ABHA GUPTA Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Manish Goyal, learned counsel for the petitioner, Sri Yogesh Kumar Yadav, learned Standing Counsel appears on behalf of respondent nos. 1 to 5 and Sri Mahendra Pratap Yadav, Advocate, appears on behalf of respondent nos. 8, 9 & 10.

(2.) By means of the present petition, the petitioner is challenging the order dated 2.9.2011 passed by respondent no. 1 whereby the petitioner has been awarded a major punishment by way of downgrading her from Medical Officer Level -2 to Medical Officer Level-1.

(3.) In the year 2008, the petitioner was posted as a seniormost Women Medical Officer at District Joint Hospital, Maharajganj. On 5.6.2008, one Saroj, daughter of Sri Ramanand Shahni, filed an FIR against one Sri Dharmendra, alleging that she had been raped by him on 26.5.2008. In pursuance thereof, a case Crime No. 940 of 2008, under Section 376 I.P.C. was registered. Pursuant to the FIR, Saroj was brought to the District Joint Hospital, Maharajganj at about 11-30 AM for her medical examination. She had been examined by the petitioner. Upon physical examination of Saroj, the petitioner prepared a report. The report is Annexure-2 to the writ petition. In the report, it has been categorically stated that "final opinion can be given after Radiological and Pathological report." Saroj belongs to the Nishad community. On 7.6.2008, one Sri Jamuna Nishad, a sitting M.L.A., also appears to be a Minister, along with some anti social elements, came at the Police Station, Mahrajganj and put the entire Police station on fire, which was followed by cross-firing in which one Constable Krishna Nand Rai died. A First Information Report was lodged against Sri Jamuna Nishad by the Police Officer Incharge of Police Station, Maharajganj. On 8.6.2008, at about 11-45 PM, a Medical Board, consisting of 6 doctors, was constituted, which included Radiologist and Pathologist. The Board examined Saroj and given the report at 2-00 AM i.e. in the night of 8/9.6.2008. The report is Annexure-3 to the writ petition. The report reveals that no final opinion has been given about the rape having being committed. However, the Superintendent of Police, Maharajganj wrote a letter dated 9.6.2008 to the District Magistrate, Maharajganj recommending disciplinary action against the petitioner. The said letter is Annexure-4 to the writ petition. In pursuance thereof, the District Magistrate wrote a letter dated 9.6.2008 to the State Government for taking disciplinary action against the petitioner. On 11.6.2008, the petitioner has been suspended. The First Information Report was lodged, which was registered as Case Crime No. 1048 of 2008, under Sections 119, 192 and 201 IPC read with Section 7/13 of the Prevention of Corruption Act. In pursuance of above, a departmental disciplinary enquiry has been initiated. On 18.6.2008, a charge-sheet has been submitted, which is Annexure-7 to the writ petition, on the allegation that the report of the petitioner and the report of the Medical Board were different and the petitioner by giving incorrect report had not discharged her medical duty and responsibility. The petitioner filed reply on 2.7.2008, which is Annexure-8 to the writ petition, and demanded six specific documents and also raised objection about the continuance of the disciplinary proceedings simultaneously with the criminal proceedings. However, despite the objection, disciplinary proceedings proceeded. The petitioner was provided only two out of six documents demanded. Thereafter, the petitioner filed a detailed objection on 29.9.2008 before the Inquiry Officer. The copy of the reply is Annexure-11 to the writ petition, and further filed a letter dated 29.9.2008 with the request to examine eleven witnesses. On 6.10.2008, four Doctors, who were members of the Medical Board, presented themselves before the Inquiry Officer and their statements had been recorded.