JUDGMENT
A.B. Pal, J.
1. The petitioner was a Medical Officer of the Tripura Health Services. He retired on superannuation in the afternoon of 30.4.2002. Immediately before his retirement he held the post of Director of Health Services. After retirement a memorandum was issued on 18.6.2002 under the signature of the Under Secretary to the State Government in the General Administration (AR) department proposing to hold an inquiry under Rule 14 of the CCS (CCA) Rules 1965 deeming it a proceeding under Rule 9(2) (a) of the CCS (Pension Rules) 1972. The only charge against him is that though the post of Director of Health Services held by him is a non-practicing post, the petitioner engaged himself in private practice during his tenure in the said post.
2. It has, however, been stated in the charge itself mat though the petitioner pursued his private practice beyond office hours in the morning and evening, but it amounted to violation of the notification No. F. 3 (222)-HFW/99.IV dated 2nd January 2001 whereby the post of Director was declared non practicing post. Aggrieved by the said memorandum initiating the disciplinary-proceeding the petitioner has approached this Court by means of this petition for quashing the same.
3. The grounds of challenge to the said memorandum are:
(i) The proceeding under Rule 9 of the Pension Rule can be initiated against a pensioner only with the sanction of the Governor which has not been done in the present case;
(ii) The alleged private practice does not amount to any grave misconduct or negligence causing any pecuniary loss to the Government;
(iii) The petitioner did not receive non practicing allowance during the relevant period. According to the Tripura Health Services Rules 1974, a Medical Officer is entitled to do private practice beyond his duty hours if he does not receive non practicing allowance. The allegation in the article of charge does not, therefore, by itself constitute any grave misconduct.
4. The respondents in their joint counter Affidavit contended, interalia, that though the proceeding was initiated without sanction of the Governor, later the sanction was obtained validating thus, the proceeding in question. As regards the question whether the alleged private practice by the petitioner while holding the post of Director amount to gross misconduct, it has been contended that the Director is the head of department and, therefore, the powers and functions attached to that post involves considerable public interest. In consideration of the public interest the State Government issued the notification on 2.1.2001 declaring the post as non practicing one with immediate effect.
5. Though the article of charge would show that the petitioner did private practice beyond the office hours, it is gross violation of the notification aforementioned. In consideration the official position held by the petitioner at the relevant time, disobedience of the direction in the above notification amounted to gross misconduct. It has further been contended that the writ petition is premature and misconceived inasmuch as the contentions raised by the petitioner in this proceeding could be advanced during the disciplinary proceeding.
6. I have heard learned Counsel for the parties.
Coming to the question of sanction of the Governor which, according to Mr. Bhowmik, learned Sr. counsel for the petitioner, is sine qua non, admittedly no sanction was obtained on 18.6.2002 when the proceeding was initiated. It would be seen, as rightly contended by Mr. Clause (Deb, learned Sr. counsel for the respondents, that the sanction was obtained on 12.8.2002, about 2 months after initiation of the proceeding. There is no quarrel on the point that without sanction of the Governor disciplinary proceeding under Rule 9 of CCS (Pension) Rules 1972 can not be put on place in view of Clause (b)(i) of Sub Rule (2) of Rule 9 which reads as under:
Clause (b)(i) The departmental proceeding if not instituted while the Government servant was in service whether before his retirement or during his re-employment, shall not be instituted save with the sanction of the Governor.
Giving much emphasis on the words “shall not be instituted”. Mr. Bhowmik would argue that the proceeding in question is void abinitiao which can not be cured by subsequent sanction. Mr. Deb, learned Sr. counsel, would, however, controvert this submission arguing that the sanction obtained later would definitely validate the proceeding initiated earlier and that such technical question can not be allowed to render invalid a proceeding otherwise found to be legally tenable.
7. Before adverting to the question whether ex post facto sanction of the Governor would validate/revive a proceeding which was stillborn for want of sanction, it is necessary to notice the sanction itself in order to determine whether the same intended to validate the proceeding in question. The sanction order was issued on 12.8.2002 which being very much significant in the present controversy is reproduced below:
No. F. 11(25)-GA(AR) 2002/1896-98 Government of Tripura, General Administration (AR) Department. Dated Agartala, the 12th August, 2002
ORDER
Whereas it has been observed that Dr. Bimal Bhowmik while serving as Director of Health Services, Government of Tripura from 01.12.2000 to 30.04.2002 resorted to private practice and treated patients in his private consultation room at 142/1-Motor Stand Road, Agartala charging a fee of Rs. 100/- from each patient though the post of Director of Health Services is a non-practising one;
Now, therefore, in exercise, of the powers conferred by Sub-clause (1) of Clause (b) of Sub-rule (2) of Rule 9 of the Central Civil Services (Pension) Rules, 1972, (as adopted in the State of Tripura) the Governor hereby accords sanction for drawing up departmental proceedings against the said Dr. Bimal Bhowmik.
The Governor, further, directs that the said departmental proceeding shall be conducted in-accordance with the procedures laid down under Rules 14 and 15 of the CCS (CCA.) Rules, 1965 by the General Administration (AR) Department, Government of Tripura.
By order and in the
name of the Governor
Sd/- illegible
(Mrs. B. Debbarma)
Under Secretary to the
Government of Tripura.
8. A closer scrutiny of the above order would significantly show that there is absolutely no reference to the existing proceeding drawn by the Memorandum dated 18.6.2002. The sanction order is thus a prospective one for drawing up a departmental proceeding against the petitioner. There is no scope to interpret the same as an order validating any proceeding drawn earlier. This being the position, the impugned Memorandum dated 18.6.2002 initiating a proceeding against the petitioner is to be treated as nonest for want of sanction of the Governor and thus failing to comply with the requirement of Rule 9(2)(b)(i) of the Pension Rules.
9. The next question which has fallen for consideration is whether private practice beyond office hours’ can be termed as gross misconduct. The article of charge states that Dr. Bimal Bhowmik (petitioner) pursued private practice from Monday to Saturday (7.30 to 9.30 hours) in the morning and from 0700 to 20.30 hours in the evening except Sunday when the practice hours was from 0800 hours to 1200 hours. It is thus, the contention of the disciplinary authority that the petitioner pursued private practice beyond office hours. There is absolutely nothing more in the article of charge how and when the duties and functions as Director of the Department was interfered with by the alleged private practice. The grave misconduct as alleged therefore, has not been specifically formulated in the said article.
10. Rule 25 of the Tripura Health Services Rules, 1974 provides that a person appointed to the service may exercise option to do private practice and in that event he would not get non-practicing allowance and private practice of any kind would not be allowed during duty hours. The notification dated 2.1.2001 would itself show that permission for private practice was earlier issued in favour of the petitioner which, however, came to be withdrawn with immediate effect. The fact remains that even after the above notification the petitioner did not draw non-practicing allowance. The said notification was purportedly issued under Rule 25(viii) of the Tripura Health Services Rules 1974, though such power is not available in that provision.
11. However, even admitting that the State Government has such power to withdraw/or obliterate the power of option at anytime, in the absence of any negligence in performing the duties as Head of Department, a charge of misconduct (not gross misconduct) can not be said to be in terms of Rule 9 of the Pension Rules.
12. In the article of charge it is alleged that the petitioner exhibited, by means of private practice, total lack of integrity and devotion to duty which is un becoming of a Government servant as per Rule 3 of the Tripura Civil Services (Conduct) Rules, 1988. It would appear from Annexure-III of the charge document that one prescription dated 16.3.2002 from one Mrinal Kanti Pal signed by the petitioner is the only basis to initiate the proceeding about two and half months after retirement of the petitioner.
13. No other instance of regularly pursuing private practice has been cited. To substantiate the charge nothing more has been contended that by pursuing said private practice on regular basis the State Government suffered in any way or the functions of the office of the Director of Health Services were affected. It seems to me that the proceeding has been initiated against the petitioner after his retirement hot for any bonafide reason related to public interest. The proceeding seems to be expression of internal bickering in the department Which raised head after he was out of office.
14. However, on the ground of sanction alone it can be said that the impugned memorandum is nonest and therefore the proceeding is un-sustained in law.
15. Several decisions have been cited by the learned Counsel for the parties in support of their rival contentions. I feel no need to discuss them inasmuch-as they deal with situation prevailing after conclusion of disciplinary proceeding. The case in hand is completely different.
For the reasons and discussions aforementioned, this Writ petition has merit and, therefore, the same is allowed setting aside and quashing the memorandum impugned with no order as to costs.
