STATE OF GUJARAT Vs. RAVINDRA BALASAHEB DESHMUKH

JUDGEMENT

(1.) . The respondent Dr. R. B. Desmukh filed Civil Suit No. 43 of 1993 along with an application for temporary injunction against the order dated 1 served upon him on 5-1-1993 transferring him from Ahmedabad to Baroda. The respondent holds the Degree of M.D. (Forensic Medicine) and was appointed as Assistant Professor in Forensic Medicine and was posted as such on 2- 12-1981 in B. J. Medical College at Ahmedabad. He was then selected by the Gujarat Public Service Commission (GPSC for short) for the post of Associate Professor in Forensic Medicine in the year 1985 and was then selected for the post of Professor of Forensic Medicine by GPSC in the year 1987. While he was posted and working as Professor in Forensic Medicine at Ahmedabad he was transferred from Ahmedabad to Baroda by the order dated 1-1-1993. The respondent challenged the aforesaid transfer order on the grounds of mala fides stating that the order had been passed arbitrarily and for collateral purposes and in his place one Dr. D. G. Desai who was only Associate Professor in Forensic Medicine was given the charge of the post of Professor which was held by him. Forensic Medicine Professor was posted in B. J. Medical College Ahmedabad vice the respondent. There is no dispute that Dr. D. G. Desai holds appointment in (Forensic Medicine as Associate Professor and the dispute which has been raised is about his qualification in Forensic Medicine cannot be collaterally challenged in these proceedings because he holds the appointment as Associate Professor in Forensic Medicine. The case of the respondent is that while he was discharging his duties as Professor in Forensic Medicine at B. J. Medical College of Ahmedabad he incurred displeasure of a local MLA namely Shri Vithalbhai Patel. He has given two other incidents also and has narrated three incidents in all as under: (i) That on 16th January 1992 one dead body was brought to the Civil Hospital for post-mortem examination vide post-mortem case N. 118 of 1992. The respondent was required to take Viscera but the local MLA sent to him a note for not taking Viscera of the dead body and since he did not accede to this request the MLA was annoyed and his transfer order had been passed at the MLAs instance. (ii) That on 31st October 1991 dead body of one Ketan Mehta was brought to the Civil Hospital at about 7.00 p.m. and the respondent was not prepared to carry out the post-moterm after sunset because normally the post-mortem is not conducted after sunset except in unusual circumstances and that too when there are specific instructions from the higher authorities He had therefore sought written instructions from the higher authorities and thus he incurred the displeasure of the higher authorities and for this act he was also required to show cause and furnish his explanation. The refusal of the respondent to carry out the post-moterm examination after sunset without written instructions hurt the defendants and it was also a contributory factor to his transfer. (iii) A controversy arose about issuance of an inJury certificate for one Ms. Veena Singh which was to be given as per the injuries noticed by him and he refused to give the certificate as desired by said Ms. Veena Singh and therefore she had filed a complaint against him and the same was also made use of by the higher authorities to transfer him from Ahmedabad to Baroda.

(2.) . The case of appellant herein i.e. the defendants in the Suit as pleaded before the trial Court was that so far as the aforesaid occurrences leading to the allegations levelled against the respondents are concerned there was no dispute but it was contended that none of the said occurrences had weighed with the defendants while passing the impugned order of transfer and that the transfer order had been passed on administrative grounds as well as public interest.

(3.) . The trial Court considered the matter and it has referred to and quoted the note sent by the MLA concerned to the respondent has also noticed that the respondent had not acted in accordance with the note sent by the MLA for not examining the Viscera and it has been recorded in the order of the trial Court that the plaintiff being fully aware of the object of the post-moterm examination and his duties did not accede to the desire of the political leader wherefrom it can be safely inferred that the MLA having failed to prove effectiveness and supremacy must have motivated the authorities for the impugned transfer of the plaintiff and that it was a glaring example of penalty mala fide and arbitrariness. It has also been held that the plaintiff (respondent herein) was justified in refusing to perform the post-mortem examination after sunset and that this incident had given rise to the controversy in the department and the possibility cannot be ruled out that it may have been used as a ground for his transfer. On the basis of the documents Exhs. 3710 and 3211 the trial Court has held that the plaintiff-respondent had been prima facie able to prove the allegation regarding injury certificate of Ms. Veena Singh as the near relative of Ms. Veena Singh had made a complaint to the Government on the basis of which the inquiry was initiated against the respondent and Dr. D. R. Kothari Head of the Department Forensic Medicine was required to investigate into the matter and that his allegation was substantiated by the documentary evidence which was not denied by the appellant-defendants. However in this inquiry no action was taken. What were the administrative grounds or the public interest to transfer the respondent had not been disclosed. It has also been recorded in the trial Courts order that in the current academic year at the time of the transfer of the respondent five students were enrolled in the Forensic Medicine as against it at the place of transfer i.e. Baroda there was no facility for imparting education for post-graduate students in Forensic Medicine.