SIDHESHWAR PRASAD SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ petition the petitioner seeks the quashing of the order as contained in memo No. 627 dated 25 -11 -1983 (ANNEXURE -2) of the Deputy Secretary, Health Department, Government of Bihar, Patna (respondent No. 2), by which the petitioner has been imposed with the punishment of censure and withholding of two increments, as also the order of the appellate authority dated 2 -12 -1983 communicated to the petitioner on 12 -8 -1986 (Annexurc -2) to the show cause filed by the Secretary to the Government of Bihar, Department of Health (for the sake of convenience, Annexure 2 of the show cause will be referred to as Annexure 2 -S) passed under Rule 56(1)(a) of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as the Rules). Facts.

(2.) On 24 -5 -1977 the petitioner was posted as Civil Assistant Surgeon of Sadar Hospital, Munger. It is said that while he was engaged in a major prostrate operation of a patient in the Operation Theatre, Dr. Thakur Ramsagar Singh, Civil Surgeon, directed him to give up operation and to proceed immediately to Kharagpur Block for persons affected in accident by a violent storm. The petitioner refused to carry out the said order as he was in the midst of the operation and requested the Civil Surgeon to direct any of the two other Surgeons, namely, Dr. N.P. Jha or Dr. Fazluddin instead to visit the place of accident. According to the petitioner, the attendants of the patient were waiting in the Hospital and it would have been unethical and inhuman act on his part to give up the patient in the midst of operation. On petitioner's inability to carry out the order of the Civil Surgeon, Dr. Fazluddin was only sent to Kharagpur Block who came back and reported that there was no accident case to be treated. Because of the petitioner's refusal to carry out the direction of the Civil Surgeon, it appears an adverse report was sent, by the Civil Surgeon to the Deputy Director of Health Services, Bhagalpur, and in July, 1977, the Health Department asked for an explanation from the petitioner as to under what circumstances, he defied the order of the Civil Surgeon and explain why disciplinary action be not taken against him (Annexure 4). It is said that the petitioner filed his explanation explaining that there were two more Surgeons available and it would have been a serious misconduct on his part to give up a patient in the midst of the operation when he was asked to move away from the operation theatre to attend Kharagpur Block. Five years thereafter, on 25 -11 -1983, without any proceeding whatsover, the petitioner was communicated about the punishment imposed, namely, censure and stoppage of two increments. On 14 -4 -1984, the petitioner preferred an appeal against the said order, but the appeal being not disposed of, the petitioner filed a writ petition in this Court, being C.W.J.C. No. 2134 of 1985, and on 3 -1 -1986, a Bench of this Court directed the appeal admittedly filed by the petitioner to be disposed of, preferably within six months. To petitioner's knowledge, the appeal being not disposed of within six months, and no information about it having been communicated to the petitioner, he was constrained to file the instant petition on 20 -4 -1987. It appears that this Court sua motu sought cause to be shown by the Secretary -cum -Health Commissioner, Department of Health, as to why a contempt of Court proceeding be not drawn up for violation of the earlier direction of this Court. Cause was shown, and in the show cause, it was stated that the appeal of the petitioner was disposed of by the Chief Minister through the Chief Secretary and the sama was rejected by the Chief Minister on 2 -12 -1985 and communicated to the petitioner on 12 -8 -1987 (Annexure 2 -S). This Court discharged the contempt matter by order dated 19 8 -1987 and gave leave to the petitioner to file or amendment to the writ petition for quashing the said order, if so advised. The petitioner thereafter amended the writ petition and made a further prayer for quashing the communication of the dismissal of his appeal on 2 -12 -1985. This, in short, is the case of petitioner.

(3.) A counter -affidavit has been filed on behalf of the State stating that the petitioner was served with the charge sheet for disobedience of the order of the Civil Surgeon, Manger, on 1 -7 -1977 and the petitioner was required to file his explanation which he filed on 4 -7 -1977, and the show cause having been found to be unsatisfactory, the punishment is imposed. It farther stated that the appeal was wrongly filed before the Deputy Secretary to the Government, in the Department of Health. Since the appellate authority under the provisions of Rule of Executive Business and the Rules was the Chief Minister, the appeal was dismissed by him on 2 -12 -1985.