Chattisgarh High Court
Dr.Ramesh Kumar Gupta vs State Of Chhattisgarh And Anr on 22 February, 2024
Author: Rajani Dubey
Bench: Rajani Dubey
Neutral Citation
2024:CGHC:6158
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on : 22.11.2023
Order delivered on : 22.02.2024
WPS No.6350 of 2014
Dr. RK Bhange, S/o Late Shri Radha Krishna Bhange, aged
about 59 years, Occupation Service (Presently dismissed), R/o
Rajendra Nagar, Post Office Head Post Office, Bilaspur, Police
Station Civil Lines, Bilaspur, Tahsil and Distt. Bilaspur (CG)
---- Petitioner
Versus
1. State of Chhattisgarh, Through the Secretary, Public Health &
Family Welfare Department, Mahanadi Mantralaya, Naya Raipur,
Post Office & Police Station Naya Raipur, Distt. Raipur (CG)
2. Director, Directorate of Health Services, Indrawati Bhawan, Naya
Raipur, Post Office & Police Station Naya Raipur, Distt. Raipur
(CG)
3. Joint Director, Health Service, Mental Hospital, Sendri, Bilaspur,
Distt. Bilaspur (CG)
4. Collector, Bilaspur, Distt. Bilaspur (CG)
5. Civil Surgeon-cum-Chief Hospital Superintendent, District
Hospital, Old Bus Stand, Near Nava Bharat Press Bilaspur, Distt.
Bilaspur (CG)
6. Block Medical Officer, Takhatpur, Distt. Bilaspur (CG)
7. Dr. RK Gupta, Surgeon, District Hospital, Bilaspur (CG)
---- Respondents
WPS No.6806 of 2014
Dr. Ramesh Kumar Gupta, aged about 63 years, S/o Late Aatma
Ram Gupta, R/o Near Mangala Chowk, District-Bilaspur (CG)
---- Petitioner
Versus
1. State of Chhattisgarh, Through the Principal Secretary,
Department of Health and Family Welfare, Mahanadi Bhawan,
Naya Raipur (CG)
Neutral Citation
2024:CGHC:6158
2
2. Director, Health Services, State of Chhattisgarh, Raipur (CG)
For Petitioners : Mr. Y.C. Sharma, Sr. Advocate with Ms.
Pooja Lonia, Mr. Aman Kesharwani and
Mr. Varun Sharma, Advocates.
For Respondents/State : Mr. Raghvendra Verma, Govt. Adv.
----------------------------------------------------------------------------------------------
Hon'ble Smt. Justice Rajani Dubey C A V Order Since both these petitions arise out of the same incident, they are being disposed of by this common order.
02. The petitioner Dr. RK Bhange has filed WPS No.6350/2014 challenging the orders dated 11.11.2014 (Annexure P/2) and 13.11.2014 (Annexure P/1) passed by respondent No.1 whereby he has been suspended and dismissed from service. In WPS No.6806/2014 the petitioner is questioning the legality and validity of the order dated 13.11.2014 passed by respondent No.1 whereby he has been dismissed from service.
03. Case of the petitioner Dr. RK Bhange, in brief, is that he was posted as Incharge Chief Medical and Health Officer, Bilaspur vide order dated 15.7.2014 and joined the said post on 31.7.2014. While working as CMHO, Bilaspur, he passed an order dated 27.10.2014 for all the Block Medical Officers that under the National Family Planning Programme, sterilization camps have to be organized in the month of November, 2014 and sterilization operation of female would be conducted by Laparoscopy method and sterilization operation of male would be conducted by Non Scaipal Vasectomy (NSVT) method. Neutral Citation 2024:CGHC:6158 3 Accordingly, a camp was organized on 8.11.2014 at the Community Health Centre, Kota and Dr. VK Khetrapal was intimated to conduct the operation in the camp. On 10.11.2014 at about 8.30 am, the petitioner received information about death of a woman at District Hospital, Bilaspur and the said incident took place because of negligence in sterilization performed by Dr. RK Gupta in the sterilization camp held at Nemichand Jain Hospital, Village-Pendari, Block-Takhatpur, Distt. Bilaspur. Then only the petitioner came to know about the sterilization camp organized at Nemichand Jain Hospital, Pendari whereas no sterilization camp was to be organized in any private hospital and it was to be organized only at Community Health Centre, Kota vide order dated 27.10.2014. The petitioner was not informed about the said sterilization camp organized at Nemichand Jain Hospital and the respondent authorities suspended the petitioner on 11.11.2014 without providing any opportunity of hearing and finally, on 13.11.2014 terminated his services in an arbitrary and illegal manner. Hence this petition for the following reliefs:
"10.1 This Hon'ble Court may kindly be pleased to quash Order dated 13/11/2014 bearing No. F 6-24/2014/9/17 passed by the respondent No.1 (Annexure P/1) in the interest of justice.
10.2 Order dated 11/11/2014 bearing No. F 6-24/2014/9/17 passed by the respondent No.1 (Annexure P/2) in the interest of justice.
10.3 Cost of the proceedings.
10.4 Any other relief which this Hon'ble Court deems fit in the Neutral Citation 2024:CGHC:6158 4 interest of justice."
04. Case of the petitioner Dr. RK Gupta, in brief, is that a mass sterilization camp was organized on 8.11.2014 at Nemichand Jain Cancer Hospital, Sakri and the petitioner being a specialist surgeon was directed by the Chief Medical and Health Office, Bilaspur to attend the said camp and perform tubectomy operations. The petitioner performed 83 tubectomy operations on the said date with due and reasonable care and competence. The medicines after operation was prescribed and distributed by the subordinate staff. However, the women who were operated upon, returned after some time complaining nausea, vomiting, drowsiness, fall of blood pressure etc. The Divisional Joint Director, Health Services, Bilaspur Division prepared a report dated 10.11.2014 to save himself proposing departmental action against the petitioner. The petitioner was arrested on 12.11.2014. The same Divisional Joint Director submitted another report dated 12.11.2014 to the Additional Chief Secretary, Department of Health and Family Welfare, Govt. of Chhattisgarh, to save himself proposing departmental action against the petitioner. Finally, without conducting any departmental inquiry or affording any opportunity of hearing, the petitioner's services were terminated by the impugned order dated 13.11.2014. Hence this petition for the following reliefs:
"i. To kindly call for the records of the case from the Respondents.
ii. To kindly quash the impugned order vide No. F 6- 24/2014/Nine/17 dated 13/11/2014 (Annexure P/1) issued Neutral Citation 2024:CGHC:6158 5 by the respondent No.1 and kindly further direct the respondents to reinstate the petitioner in service with all consequential benefits.
iii. To kindly make any other orders that may be deemed fit and just including awarding the costs of the petition."
05. Learned counsel for the petitioner Dr. RK Bhange submits that the petitioner had no knowledge about organizing sterilization camp on 8.11.2014 at Nemichand Jain Hospital, Pendari because as per order dated 27.10.2014, sterilization camp was to be conducted at Community Health Centre, Kota. The petitioner came to know about the aforesaid incident only when a woman who underwent operation in the sterilization camp held at Nemichand Jain Hospital died at District Hospital, Bilaspur. The respondent authorities passed the impugned order on the basis of report submitted by a single-headed committee and failed to consider the fact that on the very same day i.e. 10.11.2014 amended order was passed and a new four-member committee was constituted for enquiry into the incident which took place at Nemichand Jain Hospital. Thus, it is apparent from the face of record that if the new committee was formed subsequently for the aforesaid enquiry, then the report of the former committee becomes void ab initio. It is pertinent to mention here that on 11.11.2014 the Chief Secretary directed the enquiry committee to submit report within a week but without complying with this order, the respondent authorities passed the suspension as well as termination orders of the petitioner on 11.11.2014 and 13.11.2014 respectively. Further, the Neutral Citation 2024:CGHC:6158 6 enquiry report dated 10.11.2014 was also made flouting the order passed by the Chief Secretary. He submitted that the suspension and the termination orders bear the same dispatch number i.e. F 6- 24/2014/09/17, which makes it clear that the petitioner was terminated from service in an arbitrary and illegal manner without complying with the principles of natural justice. There is catena of decisions of the Hon'ble Supreme Court that cogent and sufficient reason must be assigned to dispense with enquiry but in the present case, no such reason has been assigned/recorded in the impugned order for not holding departmental enquiry. For all these reasons, the impugned orders being not sustainable in law are liable to be set aside.
Reliance has been placed on the decisions in the matters of Union of India and others Vs. Tulsiram Patel, AIR 1985 SC 1416; Southern Railway Officers Association and another Vs. Union of India and others; (2009) 9 SCC 24; Prithipal Singh Vs. State of Punjab, (2006) 13 SCC 314; and Chief Security Officer and others Vs. Singasan Rabi Das, (1991) 1 SCC 729.
06. Learned counsel appearing for the petitioner Dr. RK Gupta submits that the impugned suspension and termination orders have been passed in utter violation of the principles of natural justice, in an arbitrary and illegal manner. Dispensing with departmental enquiry before terminating the petitioner is in contravention of protection available to the petitioner under Article 311 of the Constitution of India as also Rule 10 of CG Civil Services (Classification, Control & Appeal) Neutral Citation 2024:CGHC:6158 7 Rules, 1966. The State in its reply has fairly admitted that the petitioner is not wholly responsible for death of the parties, which proves the fact that decision to terminate services of the petitioner dispensing with regular departmental enquiry is not a reasoned decision but is illegal. The Principal Secretary, Health, Govt. of CG, held a press conference in Bilaspur on 14.11.2014 and issued a statement that deaths are attributable to spurious drugs. The postmortem report conducted on 11.11.2014 and 12.11.2014 of the victims also shows that death occurred due to peritonitis, septicemia, septicemic shock and further chemical analysis is required for confirmation. The department appears to have obtained chemical report of Ciprocin 500 and Ibuprofen from laboratories of Nagpur and Delhi which have reported that the drugs contain poisonous substance Zinc Phosphide and Aluminium Phosphide used in Rat-kill poison. This fact has been taken note of by this Court while deciding CRMP No.483/2015 filed by the petitioner while quashing the criminal prosecution against the petitioner. This Court held in its order that it is not in dispute that the two drugs which were given to the patients for recovery i.e. the tablets of Ciprocin and Ibuprofen were sent to Forensic Science Laboratory, Raipur and report received from there shows that it was spurious and also contained rat poison sufficient to kill human being. In view of above, the impugned orders being illegal and arbitrary are liable to be set aside. Since the petitioner has attained the age of superannuation in the year 2016, all his pensionary and retiral dues be granted to him without any break in service in the interest of justice.
Neutral Citation 2024:CGHC:6158 8 Reliance has been placed on the decisions in the matters of Union of India and others Vs. Tulsiram Patel, (1985) 3 SCC 398; Jaswant Singh Vs. State of Punjab and others, (1991) 1 SCC 362; Reena Rani Vs. State of Haryana and others, (2012) 10 SCC 215; and Risal Singh Vs. State of Haryana and others, (2014) 13 SCC
244.
07. On the other hand, learned counsel for the State in WPS No.6350/2014 strongly opposing the prayer of the petitioner submits that the petitioner being the Chief Medical and Health Officer, Bilaspur was responsible and accountable for conducting sterilization camps in District Bilaspur. He was under obligation to inspect and supervise the operation theater, medical and health facilities in camps including arrangements of medicines and equipment to be used in operation. The contention of the petitioner that he was not aware of the said operation camp held on 8.11.2014 in Nemichand Jain Hospital, Pendari stands falsified from the statement made by Dr. Pramod Tiwari, Block Medical Officer, Takhatpur in reply to the charges leveled against him vide letter No.F 6024/2014/9/17 wherein he has unequivocally asserted that the petitioner was aware of the said camp held on 8.11.2014 and as such, made available the required essentials such as vehicles and surgeons for the conduct of the camp. Copy of the statement of Dr. Pramod Tiwari, BMO, Takhatpur, is filed as Annexure R/1. The Divisional Joint Director, Health Services, Bilaspur Division vide letter dated 12.11.2014 (Annexure R/2) also held Neutral Citation 2024:CGHC:6158 9 petitioner Dr. RK Bhange primarily responsible for conducting and monitoring of such camps in the district and it is the petitioner who had issued permission for conducting the camp. The said incident occurred due to lack of sufficient safety measures in the camp and negligence and an immediate disciplinary action should be taken against the petitioner. He submits that the four-member committee constituted by the Director, Health & Family Welfare to investigate into the matter vide order dated 10.11.2014, which comprises Dr. RR Sahani, Divisional Joint Director, Raipur (Specialist Anesthesiologist), Dr. Alka Gupta, Deputy Director Maternal Health (Gynecologist), Dr. Amar Singh Thakur, the then Joint Director, Bilaspur (Pediatrician), Dr. Ashok Kumar Jhanwar, Chief Hospital Superintendent (Surgeon), in its preliminary investigation report (Annexure R/3) stated that some of the disputed medicines, which were later on found to be dangerous for human consumption, were made available from CMHO store and were purchased by the CMHO office. It was further found that the details of tablets purchased i.e. 5000 tablets of ciprocin 500 mg, its related code, batch number, date of manufacture and date of expiry were not mentioned in the voucher of stock register of CMHO store and such details were obtained from BMO, Takhatpur. The petitioner was responsible to ensure that medicines purchased are duly tested before their distribution. Thus, he grossly failed in his responsibility to make arrangements for safe and duly tested medicines which resulted in death of 13 women and injury to around 63 women. Being so, it is incorrect to say that the petitioner was dismissed from service solely on Neutral Citation 2024:CGHC:6158 10 the whims and caprices without conducting any enquiry. [ Considering the gravity of the matter, the apparent gross negligence of the petitioner and the report of the Divisional Joint Director, Health Service dated 10.11.2014 and the preliminary investigation report, the respondents deemed it fit to dismiss the petitioner in exercise of its power under Article 311(2)(b) of the Constitution of India and Rule 19(2) of the CG Civil Services (Classification, Control & Appeal) Rules, 1996 without holding a regular departmental enquiry. The respondents have not held the petitioner wholly responsible for death of the patients but other doctors namely Dr. Pramod Tiwari, Block Medical Officer, Takhatpur and Dr. K.C. Uraon, State Nodal Officer, Family Planning have also been suspended and department enquiry has been initiated against them. The State also appointed a Judicial Commission of enquiry headed by Smt. Anita Jha (Retired District & Sessions Judge) to inquire into the incident. The action of the respondent authorities is strictly in accordance with law and as such, the instant petition being without any substance is liable to be dismissed.
[
08. In his Rejoinder, learned counsel for the petitioner denying the adverse averments in the reply contended that the petitioner had submitted an application under Right to Information Act before the Public Information Officer of the office of Divisional Joint Director, Health Services, Bilaspur and in the office of Chief Medical and Health Officer, Bilaspur seeking information with regard to letter issued by the Neutral Citation 2024:CGHC:6158 11 petitioner for conducting the camp at Nemichand Jain Hospital, Pendari on 8.11.2014 and the permission granted by the petitioner. In response to the same, vide letter dated 12.7.2016 the Divisional Joint Director, Health Services, Bilaspur informed the petitioner that the concerned information is not available whereas the office of the Chief Medical and Health Officer, Bilaspur has given information that no letter was issued by the petitioner with regard to conducting the camp on 8.11.2014. Copy of the letters submitted by the petitioner and the information provided by the office of Divisional Joint Director and CMHO, Bilaspur is filed as Annexure P/8 collectively.
[ He vehemently denied that the petitioner utterly failed in discharge of his duties and responsibilities entrusted upon him because as per Annexure P/6 dated 27.10.2014 there was only one camp at Community Health Centre, Kota on 8.11.2014 which was headed by Dr. VK Khetrapal and from the document of Annexure P/8 it is also crystal clear that the petitioner had no knowledge about the camp held at private hospital on 8.11.2014. The judgments relied upon by the respondents being distinguishable on facts and circumstances of the case are not applicable to the present case. The letter of the Divisional Joint Director, Health Services, Bilaspur dated 12.11.2014 is factually incorrect and therefore, on the basis of that letter, it cannot be said that there was gross negligence on the part of the petitioner which resulted in death of 13 patients and injury to around 64 patients, and making him liable for dismissal from service. The petitioner's dismissal Neutral Citation 2024:CGHC:6158 12 from service without holding a regular departmental enquiry is nothing but colourable exercise of powers of the respondent authorities, which is per se illegal and violative of the fundamental rights of the petitioner.
09. Learned counsel for the respondents/State in their reply to WPS No.6806/2014 vehemently opposing the contention of the petitioner submits that the petitioner has blatantly violated the Standard Operating Procedure for Sterilization Services in Camps prescribed by the Ministry of Health and Family Welfare, Government of India in March-2008 stipulating pre-requisites for sterilization camp site as well as probable client load vide Annexure R/1, which amounts to negligence of his professional duties. The respondents considering the expertise of the petitioner in such operations appointed him for sterilization so that best possible treatment could be given to the public. The women who had undergone sterilization operation in the camps organized by the State had chosen sterilization voluntarily. The National Health Mission, Chhattisgarh prepared its Project Implementation Plans (PIP) annually. Whatever has been claimed as targets in the said report is actually the expected level of achievement mentioned in PIP based on numbers of beneficiaries who have availed family planning services in the previous year and they are merely numbers for budgetary calculation to justify expected funds required. The word 'expected level of achievement' clearly explain non-coercive nature of the programme. The respondents/State has neither fixed a target number of tubectomy operations to be performed in a single day Neutral Citation 2024:CGHC:6158 13 nor directed or communicated to the petitioner in any manner whatsoever to perform a certain number of operations. No complaint has been received so far from any person regarding forced sterilization.
He further submitted that the petitioner being a specialist in serialization operation ought to be fully aware of the equipment and conditions required for surgery and in the event of lack of such arrangements, he should not have hastened to perform operation. Such gross medical mistake may involve use of wrong drug or wrong gas during the course of administering anesthesia or performing a surgery in unsterilized environment leading to loss of patients. Such cases will lead to imposition of liability and in some situation even the principle of res ipsa locquitor can be applied.
[
10. It is incorrect to say that the respondents/State dismissed the petitioner solely on whims and caprices, without any enquiry because as per report of the Divisional Joint Director, Health Services, Bilaspur dated 10.11.2014 (Annexure R/5), the petitioner performed tubectomy of 83 women from 2.30 pm to 6 pm and the patients died due to septisemic shock pursuant to the surgery. The report further shows that it was the responsibility of the petitioner being the Chief Surgeon to ascertain appropriate time required for each surgery looking to number of the patients. The petitioner performed 83 operations in a short duration of three and a half hours which itself raises doubt as to the quality of services rendered. The Divisional Joint Director, Health Neutral Citation 2024:CGHC:6158 14 Services, Bilaspur vide his letter dated 12.11.2014 (Annexure P/6) opined for immediate disciplinary action against the petitioner.
He further submitted that the four-member committee constituted by the Director, Health & Family Welfare to investigate into the matter vide order dated 10.11.2014, in its preliminary investigation report stated about gross medical negligence on the part of the petitioner. Hence considering the severity of the act of the petitioner, the report of the Divisional Joint Director, Health Services and the preliminary investigation report, the petitioner has been dismissed from service dispensing with the regular departmental enquiry under the provisions of Rule 19(2) of CG Civil Services (Classification, Control & Appeal) Rules, 1966 and Article 311(2)(b) of the Constitution of India. [ Reliance has been placed on the decisions in the matters of W.Govinda Menon Vs. UOI, AIR 1967 SC 1274; UOI Vs. Tulsi Ram Patel, (1985) 3 SCC 398; Narasimha Rao Vs. Gundavavarapu Jayaprakasu, AIR 1990 AP 207; Laxmi Shankar Vs. UOI, AIR 1991 SC 1074; M.H. Devendrappa Vs. Karnataka State Small Industries Development Corporation, AIR 1998 SC 1064; UOI Vs. Vishwa Mohan, (1998) 4 SCC 310 and Government of Andhra Pradesh Vs. P. Posetty, (2000) 2 SCC 220.
[
11. In his Rejoinder, learned counsel for the petitioner categorically denies the adverse averments in the reply and states that the respondents have failed to give any proper justification as to how they Neutral Citation 2024:CGHC:6158 15 exercised the powers under Article 311(2)(b) of the Constitution of India for dispensing with the enquiry. The State Government is under obligation to consider the situation and should have been satisfied by assigning reasons that it is not reasonably practicable to hold departmental enquiry against the petitioner. However, no such reason has been assigned or satisfaction recorded in the instant matter for dispensing with departmental enquiry. The infirmity arising out of the absence of such reasons cannot be cured by the authority passing the orders stating such reasons in an affidavit filed before this Court where the validity of the termination order is under challenge. The respondents did not conduct any departmental enquiry and no opportunity of hearing was afforded to the petitioner.
As regards the contention of the respondents that the petitioner has not followed Standard Operating Procedure for Sterilization, he submitted the State Government itself has never followed it. The State Government for the first time issued the aforesaid SOP for Sterilization vide No.F-62/2014/IX/17 dated 17.11.2014 whereas the camp was organized on 8.11.2014. The respondents have wrongly submitted before the Court that they never issued any order for a particular target whereas they always pressed hard to achieve the targets given by them. Copy of some orders issued by the State Government in this regard is filed as Annexure RJ/1. The report of the Divisional Joint Director is not a valid report as he himself had issued directions fixing targets of sterilization operation and now he is changing his stand only Neutral Citation 2024:CGHC:6158 16 to save himself. Even otherwise, the said report has been prepared behind the back of the petitioner and therefore, it cannot be relied upon.
[
12. Heard learned counsel for the parties and perused the material available on record.
[
13. It is an admitted fact in this case that at the relevant time, the petitioner Dr. RK Bhange was working as Chief Medical and Health Officer, Bilaspur and petitioner Dr. RK Gupta was working as Surgical Specialist in District Hospital, Bilaspur. It is also not disputed that on 8.11.2014 a mass sterilization camp was organized at Nemichand Jain Hospital, Pendari where Dr. RK Gupta performed 83 tubectomy operations and out of those women operated upon by Dr. RK Gupta, 11 women died and 68 fell seriously ill. After conducting preliminary enquiry, both petitioners were dismissed from service with immediate effect by the competent authority vide impugned orders dated 13.11.2014 dispensing with regular departmental enquiry in exercise of powers conferred under Article 311(2)(b) of the Constitution of India. The impugned orders read as under:
@@vkns'k @@ u;k jk;iqj] fnukad 13@11@2014 dazekd ,Q 6&24@2014@ukS@17 xzke ladjh] fodkl[k.M r[kriqj] ftyk&fcykliqj ds usehpUn TkSu psfjVscy VªLV gkWfLiVy esa fnukad 08-11-2014 dks MkW- vkj- ds Hkkaxs] {k; jksx fo'ks"kK (izHkkjh eq[; fpfdRlk ,ao LokLF; vf/kdkjh] fcykliqj) ds funsZ'ku ,ao i;Zos{k.k esa vk;ksftr ulcanh f'kfoj esa 83 efgykvksa ds nwjchu i}fr ls MkW- vkj- ds xqIrk] ltZjh fo'ks"kK] ftyk fpfdRlky;] fcykliqj }kjk fd;ks x;s ulcanh vkijs'ku ds mijkar 11 efgykvksa dh e`R;w gksus rFkk 68 efgykvksa ds xaHkhj ,ao ej.kklUu voLFkk esa fcykliqj ds Neutral Citation 2024:CGHC:6158 17 fofHkUu vLirkyksa esa HkrhZ gksus rFkk tu vkdzks'k Qsyus ds dkj.k ;g lqLi"V gS fd nksuksa vf/kdkfj;ksa ds }kjk drZO;ksa ds ikyu esa dh xbZ xaHkhj mis{kk ,ao vlko/kkuh ds dkj.k ;g fLFkfr fufeZr gqbZ gSA vr,o jkT; 'kklu ,rn }kjk Hkkjr ds lafo/kku ds vuqPNsn 311 ds [k.M ¼2½ ds ijUrqd ds mi[k.M ¼[k½ ds v/khu iznr 'kfDr;ksa lgifBr NRrhlx<+ flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e 1966 ds fu;e 19 ¼nks½ ds vk/kkj ij] ;g fu.kZ; fy;k x;k gS fd bl ?kVuk ds fy, eq[; :i ls ftEesnkj MkW- vkj- ds Hkkaxs] {k; jksx fo'ks"kK ¼izHkkjh] eq[; fpfdRlk ,ao LokLF; vf/kdkjh] fcykliqj½ dks inP;qr djus ds fy, fdlh tkWp dh vko';drk ugh gSA 2@ vr,o jkT; 'kklu] ,rn }kjk MkW- vkj- ds Hkkaxs] {k; jksx fo'ks"kK ¼izHkkjh] eq[; fpfdRlk ,ao LokLF; vf/kdkjh] fcykliqj½ dks NRrhlx<+ flfoy lsok ¼oxhZdj.k] fu;a+=.k rFkk vihy½ fu;e 1966 ds fu;e 10 ¼ukS½ ds varxZr rRdky izHkko ls lsok ls inP;qr djrk gSA NRrhlx<+ ds jkT;iky ds uke ls rFkk vkns'kkuqlkj ¼,u-,e- ?kksM+dh½ voj lfpo NRrhlx<+ 'kklu LokLF; ,ao ifjokj dY;k.k foHkkx @@vkns'k @@ u;k jk;iqj] fnukad 13@11@2014 dazekd ,Q 6&24@2014@ukS@17 xzke ladjh] fodkl[k.M r[kriqj] ftyk&fcykliqj ds usehpUn TkSu psfjVscy VªLV gkWfLiVy esa fnukad 08-11-2014 dks MkW- vkj- ds Hkkaxs] {k; jksx fo'ks"kK (izHkkjh eq[; fpfdRlk ,ao LokLF; vf/kdkjh] fcykliqj) ds funsZ'ku ,ao i;Zos{k.k esa vk;ksftr ulcanh f'kfoj esa 83 efgykvksa ds nwjchu i}fr ls MkW- vkj- ds xqIrk] ltZjh fo'ks"kK] ftyk fpfdRlky;] fcykliqj }kjk fd;ks x;s ulcanh vkijs'ku ds mijkar 11 efgykvksa dh e`R;w gksus rFkk 68 efgykvksa ds xaHkhj ,ao ej.kklUu voLFkk esa fcykliqj ds fofHkUu vLirkyksa esa HkrhZ gksus rFkk tu vkdzks'k Qsyus ds dkj.k ;g lqLi"V gS fd nksuksa vf/kdkfj;ksa ds }kjk drZO;ksa ds ikyu esa dh xbZ xaHkhj mis{kk ,ao vlko/kkuh ds dkj.k ;g fLFkfr fufeZr gqbZ gSA vr,o jkT; 'kklu ,rn }kjk Hkkjr ds lafo/kku ds vuqPNsn 311 ds [k.M ¼2½ ds ijUrqd ds mi[k.M ¼[k½ ds v/khu iznr 'kfDr;ksa lgifBr NRrhlx<+ flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e 1966 ds fu;e 19 ¼nks½ ds vk/kkj ij] ;g fu.kZ; fy;k x;k gS fd bl ?kVuk ds fy, eq[; :i ls ftEesnkj MkW- vkj- ds Hkkaxs] {k; jksx fo'ks"kK ¼izHkkjh] eq[; fpfdRlk ,ao LokLF; vf/kdkjh] fcykliqj½ dks inP;qr djus ds fy, fdlh tkWp dh vko';drk ugh gSA 2@ vr,o jkT; 'kklu] ,rn }kjk MkW- vkj- ds xqIrk] ltZjh fo'ks"kK ftyk fpfdRlky; fcykliqj dks NRrhlx<+ flfoy lsok ¼oxhZdj.k] fu;a+=.k rFkk vihy½ fu;e 1966 ds fu;e 10 ¼ukS½ ds varxZr rRdky izHkko ls lsok ls inP;qr djrk gSA Neutral Citation 2024:CGHC:6158 18 NRrhlx<+ ds jkT;iky ds uke ls rFkk vkns'kkuqlkj ¼,u-,e- ?kksM+dh½ voj lfpo NRrhlx<+ 'kklu LokLF; ,ao ifjokj dY;k.k foHkkx
14. Article 311 of the Constitution of India deals with dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. For ready reference, it is being reproduced hereunder:
"311.Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-
(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply- Neutral Citation 2024:CGHC:6158 19
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."
From the above, it is clear that the authority competent to dismiss or remove a person or to reduce him in rank if satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry, shall dismiss or remove such person.
15. The Hon'ble Supreme Court in the matter of Tulsi Ram Patel and other connected matters (supra) held in paras 44, 45 & 62 as under:
"44. Ministers frame policies and legislatures enact laws and lay down the mode in which such policies are to be carried out and the object of the legislation achieved. In many cases, in a Welfare State such as ours, such policies and statutes are intended to bring about socio-economic reforms and the uplift of the poor and disadvantaged classes. From the nature of things the task of efficiently Neutral Citation 2024:CGHC:6158 20 and effectively implementing these policies and enactments, however, rests with the civil services. The public is, therefore; vitally interested in the efficiency and integrity of such services. Government servants are after all paid from the public exchequer to which everyone contributes either by way of direct or indirect taxes. Those who are paid by the public and are charged with public and administration for public good must, therefore, in their turn bring to the discharge of their duties a sense of responsibility. The efficiency of public administration does not depend only upon the top echelons of these services. It depends as much upon all the other members of such services, even on those in the most subordinate posts. For instance, railways do not run because of the members of the Railway Board or the General Managers of different railways or the heads of different departments of the railway administration. They run also because of engine- drivers, fireman, signalmen, booking clerks and those holding hundred other similar posts. Similarly, it is not the administrative heads who alone can set to the proper functioning of the post and telegraphs service. For a service to run efficiently there must, therefore, be a collective sense of responsibility. But for a government servant to discharge his duties faithfully and conscientiously, he must have a feeling of security of tenure. Under our Constitution this is provided for by the Acts and rules made under Article 309 as also by the safeguards in respect of the punishments of dismissal, removal or reduction in rank provided in clauses (1) and (2) of Article 311. It is, however, as much in public interest and for public good that government servants who are inefficient, dishonest or corrupt or have become a security risk should not continue in service and that the protection Neutral Citation 2024:CGHC:6158 21 afforded to them by the Acts and rules made under Article 309 and by Article 311 be not abused by them to the detriment of public interest and public good. When a situation as envisaged in one of the three clauses of the second proviso to clause (2) of Article 311 arises and the relevant clause is properly applied and the disciplinary inquiry dispensed with, the concerned government servant cannot be heard to complain that he is deprived of his livelihood. The livelihood of an individual is a matter of great concern to him and his family but his livelihood is a matter of his private interest and where such livelihood is provided by the public exchequer and the taking away of such livelihood is in the public interest and for public good, the former must yield to the latter. These consequences follow not because the pleasure doctrine is a special prerogative of the British Crown which has been inherited by India and transposed into our Constitution adapted to suit the Constitutional set up of our Republic but because public policy requires, public interest needs and public good demands that there should be such a doctrine.
45. It is thus clear that the pleasure doctrine embodied in Article 310 (1), the protection afforded to civil servants by clauses (1) and (2) of Article 311 and the withdrawal of the protection under clause (2) of Article 311 by the second proviso thereto are all provided in the Constitution on the ground of public policy and in the public interest and are for public good.
62. Before, however, any clause of the second proviso can come into play the condition laid down in it must be satisfied. The condition for the application of each of these clauses is different. In the case of clause (a) a government servant must be guilty of conduct deserving the penalty of dismissal, removal or reduction in rank which conduct has Neutral Citation 2024:CGHC:6158 22 led to him being convicted on a criminal charge. In the case of clause (b) the disciplinary authority must be satisfied that it is not reasonably practicable to hold an inquiry. In the case of clause (c) the President or the Governor of a State, as the case may be, must be satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry. When these conditions can be said to be fulfilled will be discussed later while dealing separately with each of the three clauses. The paramount thing, however, to bear in mind is that the second proviso will apply only where the conduct of a government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. If the conduct is such as to deserve a punishment different from those mentioned above, the second proviso cannot come into play at all, because Article 311 (2) is itself confined only to these three penalties. Therefore, before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned government servant is such as justifies the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an inquiry. The extent to which a government servant can be denied his right to an inquiry formed the subject-matter of considerable debate at the Bar and we, therefore, now turn to the question whether under the second proviso to Article 311(2) even though the inquiry is dispensed with, some opportunity at least should not be afforded to the government servant to that he is not left wholly without protection. As most of the arguments on this Part of the case were common to all the three clauses Neutral Citation 2024:CGHC:6158 23 of the second proviso, it will be convenient at this stage to deal at one place with all the arguments on this part of the case, leaving aside to be separately dealt with the other arguments pertaining only to a particular clause of the second proviso."
16. Again, the Hon'ble Supreme Court in the matter of Southern Railway Officers Association and another and other connected matters (supra) observed in paras 19 & 20 of its judgment as under:
"19. The second proviso appended thereto, however, makes three exceptions in regard to constitutional requirement to hold an enquiry. clause (b) whereof provides that in a case where the disciplinary authority is satisfied that it is not reasonably practicable to hold such enquiry, subject of course to the condition that therefor reasons are to be recorded in writing. Recording of reasons, thus, provides adequate protection and safeguard to the employee concerned. It is now well settled that reasons so recorded must be cogent and sufficient. Satisfaction to be arrived at by the disciplinary authority for the aforementioned purpose cannot be arbitrary. It must be based on objectivity.
20. The question came up for consideration before a Bench of this Court in Union of India and another v. Tulsiram Patel [ AIR 1985 SC 1416 ] wherein this Court opined that the reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. The concerned authority is generally on the spot and knows what has been happening. It was observed : (SCC p. 504, para 130) "130. It is because the disciplinary authority is the best Neutral Citation 2024:CGHC:6158 24 judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty."
17. Having perused the record of the case and having heard the counsel for the parties, it is noticed that the petitioners did not display the duty of care and caution that is reasonably expected from the professionals in the medical field and did not exercise sufficient care in treating the patients. Medical negligence is not a straightforward type of tort. It transforms from a simple tort when a patient receives incorrect treatment and may experience minor discomfort, to a potentially life- threatening situation where the patient might succumb to a minor injury or fracture. In cases of medical negligence, a doctor of reasonable competence is expected to exercise a notably high level of care. The standard of care is determined by comparing the doctor in question to a peer in the same medical field, rather than an average prudent person.
18. In the present case, the petitioners being well experienced medical professionals were under an obligation to inspect and supervise the operation theater, ensure proper medical and health facilities in camps including arrangement of medicines and equipment Neutral Citation 2024:CGHC:6158 25 to be used in operation. However, the manner in which the camps were organized and operations were performed resulting in loss of lives of 11 out of 83 patients operated on, speak volumes about the degree of irresponsibility and carelessness in discharge of duties on the part of the petitioners. Therefore, in view of provisions of Article 311(2)(b) of the Constitution of India, their services were terminated with immediate effect dispensing the with departmental enquiry. Given the facts and circumstances of the case, the gravity of the misconduct of the petitioners as they miserably failed to exercise their skills to the best of their ability and with reasonable competence, and the reasons recorded in the impugned orders for terminating the services of the petitioners, this Court finds no good reason to interfere therewith.
19. For the reasons stated above, both the petitions being bereft of any merit are liable to be dismissed and are, accordingly, dismissed.
Sd/ (Rajani Dubey) Judge Khan