Dr. Vinod Kumar Shakya & another vs State of Madhya Pradesh

I.A.No.2753/18, an application for urgent hearing during summer vacation is taken up, considered and allowed for the reasons mentioned therein.

The instant Intra Court appeal filed u/S. 2 of the M.P. Uchcha Nyalaya (Khand Nyaypeeth Ko Appeal), Adhiniyam, 2005 assails the final order

dated 4/5/2018 in Writ Petition No.2258/18 passed by the learned single judge while exercising writ jurisdiction u/Art. 226 of the Constitution disposing

of the petition in question extending liberty to the appellants/petitioners to avail alternative remedy prescribed in clause 11.3 r/w clause 14 of the

Samvida Manav Sansadhan Manual 2017 issued by the National Health Mission, after deciding both the principal issues of CMHO being incompetent

to issue impugned order and the same having issued in violation of principles of natural justice, against the appellants/petitioners.

Learned counsel for the rival parties are heard on the question of admission and also final disposal.

Learned counsel for the appellants/petitioners has argued with great vehemence and at great length, reiterating all the issues that were raised

before the learned single judge by taking us through the pleadings in the petition contained therein and the findings of the learned single judge recorded

against the appellants/petitioners. This court refrains from making any comment on the merits of the matter since the appellants/petitioners have been

extended liberty to avail the in-house alternative remedy which is available to a person aggrieved, lest the case of appellants before the

enquiry/appellate authority may get prejudiced by recording of any findings by the writ court, on merits.

Clause 11.3 deals with various enquiry officers and appellate authority to deal with complaints against contractual employees appointed under the

said Mission and also Clause 14 providing for various grievances a contractual employee can raise before the said authorities. The table given in

Clause 11.3 prescribes different enquiry authorities and appellate authorities for different kind of employees.

1 The appellate No.1-Dr. Vinod Kumar Shakya was appointed as Medical Officer at Community Health Centre, Mohana, District Gwalior whereas

the appellate No.2-Dr. Pankaj Gupta was appointed as Medical Officer at Primary Health Centre Kariyawati, District Gwalior. The table given in

Clause 11.3 of the guidelines prescribes enquiry committee headed by Regional Director Health Services/Deputy Director as the enquiry authority and

the Director National Health Mission as the appellate authority for Medical Officer appointed at district level as well as local level which includes

Community Health Centre and Primary Health Centre (as in the case herein).

2 Learned counsel for the appellants/petitioners has expressed apprehension that even if the liberty extended is exercised by them, their case would

not be heard in an impartial and non-prejudicial manner due to the learned single judge recording findings on both important issues involved in the case.

5.3 This court is in agreement with the apprehension expressed by the learned counsel for the appellants as the learned single judge has recorded a

detailed findings on merits on the issue of competency of CMHO to issue impugned order and also that the said order does not violate principles of

natural justice (audi alteram partem).

5.4 This court thus has to step in to ensure that the remedy directed to be availed as per clause 11.3, is saved from becoming futile.

5.5 Reason is obvious. The findings recorded by the learned single judge would be binding upon the enquiry authority and as well as the appellate

authority and therefore to ensure a non-prejudiced and un-biased atmosphere it is essential that appropriate orders are passed herein by exercising writ

appellate jurisdiction.

Consequently, the present appeal is disposed of by directing to the extent as follows :-

Enquiry authority or the appellate authority, as the case may be, shall not be prejudiced or persuaded by the findings recorded by the learned single

judge in the order dated 4/5/2018 in W.P.No.2258/18 while considering representation/appeal of the appellants against their orders of removal from

service.

No cost.