JUDGMENT
S.B. Sanyal, J.
1. In this writ petition the petitioner seeks the quashing of the order as contained in memo No. 627 dated 25-11-1983 (ANNEXURE-2) of the Deputy Secretary, Health Department, Government of Bihar, Patna (respondent No. 2), by which the petitioner has been imposed with the punishment of censure and withholding of two increments, as also the order of the appellate authority dated 2-12-1983 communicated to the petitioner on 12-8-1986 (Annexurc-2) to the show cause filed by the Secretary to the Government of Bihar, Department of Health (for the sake of convenience, Annexure 2 of the show cause will be referred to as Annexure 2-S) passed under Rule 56(1)(a) of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as the Rules).
Facts.
2. On 24-5-1977 the petitioner was posted as Civil Assistant Surgeon of Sadar Hospital, Munger. It is said that while he was engaged in a major prostrate operation of a patient in the Operation Theatre, Dr. Thakur Ramsagar Singh, Civil Surgeon, directed him to give up operation and to proceed immediately to Kharagpur Block for persons affected in accident by a violent storm. The petitioner refused to carry out the said order as he was in the midst of the operation and requested the Civil Surgeon to direct any of the two other Surgeons, namely, Dr. N.P. Jha or Dr. Fazluddin instead to visit the place of accident. According to the petitioner, the attendants of the patient were waiting in the Hospital and it would have been unethical and inhuman act on his part to give up the patient in the midst of operation. On petitioner’s inability to carry out the order of the Civil Surgeon, Dr. Fazluddin was only sent to Kharagpur Block who came back and reported that there was no accident case to be treated. Because of the petitioner’s refusal to carry out the direction of the Civil Surgeon, it appears an adverse report was sent, by the Civil Surgeon to the Deputy Director of Health Services, Bhagalpur, and in July, 1977, the Health Department asked for an explanation from the petitioner as to under what circumstances, he defied the order of the Civil Surgeon and explain why disciplinary action be not taken against him (Annexure 4). It is said that the petitioner filed his explanation explaining that there were two more Surgeons available and it would have been a serious misconduct on his part to give up a patient in the midst of the operation when he was asked to move away from the operation theatre to attend Kharagpur Block. Five years thereafter, on 25-11-1983, without any proceeding whatsover, the petitioner was communicated about the punishment imposed, namely, censure and stoppage of two increments. On 14-4-1984, the petitioner preferred an appeal against the said order, but the appeal being not disposed of, the petitioner filed a writ petition in this Court, being C.W.J.C. No. 2134 of 1985, and on 3-1-1986, a Bench of this Court directed the appeal admittedly filed by the petitioner to be disposed of, preferably within six months. To petitioner’s knowledge, the appeal being not disposed of within six months, and no information about it having been communicated to the petitioner, he was constrained to file the instant petition on 20-4-1987. It appears that this Court sua motu sought cause to be shown by the Secretary-cum-Health Commissioner, Department of Health, as to why a contempt of Court proceeding be not drawn up for violation of the earlier direction of this Court. Cause was shown, and in the show cause, it was stated that the appeal of the petitioner was disposed of by the Chief Minister through the Chief Secretary and the sama was rejected by the Chief Minister on 2-12-1985 and communicated to the petitioner on 12-8-1987 (Annexure 2-S). This Court discharged the contempt matter by order dated 19 8-1987 and gave leave to the petitioner to file or amendment to the writ petition for quashing the said order, if so advised. The petitioner thereafter amended the writ petition and made a further prayer for quashing the communication of the dismissal of his appeal on 2-12-1985. This, in short, is the case of petitioner.
3. A counter-affidavit has been filed on behalf of the State stating that the petitioner was served with the charge sheet for disobedience of the order of the Civil Surgeon, Manger, on 1-7-1977 and the petitioner was required to file his explanation which he filed on 4-7-1977, and the show cause having been found to be unsatisfactory, the punishment is imposed. It farther stated that the appeal was wrongly filed before the Deputy Secretary to the Government, in the Department of Health. Since the appellate authority under the provisions of Rule of Executive Business and the Rules was the Chief Minister, the appeal was dismissed by him on 2-12-1985.
4. Learned Counsel appearing on behalf of the petitioner contended that during the earlier writ petition which was disposed of on 3-1-1986 by this Court, even though the Advocate General represented the State, there was not a whisper about the dismissal of the appeal. The petitioner again filed a representation on 7-3-1986 (Annexure 6) reiterating his case, and only when a contempt proceeding was taken after the institution of the present writ petition in the show cause to the contempt proceeding, the order dated 2-12-1985 saw the light of the day. Admittedly, this document was never communicated to the petitioner, and it was so done on 12-8-1987, more than about two years after the order was rendered. It has further been urged that there has been a direct violation of Rule 55-A of the Rules, inasmuch as even when punishment imposed upon the petitioner is covered by Rule 49(i) and (ii), the petitioner has not been given an adequate opportunity of making any representation. It has also been urged that the order dismissing the appeal of the petitioner is non-speaking. Neither the original order nor the appellate order makes any reference to the defence of the petitioner, wherefrom it could be discerned that there was real application of the mind before imposition of punishment and/or dismissal of the appeal. Learned Counsel also submitted that by Annexure 4, no charge was framed against the petitioner, but the Government desired to be satisfied why a departmental proceeding should not be initiated. Learned Counsel appearing for the State, on the other hand, contended that there has been a compliance of Rule 55-A of the Rules, inasmuch as the petitioner was given adequate opportunity of making representation. Annexure 25 is not an order of the Chief Minister, but the result of the appeal was merely communicated and the communication need not be speaking.
5. Having heard learned Counsel for the parties, I wonder the way the case has been dealt with by the Department of Health. The petitioner was asked to explain as to why disciplinary proceeding be not taken, as far back as on 1-7-1977, and even though the show cause was filed immediately thereafter, it took the Department more than five years to impose the penalty without going through any other procedure. The most curious part of the case is that when the petitioner moved this Court in the earlier writ petition, there was no whisper on the part of the State that his appeal has been dismissed by the Chief Minister one year before, which led this Court to direct disposal of his appeal within six months on 3-1-1986. The petitioner filed his representation on 7-3-1986 (Annexure-6) requesting the authority to dispose of his appeal, along with a copy of the judgment of the High Court, but the same was not replied This forced the petitioner to file the present writ petition, and when a contempt proceeding was taken, the State came up with the defence that on 12-8-1987, two years after the disposal of the appeal, the petitioner has been communicated of the order. Anywhere in the two orders sought to be quashed, there is no whisper that the explanation given by the petitioner was a lie. It only says that the explanation has been rejected after due consideration. If it is a fact that the petitioner was in the midst of an operation, and the patient had been operated upon, when he was orally asked by the Civil Surgeon to move away, inspite of the fact that there were two other Surgeons available to go to Kharagpur Block to tackle with the emergency there. I feel surprised why such an explanation became unacceptable to the concerned authority. Any reasonable person, similarly situated, would have reacted in the same manner, leaving a patient in the said condition would have amounted to a professional misconduct. Apart from the said fact, I am of the opinion that the petitioner was never given an adequate opportunity to represent his case as required under Rule 55-A of the Rules. In Annexure 4, the Department never proposed a punishment for proposed charges, but an inquiry to satisfy itself for initiating a departmental proceeding. After five years of the filing of that explanation, one fine morning, the petitioner was visited with two punishments, both of which could have only been imposed by providing an adequate opportunity to meet the charges, which might have required even examining witnesses in support of the defence and the right of the petitioner to cross-examine the Civil Surgeon who passed an oral order to leave the patient in the midst of operation, even though he had at his disposal the other equally efficient surgeons to meet the alleged exigency at Karagpur Block. It now appears that Dr. Fazluddin was sent and he reported no accident in Kharagpur Block I thing, the case of the petitioner is fully covered by the decision of H.G Sharan v. State reported in 1971 BLJR 177. Further, the petitioner was never supplied with the appellate order of the Chief Minister dated 2-12-1985 till date. It was only communicated to him on 12-8-1987 that his appeal has been dismissed after due consideration. The petitioner was entitled to get the contents of the order in order to appraise himself the consideration of his case. Nor this Court is in a position to know what weighed with the authority in rejecting his defence, to which this Court is entitled to, when a remedy by way of writ petition is available to a person visited with civil consequence.
6. For all these reasons, I am constrained to quash the order of punishment dated 25-11-1983 (Annexure 2) as also the order communicating the rejection of the petitioner’s appeal on 12-8-1987 (Annexure 25) and the petitioner is also entitled to all consequential benefits ensuing there from. This writ petition is allowed with costs. Hearing fee is assessed at Rs. 250.00.
