In departmental proceedings, charges must be substantiated by oral evidence; mere document submission is insufficient, rendering the proceedings invalid.

JUDGMENT :

ANANDA SEN, J.

Heard learned counsel representing the petitioner and learned counsel representing the respondent – State, at length.

2. The petitioner is aggrieved by the impugned order as contained in Memo No.18/Aarop-01-63/2022 317 (18) Ranchi, dated 31.10.2023 (Annexure-7 to the writ petition), by which he has been punished. His appeal is pending, which has not yet been disposed of.

3. The petitioner is an Ophthalmologist, and is an employee of the State.

4. A departmental proceeding was initiated against the petitioner for which charge-sheet was issued vide Memo No.18/Aarop-01-63/2022-415(18) dated 14.07.2022.

The allegation in the departmental charge-sheet is that the employer i.e. the State, had obtained the data from the “Jharkhand State Aarogya Society (JSAS)”, in respect of “Ayushman Bharat Chief Minister’s People’s Health Scheme (CM-JAY)”, and on analysis of the same, it was culled out that the petitioner had operated 250 patients in the District Hospital, Ramgarh, which is a Government Hospital and 1241 patients at Lalita Netralaya, Ramgarh, which is a Private Hospital. It has been alleged in the charge-sheet that the petitioner has committed a misconduct by operating patients at a Private Hospital though he is a Government Doctor, for which he is liable to be proceeded against and punished accordingly.

5. To prove the charge against the petitioner, a Memo of Evidence has been attached along with the charge-sheet, which is at Appendix-3. In the said Appendix, there is reference of only two documents i.e. (a) Photocopy of the list of data received in respect of Ayushman Bharat Chief Minister’s People’s Health Scheme (CM- JAY) and (b) Copy of Letter No.666(3) dated 15.07.2016 issued by the Department of Health, Medical, Education and Family Welfare, Government of Jharkhand. Based on these two documents only, the department seeks to establish the charge against the petitioner.

6. In the departmental proceeding, an Enquiry Officer was appointed. The Enquiry Officer submitted his report. The enquiry report is at Annexure-5 to the writ petition. As per the said report, there is a specific finding to the effect that there is no evidence to substantiate that the petitioner has started or has done any private practice. Further, in the enquiry report, it has been reflected that the Presenting Officer had given his opinion that the operation which was conducted by him in the Private Nursing Home was beyond the official duty hours and for which, Government work was not hampered. Thereafter, the Enquiry Officer has held that the petitioner is guilty as because he has conducted the operation in a private hospital and thus, violated clause-5 of Letter No.3/Stha. D-01-166/15 666(3) dated 15.07.2016.

7. Based on the aforesaid enquiry report, the Disciplinary Authority after issuing the second show cause notice, punished the petitioner. The punishment is of stoppage of five annual increment with cumulative effect, which is a major punishment.

8. The Letter/Circular No.3/Stha. D-01-166/15 666(3) dated 15.07.2016 is part of the charge-sheet. Clause-5 of the said provision provides that any Doctor cannot give his service in a Private Hospital / Nursing Home / any Diagnostic Centre. This Letter / Circular was issued taking note of the fact of private practice which is being done by the Government Doctors. After considering all the aspects, the Government, as per the Letter / Circular, has prescribed that within the duty hours of a Doctor, he cannot indulge in any private practice. If he wants to indulge in any private practice, that should be beyond the duty hours, including the duty hours of the OPD. Further, there is a prohibition that within 500 metres of the Government Hospital in urban area and within 250 metres of the Government Hospital in rural area, the Doctor cannot do a practice nor he can practice privately in his official residence, nor he can give services to any indoor patients elsewhere.

9. The charge which according to t