Jayesh vs State on 1 August, 2011

[Cites 6, Cited by 0]

Gujarat High Court

Jayesh vs State on 1 August, 2011

Mr.Rashesh Rindani, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondent No.1 and Mr.H.S.Munshaw, learned advocate waives service of notice of Rule on behalf of respondent No.2.

By preferring this petition under Article 226 of the Constitution of India, the petitioner has made the following prayers:-

"(A) to admit this petition;

(B) to issue a writ of certiorari or a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 7.5.2011, communicated on 16.5.2011, passed by respondent No.2, by which the Memorandum of Understanding executed between the petitioner and the respondents has been calcelled, and further directing the respondents to continue the MOU, which is, as such, renewed upto March, 2012;

(C) to issue a writ of certiorari, or a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 7.5.2011, communicated on 16.5.2011, passed by respondent No.2, by which refund of the amount paid by the respondents to the petitioner for rendering medical services to below poverty line women, is claimed/ sought from Ma Hospital and Ronak Hospital of the petitioner;

(D) Pending admission hearing and final disposal of this petition, Your Lordship may be pleased to stay execution, operation and implementation of the orders dated 7.5.2011 in respect of recovery of the amount as well as cancellation of MOU by the respondents and be further pleased to direct the respondents to continue with the MOU, which is, as much, renewed upto March, 2012.

(E) to pass such other and further orders as may be just and necessary in the circumstances of the case."

The facts of the case, relevant for the decision of this petition are that, the petitioner is a Doctor, and is doing private practise as a Gynaecologist, at Patan. The Government evolved two schemes known as " Chiranjivi Yojna" and "Balsakha Yojna", with a view to reducing the mortality rate of infants and expectant mothers during deliveries. Under the Chiranjivi Yojna, the services of private Gynaecologists are taken by the Government and an amount of Rs.2800/- is paid to the concerned Doctor. The said Doctor has to verify the BPL Card or certificate issued by the Talati-cum-Mantri to the expectant mother, and only then her case is to be registered, without charging any fee and delivery is to be performed after such registration. If the expectant mother is accompanied by an 'Asha' worker or Anganwadi worker from her village, such worker is to be paid remuneration of Rs.50/-. If the patient hails from a remote place, she would be paid Rs.200/- towards transportation, and if the patient is from Patan City itself, an amount of Rs.100/- is to be paid to her towards transportation charges. As per the Balsakha Yojna, as soon as the birth of a child takes place, a Paediatrician is called to conduct a check-up of the newly-born child. According to the petitioner, two Paediatricians, namely, Dr.Hiren Patel and Dr.Divyesh Shah are associated with the Hospitals of the petitioner. The petitioner entered into a Memorandum of Understanding with respondent No.2, Mission Director, District Health Mission and District Health Officer, District Panchayat, Patan, with respect to Ronak Hospital and Ma Hospital, run by him, under the Chiranjivi Yojna and Balsakha Yojna. Both the said hospitals are located at Patan. According to the petitioner, during the period with effect from April 2010 to October 2010, the petitioner conducted 686 deliveries at Ronak Hospital, Patan, and 357 deliveries at Ma Hospital, Patan, and other branch hospitals, run by him in district Patan. The petitioner submitted vouchers with respect to the same to the District Health Officer, Patan, and received the payment. According to the petitioner, he has rendered services in remote villages such as Vayad, Harij and Chanasma, where no proper medical facilities are available, and deliveries are being conducted by him in the Hospitals run by him at the said places. A complaint came to be made against the petitioner, alleging that he has conducted deliveries at branch hospitals, other than those located at Patan, for which the Memorandum of Understanding has been entered into. After an inquiry, the impugned order dated 07.05.2011 was passed, directing the petitioner to refund the amounts received by him as remuneration for conducting delivery cases at places other than Patan. The petitioner has been directed to refund Rs.6,30,635/- under the Chiranjivi Yojna and Rs.4,70,400/- under the Balsakha Yojna, totalling to Rs.11,08,035/- from Ma Hospital. Further the petitioner has been directed to refund Rs.12,60,765/- from Ronak Hospital. The Memorandum of Understanding executed by the respondents with Ronak Hospital and Ma Hospital, run by the petitioner has also been cancelled and the petitioner has been directed to pay the above mentioned amount, within a period of 15 days. It is the case of the petitioner that the impugned orders dated 07.05.2011 (four in number) have been passed, without affording an opportunity of hearing to the petitioner. Aggrieved thereby, the petitioner has approached this Court, by way of the present petition.

Notice was issued in the petition on 03.06.2011, and it was directed that no coercive steps be taken against the petitioner, by the respondents. The affidavit-in-reply has been filed on behalf of respondent No.2, refuting the contentions raised in the petition, and asserting that, the petitioner did not co-operate during the course of inquiry by a team of two Doctors, therefore, there is no violation of the principles of natural justice have been violated.

Mr.Mehul Sharad Shah, learned advocate for the petitioner, has submitted that the impugned orders dated 07.05.2011 have been passed in total violation of the principle of natural justice, as no opportunity of hearing has been afforded to the petitioner. It is submitted that 90% of the work of the petitioner is based on the Chiranjivi Yojna and Balsakha Yojna. The petitioner has been directed to refund a total amount of Rs.22 Lakhs, within a period of 15 days from the receipt of the impugned order, which amounts to infliction of civil consequences upon the petitioner. No Show Cause Notice has been issued to the petitioner and neither has an opportunity of hearing been afforded to him. Therefore, on this ground alone, and without prejudice to other contentions, the impugned orders are required to be quashed and set aside.

On 26.07.2011, Mr.H.S.Munshaw, learned advocate for respondent No.2, had been requested to take instructions whether a Show Cause Notice had been issued and an opportunity of hearing had been afforded to the petitioner before passing the impugned orders. Today, during the course of hearing, Mr.H.S.Munshaw, learned advocate, has tendered a copy of communication dated 29/30.07.2011, of respondent No.2, addressed to him, wherein respondent No.2 has communicated that all four orders dated 07.05.2011, which are impugned in the petition, with respect to Ronak Hospital and Ma Hospital, Patan, shall be withdrawn and fresh orders shall be passed, after affording the petitioner an opportunity of being heard.

Having heard learned counsel for the respective parties and in view of the submissions by them as well as the contents of communication dated 29/30.07.2011, it clearly emerges that the impugned orders dated 07.05.2011, have been passed without issuance of a Show Cause Notice to the petitioner and without affording him an opportunity of hearing. In view of the settled legal position that shall be referred to herein-below, the impugned orders cannnot be sustained, as they have been passed in violation of the principles of natural justice.

In the case of Malavkumar Arunbhai Patel Vs. Sardar Patel University and Ors. reported in (2006) 3 G.L.H. 695, this Court, relying upon certain judgments of the Apex Court, has held as below :

"23. Any action taken by an administrative or quasi judicial authority which entails civil consequences should only be taken after complying with the principles of natural justice. Although the principles of natural justice cannot be put into a strait-jacket formula, it cannot be disputed that the doctrine of natural justice exists not only to secure justice but also to prevent the miscarriage of justice. It is true that strict rules of evidence do not apply in proceedings such as those which took place in the case of the petitioner before the "Unfair Means Committee". However, even the requirement of preponderance of probabilities has not been adhered to since the impugned Notification dated October 4,2000 as well as the Minutes of the proceedings which led to the passing of the impugned order do not disclose the material which was available with the committee which pointed out the involvement of the petitioner in the incident. In that view of the matter, the impugned order is also not a speaking one and does not disclose the reasons or the grounds on which the decision to permanently debar the petitioner has been taken.

24. In A.K.Kraipak v. Union of India, reported in AIR 1970 SC 150 the aim and relevance of the principles of natural justice have been clearly enunciated by the Constitution Bench of the Supreme Court in para 20 thereof, which reads as under:

"20.

The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (Audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala, Civil Appeal No. 990 of 1968, D/- 15-7-1968 = (AIR 1969 SC 198) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."

25. Further in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, reported in (2001)1 SCC 182, the Supreme Court has held as under in paragraphs 1 and 2 of the reported judgment:

"Since the decision of this Court in Kraipak's case (A. K. Kraipak v. Union of India) one golden rule that stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. What, however, does this doctrine exactly mean? Lord Reid about four decades ago in Ridge v. Baldwin very succinctly described it as not being capable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances - who then is a reasonable man - the man on the clapham omnibus? In India, however, a reasonable man cannot but be a common man similarly placed. The effort of Lord Reid in Ridge v. Baldwin in not attributing a definite meaning to the doctrine but attributing it to be representing a fair procedure still holds good even in the millennium year. As a matter of fact this Court in the case of Keshav Mills Co. Ltd. v. Union of India upon reliance on the attributes of the doctrine as above stated as below (SCC p.387,para

8) "8.

The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of natural justice cannot be put into a strait-jacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in H. K. (an infant), In re. It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin case as 'insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances'. However, even the application of the concept of fair-play requires real flexibility. Everything will depend on the actual facts and circumstances of a case. As Tucker, L.J observed in Russell v. Duke of Norfolk:

"The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth."

2. While it is true that over the years there has been a steady refinement as regards this particular doctrine, but no attempt has been made and if we may say so, cannot be made to define the doctrine in a specific manner or method. Strait-jacket formula cannot be made applicable but compliance with the doctrine is solely dependent upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of non-compliance with the doctrine, the law courts in that event ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most-accepted methodology of a governmental action."

26. It is now an accepted proposition of law that any statutory body which is entrusted by statute with discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other. Even an administrative order, which involves civil consequences must be made consistently with the rules of natural justice. Although the expression 'civil consequences' has not been defined anywhere, the observation made in Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 at para-66 on page 440 is relevant in this context and reads as below:

"What is civil consequence, let us ask ourselves, by passing verbal booby-traps? 'Civil consequences' undoubtedly cover infraction of not merely property or personal rights but of civil liberties material deprivation and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence"

27. The permanent debarring of the petitioner from appearing in any examinations conducted by the University and from seeking admission in any of the courses to be conducted by the University, no doubt entails serious civil consequences. In these circumstances, the rule of Audi Alteram Partem should have been followed by the respondents. The principle that no man should be condemned unheard and both sides must be heard in order to ensure fairness on the part of the deciding authority or body before passing any order is well known. A person against whom any action is sought to be taken which entails civil consequences must have knowledge about the allegations/ charges/materials against him on the basis of which such a decision is sought to be taken."

If the impugned orders dated 07.05.2011 are tested on the touchstone of the principles of law enunciated in the above-quoted judgments, it is clear that the petitioner has been visited with civil consequences, without being afforded an opportunity of hearing, or a chance to state his defence and controvert the allegations against him. The Rule of Audi Alteram Partem has, therefore, been violated by the respondents.

For the afore-stated reasons, the impugned orders dated 07.05.2011 (four in number), issued in respect of Ronak Hospital and Ma Hospital, Patan, are hereby quashed and set aside. It is open for respondent No.2 to pass fresh orders after affording the petitioner a reasonable and adequate opportunity of hearing, in accordance with law.

It is clarified that the Court has not touched upon any other contention, that has been raised by the petitioner in the petition. The impugned orders have been set aside solely on the ground that they violate the principles of natural justice.

The petition is partly allowed, in the above terms. Rule is made absolute, accordingly. Parties to bear their own costs.

Direct Service of this order is permitted.

[SMT.

ABHILASHA KUMARI, J.] ..mitesh..

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Gujarat High Court