1992 Supreme(Raj) 759
RAJASTHAN HIGH COURT AT JAIPUR BENCH
G.S.Singhvi, J.
Dr. B.K. Choudhary - Appellant
Versus
State of Rajasthan & ors. - Respondent
S.B. Civil Writ Petition No. 5785 of 1991.
Decided On : 10-07-1992
A departmental enquiry cannot be initiated against a government servant on the basis of mere error or negligence in the performance of duties, in the absence of any allegation of mala fide or ulterior motive.
Headnote:
MEDICAL NEGLIGENCE - DEPARTMENTAL ENQUIRY - DELAY - QUASHING OF PROCEEDINGS - Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (Rajasthan Rules of 1958), Rule 17(aa).
Fact of the Case:
The petitioner, a Junior Specialist in the Medical and Health Department of the Government of Rajasthan, was served with a charge-sheet for alleged negligence in the preparation of a post-mortem report. The charge-sheet was issued after a delay of over 9 years from the date of the incident and 5 years from the date of the petitioner's acquittal in a criminal case arising from the same incident. The petitioner challenged the charge-sheet on the grounds of delay, lack of mala fide, and non-consideration of his reply to the show-cause notice.
Finding of the Court:
The court held that the charge-sheet was issued without jurisdiction and without justification. The court found that there was no allegation of mala fide against the petitioner and that the error or negligence alleged against him did not constitute misconduct. The court also held that the delay in issuing the charge-sheet was inordinate and unexplained. The court further held that the disciplinary authority had failed to consider the petitioner's reply to the show-cause notice before appointing the Enquiry Officer, in violation of Rule 16(4) of the Rajasthan Rules of 1958.
Issues: 1. Whether the charge-sheet issued to the petitioner was valid and justified? 2. Whether the delay in issuing the charge-sheet was inordinate and unexplained? 3. Whether the disciplinary authority had considered the petitioner's reply to the show-cause notice before appointing the Enquiry Officer?
Ratio Decidendi: 1. The court held that the charge-sheet was invalid and unjustified because there was no allegation of mala fide against the petitioner and the error or negligence alleged against him did not constitute misconduct. 2. The court held that the delay in issuing the charge-sheet was inordinate and unexplained because it was over 9 years from the date of the incident and 5 years from the date of the petitioner's acquittal in the criminal case. 3. The court held that the disciplinary authority had failed to consider the petitioner's reply to the show-cause notice before appointing the Enquiry Officer, in violation of Rule 16(4) of the Rajasthan Rules of 1958.
Final Decision: The court allowed the writ petition, quashed the proceedings of the departmental enquiry, and directed the respondent State to give all consequential benefits to the petitioner, including consideration of his case for promotion to the post of Senior Specialist.
JUDGMENT
1. - Dr. B.K. Choudhary who is holding the post of Junior Specialist in the Medical and Health Department of the Government of Rajasthan, has filed this writ petition with a prayer for quashing of the charge-sheet dated 12.10.88 and for grant of consequential benefits in the matter of promotion to the post of Senior Specialist.
2. In brief, the case of the petitioner is that he joined Government service as Civil Assistant Surgeon on 11.5.77. He was selected for the post of Junior Specialist in the year 1985 and presently he is holding that post. He is eligible for promotion to the post of Senior Specialist (Surgery). He has been denied promotion to the post of Senior Specialist on account of pendency of departmental enquiry against him.
3. The petitioner has stated that while he was working as Civil Assistant Surgeon and Tutor in Forensic medicines, he had conducted a post-mortem of Mrs. Radha on 1.3.79 at S.P. Medical College, Bikaner. The petitioner was falsely implicated in a criminal case under sections 218 and 302 I.P.C. The case was tried by the learned Sessions Judge, Bikaner, alongwith the main case of State v. Surajmal . By his judgment dated. 2.8.83, learned Sessions Judge found Surajmal guilty of culpable homicide and sentenced him to life imprisonment. The learned Sessions Judge found that Smt. Radha had died due to drowning and Surajmal was guilty of murdering Smt. Radha by drowning. Learned Sessions Judge found that no case was established against the petitioner and apparently, the case had been made out on the basis of suspicion. The Court further held that the allegations of having given false evidence has not been established against the petitioner.
4. During the pendency of the criminal case, the petitioner was placed under suspension by order dated, 29.4.82. He was reinstated in service on 28.11.83 after the judgment of the learned Sessions Judge, Bikaner. Notwithstanding his reinstatement, the petitioner was not given consequential benefits, he, therefore, served a notice on the respondents and then filed a writ petition before the High Court. D.B Civil Writ Petition No. 3177/88, Dr. B.K. Choudhary v. State of Rajasthan and another was decided by the Court on 8.12.88 and a direction was issued to the respondents to decide the case of the petitioner within three months and to make payment of all the arrears of salary payable to him within three months. After filing of the writ petition by the petitioner, charge-sheet dated, 12.10.88 was served on the petitioner for initiation of enquiry against him under rule 17 (aa) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short rules of 1958). The allegation against the petitioner is that he had not submitted a correct report of post-mortem and, had therefore, neglected the discharge of his duties. In the statement of allegations reference his been made to the factum of post-mortem having been conducted by the petitioner, subsequent post-mortem having been conducted by the Medical Board on 10.3.79, Medical Board having been constituted under the orders of the C.J.M. Bikaner and after making reference to some parts of the report it has been alleged that the, petitioner has not properly discharged his duties and has committed negligence in preparing the post-mortem report. The petitioner submitted a detailed reply dated, 27.1.89. Thereafter, Additional Commissioner (Departmental Enquiries-I was appointed as Enquiry Officer. Subsequently, by order dated. 4.12.90, the Special Secretary, Food and Civil Supplies Department, was appointed as Enquiry Officer. After 4.12.90, the petitioner had appeared before the Enquiry Officer on 23.2.91, 12.3.91, 23.4.91 and 26.6.91. However, no further progress has been made in the enquiry. At one time, Shri M.D. Korani acted as Enquiry Officer in the capacity of Secretary, Food and Civil Supplies Department, and, thereafter, Shri Nayar acted as Enquiry Officer. Thereafter, another person has
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