{"id":44865,"date":"2011-08-01T00:00:00","date_gmt":"2011-07-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jayesh-vs-state-on-1-august-2011"},"modified":"2016-08-14T06:25:40","modified_gmt":"2016-08-14T00:55:40","slug":"jayesh-vs-state-on-1-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jayesh-vs-state-on-1-august-2011","title":{"rendered":"Jayesh vs State on 1 August, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Jayesh vs State on 1 August, 2011<\/div>\n
Author: Abhilasha Kumari,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/6792\/2011\t 16\/ 16\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 6792 of 2011\n \n\n \n\n\n \n\n \n=========================================================\n\n \n\nJAYESH\nB MODI - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nMEHUL SHARAD SHAH for\nPetitioner(s) : 1, \nMR RASHESH RINDANI, LEARNED ASSISTANT\nGOVERNMENT PLEADER for Respondent(s) : 1, \nMR HS MUNSHAW for\nRespondent(s) :\n2, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHON'BLE\n\t\t\tSMT. JUSTICE ABHILASHA KUMARI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 01\/08\/2011 \n\n \n\n \n \n\n\n \n\n \n \nORAL\nORDER<\/pre>\n
Rule.\n<\/p>\n
\tMr.Rashesh Rindani, learned Assistant Government Pleader waives
\n\tservice of notice of Rule on behalf of respondent No.1 and
\n\tMr.H.S.Munshaw, learned advocate waives service of notice of Rule on
\n\tbehalf of respondent No.2.\n<\/p>\n
By
\n\tpreferring this petition under Article 226 of the Constitution of
\n\tIndia, the petitioner has made the following prayers:-\n<\/p>\n
“(A)\tto
\n\tadmit this petition;\n<\/p>\n
(B)\tto
\n\tissue a writ of certiorari or a writ of mandamus or any other
\n\tappropriate writ, order or direction, quashing and setting aside the
\n\timpugned order dated 7.5.2011, communicated on 16.5.2011, passed by
\n\trespondent No.2, by which the Memorandum of Understanding executed
\n\tbetween the petitioner and the respondents has been calcelled, and
\n\tfurther directing the respondents to continue the MOU, which is, as
\n\tsuch, renewed upto March, 2012;\n<\/p>\n
(C)\tto
\n\tissue a writ of certiorari, or a writ of mandamus or any other
\n\tappropriate writ, order or direction, quashing and setting aside the
\n\timpugned order dated 7.5.2011, communicated on 16.5.2011, passed by
\n\trespondent No.2, by which refund of the amount paid by the
\n\trespondents to the petitioner for rendering medical services to
\n\tbelow poverty line women, is claimed\/ sought from Ma Hospital and
\n\tRonak Hospital of the petitioner;\n<\/p>\n
(D)\tPending
\n\tadmission hearing and final disposal of this petition, Your Lordship
\n\tmay be pleased to stay execution, operation and implementation of
\n\tthe orders dated 7.5.2011 in respect of recovery of the amount as
\n\twell as cancellation of MOU by the respondents and be further
\n\tpleased to direct the respondents to continue with the MOU, which
\n\tis, as much, renewed upto March, 2012.\n<\/p>\n
(E)\tto
\n\tpass such other and further orders as may be just and necessary in
\n\tthe circumstances of the case.”\n<\/p>\n
The
\n\tfacts of the case, relevant for the decision of this petition are
\n\tthat, the petitioner is a Doctor, and is doing private practise as a
\n\tGynaecologist, at Patan. The Government evolved two schemes known as
\n\t” Chiranjivi Yojna” and “Balsakha Yojna”,
\n\twith a view to reducing the mortality rate of infants and expectant
\n\tmothers during deliveries. Under the Chiranjivi Yojna, the services
\n\tof private Gynaecologists are taken by the Government and an amount
\n\tof Rs.2800\/- is paid to the concerned Doctor. The said Doctor has to
\n\tverify the BPL Card or certificate issued by the Talati-cum-Mantri
\n\tto the expectant mother, and only then her case is to be registered,
\n\twithout charging any fee and delivery is to be performed after such
\n\tregistration. If the expectant mother is accompanied by an ‘Asha’
\n\tworker or Anganwadi worker from her village, such worker is to be
\n\tpaid remuneration of Rs.50\/-. If the patient hails from a remote
\n\tplace, she would be paid Rs.200\/- towards transportation, and if the
\n\tpatient is from Patan City itself, an amount of Rs.100\/- is to be
\n\tpaid to her towards transportation charges. As per the Balsakha
\n\tYojna, as soon as the birth of a child takes place, a Paediatrician
\n\tis called to conduct a check-up of the newly-born child. According
\n\tto the petitioner, two Paediatricians, namely, Dr.Hiren Patel and
\n\tDr.Divyesh Shah are associated with the Hospitals of the petitioner.
\n\tThe petitioner entered into a Memorandum of Understanding with
\n\trespondent No.2, Mission Director, District Health Mission and
\n\tDistrict Health Officer, District Panchayat, Patan, with respect to
\n\tRonak Hospital and Ma Hospital, run by him, under the Chiranjivi
\n\tYojna and Balsakha Yojna. Both the said hospitals are located at
\n\tPatan. According to the petitioner, during the period with effect
\n\tfrom April 2010 to October 2010, the petitioner conducted 686
\n\tdeliveries at Ronak Hospital, Patan, and 357 deliveries at Ma
\n\tHospital, Patan, and other branch hospitals, run by him in district
\n\tPatan. The petitioner submitted vouchers with respect to the same to
\n\tthe District Health Officer, Patan, and received the payment.
\n\tAccording to the petitioner, he has rendered services in remote
\n\tvillages such as Vayad, Harij and Chanasma, where no proper medical
\n\tfacilities are available, and deliveries are being conducted by him
\n\tin the Hospitals run by him at the said places. A complaint came to
\n\tbe made against the petitioner, alleging that he has conducted
\n\tdeliveries at branch hospitals, other than those located at Patan,
\n\tfor which the Memorandum of Understanding has been entered into.
\n\tAfter an inquiry, the impugned order dated 07.05.2011 was passed,
\n\tdirecting the petitioner to refund the amounts received by him as
\n\tremuneration for conducting delivery cases at places other than
\n\tPatan. The petitioner has been directed to refund Rs.6,30,635\/-
\n\tunder the Chiranjivi Yojna and Rs.4,70,400\/- under the Balsakha
\n\tYojna, totalling to Rs.11,08,035\/- from Ma Hospital. Further the
\n\tpetitioner has been directed to refund Rs.12,60,765\/- from Ronak
\n\tHospital. The Memorandum of Understanding executed by the
\n\trespondents with Ronak Hospital and Ma Hospital, run by the
\n\tpetitioner has also been cancelled and the petitioner has been
\n\tdirected to pay the above mentioned amount, within a period of 15
\n\tdays. It is the case of the petitioner that the impugned orders
\n\tdated 07.05.2011 (four in number) have been passed, without
\n\taffording an opportunity of hearing to the petitioner. Aggrieved
\n\tthereby, the petitioner has approached this Court, by way of the
\n\tpresent petition.\n<\/p>\n
Notice
\n\twas issued in the petition on 03.06.2011, and it was directed that
\n\tno coercive steps be taken against the petitioner, by the
\n\trespondents. The affidavit-in-reply has been filed on behalf of
\n\trespondent No.2, refuting the contentions raised in the petition,
\n\tand asserting that, the petitioner did not co-operate during the
\n\tcourse of inquiry by a team of two Doctors, therefore, there is no
\n\tviolation of the principles of natural justice have been violated.\n<\/p>\n
Mr.Mehul
\n\tSharad Shah, learned advocate for the petitioner, has submitted that
\n\tthe impugned orders dated 07.05.2011 have been passed in total
\n\tviolation of the principle of natural justice, as no opportunity of
\n\thearing has been afforded to the petitioner. It is submitted  that
\n\t90% of the work of the petitioner is based on the Chiranjivi Yojna
\n\tand Balsakha Yojna. The petitioner has been directed to refund a
\n\ttotal amount of Rs.22 Lakhs, within a period of 15 days from the
\n\treceipt of the impugned order, which amounts to infliction of civil
\n\tconsequences upon the petitioner. No Show Cause Notice has been
\n\tissued to the petitioner and neither has an opportunity of hearing
\n\tbeen afforded to him. Therefore, on this ground alone, and without
\n\tprejudice to other contentions, the impugned orders are required to
\n\tbe quashed and set aside.\n<\/p>\n
On
\n\t26.07.2011, Mr.H.S.Munshaw, learned advocate for respondent No.2,
\n\thad been requested to take instructions whether a Show Cause Notice
\n\thad been issued and an opportunity of hearing had been afforded to
\n\tthe petitioner before passing the impugned orders. Today, during the
\n\tcourse of hearing, Mr.H.S.Munshaw, learned advocate, has tendered a
\n\tcopy of communication dated 29\/30.07.2011, of respondent No.2,
\n\taddressed to him, wherein respondent No.2 has communicated that all
\n\tfour orders dated 07.05.2011, which are impugned in the petition,
\n\twith respect to Ronak Hospital and Ma Hospital, Patan, shall be
\n\twithdrawn and fresh orders shall be passed, after affording the
\n\tpetitioner an opportunity of being heard.\n<\/p>\n
Having
\n\theard learned counsel for the respective parties and in view of the
\n\tsubmissions by them as well as the contents of communication dated
\n\t29\/30.07.2011, it clearly emerges that the impugned orders dated
\n\t07.05.2011, have been passed without issuance of a Show Cause Notice
\n\tto the petitioner and without affording him an opportunity of
\n\thearing. In view of the settled legal position that shall be
\n\treferred to herein-below, the impugned orders cannnot be sustained,
\n\tas they have been passed in violation of the principles of natural
\n\tjustice.\n<\/p>\n
In
\n\tthe case of Malavkumar Arunbhai Patel Vs. Sardar Patel University
\n\tand Ors. reported in (2006) 3 G.L.H. 695, this Court, relying
\n\tupon certain judgments of the Apex Court, has held as below :\n<\/p>\n
“23.\tAny
\naction taken by an administrative or quasi judicial authority which
\nentails civil consequences should only be taken after complying with
\nthe principles of natural justice. Although the principles of natural
\njustice cannot be put into a  strait-jacket formula, it cannot be
\ndisputed that the doctrine of natural justice exists not only to
\nsecure justice but also to prevent the miscarriage of justice. It is
\ntrue that strict rules of evidence do not apply  in proceedings such
\nas those which took place in the case of the petitioner  before the
\n“Unfair Means Committee”. However, even the requirement
\nof preponderance of probabilities has not been adhered to since the
\nimpugned Notification dated October 4,2000 as well as the Minutes of
\nthe proceedings which led to the passing of the impugned order do not
\ndisclose the material which was available with the committee which
\npointed out the involvement of the petitioner in the incident. In
\nthat view of the matter, the impugned order is also not a speaking
\none and does not disclose the reasons or the grounds on which the
\ndecision to permanently debar the petitioner  has been taken.\n<\/p>\n
24.\tIn
\nA.K.Kraipak v. Union of India,<\/a>
\nreported in AIR 1970 SC 150 the aim and relevance of the
\nprinciples of natural justice have been clearly enunciated by the
\nConstitution Bench of the Supreme Court in para 20 thereof, which
\nreads as under:\n<\/p>\n
“20.\n<\/p>\n
\tThe aim of the rules of natural justice is to secure justice or to
\n\tput it negatively to prevent miscarriage of justice. These rules can
\n\toperate only in areas not covered by any law validly made. In other
\n\twords they do not supplant the law of the land but supplement it.
\n\tThe concept of natural justice has undergone a great deal of change
\n\tin recent years. In the past it was thought that it included just
\n\ttwo rules, namely (1) no one shall be a judge in his own cause (Nemo
\n\tdebet esse judex propria causa), and (2) no decision shall be given
\n\tagainst a party without affording him a reasonable hearing (Audi
\n\talteram partem). Very soon thereafter a third rule was envisaged and
\n\tthat is that quasi-judicial enquiries must be held in good faith,
\n\twithout bias and not arbitrarily or unreasonably. But in the course
\n\tof years many more subsidiary rules came to be added to the rules of
\n\tnatural justice. Till very recently it was the opinion of the courts
\n\tthat unless the authority concerned was required by the law under
\n\twhich it functioned to act judicially there was no room for the
\n\tapplication of the rules of natural justice. The validity of that
\n\tlimitation is not questioned. If the purpose of the rules of natural
\n\tjustice is to prevent miscarriage of justice one fails to see why
\n\tthose rules should be made inapplicable to administrative enquiries.
\n\tOften times it is not easy to draw the line that demarcates
\n\tadministrative enquiries from quasi-judicial enquiries. Enquiries
\n\twhich were considered administrative at one time are now being
\n\tconsidered as quasi-judicial in character. Arriving at a just
\n\tdecision is the aim of both quasi-judicial enquiries as well as
\n\tadministrative enquiries. An unjust decision in an administrative
\n\tenquiry may have more far reaching effect than a decision in a
\n\tquasi-judicial enquiry. As observed by this Court in Suresh Koshy
\n\tGeorge v. University of Kerala, Civil Appeal No.<\/a> 990 of 1968, D\/-
\n\t15-7-1968 = (AIR 1969 SC 198) the rules of natural justice are not
\n\tembodied rules. What particular rule of natural justice should apply
\n\tto a given case must depend to a great extent on the facts and
\n\tcircumstances of that case, the frame-work of the law under which
\n\tthe enquiry is held and the constitution of the Tribunal or body of
\n\tpersons appointed for that purpose. Whenever a complaint is made
\n\tbefore a court that some principle of natural justice had been
\n\tcontravened the court has to decide whether the observance of that
\n\trule was necessary for a just decision on the facts of that case.”\n<\/p>\n
25.\tFurther
\nin Kumaon Mandal Vikas Nigam
\nLtd. v. Girja Shankar Pant,<\/a> reported in (2001)1 SCC 182,
\nthe Supreme Court has held as under in paragraphs 1 and 2 of the
\nreported judgment:\n<\/p>\n
“Since
\nthe decision of this Court in Kraipak’s case (A. K. Kraipak v. Union
\nof India)<\/a> one golden rule that stands firmly established is that the
\ndoctrine of natural justice is not only to secure justice but to
\nprevent miscarriage of justice. What, however, does this doctrine
\nexactly mean? Lord Reid about four decades ago in Ridge v. Baldwin
\nvery succinctly described it as not being capable of exact definition
\nbut what a reasonable man would regard as a fair procedure in
\nparticular circumstances – who then is a reasonable man – the man on
\nthe clapham omnibus?  In India, however, a reasonable man cannot but
\nbe a common man similarly placed. The effort of Lord Reid in Ridge v.
\nBaldwin  in not attributing a definite meaning to the doctrine but
\nattributing it to be representing a fair procedure still holds good
\neven in the millennium year. As a matter of fact this Court in the
\ncase of Keshav Mills Co. Ltd. v. Union of India  upon reliance on the
\nattributes of the doctrine as above stated as below (SCC p.387,para\n<\/p>\n
8)<\/p>\n
“8.\n<\/p>\n
The second question, however, as to what are the principles of
\nnatural justice that should regulate an administrative act or order
\nis a much more difficult one to answer. We do not think it either
\nfeasible or even desirable to lay down any fixed or rigorous
\nyard-stick in this manner. The concept of natural justice cannot be
\nput into a strait-jacket. It is futile, therefore, to look for
\ndefinitions or standards of natural justice from various decisions
\nand then try to apply them to the facts of any given case. The only
\nessential point that has to be kept in mind in all cases is that the
\nperson concerned should have a reasonable opportunity of presenting
\nhis case and that the administrative authority concerned should act
\nfairly, impartially and reasonably. Where administrative officers are
\nconcerned, the duty is not so much to act judicially as to act
\nfairly. See, for instance, the observations of Lord Parker in  H. K.
\n(an infant), In  re.  It only means that such measure of natural
\njustice should be applied as was described by Lord Reid in Ridge v.
\nBaldwin case  as ‘insusceptible of exact definition but what a
\nreasonable man would regard as a fair procedure in particular
\ncircumstances’. However, even the application of the concept of
\nfair-play requires real flexibility. Everything will depend on the
\nactual facts and circumstances of a case. As Tucker, L.J observed in
\nRussell v. Duke of Norfolk:\n<\/p>\n
“The
\nrequirements of natural justice must depend on the circumstances of
\nthe case, the nature of the enquiry, the rules under which the
\ntribunal is acting, the subject-matter that is being dealt with and
\nso forth.”\n<\/p>\n
2.\tWhile
\nit is true that over the years there has been a steady refinement as
\nregards this particular doctrine, but no attempt has been made and if
\nwe may say so, cannot be made to define the doctrine in a specific
\nmanner or method. Strait-jacket formula cannot be made applicable but
\ncompliance with the doctrine is solely dependent upon the facts and
\ncircumstances of each case. The totality of the situation ought to be
\ntaken note of and if on examination of such totality, it comes to
\nlight that the executive action suffers from the vice of
\nnon-compliance with the doctrine, the law courts in that event ought
\nto set right the wrong inflicted upon the person concerned  and to do
\nso would be a plain exercise of judicial power. As a matter of fact
\nthe doctrine is now termed as a synonym of fairness in the concept of
\njustice and stands as the most-accepted methodology of a governmental
\naction.”\n<\/p>\n
26.\tIt
\nis now an accepted proposition of law that any statutory body which
\nis entrusted by statute with discretion, must act fairly. It does not
\nmatter whether its functions are described as judicial or
\nquasi-judicial on the one hand, or as administrative on the other.
\nEven an administrative order, which involves civil consequences must
\nbe made consistently with the rules of natural justice. Although the
\nexpression ‘civil consequences’ has not been defined anywhere, the
\nobservation made in Mohinder
\nSingh Gill v. Chief Election Commissioner, (1978) 1 SCC 405
\nat para-66 on page 440 is relevant in this context and reads as
\nbelow:\n<\/p>\n
“What
\nis civil consequence, let us ask ourselves, by passing verbal
\nbooby-traps? ‘Civil consequences’ undoubtedly cover infraction of not
\nmerely property or personal rights but of civil liberties material
\ndeprivation and non-pecuniary damages. In its comprehensive
\nconnotation, everything that affects a citizen in his civil life
\ninflicts a civil consequence”\n<\/p>\n
27.\tThe
\npermanent debarring of the  petitioner from appearing in any
\nexaminations conducted by the University and from seeking admission
\nin any of the courses to be conducted by the University, no doubt
\nentails serious civil consequences. In these circumstances, the rule
\nof Audi  Alteram Partem should have been followed by the
\nrespondents. The principle that no man should be condemned unheard
\nand both sides must be heard in order to ensure fairness on the part
\nof the deciding authority or body before passing any order is well
\nknown. A person against whom  any action is sought to  be taken which
\nentails civil consequences must have knowledge about the allegations\/
\ncharges\/materials against him on the basis of which such a decision
\nis sought to be taken.”\n<\/p>\n
If
\n\tthe impugned orders dated 07.05.2011 are tested on the touchstone of
\n\tthe principles of law enunciated in the above-quoted judgments, it
\n\tis clear that the petitioner has been visited with civil
\n\tconsequences, without being afforded an opportunity of hearing, or a
\n\tchance to state his defence and controvert the allegations  against
\n\thim. The Rule of Audi
\n\tAlteram Partem has, therefore, been
\n\tviolated by the respondents.\n<\/p>\n
For
\n\tthe afore-stated reasons, the impugned orders dated 07.05.2011 (four
\n\tin number), issued in respect of Ronak Hospital and Ma Hospital,
\n\tPatan, are hereby quashed and set aside. It is open for respondent
\n\tNo.2 to pass fresh orders after affording the petitioner a
\n\treasonable and adequate opportunity of hearing, in accordance with
\n\tlaw.\n<\/p>\n
It
\n\tis clarified that the Court has not touched upon any other
\n\tcontention, that has been raised by the petitioner in the petition.
\n\tThe impugned orders have been set aside solely on the ground that
\n\tthey violate the principles of natural justice.\n<\/p>\n
The
\n\tpetition is partly allowed, in the above terms. Rule is made
\n\tabsolute, accordingly. Parties to bear their own costs.\n<\/p>\n
\tDirect
\nService of this order is permitted.\n<\/p>\n
[SMT.\n<\/p>\n
ABHILASHA KUMARI, J.]<\/p>\n
..mitesh..\n<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
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Gujarat High Court Jayesh vs State on 1 August, 2011 Author: Abhilasha Kumari, Gujarat High Court Case Information System Print 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) ========================================================= Appearance […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-44865","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nJayesh vs State on 1 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jayesh-vs-state-on-1-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jayesh vs State on 1 August, 2011 - 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