Rajasthan High Court - Jodhpur
Dr. T.C. Barjatia vs State on 14 March, 2013
Author: P.K. Lohra
Bench: P.K. Lohra
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
Dr. T.C. Barjatia V/s. State of Rajasthan
S.B. CIVIL WRIT PETITION NO.5038/2007
Writ Petition under Article 226 & 227
of the Constitution of India
***
Date of Order:: March 14, 2013
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA
Reportable
Mr. Sandeep Shah, for the petitioner.
Mr. M.A. Siddiqui, Addl. Govt. Counsel, and Mr. Yashpal
Khileree, Dy. Govt. Counsel, for the respondent.
BY THE COURT:
"In illness the doctor is a father; in convalescence a friend; when health is restored, he is a guardian."
This famous Indian proverb has made us to believe that "doctors are next to God for a patient" In common parlance faith and confidence of a diseased person or his parents vis-à-vis a doctor is of such a high stature that during treatment he acquires a status akin to God. This common perception or a myth, which is prevalent since time immemorial, is subject matter of judicial scrutiny in the present case.
[2]
Petitioner, Dr. T.C. Barjatia, has ventilated his grievances against the impugned order dated 25th August 2006 (Annex.4) by invoking extraordinary jurisdiction of this Court enshrined under Article 226 of the Constitution of India.
Stated in succinct, the factual matrix giving rise to this petition is that at the threshold of his service career, the petitioner was appointed as Medical Officer with the Department of Medical & Health and in the year 1996 he has availed the promotion to the post of Junior Surgeon. Highlighting his efficacy in the services, the petitioner has narrated in the writ petition that he has to his credit unblemished service career inasmuch as during his entire tenure he was never served with a charge-sheet under Rule 16 or 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for brevity, hereinafter referred to as 'the Rules of 1958'). As regards adverse entries in his ACRs, as per the version of the petitioner, there is no adverse entry in his service profile. The petitioner has further averred in the writ petition that while working in the capacity of Junior Surgeon at Kuchaman City, a memorandum and charge-sheet under Rule 16 of the Rules of 1958 was served on him on 27th August 1999 [3] (Annex.1). In the charge-sheet and statement of allegations, the petitioner was attributed a charge of negligence in performing the surgical operation of one Master Javed in the year 1993 resulting into his death. Castigating the charge-sheet as a pre-determined action of the respondent, the petitioner has also made scathing attack on the recitals contained in the charge-sheet and statement of allegations by alleging that the Disciplinary Authority had already made up its mind to punish the petitioner. On receipt of the Memorandum and charge- sheet, the petitioner has narrated in the petition that he joined the issue by way of submitting reply to the charge- sheet on 20th of October 1999 vide Annex.2. As per the version of the petitioner, the charge attributed to him was aptly dealt with by him in his return and he has specifically denied the allegation about his negligence in performing the operation of Master Javed. As regards the other allegations also, the petitioner has refuted all those allegations with full emphasis at his command. In order to substantiate his grievances against the charge-sheet, the petitioner has also mentioned certain facts which hover around the issuance of charge-sheet and which according to him were the main edifice for the issuance of the charge-sheet. For that purpose, the petitioner has averred in the writ petition that [4] initiation of the departmental enquiry against him was a consequence of a complaint lodged by one Mr. Gulsher Khan, maternal uncle of the deceased Javed, who is a practicing lawyer. According to the petitioner, the cause of initiation of enquiry was, in fact, complaint lodged by Gulsher Khan and not on account of any sort of misconduct conducted by him. The petitioner has also stated in the writ petition that initially Dr. N.L. Goyal, Dy. Controller, conducted an ex-parte preliminary enquiry against him in the year 1993 and submitted his report on 14th July 1993 and making the said preliminary enquiry as the basis, charge-sheet Annex.1 was served on him after lapse of six years from the date of alleged incident. While placing on record the ex-parte preliminary enquiry report as Annex.3, the petitioner has also submitted that the said report was prepared without examining the parents of the deceased and according to the version of the petitioner, from bare perusal of the said report, it is crystal clear that no specific reason is mentioned in the said report for cause of death of Master Javed.
The petitioner, thereafter, has switched on to order dated 4th June 2002, whereby enquiry officer was appointed against him. During the course of enquiry, the [5] enquiry officer in all examined 11 witnesses. At this stage, the petitioner has also made an endeavour to impress upon this Court that the requisite operation of Master Javed was performed with the verbal consent of the parents. By alleging these facts, according to the petitioner there was no iota of evidence to attribute any sort of negligence on the part of the petitioner in performing the operation of Master Javed. Thereafter, the petitioner has pleaded that neither the enquiry report was furnished to him nor any notice as envisaged under Article 311(2) of the Constitution was served on him and straightway the impugned order dated 25th August 2006 (Annex.4) was passed whereby penalty of compulsory retirement from service with proportionate pension was inflicted on him. The assertion of the petitioner in the writ petition is that while passing the impugned order, mandatory provision of Article 311(2) of the Constitution was given go-by by the respondent. While making comments on the impugned order, the petitioner has also alleged in the writ petition that the enquiry report was not furnished to him and the disciplinary authority has merely observed an empty formality of publishing the show cause notice envisaged under Article 311(2) of the Constitution of India in two local newspapers which are not widely circulated in the area. As regards the notice sent to [6] the petitioner at his residential address, the petitioner has averred that at the relevant time he was posted at Degana and Sojat City, and therefore, the said notice should have been sent to him at his official address. Thus, in sum and substance, the submission of the petitioner is that publication of notices in the local newspaper and sending a notice at his residential address is nothing but a camouflage and as such it is a total non-compliance of the law. Adverting to the impugned order, the petitioner has attacked the same on the ground that the same has been passed without application of mind and the foundation of the said order is the report of the preliminary enquiry and not the regular enquiry which was conducted as per Rule 16 of the Rules of 1958.
On behalf of the respondent, reply to the writ petition is submitted and the averments made in the writ petition are refuted. In the return, respondent has highlighted the conduct of the petitioner by alleging that Case No.263 of 2005 under Section 7 read with Section 13 (1) & (2) of Prevention of Corruption Act 1988 was registered against the petitioner on 28th December 2005 and consequently the Department of Personnel, Government of Rajasthan has placed him under suspension. [7] The respondent has further made endeavor in the reply to justify its action by alleging that the enquiry under Rule 16 of the Rules of 1958 was conducted strictly in accordance with law for serious omission and commission on the part of the petitioner. As per the version of the respondent in the reply, Master Javed was subjected to surgical operation by the petitioner without obtaining consent of his parents and while performing the operation, the petitioner has not solicited the services of an Anesthetist and the supporting paramedical staff. Highlighting the culpable negligence on the part of the petitioner, the respondent has also stated in the reply that the injections were used by the petitioner himself without due care and caution. As per respondent, despite having knowledge about the fact that Fortwin injection was not permissible vis-à-vis a boy of less than 12 years of age, the same was injected to Master Javed and that has proved to be fatal resulting in his death. While stressing the total callousness on the part of the petitioner, the respondent has averred in the reply that Fortwin injection cannot be used for an infant up to five years of age, rather it is prohibited in case of an infant. Despite prohibition the same was injected to the patient by the petitioner by throwing to the winds the norms prescribed for use of such drugs.
[8]
Joining the issue about compliance of Article 311 (2) of the Constitution of India, the respondent has alleged in the reply that the report of enquiry was sent at residential address of the petitioner accompanied by copy of the enquiry report by a registered letter on 1st November 2004 but the said letter was not responded by the petitioner. In order to call upon the petitioner to submit his reply/explanation, yet again an affirmative attempt was made by the respondent by way of publishing the notice in two local newspapers of the area, namely, Rastradoot and Dhola Maru. Therefore, in these circumstances, a sincere endeavor was also made by the disciplinary authority to solicit his reply/explanation. However, despite sending letter and publishing notices in two newspapers for almost ten months, the petitioner has not submitted any reply/explanation and that being so the competent authority after obtaining the sanction from Public Service Commission has passed the impugned punishment order. The respondent has reiterated its stand that the provisions of Rule 16 of the Rules of 1958 were adhered to in its letter and spirit, and therefore, there is no infirmity much less legal infirmity in the impugned order.
[9]
After submission of reply to the writ petition, additional pleadings were submitted by the petitioner in the form of rejoinder and the facts mentioned in the writ petition were reiterated. In the rejoinder, the petitioner has countered the allegations that enquiry report was served on him or that he was in know of the fact that notice whereby his explanation/reply is solicited is published in the newspaper. For this positive assertion, once again the petitioner has reiterated his stand that the newspapers which were selected by the disciplinary authority for publication of notice were not having wide circulation, and therefore, this attempt on the part of the disciplinary authority was nothing but an empty formality. For authenticating his case against the impugned order, the petitioner has also placed reliance on a judgment passed by the Addl. Sessions Judge, Parbatsar on his criminal appeal, whereby he was acquitted of the offence under Section 304- A of the Indian Penal Code. According to the petitioner, the allegations which were levelled against him in the criminal case were identical and the evidence was almost same, and therefore, there is no justification to keep the order of punishment intact after his acquittal by a competent criminal court. Thus, on the anvil of his acquittal by a competent court, the petitioner has craved the reliefs [10] sought for in the writ petition.
After submission of rejoinder, one more attempt was made by the petitioner for buttressing his grievances against the impugned order by way of filing an additional affidavit. Along with the additional affidavit, the petitioner has placed on record the letter dated 01.11.2004 (Annex.6) and copy of the enquiry report which according to the petitioner was obtained by him subsequently under Right to Information Act. Referring to Annex.6, the petitioner has pointed out that at the time of issuance of the notice, the petitioner was posted at Degana, and therefore, there was no occasion for the disciplinary authority to have sent the said notice at his residential address.
The learned counsel for the petitioner, Mr. Sandeep Shah, has vehemently argued that the order impugned has been passed in gross violation of principles of natural justice because before passing the said order, copy of enquiry report and the notice envisaged under Article 311 (2) was not served on him. For substantiating this contention, the learned counsel for the petitioner has also placed reliance on the averments contained in Para 7 & 8 of the writ petition and reply to these paras submitted on [11] behalf of the respondent. According to Mr. Shah, there is absolutely no proof available on record to show that the notice Annex.6 and the enquiry report was served on the petitioner, and therefore, the impugned order is vitiated solely on this count that it has been passed in violation of principles of natural justice and mandatory provisions contained in Article 311(2) of the Constitution of India. For this proposition, learned counsel for the petitioner has placed heavy reliance on two decisions of Apex Court, namely, Union of India & Ors. Vs. Mohd. Ramzan Khan [(1991) 1 SCC 588], and Managing Director ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. [(1993) 4 SCC 727].
Assailing the impugned order, the learned counsel for the petitioner has urged that the said order is passed by the disciplinary authority without application of mind. The contention of the learned counsel for the petitioner is that the disciplinary authority has given complete go-by to Rule 16(9) of the Rules of 1958 inasmuch as the Disciplinary Authority has not recorded its independent finding on each charge which was attributed to the delinquent. Referring to sub-rule (9) of Rule 16 of the Rules of 1958, the learned counsel for the petitioner has [12] contended that the said Rule is mandatory in character and as per rigor of the said rule, it is enjoined on the disciplinary authority to objectively examine the enquiry report and thereafter to record its independent finding on every charge, which is attributed to a delinquent employee. As per learned counsel for the petitioner, if the impugned order is examined on the touchstone of Rule 16(9) of the Rules of 1958, then it will ipso facto reveal that the disciplinary authority has not recorded any independent finding worth the name and this sort of omission on its part has rendered the order vulnerable. To authenticate this submission, the learned counsel for the petitioner has placed reliance on two judgments of Apex Court, namely, G. Vallikumari Vs. Andhra Education Society [(2010) 2 SCC 497], and Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors. [(2010) 9 SCC 496].
The learned counsel for the petitioner Mr. Shah would urge that the enquiry report, which is the basic document for issuance of impugned punishment order, is laconic because the enquiry officer has not properly appreciated and threshed out the evidence which was tendered against the petitioner. According to learned counsel for the petitioner, by not discussing the evidence, [13] the enquiry officer has miserably failed in unearthing the truth. For supporting this contention, the learned counsel has placed reliance on State of Uttar Pradesh & Ors. Vs. Saroj Kumar Sinha [(2010) 2 SCC 772].
Learned counsel for the petitioner has also urged that looking to the delinquency of the petitioner the impugned punishment is too harsh and is not commensurating with the alleged misconduct attributed to him. For this proposition, the petitioner has taken shelter of Wednesbury's principle of proportionality.
Lastly, the learned counsel for the petitioner has submitted that the impugned order is not sustainable for the simple reason that for same set of allegation founded on almost identical evidence the petitioner has already been acquitted in a criminal case, the order impugned is not sustainable and after his acquittal the order impugned is liable to be quashed and set aside. For this proposition, the learned counsel for the petitioner has placed reliance on a judgment of Apex Court in case of G.M. Tank Vs. State of Gujarat & Anr. [(2006) 5 SCC 446].
[14]
Per contra, Mr. M.A. Siddiqui, learned Addl. Govt. Counsel, and Mr. Yashpal Khileree, learned Dy. Govt. Counsel, have urged that while passing the impugned order the disciplinary authority has not committed any procedural illegality. Learned Govt. counsels have urged that the scope of judicial review in the matter of departmental enquiries is very limited and the same is not akin to that of an appellate Court. Repelling the contentions raised on behalf of the petitioner, the Govt. counsel has urged that the disciplinary enquiry was conducted against the petitioner in strict adherence of the Rules of 1958 and on his indictment in the enquiry, the petitioner has been penalized with a punishment, which is commensurating with the misconduct. According to learned Govt. counsels, in view of sincere efforts by the respondent for making endeavor to furnish enquiry report to the petitioner and in sending the notice, the technical objection that the notice and copy was not sent at his official address is not at all tenable. As per Govt. counsels, during the course of enquiry, 11 witnesses were examined and all of them have testified against the petitioner to prove his delinquency. The learned Govt. Counsels, during the course of arguments also invited my attention to Para 6 and 11 of reply to the charge-sheet submitted by the petitioner. Emphasizing the recitals [15] contained in Para 6 & 11 of reply to the charge-sheet (Annex.2), the learned Government Counsels urged that on the basis of very language employed in Para 6 & 11 of the reply to the charge-sheet, any prudent man can draw an irresistible conclusion that both injections i.e. Compose and Fortwin were used by the petitioner while performing the operation and were injected in the body of Master Javed. This fact according to learned Govt. counsels clearly clinches the issue and this sort of candid admission on the part of the petitioner is sufficient to discredit all the contentions of the petitioner. While stoutly defending the enquiry report, the learned Govt. counsels submitted that the report of enquiry officer is complete in all respect, and as such, there is no infirmity in the said report. The learned Govt. counsels while cementing their arguments in support of the impugned order have argued that the present case is a glaring example of callousness and negligence on the part of a surgeon in discharge of his duties, and therefore, no leniency vis-à-vis the petitioner is desirable. Mr. Siddiqui has strenuously urged that the petitioner, who was a doctor by profession, has thrown to the winds all the norms and ethics of a noble profession while performing the operation of an infant of five years, and therefore, in the given circumstances punishment order is just and the same is not [16] liable to be interfered with. In support of all contentions, the learned Govt. Counsels have placed reliance on the following verdicts:
1. State of Andhra Pradesh Vs. Chitra Venkata Rao [(1975) 2 SCC 557]
2. Bhagat Ram Vs. State of Himachal Pradesh & Ors. [(1983) 2 SCC 442]
3. Kailash Chand Sharma Vs. State of U.P. [(1988) 3 SCC 600]
4. B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749]
5. State Bank of Patiala & Ors. Vs. S.K. Sharma [(1996) 3 SCC 364]
6. Government of India & Anr. Vs. George Philip [(2006) 13 SCC 1]
7. State of U.P. Vs. Manmohan Nath Sinha [(2009) 8 SCC 310]
8. Commandant 22nd Battalion, Central Reserve Police Force, Srinagar & Ors. Vs. Surinder Kumar [(2011) 10 SCC 244].
In rejoinder, the learned counsel for the petitioner has submitted that there was no specific charge attributed to the petitioner that he wrongly injected Fortwin and therefore on this count alone the order impugned is not sustainable. For this contention, the petitioner has also laid stress on the statement of allegations (Annex.1) for seeking redressal from this Court against the impugned order. The learned counsel for the petitioner has also emphasized that the petitioner is having unblemished service career and therefore for a minor omission on his part, such a harsh punishment of compulsory retirement from service with proportionate pension is not sustainable. [17]
After hearing the learned counsel for the parties at length and perusing the materials on record, I feel it just and proper to deal with all the contentions in chronological order with the support of legal precedents cited at Bar by the rival counsels.
The first contention of the learned counsel for the petitioner hovers around the violation of principles of natural justice. The essence of the argument of the learned counsel that the disciplinary authority has not furnished the copy of the enquiry report and has also not issued notice calling his explanation is one facet of denial of reasonable opportunity. In order to strengthen his contention, the learned counsel for the petitioner has invited my attention to a celebrated decision of Apex Court in case of Union of India & Ors. Vs. Mohd. Ramzan Khan [(1991) 1 SCC 588]. The Apex Court in this verdict while examining this issue has laid down the law in clear and unequivocal terms that furnishing of copy of enquiry report is pre-requisite before imposition of penalty on the delinquent employee. The Apex Court has observed in Para 15 & 16 as infra:
15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his [18] representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forth-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-
Second Amendment has not brought about any change in this position.
16. At the hearing some argument had been advanced on the basis of Article 14 of the Constitution, namely, that in one set of cases arising out of disciplinary proceedings furnishing of the copy of the inquiry report would be insisted upon while in the other it would not be. This argument has no foundation inasmuch as where the disciplinary authority is the Inquiry Officer there is no report. He becomes the first assessing authority to consider the evidence directly for finding out whether the delinquent is guilty and liable to be punished. Even otherwise, the inquiries which are directly handled by the disciplinary authority and those which are allowed to be handled by the Inquiry Officer can easily be classified into two separate groups - one, where there is no inquiry report on account of the fact that the disciplinary authority is the Inquiry Officer and inquiries where there is a report on account of the fact that an officer other than the disciplinary authority has been constituted as the Inquiry Officer. That itself [19] would be a reasonable classification keeping away the application of Article 14 of the Constitution. This view of the Apex Court is further reiterated in a subsequent Constitution Bench judgment in case of Managing Director ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. [(1993) 4 SCC 727]. In this case, the Apex Court has further cemented the verdict of Mohd. Ramzan's case (supra), making it obligatory for the disciplinary authority to serve a copy of enquiry report before imposition of punishment. Para 29 of the judgment reads as under:
29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
After examining the submission of the learned counsel for the petitioner, there is no quarrel in the legal position that furnishing of copy of enquiry report to the delinquent employee is essential before he is visited with the order of punishment. The task of this Court to [20] adjudicate this issue is not simple and for analyzing this vital issue, it has become imperative for this court to delve deep into the factual aspects of the matter. The positive assertion of the petitioner, that he was not served a notice and furthermore he was not furnished with the copy of enquiry report, is seriously disputed by the respondent. With a view to dispel this positive assertion of the petitioner, the respondent has categorically averred in reply to the writ petition that notice Annex.6 was sent to the petitioner along with copy of enquiry report at his residential address by registered post. Even after sending the notice and report of enquiry by registered post, sincere endeavor was also made at its behest to call upon the petitioner to have access to the enquiry report and furnish his explanation pursuant to the notice. In this connection, the respondent has placed reliance on publication of notice to this effect in two daily newspapers, namely, "Rastradoot" and "Dainik Dhola Maru". In this background, if the contention of the learned counsel for the petitioner is examined on the touchstone of the law laid down by the Apex Court, in my considered opinion, the ratio decidendi of both the judgments cannot help the cause of the petitioner. The substantial compliance of law by the respondent to apprise the petitioner about his indictment in the enquiry, clearly [21] bails out the respondent from the allegation of non- adherence of law. That apart, there is no quarrel in the factual position that the entire enquiry was conducted in presence of the petitioner and he has participated in the enquiry, and therefore, it cannot be presumed that he was totally unaware about the final outcome of the enquiry. One more glaring fact, which requires specific emphasis here, is that from the date of issuance of notice Annex.6, and from the date of publication of the notices in the newspapers, after almost ten months, the impugned order has been issued by the disciplinary authority and during this interregnum period, the petitioner has not bothered to seek any information from the disciplinary authority. This sort of callousness or apathy by the petitioner vis-à-vis a disciplinary enquiry, which was having direct impact on his service career, is unthinkable. In the considered view of this Court, such an attitude of the petitioner in the given circumstances is against the basic tenets of prudency. Therefore, in totality of circumstances, argument of the learned counsel for the petitioner appears to be very attractive, but I do not feel persuaded to conclude that the respondent has not adhered to the law laid down by Apex Court.
[22]
At this juncture, this Court feels that role of natural justice in departmental enquiries is to be elucidated. What parameters are to be applied in departmental enquiries for adherence of natural justice, are to be examined in legal parlance. The Apex Court had the occasion to examine this vital aspect in case of State Bank of Patiala & Ors. Vs. S.K. Sharma [(1996) 3 SCC 364]. In Para 28 of the said judgment, the Apex Court has made following observations:
28. The decisions cited above make one thing clear, viz., principles of natural justice cannot be reduced to any hard and fast formulae. As said in Russell v. Duke of Norfolk way back in 1949, these principles cannot be put in a straight-jacket. Their applicability depends upon the context and the facts and circumstances of each case. (See Mahinder Singh Gill v. Chief Election Commissioner. The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected.
(See A.K. Roy v. Union of India and Swadeshi Cotton Mills v. Union of India. As pointed out by this Court in A.K Kraipak v. Union of India, the dividing line between quasi-judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable - a fact also emphasised by House of Lords in Council of Civil Service Unions v. Minister for the Civil Service where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing - applying the test of prejudice, as it may be called
- that any and every complaint of violation of the rule of audi alteram partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/hearing may defeat the very proceeding - which may result in grave prejudice to public [23] interest. It is for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g., Liberty Oil Mills v. Union of India. There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by Clauses (b) and (c) or the proviso to Article 311(2)] or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate - take a case where the person is dismissed from service without hearing him altogether [as in Ridge v. Baldwin]. It would be a case falling under the first category and the order of dismissal would be invalid - or void, if one chooses to use that expression (Calvin v. Carr). But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report (Managing Director, E.C.I.L. v. B. Karunakar) or without affording him a due opportunity of cross-examining a witness (K.L. Tripathi) it would be a case falling in the latter category - violation of a facet of the said rule of natural justice - in which case, the validity of the order has to be tested on the touch-stone of prejudice, i.e., whether, all in all, the person concerned did or did not have a fair hearing. It would not be correct - in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and [24] test adopted in B. Karunakar should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid.
After analyzing the meaningful concept of law of natural justice and minor infraction of the procedural provisions, the Court has made following observations in Para 32 of the judgment:
32. Now, coming back to the illustration given by us in the preceding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause
(iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-
productive exercise.
Accordingly, this argument of learned counsel for the petitioner fails and is hereby rejected.
The next contention of the petitioner categorizing the impugned order as a non-speaking order and in clear [25] negation of Rule 16(9) of the Rules of 1958, deserves appreciation in light of Rule 16(9) of the Rules of 1958. For ready reference, the complete text of Rule 16(9) of the Rules of 1958 is reproduced hereunder:
16.(9) The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge.
The Disciplinary Authority may while considering the report of the Enquiring Authority for just and sufficient reasons to be recorded in writing remand the case for further/de-novo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other.
True it is, that Rule 16(9) of the Rules of 1958 mandates that a disciplinary authority, when it is not the enquiring authority, should consider the record of enquiry and record its finding on each charge. In the instant case, precisely, only one charge was attributed to the delinquent and for which the enquiry officer has indicted him, and analyzing the enquiry report and other materials the disciplinary authority while passing the impugned order has made endeavor to concur with the finding of the enquiring authority. On critical analysis of the impugned order, this Court feels that in totality, the order may not be happily worded but then on close scrutiny of the order, it is clearly discernible that the disciplinary authority has recorded an [26] affirmative finding about the proof of the charge against the delinquent. The test for adjudicating the legality of an order passed by a disciplinary authority, which is akin to a quasi- judicial authority, the parameters which are to be applied vis-à-vis a judicial order, cannot be pressed into service.
The learned counsel for the petitioner in support of this proposition has placed reliance on the judgment of Apex Court in case of G. Vallikumari Vs. Andhra Education Society [(2010) 2 SCC 497]. In this judgment, the Apex Court, while considering the role of a disciplinary authority, concluded that in such matters he acts as a quasi-judicial authority, and therefore, it is expected from such authority to record reasons for its conclusions. Para 19 of the judgment reads as under:
19. In his order, the Chairman of the Managing Committee did refer to the allegations leveled against the appellant and representation submitted by her in the light of the findings recorded by the enquiry officer, but without even adverting to the contents of her representation and giving a semblance of indication of application of mind in the context of Rule 120(1)
(d)(iv) of the Rules, he directed her removal from service. Therefore, there is no escape from the conclusion that the order of punishment was passed by the Chairman without complying with the mandate of the relevant statutory rule and the principles of natural justice. The requirement of recording reasons by every quasi-judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the [27] affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the concerned authority.
Yet another judgment on which the learned counsel for the petitioner has placed reliance in this behalf is Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors. [(2010) 9 SCC 496]. In this judgment, the Apex Court has analyzed the entire law on the issue of reasoned order/speaking order and summarized the principles on this facet of administrative law. In Para 47, the Court has laid down the parameters, which reads as under:
47. Summarizing the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision maker on [28] relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior Courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers [29] less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor).
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain EHRR 553, at 562 para 29 and Anya v. University of Oxford, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
On evaluation of the law laid down by the Apex Court and applying those principles on the touchstone of the peculiar facts and circumstances of the present case, I have no hesitation to hold that the disciplinary authority has not adhered to the parameters in its letter and spirit. However, this aspect deserves judicial scrutiny in the light of delinquency which was attributed to the petitioner. If the charge against the petitioner is examined, then it will ipso facto reveal that it was a case of medical negligence of a doctor while performing operation of an infant. The casual [30] and cavalier approach of the petitioner vis-à-vis precious human life cannot be lost sight while adjudicating the issue. That apart, the medical negligency attributed to the petitioner was proved during the disciplinary enquiry on the basis of evidence of the experts, and therefore, obviously in such a situation there was no occasion for the disciplinary authority to trench into and record his own conclusions. The disciplinary authority has, in fact, in the present case fully concur with the finding of the enquiring authority and keeping in view the seriousness of the delinquency, which has resulted in death of a minor child, has recorded an affirmative finding that charges leveled against the petitioner are proved. Therefore, in my considered view, some minor infractions by the disciplinary authority cannot help the petitioner, nor such minor infirmities can persuade this Court to conclude that the alleged non-compliance of Rule 16(9) of the Rules of 1958 has vitiated the impugned order. It is really strange that a doctor has not taken due care and caution while performing the operation of a minor kid and such callousness of the delinquent has taken away his life. Thus, viewed from any angle, applying the principles that when technicalities are pitted against substantial justice, substantial justice must prevail, I am constrained to hold that the order impugned cannot be [31] categorized as bad in law.
The next limb of argument of the learned counsel for the petitioner is about the enquiry report wherein the learned counsel for the petitioner has contended that the enquiry report is laconic, is obviously a submission of vital importance which requires judicial scrutiny. To authenticate this submission, the learned counsel has assailed the enquiry report by urging that the enquiry officer has not recorded proper finding of guilt against the petitioner and furthermore from the recitals contained in the enquiry report there is no iota of proof that the evidence tendered before him was properly appreciated. According to learned counsel for the petitioner, in fact, there is no iota of evidence against the petitioner to hold him guilty for the charge. In support of this proposition, the learned counsel for the petitioner has placed reliance on a judgment of Apex Court in case of State of Uttar Pradesh & Ors. Vs. Saroj Kumar Sinha [(2010) 2 SCC 772]. At the very outset, the dictum of this judgment cannot help the petitioner because in the said case, the Apex Court has laid down the role of enquiry officer that he should act unbiased and he is not supposed to act as representative of the department/disciplinary authority/government. As a quasi- [32] judicial authority, the function of the enquiry officer is to examine the evidence presented by the department and thereafter to conclude as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case, there is absolutely nothing on record to show that the enquiry officer has adopted a partisan attitude, or he has acted as representative of department or the disciplinary authority. Moreover, there is no whisper in the pleadings about the role of the enquiry officer. Therefore, in want of proper factual foundation, ratio decidendi of the judgment cited by the learned counsel for the petitioner cannot help him. Thus, on examining the enquiry report in its totality, I am not inclined to subscribe the view that the findings of the enquiry officer are laconic. Consequently, there is no substance in this contention of the petitioner.
The next submission of the learned counsel for the petitioner, that the impugned order is too harsh and not commensurating with the misconduct deserves examination in the light of facts of this case. The delinquency attributed to the petitioner was concerning his medical negligence while performing operation of a minor child. From the materials on record, there is no room of doubt that the [33] requisite operation for removing cyst on the head of Master Javed was performed by the petitioner and at the time of operation, neither he was assisted by paramedical staff, nor he has solicited the services of an Anesthetist. In fact, the entire operation was performed by the petitioner all alone and the injections namely Calmpose and Fortwin were also injected in the body of Master Javed by the petitioner. There cannot be two opinions about the fact that Diazepam (Calmpose) and Pentazocine (Fortwin) are the drugs having sedative effect on a patient which may cause respiratory depression. Use of Fortwin vis-à-vis a minor child of five years is fatal and normally such drugs are not advised to be used vis-à-vis a child below twelve years of age. Use of Pentazocine (Fortwin) coupled with Diazepam (Calmpose) resulted in respiratory depression leading to anoxia and causing death of Master Javed. It is really a cause of grave and serious concern that how a person of petitioner's caliber, who was a junior surgeon, has used these drugs while performing operation without help and monitoring of an Anesthetist.
In Modi's Medical Jurisprudence & Toxicology, while dealing with subject - Type of Anesthesia, the renowned author has summarized as infra:
[34]
"Death due to respiratory failure:
Problems pertaining to the respiratory system are the single largest cause of death. Respiratory failure in the anaesthetized patient may develop insidiously, as respiratory distress may not be obvious and cyanosis is a late sign. A serious degree of hypoxia may develop unless the anesthetist maintains a high level of vigilance".
Thus, the argument of the learned counsel for the petitioner that the punishment is shockingly disproportionate appears to be very alluring, but I am not impressed by this submission keeping in view the delinquency attributed to the petitioner. This argument of the learned counsel for the petitioner also requires judicial scrutiny on Wednesbury principles of proportionality. Analyzing Wednesbury principle on the touchstone of facts and circumstances of the present case, my irresistible conclusion is that punishment of compulsory retirement with proportionate pension is not harsh and disproportionate in the given circumstances. In the opinion of this Court, the punishment is just and proper or rather a benevolent decision. The position of principles of proportionality in India vis-a-vis punishments in service law is no more res-integra. In the matter of punishments in service law, the Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies to such a context. It is a trite law [35] that scope of judicial review in the matter of punishment is very much limited and this Court cannot sit as appellate authority over the decision of the disciplinary authority in such matters. Reliance in this behalf can be profitably laid on a decision of Apex Court in case of Government of India & Anr. Vs. George Philip [(2006) 13 SCC 1]. Para 11 of the said verdict reads as under:
11. It is trite that the Tribunal or the High Court exercising jurisdiction under Article 226 of the Constitution are not hearing an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee. The jurisdiction exercised by the Tribunal or the High Court is a limited one and while exercising the power of judicial review, they cannot set aside the punishment altogether or impose some other penalty unless they find that there has been a substantial noncompliance of the rules of procedure or a gross violation of rules of natural justice which has caused prejudice to the employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the charge. The scope of judicial review in matters relating to disciplinary action against employees has been settled by a catena of decisions of this Court and reference to only some of them will suffice. In B.C. Chaturvedi v. Union of India, it was observed as under in para 18 of the Report:
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact- finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment [36] imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
Considering the question of scope of judicial review in the matter of penalty/punishment, the Apex Court in its later judgment in case of Commandant 22nd Battalion, Central Reserve Police Force, Srinagar & Ors. Vs. Surinder Kumar [(2011) 10 SCC 244] has reiterated the said principle. The Apex Court has made following observations in Para 15 of the judgment:
15. Moreover, it appears from the impugned order that the High Court has in exercise of power of judicial review interfered with the punishment of dismissal on the ground that it was disproportionate. In Union of India v. R.K. Sharma, this Court has taken the view that the punishment should not be merely disproportionate but should be strikingly disproportionate to warrant interference by the High Court under Article 226 of the Constitution and it was only in an extreme case, where on the face of it there is perversity or irrationality that there can be judicial review under Articles 226 or 227 or under Article 32 of the Constitution.
Since this is not one of those cases where the punishment of dismissal was strikingly disproportionate or where on the face of it there was perversity or irrationality, the Division Bench of the High Court ought not to have interfered with the order of dismissal from service.
[37]Accordingly, this contention also fails and merits rejection.
The last submission of the learned counsel for petitioner is that for the same allegation the petitioner was criminally prosecuted has resulted in his acquittal and therefore the impugned order is not sustainable. For authenticating this submission, the learned counsel has urged that the charge which was attributed to him in disciplinary enquiry is also made a basis for his criminal prosecution and therefore the evidence in both these matters was common. With these assertions, while placing reliance on the judgment of competent criminal court (Annex.5), the learned counsel has buttressed his submissions by relying on a judgment of Apex Court in case of G.M. Tank Vs. State of Gujarat & Anr. [(2006) 5 SCC 446].
On examining the ratio decidendi of the said judgment in the light of facts and circumstances of the present case, in my opinion, the said verdict cannot help the cause of the petitioner. In G.M. Tank's case (supra), the allegation against the individual delinquent employee in criminal case was illegal accumulation of excess income by way of gratification and for the same charge he was [38] subjected to departmental enquiry. Thus, in peculiar facts of that case and considering the redeeming fact that the incumbent employee has already attained the age of superannuation, the Apex Court quashed and set aside the order of dismissal after his acquittal by a criminal court. In the present case, the facts are clearly distinguishable and the punishment is also not of dismissal but compulsory retirement with proportionate pension. That apart, applying the principles of the standard of proof in a departmental enquiry vis-à-vis a criminal trial and considering the serious omissions on the part of the petitioner in discharge of his duties as a surgeon, in my opinion, the said verdict of Apex Court cannot come to the rescue of the petitioner. Consequently, this contention of the petitioner also falls flat.
The contention of the learned counsel for the petitioner regarding framing of the charge elaborated during the course of arguments is merely ornamental. A cumulative reading of the chargesheet and statement of allegation makes it amply clear that charge attributed to the petitioner in substance is covering all his omissions. Thus, there is no merit in this argument, and as such, it is negated.
[39]
Although this Court has examined all the pros & cons of the lis involved in the matter with the assistance of the learned counsels appearing for the rival parties, but a very vital issue on which the learned counsels appearing for the respondent has laid great stress deserves appreciation. The learned counsel for the respondent has urged that the scope of judicial review in exercise of extraordinary jurisdiction of this Court is very much limited and it is not akin to that of an appellate authority so as to re-apprise the evidence and the conclusions arrived at by the disciplinary authority.
Therefore, now adverting to the scope of judicial review in the matter of disciplinary enquiry, it has become imperative for this Court to examine the authoritative legal precedents on which reliance is placed by the learned counsel for the respondent. The Apex Court in case of State of Andhra Pradesh Vs. Chitra Venkata Rao [(1975) 2 SCC 557], wherein in Para 21 of the verdict, the Apex Court has observed as infra:
21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao. First, there is no warrant for the view that in considering whether a public officer is guilty of [40] misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair derision by some consideration extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.[41]
In case of Bhagat Ram Vs. State of Himachal Pradesh & Ors. [(1983) 2 SCC 442], the Apex Court has reiterated the principle that this Court under Article 226 of the Constitution does not function as a court of appeal over the findings of the disciplinary authority.
The next judgment on which the learned counsel for the respondent has placed reliance, namely, Kailash Chand Sharma Vs. State of U.P. [(1988) 3 SCC 600] also emphasizes the scope of judicial review in a writ petition under Article 226 of the Constitution of India. In this verdict also, the Apex Court has declined to re-assess the evidence.
In yet another judgment on which the learned counsel for the respondent has placed reliance is the case of B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749]. In the said verdict, the Apex Court has dilated on the scope of judicial review and observed in Para 12 as under:
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court.
When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural [42] justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held that proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have never reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
To examine the scope of judicial review in the matter of departmental enquiries, reliance can be profitably made to the precedent of Apex Court cited by the learned counsel for the respondent, viz., State of U.P. Vs. Manmohan Nath Sinha [(2009) 8 SCC 310]. In Para 15 of the said verdict, the Apex Court has made following observations:
15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to re-[43]
appreciate and reappraise the evidence led before the Inquiry Officer and examine the findings recorded by the Inquiry Officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court.
The law, as emerged out from the aforesaid judgments of the Apex Court, on the scope of judicial review in exercise of extraordinary jurisdiction of this Court, is consistent, and therefore, the ratio decidendi of these judgments deserve due credence. Thus, I feel persuaded not to interfere with the finding of fact recorded by the Inquiry Officer and the conclusions arrived at by the Disciplinary Authority on the basis of evidence and other materials on record.
After examining the matter thoroughly and considering the delinquency of the petitioner, there is no scope for interference in the impugned order. The insensitivity of the petitioner vis-à-vis a minor patient has shocked the conscience of this Court so as to dissuade it from taking any charitable view in the matter. At this juncture, I am constrained to observe that the petitioner [44] who was a member of the noblest of noble profession has alienated ethics of a medical practitioner and prescribed norms of surgery so as to tentatively rethink that the common perception "Doctors are next to God for a patient"
is only a myth, and not a universally accepted doctrine.
Before parting, I cannot resist my temptations to quote A.L.GOODHART on "Justice". A.L. Goodhart has rightly summed up phenomenon of "Justice" in these lines:
"There is something to be said for the view that justice should not only be seen to be done to the individual but also that it should be done to the community as a whole. It is not so done when a guilty man is given an opportunity to continue his depredations owing to a technical slip".
The upshot of the above discussion is that there is no merit in this writ petition, and the same is accordingly dismissed.
The costs are made easy.
(P.K. LOHRA), J.
arora/