Bombay High Court
Ashok S/O Baburao Giri vs The State Of Maharashtra And Anr on 18 April, 2017
Bench: S.S. Shinde
4941.16APPLN
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4941 OF 2016
Ashok S/o Baburao Giri
Age : 49 years, Occ : Medical Practitioner,
R/o Tapdiya Eatate, Hingoli,
Tq. & Dist. Hingoli.
..APPLICANT
-VERSUS-
1) The State of Maharashtra
Through Basmat Police Station,
Tq. Basmat, Dist. Hingoli.
2) Ravikiran S/o Tukaram Chavan
Age : 56 years, Occ : Service,
At present R/o Deputy Director
of Health, Aurangabad
Tq. & Dist. Aurangabad.
..RESPONDENTS
...
Advocate for applicant :Mr. D.M. Shinde
APP for Respondent/State : Mr. S.P. Deshmukh
...
CORAM : S.S. SHINDE &
K.K. SONAWANE, JJ.
RESERVED ON : 10th April, 2017
PRONOUNCED ON : 18th April, 2017
JUDGMENT (S.S. SHINDE,J):-
Rule. Rule made returnable forthwith
and heard finally with the consent of the
learned counsel appearing for the parties.
4941.16APPLN
2. This application seeks quashment of
F.I.R. bearing C.R. No. 101/2016 registered
with Basmat Police Station, Hingoli dated 30 th
June, 2016 under section 420 of the Indian
Penal Code.
3. The brief facts, leading for filing
the present application, are as under :-
Respondent No.2 herein lodged the
first information report against the
applicant with Police Station Basmat for the
offence punishable under section 420 of the
Indian Penal Code. It is alleged in the said
first information report that, on 30 th June,
2016, when the Principal Secretary Smt.Sujata
Pradhan of Health Department, Government of
Maharashtra and Dr. Shreemati Jaiswal, the
Specialist at Pune visited the hospital in
Hingoli district at Basmat, during their
visit, the complaints were received from the
citizens of Basmat against the present
applicant, who was working as Class-II
Officer at the relevant time in the
Government Hospital at Basmat, raising the
grievance that, the applicant has indulged in
private medical practice. In view of the
4941.16APPLN
complaints received from the various
citizens, Dr. Smt. Sujata, the Principal
Secretary, Public Health Department, Mumbai
with Dr. Gopal Kadam, Residence Medical
Officer, General Hospital, Hingoli,
Dr.Dhanve, District Health Officer, Zilla
Parishad, Hingoli, Dr. Pandey,
Superintendent, Women's Hospital and
Dr.Babasaheb Rodge, Civil Surgeon, General
Hospital, Hingoli visited Shivam Hospital,
which is situate nearby the Rest House and
made inquiries. During inquiries, it was
revealed that, the present applicant, who is
working as Medical Officer, Class-II in
District Government Hospital at Hingoli is
also engaged in private practice in the said
hospital. It appears that, Dr. Balasaheb
Selukar, who was present in the said hospital
and other staff members of Shivam hospital
stated that, the present applicant is on
visiting terms with their hospital and
engaged in private practice. It is further
alleged that, even the documents of Shivam
hospital mentions the name of present
applicant. It is further alleged in the first
information report that, though the
Government has given six increments to the
applicant for not indulging into private
4941.16APPLN
practice and though the applicant has
proceeded on medical leave, he was found
doing the private practice in Shivam hospital
and the said act of the applicant amounts to
cheating to the State Government. Therefore,
with the above allegations, the first
information report came to be registered
against the applicant by respondent no.2.
4. The learned counsel appearing for
the applicant submits that, initial date of
appointment of the applicant is 20th March,
1993. The applicant was not feeling well
since long prior to registration of the first
information report and hence he felt that, he
is unable to give proper service in the
Government hospital and hence, he submitted
his application for voluntary retirement
addressed to the Additional Chief Secretary,
Public Health Department, Government of
Maharashtra, Mantralaya, Mumbai routed
through the District Civil Surgeon, Civil
Hospital, Hingoli. It is submitted that, the
said application was filed on 14th March, 2016
and in view of the provisions of Rule 66 of
the Maharashtra Civil Services (Pension)
Rules, 1982, if the decision is not taken by
the Competent Authority on the said
4941.16APPLN
application for voluntary retirement within
the period of three months from the date of
submitting the application, the said
application is deemed to have been allowed
and from the date of completion of three
months period, the voluntary retirement
automatically stands effected. It is
submitted that, the concerned authority has
any reservation in not accepting the request
of the applicant for voluntary retirement, to
that effect, it should have been communicated
to the applicant within the period stipulated
in the said application. Therefore, it is
submitted that, keeping in view the
provisions of Rule 66 of the Maharashtra
Civil Services (Pension) Rules, 1982, the
application filed by the applicant on 11 th
March, 2016 for voluntary retirement, by
virtue of completion of three months period,
in view of the deeming provision, the said
application stood allowed, and as a result
the applicant stands retired automatically on
11th June, 2016. Therefore, he has no concern
with the Government Hospital at Hingoli. Even
during the period of said three months, the
applicant filed application seeking leave on
10th June, 2016. Therefore, the allegation
that, the applicant was not available in the
4941.16APPLN
Civil Hospital on 30th June, 2016 has no
substance in view of the fact that, he did
file the application seeking permission to
proceed on leave w.e.f. 10th June, 2016. The
learned counsel appearing for the applicant
invited our attention to the contents of the
application dated 14th March, 2016 filed for
voluntary retirement and submits that, on
expiry of three months period i.e. on 11th
June, 2016, the applicant stood voluntarily
retired from Government service, and
therefore, there was no question of any
enquiry from Shivam hospital about, whether
the applicant is indulged into private
medical practice or otherwise. It is
submitted that, since the applicant possesses
Postgraduate in medicine, therefore, he was
entitled for six increments, which was
allotted in his favour in view of the
provisions of the Government Resolution dated
19th November, 2012 issued by Public Health
Department, Government of Maharashtra,
Mantralaya, Mumbai.
5. It is submitted that, upon perusal
of the said Government Resolution, nowhere it
is prescribed that, the increments are given
only for those who are non-practicing
4941.16APPLN
doctors. It is submitted that, even if the
allegations in the first information report
are taken as true, even then as per the
Government Resolution dated 7th August, 2012
issued by Public Health Department,
Government of Maharashtra, Mantralaya,
Mumbai, at the most, the authority could have
initiated the departmental enquiry against
the applicant, as contemplated under the
provisions of the Maharashtra Civil Services
(Conduct) Rules, 1979 and under the
Maharashtra Civil Services (Discipline and
Appeal) Rules, 1979. It is submitted that,
aforementioned Government Resolutions are
very specific and if the employee opts to
accept non-practicing allowances and still he
continued with the private practices in that
case, departmental enquiry can be initiated
against the employee.
6. The learned counsel appearing for
the applicant invites our attention to the
exposition of law by the Supreme Court in the
case of Kanwarjit Singh Kakkar V/s State of
Punjab and anr1 and submits that, in similar
facts situation like in the present case, in
the case of Kanwarjit Singh (supra), the
1 2011(13) SCC 158
4941.16APPLN
Supreme Court has taken a view that, the
conduct of the appellants who are alleged to
have indulged in private practice while
holding the office of government doctor and
hence public servant at the most, could be
proceeded with for departmental proceeding
under the Service Rules but in so far as
making out of an offence either under the
Prevention of Corruption Act or under the
IPC, would be difficult to sustain. The
learned counsel appearing for the applicant
further submits that, so as to attract the
ingredients of section 420 of I.P. Code,
there should be fraudulent or dishonest
intention of a person by deceiving him and
the person so deceived should be induced to
deliver any property to any person, or to
consent that any person shall retain any
property, or the person so deceived should be
intentionally induced to do or omit to do
anything which he would not do or omit if he
were not so deceived. The learned counsel
further submits that, the act of omission
should be one which causes or is likely to
cause damage or harm to the person induced in
body, mind, reputation or property. In
support of aforesaid contentions, he invites
our attention to the unreported judgment of
4941.16APPLN
the Division bench of Bombay High Court,
bench at Aurangabad in the case of Rashami
W/o Satish Khandvikar and another V/s The
State of Maharashtra and anr. in Criminal
Application No.3127 of 2016 decided on 17th
October, 2016. Therefore, relying upon the
pleadings in the application, grounds taken
therein and annexures thereto, the learned
counsel appearing for the applicant submits
that, the application deserves to be allowed.
7. On the other hand, the learned
A.P.P. appearing for the respondent/State,
relying upon the affidavit in reply filed by
respondent no.2 - Dr. Ravikiran Tukaram
Chavhan, working as Deputy Director of Health
Services, Mumbai, submits that, the applicant
had submitted the notice for voluntary
retirement and the same was sent to the
office of Civil Surgeon Hingoli on 14 th March,
2016. As per Government Resolution dated 12 th
September, 2014, the Medical Officers and
Medical Superintendents are required to
submit their notice for voluntary retirement
directly to the Government. The Civil
Surgeon, Hingoli vide letter dated 18th March,
2016 intimated to the applicant to submit his
notice for voluntary retirement to the
4941.16APPLN
Principal Secretary, Public Health
Department, Government of Maharashtra,
Mantralaya, Mumbai. It is submitted that, it
is true that, the crime is registered on 30th
June, 2016 for the offence punishable under
section 420 of the I.P. Code against the
applicant, till today no Government orders in
respect of sanction of applicant's voluntary
retirement is received. It is submitted that,
the departmental enquiry against the
applicant is proposed.
8. The applicant has filed the
rejoinder affidavit to the reply filed by
respondent no.2. It is stated in the
rejoinder affidavit that, the letter of
intimation issued by the Civil Surgeon,
Government Hospital, Hingoli on 18th March,
2016 is never served upon him. The applicant
though worked on the post till 10th May, 2016
and thereafter, he proceeded on leave on
medical ground and he never joined the
services at Civil Hospital at Hingoli. It is
stated that, if such letter is issued on 18th
March, 2016, in that case, the same should
have been mentioned in Outward Register
maintained by the Hospital at Hingoli.
However, such record is not maintained. The
4941.16APPLN
learned counsel relying upon the averments
made in the rejoinder affidavit submits that,
till date neither he has received the letter
dated 18th March, 2016 issued by the Civil
Surgeon, Government Hospital, Hingoli nor the
communication from the Department of Health,
Government of Maharashtra, about the status
of his application for voluntary retirement.
9. We have considered the submissions
advanced by the learned counsel appearing for
the applicant and the learned A.P.P.
appearing for the respondent/State and also
perused the investigation papers.
10. It is true that, in case of
Kanwarjit Singh Kakkar (supra), the Supreme
Court in the facts of that case, wherein the
appellants therein were prosecuted for the
offence punishable under sections 13(1)(d)
read with section 13(2) r/w Rule 15 of the
Punjab Civil Medical (State Service Class I)
Rules, 1972 and section 168 of the Indian
Penal Code, 1860, has taken a view that, the
conduct of the appellants who are alleged to
have indulged in private practice while
holding the office of government doctor and
hence public servant at the most, could be
4941.16APPLN
proceeded with for departmental proceeding
under the Service Rules but in so far as
making out of an offence either under the
Prevention of Corruption Act or under the
IPC, would be difficult to sustain. It is
further observed that, if the medical
professional has acted in a manner which is
contrary only to the government instructions
dehors any criminal activity or criminal
negligence, the same would not constitute an
offence either under the Indian Penal Code or
under the Prevention of Corruption Act.
However, in the facts of the present case,
there are specific allegations in the first
information report that, the applicant is a
Specialist Doctor, and therefore, six
additional increments have been given to him.
The said additional increments have been
given to him so that he should not indulge in
doing the private practice. It is alleged
that, though the applicant proceeded on leave
on health ground, he was found doing the
private practice during the said period in
Shivam hospital. It further appears that, the
statement of number of witnesses from Shivam
hospital and also Medical Officers working
there have been recorded and they stated
that, during the said period, applicant
4941.16APPLN
attended the hospital and examined the
patients. It has also come on record that,
some incriminating documents from Shivam
hospital on which the name of the applicant
has been mentioned, have admittedly
recovered. It is come on record that, the
applicant withdrawn the salary till the end
of 30th May, 2016 and on 30th June, 2016, he
was found practicing in private hospital. It
is also relevant to mention that, even the
salary would include increments. Therefore,
prima facie, it appears that, the applicant
by pretending that, he is not doing private
practice in private medical hospital, has
withdrawn/secured the benefits of six
additional increments. Therefore, the
aforestated act of the applicant is
distinguishable, vis-a-vis, the facts
involved in the case of Kanwarjit Singh
Kakkar (supra).
11. The contention of the applicant
that, he sent notice for voluntary retirement
on 14th March, 2016, and the said notice was
sent through the office of Civil Surgeon,
Hingoli to the Principal Secretary, Public
Health Department, Mantralaya, Mumbai, needs
to be examined in the light of the affidavit
4941.16APPLN
in reply filed by respondent no.2. It is
stated in the affidavit in reply filed by
respondent no.2 that, as per the procedure,
the applicant supposed to have sent the
notice to the Principal Secretary, Department
of Health, Government of Maharashtra, Mumbai.
It is stated that, immediately on 18th March,
2016, the letter was written to the applicant
that, as per procedure, the applicant should
have sent the said notice directly to the
Principal Secretary, Department of Health,
Government of Maharashtra, Mantralaya,
Mumbai. It is specifically stated in
paragraph no.4 of the affidavit in reply
that, as per the Government Order dated 12 th
September, 2014, the Medical Officers and
Medical Superintendents are required to
submit their notice for voluntary retirement
directly to the Government. The contention of
the learned counsel appearing for the
applicant that, the applicant did not receive
the letter dated 18th March, 2016, written by
the Civil Surgeon, Hingoli, deserves no
consideration. It cannot be believed that,
the applicant was not aware that, the notice
is required to be sent directly to the
Government, and secondly, he did not receive
the letter written by the Civil Surgeon on
4941.16APPLN
18th March, 2016. Therefore, the contention of
the learned counsel appearing for applicant
that, since the said notice was given on 14th
March, 2016 and in view of the provisions of
Rule 66 of the Maharashtra Civil Services
(Pension) Rules, 1982, on completion of three
months period, his application for voluntary
retirement stood automatically allowed/
effected, has no force.
12. Upon careful perusal of the
allegations in the first information report,
the said allegations, prima facie, attract
the ingredients, so as to constitute offence
under section 420 of the Indian Penal Code.
As already observed, the applicant is
beneficiary of receiving such additional six
increments, on the ground that, he is not
practicing privately, and secondly, though he
proceeded on leave on account of ill heath,
during the said period, he found privately
practicing in Shivam hospital.
13. In view of the discussion in
forgoing paragraphs, we are not inclined to
entertain the prayer for quashing first
information report. Hence the application
stands rejected. An observations made
4941.16APPLN
hereinabove, are prima facie in nature, and
only for the purpose of adjudication of the
present application. We make it clear that,
this order would not preclude the applicant
from availing of an appropriate remedy, as
available in law, in the event of filing
Report by the Investigating Officer under
section 173(8) of the Code of Criminal
Procedure.
14. The Rule stands discharged. The
application stands rejected.
(K.K. SONAWANE, J.) (S.S. SHINDE, J.)
...
SGA
