Dr. Prakash Chand Daroch vs State Of Himachal Pradesh & ...
2022 Latest Caselaw 9586 HP

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    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                             CWP No. 3451 of 2022

                                                 Decided on: 21st November, 2022




                                                                      .

           Dr. Prakash Chand Daroch.





                                                                     ...Petitioner
                                         Versus

           State of Himachal Pradesh & Another                    ....Respondents





        Coram
        The Hon'ble Ms. Justice Sabina, Judge.
        The Hon'ble Mr. Justice Sushil Kukreja, Judge.

        Whether approved for reporting?1

        For the petitioner           :   Mr. Ajay Sharma, Senior Advocate with
                                         Mr. Athrav Sharma, Advocate.

        For the respondents No. : Mr. Ajay Vaidya, Senior Additional
        1&2.                      Advocate General



    Sabina , Judge, (Oral)




                                ORDER

The petitioner has filed the petition under Article 226 of the

Constitution of India, seeking following reliefs:-

"(a). That impugned show cause notice dated 28.02.2022, Annexure P-1 and Memo dated 09.05.2022 containing article of charge, Annexure-4 may very kindly be quashed and set- aside with directions to the respondents not to harass and humiliate the petitioner;

1 Whether reporters of Local Papers may be allowed to see the judgment?

(b) That present is a case, particularly in view of orders of this Hon'ble court, for calling for the records to lift the veil, in which directions may very kindly be issued to respondent

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No.1 to look and inquire into the matter personally as with

respect to malafide use of powers by officers added party by name and proceed against them for misconduct as per service jurisprudence and to place on record the inquiry

report and Action Taken Report of this case so that the same may be an eye opener for others not to harass and humiliate, the employees like the petitioner".

2.

Learned Senior counsel for the petitioner has submitted that

the petitioner has been issued the impugned show cause notice

Annexure P-1, in pursuance to the order passed by this Court in CWP

No. 4753 of 2020, decided on 17.08.2021. The petitioner was not a party

to the said petition . The said petition had been filed by Una District

Chemists &Druggists Alliance( UDCDA), ( A Unit of Himachal Pradesh

Society of Chemists and Druggists Alliance) challenging the allotment of

shop to Munish Kumar (respondent No-6 in the said case). The

petitioner had no concern that the allotment of shop to Munish Kumar and

due to this reason petitioner was not arrayed as an respondent in said

writ petition. However, in the said writ petition it was ordered by this

Court that Chief Secretary, Government of Himachal Pradesh should

initiate appropriate proceedings against the concerned respondents for

violating the law and for causing financial irregularities etc. So far as, the

petitioner is concerned, show cause notice has been issued to him with

regard to allotment of shop to Vivek Singhal in the year 2017. In this

regard, earlier inquiry was conducted by SDO (Civil), Una and report was

submitted on 27.4.2018. The space/ shop allotted to Vivek Singhal was

held to be legally not valid and allotment letter issued to him as well as

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agreement entered with him were cancelled. A perusal of the report

shows that SMO-cum-Member Secretary, RKS, Regional Hospital, Una

was held responsible for allotting the space/shop to Vivek Singhal. So far

as, the petitioner is concerned, it was noticed in the said report that the

petitioner had merely referred the application submitted by Vivek

Singhal to the SMO-cum-Medical Superintendent for necessary action.

The short term notice was issued by SMO-cum-Member Secretary, RKS,

Regional Hospital, Una on 19.9.2017 and in pursuance to the said notice,

Vivek Singhal had moved an application before the petitioner. The

petitioner has simply referred the application to Medical Superintendent

for necessary action, as per rules. Thereafter, the entire proceedings

were conducted by SMO-cum-Member Secretary RKS Regional Hospital,

Una and agreement was also executed on 29.9.2017 between Vivek

Singhal and SMO In-charge/ Member Secretary, Regional Hospital, Una.

The State vide notification dated 20.12016 (Annexure P-3) had created

nine posts of Medical Superintendents equivalent to Chief Medical

Officers. The said Medical Superintendents were to look after the work

of the hospital and the Chief Medical Officer were required to look after

the field work. The said averments made by the petitioner in the writ

petition have been duly admitted by the respondents in their reply.

3. Mr. Ajay Vaidya, learned Senior Additional Advocate General

on the other hand has submitted that in pursuance to the order passed

by this Court in CWP No. 2521 of 2017 decided on 17.04.2018, the

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inquiry proceedings have been initiated against the petitioner as the

petitioner unilaterally allotted the space/shop to Vivek Singhal without

following due process of law.

4. The petitioner has filed the writ petition aggrieved against the

show cause notice issued to him vide Annexure P-1 dated 28.02.2022

and memorandum dated 09.05.2022.

5.

In the present case, a short term tender notice was issued on

19.09.2017 to hire the services of experienced Pharmacist duly registered

with the H.P. Pharmacy counsel of H.P. to run medicine/surgical outlet in

Regional Hospital, Una by Member Secretary-cum-Medical

Superintendent, Regional Hospital, Una. Mr. Vivek Singal moved an

application to the petitioner on 26.09.2017 for allotment of space to run

the shop. The said application was admittedly forwarded by the petitioner

to SMO Incharge/Medical Superintendent for necessary action, as per

rules. Thereafter, the space/shop was allotted to Vivek Singhal by

Member Secretary RKS Regional Hospital Una vide letter dated

29.09.2017 and agreement was also executed between SMO Incharge-

cum-Member Secretary, Regional Hospital, Una and Vivek Singhal on

29.09.2017.

6. An inquiry was conducted by SDO (Civil), Una with regard to

illegal encroachment by Vivek Aggarwal alias Vivek Singhal at District

Hospital Una on a complaint filed by Parmod Singh. After holding an

inquiry, the Inquiry Officer gave the following observations:-

"On perusal of the record and statements recorded the

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following observations are made.

(i) Mr. Vivek Aggarwal/Singal was a manager of Jon Aushodhi Shop at Regional Hospital Una through RKS

during 2014-15 and on 18.06.2015 his services were terminated due to some irregularities committed by him.

(ii) Despite his repeated attempts to get a shop at RH Una,

he could not get any shop allotted until 29.09.2017 when he was allotted a space for the construction of shop as described above.

(iii) There are only 2 No of shops at RH Una. One shop is

given to the Civil Supply Corporation for medicine shop

and in other is a Jan Aushadhi Store. Therefore, no shop could be allotted to Mr. Vivek Singal.

(iv) Since the letter No. 1436 MA-MC-1 dated 23.02.2016

received from DC Una had already been disposed of by the then CMO, there was no need to re-consider it after a

lapse of one and half year to accommodate Mr. Vivek Singal, already a defaulter in the records of RH Una.

(v) All the exercise to allot the space for shop to Mr. Vivek was completed by the hospital authorities in a hush hush

manner within a period of only three days.

(vi) Since already two medical shops were running the hospital premises there was no justification in the present allotment for opening another such shop.

(vii) The RH Una falls under the TCP and a permission of Town and Country Planning was necessary to raise any structure in the hospital but Mr. Singal did not take any permission in this regard.

(viii) SMO-cum-Member Secretary RKS RH Una unilaterally issued allotment letter and signed the agreement without taking the matter before the RKS

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Executive Committee or seeking the permission of the

Chairman RKS."

7. Thus, with regard to allotment of shop to Vivek Singhal .on

29.09.2017, in the inquiry, it was found that SMO-cum-Member

Secretary, RKS, Regional Hospital, Una had unilaterally issued the

allotment letter and had signed the agreement without putting up the

matter before RKS Executive Committee or seeking the permission of

the Chairman RKS . It was recommended that the allotment of shop made

in favour of Vivek Singhal should be cancelled. In consequence thereto,

the allotment of space/shop to Vivek Singhal was cancelled.

8. Thus, the matter regarding allotment of space for running a

medicine shop to Vivek Singhal on 29.17.2017 was cancelled after

holding an inquiry and in the said inquiry there were no observations

that the petitioner had any role to play in the said allotment, rather, it

had been noticed by the Inquiry Officer that so far as the petitioner is

concerned, he had merely forwarded the application moved by Vivek

Singhal on 26.09.2017 to SMO/ Medical Superintendent, Una for

necessary action.

9. CWP No. 4753 of 2020 titled Una District Chemists

&Druggists Alliance( UDCDA), ( A Unit of Himachal Pradesh Society

of Chemists and Druggists Alliance) Vs State of Himachal Pradesh

and others was decided on 17.08.2021. A perusal of the order dated

17.8.2021 reveals that the said writ petition has been filed with regard

to allotment of shop to (respondent No.6) Munish Kumar on

18.03.2020. The Bench by allowing the writ petition cancelled the

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award of tender made in favour of Munish Kumar (respondent No.6) in

terms of Annexure P-5 dated 18.03.2020. The Bench further observed as

under:-

"18. We also deem it just and necessary to direct the Chief Secretary, Government of Himachal Pradesh, to

initiate appropriate proceedings against the concerned respondents for violating the law, for causing financial irregularities and all such matters attendant to the acts

committed by them, including for offences regarding

breach of trust and other related Sections of the Indian Penal Code".

10. Thus, this Court while deciding CWP No. 4753 of 2020 was

dealing with the allotment of shop to Munish Kumar (respondent No.6).

So far as allotment of shop to Vivek Singhal on 29.09.2017 is concerned,

the same was not the lis before this Court in CWP No. 4753 of 2020.

However, the respondents by placing reliance on the decision of this

Court in CWP No. 4753 of 2020 had initiated inquiry by constituting a

Committee. The points for consideration and the findings of the

Committee as taken up by the Committee formulated to conduct inquiry

in pursuance to the order passed in CWP No. 4753 of 2020 read as

under:-

"POINTS FOR CONSIDERATION:

With reference to CWP No. 4753 of 2020 and Government notification mentioned in the first para dated 13

.

September, 2021 following are the points of consideration:

(1) Is the allotment of shop given to Sh. Munish Kumar, as per rules.

(2) Have the procedure been followed in such a allotment?

(3) Is the allotment to Sh. Munish Kumar vis-à-vis allotment made to Sh. Vivek Singal in the year 2017, correct. Committee Findings

In view of the documents placed before the Committee, statements of the incumbent CMO and the Medical Superintendent, the visit to the sites/shops in question the

Committee is of the following view:-

1. The allotment made during 2017 and 2020 are not comparable since allotment in the year 2017 is for open space (12*10 feet) in which shop structure was to be

constructed by the Vendor/Allottee and the allotment in the year 2020 is for a shop (The rent of which was duly assessed by the Assistant Engineer, HPPWD Sub Division

No.1, Una, to be Rs. 3848 per month)

2. Allotment in the year 2017 (29.09.2017) to Sh. Vivek

Singal (Later cancelled by Executive Committee of RKS Una on 23.10.2017) has been done in contravention of

rules unilaterally by the then CMO Una.

3. No bids whatsoever w.r.t. the tender (which was only for hiring of services of pharmacist on profit percentage basis i.e. 80:20 and not for renting space or shop) published in 2017 were ever received and the said tender was cancelled by the office order dated Nil. However, the decision for the same has been taken on file on 28.09.2017 (annexure D11)

4. Allotment in the year 2020 to Sh. Munish Kumar S/o Sh. Prem Chand, VPO Malahat Tehsil and District Una has been done as per rules. There is no condition in the

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RKS rules to allot a shop which would debar a non-

pharmacist. Here it would be pertinent to mention that after the possession of the shop Sh. Manish Kumar fulfilled the other conditions required for the sale of medicines and

has licence No. 25118 & 25119 as per Drugs & Cosmetic Act 1940 & Rules thereunder in the name of his Medical Store i.e. Pandit Medical Store, which is valid up to

27.109.2025.

Committee View (A) In view of the findings/observations made in the

preceding paras it has been found out that proper

procedure including financial has been followed and full transparency has been shown in the said allotment by the incumbent Chief Medical Officer, Una Dr. (Major) Raman

Kumar Sharma and no wrongdoing whatsoever has been found in said allotment which would cast aspersion on his integrity w.r.t. said allotment.

(B) Further, it would be pertinent here to mention that Dr. Nirdosh Kumar Bhardwaj Medical Superintendent RH Una

has joined his duty on 18.12.2020 as such there is no role of him whatsoever I the said allotment process which has

happened in the month of March, 2020 i.e. almost seven months before he joined.

(C) The Allotment in the year 2017 (29.09.2017) to Sh. Vivek Singal (Later cancelled by Executive Committee of RKS Una on 23.10.2017) has been done in contravention of rules under the knowledge of the then CMO concerned Dr. Prakash Chand Daroch as he has marked the application of Sh. Vivek Singal to SMO-cum-Member

Secretary RKS Una (annexure D4) who has signed the allotment letter. Necessary action as per rules may be taken against erring officers/officials.

.

11. Admittedly, the petitioner was not associated in the inquiry

conducted by the Committee. The Committee gave its report on

29.09.2021. Thereafter impugned show cause notice dated 28.2.2022

has been issued to the petitioner. The Show cause notice dated

28.02.2022 Annexure P-1 reads as under:-

"Government of Himachal Pradesh Department of Health and Family Welfare

No.HFW-A-B(14)-1/2-21 Dated:Shimla-2, the 28th February, 2022

Show Cause Notice

WHEREAS, a committee was constituted under the Chairmanship of Sh. Nishant Thakur, Additional Director, Health

Services to enquire the matter of allotment of Open space to run a Medicine Shop at RH Una to one Sh. Vivek Singal, District Una in pursuance of Hon'ble High Court Order dated 17.08.2021 passed in

CWP No.4753/2020.

AND WHEREAS, the matter was got inquired into by the committee and submitted their report of the Director, Health Services on 29.09.2021 and commented that the allotment in the year

2017 (29.09.2017) to Sh. Vivek Singal (Later cancelled by Executive Committee of RKS Una on 23.10.2017) has been done in contravention of rules under your knowledge being the then CMO Una.

AND WHEREAS, the inquiry report has been considered by the Government and it has decided to afford an opportunity to Dr. Prakash Chand Daroch, the then CMO Una to

explain his position with regards to the findings of the enquiry report; (copy enclosed).

NOW, THEREFORE, the said Dr. Prakash Chand

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Daroch, the then CMO Una (Now Medical Superintendent, MGMSC,

Khaneri, (Rampur) Distt. Una) is directed to explain his position with regard to findings of the inquiry report and make representation, if any within 15 days positively failing which he will render himself

liable for disciplinary proceedings under relevant CCS(CCS) Rules, 1965.

             (Regd.)

             Dr. Prakash Chad Daroch
                                    to       (Amitabh Avasthi)
                                          Secretary (Hdealth & FW) to the
                                             Govt. of Himachal Pradesh

             Medical Superintendent

MGMSC, Khaneri (Rampur), Distt, Shimla (HP) Endst No. As above Dated, Shimla-12, the 28th February, 2022 CC:-

1. The Director Health Services, HP, Shimla-9 for information and necessary action.

2. Personal/Guard file.

(Sumit Khimta)

Spl. Secretary (Health) to the Govt. of Himachal Pradesh"

12. The petitioner submitted his reply to the show cause notice

on 12.3.2022, Annexure P-2. Thereafter, vide impugned memorandum

Annexure P-4 charge sheet has been issued to the petitioner. Petitioner

has filed reply to the memorandum dated 9.5.2022 on 23.5.2022 and the

same has been placed on record as Annexure P-5.

13. Learned Senior Additional Advocate General has placed

reliance on decision of this Court in CWP No. 2521 of 2017 titled Vivek

Singla Vs State of H.P and others, Annexure R-1. However, a perusal of

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the said order reveals that Vivek Singla had challenged the cancellation

of allotment made in his favour, but the said writ petition was dismissed

and in the said case, it was pointed out that similarly situated K.K.Verma

was running a shop under the name of M/s Verma optical Care Shop and

no action had been taken against the said person. The Bench observed

r to that the allotment which had taken place on 23.09.2011 in favour of M/s

Verma optical Care Shop be inquired into. Thus, decision rendered by

this Court in CWP No. 2521 of 2017 does not advance the case of the

respondents. In the present case, the matter with regard to allotment of

shop in favour of Vivek Singhal had been duly inquired and as per inquiry

report submitted by SDO (Civil), Una, dated 27.4.2018 SMO-cum-

Member Secretary, RKS, Regional Hospital, Una was found responsible

for allotment of space/shop to Vivek Singhal and the space/shop

provided to Vivek Singhal was recommended to be cancelled.

14. Now, again an inquiry is sought to be initiated against the

petitioner with regard to allotment made in favour of Vivek Singhal by

placing reliance on decision given by this Court in CWP No. 4753 of

2020. The said fact is evident from the inquiry report available on record.

However, this Court was not dealing with the allotment made in favour of

Vivek Singhal while disposing of CWP No. 4753 of 2020. Even

otherwise, it is evident that so far as the petitioner is concerned he had

merely forwarded the application received by him from Vivek Singhal to

SMO incharge/Medical Superintendent for necessary action, as per rules

and, thereafter, order of allotment of space/shop to Vivek Singhal was

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passed by Member Secretary, RKS Regional Hospital Una vide order

dated 29.09.2017 and thereafter agreement was executed between SMO

Incharge-cum-Member Secretary, RKS, Regional Hospital, Una and

Vivek Singhal.

15. It has also been pleaded in the writ petition in Para-9 that the

r to State had created nine posts of Medical Superintendent and the job of the

Superintendent was to lookafter the hospital affairs, whereas, Chief

Medical Officers were to do field work. The factum of issuance of

notification Annexure P-3, has been duly admitted by the respondent in

their written statement.

16. Although, this Court does not interfere in the matter where

show cause notice or inquiry has been initiated against an employee but

the facts of the present case are peculiar. In the present case, matter in

dispute has already been duly inquired into and as per the report of the

SDO (Civil), Una, dated 27.04.2018 SMO-cum-Member Secretary, RKS,

Regional Hospital, Una had been found to be responsible in issuing the

allotment letter in favour of Vivek Singhal. The said inquiry report does

not show that the petitioner had any role to play in allotment of Shop to

Vivek Singhal. However, now again action is sought to be taken against

the petitioner with regard to allotment made in favour of Vivek Singhal

vide letter/order dated 29.09.2017 and the said allotment already stands

cancelled. Now the proceedings are sought to be initiated against the

petitioner by placing reliance on decision of this Court in CWP No. 4753

of 2020, whereas, the petitioner was not a party in the said writ petition

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nor the allotment of shop made in favour of Vivek Singhal vide order

dated 29.09.2017 was in issue. It is only the respondents who were party

in the CWP No. 4753 of 2020, had to be proceeded against by the Chief

Secretary Government of H.P. for necessary action.

17. Keeping in view the totality of the facts and

18.

r to circumstances of the case, we are of the view that the petition deserves

to be allowed.

Accordingly, the writ petition is allowed. Impugned show

cause notice dated 28.02.2022, Annexure P-1 and Memorandum dated

09.05.2022 Annexure P-4 contained in article of charge are quashed.

Pending miscellaneous application(s) if any, shall also stand

disposed of.

(Sabina)

Judge

(Sushil Kukreja) Judge November 21, 2022 (Subhash/Gaurav)