Dr. Md. Abdul Ali vs The State Of Bihar
2023 Latest Caselaw 160 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Letters Patent Appeal No.162 of 2020
                                  Arising out of
                 Civil Writ Jurisdiction Case No.22251 of 2019
     ======================================================

Dr. Md. Abdul Ali, Male, aged about 46 years, Son of Md. Abul Hasmat, Resident of Village/Mohalla-Flat No. B-7 Wali Court Apartment Khajpura, Rukunpura, Post P.V. College, Danapur, Patna, P.S. Patna Airport, District- Patna.

... ... Petitioner/s / Appellant/s

Versus

1. The State of Bihar through Principal Secretary Health Department, Government of Bihar, Patna.

2. The District Magistrate, Madhepura.

3. Civil Surgeon Cum Member Secretary, District Health Committee Madhepura, District-Madhepura.

4. Medical Officer Incharge Primary Health Centre Kumarkhand, District Madhepura.

... ... Respondent/s / Respondent/s ====================================================== Appearance :

     For the Appellant/s   :       Mr. Md. Aslam Ansari, Advocate
     For the State         :       Mr. S.D. Yadav, AAG 9 with
                                   Mr. Nagendra Kumar Singh, AC to AAG 9

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH)

Date : 11-01-2023 Patna High Court L.P.A No.162 of 2020 dt.11-01-2023

Heard Mr. Md. Aslam Ansari, learned counsel for the

appellant and Mr. S.D. Yadav, learned AAG 9 for the State.

2. The present appeal is directed against the judgment

dated 20.01.2020 passed by the learned Single Judge in CWJC No.

22251 of 2019 by which the writ petition filed by the petitioner

against his order of termination of contract dated 31.08.2019 has

been dismissed.

3. The appellant was initially engaged on contract for a

period of two years on 29.06.2011 and the last renewal was for the

period dated 01.01.2018 to 01.01.2021 but in the meantime on

23.07.2019, he received a show cause based on a comment of the

learned Sessions Judge in a judicial order whereby an injury report

submitted by him was doubted and adverse comments were made

therein.

4. The appellant took a stand in his show cause that on

the relevant day he was not on duty and two other persons had

prepared the injury report and he was forced to sign on the same

and thus no liability can be fastened on him. The authorities after

giving him a second show cause terminated the contract by the

impugned order invoking the provision of Clause-5 of the

agreement of contract between the parties.

5. Learned counsel for the appellant submitted that

reliance on Clause-5 of the contractual agreement dated Patna High Court L.P.A No.162 of 2020 dt.11-01-2023

29.06.2011 is erroneous for the reason that it talks about any

information found false or fabricated document presented by the

appellant for seeking the employment and it does not relate

to any misconduct or fraud/forgery committed during the course of

employment. However, it was submitted that the appellant is a

scapegoat as without there being any fault on his part, he has been

inflicted with the severest punishment of his contract itself being

terminated. Learned counsel submitted that there may have been

an error in judgment by the appellant in preparing the injury report

and he had not taken such stand himself but rather an erroneous

show cause on his behalf was filed under professional advise. It

was submitted that human error to a professional is admissible,

especially in matters where it is basically subjective for forming an

opinion, which the appellant has done inasmuch as, the incised

wound has been written to be caused by bamboo stick, which is

also capable of inflicting such injury in specific cases.

6. Learned AAG 9, per contra, fairly submitted that the

invocation of Clause-5 of the contractual agreement dated

29.06.2011 may not be appropriate but in the same contractual

agreement Clause-3 and Clause-6 which have been quoted by the

learned Single Judge in the order impugned clearly stipulates that

if there is any misconduct or lack of satisfactory service, the

contract may be terminated and the conduct of the appellant in the Patna High Court L.P.A No.162 of 2020 dt.11-01-2023

present instance clearly demonstrates that the stipulation of those

clauses were satisfied and termination of the contract does not

warrant any interference, as mere wrong quoting of a provision

will not be a ground for interference where substantially the power

exists. However, he submitted that as the stand has been taken that

the appellant under improper/erroneous/professional advise had

taken such stand in his show cause, he may have departmental

remedy.

7. Having considered the rival contentions, the Court

does not find any occasion to interfere in the order of the learned

Single Judge as also the order which was impugned in the writ

petition.

8. Accordingly, the appeal stands dismissed.

9. However, as the learned counsel for the appellant has

submitted that due to improper and incorrect professional advise, a

stand was taken in the show cause, for the ends of justice, the

Court would only observe that it would be open to him to file

appropriate representation before the department concerned raising

all these factual/legal issues which may be considered by the

competent authority in accordance with law, without being

prejudiced by the present order.

10. On prayer made by learned counsel for the appellant,

the Court would further observe that if such representation is filed Patna High Court L.P.A No.162 of 2020 dt.11-01-2023

within six weeks from today, the competent authority would after

affording an opportunity of hearing, if so desired by the appellant

would pass a reasoned order thereupon within six weeks from the

date of filing of the such representation.

(Ahsanuddin Amanullah, J)

(Harish Kumar, J)

Arish/-

AFR/NAFR U T