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2014 DIGILAW 583 (ORI)

Deepak Kumar Behera v. State of Orissa

2014-09-09

BISWANATH RATH

body2014
JUDGMENT BISWANATH RATH, J.- By filing the Writ Petition the Petitioner has sought for quashing of order under Annexure-6, an order passed by the Chief District Medical Officer, Mayurbhanj for disengaging the Petitioner from contractual service w.e.f 30.04.2013 on the ground of unprofessional behavior. Petitioner has assailed the impugned order vide Annexure -6 on the grounds as enumerated in para-2 which is reproduced as herein below : "(I) No enquiry has been made to find out the truth of the allegations of misconduct, on the other hand, whatever fact finding enquiry has been made behind the back, the Enquiry reports do not give any positive findings to prove the guilt nor the same is supplied to the Petitioner to explain. (ii) The fact finding report also in fact, does not give any positive findings to prove the guilt of the Petitioner. The law is settled that suspicion cannot take place of proof; (iii) There is complete violation of the "Audi Alteram Partem" Rule." 2. Facts involved in the Writ Petition is that the Petitioner after being qualified as a Ayush Homeopathic Doctor, obtained licenses from Orissa State Board of Homeopathic Medicine, Bhubaneswar vide license NO.C/3021. He joined as a contractual Ayush Homeopathic Doctor at Bhanjakia New P.H.C. on 02.10.2008. He was allowed to continue even after the expiry of the contractual period. The further case of the Petitioner is that in an unfortunate incident on 22.01.2013 he attended one lady patient on call of her husband. The Petitioner found the patient in critical condition. He advised the husband of, the patient to take the patient to Karanjia Hospital. It is the specific case of the Petitioner that he has neither prescribed any medicine. nor has given any treatment to the patient. Being an Ayush Homeopathic Medical Officer he has never treated any patient for MTP or under PNDT Act. The Petitioner further submitted, that neither the patient was ever attended the Petitioner hospital either as a OPD patient or the Petitioner has never treated her at any point of time earlier. The patient died in a mysterious circumstance on 23.01.2013 at Karanjia Hospital & the family members of the patient brought the body back to home & cremated without any post-mortem. Surprisingly the death of the patient became a news item in local newspaper giving rise to local doubts to blackmail the Petitioner in the garb of settling the issue. The patient died in a mysterious circumstance on 23.01.2013 at Karanjia Hospital & the family members of the patient brought the body back to home & cremated without any post-mortem. Surprisingly the death of the patient became a news item in local newspaper giving rise to local doubts to blackmail the Petitioner in the garb of settling the issue. For Petitioner's not surrendering to the blackmailing of the local goons there was a lot of 'Hullah Gullah' concerning the matter leading to joint enquiry under the direction of the Higher Authority. based on constitution of a Joint Enquiry Board, the petitioner was called upon vide letter NO.737 dtd. 04.02.2013 for filing his show cause. Petitioner submitted the show cause detailing therein his non-involvement in the issue further pointing out that being a Ayush Hameopathic Doctor he is not qualified to undertake the MTP or abortion & thereby claimed that allegation against him are not only incorrect but also foisted falsely to malign the image of the Petitioner at the instance of some mischievous elements. Subsequently, the Petitioner also submitted a memorandum to the Collector & District Magistrate, Mayurbhanj pleading his non-involvement in the matter by his letter dtd.16.02.2013 clearly stating therein that as because the patient was in a bad condition when he attended the patient at her residence on the request of the husband the requested the husband to take her to nearby CHC or SDH at Karonjia. The inquiry was not only conducted behind back of him but also completed in absence of any opportunity of hearing to the Petitioner & further in absence of giving a chance of showing cause against the so called enquiry report prepared behind the back of the Petitioner & by order dtd. 13.04.2013 as appearing at Annexure-6 the services of the Petitioner was terminated attaching a stigma thereon. Petitioner applied for the copy of the said enquiry report under the provisions of R.T.I. Act. On receipt of the joint enquiry report dtd 12.04.2013 the Petitioner found that there is no material to find the Petitioner guilt rather there is clear indication in the joint enquiry report requiring further investigation by the police agency to unravel the mystery. The purported action of disengaging the Petitioner has been taken horridly. 3. Per contra, on notice the Opp. The purported action of disengaging the Petitioner has been taken horridly. 3. Per contra, on notice the Opp. Party No.4 (Chief District Medical officer, Mayurbhanj) on his appearance, filed a counter affidavit admitting the fact of engagement of the Petitioner as Ayush Homeopathic Doctor at Bhanjakia PHC on contractual basis under NRHM programme initially for eleven (11) months & renewed from time to time until he was disengaged by the impugned action. It is further contended by the Opp. Party No.4 based on the hue & cry through the local paper the C.D.M.O. vide his letter dtd.25.01.2013 instructed the A.D.M.O (Public Health) & the A.D.M.O. (Family Welfare) to conduct the joint enquiry in the matter & for submitting a report. Consequent upon, which a report was submitted by the above two officers on 05.02.2013 & their opinion & suggestion in this said report read as follows: "There is no clear cut evidence to prove that Dr. Behera a (AYUSH) M.O. is involved in the death of Sebati Naik, W/o Bidesi Naik.' But the circumstantial evidence & opinion of the local people suggested the Petitioners involvement in such type of illegal practice time & again. So he may be for transferred/shifted from Bhanjakia P.H.C. & in his place another Doctor may be posted at an early date." In support of the above submission, the Opp. Party No.4 also filed the joint enquiry report dtd.05.02.2013 as appearing at Annexure-B/4 to the counter affidavit. It is further submitted that in furtherance to the above Joint Enquiry not being satisfied with the reply submitted by the Petitioner against the observations in the Joint Enquiry Report, the Opp. Party NO.3 on consideration of the entire aspect, directed the Sub-Collector, Karanjia to enquire into the matter & submit a report for follow up action. The Opp. Party No.4 after receipt of the report under Annexure-B/4 submitted the same to the Opp. Party No.3. After verifying the report as well as the show cause not being satisfied with the same Opp. Party No.3 directed the Sub-Collector, Karanjia to enquire into the matter & submit report to that effect. Pursuance to the said direction, the Sub-Collector, Karanjia enquired into the matter & submitted his report on 12.04.2013. As per instruction of the Collector & District Magistrate, Mayurbhanj, Opp. Party No.3. Party No.3 directed the Sub-Collector, Karanjia to enquire into the matter & submit report to that effect. Pursuance to the said direction, the Sub-Collector, Karanjia enquired into the matter & submitted his report on 12.04.2013. As per instruction of the Collector & District Magistrate, Mayurbhanj, Opp. Party No.3. the matter has been enquired into by the Sub-Collector, Karanjia & A.D.M.O (FW), Mayurbhanj on 12.04.2013 & they submitted their enquiry report in which they mentioned that Dr. Behera, the Medical Officer-In-charge, AYUSH is not free from blemish so far as indulging in illegal abortion in number, of cases is concerned as given to understand from Public, as well as the Local Sarpanch. It is further submitted in the report that the Local Sarpanch Sri Dukhabandhu Naik has furnished a statement that the public have many times alleged against the Dr. Behera's performing abortion illegally for which there was a hue & cry including demonstration by public against him causing death of Smt. Sebati Naik by undertaking illegal unauthorized abortion having no experience over it. One medicine store owner namely Kanan Kumar Mohanta has also submitted statement that Dr. Behera has instructed them to keep medicines in their shop essential for use in abortion & he was also prescribing to the patients for purchasing the same. Although the Medical Staff feigned silence over this issue. It transpired from the reaction of the people present that undisputedly Dr. Deepak Kumar Behera, Medical Officer, AYUSH was performing abortions on many occasions (un reported) & his role in treatment of Smt Sabita Naik resulting in severe bleeding & ultimately succumbing to death cannot be ruled out. It is as a result of such a report the Opp. Party No.3 directed for disengagement of the Petitioner. It is based on this direction of the Collector, Mayurbhanj, the Opp. Party No.4 issued the impugned order of termination vide, Annexure-6. 4. From the argument of the parties it appears that following hue & cry in the locality as well as in the local newspaper relating to death of Sebati Naik, W/o-Bidesi Naik, an enquiry was directed to be conducted by a Joint Enquiry Board of Assistant District Medical Officer (Family Welfare), Mayurbhanj & Assistant District Medical Officer (P.H), Mayurbhanj. Based on the direction for conducting a joint inquiry a report was thus submitted on 05.02.2013 recording following opinion/suggestion. Based on the direction for conducting a joint inquiry a report was thus submitted on 05.02.2013 recording following opinion/suggestion. "Opinion & Suggestion: There is no clear cut evidence to prove that Dr. Behera (AYUSH) MO is involved in the death of Sebati Naik, W/o. Bidesi Naik. "But circumstantial evid8nces & opinion of local people suggest that Dr. Behera AYUSH M.O is involved in this type of illegal practices time & again, So he may be transferred/shifted from Bhanjakia PHC (N) & another doctor may be posted at an early date." Following the submission of the above report, the matter did not rest rather landed in a subsequent direction of the Higher Authority. A joint enquiry was also conducted by A.D.M.O. (F.W), D.H.H, Baripada & the Sub Collector, Panchapir, Karanjia. A report was submitted by the said Joint Committee on 2.04.2013 after recording the evidence of the several person of the locality with the following observations: “Although the Medical staff feigned silence over this issue. It transpired from the reaction of the people present that undisputedly Dr. Deepak Kumar Behera Medical Officer AYUSH was performing abortions on many occasion (un reportedly) & his role in treatment, of Smt. Sebati Naik resulting in severe bleeding & ultimately succumbing to death cannot be ruled out. In our considered opinion the matter needs to be investigated in Toto by police to unravel the mystery behind it as the statement differs from person to, person, nonconduct of post-mortem & no.,-intimation to her father 'regarding the death of his daughter & finally keeping the police in darkness." 5, Bare reading of the reports dtd.05.02.2013 & 12.04.2013, it is made clear that in first report it was submitted that there is no clear cut evidence to prove that Dr. Behera the Petitioner is involved in the death of Sebati Nayak but from the second report dtd.12.04.2013 it appears based on the statement of several persons, the Joint Enquiry Committee submitted a report against the Petitioner. The said observation since was not conclusive, it was recommended by the said Committee for an investigation by the police to unravel the mystery with a specific finding that statement of different person recorded therein was differing from the other coupled with the fact of no conduct of post-mortem & no indication of the alleged mysterious death to the father of the deceased & finally for keeping the police in darkness. Therefore, it can be safely concluded that though the report dtd.12.04.2013 indicted the Petitioner but the same remain inconclusive in view of the observations made in the later report. Neither any opportunity to the show cause was provided to the Petitioner nor the Petitioner was even provided with a copy of the report dtd.12.04.2013. The Collector before considering the case of the Petitioner taking into account the enquiry report dtd.05.02.2013 as well as 12.04.2013 ought to have provided an opportunity of showing cause to the Petitioner supplying him a copy of the said report. The service of the Petitioner was taken away by the Opp. Party No.4 vide Annexure-6. It appears that the direction of the Collector was taken behind the back of the Petitioner & in absence of any opportunity to the Petitioner before taking away the services of the Petitioner. The report dtd.05.02.2013 & 12.04.2013 if read together, the same are not conclusive. There is no material found against the Petitioner in the first report, whereas the second report clearly suggested for police enquiry. Therefore, any decision terminating the services of the Petitioner in absence of further probe by the police agency to unravel the truth behind the mysterious death further in absence of any opportunity to the Petitioner to have his show cause on second report dtd.12.04.2013 cannot get the support of Law. Further since the order terminating the Petitioner was passed attaching a stigma against the Petitioner compliance of principle of natural justice is a must. 6. Under the above facts & circumstances & the findings arrived at by me, I hold the observation of the Collector to disengage the Petitioner as well as the consequential impugned order for disengagement of the Petitioner vide Annexure 6 as bad in law & consequently I set aside the impugned order under Annexure-6. As a result, the Petitioner ought to be treated as continuing in service till the period involved in the fast contract in favour of the Petitioner survived but without any back wages for his not discharging any duty. Further since the reports referred to hereinabove suggested for further probe into the allegations against the Petitioner, it is open to the competent authorities to further probe into the matter & the future engagement of the Petitioner shall be dependent on the findings in such enquiry, if any, taking place. 7. Further since the reports referred to hereinabove suggested for further probe into the allegations against the Petitioner, it is open to the competent authorities to further probe into the matter & the future engagement of the Petitioner shall be dependent on the findings in such enquiry, if any, taking place. 7. The Writ Petition succeeds to the extent directed hereinabove. However, there shall be no order on cost.