JUDGMENT : Vaibhavi D. Nanavati, J. 1. By way of the present petition, the petitioner herein has challenged the order dated 30.09.2005 passed by the respondent – authority, dismissing the petitioner from the government service and further order dated 03.12.2007, dismissing the review application filed by the petitioner and confirming the order of dismissal dated 30.09.2005. 2. Being aggrieved by the impugned orders, the petitioner is constrained to approach this Court and has prayed for the following reliefs:- “(A) Your Lordships be pleased to issue a writ of Mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned order dated 30.09.2005 passed by the respondent – Authority dismissing the petitioner from the Government service and the further order dated 03.12.2007 passed by the said Authority dismissing the review application filed by the petitioner and confirming the order of dismissal dated 30.09.2005. (B) Your Lordships be pleased to issue a writ of Mandamus or any other appropriate writ, order or direction and be pleased to direct the respondent – Authority to reinstate the petitioner to his original post with continuity of service and all consequential benefits. (C) Your Lordships be pleased to direct the respondent – Authority to reinstate the petitioner to his original post with all the consequential benefits pending admission, hearing and final disposal of this petition. (D) Your Lordships be pleased to grant such other and further reliefs as may be deemed fit in the interest of justice.” 3. Briefly stated, the petitioner herein was originally appointed as Superintendent M.S. (Class – I) at Community Health Centre, Meghraj, District: Sabarkantha with effect from 21.07.1988 on ad- hoc basis being his first appointment after post graduation. The petitioner was selected by the Gujarat Public Service Commission with effect from 10.09.1991 and since then, he placed on the regular appointment of the State Government. The petitioner was serving as a Superintendent (Class – I) at Community Health Centre, Idar from 20.04.1993 onwards. The petitioner took charge as Superintendent (Class – I) at Community Health Centre, Meghraj on 21.07.1988. 3.1. The petitioner received a chargesheet dated 26.05.1999 in connection with his duties as Superintendent (Class – I) at Community Health Centre, Meghraj from 21.07.1988 to 20.04.1993. The said chargesheet contained two allegations. The petitioner took charge as Superintendent (Class – I) at Community Health Centre, Meghraj on 21.07.1988. 3.1. The petitioner received a chargesheet dated 26.05.1999 in connection with his duties as Superintendent (Class – I) at Community Health Centre, Meghraj from 21.07.1988 to 20.04.1993. The said chargesheet contained two allegations. The first allegation was that the petitioner had performed a caesarian on one Rupiben, who had given birth to a dead child. It was alleged that during the said operation, on account of the negligence of the petitioner, one surgical instrument had remained in the stomach of the patient, which was subsequently taken out by performing another operation. It was alleged that the petitioner had displayed serious negligence in the discharge of the duties. The second allegation was that the petitioner had misplaced the indoor case-papers and x-ray reports of the said patient – Rupiben and had gone to the house of Rupiben, offered bribe of Rs.2,000/- and forcibly obtained a false statement from said Rupiben by compelling her to put her thumb impression below the statement. The petitioner was called upon to give his defense statement in connection with the said chargesheet. The staff members had given the statements against the petitioner, which are duly produced at Annexure-C along with the chargesheet dated 26.05.1999. 3.2. In connection with the aforesaid allegations, a preliminary inquiry was conducted against the petitioner in the year 1992 and at that time, the petitioner had submitted defense vide letter dated 19.02.1992 duly addressed to the respondent - authority. Pursuant to the issuance of the chargesheet dated 26.05.1999, the petitioner had written a letter to the Deputy Secretary, Health and Family Welfare Department on 15.06.1999, asking for several details and documents. The petitioner had asked why such inquiry had been initiated against the petitioner after a period of more than nine years. The petitioner also stated that the operation in question was a team-work and that the surgeon could not be held to be exclusively responsible for the same. It was pointed out in the said communication that it was the duty of the nurse concerned, who was present at the time of operation, to ensure that all the surgical instruments are taken out of the body after the operation is over. The said communication is duly produced at Annexure – D. 3.3. It was pointed out in the said communication that it was the duty of the nurse concerned, who was present at the time of operation, to ensure that all the surgical instruments are taken out of the body after the operation is over. The said communication is duly produced at Annexure – D. 3.3. The Deputy Secretary, Health and Family Welfare Department i.e. the respondent no.2 herein, sent a letter to the petitioner on 08.05.2000, stating that the documents mentioned in the list of evidence in the said chargesheet, could not be supplied to the petitioner. The petitioner, by letter dated 29.02.1992, had placed on record some further evidence in his support, which included the resolution passed by the gram panchayat, appreciating the services rendered by the petitioner and the letter written by Laxmanbhai Damor, husband of said Rupiben to the effect that some doctors had come to his house and had deceitfully obtained the signature from him and his wife on the blank papers. It was also stated in the said letter that the husband of Rupiben had also thanked the petitioner for saving the life of his family member. It was communicated to the petitioner by the husband of said Rupiben by the said letter that his wife was totally healthy and she was not having any difficulty since last two years. It was also stated that the staff members of the hospital had taken keen interest in them after the operation was performed and they were frequently visiting said Rupiben and her husband. 3.4. On 13.09.2000, the respondent authority passed the order to appoint the inquiry officer and initiated inquiry proceedings and also appointed one Dr.M.S. Ranavat as the Presenting Officer. 3.5. It is the case of the petitioner that upon initiation of the inquiry proceedings, the petitioner had stated that the petitioner had not filed the reply to the said chargesheet issued to the petitioner since the petitioner was not supplied with the copy of the application made by him and the report of the preliminary inquiry. The petitioner had requested the respondent - authority to change the inquiry officer, as the said inquiry officer had indulged in a big quarrel with the petitioner. The petitioner also opposed the appointment of Dr.M.S. Ranavat as the Presiding Officer. The petitioner had requested the respondent - authority to change the inquiry officer, as the said inquiry officer had indulged in a big quarrel with the petitioner. The petitioner also opposed the appointment of Dr.M.S. Ranavat as the Presiding Officer. The petitioner requested to hold inquiry against staff nurse – Ms.U.M. Khristi, who was also responsible for the alleged irregularity in the operation. The petitioner stated that on account of strict discipline imposed by him, the staff members had also made anonymous applications against the petitioner. The petitioner had also stated that Dr.Khan, who had taken the statement against the petitioner, was a highly corrupt officer and there were several complaints of corruption against him. Therefore, it is the case of the petitioner that Dr.Khan had keen interest to falsely implicate the petitioner in the alleged irregularities. The petitioner stated that at the time of operation, staff nurse - Ms.U.M. Khristi was present and only after she had told the petitioner that all the surgical instruments were duly checked and taken out, the petitioner had closed the operation. It is the case of the petitioner that it appears that thereafter, two operations were performed in Rajasthan and during the operation at Rajasthan, the surgical instrument had remained in the stomach of said Rupiben, which was subsequently taken out by the petitioner by performing the third operation. The petitioner had also stated that there was conspiracy by the staff members of the hospital to involve the petitioner in the alleged misconduct. 3.6. So far as the second allegation is concerned, the petitioner had stated that he had not removed any case-papers or reports. The x- ray plates etc. were given to the patient after collecting the requisite fees. The petitioner had also stated that the team of doctors, who had taken the statement of patient - Rupiben and her husband, included one Dr.Chavda, against whom the petitioner had lodged a complaint before the Anti-Corruption Bureau, for which the departmental inquiry was also initiated against said Dr.Chavda, the said doctor had deceitfully taken the thumb impression of said Rupiben and her husband on blank papers, which was subsequently misused by fabricating the statements against the petitioner. The petitioner had also produced the necessary evidence at the relevant point of time regarding the false statements made against the petitioner but, the said documents were not placed on record in the inquiry proceedings. The petitioner had also produced the necessary evidence at the relevant point of time regarding the false statements made against the petitioner but, the said documents were not placed on record in the inquiry proceedings. The petitioner has placed on record the copy of the defence statement in the inquiry proceedings initiated against the petitioner. 3.7. The inquiry report came to be prepared by the inquiry officer holding that the charges leveled against the petitioner stood proved. 3.8. The petitioner submitted detailed objections to the said inquiry report by letter dated 17.06.2002, which is duly produced at Annexed - J. 3.9. The petitioner had written further letter on 03.07.2002, giving detailed explanation to the respondent - authority and requesting the authority to drop the charges leveled against the petitioner and had also stated that the charges against the petitioner are not related to grave misconduct, misappropriation of the government funds and corruption. 3.10. The respondent - authority passed the order on 30.09.2005, dismissing the petitioner from the service on the basis of the charges held to be proved against the petitioner in the inquiry proceedings initiated against the petitioner. 3.11. The petitioner addressed one more communication dated 17.10.2005, requesting the respondent – authority to reconsider his case by canceling the punishment of dismissal from the government service. The petitioner also submitted an application dated 25.10.2005 addressed to the respondent - authority requesting the said authority to review the case of the petitioner, which is duly produced at Annexure - N. 3.12. The respondent - authority called the petitioner for personal hearing on 27.12.2005 vide letter dated 16.12.2005, duly produced at Annexure - O. 3.13. The petitioner made a further representation on 27.12.2005 requesting the respondent - authority to reconsider his case and to reinstate him in the service. Thereafter, the petitioner sent several reminders to decide his review application. The respondent - authority informed the petitioner by communication dated 21.07.2006 that the appeal is received by the respondent – authority and was under consideration. 3.14. The respondent - authority passed the order dated 03.12.2007, dismissing the review application preferred by the petitioner and confirming the order dated 30.09.2005, dismissing the petitioner from the government service. 4. In view of the aforesaid facts, the petitioner has approached this Court, invoking Article 226 of the Constitution of India. 5. 3.14. The respondent - authority passed the order dated 03.12.2007, dismissing the review application preferred by the petitioner and confirming the order dated 30.09.2005, dismissing the petitioner from the government service. 4. In view of the aforesaid facts, the petitioner has approached this Court, invoking Article 226 of the Constitution of India. 5. Mr.J.V. Japee, learned advocate for the petitioner placed reliance on the written submissions placed on record and submitted that for the incident alleged to have been occurred on 14.09.1989, the chargesheet was issued for holding the regular departmental inquiry after gross and inordinate delay of 10 years i.e. on 26.05.1999. It is submitted that the gross delay in initiating the departmental inquiry would vitiate the inquiry proceedings and the consequent order of dismissal in view of the settled principles of law. It is submitted that none of the two charges leveled against the petitioner can be held to be proved. The petitioner is exonerated by the ethics committee in respect of the first charge of forgetting the surgical instrument in the body of the patient. The ethics committee had also appreciated the effort of the petitioner by performing operation in a very odd situation which saved the life of the patient. It is submitted that so far as the second charge of missing of the x- ray reports and case papers and obtaining the thumb impression of the patient on the statement is concerned, the said patient - Rupiben and her husband had subsequently, given a letter dated 12.02.1992 (pg. 58/A) which was the part of the record of the preliminary inquiry wherein, it was stated that some persons from the hospital had taken their signature and thumb mark on blank paper, which was misused by fraudulently creating a complaint against the petitioner. It is submitted that said Rupiben and her husband have no grievance against the petitioner. It is submitted that said patient – Rupiben is hale and hearty and they thanked the petitioner for saving the life of the patient. 5.1. It is submitted that in view of the contradictory versions of the patient, the second charge could not have been held to be proved without examining the said patient and her husband in the departmental inquiry but, it is undisputed that the said patient and her husband were not examined during the course of inquiry. 5.2. 5.1. It is submitted that in view of the contradictory versions of the patient, the second charge could not have been held to be proved without examining the said patient and her husband in the departmental inquiry but, it is undisputed that the said patient and her husband were not examined during the course of inquiry. 5.2. It is submitted that pursuant to the order passed by this Court, the record of the inquiry was called for but, the deposition of the patient and her husband were not found in the said record. It is submitted that on behalf of the respondent, despite the best efforts, the presence of the witnesses could not be procured in the inquiry proceedings. In absence of the examination of the patient, who had allegedly given the complaint against the petitioner and who had subsequently retracted from the statements made in the complaint, the second charge also cannot be held to be proved. It is submitted that there is no evidence that the petitioner was responsible for missing of x-ray reports and case papers. It is submitted that the statements of the staff members, who were against the petitioner, do not inspire any confidence. 5.3. It is submitted that accordingly, none of the two charges can be held to be proved. The petitioner was wrongly subjected to the extreme penalty of dismissal for the alleged misconducts, which are not committed by the petitioner. It is submitted that after the alleged incident which had taken place in 1989 during the ad-hoc appointment of the petitioner, the petitioner was selected by G.P.S.C. and was placed in the regular establishment of the State Government. The petitioner was also conferred retrospective regularization of his service from 09.10.1993 by order dated 26.03.2004. Therefore, the respondents have found the service record of the petitioner satisfactory despite the alleged incident. It is submitted that the petitioner had after taking the charge of Superintendent at Community Health Centre, Meghraj on 21.07.1998, drastically changed the face of the hospital which was in a very poor condition. There was lack of infrastructure facility and other requisite facilities in the hospital. It is submitted that the staff of the hospital was also irregularly discharging their duties. After having taken charge in the said hospital as Superintendent, the petitioner changed the overall working condition of the hospital. There was lack of infrastructure facility and other requisite facilities in the hospital. It is submitted that the staff of the hospital was also irregularly discharging their duties. After having taken charge in the said hospital as Superintendent, the petitioner changed the overall working condition of the hospital. The petitioner imposed strict discipline to see to it that the staff works in a proper manner. It is submitted that in view of the aforesaid conduct of the petitioner, the petitioner herein being strict and disciplined person, a systematic and calculated conspiracy has been hatched to frame the petitioner in the false charges. 5.4. It is submitted that the petitioner saved the life of the patient, who was brought in a precarious condition and the said operation was performed in a very odd situation and lack of infrastructure. Had the petitioner not taken the risk to perform the operation, the patient would not have survived. Even the ethics committee has appreciated the effort of the petitioner to save the life of the patient. The Joint Secretary also accepted the report of the ethics committee. It is submitted that the appellate authority has not considered the report of the ethics committee by passing a cryptic order to dismiss the appeal preferred by the petitioner. The appellate authority lost the sight of important aspect with respect to the report of the ethics committee. 5.5. It is submitted that the punishment of dismissal is shockingly disproportionate to the gravity of misconduct, considering the overall facts and circumstances of the present case. The petitioner, rather than being rewarded for performing his pious obligation of saving the life of patient – Rupiben in a very critical and odd situation, is subjected to the punishment of economic death. It is reiterated that the petitioner is the victim of a larger conspiracy by some vested interests of the persons, who were not happy with the petitioner for his devotion to the duty and strict approach for discipline. 5.6. In view of the aforesaid, it is submitted that the prayers, as prayed for, in the present petition be allowed. 6. Ms.Pooja Ashar, learned A.G.P. appearing for the respondent – State submitted that no interference is called for in the impugned orders passed by the respondent – authority. 5.6. In view of the aforesaid, it is submitted that the prayers, as prayed for, in the present petition be allowed. 6. Ms.Pooja Ashar, learned A.G.P. appearing for the respondent – State submitted that no interference is called for in the impugned orders passed by the respondent – authority. It is submitted that the petitioner herein cannot allege that the impugned orders are arbitrary and illegal on the ground of delay in conducting the inquiry in view of the following:- (A) The petitioner made many attempts to derail the inquiry, including levelling allegations against the inquiry officers (pg. 63 Annexure – H). (B) Essentially, the delay is justified by the events and documents as substantiated in paragraphs 6, 8, 9, 10 and 12 of the affidavit-in- reply, duly produced at page 137 to the petition. It is submitted that the documents produced between pages 147 to 198 are reflective and self sufficient to justify the aspect of alleged delay in conducting the inquiry proceedings. (C) It is submitted that delay in concluding the disciplinary inquiry does not ipso facto vitiate the entire disciplinary proceedings. (D) To substantiate the submissions, Ms.Ashar, learned A.G.P. placed reliance on the decision of Apex Court in the State of Madhya Pradesh vs. Akhilesh Jha & Anr. reported in 2021(12) SCC 460 (Para:13) and in the case of Anant R. Kulkarni vs. Y. P. Education Society & Ors. reported in 2013(6) SCC 515 (Para 8 to 11). 6.1. It is submitted that the petitioner participated in the inquiry proceedings at every stage and did not object to the aspect of delay until finality of the proceedings. Having not stayed vigilant towards his own right, the petitioner cannot at this stage allege that the disciplinary proceedings took substantial time, resulting into the order of dismissal. Having participated in the inquiry proceedings voluntarily and gladly and having acquiesced his right to challenge the chargesheet, it is not open for the petitioner to agitate that the issuance of chargesheet and conducting of proceedings by the inquiry officer are bad in eyes of law. It is submitted that the petitioner having taken a chance before the inquiry officer cannot take ‘U’ turn and agitate at this belated stage that the procedure was not followed. To substantiate the aforesaid submission, Ms.Ashar, learned A.G.P. placed reliance on decision of Hon’ble Apex Court in case of State of Rajasthan and ors. Vs. It is submitted that the petitioner having taken a chance before the inquiry officer cannot take ‘U’ turn and agitate at this belated stage that the procedure was not followed. To substantiate the aforesaid submission, Ms.Ashar, learned A.G.P. placed reliance on decision of Hon’ble Apex Court in case of State of Rajasthan and ors. Vs. Heem Singh reported in AIR 2020 SC 5455 . 6.2. It is submitted that the petitioner has recused himself from giving any documents along with the statement of defense and against the charges levelled against him. It is submitted that only after the disciplinary action was concluded against the petitioner, resulting into the order of dismissal, the petitioner approached the review committee and also filed the present petition, disclosing the credits that he holds, during his entire tenure of service. It is submitted that such defense cannot absolve the petitioner from misconduct and negligence in performing his duties. 6.3. It is submitted that the charges levelled against the petitioner were twofold: (1) pertaining to leaving a foreign medical instrument in the body of the patient and (2) bribing the victim patient – Smt.Rupiben by offering Rs.2000/- and forcefully obtaining false statement from victim - Rupiben and compelling her to make false statement and further misplaced the indoor case papers and reports of x-ray of the victim. It is submitted that at the end of the disciplinary inquiry, both these charges came to be proved and resulted into major penalty of dismissal. It is submitted that considering the gravity of offense and observing that the petitioner risked the life of the victim patient and tampered with the evidence against him, thereby demonstrated negligence in performing his duties as a Class-I officer at Community Health Centre. It is submitted that even the reviewing authority has confirmed the order of dismissal. It is submitted that since both the orders are concurrently passed after due diligence, in accordance with law and after providing opportunity of hearing, the impugned orders may not be interfered with. 6.4. It is submitted that the petitioner has alleged that the inquiry is defective since there was no proper appreciation of evidences such as the credentials of the petitioner are not considered, the ethics committee report dated 01.07.2006 is not considered while passing the impugned order dated 03.12.2007 and the victim was not examined. 6.5. 6.4. It is submitted that the petitioner has alleged that the inquiry is defective since there was no proper appreciation of evidences such as the credentials of the petitioner are not considered, the ethics committee report dated 01.07.2006 is not considered while passing the impugned order dated 03.12.2007 and the victim was not examined. 6.5. Placing reliance on the ratio laid down by the Apex Court in the case of Union of India vs. P.Gunasekaran reported in 2015(2) SCC 610 and in the case of Chairman and Managing Director, United Commercial Bank and others vs. P.C. Kakkar reported in AIR 2003 SC 1571 , it is submitted that the Court while exercising jurisdiction under Article 226 of the Constitution of India against the orders of the disciplinary authority, shall not reappreciate the evidence or act as a Court of first or second appeal. It is submitted that the Court would not go into the correctness of the choice made by the disciplinary authority and the Court should not substantiate its decision to that of the disciplinary authority. It is submitted that the scope of judicial review is limited to the deficiency in decision making process and not the decision. 6.6. It is submitted that the petitioner has challenged the order of the disciplinary authority and reviewing committee before the Court surpassing the alternative remedy available to the petitioner under Rule 18 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (for short, the “said Rules”) by preferring an appeal within stipulated time under Rule 19 of the Rules before the Gujarat State Service Tribunal. It is submitted that on the aforesaid ground also, the present petition is required to be dismissed. 6.7. It is submitted that the impugned orders are passed in accordance with Rules 9 and 10 of the Rules and do not warrant any interference. Placing reliance on the aforesaid submissions, it is submitted that the present petition be dismissed. 7. Mr.Japee, learned advocate for the petitioner, in rejoinder, reiterated the submissions and submitted that the impugned order dated 30.09.2005 passed by the Joint Secretary, Health and Family Welfare Department, duly produced at Annexure-L (page 93), is a non-speaking order. Placing reliance on the aforesaid submissions, it is submitted that the present petition be dismissed. 7. Mr.Japee, learned advocate for the petitioner, in rejoinder, reiterated the submissions and submitted that the impugned order dated 30.09.2005 passed by the Joint Secretary, Health and Family Welfare Department, duly produced at Annexure-L (page 93), is a non-speaking order. It is reiterated that the for alleged irregularity in the operation performed during the tenure of service of the petitioner as Superintendent at Community Health Centre, Meghraj for the period from 21.07.1988 to 20.04.1993, the proceedings were initiated in the year 1999. The operation was performed on 14.09.1989 and the preliminary inquiry was also held for the alleged irregularity prior to 1992. The regular inquiry was held after a period of 10 years from the date of the alleged incident. It is reiterated that it is also difficult for the petitioner to defend himself for the alleged incident that occurred before 10 years and the petitioner would not remember everything and will not be in a position to procure the evidence for his defense. It is reiterated that the service of the petitioner came to be regularized with retrospective effect from 09.10.1993 by order dated 26.03.2004. Clearly, the petitioner completed the probation period satisfactorily. It is submitted that even after the order of dismissal in the year 2005, it took two years for the respondents to decide the petitioner’s review application dated 25.10.2005. There was a delay at every stage of the proceedings which has vitiated the impugned orders. 7.1. It is reiterated by Mr.Japee, learned advocate that it was opined by the expert doctors of the ethics committee that the alleged retention of surgical instrument in the abdomen cannot be termed as malpractice. It can also happen when the operation is done in emergency and when the other team members are also not having enough expertise and experience and can happen when the proper infrastructural facilities are not available. It is submitted that it is not in dispute that the ethics committee was formed on 01.07.2006 to inquire into the allegations against the petitioner and the report dated 22.11.2006 of the ethics committee is also placed on record. 7.2. It is submitted that the aforesaid report clearly states that forgetting an instrument in the abdomen is not a malpractice. It is submitted that it is not in dispute that the ethics committee was formed on 01.07.2006 to inquire into the allegations against the petitioner and the report dated 22.11.2006 of the ethics committee is also placed on record. 7.2. It is submitted that the aforesaid report clearly states that forgetting an instrument in the abdomen is not a malpractice. The report also opines that the petitioner had taken immediate steps to save the life of the patient. If the petitioner had avoided the operation and sent the patient to Modasa hospital, then probably the patient might have died on the way. 7.3. It is reiterated that the Joint Secretary, (Inquiry) made a four line endorsement on 13.09.2007 below the said remarks that it was difficult to recommend the reinstatement of the petitioner after the decision of dismissal was taken. 7.4. Placing reliance on the aforesaid, it is submitted that in view thereof, the review application preferred by the petitioner was rejected and which requires interference. It is submitted that merely because the decision of dismissal was already taken, the same would not be a bar passing the order of reinstatement. It is submitted that the concerned Secretary failed to exercise his authority and jurisdiction, by not recommending reinstatement, only on the ground that the decision of dismissal was taken. It is submitted that the competent authority failed to appreciate that the procedure of review is only after the decision of dismissal. If the reinstatement cannot be granted merely because the decision of dismissal is taken, then there is no need of the provision of review. The same would render the provision of review meaningless and redundant if the punishment cannot be modified by taking a decision to impose the punishment. 7.5. Reliance is placed on Rule 21 of the said Rules and it is submitted that the appellate authority has to consider whether the penalty imposed is excessive, adequate or inadequate and pass the order setting aside, reducing, confirming or enhancing the penalty. It is submitted that, therefore, the concerned Secretary has to apply mind and decide the issue accordingly. 7.6. Placing reliance on the aforesaid, it is submitted that the prayers, as prayed for, in the present petition be granted and the present petition be allowed. ANALYSIS 8. It is submitted that, therefore, the concerned Secretary has to apply mind and decide the issue accordingly. 7.6. Placing reliance on the aforesaid, it is submitted that the prayers, as prayed for, in the present petition be granted and the present petition be allowed. ANALYSIS 8. Having heard the submissions advanced by the learned advocates appearing for the respective parties, it emerges that the petitioner herein was originally appointed as Superintendent M.S. (Class – I) at Community Health Centre, Meghraj, District: Sabarkantha with effect from 21.07.1988 on ad-hoc basis being his first appointment after post graduation. The petitioner was selected by the Gujarat Public Service Commission with effect from 10.09.1991 and since then, he placed on the regular appointment of the State Government. From 20.04.1993 onwards, the petitioner was serving as a Superintendent (Class – I) at Community Health Centre, Idar. 9. On 26.05.1999, the petitioner was served with a chargesheet in connection with his duties as Superintendent (Class – I) at Community Health Centre, Meghraj from 21.07.1988 to 20.04.1993 and was charged with two allegations. (i) That the petitioner had performed a caesarian operation on one Rupiben, who had given birth to a dead child. It was alleged that during the said operation, on account of the negligence of the petitioner, one surgical instrument had remained in the abdomen of the said patient, which was subsequently taken out by performing another operation. It was alleged that the petitioner had displayed serious negligence in discharge of the duties. (ii) That the petitioner had misplaced the indoor case-papers and x-ray reports of the said patient – Rupiben and had gone to the house of Rupiben, offered bribe of Rs.2,000/- and thereafter, had forcibly obtained the false statement from said Rupiben, compelling her to put her thumb impression below her statement. 10. In the aforesaid set of facts, it is pertinent to note that a preliminary inquiry was conducted against the petitioner in the year 1992 and at that time, the petitioner had submitted the defense vide letter dated 19.02.1992 addressed to the respondent - authority. 10. In the aforesaid set of facts, it is pertinent to note that a preliminary inquiry was conducted against the petitioner in the year 1992 and at that time, the petitioner had submitted the defense vide letter dated 19.02.1992 addressed to the respondent - authority. Pursuant to the issuance of the chargesheet dated 26.05.1999 also, the petitioner asked for several details and documents by communication dated 15.06.1999, which was replied to by the Deputy Secretary, Health and Family Welfare Department on 08.05.2000, stating that the documents mentioned in the list of evidence in the chargesheet could not be supplied to the petitioner and in view thereof, refused to provide any further documents. The petitioner by communication dated 29.02.1992, had placed on record further evidence in his support, which included the resolution passed by the gram panchayat, appreciating the services rendered by the petitioner and also a communication written by Laxmanbhai Damor, husband of patient - Rupiben, to the effect that some doctors had come to his house and deceitfully obtained the signature from him and his wife on blank papers. The said communication also stated that the husband of Rupiben thanked the petitioner for saving the life of his family member and said Rupiben was healthy and was not having any difficulty after the said operation. The said communication dated 12.02.1992 is duly produced at page 57. 11. Pending the disciplinary proceedings also, the petitioner’s service came to be regularized with retrospective effect from 09.10.1993 by order dated 26.03.2004. In view thereof, the petitioner had satisfactorily completed the probation period and his services came to be regularized, after the alleged incident that had occurred between 1988 and 1993. The inquiry officer prepared inquiry report dated 14.08.2001, holding the petitioner guilty of the charges levelled against him. It is observed at page 178 and 179 as under:- “The Presenting Officer has consistently worked to record the depositions of all witnesses during the personal hearing of Departmental Inquiry. Three hearings were conducted at Himmatnagar for the convenience of the witnesses. The witnesses, who have been examined in connection with this Departmental Inquiry, have adhered to their statements given earlier before Deputy Divisional Director, Ahmedabad. They have corroborated the allegations levelled against Dr. Sutaria at the time of the personal hearing also. Three hearings were conducted at Himmatnagar for the convenience of the witnesses. The witnesses, who have been examined in connection with this Departmental Inquiry, have adhered to their statements given earlier before Deputy Divisional Director, Ahmedabad. They have corroborated the allegations levelled against Dr. Sutaria at the time of the personal hearing also. (In the brief, details of the statements of the witnesses have been given.) Therefore, the sufficient evidences are available to believe the allegations levelled against Dr. Sutaria proved. For example, the allegation includes that Mrs. Shardaben Vasava, Staff Nurse, was present at the time of the second operation of the patient Rupiben, and she saw the instrument, which was taken out of the abdomen of the patient. It was C shaped retractor and ‘CHC Meghraj Community Health Centre’ was embossed thereon. If instrument is taken out of the abdomen at the time of the second operation and it bears the name of the same Health Centre, there is no need of evidence to prove this allegation because it automatically gets proved. As per the statement given by witness Dr. Khan at the time of the personal hearing, the Surgeon is responsible for the success or negligence of any operation. In short, the concerned Surgeon is held liable for the respective operation and not his Assistant. It is different thing if the Surgeon tries to blame other person to shirk from his responsibility. In this connection, Dr. Sutaria made innumerable efforts to shirk from his responsibility so as to prevent his image from being tarnished, but he could not succeed. Destroying the record, misplacing x-ray, treating the patient frequently at his place, etc. were his futile efforts to save him from the first allegation, but he could not succeed. Dr. Ranavat has described the details thereof in great depth in his brief. Therefore, allegations levelled against Dr. Sutaria are believable. The acts committed by Dr. Sutaria include misplacing case papers of the patient Rupiben and x-ray, and creating false documents by obtaining false statement of the patient forcefully and the same are proved from the statements of witnesses and the statements given at the time of personal hearing. The Presenting Officer, having emphsized on the same fact, has considered the allegations levelled against him proved. - :: Findings ::- Both allegations levelled against Dr. J.V. Sutaria are hereby believed to be proved. The Presenting Officer, having emphsized on the same fact, has considered the allegations levelled against him proved. - :: Findings ::- Both allegations levelled against Dr. J.V. Sutaria are hereby believed to be proved. There are sufficient reasons to believe the allegations proved in view of the corroboration received from the statements of his subordinate employees at the time of the personal hearing and recovery of the instrument, which was left in the abdomen at the time of the second operation. Therefore, sufficient corroboration has been given to believe the allegations proved. Therefore, both allegations against Dr. Sutaria are believed to be proved. Gandhinagar Date :- 14/08/2001 Sd/-(illegible) (V.B. Thakor) Departmental Inquiry Officer Health and Family Welfare Department 12. On 17.06.2002, the petitioner preferred detailed representation to hold the departmental inquiry afresh, pointing out various lacunas in the said inquiry. (page 84). 12.1. On 03.07.2002, the petitioner made detailed submissions, challenging the inquiry report. (pages 85 to 92). 12.2. By order dated 30.09.2005, the petitioner was dismissed from the service. The said order reads as under:- “Departmental Inquiry against Dr. J. V. Sutariya, Surgeon, Community Health Center, Meghraj…… -To pass final orders Government of Gujarat Health and Family Welfare Department Order No.KhTP-1095-891-L.2 Secretariat, Gandhinagar Date: September 30, 2005 Read: 1. Chargesheet in Yadi No.KhTP-1095-891-L.2, dated 26.05.1999 of the Health and Family Welfare Department. 2. Inquiry Report of the Inquiry Officer Mr. V.B.Thakor, dated 14.08.2001. 3. Statement of defence of Dr. J. V. Sutariya, Surgeon, Community Health Center, Meghraj, dated 03.07.2002. PREFACE: Departmental inquiry was initiated against Dr. J. V. Sutariya, Surgeon, by issuing chargesheet to him vide yadi dated 26.05.1999, as mentioned at Read No.(1) for the below mentioned allegations made against him, on account of error committed by him while he was performing duties at Community Health Center, Meghraj, District- Sabarkantha. ALLEGATION: 1 Dr. J. V. Sutariya had done cesarean operation of the patient Rupiben. She had given birth to a stillborn baby. On account of negligence committed by Dr. Sutariya, instrument was left inside the abdomen of the patient. The patient was operated again and the instrument was removed. Thus, life threatening condition was caused since the instrument was left inside the abdomen of the patient due to grave negligence towards duty by Dr. Sutariya. Thus, Dr. On account of negligence committed by Dr. Sutariya, instrument was left inside the abdomen of the patient. The patient was operated again and the instrument was removed. Thus, life threatening condition was caused since the instrument was left inside the abdomen of the patient due to grave negligence towards duty by Dr. Sutariya. Thus, Dr. J. V. Sutariya has violated sub rule-(2) of Rule-3(1) of the Gujarat Civil Services (Conduct) Rules, 1971 by committing grave negligence in his duties as Superintendent Class-1 and by not showing dedication in duty and he is liable for the same. ALLEGATION: 2 Dr. J. V. Sutariya misplaced the indoor case papers and X-Ray plate of the patient Rupiben, gave her bribe of Rs.2,000/- at her house, forcefully obtained her thumb-impression, obtained false statement, fabricated false documents and thus committed grave negligence towards his duty. Thus, Dr. J. V. Sutariya has violated sub rule-(1) and sub rule-(2) of Rule-3(1) of the Gujarat Civil Services (Conduct) Rules, 1971 by committing grave negligence in his duties as Superintendent Class-1 and by not showing honesty in duty and he is liable for the same. 2. With reference to the aforesaid charge-sheet, Dr. J. V. Sutariya did not submit his written statement of defence to the Department. The inquiry against Dr. J. V. Sutariya was assigned to Mr. V. B. Thakor, Deputy Secretary (Retired) as Departmental Inquiry Officer vide even numbered order of this Department, dated 13.09.2000, for Departmental Inquiry as per rules. In that regard, the Inquiry Officer had submitted the Inquiry report of Dr. J. V. Sutariya vide letter dated 14.08.2001, wherein it was concluded that the allegations against Dr. J. V. Sutariya were proved. It was decided to agree with the conclusion of the departmental inquiry and copy of the departmental inquiry report was forwarded to Dr. J. V. Sutariya vide letter of the Department, dated 18.12.2001 and he was intimated to submit his final representation. Pursuant to the same, Dr. J. V. Sutariya submitted his final statement of defence to the Department vide letter dated 03.07.2002. 3. After detailed consideration on the papers of Departmental Inquiry of Dr. J. V. Sutariya, his final statement of defence and the report of Departmental Inquiry Officer, it was decided by the Government to impose the below mentioned reasonable and necessary penalty on Dr. J. V. Sutariya. ORDER:- Dr. 3. After detailed consideration on the papers of Departmental Inquiry of Dr. J. V. Sutariya, his final statement of defence and the report of Departmental Inquiry Officer, it was decided by the Government to impose the below mentioned reasonable and necessary penalty on Dr. J. V. Sutariya. ORDER:- Dr. J. V. Sutariya, Surgeon, Community Health Center, Meghraj, at present- Superintendent, Community Health Center, Idar, District- Sabarkantha is dismissed from Government Service. By the order and in the name of the Governor of Gujarat. Sd/- (J.C.Rathod) Deputy Secretary, Health and Family Welfare Department To, Dr. J. V. Sutariya, Superintendent, Community Health Center, Idar, District- Sabarkantha. (with copy of confidential letter no.DEQ-2605- 2454-99-DE of the Gujarat Public Service Commission, dated 22.09.2005) Copy forwarded to:- - The Commissioner, Health and Medicine Services and Medical Education (Health), Block no.5, Dr. Jivraj Mehta Bhavan, Gandhinagar. - Health and Family Welfare Department, T- Branch, Secretariat, Gandhinagar. - The Secretary, Gujarat Vigilance Commission, Chh-5, Sector-10/B, Gandhinagar. (by letter) - The Secretary, Gujarat Public Service Commission, Multi-storied building, Lal Darvaja, Ahmedabad. (by letter) - The Section Officer, D-branch, Health and Family Welfare Department, Secretariat, Gandhinagar. - Select file of Section Officer - Select file.” 12.3. Being aggrieved by the aforesaid order of dismissal dated 30.09.2005, the petitioner preferred departmental appeal on 25.10.2005. (page 96). 12.4. Upon personal hearing being granted to the petitioner, the petitioner gave written submissions in the appeal on 27.12.2005. 12.5. In the said proceedings, on 01.07.2006, the ethics committee was formed to inquire into the various issues arising in the case of the petitioner. (page 112), including the following:- “No.S-1-Dr.Sutaria-INQ-Ethics Committee-F-06 Commissionerate of Health, Medical Services and Medical Education (MS) Block No.5, Dr.Jivraj Mehta Bhavan, Gandhinagar, Date: 01.07.2006 Read: 1. Health and FW Department, Gandhinagar Order No.Khtp/1095/891/L2 Dated 30 September 2005 2. Appeal of Dr J V Sutaria dated 17.10.2006 in respect of the Order cited at Read 1 Office Order: Vide Ref (1) Dr J V Sutaria, Ex- superintendent, CHC Idar, Dist-Sabarkantha was removed from service due the negligence in cesarean section operation case of patient Rupiben. Vide read (2), Dr J V Sutaria has appealed that he is not guilty on technical grounds. During the review of the appeal, it was felt necessary to examine in detail the inadequacy/failure of surgical operation done by Dr J V Sutaria. Vide read (2), Dr J V Sutaria has appealed that he is not guilty on technical grounds. During the review of the appeal, it was felt necessary to examine in detail the inadequacy/failure of surgical operation done by Dr J V Sutaria. Hence an ethics committee is formed to inquire into following issues of the case against Dr J V Sutaria. - Malpractice by Dr Sutaria with resultant agony to the patient - Inadequacy/failure in surgical operation by Dr Sutaria - Surgical competency of Dr Sutaria - Whether the surgical procedures are adequate to ensure non-recurrence of such incidence in future - Review of Global/Indian_incidence_of_surgical surgical Accidents. The ethics committee will be as follows. 1. Professor and Head, Department of Obstetrics and Gynecology, B J Medical College Ahmedabad Chair Person 2. Professor and Head, Department of Surgery, B J Medical College, Ahmedabad Member 3. Professor and Head, Department of Anesthesiology, B J Medical College, Ahmedabad Member 4. Deputy Director medical Services Member Secretary Terms of reference for the Ethics Committee are as follows: 1) Malpractices with resultant agony to patient. 2) Inadequacy in surgical procedures/operation. 3) Surgical competency of accused officer 4) Review of Global / Indian incidences of surgical Accidents. The committee will also carry out site- inspection and field visit where ever necessary. The committee will have to complete the inquiry given to them within a period of one month and submit the report in regards to this case and also recommendations for prevention of such cases in future. Commissioner, - Health, Medical Services and Medical Education (MS) Gandhinagar To, Concerned Members of the Ethics Committee. Dean, B J Medical College, Ahmedabad. Additional Director, Medical Services, Gandhinagar. Copy W. Cs to: Principal Secretary, Health and Family Welfare Department, Gandhinagar.” 12.6. The ethics committee submitted its report on 22.11.2006, which reads thus:- ENQURY REPORT After receiving the letter from Commissioner Of Health, Medical services & Medical Education meeting was held in the office of Prof & HOD Obst & Gynec on 26” July 06. Letter was written to concerned authority to give the record (file) of Dr. J.V. Sutaria. Xerox copy of file of Dr. Sutaria was receieved. All committee members studied file in details and decided to visit the site. After visiting Meghraj the committee had meeting and following conclusions were derived. Malpractice with resultant agony to Patient. Dr. Letter was written to concerned authority to give the record (file) of Dr. J.V. Sutaria. Xerox copy of file of Dr. Sutaria was receieved. All committee members studied file in details and decided to visit the site. After visiting Meghraj the committee had meeting and following conclusions were derived. Malpractice with resultant agony to Patient. Dr. Sutaria has forgotten instrument inside the abdomen, it cannot be called malpractice because forgetting foreign body inside the abdomen is possible in situation like - Excessive bleeding in the field. Excessive fluid loss — Emmergency surgery — When Assisting team is not competent — Infrastructure inadequacy in the operating room — Above mentioned all situations were existing when Dr. Sutaria has operated on the – patient. Inadequacy of surgical procedure. Forgotten foreign body cannot be considered as surgical inadequacy. Forgotten foreign body does result in morbidity and occasionally mortality of patient. In this case it has ended in morbidity of three month and few days. Counting towels and instruments is the duty of operating room sister and (other staf f sisters. OT assistants) who is present in the operating room. However he should have supervised sister’s duty of counting instruments after completion of surgery. Except forgetting foreign body there is no inadequacy in surgical procedure on part of Dr. Sutaria. He has saved mother by operation in the remote place otherwise it would have ended in rupture uterus and Maternal Mortality. Surgical competency of Accused officer. Dr.Sutaria is a general surgeon. He has operated in a case of obstetric emergency in a remote place where facility for blood transfusion is not available, so his surgical competency is not to be doubted. Review of Global/Indian incidences of surgical Accidents. Forgotten foreign body is uncommon but dangerous error. Global incidences have been recorded as follow: 1:1000 to 1:1500 intra abdominal Surgeries. 1:8801 to 1:18760 surgeries. One case for each year in large hospital. In 28.4 million patients operations there were 1500 cases of retained foreign body. Percentage of different sites of forgotten foreign body. (one study) 54% Abdomen & Pelvis. 22% Vagina. 7.4% Thorax. 17% Elsewhere. (Spinal canal, face, brain and extremities) Risk factors for retention of foreign body. It is increasing in emergency operations. With unplanned change of procedure. More bleeding during surgery. It is also increases with body mass index. Recommendations for prevention of such incidences. (one study) 54% Abdomen & Pelvis. 22% Vagina. 7.4% Thorax. 17% Elsewhere. (Spinal canal, face, brain and extremities) Risk factors for retention of foreign body. It is increasing in emergency operations. With unplanned change of procedure. More bleeding during surgery. It is also increases with body mass index. Recommendations for prevention of such incidences. O.T. nurse should keep fix number of instruments in each operation set. O.T. nurse should count the instruments and mops before surgeon start completing operating procedure and if count is not complete (missing instrument, needle or mop) surgeon should be informed. There should not be change in assisting staff during surgery.” 12.7. The Joint Secretary accepted the report of the ethics committee and recommended lesser punishment. However, while considering the review application filed by the petitioner upon such opinion, made an internal noting that “it is difficult to recommend the reinstatement after the decision of dismissal for the matter has been taken.” The said noting is dated 13.09.2009. 13. Subsequent thereto, the order rejecting the review application came to be passed after a period of two years i.e. on 10.09.2007 at page 136 whereby, the same officer, who had recommended lesser punishment, while considering the review application, passed the order of dismissal holding that once the decision of dismissal is taken, it would not be proper to reinstate. While considering the review application, the report of the ethics committee is also not taken into consideration. 14. Upon perusal of the report of the ethics committee, it emerges that the ethics committee in the said inquiry report, as referred above, recommended that “accused – Dr.Sutaria is a general surgeon, having operated in case of obstetric emergency in a remote place where, facility for blood transfusion is not available, so his surgical competency is not to be doubted.” 14.1. Various factors are also considered in the said report and there are recommendations for prevention of such incidences i.e. (i) the O.T. nurse should keep fix number of instruments in each operation set (ii) O.T. nurse should count the instruments and mops before surgeon start completing operating procedure and if the count is not complete, the surgeon should be informed and (iii) there should not be change in assisting staff during surgery. 14.2. 14.2. It is not in dispute that the petitioner has saved the life of the patient by performing the second operation and the patient is living hale and hearty life. 15. The aforesaid report, in the opinion of this Court, is not considered by the reviewing officer while passing the order dated 03.12.2007, dismissing the review application filed by the petitioner herein. In view thereof, while constituting the ethics committee, the competent authority has erred in not taking into consideration the report of the ethics committee and confirming the order of dismissal passed by the disciplinary committee dated 30.09.2005. 16. In light of the aforesaid, this Court deems it fit to refer to the position of law. In the case of State of Rajasthan vs. Rajendra Prasad Jain reported in (2008) 15 SCC 711 , in paragraphs 10 and 11, the Hon’ble Apex Court held as under:- “10. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief in its order, indicative of an application of its mind; all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court order not sustainable. Similar view was expressed in State of U.P. v. Battan. 11. “6. … About two decades back in State of Maharashtra v. Vithal Rao Pritirao Chawan the desirability of a speaking order while dealing with an application for grant of leave was highlighted. The requirement of indicating reasons in such cases has been judicially recognized as imperative. The view was reiterated in Jawahar Lal Singh v. Naresh Singh. Judicial discipline to abide by declaration of law by this Court, cannot be forsaken, under any pretext by any authority or Court, be it even the highest Court in a State, oblivious to Article 141 of the Constitution. 7. Reason is the heartbeat of every conclusion, and without the same it becomes lifeless. (See Raj Kishore Jha v. State of Bihar) 8. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union observed (All ER p.1154h): "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree it was observed: ‘Failure to give reasons amounts to denial of justice. (See Raj Kishore Jha v. State of Bihar) 8. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union observed (All ER p.1154h): "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree it was observed: ‘Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking-out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. The above position was highlighted in State of Orissa v. Dhaniram Luhar (SCC pp. 571-72, paras 6-8).” 17. In view of the aforesaid, this Court is inclined to pass the following order. 17.1. The preliminary inquiry was conducted against the petitioner in the year 1992. The petitioner herein was issued a chargesheet dated 26.05.1999 i.e. after a period of more than nine years, in connection with his duties as Superintendent (Class – I) at Community Health Centre, Meghraj for the period between 21.07.1988 to 20.04.1993 wherein, two charges were alleged against the petitioner, as referred to in paragraph 3.1 above. The impugned order dated 30.09.2005, dismissing the petitioner from the government service, which is duly produced in paragraph 12.2 above, in the opinion of this Court, is a non-speaking order, which is passed upon recital of the allegations levelled against the petitioner herein, without assigning any reasons or dealing with the report of the inquiry officer. The impugned order dated 30.09.2005, dismissing the petitioner from the government service, which is duly produced in paragraph 12.2 above, in the opinion of this Court, is a non-speaking order, which is passed upon recital of the allegations levelled against the petitioner herein, without assigning any reasons or dealing with the report of the inquiry officer. Further, upon considering the order dated 10.09.2007, this Court has also perused the report of the ethics committee dated 22.11.2006, as referred to in paragraph 12.6 above, wherein, while reviewing the order of dismissal dated 30.09.2005, the competent authority has failed to take into consideration the opinion of the ethics committee and mechanically confirmed the order of dismissal, as referred above. In view thereof, it is a fit case to exercise extraordinary jurisdiction under Article 226 of the Constitution of India. 18. For the foregoing reasons, the impugned order dated 30.09.2005 passed by the respondent – authority, dismissing the petitioner from the government service and further order dated 03.12.2007, dismissing the review application filed by the petitioner are required to be quashed and set aside and the same are hereby quashed and set aside. 19. Accordingly, the present petition allowed. Rule is made absolute.