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SCA/6792/2011 16/ 16 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6792 of 2011
=========================================================
JAYESH
B MODI - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
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Appearance
:
MR
MEHUL SHARAD SHAH for
Petitioner(s) : 1,
MR RASHESH RINDANI, LEARNED ASSISTANT
GOVERNMENT PLEADER for Respondent(s) : 1,
MR HS MUNSHAW for
Respondent(s) :
2,
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CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 01/08/2011
ORAL
ORDER
Rule.
Mr.Rashesh Rindani, learned Assistant Government Pleader waives
service of notice of Rule on behalf of respondent No.1 and
Mr.H.S.Munshaw, learned advocate waives service of notice of Rule on
behalf of respondent No.2.
By
preferring this petition under Article 226 of the Constitution of
India, the petitioner has made the following prayers:-
“(A) to
admit this petition;
(B) to
issue a writ of certiorari or a writ of mandamus or any other
appropriate writ, order or direction, quashing and setting aside the
impugned order dated 7.5.2011, communicated on 16.5.2011, passed by
respondent No.2, by which the Memorandum of Understanding executed
between the petitioner and the respondents has been calcelled, and
further directing the respondents to continue the MOU, which is, as
such, renewed upto March, 2012;
(C) to
issue a writ of certiorari, or a writ of mandamus or any other
appropriate writ, order or direction, quashing and setting aside the
impugned order dated 7.5.2011, communicated on 16.5.2011, passed by
respondent No.2, by which refund of the amount paid by the
respondents to the petitioner for rendering medical services to
below poverty line women, is claimed/ sought from Ma Hospital and
Ronak Hospital of the petitioner;
(D) Pending
admission hearing and final disposal of this petition, Your Lordship
may be pleased to stay execution, operation and implementation of
the orders dated 7.5.2011 in respect of recovery of the amount as
well as cancellation of MOU by the respondents and be further
pleased to direct the respondents to continue with the MOU, which
is, as much, renewed upto March, 2012.
(E) to
pass such other and further orders as may be just and necessary in
the circumstances of the case.”
The
facts of the case, relevant for the decision of this petition are
that, the petitioner is a Doctor, and is doing private practise as a
Gynaecologist, at Patan. The Government evolved two schemes known as
” Chiranjivi Yojna” and “Balsakha Yojna”,
with a view to reducing the mortality rate of infants and expectant
mothers during deliveries. Under the Chiranjivi Yojna, the services
of private Gynaecologists are taken by the Government and an amount
of Rs.2800/- is paid to the concerned Doctor. The said Doctor has to
verify the BPL Card or certificate issued by the Talati-cum-Mantri
to the expectant mother, and only then her case is to be registered,
without charging any fee and delivery is to be performed after such
registration. If the expectant mother is accompanied by an ‘Asha’
worker or Anganwadi worker from her village, such worker is to be
paid remuneration of Rs.50/-. If the patient hails from a remote
place, she would be paid Rs.200/- towards transportation, and if the
patient is from Patan City itself, an amount of Rs.100/- is to be
paid to her towards transportation charges. As per the Balsakha
Yojna, as soon as the birth of a child takes place, a Paediatrician
is called to conduct a check-up of the newly-born child. According
to the petitioner, two Paediatricians, namely, Dr.Hiren Patel and
Dr.Divyesh Shah are associated with the Hospitals of the petitioner.
The petitioner entered into a Memorandum of Understanding with
respondent No.2, Mission Director, District Health Mission and
District Health Officer, District Panchayat, Patan, with respect to
Ronak Hospital and Ma Hospital, run by him, under the Chiranjivi
Yojna and Balsakha Yojna. Both the said hospitals are located at
Patan. According to the petitioner, during the period with effect
from April 2010 to October 2010, the petitioner conducted 686
deliveries at Ronak Hospital, Patan, and 357 deliveries at Ma
Hospital, Patan, and other branch hospitals, run by him in district
Patan. The petitioner submitted vouchers with respect to the same to
the District Health Officer, Patan, and received the payment.
According to the petitioner, he has rendered services in remote
villages such as Vayad, Harij and Chanasma, where no proper medical
facilities are available, and deliveries are being conducted by him
in the Hospitals run by him at the said places. A complaint came to
be made against the petitioner, alleging that he has conducted
deliveries at branch hospitals, other than those located at Patan,
for which the Memorandum of Understanding has been entered into.
After an inquiry, the impugned order dated 07.05.2011 was passed,
directing the petitioner to refund the amounts received by him as
remuneration for conducting delivery cases at places other than
Patan. The petitioner has been directed to refund Rs.6,30,635/-
under the Chiranjivi Yojna and Rs.4,70,400/- under the Balsakha
Yojna, totalling to Rs.11,08,035/- from Ma Hospital. Further the
petitioner has been directed to refund Rs.12,60,765/- from Ronak
Hospital. The Memorandum of Understanding executed by the
respondents with Ronak Hospital and Ma Hospital, run by the
petitioner has also been cancelled and the petitioner has been
directed to pay the above mentioned amount, within a period of 15
days. It is the case of the petitioner that the impugned orders
dated 07.05.2011 (four in number) have been passed, without
affording an opportunity of hearing to the petitioner. Aggrieved
thereby, the petitioner has approached this Court, by way of the
present petition.
Notice
was issued in the petition on 03.06.2011, and it was directed that
no coercive steps be taken against the petitioner, by the
respondents. The affidavit-in-reply has been filed on behalf of
respondent No.2, refuting the contentions raised in the petition,
and asserting that, the petitioner did not co-operate during the
course of inquiry by a team of two Doctors, therefore, there is no
violation of the principles of natural justice have been violated.
Mr.Mehul
Sharad Shah, learned advocate for the petitioner, has submitted that
the impugned orders dated 07.05.2011 have been passed in total
violation of the principle of natural justice, as no opportunity of
hearing has been afforded to the petitioner. It is submitted that
90% of the work of the petitioner is based on the Chiranjivi Yojna
and Balsakha Yojna. The petitioner has been directed to refund a
total amount of Rs.22 Lakhs, within a period of 15 days from the
receipt of the impugned order, which amounts to infliction of civil
consequences upon the petitioner. No Show Cause Notice has been
issued to the petitioner and neither has an opportunity of hearing
been afforded to him. Therefore, on this ground alone, and without
prejudice to other contentions, the impugned orders are required to
be quashed and set aside.
On
26.07.2011, Mr.H.S.Munshaw, learned advocate for respondent No.2,
had been requested to take instructions whether a Show Cause Notice
had been issued and an opportunity of hearing had been afforded to
the petitioner before passing the impugned orders. Today, during the
course of hearing, Mr.H.S.Munshaw, learned advocate, has tendered a
copy of communication dated 29/30.07.2011, of respondent No.2,
addressed to him, wherein respondent No.2 has communicated that all
four orders dated 07.05.2011, which are impugned in the petition,
with respect to Ronak Hospital and Ma Hospital, Patan, shall be
withdrawn and fresh orders shall be passed, after affording the
petitioner an opportunity of being heard.
Having
heard learned counsel for the respective parties and in view of the
submissions by them as well as the contents of communication dated
29/30.07.2011, it clearly emerges that the impugned orders dated
07.05.2011, have been passed without issuance of a Show Cause Notice
to the petitioner and without affording him an opportunity of
hearing. In view of the settled legal position that shall be
referred to herein-below, the impugned orders cannnot be sustained,
as they have been passed in violation of the principles of natural
justice.
In
the case of Malavkumar Arunbhai Patel Vs. Sardar Patel University
and Ors. reported in (2006) 3 G.L.H. 695, this Court, relying
upon certain judgments of the Apex Court, has held as below :
“23. Any
action taken by an administrative or quasi judicial authority which
entails civil consequences should only be taken after complying with
the principles of natural justice. Although the principles of natural
justice cannot be put into a strait-jacket formula, it cannot be
disputed that the doctrine of natural justice exists not only to
secure justice but also to prevent the miscarriage of justice. It is
true that strict rules of evidence do not apply in proceedings such
as those which took place in the case of the petitioner before the
“Unfair Means Committee”. However, even the requirement
of preponderance of probabilities has not been adhered to since the
impugned Notification dated October 4,2000 as well as the Minutes of
the proceedings which led to the passing of the impugned order do not
disclose the material which was available with the committee which
pointed out the involvement of the petitioner in the incident. In
that view of the matter, the impugned order is also not a speaking
one and does not disclose the reasons or the grounds on which the
decision to permanently debar the petitioner has been taken.
24. In
A.K.Kraipak v. Union of India,
reported in AIR 1970 SC 150 the aim and relevance of the
principles of natural justice have been clearly enunciated by the
Constitution Bench of the Supreme Court in para 20 thereof, which
reads as under:
“20.
The aim of the rules of natural justice is to secure justice or to
put it negatively to prevent miscarriage of justice. These rules can
operate only in areas not covered by any law validly made. In other
words they do not supplant the law of the land but supplement it.
The concept of natural justice has undergone a great deal of change
in recent years. In the past it was thought that it included just
two rules, namely (1) no one shall be a judge in his own cause (Nemo
debet esse judex propria causa), and (2) no decision shall be given
against a party without affording him a reasonable hearing (Audi
alteram partem). Very soon thereafter a third rule was envisaged and
that is that quasi-judicial enquiries must be held in good faith,
without bias and not arbitrarily or unreasonably. But in the course
of years many more subsidiary rules came to be added to the rules of
natural justice. Till very recently it was the opinion of the courts
that unless the authority concerned was required by the law under
which it functioned to act judicially there was no room for the
application of the rules of natural justice. The validity of that
limitation is not questioned. If the purpose of the rules of natural
justice is to prevent miscarriage of justice one fails to see why
those rules should be made inapplicable to administrative enquiries.
Often times it is not easy to draw the line that demarcates
administrative enquiries from quasi-judicial enquiries. Enquiries
which were considered administrative at one time are now being
considered as quasi-judicial in character. Arriving at a just
decision is the aim of both quasi-judicial enquiries as well as
administrative enquiries. An unjust decision in an administrative
enquiry may have more far reaching effect than a decision in a
quasi-judicial enquiry. As observed by this Court in Suresh Koshy
George v. University of Kerala, Civil Appeal No. 990 of 1968, D/-
15-7-1968 = (AIR 1969 SC 198) the rules of natural justice are not
embodied rules. What particular rule of natural justice should apply
to a given case must depend to a great extent on the facts and
circumstances of that case, the frame-work of the law under which
the enquiry is held and the constitution of the Tribunal or body of
persons appointed for that purpose. Whenever a complaint is made
before a court that some principle of natural justice had been
contravened the court has to decide whether the observance of that
rule was necessary for a just decision on the facts of that case.”
25. Further
in Kumaon Mandal Vikas Nigam
Ltd. v. Girja Shankar Pant, reported in (2001)1 SCC 182,
the Supreme Court has held as under in paragraphs 1 and 2 of the
reported judgment:
“Since
the decision of this Court in Kraipak’s case (A. K. Kraipak v. Union
of India) one golden rule that stands firmly established is that the
doctrine of natural justice is not only to secure justice but to
prevent miscarriage of justice. What, however, does this doctrine
exactly mean? Lord Reid about four decades ago in Ridge v. Baldwin
very succinctly described it as not being capable of exact definition
but what a reasonable man would regard as a fair procedure in
particular circumstances – who then is a reasonable man – the man on
the clapham omnibus? In India, however, a reasonable man cannot but
be a common man similarly placed. The effort of Lord Reid in Ridge v.
Baldwin in not attributing a definite meaning to the doctrine but
attributing it to be representing a fair procedure still holds good
even in the millennium year. As a matter of fact this Court in the
case of Keshav Mills Co. Ltd. v. Union of India upon reliance on the
attributes of the doctrine as above stated as below (SCC p.387,para
8)
“8.
The second question, however, as to what are the principles of
natural justice that should regulate an administrative act or order
is a much more difficult one to answer. We do not think it either
feasible or even desirable to lay down any fixed or rigorous
yard-stick in this manner. The concept of natural justice cannot be
put into a strait-jacket. It is futile, therefore, to look for
definitions or standards of natural justice from various decisions
and then try to apply them to the facts of any given case. The only
essential point that has to be kept in mind in all cases is that the
person concerned should have a reasonable opportunity of presenting
his case and that the administrative authority concerned should act
fairly, impartially and reasonably. Where administrative officers are
concerned, the duty is not so much to act judicially as to act
fairly. See, for instance, the observations of Lord Parker in H. K.
(an infant), In re. It only means that such measure of natural
justice should be applied as was described by Lord Reid in Ridge v.
Baldwin case as ‘insusceptible of exact definition but what a
reasonable man would regard as a fair procedure in particular
circumstances’. However, even the application of the concept of
fair-play requires real flexibility. Everything will depend on the
actual facts and circumstances of a case. As Tucker, L.J observed in
Russell v. Duke of Norfolk:
“The
requirements of natural justice must depend on the circumstances of
the case, the nature of the enquiry, the rules under which the
tribunal is acting, the subject-matter that is being dealt with and
so forth.”
2. While
it is true that over the years there has been a steady refinement as
regards this particular doctrine, but no attempt has been made and if
we may say so, cannot be made to define the doctrine in a specific
manner or method. Strait-jacket formula cannot be made applicable but
compliance with the doctrine is solely dependent upon the facts and
circumstances of each case. The totality of the situation ought to be
taken note of and if on examination of such totality, it comes to
light that the executive action suffers from the vice of
non-compliance with the doctrine, the law courts in that event ought
to set right the wrong inflicted upon the person concerned and to do
so would be a plain exercise of judicial power. As a matter of fact
the doctrine is now termed as a synonym of fairness in the concept of
justice and stands as the most-accepted methodology of a governmental
action.”
26. It
is now an accepted proposition of law that any statutory body which
is entrusted by statute with discretion, must act fairly. It does not
matter whether its functions are described as judicial or
quasi-judicial on the one hand, or as administrative on the other.
Even an administrative order, which involves civil consequences must
be made consistently with the rules of natural justice. Although the
expression ‘civil consequences’ has not been defined anywhere, the
observation made in Mohinder
Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405
at para-66 on page 440 is relevant in this context and reads as
below:
“What
is civil consequence, let us ask ourselves, by passing verbal
booby-traps? ‘Civil consequences’ undoubtedly cover infraction of not
merely property or personal rights but of civil liberties material
deprivation and non-pecuniary damages. In its comprehensive
connotation, everything that affects a citizen in his civil life
inflicts a civil consequence”
27. The
permanent debarring of the petitioner from appearing in any
examinations conducted by the University and from seeking admission
in any of the courses to be conducted by the University, no doubt
entails serious civil consequences. In these circumstances, the rule
of Audi Alteram Partem should have been followed by the
respondents. The principle that no man should be condemned unheard
and both sides must be heard in order to ensure fairness on the part
of the deciding authority or body before passing any order is well
known. A person against whom any action is sought to be taken which
entails civil consequences must have knowledge about the allegations/
charges/materials against him on the basis of which such a decision
is sought to be taken.”
If
the impugned orders dated 07.05.2011 are tested on the touchstone of
the principles of law enunciated in the above-quoted judgments, it
is clear that the petitioner has been visited with civil
consequences, without being afforded an opportunity of hearing, or a
chance to state his defence and controvert the allegations against
him. The Rule of Audi
Alteram Partem has, therefore, been
violated by the respondents.
For
the afore-stated reasons, the impugned orders dated 07.05.2011 (four
in number), issued in respect of Ronak Hospital and Ma Hospital,
Patan, are hereby quashed and set aside. It is open for respondent
No.2 to pass fresh orders after affording the petitioner a
reasonable and adequate opportunity of hearing, in accordance with
law.
It
is clarified that the Court has not touched upon any other
contention, that has been raised by the petitioner in the petition.
The impugned orders have been set aside solely on the ground that
they violate the principles of natural justice.
The
petition is partly allowed, in the above terms. Rule is made
absolute, accordingly. Parties to bear their own costs.
Direct
Service of this order is permitted.
[SMT.
ABHILASHA KUMARI, J.]
..mitesh..
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