Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Dr. Subiman Saha And Anr on 18 February, 2019
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Bibek Chaudhuri
W.P.S.T. 176 of 2016
State of West Bengal & ors.
v.
Dr. Subiman Saha and anr.
with
W.P.S.T. 177 of 2016
State of West Bengal & ors.
v.
Dr. Subiman Saha and anr.
For the petitioners : Mr. Kishore Dutta, Advocate General,
Ms. Chaitali Bhattacharya, Advocate,
Mr. K.M. Hossain, Advocate.
For the respondent no.1 : Mr. Bikash Ranjan Neogi, Advocate,
Mr. Gobinda Chaudhuri, Advocate,
Ms. A Neogi, Advocate.
Heard on : January 16, 17, 21 and 28, 2019
Judgment on : February 18, 2019
DIPANKAR DATTA, J.:
1. These writ petitions, having a common genesis, involve the same parties. The same were naturally heard together and we propose to dispose it of by this common judgment and order.
2. Before we refer to the subject matter of challenge in these writ petitions, it would be necessary to take a few steps backward in point of time and ascertain the facts leading to initiation of litigation before the West Bengal Administrative Tribunal (hereafter the tribunal) by the respondent no.1 (hereafter Dr. Saha).
3. By an order dated June 19, 2000, the Principal Secretary to the Government of West Bengal, Labour Department placed Dr. Saha under suspension with immediate effect and until further orders, in contemplation of an inquiry against him for gross negligence of duty and misconduct. At the relevant time, Dr. Saha was posted as the Medical Officer, Blood Bank, ESI Hospital, Manicktola, Kolkata. A charge-sheet dated August 25, 2000 followed soon thereafter. The articles of charge framed against him, read as follows:
"Article of Charge-I That Dr. Subiman Saha, Ex-M.O. Blood Bank, ESI Hospital, Maicktala, committed gross blunder in detecting blood group of the deceased patient. It is highly irregular and unbecoming on the part of a responsible physician like him.
Article of Charge-II Consequent upon wrong determination of Blood Group and RH factor of the patient Ku. Soma Porey by the said Dr. Subiman Saha, an unusual delay in transfusion of blood was caused. As a result, the patient breathed her last on 14.6.2000. The said Dr. Subiman Saha committed serious misconduct and created unnecessary harassment to the patient party. Article of Charge-III That Dr. Subiman Saha, committed gross negligence of duty in determining wrong blood group and RH factor in respect of deceased patient. Such lapse of treatment of Dr. Subiman Saha acted irresponsibility and lack of devotion to duty as a public servant."
4. The charge-sheet in its annexure-III listed the particular documents by which the charges framed against Dr. Saha were proposed to be sustained and annexure-IV contained the list of witnesses who were likely to adduce evidence on behalf of the prosecution. Dr. Saha replied to the charge-sheet on August 13, 2001. At the outset, he ventilated a grievance that despite his repeated prayers photo copies of the documents listed in annexure-III of the charge-sheet had not been furnished to him and, therefore, the reply was being submitted by him without prejudice to his rights and contentions and reserving his right to submit further additional written defence. Certain portions of the reply which could be relevant for the purpose of decision on these writ petitions are quoted below:
"*** I also submit that, faulty determination of Rh. Type of Blood is a multifactorial technical error for which I cannot be held responsible solely. I submit that in the instant case the blood grouping was made correctly but due to multifactorial technical reasons and other aberrant technical parameters Rh. Typing of the Blood could have been fallacious. In that instant case while I was determining the blood grouping with the help at a glass slide only without microscope and even without Khan tube (for Coomb's Test), in absence of any technical assistant in a Blood Bank at 12' O' Clock in the midnight. In such situation, there are many possibilities of human error in the report regarding Rh. Typing without any willful negligence on the part of the concern Doctor.
I was not assisted by any technical personnel and Tube confirmation (Coomb's Test) could not be done due to nonavailability of equipment like Microscope, Khan Tube, Coomb's reagent etc. during that very moment. I submit humbly that I cannot be held responsible for lack of such essential infrastructure which the blood bank in-charge could not provide in spite of our requests.
*** In the article of charges it has been alleged that due to delay in transfusion of Blood, delay in treatment was caused, resulting unfortunate death of the patient.
*** I also submit that since no post mortem examination was conducted by which it could be reasonably ascertained that the patient had died out of delayed blood transfusion.
I am to submit further that the sex of the patient (Female, Aged 12 years), Marrital Status (Unmarried), recoverable disease (Pubertal Menorrhagia), and considering her future possibility of pregnancy and so as to prevent the chance of haemolytic disease of the newborn: - it was prudent on my behalf to give the diagnosis 'Rh' Negative.
When there is dilema regarding clumping of R.B.Cs and to prevent future Immunosansitization, (As because immuno-incompatibility occurs when 'Rh' positive blood given to 'Rh' Negative person; but the Reverse is not True) it is justified to labell the patient 'Rh' Negative.
Under the circumstances the allegation of lack of sense of responsibility and devotion to duty and wilful disregard of medical ethics cannot and does not arise at all.
***"
5. The inquiring authority submitted his (undated) report of inquiry holding Dr. Saha guilty of article of charge III only. Articles of charge I and II were held not to have been proved. Although it was no part of the duty of the inquiring authority to propose any punishment, he proposed that Dr. Saha may be transferred to another ESI hospital in the State as a token punishment. The report was placed before the disciplinary authority of Dr. Saha, whereupon an order appears to have been recorded by such authority on June 26, 2002. Based on the conclusions drawn by him, the disciplinary authority proposed to impose upon Dr. Saha the penalty of removal from service which may not amount to disqualification for future employment. A period of four weeks was granted to enable Dr. Saha to submit his representation on the proposed punishment.
6. It is considered absolutely necessary at this stage to reproduce below the reasons for which the disciplinary authority of Dr. Saha arrived at the conclusion that Dr. Saha was guilty of such conduct that he had rendered himself unsuitable to be retained in Government service. Relevant portions from such order dated June 26, 2002 read as follows:
"*** The Inquiring Authority held that Dr. Saha was guilty of committing serious mistake in determining the Rh. Factor in the blood of the patient. It was observed by the I.A. that this error ultimately led to the death of the patient. I have carefully gone through the report of I.A. and examined all evidences and depositions on record and the written defence of Dr. S. Saha. I made a reference to the Suptd., Manicktola E.S.I. Hospital to ascertain whether instruments and facilities required for conducting Coombs test were available to Dr. Saha at the relevant point of time or not. Suptd. Of the hospital and M.O. in charge of the ESI Blood Bank vide Ref. No. EH/MN/Con/1843 dt.8.6.2002, of the Superintendent informed that facilities required for conducting Coombs Test were available at the hospital at that time. M.O in charge of the Blood Bank further mentioned that one GDA on duty was available to Dr. Saha for assisting him and observed that Dr. Saha could have sought the assistance of the M.O. in charge of the Blood Bank and pathologists available at the hospital, in conducting blood test of Soma Porey, if he felt that such assistance was necessary. I had also made a reference to the Director of Medical Education, Govt. of West Bengal for obtaining expert opinion on the contentions of Dr. Saha that 'faulty determination of Rh. type of blood is the multifactorial technical error for which I cannot be held responsible solely. I have submitted that in the instant case the blood grouping was made correctly but due to multi factorial technical reason and other aberrant technical parameters Rh. typing of the blood could have been fallacious.' The views expressed by one of the witnesses during the conduct of the departmental proceedings case that 'chances are always there to have false negative reports' was also referred to the expert through the Director of Medical Education for comments. The expert views of Prof. U. Chowdhury, Head of the Department of Haematology have been communicated to me by the Dir. of Medical Edn., vide his D.O. No. D.M.E.--- 134/2002 dt. 10.6.2002. It has been observed by Prof. Chowdhury 'It is unusal that Rh. type of a patient will change in a very short period although it is reported that blood group may change in case of malignancy'. There is obviously, no reason to suspect that Soma Porey was suffering from any malignancy related disease.
I would endorse the views of the Inquiring Authority that the evidence gathered during the course of the Departmental Proceedings case would clearly establish that the delinquent officer had committed serious mistakes in determining the Rh. type of Soma Porey. It is almost an admitted fact that had the Rh. type been determined correctly the doctors attending to Soma could have arranged emergency blood transfusion in time. Km. Soma ultimately expired of 'acute left ventricular failure in a case of severe anaemia'. It is not necessary for me to speculate at this stage whether some other cause for the death of the patient was there or not. The facts of the case would suggest that the delay in arranging blood supply had exposed the patient to life risks. It is also not required to form an opinion on whether the doctors at the Central Blood Bank of the State Govt. had done what was expected of them or not. This is essentially an enquiry into charges levelled against Dr. Saha. I also refrain from entering into the debate if it was desirable for the doctors at the Manicktola ESI Hospital to try a combination of different groups of blood on Km. Soma or not to save her life. In view of what has been discussed in above paragraphs I accept the findings of the I.A. The conduct of the delinquent officer was unbecoming that of responsible State Govt. officers. The matter deserves to be viewed very seriously because the lapses on the part of Dr. Subman Saha in all probability, led to the death of a teenager, or at least exposed her grave life risks. I propose that Dr. Subman Saha be removed from service with stipulations that award of this penalty may not amount to disqualification for future employment."
(underlined for emphasis by us) We shall deal with the aforesaid extract at a later part of this judgment.
7. By an order dated July 4, 2002, the disciplinary authority of Dr. Saha called upon him to submit his response to the proposed punishment. The response of Dr. Saha, which is dated August 16, 2002 and spread over a dozen pages, reflects his defence as to why the report of the inquiring authority should not be accepted and also as to why he should not be punished, as proposed. Since Dr. Saha was recruited in State service pursuant to a recommendation made by the West Bengal Public Service Commission (hereafter the PSC) and it was perceived that the opinion of the PSC ought to be obtained before imposing any penalty on him, the Officer-on-Special Duty and ex-officio Deputy Secretary, Labour Department vide memo dated December 9, 2002 sought for the opinion of the PSC in regard to the proposed penalty of removal from service.
8. At or about the time the State had sought for the opinion of the PSC, Dr. Saha moved the tribunal for the first time by presenting O.A. 1122 of 2002. In such application, he prayed for setting aside/quashing of the charge-sheet, the inquiry proceedings and the show-cause notice proposing punishment dated July 4, 2002. Such prayers had been made mainly on the ground that copy of the inquiry report had not been furnished to Dr. Saha and that there were several other infirmities in the conduct of the inquiry itself, as pleaded in the application.
9. O.A. 1122 of 2002 was finally heard by the tribunal on August 5, 2009. The tribunal recorded Dr. Saha having filed his reply to the second show-cause notice as well as an additional reply, after receiving the copy of the inquiry report. It was of the view that with furnishing of the report of inquiry, one part of Dr. Saha's grievance had been taken care of. However, regarding the objection raised by Dr. Saha in regard to the validity of the proceedings, the tribunal was of the further view that the disciplinary authority should seriously apply his independent mind and thereafter record the final order. Taking note of the fact that Dr. Saha would have a statutory right of appeal, should the disciplinary authority impose penalty against him, the tribunal disposed of the application recording that the final order must be passed after considering the reply and the additional reply submitted by Dr. Saha, within a period of six months, whereupon copy of the order must be served on Dr. Saha. Liberty of Dr. Saha to pursue his statutory right of appeal was reserved. The concluding paragraph of the order records that the learned advocate for Dr. Saha had prayed for liberty to file the additional reply, if the same had not been filed before the disciplinary authority on any earlier occasion. Such prayer was granted and two months' time was given to Dr. Saha to file his reply without fail.
10. Though the said order dated August 5, 2009 was passed in the presence of the learned advocate for the State, it does not appear therefrom that any reference was made to the letter dated December 9, 2002 by which the opinion of the PSC was sought in regard to the proposed penalty. We are left to wonder as to how the State could omit, while addressing the tribunal, to bring such vital fact of the PSC not having furnished its opinion despite lapse of seven years.
11. Although the tribunal by its order dated August 5, 2009 did not give liberty to Dr. Saha to file a fresh additional reply and it was only the earlier additional reply that Dr. Saha had prepared which could be submitted before the disciplinary authority, Dr. Saha misconstrued the order of the tribunal and submitted a fresh additional reply dated August 24, 2009.
12. Despite receipt of the additional reply dated August 24, 2009 referred to above, no positive step was taken by the State to ensure conclusion of the disciplinary proceeding initiated against Dr. Saha. Pertinently, the order of suspension had not been revoked and Dr. Saha continued to remain under suspension and survived on the subsistence allowance that was being provided to him for over a decade.
13. On or about May 12, 2011, Dr. Saha initiated the second round of litigation before the tribunal by presenting O.A. 581 of 2011. The main prayer in such application reads as follows:
"A. That Your Lordships be graciously pleased to direct the respondents, each one of them, their servants, agents and subordinates, to reinstate the applicant after revoking/withdrawing the decade long suspension order and allow all admissible pay and allowances to him with usual arrears, annual increments and all service benefits including fixation of pay as admissible, treating the rele4vant Departmental proceeding against the applicant as imperative and infructuous as the authorities failed and neglected to pass any final order in the relevant proceeding within the time limit filed by the Hon'ble Tribunal on 05.08.2009 in O.A. No. 1122 of 2009.
B. To issue direction upon the respondent to allow the applicant 12% interest on all outstanding salary, and dues in respect of inrements and arrears as admissible from the date of accrual of such dues till final payment."
14. This application was contested by the State by filing a short reply affidavit.
Paragraphs (iii) and (iv) of the reply affidavit are quoted below:
"iii) That, over the issue a departmental proceeding was started and applicant was suspended from service. The applicant filed cases one after another and in O.A. 1112/2002 between Dr. Subiman Saha Vs State of West Bengal the Hon'ble West Bengal Administrative Tribunal passed an order on 05/08/2009 directing the authority to pass the final order of the departmental proceeding. The state Respondent therefore undertook to complete the proceeding for passing the final order.
iv) That in compliance to the order dated 05/08/2009 passed by Hon'ble West Bengal Administrative Tribunals the department proceeding was concluded after observing all the formalities. Principal of natural Justice was also followed. The matter has been referred to P.S.C. W.B. for obtaining their views and anxiously waiting for the reply."
15. The deponent of the reply affidavit was none other than the Director, ESI (W.B.), MB Scheme, West Bengal. Such deponent, apart from a cursory reference to the fact that the matter had been referred to the PSC for obtaining its opinion, did not indicate what steps he or his office had taken over the last several years to activate the PSC.
16. In his rejoinder affidavit, Dr. Saha referred to the fact that the tribunal while disposing of O.A. 1122 of 2002 had granted six months' time for recording of the final order in the disciplinary proceeding, yet, the final order had not been passed and that over the period of time the disciplinary proceeding were pending against him he has not only been subjected to acute final stringency but also to social indignity so much so that even before suffering any final order of punishment, he had already been penalized by not being allowed to serve the State.
17. In due course of time, O.A. 581 of 2011 was listed for final hearing before the tribunal on May 4, 2012. The order dated May 4, 2012 passed by the tribunal, to the extent relevant for the purpose of a decision on these writ petitions, is quoted below:
"The State Respondent, in reply, has sought to convince us that the final order requires confirmation by the Public Service Commission having regard to the status of the petitioner and the Public Service Commission has already been moved for giving its opinion on the proposed punishment order and for this reason alone the final order could not be recorded and served upon the petitioner.
The authority has supplied almost an evasive reply against the present application and this cannot be allowed. We direct the authority to revoke the suspension order of the petitioner within a week from communication of this order and the petitioner shall be permitted to resume his duty and he shall draw his usual pay and allowance from the date of resumption of his duty. The period of suspension shall be decided only after receipt of the final order to be recorded for the departmental enquiry.
As we have not been provided with any material in support of the stand taken by the authority in the reply, we direct the Director of ESI who has filed the reply to appear before this Tribunal with all materials regarding the disciplinary proceeding and he is to explain why the final order has not yet been recorded in spite of direction of the Tribunal. Fix 9.7.12 for appearance of the Director, ESI (MB) Scheme, West Bengal, at 2.30 p.m. before this Tribunal with explanation and relevant file."
(underlining for emphasis by us)
18. In compliance with the order dated May 4, 2012, O.A. 581 of 2011 was next listed on July 9, 2012. The incumbent director was present before the tribunal. However, the tribunal considered a report dated July 9, 2012 of the former incumbent director who was the deponent of the reply affidavit referred to above. The order of the tribunal dated July 9, 2012 took note of the fact that the opinion of the PSC was sought for on December 9, 2002. Such order also records a fact revealed from the report of the director, ~ that the departmental filed had gone missing and despite vigorous search, it could not be traced out necessitating information to the police as well as a departmental inquiry. Considering the prevailing state of affairs, the tribunal recorded as follows:
"Now, Mr. G.P. Banerjee submits that in view of this report disclosed by the then Director when the file itself has been missing and the P.S.C. is in no mood to discharge its function by recommending anything over the proposed punishment order, the petitioner's fate cannot hang for an indefinite period and appropriate order and direction must come from this Tribunal. Mr. S.N. Ray has no ready reply and we think that he will have not such reply even in distant future. In view of what has been stated above and in view of the specific report of Mr. Bandhopadhyay dated 09.07.2012 and keeping in kind the earlier order of this Tribunal we hold that in this case, the petitioner must get the relief for the indifference, callous and negligent behaviour of the disciplinary authority. The disciplinary proceeding initiated against the petitioner stand quashed. The entire period of suspension shall be treated as spent on duty and the petitioner shall get all his arrear pay minus the subsistence allowance which he has received and he will also be eligible for all service benefit which would fall due from the date of suspension till resumption of his normal duty. All the admissible amount must be paid to the petitioner within a period of 4 months. We must record that the department must bring the culprit to the book who would be responsible for missing of the file and the Chief Secretary shall decide whether any amount which shall be paid to the petitioner should be recovered from the erring official who was responsible for the entire matter and this should act as an example for future erring official and to maintain the required discipline and transparency in Govt. job.
The application is accordingly disposed of.
A copy of this order be forwarded to the Chief Secretary of the State for his information."
(underlining for emphasis by us)
19. Having been in deep slumber for over a decade as a result whereof Dr. Saha continued to remain under suspension, the State woke up and with great alacrity filed a review application on August 22, 2012 seeking review of the order dated July 9, 2012 recorded in O.A. 581 of 2011. It was pleaded in such application, registered as R.A. 9 of 2012, that although the relevant departmental file could not be produced before the tribunal on July 9, 2012 when O.A. 581 of 2011 was disposed of, further searches led to tracing out of the relevant file for which the department sought for an opportunity to produce that file before the tribunal for doing proper justice between the parties upon review of the order dated July 9, 2012. The review application was heard on contest by the tribunal and by its order dated June 6, 2013, the tribunal dismissed it. The reason for such rejection was that tracing out of a missing file did not amount to discovery of new facts or evidence and hence, the State had failed to set up any case within the scope and ambit of Order XLVII Rule 1 of the Civil Procedure Code (hereafter the CPC).
20. Aggrieved by the orders dated July 9, 2012 and June 6, 2013 allowing O.A. 581 of 2011 and dismissing R.A. 9 of 2012 respectively, the State challenged the same in an application under Article 227 of the Constitution before this Court, dated April 11, 2014. Such application was registered as COST 6 of 2014. It was listed for consideration before a Division Bench presided over by Hon'ble Jayanta Kumar Biswas, J. (as His Lordship then was) (hereafter the 1st DB) on August 29, 2014. The order passed on such application on August 29, 2014 is quoted below:
"Mr. Banerjee appearing for the State has submitted that he has received instructions to withdraw the COST with liberty to file an appropriate WPST against the same order of the West Bengal Administrative Tribunal. Mr. Chowdhury appearing for the first respondent has submitted that the State has partly complied with the order of the Tribunal. Correctness of this submission has been disputed by Mr. Banerjee. We are of the opinion that the prayer for withdrawal should be allowed. Hence we allow the prayer. The COST is dismissed. No costs. Certified xerox."
21. The aforesaid order by which COST 6 of 2014 was dismissed as withdrawn and no liberty was granted, as prayed for, to present a fresh application, did not result in any immediate action on behalf of the State and its officers to question it. More than eight months after the order dated August 29, 2014 was passed, the State presented WPST 101 of 2015 on April 6, 2015, being a writ petition under Article 226 of the Constitution, challenging the orders dated July 9, 2012 and June 6, 2013 (which were earlier challenged in COST 6 of 2014, together). WPST 101 of 2015 was considered by another Division Bench presided over by Hon'ble Nishita Mhatre, J. (as Her Ladyship then was) (hereafter the 2nd DB) and the order dated August 11, 2016 passed thereon is set out below:
"The learned Counsel Mr. Dutta, appearing for the petitioners/State, seeks leave to withdraw this petition and to file three separate petitions challenging the orders, which have been impugned in this petition. The petition is allowed to be withdrawn with liberty as prayed for subject to the question of maintainability of the writ petitions to be filed being considered at the stage of admission.
The certified copies of the orders impugned be returned to the Petitioners provided they supply ordinary copies of the same to the registry."
22. These two writ petitions were thereafter presented in September, 2016 by the State. While WPST 176 of 2016 challenges the order dated July 9, 2012 passed by the tribunal allowing O.A. 581 of 2011, WPST 177 challenges the order dated June 6, 2013 dismissing RA 9 of 2012.
23. It appears from the order-sheets that these two writ petitions were listed before the Division Bench presided over by Her Ladyship on September 28 and November 25, 2016, and then again on January 24, February 23, April 20 and September 4, 2017 before the Division Bench presided over by Hon'ble Nishita Mhatre, ACJ (as Her Ladyship then was). On all such occasions, the State successfully prayed for adjournment. It could be that the State sought to avoid the Division Bench presided over by Her Ladyship and, consequently, showed no interest to press the writ petitions. As such, the writ petitions were not even admitted.
24. When these writ petitions were listed before us for the first time on January 7, 2019 for admission, we were aghast to note how abysmally the State had conducted itself all these years firstly, in relation to the disciplinary proceeding initiated against Dr. Saha and secondly, while initiating proceedings before this Court. Ms. Bhattacharya, learned Senior Government Advocate could not convince us that the writ petitions were maintainable. To avoid any embarrassment to her, we requested the learned Advocate General for the State to appear.
25. This led to the advent of Mr. Datta, learned Advocate General. He initially sought for time to return prepared and then addressed us not only in favour of maintainability of these writ petitions but also on the merits thereof.
26. Reacting to our observation that the writ petitions are not maintainable having regard to the order dated August 29, 2014 passed by the 1st DB which, after recording an order of dismissal of COST 6 of 2014 as withdrawn, did not grant leave to file afresh although a specific prayer was made in that behalf and that the decision in Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior & ors., reported in (1987) 1 SCC 5, stares at his face, Mr. Datta referred to Order XXIII Rule 1 of the CPC and contended that the State made its intention amply clear before the 1st DB that it sought to withdraw but only if leave were granted to file a fresh proceeding and since the 1st DB did not expressly reject the prayer for leave to file afresh, that order ought to be read along with the prayers made and construed as granting permission to bring a fresh proceeding. According to him, the prayers of such kind must be treated to be an indivisible whole and if grant of leave to file afresh were not to be granted, the prayers should have been refused altogether and COST 6 of 2014 retained for recording whatever order the 1st DB could have recorded on its merits. Reliance was placed by Mr. Datta on the decisions of this Court in Golam Mahamed v. Shibendra Pada Banerjee, reported in 12 C.W.N. 893, Kamini Kumar Roy & anr. v. Rajendra Nath Roy & anr., reported in AIR 1926 Calcutta 233, and Sukumar Banerjee v. Dilip Kumar Sarkar & ors., reported in AIR 1982 Calcutta 17, as well as decisions in Khudi Rai v. Lalo Rai & ors., reported in AIR 1926 Patna 171, Marudachala Nadar v. Chinna Muthu Nadar & anr., reported in AIR 1932 Madras 155, Bharat & ors. v. Ram Pratap & ors., reported in AIR 1985 Allahabad 61, and Hari Basudev v. State of Orissa & ors., reported in AIR 2000 Orissa 125. The decision of the Supreme Court in Vimlesh Kumari Kulshrestha v. Sambhajirao & anr., reported in (2008) 5 SCC 58, was referred to for the proposition that even a presumption of implied grant of permission can be drawn.
27. Referring to Sarguja Transport Service (supra), Mr. Datta contended that there, while seeking an order for withdrawal of the writ petition no prayer was made for permission to file a fresh writ petition on the self-same cause of action; however, that is not the case here, because a prayer had duly been made in that regard. He also contended that the said decision had been explained and distinguished in Sarva Shramik Sanghatana v. State of Maharashtra, reported in (2008) 1 SCC 494, and therefore we ought to hold the present proceeding to be maintainable.
28. Mr. Datta, accordingly, urged that non-grant of express leave to file a fresh proceeding cannot have the effect of consigning COST 6 of 2014 to the record room as withdrawn and at the same time, refusal of permission to the State to bring a fresh proceeding.
29. Next, inviting our attention to the order of the 2nd DB, Mr. Datta contended that if because of the order of the 1st DB no further proceeding could have been brought by the State, the writ petition [WPST 101 of 2015] could have been dismissed then and there. But the 2nd DB while dismissing the writ petition having granted leave to file fresh writ petitions separately challenging the various orders passed by the tribunal, non-grant of express permission by the 1st DB stood obliterated and it is the order of the 2nd DB that would be the operative order. He also hastened to add that the observation of the 2nd DB that liberty which had been granted was "subject to the question of maintainability of the writ petitions to be filed being considered at the stage of admission" would not include the point that we have raised but would include other points like delay and the like.
30. Mr. Datta accordingly prayed for a hearing of these writ petitions on merits.
31. In Sarguja Transport Service (supra), the Supreme Court held as follows:
"8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying Rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution of India also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. ***
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. .... But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual ***"
32. In course of hearing, we expressed our mind to Mr. Datta that the decision in Sarva Shramik Sanghatana (supra) is clearly distinguishable in the sense that it was rendered while dealing with a matter under the Industrial Disputes Act, 1947 and the Court had held there that provisions of the CPC generally do not apply to industrial disputes. Moreover, it was an application for closure under section 25-O of the 1947 Act that was withdrawn by the employer-company for the reasons appearing in the judgment and not a proceeding before the High Court, and that such an application for closure could not be equated with a writ petition which a party abandons on his own and also does not obtain leave to move a fresh petition on the self-same cause of action.
33. That apart, Vimlesh Kumari Kulshrestha (supra) was a case where the second suit having been instituted during the subsistence of the first suit on the same cause of action and considering the circumstances obtaining therein, which included an order dismissing the first suit as withdrawn without leave to file afresh, that the observation, relied on by Mr. Datta, came to be made by the Court. It was made sufficiently clear to Mr. Datta that such decision would have no application here, having regard to the facts and circumstances.
34. In the midst of Mr. Datta's arguments, we had also drawn his attention to the decision of the Supreme Court in K.S. Bhoopathy v. Kokila, reported in (2000) 5 SCC 458. While explaining Order XXIII, Rule 1 of the CPC, we find the following instructive discussion made by the Court:
"11. The present Rule which was introduced in place of the old Rule 1 by the Amendment Act of 1976 makes a distinction between absolute withdrawal which is termed as "abandonment" and withdrawal with the permission of the court. This clear distinction is maintained throughout in the substituted Rule by making appropriate changes in the wording of various sub-rules of Rule 1.
12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts:
(a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and
(b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC.
13. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the court after satisfying the court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action.***"
35. Confronted with such ruling, Mr. Datta realized that the State was sailing through stormy waters. To prevent the State from being drowned, he thought of a rescue operation and to reach the shore. As such, he submitted before us on January 21, 2019 that we ought to adjourn hearing of these writ petitions to enable the State to file applications for recall of the orders of the 1st DB and the 2nd DB. Since we had spent much time on hearing the point of maintainability of the writ petitions and were informed by Mr. Neogi, learned advocate for Dr. Saha that he had even reached the age of superannuation in 2015 and retired from service, we requested Mr. Datta to address us on the merits of these writ petitions assuming that the same were maintainable in law.
36. Mr. Datta was heard on January 28, 2019 in full. In course thereof, we were informed of the State having filed CAN 888 of2019 and CAN 889 of 2019 for recall of the order dated August 29, 2014 passed by the 1st DB.
37. We did not consider it necessary to call upon Mr. Neogi to respond to Mr. Datta's arguments.
38. It is now time for us to say why we are not in agreement with any of the contentions urged by Mr. Datta.
39. First, the point of maintainability is considered.
40. The ratio decidendi of the decisions of the various High Courts relied on by Mr. Datta, in our humble opinion, can no longer be regarded as laying down good law in view of the authoritative pronouncement in K.S. Bhoopathy (supra) which requires the Court in seisin of an application/prayer under Order XXIII Rule 1(3) of the CPC to be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. We take a step further and hold that although elaborate reason may not be given in support of the satisfaction reached for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action, but an express grant of permission to file a fresh suit would lead to an inference of the Court's satisfaction, upon taking into consideration all relevant aspects of the matter, about the desirability to allow the plaintiff to sue afresh. The silence of the 1st DB cannot, therefore, be construed as grant of permission. Such silence must, in the circumstances, be understood as rejection of the prayer. The result thereof would be fatal, no doubt, for the State but its remedy was to apply for recall immediately thereafter and not at this distance of time.
41. Insofar as the order of the 2nd DB is concerned, we find the same to be couched in very careful language. The 2nd DB while dismissing WPST 101 of 2015 as withdrawn and allowing the State liberty to file fresh proceedings, left the point of objection regarding maintainability open. We see no reason to read the order of the 2nd DB in the constricted manner Mr. Datta wants us to read it. The 2nd DB never intended to grant a carte blanche to the State that notwithstanding the repeated proceedings that it had been initiating, either on legal advice or otherwise, the Court would have no discretion in the matter of ruling on its maintainability. We are inclined to the view that the 2nd Bench was very much alive to the order of the 1st DB not granting express leave to file afresh and that is why the 2nd DB did not limit the question of maintainability to any particular issue of delay or the like.
42. We have absolutely no doubt that the writ petitions are not maintainable, being against public policy. We are also of the view that the applications for recall being a creature of after-thought, do not call for any order. CAN 888 of 2019 and CAN 889 of 2019, accordingly, are dismissed.
43. Since we heard Mr. Datta extensively on the merits of these writ petitions, we now proceed to decide the contentions raised by him disabusing our minds of whatever we have held pertaining to maintainability in the preceding paragraphs.
44. The plinth of all the contentions urged by Mr. Datta has been that because of Dr. Saha's negligence in performance of duties, a little girl of 12 years lost her life and it is such a person who would go scot-free if the tribunal's orders are not judicially interdicted and corrected. He sought to demonstrate why the justification proferred by Mr. Saha cannot be accepted in medico-legal parlance and also contended that the disciplinary proceeding against Dr. Saha having been conducted in accordance with the applicable rules and in conformity with the principles of natural justice, we ought to allow the final order on such proceeding to be recorded.
45. Really, we cannot remain insensitive when faced with a situation of this nature where a little girl is at the receiving end of official apathy. Had the State been sincere in its endeavour to bring Dr. Saha to book, the situation which has now emerged could have very well been avoided. However, to our great dismay and shock, with the passage of time it is only the chinks in the State's armoury that have unfolded one after the other which has left us troubled, and notwithstanding the unfortunate, untimely death of the victim for alleged negligence of officers of the State, we are reminded of our duty to deliver justice according to settled norms and principles without being swayed by sentiments and emotions.
46. Let us first start from the stage of reply given by Dr. Saha to the charge sheet. As would appear from its perusal, at one place he admitted that there could have been a wrong determination of the Rh factor of the victim's blood group because of lack of support staff and proper infra-structure and also that the determination was made by him sitting in his laboratory at midnight. At another place, he sought to justify his action. The prosecution prior to leading evidence before the inquiring authority was well-nigh aware of Dr. Saha's defence. It could have adduced oral and documentary evidence to rebut Dr. Saha's allegation of lack of support staff and proper infra-structure. Expert evidence could have also been adduced to demolish the justification that Dr. Saha sought to proffer. Justification now sought to be given by Mr. Datta is of no aid. No such expert evidence was adduced, leading to findings being returned by the inquiring authority that the first two articles of charge had not been established. Only, the third charge was held established. Dr. Saha could be punished, if at all, for wrong determination of the Rh factor amounting to negligence and, according to the inquiring authority, he deserved a transfer to some other hospital as a token punishment.
47. Next, the report of inquiry upon being placed before the disciplinary authority, we notice a queer approach having been adopted. The disciplinary authority must have been conscious of the infirmities that the report of inquiry suffers from (it did not contain any discussion or finding whether the claim of Dr. Saha of lack of support staff and proper infra-structure at his laboratory having resulted in a wrong determination was correct or not, and further as to whether it was a multifactorial technical error for which he was not solely responsible, and further as to whether the justification proferred by him had any basis or not, and also that it was lacking in reasons), went about collecting evidence to enable him plug the loopholes. This would be apparent from the underlined portion of the disciplinary authority's order dated June 26, 2002 extracted above. We know not, how the disciplinary authority being the Principal Secretary to the Government of West Bengal, Labour Department (who later on went on to become the Chief Secretary of the State) could do so. Collection of evidence behind the back of the charged officer has to be frowned upon. Officers of the Government from whom the disciplinary authority obtained information after submission of the report of inquiry were neither produced as witnesses for cross-examination by Dr. Saha nor were their reports proved in accordance with law. This action of the disciplinary authority is sufficient to suggest that the proceeding was not conducted bona fide and fairly and may have been drawn up to complete a ritualistic exercise without even putting Dr. Saha on notice.
48. Having collected evidence behind Dr. Saha's back, the disciplinary authority proposed to remove Dr. Saha from service forming an opinion that in all probability the death of the victim was caused by Dr. Saha's lapses. The disciplinary authority failed to consider that no post-mortem examination having been conducted, the real cause of death of the victim had not surfaced. It could be that due to non-determination of the correct Rh factor blood transfusion was delayed, but that by itself could not have been the immediate cause of death. Significantly, a part of article of charge no. II was that unusual delay in transfusion of blood caused the death of the victim. The whole of the charge was not proved. If indeed the disciplinary authority wished to disagree with the inquiring authority, he ought to have followed the decision in Punjab National Bank v. Kunj Bihari Mishra, reported in (1998) 7 SCC 84. That was not done. Be that as it may, show-cause notice was issued without furnishing a copy of the report of inquiry. Although subsequently a copy of the report was furnished to Dr. Saha, but that was on his asking. Since there was a proposal to remove Dr. Saha from service, the report of inquiry should have been furnished without waiting for him to ask for it. This action was also in the teeth of the decision of the Constitution Bench in Managing Director, ECIL v. B. Karunakar, reported in (1993) 4 SCC 727.
49. Having noticed principles of natural justice being observed in the breach by the disciplinary authority of Dr. Saha, we wish to focus on the aftermath of the disciplinary authority's show cause. The opinion of the PSC was sought for by a letter dated December 9, 2002, since Dr. Saha had been appointed on its recommendation. Despite the tribunal by its order dated August 5, 2009 directing conclusion of the disciplinary proceeding within six months, the matter did not progress an inch. It was only after the proceeding stood quashed by reason of the order dated July 9, 2012 that the department sprang into action. The reason assigned for failure to finalize the proceeding was that the relevant file went missing and could not be traced out for nearly a decade. However, no sooner than the proceeding stood quashed, the file reappeared and a reminder was sent to the PSC on December 22, 2012. The turn of events has left us to wonder, whether Dr. Saha was alone responsible for the victim's death or there were others too who could have been equally remiss in discharge of official duty leading to the premature death of the victim, and also as to whether there was a heinous ploy that worked behind the screen to ensure that none of the officers is scathed. The entire scenario does not speak too well of the system. If the disciplinary authority perceived the charge against Dr. Saha as so serious to warrant his removal from service, extra care and caution should have been taken by him as well as his subordinates so that the file did not get misplaced.
50. There is one other point that comes to our mind, upon perusal of the records that the file went missing and for such reason no step could be taken. If indeed the file went missing, it must have gone missing from the custody of the disciplinary authority. If Dr. Saha has to lose his livelihood because of one lapse in his service career, what about the lapses of the disciplinary authority? Should the disciplinary authority be not hauled up for gross negligence? As we have noted above, the incumbent Principal Secretary of the Labour Department who proposed Dr. Saha's removal from service went on to become the Chief Secretary of this State. He must have earned his promotion by dint of merit. But, the manner in which he conducted himself while issuing the second show cause notice leaves a lot to be desired. His lack of knowledge of law governing departmental inquiries is appalling and needed to be brushed up. Obviously he, or his successors, must own the responsibility of creating a situation which has allowed Dr. Saha to slip through unscathed without any punishment. We leave the issue here, since no order can be passed in the absence of the officers eo nomine who held the office of disciplinary authority of Dr. Saha.
51. Insofar as the impugned order dated July 9, 2012 is concerned, we see no reason to hold that the tribunal erred in the exercise of its jurisdiction. An order had been made by it on August 5, 2009 while disposing of O.A. 1122 of 2002 to record the final order in the proceeding within six months. The tribunal was neither informed of the relevant file being untraceable nor the fact of the PSC having failed to give its opinion despite the same having been asked for on December 9, 2002. Dr. Saha having continued to remain under suspension for more than a decade, the tribunal initially directed revocation of the suspension order by the order dated May 4, 2012, and finally quashed the proceeding by the said order of July 9, 2012. The petitioners by no stretch of imagination could have expected the tribunal to give them further time to record the final order, having failed to record the final order within six months of August 5, 2009. Proper cause not having been shown by the Director, ESI while remaining present in the tribunal on July 9, 2012 for not taking the proceeding to its logical conclusion, the disciplinary authority could not have been favoured with preferential treatment and granted further time to complete the proceeding. If indeed there were genuine reasons impeding the recording of the final order within six months from August 5, 2009, it was for the disciplinary authority to file a miscellaneous application in O.A. 1122 of 2002 and seek extension of time. Nothing of this sort was resorted to. Since Dr. Saha could not have been worse off for presenting O.A. 581 of 2011, no order extending the time to record the final order could have been made while disposing it of finally.
52. In our view, there was also no good ground to review the order dated July 9, 2012. The fact that the relevant file, which was untraceable for years together, could be traced out within months of the order dated July 9, 2012 gives rise to a lurking suspicion in our mind that there were forces holding the file back. Although a review could lie on discovery of new and important matter or evidence which after the exercise of due diligence was not within the applicant's knowledge or could not be produced by him at the time the decree was passed or order made, review of which is sought, the tribunal rightly held that the petitioners were not entitled to the benefit thereof. That the file was traced out after the order dated July 9, 2012 was passed, may not be of any great relevance since the final decision in O.A. 581 of 2011 did not hinge on its production. Tracing out of the file from the office itself suggests that the file was there and gathering dust, but may not have been in the proper place. Why efforts were not made to trace out the file immediately after O.A. 1122 of 2002 was disposed of on August 5, 2009 and even within a year of the presentation of O.A. 581 of 2011 had not been explained. The disciplinary authority having failed to record the final order within six months of August 5, 2009, when O.A. 1122 of 2002 was disposed of, and non-cooperation of the PSC having been cited as the reason for such failure and not that the file was missing, was good enough reason for the tribunal to dismiss the review application.
53. We, therefore, see no scope to interfere.
54. This now brings us to the last contention of Mr. Datta. It is contended that notwithstanding Dr. Saha having attained the age of superannuation during the pendency of proceedings before this Court, the State is entitled to proceed against him in terms of Rule 8 of the West Bengal Services (Death-cum- Retirement Benefit) Rules, 1971 (hereafter the DCRB Rules) and leave may, accordingly, be granted.
55. We find no force in this contention, for, Rule 8 of the DCRB Rules has no manner of application here. What Rule 8(1) ordains is that 'future good conduct' shall be an implied condition of every grant of pension and the pension sanctioning authority may, by an order in writing, withhold or withdraw a pension or part thereof whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. Rule 8(3) lays down the procedure to be followed if the pension sanctioning authority is prima facie satisfied of a pensioner being guilty of grave misconduct. The other sub- rules not being too relevant are kept out of consideration.
56. If leave, as prayed for, by Mr. Datta is granted, we would be allowing the petitioners to proceed against Dr. Saha [in respect of acts of omission/commission on his part that happened in the year 2000, which the petitioners consider as amounting to grave misconduct] to withhold or withdraw his pension, temporarily or for a specified period, as the case may be. On a reading of Rule 8 together with Rule 10 of the DCRB Rules, this course of action is simply not permissible.
57. In our reading of the DCRB Rules, both Rule 8 and Rule 10 provide for withholding of pension/withdrawing pension completely or partly depending upon the circumstances. While Rule 10 enables the Governor to proceed to withhold or withdraw pension or direct recovery of pecuniary loss caused to the Government from the pension of a pensioner if it is found in a departmental or judicial proceeding that he was guilty of grave misconduct or negligence during the period of his service, including service rendered on re-employment after retirement, no such departmental proceeding can however be instituted if it be in respect of any event/incident which took place more than four years before such institution. This is precisely the reason why Mr. Datta did not seek leave to proceed under Rule 10.
58. Now, what is not permitted by Rule 10 cannot be achieved by invoking Rule 8. As the starting words of Rule 8 would suggest, release of pension is dependent upon 'future good conduct' of the pensioner. It covers a situation post-retirement when pension becomes payable. As is well known, pension is deferred compensation for services rendered and is paid as retirement benefit regularly (normally, monthly). It is, therefore, an incident of service that in order to be entitled to payment of pension, the retired Government servant, i.e., the pensioner, has to main good conduct in future while he is alive. If in case a pensioner while receiving pension commits a serious crime and is convicted or is found guilty of grave misconduct, he would make himself liable to forfeiture of his right to pension to such extent the pension sanctioning authority may direct. Therefore, considering the materials on record and on the plain language of Rule 8, at this stage there can be no reason to grant leave to the State to proceed to withhold/withdraw pension that Dr. Saha is entitled to in terms of the DCRB Rules.
59. We wish to make a parting observation. Although an order of interim suspension, issued in contemplation of disciplinary proceeding against an officer/employee or during pendency thereof, is not regarded as a punishment, continuance of such suspension without quick conclusion of the proceeding in sight for reasons not attributable to the officer/employee could, at times, work out adversely against him. After all, we humans are all part of a society. Once an officer/employee is placed under suspension and he is made to stay away from work, and such suspension continues indefinitely without an end in sight, he has to bide his time without doing any other work. If he does work elsewhere, he forfeits his right to subsistence allowance. The very expression 'subsistence allowance' has an undeniable penal significance. The fact that one has been continuing under suspension for months together is bound to have a deleterious effect, if he is otherwise honest to his work, dutiful and hardworking. People around would start viewing the suspended officer/employee with suspicion. Questions are likely to be thrown, why have you been suspended? Have you done anything grossly wrong? Are you still receiving subsistence allowance without doing any work? Even before a finding is recorded in the disciplinary proceeding, such an officer/employee is on trial and people tend to see him as the culprit. The stigma that these queries carry could become unbearable at times. The fact that the officer/employee is receiving subsistence allowance without doing any work might prove to be counter-productive. He runs the risk of being drawn into depression. He could also start to rust by not putting in any effort. The bruises and scars that an order of suspension, continued for unduly long period of time, brings about is, at times, more punishing than major penalties like reduction in rank or pay. It is because of these that the Supreme Court in a catena of decisions has deprecated continuance of suspension for unduly long period. We feel that Dr. Saha having spent an inglorious life for all the time he was under
suspension, it is sufficient admonition for him to have committed the lapse of determining the Rh factor erroneously. Justice would be sub-served, if the matter is allowed to rest now.
60. For the reasons aforesaid, WPST 176 of 2016 and WPST 177 of 2017 stand dismissed both on the ground of maintainability as well as merits.
61. There shall be no order for costs.
62. Whatever service and terminal benefits are outstanding shall be released in favour of Dr. Saha by the petitioners as early as possible, but not later than four months of receipt of a copy of this judgment and order. We feel that this much Dr. Saha is entitled to without even filing a fresh original application, for the ordeal he has faced in this century.
(DIPANKAR DATTA, J.) Bibek Chaudhuri, J.:
I agree.
(BIBEK CHAUDHURI, J.)