IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.722 of 2004 ARUN KUMAR, son of late Surajdeo Ram, resident of Karamdih, P.O. & P.S. Barun, District Aurangabad, at present Compounder Addl. P.H.C. Darihat, District Rohtas ... Petitioner Versus 1. THE STATE OF BIHAR 2. The Director in Chief, Health Services, Bihar, Patna 3. The Civil Surgeon cum C.M.O., Rohtas, at & P.O. Sasaram, District Rohtas 4. The Medical Officer I/s Addl. P.H.C. Darihat, at & P.O. Harihat, District Rohtas ... Respondents -------- For the petitioner: Mr. Naresh Dixit, Advocate For the State : A.C. to G.P.I -------- P R E S E N T THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (16.11.2010) Mihir Kr.Jha,J. Having heard Mr. Naresh Dixit, learned counsel for the petitioner and the learned counsel for the State as also taking into account that the impugned order of punishment dated 23.8.2002 as with regard to stoppage of three increments on cumulative basis has been passed by the Director-in- Chief of the Health Services pursuant to a communication of Lokayukta, Bihar, this Court could have ordinarily interfered with such an order had the petitioner not been given an opportunity to represent his case before the Lokayukta or the State Government. 2 From the pleadings on record and specially the counter affidavit filed in this case enclosing the report of the Lokayukta it is clear that the Lokayukta had given an opportunity of personal hearing to the petitioner in course of enquiry and thereafter had made recommendation in terms of section 12(3) of the Bihar Lokayukta Act, 1973. The finding of the Lokayukta as against the petitioner holding the post of Compounder is that the charges against him as also Dr. Sinha had stood proved. To that extent the detailed recommendation of the Lokayukta, as contained in Annexure „A‟ itself shows sufficient application of mind and that too after affording opportunity of hearing to the petitioner who was represented before the Lokayukta through a counsel. The relevant portion of the order of Lokayukta reads as follows: “ On the basis of a complaint filed by one Sri Ramsighasan Paswan this investigation was initiated on 8.3.1992. There were serious allegations against the doctor, Sri Vijoy Kumar Sinha, Incharge Medical Officer, Shiv Sagar and Sri Arun Kumar, the Compounder of that 3 hospital, regarding their misconduct and irregularities etc. as would be evident from the complaint. 1. On the basis of above complaint an enquiry was conducted through the Civil Surgeon cum Chief Medical Officer, Rohtas. In his report at page 46/c of this file the Sub- divisional Medical Officer had indicated that Dr. Sinha and the compounder had illegally issued medicines from the store for their personal gain and to suppress their malicious design, fake and forged treatment charts were prepared, showing the names of even dead persons as patients in whose favour such medicines were used. 2. Besides the above charge in the enquiry report it was also proved that Dr. Sinha was although posted at Shivsagar, as Incharge Medical Officer, but he used to reside at Kudra, a place far from the said hospital. In fact the Incharge Medical Officer has to reside in the house, which was available at Sheosagar. 3. Being satisfied prima facie with the above enquiry report, notices under section 10(1)(a) were issued alongwith all the necessary papers, calling upon Dr. Sinha and the compounder to file their show 4 cause. In compliance thereto both the impugned officers filed their show cause with necessary papers in support of their defence. The doctor in his show cause has in fact accepted that he used to reside at Kudra since the house of Incharge Medical Officer at Shivsagar was occupied by another doctor. He has also accepted that during his absence the compounder Arun Kumar was authorized by him to supply medicines in appropriate cases and on the next day the names of the patients, to whom treatments were provided or medicines supplied, were used to be entered in the outdoor register and other relevant papers. So far the alleged treatment and supply of medicines to the fake persons, who were already dead, according to the doctor, such names were furnished by the compounder. Because he had no knowledge about the names of the persons, who were being provided treatment and medicines. The doctor has in fact tried to shift entire burden on the compounder Arun Kumar. 5. Arun Kumar, the compounder on the other hand in his show cause has alleged that all such irregularities were committed by the doctor for earning illegal 5 money etc. In fact he had neither any concern with such allegations nor a business to see what treatment or medicine was being provided to the patients. It was the satisfaction of the doctor to prescribe medicine and to issue instruction for supply of medicine etc. He has further said that the statement of the doctor that he had no residential accommodation at Shivsagar was far from truth. In fact as would appear from the report of the Civil Surgeon that the house of the Incharge Medical Officer was lying vacant. As regards supply of medicine against the names of the fake persons, who were in fact dead, an extract of the outdoor register was produced to show that treatment and supply of medicines to those fake persons were provided on 18.4.1997, when the doctor was on duty and not in the night between 17/18.4.91 by the compounder. 6. As for a long period, the post of Lokayukta was lying vacant, hearing on this matter could not take place. Ultimately on 14.8.2001, both the impugned officers appeared through their learned advocates. 7. Form the extract of the out door register it would appear that 6 on 18.4.91 at Sl.No. 580 name of Sita Ram Sao and at Sl.No. 581 Hira Bhagat was mentioned. These two persons were actually dead at that time. The Doctor has not produced any paper to show that names these persons were given to him by the compounder. This also appears wrong that they were provided treatment on 17.4.91, because their names in the out door register was shown on 18.4.91. The Enquiry Officer has also found that total story regarding treatment for Cholera and or supply of 13 bottles of glucose water was false and concocted. Thus the use of medicines from the Hospital stores was made for the purpose of personal gain of the impugned officers. 8. The other defence of Dr. Kumar that in his absence the compounder was authorized by him to provide treatment and supply of medicines also appears totally against the Medical code. To my mind a Incharge Medical Officer can not remain out of station, authorizing his compounder to run the hospital. The practice, what was being followed there, will not give a lincence to the doctor to perform Government job in such a manner. 9. The allegation against the compounder has also been proved on 7 the basis of oral and documentary evidence before the enquiry Officer, regarding supply of medicines from the store. Those two witnesses, who were examined by the enquiry officer are non else but the staff of the hospital. They are the best person to know what the doctor or the compounder were doing. 10. Although I have heard the learned Advocate appearing on behalf of impugned officers at length, but nothing positive could be pointed out, which, may demolish the charge. Both the impugned officers have made only one attempt i.e. to blame each other. But no convincing defence was made. 11. Rather on the basis of the materials noticed above in my opinion the charges against the impugned officers have been proved. 12. The only question remains as to what should be the appropriate punishment against the impugned officers. Undisputedly investigation against the impugned officers was taken up in the year 1992, i.e. about 9 years have passed. Both of them have certainly been facing the ordial of the long pending investigation. They have also not been able to get any promotion during this period. 8 Therefore to my mind severe punished like removal or dismissal from service will be too hard at this stage. I therefore recommended that three annual increments of the impugned officers be stopped with cumulative effect.” As is apparent from the reading of the aforesaid reasoned order of the Lokayukta that the petitioner was not only given notice and opportunity of hearing but his defence has also duly considered before holding him guilty. It has to be also kept in mind that the controlling authority of the petitioner namely the Civil Surgeon had got a fact finding enquiry held through the Sub-divisional Medical Officer, who in presence of the petitioner on 9.2.1993 had examined several persons and also documents before passing down his enquiry report, wherein he had held that: Þvkjksi ds vuqlkj lhrkjke lko] firk fHk[kkjh lko ,oa ghjk Hkxr orl& onzhHkxr] xzke f”kolkxj dh fpfdRlk f”kolkxj vks’k/kky; esa 4 91 dks dh xbftldh e`R;q 1990 esa gh gks pqdh gS okg~; iath esa bunksuksa O;fDr;ksa dk uke fnukad 18-4-91 dks Øe la[;k 580 ,oa 581 ij vafdr gS] vksj nksuks dks ds&nLr dh fcekjh ls xzLr fy[kk x;k gS] vkSj mudks 13 cksry Xydkst lykbZu dh cksry Hkh p<kbZ xbZ gS] ,slk ckg`;iath esa vafdr gSA ogkW mifLFkr deZpkfj;ksa vksj xzkeh.k O;fDr;ksa ls iqN&rkN ds nkSjku ;g Kkr gqvk fd mudh tkudkjh ds vuqlkj mijksDr uke ds nksuks O;fDr f”kolkxj ds jgus okys Fks] vksj budh e`R;q 1990 esa gh gks pqdh gS bl laca/k esa tc izHkkjh fpfdRlk inkf/kdkjh ls iqNrkN dh xbZ rks mUgksus dgk fkk fd vc Hkh nSfudh foHkkxh; dk;Zoa”k fdlh inkf/kdkjh ls feyus x;s gS rks feJd dks cksy dj tkrs gS fd ml le; dks 9 dksbZ jksxh vk;s rks bl nok nsdj mldk uke lkns dkxt ij vafdr dj ysxs] ftls os okn esa okg; iath esa vafdr dj nsxsA blh izdkj dh vuqifLfkfr edsa ferJd us e`r O;fDr;ksa dk mUgsa gkfu igqpkyus ds fy, fy[kk fn;k] ftls mUgksus okn esa okg; iath esa vafdr dj fy;kA feJd jh v:.k dqekj ds iqNus ij mUgksus bUdkj djrs gq, dgk fd Hkh uke okj iath esa fy[kk tkrk gS og fpfdRlk inkf/kdkjh }kjk dh fy[kk tkrk gS vksj muds vkns”kkuqlkj nok dk forj.k fd;k tkrk gSA vkS’kk/kky; esa dk;Zjr Jh f=Hkwou flag ¼efgyk d{kk lsfodk½ vksj eksgEennoho ¼izja’kd{k lsod½ ls hkh iqNrkN dh xbZ mUgksus izHkkjh fpfdR;lk inkf/kdkjh ds dFku dk leFkZu fd;k vksj crk;k fd mDr nksuks O;fDr;ksa dk uke feJd Jh v:.k dqekj us gh izHkkjh fpfdRlk inkf/kdkjh dks 18-4-91 dks ;g dg dj fn;k fd ;s nksuks O;fDr 17 4-91 dh jkr esa vk;s Fks] ftudk feJd us bZykt fd;k FkkA nksuks d{k lsodks us bl laca/k esa O;ku fy;k] ftldh ewy izfrfyfi bl izfrosnu ds lkFk layXu gSA 4- ;g Hkh vkjksfir gS fd Mk0 fot; fd”kksj flUgk] ljdkjh nok dk bLrseky vius futh izfoDVl esa djrs gSA bldk dksbZ Hkh izek.k eq>s izkire ugha gqvk ysfdu feJd Jh v:.k dqekj }kjk nok forj.k esa ogk dh vfu;ferrk ikbZ xbZ] tks bl izdkj gS ¼d½ m18- 91 dks dqylkr ¼7½ jksfx;ksa dh fpfdRlk dh xbZ fnb[kk;k x;k fd ufeJd us nSfud nok forj.k iath esa dsoy nks jksfx;ks ¼Jh lhrkjke lko vksj ghjkhkjxr] ftudh e`R;q 1990 esa gh gks pqdh gS dks nok forj.k fn[kk;k x;k gS vU; jksfx;ksa dks D;k nh xbZ bldk dksbZ fooj.k ugha gS A HkaMkjiath ds i`’B la[;k 190 ¼91&92¼ ,oa 180@91&9 ij hkh dsoy Øe la[;k 5 o ,oa 581 ftu ij lo O;fDr;ksa dk uke vafdr gS dks 13 cksry Xydkst lykb Zu dk [kpZ fn;k;k x;k gS vkSj cgqr Øe la[;k dks dkVk x;k gS] vkSj fy[kk x;k gS] ftl ij izHkkjh fpfdRlk inkf/kdkjh dk gLrk{kj Hkh ugha gS] ,o lansgkLin gs ¼x½ feJd Jh v:.k dqekj }kjk tks nok izkFkfed LokLF; dsUnz ls yh xbZ gS mldks vkS’kk/kky; HkaMkjk iath esa nks eghus okn vafdr fd;k x;k gS ftldk feJd dksbz larks’ktud Li’Vhdj.k ugha fn;k mijksDr rF;ksa ls Li’V gS fd izHkkjh fpfdRlk inkf/kdkjh viuk eq[;ky; f”kolkxj esa u j[k dj dqnjk esa j[krs gS tks fu;ekuqdwy ugha gS ftu nks O;fDr;ksa dh fpfdRlk 18-4-91 dks dh xbZ fn[kkbZ xbZ gS lk{; esa Li’V gS fd mudh e`R;q 1990 esa gh gks pqdh gS bl laca/k esa eSus lnj vLirky lklkjke ds vfHkys[kk dh Hkh tkWp dha iksLVekVZe fjiksVz ds vuqlkj jh ghjk Hkxr oYn Jh cnzh Hkxr] xzke f”kolkxj dk iksLVekVe lnj vLirky lklkjke esa fnukad 16-5-90 dks fnu 9%00 cts fd;k x;k gS budh yk”k uks[kk Fkkuk }kjk fo”kuiqj xzke ds fudV lM+dij ik;h xbZ Fkh] vksj iqfyl us e`R;q dk dkj.ko”k ls dqpyuk fn[kk;k Fkka ghjk Hkxr dh yk”k ds lkFk gh ,d vKkr O;fDr ftldh mez 20 o’kZ fn[kkbz xbZ dh yk”k Hkh mlh LFkku ls uks[kk iqfyl ls cjken fd;k Fkk] vkSj mldk Hkh iksLVekVe lnj vLirky lklkjke esa fnukad 16-5-90 oks 8%30 cts fnu esa Mk0 nsosUnz f=ikBh }kjk fd;k x;k gS lhrkjke lko oYn fHk[kkjh lko xzke f”kolkxj ds fdlh Hkh O;fDr dk iksLVekVZe ugha gqvk gSA ftu ifjfLFkfr;ksa esa mijksDr nks O;fDr;ksa dh fpfdRlk fn[kk xbZ gS] vksj nok forj.k fn;k x;k gS mij of.kZr gS vksj lansgLin gS bl izfronsu ds lkfk vkjksi laca/k ewy lafpdk hkh mfpr 10 dkjok gsrq yksVkbZ tk; gh gSAÞ It is thus clear that the charge of misappropriation of Government medicine by the petitioner was found to be proved by the authority as also Lokayukta. The learned counsel for the petitioner however has submitted that the impugned order of punishment is based on recommendation of Lokayukta and is bad on the ground of violation of principles of natural justice. In the opinion of this Court such plea cannot be accepted specially when there is no however pleading in this writ application that after receipt of the said well considered recommendation of the Lokayukta by the competent authority of the State Government and before the State Government came out with the impugned order of punishment in terms of the recommendation made by the Lokayukta, the petitioner was not given opportunity by the State Government to explain himself. Counsel, however, has tried to draw inference from the wordings of the impugned order that since there was no specific mention in the same in the impugned order as with regard to 11 affording any opportunity of hearing to the petitioner, it must be presumed that he had not been given any notice and/or opportunity of hearing prior to passing of the impugned order. He has further submitted that the impugned order itself suggested that it had been passed without giving an opportunity to the petitioner and only by way of acting on the dictation of the Lokayukta. In the opinion of this Court the plea of violation of principles of natural justice cannot proceed on assumption. Such plea being a pure question of fact has to be specifically pleaded in the writ petition and in absence thereof this Court cannot accept that the impugned order is bad on account of violation of principles of natural justice. That apart the plea of violation of principles of natural justice in a disciplinary proceeding has always to be examined on the anvil of prejudice to the delinquent as has been held by the Apex Court in the case of State Bank of Patiala vs. S.K.Sharma, reported in AIR 1996 S.C. 1669. In the present case however the 12 petitioner did not suffer any prejudice because both the Lokayukta and the Sub- divisional Medical Officer had not only given notice to the petitioner but also a reasonable opportunity of personal hearing which was also availed by him as is clear from the aforesaid extracted portion of their order. In fact the principles of natural justice being not a codified law, cannot be circumscribed in a straight jacket formula and will always depend on the facts of each case. Counsel next contended that the recommendation of the Lokayukta itself was wholly without jurisdiction, inasmuch as the petitioner being only Compounder and hence holder of the post of non-gazetted Government servant was not covered by the expression „public servant‟ as defined under section 2(j) of the Act. He was thus of the view that only the Gazetted Officers can be proceeded in an enquiry to be conducted by the Lokayukta under the Act and to that extent he places reliance on a communication of the office of the Lokayukta, contained in letter no. 775/Lok. dated 31.3.2004, a copy 13 whereof has been produced today and is being kept on record. In the opinion of this Court neither the said letter of the office of Lokayukta nor an oral submission which was never raised by him before the Lokayukta in course of proceedings can be an answer. As a matter of fact the expression „public servant‟ under section 2(j) has been defined to mean “2(j) “public servant” denotes a person falling under any of the descriptions hereinafter following namely:- (i) every Minister referred to in clause (g); (ii) every officer referred to in clause (h); (iii) every officer referred to in clause (h) who on deputation or on transfer to foreign service is in the service or pay of- (a) any local authority in the State which is notified in the official Gazette; (b) any Corporation (not being the local authority) erstablished by or under the State Act and owned or controlled by the State Government; (c) any Government Company within the meaning of section 617 of the 14 Companies Act, 1956 (Act I of 1956) in which not less than fifty-one percent of the paid up share capital is held by the State Government or any company which is a subsidiary of a company in which not less than fifty-one per cent of the paid-up share capital is held by the State Government. (d) any society registered under the Societies Registration Act, 1880 (Act 21 of 1960) which is subject to the control of the State Government and which is notified by the State Government in this behalf in the Official Gazette.” As noted above, the expression „public servant‟ also, therefore, is referable to an „officer‟ defined under section 2(h) which reads as follows: “2(h) “Officer” means a person appointed to a public service or post in connection with the affairs of the State.” As noted above, there is thus nothing to show that under the Lokayukta Act only a Gazetted Officer can be subjected to a proceeding and that a non-gazetted officer is not a public servant. The expression „public servant‟ has to be given the true and constructive meaning in the context it 15 has been used in the statute and therefore, the expression „Officer‟ here which does not restrict its operation to only Gazetted Officers cannot be held so as to exclude the other non-gazetted Government servant. The word „officer‟ in its ordinary meaning means a holder of the office and that is how the expression Gazetted Officer has been given a different meaning to include such holder of the office where appointment is notified in official Gazette. Had the legislature intended of putting only the Gazetted Officers within the purview of Lokayukta Act there had to be a clear mention to this effect by confining the meaning of officer to mean gazetted officers only. Thus this Court would not find any merit even in the second part of the submission of the learned counsel for the petitioner that the order of the Lokayukta was wholly without jurisdiction. Though the learned counsel for the petitioner has also tried to invite attention of this Court to the merit of the charge and allegation against the petitioner but then taking into account that a reasoned 16 order has been passed by the Lokayukta and before doing so he had also given full opportunity to the petitioner, this Court is not expected to now go into the merits of the charge and correctness of the order, inasmuch as the jurisdiction of this Court under Article 226 of the Constitution of India is not one that of an appellate authority where it can at best go into mainly in the decision making process. This Court however does not find any error in such decision making process. That being so, this application is wholly misconceived and is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/