IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.901 of 1996 DR.(SMT.)ASHA SINGH, wife of Sri Ashok Kumar Singh, resident of Premchand Road, Gaurakshani, Sasaram, District Rohtas … Petitioner Versus 1. STATE OF BIHAR, through Secretary cum Health Commissioner, Department of Health, New Secretariate, Baily Road, Patna, Bihar 2. Under Secretary to the Govt., Dept. of Health, Govt. of Bihar, New Secretariat, Baily Road, Patna 3. Dr. Prabhash Chandra, Deputy Director, Dept. of Health, Govt. of Bihar 4. Deputy Secretary cum Chief Vigilance Officer, Dept. of Health, Govt. of Bihar … Respondents. For the Petitioner : Mr. K.N.Chaubey, Sr.Adv. Mr. Ashok Kr.Jha, Adv. & Mr. Dhirendra Nath Jha,Adv. For the State : Mr. Shyam Kishore Sharma, Government Advocate-V ----------- 4. 22.6.2010 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “(i) Quashing the order of dismissal issued by Memo No. 1455(18) dated 16.12.1995 issued by respondent no.2 contained in Annexure 16. (ii) hold the inquiry report dated 7.2.1991 held by respondent no.3 as vitiated in law and thereby quash the same, contained in Annexure 13. (iii) and also for quashing the order dated 26.7.1991 issued by respondent no.5 by which decision of the Govt. has been communicated that the petitioner be removed from the service on the basis of enquiry 2 report submitted by conducting officer contained in Annexure 14.” Learned counsel for the petitioner while pressing for the aforementioned relief would submit that the finding of guilt recorded by the Enquiry Officer and the consequential punishment inflicted by the disciplinary authority on the petitioner cannot be sustained either on fact or in law, inasmuch as the petitioner cannot be held to be responsible in preparing a false injury report as was the scope of subject matter of charge. A grievance in this regard has also been made that the Enquiry Officer did not provide adequate reasonable opportunity to the petitioner in course of the departmental proceeding which was irregularly conducted in absence of the Presenting Officer and was abruptly closed without affording an opportunity of defence to the petitioner. In this context counsel had led stress on non-examination of the victim girl and the relatives of the victim girl of the Officer In-charge of Kudra Police Station. Finally it was also urged that the impugned order of punishment is a 3 non-speaking order and in any event the punishment inflicted on the petitioner is completely disproportionate to the misconduct alleged against her. Counsel for the State, on the other hand, with the help of the counter affidavit filed in this case has submitted that the petitioner was a lady doctor who had the main role and responsibility to play in preparation of an injury report by a team of three doctors including the petitioner and that she had not only prepared a false injury report but had also been instrumental in allowing the material findings to disappear, as a result whereof the correct injury report of the victim girl could never be prepared. He has also submitted that in course of enquiry the petitioner was given full opportunity to defend herself and in fact she had also availed such opportunity and therefore, there was no procedural infirmity in the enquiry. As with regard to quantum of punishment learned counsel for the State had pointed out that in the given circumstances when the petitioner had not only committed the gross misconduct of 4 dereliction in her official duty in course of preparation of an injury report of a victim of rape but had prepared a false injury report with a view to help the accused persons of a rape case, the Government could not have taken any lenient view in such matter and therefore, the order of punishment of dismissal of the petitioner from service for proven charges would need no interference of this Court. In the light of the aforementioned submissions as also on perusal of materials on record this Court would find that there is no infirmity in the procedural part of the enquiry, inasmuch as the Enquiry Officer in his enquiry report has given graphic details of opportunity given to the petitioner and other two doctors facing the same charge. In this context it would be quite relevant to take into account the charge which was framed against the petitioner under the order of the State Government dated 18.7.1990, the relevant portion whereof reads as follows: “ vkjksi fooj.kh ftyk inkf/kdkjh] lklkjke us i= la0 2116 fnukad 9&6&90 }kjk 5 lwfpr fd;k gS fd Mk0 ¼Jherh½ vk'kk flag] efgyk fpfdRlk ink0] lnj vLirky] lklkjke us cyRdkj ekeys ls laca/kh tkap izfrosnu esa ?kksj vfu;ferrk ,oa dRroZghurk dk ifjp; fn;k gS tks ,d ljdkjh inkf/kdkjh ds vkpj.k ds izfrdwy gSA” It has to be kept in mind that the petitioner had filed her written statement of defence before the Enquiry Officer on 7.9.1990 wherein the fact of the victim girl Rengani Kumari being referred by Deputy Superintendent of Sadar Hospital, Sasaram to her on 14.5.1990 was not denied. The defence of the petitioner, however, was that neither in the police requisition nor in the forwarding memo of Primary Health Centre nor even from the victim girl herself or her guardian the allegation of rape could be made out and therefore, when a lady accompanying the victim girl had repeatedly stated that the victim girl had sustained injury in course of easing herself in a field, there was no scope for the petitioner to either medically investigate the victim girl for finding out the rape or reporting the victim girl to be subjected to an injury out of an attempt of rape. From the written statement of defence of the petitioner it 6 would also appear that not only the petitioner was supplied with the report of the Collector, Rohtas dated 9.6.1990 but she had made full discussion of the said report by criticizing it from all possible angles. One thing, therefore, is clear from the reading of the written statement of defence of the petitioner that she had not only fully understood the scope of charge but had also not been prejudiced in any manner on account of non-supply of any document, inasmuch as the petitioner did not even call for any information or document while submitting her exhaustive written statement of defence while referring to the facts and figures as also extracts from Modi's Medical Jurisprudence. The order sheet of the Enquiry Officer after receipt of the aforementioned written statement of defence of the petitioner dated 7.9.1990 would also go to show that the petitioner and other two doctors were given sufficient opportunity as would be evidenced from the orders dated 20.9.1990, 9.10.1990, 15.10.1990 and 23.10.1990 in which there is also signature 7 of the petitioner affirming her presence in course of the proceedings and conducting such proceedings by the Enquiry Officer. It would, therefore, be difficult for this Court to hold that the petitioner was not given adequate opportunity of defending herself in course of the aforementioned departmental proceeding. In the enquiry report submitted by the Enquiry Officer on 7.2.1991 the Enquiry Officer has not only given full details of enquiry proceedings conducted by him but has also made individual consideration of misconduct as alleged against the petitioner and two other doctors of the Medical Board. From the reading of the enquiry report it becomes clear that on 14.5.1990 the victim Girl Rengani Kumari aged about nine years with an injury in her private part was brought to Kudra State Dispensary and 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 by recording in the register and also on the forwarding slip 8 that she had sustained “injury to the private parts”. The materials brought on the record in the departmental proceedings further goes to show that Dr. Uday Shankar Pathak had 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 the police was informed and 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 also in his forwarding note to the Chief Medical Officer (Civil Surgeon), Sasaram had not only mentioned about the offence but had also enclosed the OPD slip of the In-charge Medical Officer of Kudra State Dispensary but 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 9 ,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 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 Radiologist, the Gynecologist and Pathologist and 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, 10 the lady doctor and the Gynecologist, however, would go to show that the petitioner in capacity of the lady doctor in particular 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. 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” 11 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 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; 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 lady doctor (petitioner) to submit a report by constituting a Board of 12 doctors consisting of specialist in Radiologist/Orthopaedics and a Pathologist. Thereafter on 16.5.1990 itself the lady doctor (petitioner) in capacity of lady doctor gynecologist alongwith Dr. O.N.Jaiswal the radiologist/orthopaedician and Dr. R.K.Rajesh 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. In the said report the petitioner in capacity of lady doctor had also indicated that there was definite injury on the 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: 13 “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 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. 14 Report of vaginal Swab is attached Herewith. Sd/-O.N.Jayaswal Sd/- Mrs.Asha Singh Sd/- R.K.Rajesh. 16.5.90” A question, therefore, would arise as to whether the petitioner in capacity of sole lady doctor in the Board of three doctors had not completely abdicated her duty in examining a victim girl aged about eight years said to have injury in her perineum with a forwarding note of the first doctor, In-charge Medical Officer, kudra that the injury was in her private part i.e. vagina and perineum and the Police Officer’s requisition was for offence under section 376 of the Indian Penal Code with materials exhibit of blood stain apparel of the victim girl. The moment these facts are taken into account and the first medical report prepared by the petitioner in capacity of lady doctor with signature of O.N.Jaiswal, specialist of Orthopedics and R.K. Rajesh of Pathologist is taken into consideration it becomes very clear that the petitioner even without collecting the vaginal swab had 15 given an opinion that she had sustained only a lacerated wound on her perineum which was simple in nature and was caused by hard blunt substance. The explanation of the petitioner that as she was not informed by the lady accompanying the victim girl as with regard to any sexual offence or that in the report of the police there was no specific mention about such sexual offence or that no one told her to examine the victim girl from an angle of rape would only expose the petitioner, a lady doctor of doing her duty in a most negligent and collusive manner. This Court will have no two opinion that any lady doctor when being asked to give a report with regard to bleeding injury on a private part, i.e. vagina and perineum will have to first look into the possibility of the finding, the traces of sexual offence and the petitioner being such lady who had been duly qualified M.B.B.S. in ordinary course had to examine on the basic tenets of medical jurisprudence being part of such M.B.B.S. course. This court, therefore, has no difficulty in coming to the conclusion 16 that the report dated 14.5.1990 prepared by the petitioner and two other doctors was a collusive and false medical report and in fact this aspect of the matter was gone into by the Enquiry Officer at a great length wherein he had recorded the following finding for holding the petitioner guilty: “Mk0 ^^Jhefr^^ vk'kk flag us vius C;ku esa dgk fd mUgsa jsi dsl gksus dk 'kd gqvk FkkA efgyk fpfdRlk inkf/kdkjh Mk0 ^^Jhefr^^ vk'kk flag ls ;g iwNus ij fd tc mUgsa jsi dsl gksus dk 'kd gqvk rks mUgksaus Hksxhuy Lokc ^^ ^^ D;ksa ugha fy;k rks Mk0 ^^Jhefr^^ vk'kk flag us dgk fd pwfd yM+dh vFkok mls lkFk vk;h efgyk us dqN Hkh b'kkjk ugha fd;k blfy, mUgksaus Lokc ugha fy;kA tc Mk0 ^^Jhefr^^ flag ls ;g iwNk x;k fd D;k os yM+dh ls iz'u lc yksxkasa ds lkeus gh dj jgh Fkh rks Mk0 flag us LohdkjkRed] mRrj fn;kA t[e izfrosnu tks efgyk fpfdRlk inkf/kdkjh }kjk rS;kj fd;k x;k vkSj ftl ij vU; fpfdRlk inkf/kdkfj;ksa dk gLrk{kj fd;k x;k mldh izfr Mk0 tk;loky ds Li"Vhdj.k ds vuqyXud&3 ij ns[kk tk ldrk gSaA tc Mk0 ^^Jhefr^^ flag ls ;g iwNk x;k fd t[e la[;k&1 esa mUgksusa t[e dk LFkku isfjfu;e fy[kk gS] mlls mudk D;k vfHkizk; gS rd Mk0 ^^Jhefr^^ flag us Li"V fd;k fd isfjfu;e ls mudh vfHkizk; iksLVhfj;j ikVZ vkQ Hkstkbuy ekfjfQl ls ysdj 1@2 ihNs rd yslsjsM mUM Fkk tks 1@2^^ 1@2^^ Ldhu fMi FkkA t[e HkksFkjs pht ls gqvk FkkA Mk0 ^^Jhefr^^ flag ls gc ;g iwNk x;k fd D;k bl izdkj dk t[e fxjus ls Hkh gks ldrk Fkk rks Mk0 ^^Jhefr^^ flag dk mrj udkjkRed FkkA Mk0 ^^Jhefr^^ flag vius C;ku esa dgk fd t[e izfrosnu ls fnukad 15-5-90 ds lqcg esa fy[kk vkSj 17 mls lacaf/kr dEikmUM dks ns fn;k Mk0 ^^Jhefr^^ flag us vkxs dgk fd fnukad 16-5-90 dks djhc 8-45 cts lqcg Fkkuk izHkkjh dqnjk us mlh t[eh dks u;s jsD;wth'ku ds lkFk miLFkkfir fd;kA ^^Mk0 Jhefr^^ flag us flfoy ltZu ds vkns'k ds ckn cksMZ ds lnL;ksa dks lwfpr fd;kA lcds lkeus iqu% yM+dh lcds lkeus iqu% yM+dh dh tkWp dh x;hA iqfyl }kjk ekus lHkh fcUnqvksa ij tkWp dj tkWpizfrosnu fn;k x;kA bl ckj Hkstkbuy Lokc Hkh fy;k x;k vkSj iSFkksyksftLV ds ikl Hkstk x;k vkSj iSFkksykftLV ds izfrosnu ds ckn lHkh yksx flfoy ltZu ds dk;kZy; x;s vkSj flfoy ltZu ls tkWp izfrosnu nsus ds laca/k esa iwN&rkN dh rks flfoy ltZu mUgs dgk fd vij eq[; fpfdRlk inkf/kdkjh ls iwN ysaAvijeq0fp0ink0 Hkh ogkWa mifLFkr FksA tc v0 eq0 fp0 ink0] Mk0 HkksxsUnz pkS/kjh ls iwNk x;k rks mUgksus crk;k fd ;g ckr lgh gSa fd fnukad 16-5-90 dks flfoy ltZu us cksMZ ds lnL;ksa dks bUtwjh ds laca/k esa muls iwNus ds fy;s dgk Fkk fdUrq v0eq0fp0 ink0 us dgk fd t[e izfrosnu ls mUgsa dksbZ eryc ugha gS vkkSj ;g muds dk;Zdyki ls laca/k ugha j[krk gSA pwafd Mk0 HkskxsUnz pkS/kjh] v0eq0fp0 ink0 us bUtwjh fjiksVZ ds laca/k esa vufHkKrk tkfgj dh vkSj vU; fpfdRlk inkf/kdkfj;ksa us dksbZ izek.k ugha fn;k ftlls ;g fl) gks lds fd bUtwjh fjiksVZ nsus esa Mk0 pkS/kjh dk gkFk Fkk] vr% Mk0 pkS/kjh dks blls lEc) djus dh vis{kk ugha tku iM+rh gSaA ;g ckr fufoZokn lR; gS fd izFke fnu t[eh yM+dh dh tkWap djus vkSj tkWap izfrosnu nsus esa tkylkth dh x;h gS ftlds fy;s] efgyk fpfdRlk inkf/kdkjh Mk0 ^^Jhefr^^ vk'kk flag eq[; :i ls tckonsg gSa vkSj Mk0 jkts'k dqekj ^^jkts'k^^ dh Hkh bl xyr t[e izfrosnu nsus esa Hkkxhnkjh gSA ;g efgyk kfpfdRlk ink0 dh tokonsgh Fkh fd t[eh yM+dh dk Hkstkbuy Lokc ysrh] fo'ks"kdj rc tcfd Mk0 Jhefr flag dks ;g 'kd Fkk fd ;g jsi dl dk ekeyk gks ldrk Fkk vkSj bl izdkj dk t[e fxjus ls ugha gks ldrk FkkA Mk0 Jhefr flag us tkWp izfrosnu esa t[e dk tkucw>dj vLi"V isjhfu;e fy[kk Fkk 18 D;ksafd isfjuh;e ,d foLr`r {ks= dks crkrk gS tcfd t[e Hkstkbuk ls ysdj mlds fiSNys Hkx rd FkkA bl izdkj Mk0 ^^Jhefr^^ vkk'kk flag us yM+dh ds xyr izfrosnu nsdj ?k`f.kr dk;Z fd;k gSA” Once these findings are taken into consideration it becomes clear that not only the petitioner had prepared a false injury report of a rape victim girl but had also deliberately not done her assigned duty of collecting the vaginal swab on 14.5.1990 when she had examined the victim girl within eight hours of alleged occurrence. Her subsequent explanation that the second medical report upon examination of the victim girl after 48 hours of the occurrence by way of collection of vaginal swab and its test could not have established rape would only go to show that had the vaginal swab been collected by the petitioner on the first day of the examination of the victim girl, the consequential report could have been more accurate and correct as with regard to nature of injury. Upon considering the materials on record this Court is therefore fully satisfied that no prejudice has been caused 19 to the petitioner in course of enquiry and that she had been given a full and effective opportunity to defend herself. Here was a case virtually of documentary evidence, inasmuch as it was a preparation of an injury report by the petitioner about which justification was to be given by the petitioner. In that view of the matter, there being no requirement of any oral evidence to prove the solitary charge, this Court would not find any error on the part of the Enquiry Officer who had not adopted the course of oral enquiry as is manifest from the reading of the enquiry report. The Enquiry Officer has gone into the documentary evidence on record and has made a threadbare analysis for recording his finding that the charge was fully proved against the petitioner. Once the Enquiry Officer had found such charge to be proved there was also no need for the disciplinary authority to once again record a reasoned order specially when he accepted the findings in enquiry report and the petitioner also could not point out any infirmity in such findings of Enquiry 20 Officer. In that view of the matter, this Court would not find any procedural infirmity in the enquiry and in the consequential order of punishment. As is well settled that this Court while exercising the power under Article 226 of the Constitution of India would not go into the merits of the charge as was held by the Apex Court in the case of B.C.Chaturvedi vs. Union of India & ors., reported in 1995(6) SCC 749. A lady Medical Officer, who has been assigned the job to examine the victim of rape and prepare such injury report, has to be maintained a high degree of devotion and integrity in discharge of her official duty. The fact that the petitioner had herself taken a defence in course of enquiry that she did not consider it appropriate to take vaginal swab of the victim lady on the ground that the family members had not asked her to do so, will only reflect as to how careless and negligent the petitioner was in course of exercise of official duty. This Court would not like to say anything more as there are also some materials to show that 21 her such misconduct was motivated with a view to weaken the prosecution case of rape and help the accused persons. This Court, therefore, is satisfied that the charges against the petitioner were conclusively proved and for such proven charges the punishment of dismissal from service can in no event be held to be disproportionate or excessive. A lady doctor is the first important witness on medico legal front and it is her report on the basis of which the entire prosecution case has to depend and revolve. The repeated reference to sharing of responsibility by two other doctors, namely, Dr. O.N.Jaiswal, Orthopedician