to appear through his advocate in the proceeding. It appears that, simultaneously with the initiation of proceeding against the petitioner, proceeding was also initiated against the three Doctors of Sadar Hospital, Sasaram who had constituted the team and had examined the victim girl in the Sadar Hospital. It also appears that the proceeding against all the four Doctors proceeded together and the same conducting officer, after consideration of the show cause reply or written statement of the Doctors, submitted a common report in respect of all of them to the Deputy Secretary, Department of Health, vide his letter dated 7.2.1991 as contained in Annexure-4. In respect of the petitioner, after considering his written statement, the conducting officer came to the conclusion that the charges levelled against him were partially proved. Accordingly, a second show cause notice was issued to the petitioner, 7 vide letter of the Deputy Secretary-cum-Chief Vigilance Officer of the Department dated 26.7.1991, annexed as Annexure-5. It was stated in the letter that since the charge had been found proved against the petitioner, the Government had come to a tentative decision to terminate his services. Therefore, he was asked to show cause within fifteen days as to why, on the basis of proved charges, the services of the petitioner should not be terminated. It appears that petitioner moved this Court through CWJC No. 5428 of 1991 against the said notice. This Court vide order dated 10.1.1992 directed the respondents to pass final orders in the proceeding within a period of a fortnight from the date of receipt of representation and also gave liberty to the petitioner to file his representation to the appropriate authority within a period of 7 days. Accordingly, petitioner filed his representation/reply to the second show cause within the time granted to him by this Court. However, in spite of his filing of the representation, final orders were not passed by the disciplinary authority. Hence, he moved this Court, through M.J.C No.558 of 1992, for disobedience of the orders passed in his writ 8 application. Finally orders were passed by the Government, as contained in Department’s notification contained in memo no. 1458(18) dated 16.12.1995, by which, on the ground of proved charges, services of the petitioner were terminated with immediate effect. The said notification is annexed as Annexure-9 with the writ application and is impugned herein. In the order it was mentioned that the order was being passed after due concurrence from the Bihar Public Service Commission and approval of the Cabinet and under the orders of the Governor. Learned counsel for the petitioner submits that petitioner had explained his conduct in detail in his reply to the charges and had also referred to the settled principle of medical ethics by quoting from different treatises of medical jurisprudence. He also submits that in the preliminary enquiry, the Civil Surgeon had found the conduct of the petitioner as appropriate and in accordance with conduct of a Doctor and had submitted his report to the Collector, a copy whereof is annexed as Annexure-7. In the report, the Civil Surgeon had opined that there was nothing wrong in conduct of the petitioner and therefore, he cannot be charged of committing any negligence or causing 9 delay by not examining the victim girl on his own and referring her to the Sadar Hospital for being examined by a Committee as laid down by the District Level Monitoring Committee. Learned counsel also referred to the said confidential report of the Collector, a copy whereof is annexed as Annexure-6, and submits that in fact, the action was initiated by the Collector against the petitioner only on the dictates of a Minister in the State Government. He submits that the conducting officer did not hold an enquiry and did not allow the petitioner to produce materials in support of his stand in his written statement and did not examine any witness. He also submits that the report of the conducting officer itself stands vitiated on account of these lapses on his part. He submits that the conducting officer, without applying his mind to the grounds made out in his detailed written statement, has held the petitioner partially guilty of charges. He submits that in view of the stand of the petitioner in the written statement, the conducting officer ought to have given liberty to the petitioner to place the decision of the District Level Monitoring Committee or should have called for those documents or materials for consideration in the 10 proceeding and, in view of the stand of the petitioner that, in spite of his request the guardian of the girl refused to give written consent to him to examine the private parts of the victim girl alone, the conducting officer ought to have called the said guardian of the victim girl as a witness and should have confronted her with this stand of the petitioner before coming to the conclusion that the petitioner was partially guilty of the charges. He also submits that the charge framed against the petitioner was of non-examination of the victim girl with serious allegation of rape on her and of referring her to the Sadar Hospital, Sasaram, whereas in the enquiry report, the conducting officer has found the petitioner partially guilty of the charge on account of the fact that in spite of examination of the victim girl and recording her injuries in the register, he had not issued the injury report. He submits that the enquiry officer has travelled beyond the charge and has found the petitioner guilty of mistake or lapse which was not a subject matter of the charge and, therefore, petitioner was not given an opportunity to explain his conduct in respect of the said allegation. He also submits that the conducting officer has 11 shifted the burden of proving his innocence on the petitioner instead of calling upon the department to prove charges against him inasmuch as the conducting officer has held the petitioner guilty as the petitioner could not produce any material in support of his claim that in spite of his request, the guardian of the girl had not given him written consent for examination of victim girl by him alone. He also submits that the enquiry report does not show that any of the grounds mentioned in his written report were considered and discussed by the conducting officer before coming to the conclusion that the petitioner was partially guilty of charges. He lastly submits that the representation of the petitioner/reply to the second show cause was not considered by the disciplinary authority and the order of punishment has been passed by the disciplinary authority without assigning any reasons in the order. He submits that there is nothing in the order to show as to in what manner the second show cause reply was considered by the disciplinary authority and on what counts, the explanations given therein were not found to be tenable. He submits that in the circumstances, the impugned order and the entire proceeding 12 stand vitiated and are bad in law and fit to be quashed. Learned counsel for the respondents has seriously disputed the submissions of learned counsel for the petitioner. He submits that the stand of the petitioner that he asked for consent of the guardian of the victim girl which he failed to get, is a defence set up by petitioner only after he was asked to explain his conduct and is clearly an after-thought. He submits that had it been true, it would have been mentioned by the petitioner in Annexure-1 by which he informed the officer in-charge of the local police station with regard to arrival of the victim girl in the Centre complaining injuries on her private parts. He submits that in the reference made to the Sadar Hospital, Sasaram, as contained in Annexure-1/A also, the petitioner should have mentioned it. Since there is no mention of the said fact either in Annexure-1 or in Annexure-1/A, the same is a false claim made by the petitioner. He also submits that the claim of the petitioner that in absence of the consent he did not consider it appropriate to examine the victim girl alone and referred her to Sadar Hospital, Sasaram in consonance with the medical ethics is also 13 false. Learned counsel for the respondents points out in Annexure-1/A that the petitioner has mentioned about the injuries of the girl on her vagina and perineum. He refers to the enquiry report where explanation of Dr. Asha Singh, another procedee with regard to ‘perineum’ has been noticed. He submits that the very fact that the petitioner had mentioned in his reference letter the specific private part of the victim girl of having injuries shows that he had in fact examined the girl. However, he did not issue the injury report which was dereliction of duty on the part of the petitioner. He also submits that since he had examined the victim girl, he should have taken precaution to get the swab preserved and should have cautioned the victim girl not to wash so that evidence of rape may not disappear. The petitioner did not take any such precaution which was deliberate lapse on his part and, therefore, the charge levelled against him was rightly proved by the conducting officer. After hearing the learned counsels for the parties and going through the records, certain facts appear to be admitted. It is not denied that the petitioner was the sole medical officer in the said Centre. There is no denial 14 that in the Centre there was no lady medical officer or Pathologist or Radiologist posted and there was also no lady nurse. This is also not denied that victim girl had arrived at the Centre with her guardian at 11.45 AM. In view of the injury complained, the petitioner had immediately sent information to the officer incharge of the local police station and had also referred the victim girl to the Sadar Hospital for medical examination. The Police had arrived and the fardbeyan was recorded at 12.15 PM. This is also not denied that there was a decision of District Level Monitoring Committee to the effect that a victim of rape had to be examined by a medical team and upon the report of the medical team only injury report had to be issued by the medical officer. It is also not denied that there was no possibility of constitution of the medical team in the centre. These circumstances show that in his wisdom, the petitioner rightly thought it proper to immediately inform the police and refer the victim to the Sadar Hospital, Sasaram. The fact that the victim girl was actually examined by the petitioner or that the petitioner never asked for consent of the guardian of the girl is a matter of presumption only on the basis of two 15 documents Annexure-1 and Annexure-1/A. If at all, the respondents were serious to establish ill motive in the conduct of the petitioner, they ought to have called the guardian of the girl in the proceeding and ought to have examined her as a witness and only upon her statement that the petitioner never asked her consent or without her consent, he examined the victim girl but did not issue any injury report, this finding could be arrived at and the petitioner could be held guilty. This has not been done by the conducting officer. Apparently, the conducting officer has only considered the defence of the petitioner and in absence of any evidence and proof of his innocence produced by him, has found him guilty. This approach of the conducting officer is foreign to the service jurisprudence. It is also established that there has been breach of Principles of Natural Justice in the proceeding at different stages. In the first stage itself, in spite of request of the petitioner in his written statement that he be allowed to appear in the proceeding through his lawyer, the conducting officer did not grant him any opportunity to appear before him and substantiate his claims made in the written 16 statement. Without giving that liberty to the petitioner, the conducting officer has found the stand of the petitioner in his written statement as not acceptable. Subsequently, at the second stage of the proceeding, the disciplinary authority has also not given any reason whatsoever in the impugned order for rejection of his second show cause reply. Principles of Natural Justice and fair play requires that the defence of a delinquent, for whatever worth they may be, must be considered and dealt with by the conducting officer/disciplinary authority before rejection of the same on the basis of positive materials, evidences and circumstances giving rise to preponderance of probabilities leading to the only conclusion of guilt of the delinquent. This Court finds that the disciplinary proceeding as well as impugned order suffers from these serious infirmities. The action of the petitioner after arrival of the victim girl in the centre at 11.45 AM by informing the officer in-charge of the police immediately and referring the victim girl to the Sadar Hospital, Sasaram within half an hour also disproves the charge levelled against the petitioner of causing delay in the matter so as to cause any 17 benefit to the accused persons. In the circumstances, this Court finds that the order of punishment and the entire proceeding against the petitioner stand vitiated on account of violation of Principles of Natural Justice, fair play, denial of reasonable opportunity to petitioner and non-consideration and examination of relevant materials at the stage of the enquiry and non-consideration of his reply to the second show cause by the disciplinary authority. As a result, this writ application is allowed. The impugned order as contained in Annexure-9 as well as entire proceeding against the petitioner is quashed. It appears that the petitioner is about to reach his normal age of superannuation. Therefore, the respondents are directed to reinstate the petitioner in service immediately and in any case before his date of superannuation. This Court holds that the petitioner will be entitled for 50% of his admissible salary of the period subsequent to his termination till the date of this judgment and will be entitled to his full salary thereafter till his date of superannuation. This Court also holds that the petitioner will be 18 entitled to all consequential post retiral benefits on the basis of his full salary as admissible to him till his date of superannuation. All payments in this regard shall be calculated in accordance with law and paid to him within three months from the date of receipt/production of a copy of this order. Patna High Court Dated 29th April, 2010 N.A.F.R./Arvind (J. N. Singh, J.)