Tripura High Court

Mr. Ak Pal vs Mr. M Debbarma on 13 December, 2021

                         HIGH COURT OF TRIPURA
                               AGARTALA

                             WP(C) 883 of 2021

For Petitioner(s)                 : Mr. AK Pal, Adv.

For Respondent(s)                 : Mr. M Debbarma, Addl. GA

HON‟BLE MR. JUSTICE S. TALAPATRA

Order 13.12.2021

Heard Mr. AK Pal, learned counsel appearing for the

petitioner as well as Mr. M Debbarma, learned Addl. GA appearing for

the respondents.

2. The grievance of the petitioner emanates from the order

dated 03.11.2021 (Annexure-E to the writ petition). The facts, as

emerges from the record, are that the petitioner was facing a

departmental proceeding vide the Memorandum No. F.11(15)-

GA(AR)/2018/2010-12 dated 11.09.2019, on the following charge:

"Article-I That the said Dr. Sujit Sutradhar, Medical Officer, Gr.IV of THS, District Hospital, Gomati, Tepania, Udaipur, Tripura, during the period from 2009 to 2018, while functioning as Medical Officer in the District Hospital Gomati, Tepania, Udaipur, did not maintain any register of names of diagnosis/tests in his chamber that he prescribed to the patients, but it was mentioned in prescriptions. It was also revealed during Vigilance Enquiry that Dr. Sutradhar had installed and ECG machine in his chamber to check the patients but he did not obtain any permission or any registration from the competent authority. Though, Dr. Sutradhar had installed ECG machine, he did not maintain any ECG register for patients but the patients, who undergo ECG tests were given a money receipt of Rs.200/- as charge.

It also appeared in the prescription of the patients that there is no registration number of the doctor concerned was displayed/mentioned which violates the clause no. 1,4, 1 & 7.7.2 of Indian Medical Council (Professional Conduct ETIQUETT and ETHICS) Regulations, 2002. No prescription was found where a single drug was prescribed with its generic name which needs to written in capital letter which again violates clause 1.5 as amended by Gazette Notification No.

NCL.211(2)/2016 (ETHICS)/131118 dated 21-09-2016 which was communicated by Shri Manoj Jalani, Joint Secretary, Ministry of HFW, Govt. of India vide D.O. No. 7(13)/2014- NHM/1 dated 18-04-2017 and memorandum No. F.2(6-221)- MS/SECTT/LAW/2013 (Sub) dated 05-12-2014 of Director of Health Services, Govt. of Tripura. It also revealed that in the prescriptions issued to the patients, there is no specific address of patient and thus it also violates the clause 7.8 of Indian Medical Council (Professional Conduct ETIQUETT and ETHICS) Regulation, 2002. As per clause 1.1.3 of Indian Medical Council ETIQUETTE and ETHICS) Regulation, 2002 a doctor registered with MCI/State Medical Council shall prescribe modern allopathic medicine but in the instant case the doctor concerned in addition to modern medicine also prescribed Ayurvedic medicine as Axizyme One piece. In the prescription dated 27-07-2018 & 10-08-2018 of the patient Soma Jamatia (Female) aged 12 years, it has been observed that the doctor concerned prescribed Heneyrab capsule and each Jelatine capsule contained Reboprazole Sodium IP 20 mg (enteric coated plates) and Levosulpirid 75 mg(as sustain release pellets) and as per the guidelines of monthly index of medical specialties (MIMS). Vol. 38 No.8. Page no. 26 the said drug is not recommended for a patient below 18 years old, but doctor concerned had prescribed such medicine violating the guidelines.

As per Rule 3 of the Tripura Clinical Establishment Act, 1976 - "No person shall keep or carry on a clinical establishment without being registered in respect thereof and except under and in accordance with the terms of license granted therefor." But, Dr. Sujit Sutradhar did not obtain license under the Tripura Clinical Establishment Act, 1976 though he has installed an ECG machine n his private chamber and is earning money from it by doing test on his patients. Dr. Sutradhar also did not maintain any register in his private chamber to keep the details of diagnosis/test as advised vide notification No.F.2(6-221)-MS/SECTT/LAW/2013(Sub-III) dated 04-08-2015 regarding some guidelines on private practice of Medical Officers who opted as per Rules of Tripura Health Services, 1974.

By doing the above acts, Dr. Sujit Sutradhar has failed to maintain absolute integrity & Devotion to duty and done gross misconducts which are unbecoming of Govt. servant and thus, he has violated Rule-3 of Tripura Civil Services (Conduct) Rules, 1988."

3. The petitioner denied the said charge. As a result, an

inquiry was instituted. The inquiry authority completed the

departmental inquiry and submitted its finding by the letter No.

F.2(27)/INQ/CDI/2021/2257 dated 16.09.2021 holding that the charge

framed against the charged officer, meaning the petitioner, is not

sustained and accordingly, not found guilty.

4. the disciplinary authority did agree with the finding of the

inquiry authority. Firstly, Mr. Pal, learned counsel has submitted that no

copy of the finding of the inquiry authority has been supplied to the

petitioner, but the disciplinary authority having considered the inquiry

report dated 16.09.2021 has disagreed with the finding and remanded

the matter for fresh inquiry. To demonstrate the reasons assigned by

the disciplinary authority, the following passages from the said order

dated 03.11.2021 is reproduced:

"WHEREAS, the finding of the Inquiring Authority has been carefully examined and in the instant case, the IA has completely relied on the judgment & order by the CJM Court, Gomati District, Udaipur in CR(CC) 05 of 2017 filed by the charged officer against Sri Subal Ch. Dey, Editor & Publisher of Syandan Patrika, Agartala. Further, the Inquiring Authority in his findings has categorically stated that "In view of the judgment and order dated 19th April, 2018 passed by the Ld. Chief judicial Magistrate, Gomati District, Udaipur, I am of the considered opinion that the charged officer namely Dr. Sujit Sutradhar, Medical Officer had not violated the provisions of the Tripura Civil Services (Conduct) Rules, 1988."

AND WHEREAS, the grounds cited by the Inquiring Authority in his findings for not sustaining the charges levelled against the charged officer Dr. Sujit Sutradhar was at all not justified. The Ministry of personnel Grievances and Pensions, Department of Personnel and Training, Govt. of India, vide Office Memorandum No. 11012/6/2007-Estt(A-III) dated 21st July, 2016 has clarified (in para 6 & 7) that acquittal by a criminal court would not debar an employer from exercising power in accordance with rules and regulations in force."

5. According to Mr. Pal, learned counsel for the petitioner, this

is not a case where a fresh inquiry can be directed inasmuch as after

due inquiry, the inquiry officer had found the petitioner not guilty of

mis-conduct.

6. At the first blush, such submission appears attractive, but

the disciplinary authority has categorically observed that the finding in

the judgment and order dated 19.04.2018 passed in CR(CC) 05 of 2017

has been mechanically applied by the inquiry authority for arriving at

the finding of "not guilty".

7. This court is of the view that since the criminal prosecution

has ended in the acquittal it does not mean that this is the end of the

pending or upcoming disciplinary proceeding. The apex court from Ajit

Kumar Nag vs. G.M. (PJ) [(2005) 7 SCC 764] to S. Bhaskar

Reddy vs. Superintendent of Police & Anr., [(2015) 2 SCC 365]

has consistently held that the judicial finding be given the superior

weightage in a departmental proceeding. It implies that when in the

matter of certain fact a judicial examination was there and an inference

has been drawn, such observation will be binding on the disciplinary

authority. That does not mean that the allegation of misconduct will not

survive against the person who was accused of commission of offence

which has direct or indirect overlapping effect on the charge in the

departmental proceeding.

8. The parameters regarding how to deal with such

circumstances have been well laid in those decisions. It has been

observed by the apex court in Ajit Kumar Nag (supra) as follows:

"11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The 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 the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. 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. 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. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of „preponderance of probability‟. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."

9. In S. Bhaskar Reddy (supra) it has been held as under:

"It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case [Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 : 1999 SCC (L&S) 810 : (1999) 2 SCR 257] will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."

10. Having due regard to the said law as expounded by the

apex court, this court is of the view that the disciplinary authority was

within its jurisdiction firstly to reject the finding of the inquiry authority

and thereafter, to ask for a fresh inquiry. That apart, it is clear from the

findings of the inquiry authority that no comparison of the fact and

evidence has been made. Based on the finding of acquittal the

petitioner was held to be not guilty.

11. Having observed thus, this Court does not find any merit in

this writ petition. However, considering that the petitioner will be

retiring from the service very soon, the respondents are directed to

complete the inquiry/disciplinary proceeding within a period of four

months from the date when a copy of this order will be supplied.