Chattisgarh High Court
Dr. Y.K. Tiwari vs State Of Chhattisgarh on 4 April, 2022
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NAFR
HIGH COURT of CHHATTISGARH, BILASPUR
WP227 No. 137 of 2019
Dr. Y.K. Tiwari S/o Shri Narayan Prasad Tiwari Aged About 61 Years
Posted As Senior Medical Officer At District Hospital Rajnandgoan
Chhattisgarh. R/o Kunj Vihar Colony, MIG - 11, Kamla College Road,
Kaurinbhatha, Rajnandgaon, District Rajnandgaon Chhattisgarh.,
District : Rajnandgaon, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Health And Family
Welfare Department, Mantralaya, Mahanadi Bhawan, Atal Nagar,
Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
2. Under Secretary, State Of Chhattisgarh, Health And Family Welfare
Department, Mantralaya, Mahanadi Bhawan, Atal Nagar Raipur, District
Raipur Chhattisgarh., District : Raipur, Chhattisgarh
3. Director Health Services, Indrawati Bhawan, Atal Nagar, Raipur, District
Raipur Chhattisgarh., District : Raipur, Chhattisgarh
4. Sourabh Shivar S/o Harish Shivare Aged About 19 Years R/o
Government District Hospital Premises, House No. G/3, Durg, P.S.
Durg, Tahsil And District Durg Chhattisgarh., District : Durg,
Chhattisgarh
5. Suresh Kumar Kundu S/o Arun Kumar Kundu Aged About 38 Years R/o
Anjora Dairy Form, Government Quarter H - 5, P.S. Pulgaon, Tahsil And
District Durg Chhattisgarh., District : Durg, Chhattisgarh
6. Dr. Sanjeev Sahastra Buddhai S/o Late Anand Sahast Buddhai R/o
H/3/24, Chouhan Town Junwani, At Present - Incharge Officer,
Veterinary College, Assistant Surgeon, Incharge, Central Seman Anjora,
P.S. Pulgaon, Durg, Tahsil And District Durg Chhattisgarh., District :
Durg, Chhattisgarh
7. Collector Rajnandgaon, District Rajnandgaon Chhattisgarh., District :
Rajnandgaon, Chhattisgarh
---- Respondents
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For Petitioner : Shri Praveen Dhurandhar, Advocate For State : Shri Gurudev I Sharan, Govt. Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order 04/04/2022 Heard.
1. Petitioner, a Doctor posted as Senior Medical Officer at District Hospital, Rajnandgaon has filed this writ petition challenging the adverse remarks made against him by learned First Additional Motor Accident Claims Tribunal, Durg in its Award dated 20.08.2018 passed in Claim Case No.182 of 2016 and sought following reliefs :
"10.1 That, this Hon'ble Court may kindly be pleased to expunge/delete para No.34 of the Award dated 20.08.2018 passed in Claim Case No.182/16 passed by First Additional Judge Durg (CG) to the Court of First Additional Motor Accident Claims Tribunal, Durg, District Durg (CG) (Annexure P-1) 10.2. That this Hon'ble Court may kindly be pleased to call the records of the Claim Case No.182 of 2016 of First Additional Judge Durg (CG) to the Court of First Additional Motor -3- Accident Claims Tribunal, Durg, District Durg (CG) 10.3. That that Hon'ble Court may kindly be pleased to grant any other relief, as it may deems fit and appropriate."
2. Shri Praveen Dhurandhar, learned counsel appearing for the petitioner would submit that the petitioner being a member of Medical Board issued disability certificate in favour of one Sourabh Shivare, (claimant in Claim Case No.182 of 2016) upon his examination along with other members of the Board. To prove the certificate, petitioner also appeared before the Claims Tribunal as witness, recorded his evidence. While passing of the final Award, learned Claims Tribunal made castigating remarks against the petitioner without affording him an opportunity of hearing, affecting his reputation, integrity and conduct which is wholly unsustainable and bad in law. It is further submitted that the adverse remarks made by the Claims Tribunal is adversely affecting the service career of the petitioner. Based on the adverse remarks made in the Award dated 20th August 2018 (Annexure P-1), respondent No.2 issued direction for cancellation of registration of the petitioner from Chhattisgarh Medical Council. As the adverse remarks made by learned Claims Tribunal is without providing him an opportunity of hearing, the adverse remarks in para-34 of the Award dated 20 th August 2018 be expunged. He also pointed out that even the -4- observations made by learned Claims Tribunal in para-33 of the Award that the Claimant therein suffered injury over his right leg and disability certificate was issued for left leg, is contrary to the records available before the Claims Tribunal. Referring to document Ex.P-29 of Ramkrishna Care Hospital, Department of Orthopedics, Raipur, he submits that the Claimant also suffered vertical fracture in left tibia, hence, observation of the Claims Tribunal is contrary to document placed on record by the Claimant. He contended that as the adverse remark made in the Award is without giving notice and affording opportunity of hearing to clarify the confusion arose in the mind of the Tribunal, adverse remark made in para-34 of the Award is liable to be expunged on that count only.
3. Shri Gurudev I Sharan, learned counsel for the State opposing the submission of learned counsel for the petitioner, would submit that learned Claims Tribunal, based upon the material available before it, considering the documentary and oral evidence, recorded its finding in para-34 of the Award which does not call for any interference.
4. I have heard learned counsel for the parties and also perused the documents placed along with the writ petition as well as the documents available in the record of claim case.
5. To appreciate the submissions of learned counsel for respective parties and the observations made by learned Claims Tribunal -5- making adverse remarks against the petitioner, I find it appropriate to extract the relevant paragraphs of the said Award, as under:-
"(33) vkosnd dh vksj ls izLrqr iz-ih-&41 dk izek.ki= iw.kZ :i ls vfo'oluh; gS D;ksafd vkosnd dks nkfgus iSj esa pksV yxh Fkh vkSj lacaf/kr fpfdRld }kjk mldk viaxrk izek.ki= cka;s iSj dh pksV ds laUnHkZ esa tkjh fd;k x;k A fpfdRld }kjk iSj ds lUnHkZ esa 45 izfr'kr o lEiw.kZ 'kjhj ds lUnHkZ esa Hkh 45 izfr'kr ukWu izksxsflo LFkk;h viaxrk vkus dk dFku fd;k x;k gS A tcfd vkosnd Lor% eks- lk- pykrs gq, U;k;ky; esa vkuk] mls dksbZ rdyhQ ugha gksuk Lohdkj fd;k gS A blds foijhr nqxZ esfMdy cksMZ }kjk cuk;s x;s izek.ki= mlds nkfgus iSj ds lUnHkZ esa dsoy 5 izfr'kr LFkk;h viaxrk vkus ds laca/k esa fn;k x;k gS A (34) iz-ih- &41 ftyk esfMdy cksMZ jktukanxkao }kjk fufeZr izek.ki= gS ftlesa bl rjg dh xaHkhj =qfV ,oa vfu;ferrk gksuk vR;ar gh foLe;dkjh gS A ,d 'kkldh; ftyk esfMdy cksMZ ds fpfdRld }kjk ftl iSj esa pksV gh ugha gS ml iSj ds lUnHkZ esa viaxrk izek.ki= tkjh djuk og Hkh ukWu izkxszflo izd`fr ds viaxrk vkus dk mYys[k djuk] fcuk fdlh ijh{k.k ds viaxrk izek.ki= viaxrk ds izfr'kr dks vR;ar c<k p<kdj nsuk ;g nf'kZr djrk gS fd fpfdRld }kjk fd;k x;k mijksDr dk;Z fdlh Hkh n`f"Vdks.k esa ln~Hkkfod ugha gS rFkk fuf'pr :i ls ;g vU; fdlh mn~ns'; dh iwfrZ ds fy, tkjh fd;k x;k gS ftldh vuqefr fdlh Hkh fLFkfr -6- esa Lohdkj ;ksX; ugha gS rFkk bl rjg ds viaxrk izek.ki= tkjh djus ds lanHkZ esa ekuuh; mPpre U;k;ky; rd fn'kkfunsZ'k tkjh fd;s tk pqds gaSA lkFk gh lkFk esfMdy cksMZ dk Hkh ;g nkf;Ro gS fd og dsoy ,d fpfdRld ds er ij vk/kkfjr uk gksdj Lo;a Hkh vkdyu djsa A cksMZ ds lnL;ksa dk nkf;Ro dsoy gLrk{kj djus rd gh lhfer ugha jgrk gSA mijksDr izek.ki= esa viaxrk dh oS/kkfud ftEesnkjh fo"k;
fo'ks"kK dh gkus dh Vhi ntZ djus ek= ls gh cksMZ dk nkf;Ro lekIr ugha gks tkrk gS D;ksafd izek.ki= ftyk esfMdy cksMZ dk gS uk fd dsoy ,dy fpfdRld dk A bl rjg dh ?kksj ykijokgh fuf'pr :i ls dnkpj.k dh Js.kh esa vkrh gS vr% bl laca/k esa dysDVj jktukanxkao ,oa LokLF; lfpo dks fu.kZ; dh izfrfyfi lacaf/kr fpfdRld ds izfr fu;ekuqlkj dk;Zokgh fd;s tkus gsrq izsf"kr fd;k tkuk vko';d gS rkfd Hkfo"; esa bldh iqujko`fRr u gks lds A"
6. In para -33 of the Award, observations made is with respect to granting disability certificate of left leg, whereas Claimant suffered injury over the right leg. Perusal of the documents available in the record of the Claims Tribunal would show that claimant placed on record document as Ex.P-13 issued by the Jawahar Lal Nehru Hospital and Research Centre, Bhilai, wherein it is mentioned as fracture head fibula (left) knee. Further, in Ex.P-15, it is mentioned that fracture seen in in Mid-shaft of right femur bone, fracture seen in left proximal fibula. In Ex.P-29, which is a discharge ticket of the -7- Ramkrishna Care Hospital, Raipur, it is mentioned "vertical fracture left tibia" undisplaced with IDK left knee and further it also mentioned- Operated for Left Knee Arthroscopy. From the aforementioned documents, it cannot be said that there was no injury over left leg of the Claimant. Contents of the aforementioned para of Award passed by learned Claims Tribunal would show that the Claims Tribunal mentioned that the disability certificate was issued by exaggerating the percentage of disability, disability certificate was issued for the part of the body which does not suffer injury and by making adverse remarks, Claims Tribunal also directed the Collector and the Health Secretary to take action according to law against the petitioner. Pursuant to the adverse remarks made by learned Claims Tribunal and observation, as per submission of learned counsel for the petitioner, action has been taken by respondent No.2 by issuing a direction for cancellation of registration of petitioner from Chhattisgarh Medical Council.
7. Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. Mohd. Naim (AIR 1964 SC 703) while considering the jurisdiction of the High Court for expunging the remarks made by it or by Court below, it was held thus:-
"10. The last question is, is the present case a case of an exceptional nature in which the learned judge should have exercised his inherent jurisdiction -8- under s. 561-A Cr. P. C. in respect of the observations complained of by the State Government ? If there is one principle of cardinal importance in the administration of justice, it is this : the proper freedom and independence of judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this court. At the same time it is equally necessary that in expressing their opinions judges and Magistrates must be guided by considerations of justice, fair- play and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an -9- opportunity of explaining or defending himself ; (b) whether there is evidence on record bearing on that conduct justifying the remarks ; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve."
8. Relying upon judgment in Mohd. Naim (supra), Hon'ble Supreme Court in the case of Niranjan Patnaik Vs. Sashibhusan Kar & Anr. (1986) 2 SCC 569, has held thus:-
"23. In Panchanan Banerji v. Upendra Nath Bhattacharji, A.I.R. 1927 Allahabad 193 Sulaiman, J. held as follows :
"The High Court, as the supreme court of revision, must be deemed to have power to see that Courts below do not unjustly and without any lawful excuse take away the character of a party or of a witness or of a counsel before it."
24. It is, therefore, settled law that harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before courts of law unless it is -10- really necessary for the decision of the case, as an integral part thereof to animadvert on that conduct. We hold that the adverse remarks made against the appellant were neither justified nor called for."
9. In case of Manish Dixit and Ors. Vs. State of Rajasthan (AIR 2001 SC 93), Hon'ble Supreme Court held that before any castigating remarks are made against any person having serious consequence on the future career of the person concerned he should be given an opportunity of being heard against proposed remarks or strictures and held thus:
"43. Even those apart, this Court has repeatedly cautioned that before any castigating remarks are made by the court against any person, particularly when such remarks could ensue serious consequences on the future career of the person concerned he should have been given an opportunity of being heard in the matter in respect of the proposed remarks or strictures. Such an opportunity is the basic requirement, for, otherwise the offending remarks would be in violation of the principles of natural justice. In this case such an opportunity was not given to PW-30 (Devendra Kumar Sharma)."
10.Hon'ble Supreme Court in the case of In the Matter of : 'K' A -11- Judicial Officer (2001) 3 SCC 54 dealing with the SLP filed by a Judicial Officer against observation made by High Court, has held as under :-
"11. A subordinate judge faced with disparaging and undeserving remarks made by a Court of superior jurisdiction is not without any remedy. He may approach the High Court invoking its inherent jurisdiction seeking expunction of objectionable remarks which jurisdiction vests in the High Court by virtue of its being a court of record and possessing inherent powers as also the power of superintendence. This view is settled by the law laid down in Dr. Raghubir Saran v. State of Bihar and Anr., [1964] 2 SCR 330. However, if a similar relief is sought for against remarks or observations contained in judgment or order of High Court the aggrieved judicial officer can, in exceptional cases, approach this court also invoking its jurisdiction under Article 136 and/ or 142 of the Constitution. With the law laid down by this Court in Dr. Raghubir Saran (supra) and the State of Uttar Pradesh v. Mohammad Naim, [1964] 2 SCR 363m it is well-settled that the power to expunge remarks exists for redressing a kind of grievance for which the law does not -12- provide any other remedy in express terms though it is an extraordinary power. Any passage from an order or judgment may be expunged or directed to be expunged subject to satisfying the following tests :- (i) that the passage complained of is wholly irrelevant and unjustifiable; (ii) that its retention on the records will cause serious harm to the persons to whom it refers; (iii) that its expunction will not affect the reasons for the judgment or order.
12. Though the power to make remarks or observations is there but on being questioned, the exercise of power must withstand judicial scrutiny on the touchstone of following tests :- (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve [see Mohmmad Naim (supra)].
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11. In the aforementioned ruling, Hon'ble Supreme Court has considered that whether an opportunity of explaining or defending was available to the person concerned, whether the evidence on record bearing on the conduct justifying the remarks.
12.In case of Prakash Singh Teji Vs. Northern India Goods Transport Co. Pvt. Ltd. & Another 2009 AIR SCW 3078, Hon'ble Supreme Court held that adverse remarks should not be made unless it is necessary for decision of the case and a further opportunity to be given to the person concerned for giving his explanation and held thus:-
"13) In the light of the above principles and in view of the explanation as stated by the appellant for commenting the conduct of the plaintiff, we are satisfied that those observations and directions are not warranted.
It is settled law that harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before Courts of law unless it is really necessary for the decision of the case as an integral part thereof. The direction of the High Court placing copy of their order on the personal/service record of the appellant and a further direction for placing copy of the order -14- before the Inspecting Judge of the officer for perusal that too without giving him an opportunity would, undoubtedly, affect his career. Based on the above direction, there is every possibility of taking adverse decision about the performance of the appellant. We hold that the adverse remarks made against the appellant was neither justified nor called for.
13.In all the aforementioned ruling of Hon'ble Supreme Court, it is held that adverse remarks should not be made unless it is necessary for decision of the case and if at all it is required then after providing opportunity of hearing to the person concerned explaining his conduct. The duty is casted upon the Presiding Officer/Judge of the Court not to make adverse remarks against witness or the parties affecting their character and reputation unless it is necessary.
14.So far as submission of learned counsel for respondent with regard to filing of petition under Article 227 and not under Article 226 of the Constitution of India is concerned, law is well settled that this Court in exercise of inherent or extraordinary jurisdiction can expunge those remarks made by subordinate Court following the three tests laid down by Hon'ble Supreme Court in aforementioned ruling so as to prevent the abuse of process of law and to secure ends of justice.
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15.In view of the aforementioned ruling of Hon'ble Supreme Court, if the facts of present case are tested, it is a case where the petitioner as one of the Member of Medical Board issued medical certificate to the injured/claimant. Before the Claims Tribunal, he appeared as witness and proved the disability certificate issued by him. The Claims Tribunal while deciding the Claim Case in its Award made adverse remarks in para- 33 and para-34 of the Award dated 20.08.2018 without calling any explanation from the petitioner, issuing notice on the proposed adverse remarks. Perusal of order sheet of the record of Claim Case would show that the petitioner was examined as witness (AW2) before the Claims Tribunal on 17.04.2018. Thereafter, the case was fixed on further dates of hearing and recoding the evidence. Non-applicant No.2 has filed application before the Tribunal as appearing in proceedings dated 9.8.2018 for taking action against the petitioner for issuing false disability certificate. Even the specific application has been made for taking action against the petitioner. Claims Tribunal has not issued any notice nor sought any clarification/explanation from the petitioner. Perusal of disability certificate issued by the Medical Board, Rajnandgaon would reflect that it was issued by the team of four Members and the petitioner was one of the Member of the Medical Board. In facts of the case, adverse remarks made by the Claims Tribunal against petitioner in Claim Case No. 182 of 2016 in para 33 and 34 of its Award dated 20.08.2018 deserves to be expunged in the ends of justice. -16-
16.In view of the aforementioned discussions, writ petition is allowed. Adverse remarks made against the petitioner in para-33 and 34 of the judgment/Award passed on 20.08.2018 by learned First Additional Motor Accident Claims Tribunal, Durg in Claim Case No.182 of 2016 are hereby expunged.
Sd/-/-/----/-/ (Parth Prateem Sahu) Judge Praveen