T C BARJATIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) "In illness the doctor is a father;

(2.) Stated in succinct, the factual matrix giving rise to this petition is that at the threshold of his service career, the petitioner was appointed as Medical Officer with the Department of Medical & Health and in the year 1996 he has availed the promotion to the post of Junior Surgeon. Highlighting his efficacy in the services, the petitioner has narrated in the writ petition that he has to his credit unblemished service career inasmuch as during his entire tenure he was never served with a charge-sheet under Rule 16 or 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for brevity, hereinafter referred to as 'the Rules of 1958'). As regards adverse entries in his ACRs, as per the version of the petitioner, there is no adverse entry in his service profile. The petitioner has further averred in the writ petition that while working in the capacity of Junior Surgeon at Kuchaman City, a memorandum arid charge-sheet under Rule 16 of the Rules of 1958 was served on him on 27th August 1999 (Annex. 1). In the charge-sheet and statement of allegations, the petitioner was attributed a charge of negligence in performing the surgical operation of one Master Javed in the year 1993 resulting into his death. Castigating the charge-sheet as a pre-determined action of the respondent, the petitioner has also made scathing attack on the recitals contained in the charge-sheet and statement of allegations by alleging that the Disciplinary Authority had already made up its mind to punish the petitioner. On receipt of the Memorandum and charge sheet, the petitioner has narrated in the petition that he joined the issue by way of submitting reply to the charge sheet on 20th of October 1999 vide Annex.2. As per the version of the petitioner, the charge attributed to him was aptly dealt with by him in his return and he has specifically denied the allegation about his negligence in performing the operation of Master Javed. As regards the other allegations also, the petitioner has refuted all those allegations with full emphasis at his command. In order to substantiate his grievances against the charge-sheet, the petitioner has also mentioned certain facts which hover around the issuance of charge-sheet and which according to him were the main edifice for the issuance of the charge-sheet. For that purpose, the petitioner has averred in the writ petition that initiation of the departmental enquiry against him was a consequence of a complaint lodged by one Mr. Gulsher Khan, maternal uncle of the deceased Javed, who is a practicing lawyer. According to the petitioner, the cause of initiation of enquiry was, in fact, complaint lodged by Gulsher Khan and not on account of any sort of misconduct conducted by him. The petitioner has also stated in the writ petition that initially Dr. N.L. Goyal, Dy. Controller, conducted an ex-parte preliminary enquiry against him in the year 1993 and submitted his report on 14th July 1993 and making the said preliminary enquiry as the basis, charge-sheet Annex. 1 was served on him after lapse of six years from the date of alleged incident. While placing on record the ex-parte preliminary enquiry report as Annex.3, the petitioner has also submitted that the said report was prepared without examining the parents of the deceased and according to the version of the petitioner, from bare perusal of the said report, it is crystal clear that no specific reason is mentioned in the said report for cause of death of Master Javed.

(3.) The petitioner, thereafter, has switched on to order dated 4th June 2002, whereby enquiry officer was appointed against him. During the course of enquiry, the enquiry officer in all examined 11 witnesses. At this stage, the petitioner has also made an endeavour to impress upon this Court that the requisite operation of Master Javed was performed with the verbal consent of the parents. By alleging these facts, according to the petitioner there was no iota of evidence to attribute any sort of negligence on the part of the petitioner in performing the operation of Master Javed. Thereafter, the petitioner has pleaded that neither the enquiry report was furnished to him nor any notice as envisaged under Article 311(2) of the Constitution was served on him and straightway the impugned order dated 25th August 2006 (Annex.4) was passed whereby penalty of compulsory retirement from service with proportionate pension was inflicted on him. The assertion of the petitioner in the writ petition is that while passing the impugned order, mandatory provision of Article 311(2) of the Constitution was given go-by by the respondent. While making comments on the impugned order, the petitioner has also alleged in the writ petition that the enquiry report was not furnished to him and the disciplinary authority has merely observed an empty formality of publishing the show cause notice envisaged under Article 311(2) of the Constitution of India in two local newspapers which are not widely circulated in the area. As regards the notice sent to the petitioner at his residential address, the petitioner has averred that at the relevant time he was posted at Degana and Sojat City, and therefore, the said notice should have been sent to him at his official address. Thus, in sum and substance, the submission of the petitioner is that publication of notices in the local newspaper and sending a notice at his residential address is nothing but a camouflage and as such it is a total noncompliance of the law. Adverting to the impugned order, the petitioner has attacked the same on the ground that the same has been passed without application of mind and the foundation of the said order is the report of the preliminary enquiry and not the regular enquiry which was conducted as per Rule 16 of the Rules of 1958.