The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.1866 of 2014 Dr. Bidyadhar Sahoo …. Petitioner Mr. A.K. Panda, Advocate -versus- State of Odisha & Others …. Opposite Parties Mr. H.K. Panigrahi, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 09.08.2023 05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. A.K. Panda, learned counsel appearing for the Petitioner and Mr. H.K. Panigrahi, learned Addl. Standing Counsel for the State. 3. The Petitioner has filed the present Writ Petition challenging the order punishment so passed against the Petitioner vide order dated 07.12.2013 under Annexure-15. 4. It is contended that the Petitioner while continuing as Eye Specialist in Deogarh District Headquarter Hospital, he retired from Government Service on attending the age of superannuation on 30.06.2007. But much after his retirement the proceeding was initiated against him vide // 2 // Memorandum dated 06.04.2009 under Annexure-6 inter alia with the following Articles of Charges:- “ Annexure-I Article of Charges Article-I Dr. Bidyadhar Sahu Retired Specialist in Ophthalmolgy D.H.H, Deogarh has committed the following irregularities. That disobedience of the orders of the superior authorities to gross willfully remaining absent which amounts negligence in govt. duties and lack of integrity. Thus the following articles of charges are framed against him for violation of Rules 3 & 4 of the Orissa Govt. servant conduct rules-1959 (i) (ii) (iii) (iv) Dereliction in duty. Disobedience of order of the superior authority Misconduct Lack of motivation in treatment of patients and mismanagement in Govt. work”. 4.1. Learned counsel for the Petitioner contended that the proceeding in question was initiated against the Petitioner with the allegations that while operating 13 cases on 30.09.2006 and 9 cases on 14.09.2006 as a Senior Eye Specialist, some of the patients when complained of complications, Petitioner proceeded on leave w.e.f. 20.09.2006. In spite of being asked to join, he never joined and violated the orders of his superior authority. 4.2. It is contended that the proceeding in question was initiated on the face of the report of the expert committee so available under Annexure-5. It is contended that when some of the persons who are operated with, made allegations of various complications, a committee was formed to inquire into Page 2 of 7 // 3 // the allegation. The Committee submitted report in favour of the Petitioner by holding that no responsibility can be fixed on the operating surgeon for the incident. On the face of such report available at Annexure-5, the proceeding was initiated against the Petitioner under Annexure-6 with the charges as indicated hereinabove. 4.3. In the proceeding the Enquiry Officer after due conduct of the enquiry, submitted his report vide Annexure-10 inter alia with the following finding :- “SUGGESTION:- As per the verification of records and statement of Dr. B. Sahoo the undersigned did not find any particular negligence in regards to the operation procedure etc. However the technical committee consisting of Prof. of Opthalmolgy opined against any responsibility to be fixed upon the operating surgeon. The CDMO, Deogarh has framed charges of negligence, disobedience of order of higher authority. But he had not asked one simple explanation of show cause before charge framing. The CDMO did not also refer him to the Medical Board during his illness or after resuming the duty. In the meantime Dr. B. Sahoo has retired from Govt. Service on 30.06.2007. During the period since incidence on 13.09.2006 to 30.06.2007 he had already undergone severe physical and mental torture and suffered a lot. Hence in the opinion of the undersigned, Dr. Bidyadhar Sahoo, Ex-Eye Specialist DHH Deogarh may be exonerated from the charges as he has already retired from Govt. Service since 30.06.2007”. 4.4. It is contended that even though the Enquiry Committee so constituted to enquire into the allegations as well as the enquiry officer submitted their reports in favour of the Petitioner, but the Disciplinary Authority-Opposite Party No.1 while issuing the 2nd show cause vide notice dated Page 3 of 7 // 4 // 09.07.2013 under Annexure-12 when differed with the finding of the enquiry officer by proposing punishment of 30% reduction of pension permanently, Petitioner submitted his reply vide Annexure-13. 4.5. It is contended that without proper appreciation of the stand taken in the reply and the report of the Enquiry Officer as well as report of the committee, Opposite Party No.1 imposed the order of punishment by directing for reduction of 30% pension permanently vide the impugned order dated 07.12.2013 under Annexure-15. 4.6. It is contended that since the Enquiry Officer as well as Committee did not find the Petitioner guilty of the charges, there was no occasion on the part of the Opposite Party No.1 to differ with the finding of the enquiry officer. 4.7. It is also contended that the Disciplinary Authority differed with the finding of the enquiry officer on the ground that two of the patients, out of those who were operated by the present petitioner have lost their eye sights and accordingly Opposite Party No.1 was constrained to differ with the finding. Learned Counsel for the Petitioner contended that no such documents showing loss of eye sight were enclosed either by the disciplinary authority while issuing the 2nd show cause or by the Opposite Party No.1 in the counter filed in the present case. It is accordingly contented that the ground on which Opposite Party Page 4 of 7 // 5 // No.1 differed with the finding of the enquiry officer that two of the patients have lost their eye sights and accordingly he is differing is not sustainable in the eye of law. Consequentially the order of punishment passed under Annexure-15 is also not sustainable. 4.8. In support of the aforesaid submission, Mr. Panda, relied on the decision of this Court passed in W.P.(C) No.9214 of 2008 (Gobinda Sahoo vs. Managing Director, OFDC Ltd., and others) this Court relying on the decision of the Hon’ble Apex Court in various cases held as follows in Para-11:-
Decision
“11. In view of the above settled position of law, which is squarely applicable to the present context; since the disciplinary authority has not assigned any reason, while differing with the finding of the enquiry officer and imposing penalty for recovery of Rs.62,821/-, and the appellate authority has upheld the same also without assigning any reason; the order dated 27.09.2007 in Annexure-1 passed by the disciplinary authority and the order dated 03.10.2008 in Annexure-8 passed by the appellate authority are liable to be quashed and are accordingly quashed”. 4.9. It is accordingly contended that the impugned order of punishment is liable for interference of this Court. 5. Mr. H.K. Panigrahi, learned Addl. Standing Counsel for the State though supported the impugned order basing on the stand taken in the counter affidavit, but conceded that no document is enclosed to the counter showing that two of the patients have lost their eye sights and that being the reason for the Page 5 of 7 // 6 // Opposite Party No.1 to differ with the finding of the enquiry officer. 5.1. Mr. Panigrahi also fairly contended that no such document was also produced during enquiry and no document was also provided by Opposite Party No.1 while filing the counter affidavit in the present case. 6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that with regard to the alleged eye surgery undertaken by the Petitioner on 13/14.09.2006, a Committee was constituted to inquire into the allegation made against the Petitioner by some of the patients regarding post operation complications. The Committee as found from Annexure-5, clearly held that no responsibility can be fixed on the Petitioner for the said incident. On the face of such report of the Committee as available under Annexure-5, when the proceeding in question was initiated against the Petitioner on 06.04.2009 under Annexure-6, the enquiry officer while submitting the report on 4.12.2012 also opined that the Petitioner may be exonerated from the charges. 6.1. On the face of such report of the Committee and of the enquiry officer, Opposite Party No.1 as the Disciplinary Authority differed with the finding on the ground that two of the patients since have lost their eye sights, Opposite Party No.1 is differing with the view of the Enquiry Officer. This Court finds that no such Page 6 of 7 // 7 // document is available in the case record nor it has been produced by Opposite Party No.1 while filing the counter showing loosing eye sight of two nos. of patients. In absence of any such document showing that two of the patients have lost their eye sights, this Court is of the view that the ground on which Opposite Party No.1 differed with the finding of the enquiry officer is not acceptable and it cannot be treated as a ground of disagreement. Therefore, placing reliance on the decision as cited (supra), this Court is inclined to interfere with the impugned order of punishment so passed under Annexure-15. While interfering with the same, this Court quash the order. 7. The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: ... Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Aug-2023 14:14:39 Page 7 of 7