Santram Mitharam Rathod vs The State Of Maharashtra Through ...
2023 Latest Caselaw 6351 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD.

                       WRIT PETITION NO. 11313 OF 2022

Dr. Santram s/o Mitharam Rathod,
Age : 68 years, Occu. Retired,
R/o. Rathod Niwas, Adarsha Nagar,
D.P. Road, Beed, Tq. & Dist. Beed.                            ...Petitioner

       Versus

1]     The State of Maharashtra,
       Through Principal Secretary,
       Health Department,
       G.T. Hospital, B Wing - 10th Floor,
       Complex Building, New Mantralaya,
       Mumbai.

2]     The Secretary,
       Maharashtra Public Service Commission,
       Bank of India Building, Third Floor,
       M.G. Road, Hutatma Chowk, Fort,
       Mumbai.

3]     The Director of Health Services,
       Arogya Bhavan, 1st Floor,
       St. Jorge Hospital Compound,
       Near CST, Station, Mumbai.

4]     The Deputy Director,
       Health Department, Latur MIDC,
       Latur Region, Dist. Latur.

5]     The District Civil Surgeon,
       District Hospital, Beed,
       Tq. & Dist. Beed.                                  ...Respondents

                                    .....
Mr. V. D. Sapkal, Sr. Advocate i/b Mr. S. R. Sapkal - Advocate for the
petitioner
Mr. A. A. Jagatkar - AGP for respondent nos. 1 to 5
                                    .....




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                               CORAM : MANGESH S. PATIL
                                              AND
                                       S. G. CHAPALGAONKAR, JJ.

ARGUMENTS CONCLUDED ON : 14.06.2023 JUDGMENT PRONOUNCED ON : 05.07.2023

JUDGMENT [Per S. G. Chapalgaonkar, J.] : -

1. The petitioner approaches this Court under Article 226 of

the Constitution of India challenging the order dated 17 August 2021

passed by respondent no. 2 / Additional Secretary, Public Health

Department, Mahaharashtra as well as the order dated 04 May 2022

passed by the Maharashtra Administrative Tribunal in Original

Application No. 580 of 2021.

FACTUAL MATRIX:

2. The petitioner was appointed as a Medical Officer in Public

Health Department of Maharashtra on 07 June 1982. He was promoted

to the post of Medical Superintendent in the month of July-2008 and he

was discharging his duties as such at Beed.

3. The petitioner was arrested pursuant to registration of

Crime No. 66 of 2012 with the Police Station, Beed (City) for offences

punishable under Sections 302, 312, 313, 315, 316, 318, 201, 304 r/w

34 of the Indian Penal Code [in short 'IPC'] as well as for the offences

3 WP11313.2022.odt punishable under Sections 5, 6, 22 and 23 of Pre-conception and

Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994

[for the sake of brevity "PCPNDT Act'] and the offences punishable

under Sections 3, 4 r/w Section 5 of Medical Termination of Pregnancy

Act, 1971 [hereinafter referred to as 'MTP Act']. On 27 August 2012,

the petitioner was put under suspension and on 31 August 2012, he

stood retired from service on attaining the age of superannuation. On

01 October 2015, the petitioner was subjected to departmental enquiry

for misconduct in terms of Rule 3 and 16 of the Maharashtra Civil

Services (Conduct) Rules, 1979 r/w Rule 27(2)(b)(i) of the Maharashtra

Civil Services (Pension) Rules, 1982. The gist of the charges levelled

against him can be summarized as under: -

[a] That, the petitioner while discharging his duties as Medical Superintendent (Class-I officer) at Rural Health Centre, Chinchwan, offered his professional services at private hospital as an Anesthetist and engaged himself in private practice, hence committed misconduct in terms of Rule 3 and 16 of the Maharashtra Civil Services (Conduct) Rules, 1979.

[b] That, the petitioner while discharging his duties as Medical Superintendent (Class-I officer) at Rural Health Centre, Chinchwan, aided illegal termination of pregnancy at private hospital, which displays moral turpitude for a Government Servant and amounts to misconduct in terms of Rule 3 of the Maharashtra Civil Services (Conduct) Rules, 1979.

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      [c]       That, the petitioner while discharging his duties as

Medical Superintendent at Rural Health Centre, Chinchwan, was found to be associated in illegal termination of pregnancy along with other accused in Crime No. 66 of 2012 for offences under PCPNDT Act, MTP Act and IPC. The act of the petitioner is unbecoming of the Government Servant and misconduct in terms of Rule 3 of the Maharashtra Civil Services (Conduct) Rules, 1979.

[d] That, the petitioner while discharging his duties as Medical Superintendent at Rural Health Centre, Chinchwan, involved himself in the act of female foeticide and illegal termination of pregnancy for which he has been arrested on 28th June, 2012 and remanded to magisterial custody on 30th June 2012 for 15 days. The media reports regarding such misconduct had been widely published tarnishing image of the Government, which is the misconduct in terms of Rule 3 of the Maharashtra Civil Services (Conduct) Rules, 1979.

4. The petitioner was served with the memorandum of charges

and subjected to departmental enquiry. The disciplinary authority

appointed an Inquiry Officer. The statements of witnesses were

recorded. The Inquiry Officer submitted his report of enquiry dated

30 January 2018 with affirmative findings of guilt against petitioner for

all the charges. After receipt of the enquiry report, disciplinary authority

given an opportunity to petitioner to make his representation regarding

5 WP11313.2022.odt findings recorded in the enquiry report. The disciplinary authority after

considering report of Inquiry Officer and the representation made by the

petitioner, passed order inflicting punishment of deduction of 25% of

pension on permanent basis.

5. The petitioner approached the Maharashtra Administrative

Tribunal, bench at Aurangabad, vide Original Application No. 580 of

2021 thereby assailing the order passed by the respondent no. 2 /

disciplinary authority, however, the Original Application came to be

rejected vide order dated 04 May 2022.

6. We have heard the learned advocate appearing for the

respective parties and perused the record with their assistance.

CONTENTION OF PARTIES : -

7. Mr. V. D. Sapkal, learned Senior Advocate appearing for the

petitioner would submit that in pursuance of registration of FIR the

petitioner was subjected to the prosecution in Sessions Case No. 170 of

2012, which has been finally decided on 21 March 2018. The learned

Sessions Court acquitted the petitioner of all the charges under the

offences punishable under PCPNDT, MTP and IPC. He would submit

that the departmental enquiry was based on very same material that was

subjected to scrutiny before the Sessions Court. He would submit that

6 WP11313.2022.odt since the petitioner has been acquitted after full-fledged trial, he could

not have been held guilty for the selfsame charges in departmental

proceeding. Mr. Sapkal would further submit that the Inquiry Officer as

well as Maharashtra Administrative Tribunal erroneously recorded

finding that the petitioner was not allowed to undertake private practice

while serving as Medical Superintendent. He would submit that the ban

for private practice has been imposed on the Medical Officers vide

Government Resolution issued in the month of August-2012, after date

of alleged incident that took place in the month of June-2012.

Therefore, the Government Resolution banning the practice cannot have

retrospective application. The findings recorded by enquiry officer and

endorsed by Tribunal are inconsistent with the policy of the Government

as on the date of incident.

8. Shri. Sapkal, would urge that none of the charges could

have been answered in the affirmative by the Inquiry Officer. He would

submit that even the disciplinary authority failed to apply mind to the

aforesaid facts and casually accepted report of the Inquiry Officer and

inflicted the punishment. Mr. Sapakal would submit that impugned

order passed by the Tribunal is also inconsistent with the facts and law.

9. Mr. A. A. Jagatkar, learned AGP would submit that the

impugned order has been passed after following the due process of law.

7 WP11313.2022.odt The petitioner was served with the charge-sheet. The enquiry has been

completed by following the principles of natural justice. The findings

recorded by the Inquiry Officer are based on correct appreciation of the

material on record. The disciplinary authority was justified in passing

the impugned order since the petitioner was found to have involved in

serious misconduct. Mr. Jagatkar would further urge that considering

the fact that the petitioner had already superannuated lenient view has

been taken and the punishment to the extent of deduction of 25%

monthly pension on permanent basis, has been inflicted.

ANALYSIS : -

10. Having considered the aforesaid submissions advanced and

on perusal of the record, it is evident that the petitioner was subjected to

the departmental enquiry based on the imputation of charges served on

him. The enquiry was conducted in accordance with the provisions of

Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. The

petitioner was given opportunity to refute charges, cross examine

witnesses and record his evidence and then final order came to be

passed. We do not find procedural lacuna in conduct of enquiry.

11. The enquiry is based on incident dated 02.06.2012 when

the pregnancy of a lady was terminated in a private hospital where

petitioner had offered his services as Anaesthesist. The documentary

8 WP11313.2022.odt evidence on record suggests that it was a case of female foeticide. After

termination of pregnancy, the fetus was thrown in a river bed. The

autopsy report indicates that the age of fetus was approximately 5

months. The petitioner did not dispute his presence in the hospital

when the pregnancy of the lady was terminated in that hospital.

Pertinently, petitioner had withdrawn his consent to work as

Anaesthesist in the concerned MTP center / hospital of Dr. Shivaji

Sanap. The MTP center continued to operate though the competent

authority had withdrawn its permission much prior to the date of

incident. In this background, the conclusion can be drawn that the

pregnancy was terminated in contravention of the provisions of the MTP

Act and Rules. Admittedly, petitioner did not prepare the notes of the

Anaesthesia and even failed to do necessary paper work. The petitioner

being a senior health officer under the State of Maharashtra, holding key

post like Medical Superintendent was not expected to engage himself in

the illegal termination of pregnancy that was undertaken at the private

unauthorized hospital.

12. True it is that the petitioner has been acquitted in Sessions

Case No. 170 of 2012, however, acquittal in criminal case itself is not

sufficient to exonerate the delinquent in a disciplinary proceeding, even

if charges are based on same set of facts. The parameters of appreciation

of evidence in the matters before criminal court and departmental

9 WP11313.2022.odt enquiry are not equal. The degree of proof differs.

13. Even charges framed against petitioner in criminal trial are

not comparable with imputation of charge in disciplinary proceeding. In

this case while recording finding against first and second charge, the

Inquiry Officer has reached to the conclusion that the petitioner could

not have participated in the illegal termination of pregnancy at

an unauthorized Centre. The petitioner was knowing that the permission

of the concerned MTP Centre at private Hospital was withdrawn by Civil

Surgeon / Competent Authority. Thereafter, the petitioner had

withdrawn his consent to work as Anesthetist with the MTP Centre that

was given by him as per MTP Act at the time of Centre registration. In

spite of that the petitioner extended his services at the unauthorized

Centre.

14. Besides the age of fetus was approximately 5 months as

indicated in autopsy report, the petitioner cannot be oblivious that it is a

case of female foeticide. The theory advanced by petitioner that he

attended emergency call for cesarean as an anesthetist is nothing but a

camouflage and was rightly discarded. The petitioner conveniently

avoided to prepare or put on record his operation notes. Such

categorical findings of the Inquiry Officer have been rightly accepted by

the disciplinary authority while inflicting punishment.

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15. Petitioner contends that he was entitled to have private

practice as he was not receiving non-practice allowance. We have

noticed that salary sleep placed on record supports such contention. It

appears that the complete ban on private practice by the Medical

Officers working under health department of State of Maharashtra has

been introduced vide Government Resolution dated 07 August 2012 i.e.

subsequent to date of incident. Reliance of Tribunal on GR dated

01 April 2010 is misplaced. Under the GR, 25% of basic pay has been

prescribed as non-practice allowance, which appears to be optional.

Although the finding recorded by the Tribunal on this aspect appears to

be erroneous, the consistent findings recorded by the Inquiry Officer and

confirmed by the Tribunal on other charges is sufficient to hold that the

petitioner is guilty of misconduct i.e. indecent behavior, unbecoming of

government servant, tarnishing image of Government etc. hence, the

punishment inflicted by the disciplinary authority cannot be faulted

with.

16. It is trite that writ court would have limited jurisdiction to

examine the procedural errors leading to manifest injustice or violation

of principles of natural justice. However, this court would not delve into

the arena of the factual matrix. The re-appreciation of evidence would

not be possible in exercise of writ jurisdiction. The Supreme Court of

India in the matter of Regional Manager, UCO Bank and another Versus

11 WP11313.2022.odt Krishna Kumar Bhardwaj reported in (2022) 5 SCC 695 observed

regarding parameters of jurisdiction of the High Courts under judicial

review after referring to the previous judgments laying down the

principles of law. The paragraph no. 17 of the said judgment reads thus:

"17. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental / appellate authorities discharged by constitutional courts under Article 226 or Article 136 of the Constitution of India is well circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority.

17. Similarly, the Supreme Court of India in the matter of

Shashi Bhushan Prasad Versus Inspector General, Central Industrial

Security Force and others reported in (2019) 7 SCC 797, discussed the

scope of departmental inquiry vis-a-vis criminal proceedings and

observed in paragraph no. 19 as under :

"19. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on an offender the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. Even the rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a court of law whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of "preponderance of probability".

12 WP11313.2022.odt Acquittal by the court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This is what has been considered by the High Court in the impugned judgment in detail and needs no interference by this Court."

18. Applying the aforesaid principles of law to the facts of this

case, it is crystal clear that the petitioner cannot draw advantage of his

acquittal in the criminal case. The findings recorded by the Inquiry

Officer are supported by independent material, apart from material

relied in criminal trial. The petitioner was found to have participated in

illegal termination of pregnancy at the unauthorized center leading to

female foeticide. Although the offences are not established against the

petitioner in criminal case, charged misconduct is well established in the

departmental proceeding. Pertinently, owner of the private Hospital i.e.

co accused in criminal trial has been convicted for the offences under

PCPNDT Act in Sessions Case No. 170 of 2012.

CONCLUSION : -

19. In that view of the matter, we do not find substance in the

writ petition. Writ Petition is dismissed.

            [ S. G. CHAPALGAONKAR ]                       [ MANGESH S. PATIL ]
                     JUDGE                                      JUDGE
SGP