Central Administrative Tribunal - Hyderabad
Dr. P.V. Surya Rao vs The Secretary, Ministry Of Railways And ... on 12 October, 2004
Equivalent citations: 2005(3)SLJ95(CAT)
ORDER S.K. Agrawal, Member (A)
1. The applicant filed the present O.A. with a prayer to set aside the impugned order dated 26.8.2003 of dismissal from service of the applicant issued by the respondents, declaring the same as arbitrary, excessive, illegal, improper, unjust and unfair, unconstitutional and perverse and in violation of Articles 14 and 16 of the Constitution of India and Railway Service Rules and consequently to direct the respondents to restore the applicant into Railway Service as if the impugned order is non-est and unenforceable with all consequential monetary and service benefits appertaining thereto and to pass such other order or further orders as this Tribunal may deem fit and proper in the circumstance of the case.
2. The brief facts of the case are as follows:
The applicant is an Anaesthetist Doctor in the South Central Railway service, being a Gold Medalist in his final MBBS and having put in 16 years of service in the South Central Railways Hospitals, including Head Quarters Railway Hospital, Secunderabad with good commendation certificates in Anaesthesiology and Neurology also. It has been submitted by the applicant that while he was working as MS/KZJ/S.C. Railway, he was suspended on 10.10.2001, inter alia, mentioning that disciplinary proceedings would be initiated against him for his misconduct in which he failed to treat the patients properly. Subsequently, disciplinary proceedings for major penalty under Rule 9 of R.S. (D and A) Rules, 1968 were initiated against the applicant by GM/S.C. Railway on 18.11.2001, in respect of the following Articles of Charges:
"ARTICLE-1 That the said Dr. P.V. Surya Rao, MS/KZJ (applicant herein, presently under suspension) while working as such on 19.9.2001 and 26.9.2001 has committed serious irregularity in that, he failed to make use of the professional knowledge in the Diagnosis and treatment of two patients, viz., Mrs. Viswasamma, W/o. Shri Subbarayudu, Diesel Mechanic/KZJ and Mrs. Ananthamma, W/o. Shri Narsaiah, Gangman/PBP diligently, which resulted in their being immobilised for the waist downwards;
That Dr. P.V. Surya Rao, MS/KZJ has failed to maintain devotion to duty and acted in a manner unbecoming of a Railway Servant violating Rule 3 (i) (ii) and (iii) of the Railway Servants (Conduct) Rules, 1966."
In the statement of Imputations of Misconduct or Misbehaviour for the above Article-1 Charge stated that the said Dr. P.V. Surya Rao, MS/KZJ (presently under Suspension) while working as such on 19.09.2001 and 26.09.2001 has erred in his judgment and failed to make use of his professional knowledge diligently in the treatment of his two patients, viz., Mrs. Viswasamma, W/o. Subbarayudu, DSL/ Mechanic/KZJ and Mrs. Ananthamma W/o. Narsaiah, Gangman/PBP as detailed below:
CASE OF MRS. VISWASAMMA:
Mrs. Viswasamma, wife of Shri Subbarayudu, DSL Mechanic/KZJ had attended PC/KZJ on 15.09.2001 for abdominal pain. Dr. P.V. Surya Rao, MS/KZJ had attended her and diagnosed as a case of "Sub-acute Appendicitis". He treated her with I.V.Fluids, antispasmodics and antibiotics and discharged here after few hours. The patient felt recurrence of abdominal pain and low back pain. She visited a private doctor who had advised her to get scanning of her abdomen. She approached Dr. Surya Rao on 19.09.2001 with a request to get her abdomen scanned. Dr. Surya Rao, instead advised her not to go for scan but he would give her an injection for relief of her backache. At about 11.30 hrs., on 19.09.2001 Dr. P.V. Surya Rao, telephonically instructed Smt. Vasantha Kumari, Nursing Sister/ KZJ to get 3 CC of 2% Xylocaine, 6CC Normal Saline and 2 Ampules of Voveran and 0.5 Gms. of Ampicillin to be administered on Mrs. Viswasamma. As per his order Mrs. Vasantha Kumari brought the drugs loaded in one 20 CC Syringe and Injection ampicillin in another Syringe. On the instructions of Dr. P.V. Surya Rao, Mr. Khamaruddin held Mrs. Viswasamma in a bent lateral Position and Dr. Surya Rao introduced the Spinal Needle (Ordinary Number Puncture Needle) into her Spinal Space. After CSF trickled out, he asked, Mrs. Vasantha Kumari, Nursing Sister/KZJ to mix all medicine into one Syringe which she did by pouring the diluted ampicillin into the 20 CC Syringe after removing the Pistons. Within minutes of the Injection, the patient complained of numbness spreading upto the shoulder level and loss of movements of the legs. She also had a fall of Blood Pressure. To counter the fall of Blood Pressure Dr. P.V. Surya Rao prescribed the necessary medicines. He then shifted the patient to the ward after 13.30 hours and asked Mrs. Vasantha Kumari to monitor the patient. The patient remained in the ward through the night. She could not pass urine night since receiving the Injection and had to be cathetenised during the night. Next day morning i.e. on 20.09.2001, Dr. P.V. Surya Rao reviewed the case and referred it to MGM Hospital with a note that the patient was given epidural injection of Xylocaine, Normal Saline and Voveran. Next day the case was shifted to RH/LGD for further management after during discharged from MGM Hospital.
CASE OF SMT. ANANTHAMMA:
Smt. Ananthamma, W/o. Narsaiah, Gangman/PBP came to PC/KZJ on 26.09.2001 at about 13.00 hrs. for back-ache and was attended by Dr. P.V. Surya Rao. He had called for the services of Mrs. Vasantha Kumari, Nursing Sister and Khamruddin, Sr. H.A. to help him in giving regional block to the patient. While Mrs. Vasantha Kumari refused to obey the orders of Dr. Surya Rao at the instructions of Sr. MS/ SC to avoid such procedures of treatment at the Health Unit, Sri Khamruddin helped him in administering regional block on the patient by holding the patient in position. Dr. Surya Rao injected in the Spinal Space a mixture of Xylocaine, Normal Saline and voveran. Soon thereafter, the patient developed sensory deficit and weakness of the legs which were further aggravated. Inspite of using large doses of steroids and antibiotics and neurological damage caused to her could not be alleviated and was later brought to RH/LGD. Mrs. Viswasamma and Mrs. G. Ananthamma developed acute para plegia following the injection of a mixture of Xylocaine 2% LA, N. Saline and Voveran into the intraspinal space by Dr. P.V. Surya Rao at PC/KZJ. In addition, Mrs. Viswasamma received injection Ampicillin intraspinally. They were initially treated at KZJ and later referred to RH/LGD and NIMS/ Hyderabad for further treatment. Presently both the patients are at RH/ LGD. They are bed-ridden and unable to walk. Dr. P. Surya Rao failed to make use of his professional knowledge and experience while administering the drugs to patients. This shows that he was not using even general prudence expected of an ordinary prudent man. He had injected a mixture of Xylocaine and Voveran and normal Saline into the spinal spaces of both the patients by which Dr. P.V. Surya Rao adopted manoeuvres which were neither prescribed nor known to be acceptable or practised and totally unwanted to the condition of the patients. His diagnosis was purely clinical. He had inflicted an irreversible damage leading to the patients bedridden for life. Thus, Dr. P.V. Surya Rao, MS/KZJ (presently under suspension) has failed to maintain devotion to duty and acted in a manner unbecoming of a Railway Servant, violating Rule 3(i), (ii) and (iii) of the Railway Servants (Conduct) Rules, 1966."
3. It is further submitted that after considering the statement of defence dated 04.12.2001 received from the applicant, the case was remitted to inquiry and Dr. Zahrool Hussain, CMS/ Hyderabad was appointed as Inquiry Officer. The applicant submitted his written brief dated 05.05.2002 for the consideration of Inquiry Officer in connection with the departmental inquiry conducted by Inquiry Officer into the charge framed against the applicant. The applicant at the out set denied the Article of Charge as well as the imputations made in support thereof, as they are devoid of truth, having been based on assumptions and presumptions and stated that he was quite innocent of the same. Thereafter, the applicant elaborately dealt on all the details of inquiry, item by item and endeavoured to explain his position, at great length, on the Article of Charge as well as imputations made in support thereof and finally concluded that he had not done anything consciously or otherwise to deserve framing of the charges in question against him and entreated that he shall be grateful if all his submissions are given a sympathetic consideration by the Inquiry Officer in the interests of justice. However, in the inquiry report, dated 14.06.2002, the Inquiry Officer held the charge as fully proved and a copy of the Inquiry Officer's report was given to the applicant on 08.07.2002 to enable him to make a representation, if any. Accordingly, on 13.07.2002, the applicant submitted his representation on the Inquiry Officer's report to GM, SC Railway and Disciplinary Authority, for his sympathetic consideration. Primarily, the applicant in his representation submitted that the Inquiry Officer was not fair and objection in giving the finding that the article of charge in question framed against him was proved, since he had overlooked the various submissions made by the applicant during the general examination in the Inquiry as well as in the written brief dated 05.05.2002 submitted to Inquiry Officer, wherein the applicant explained the details of treatment he gave to both the patients mentioned in the charge memo and how the case papers of those patients obtained from Apollo Hospitals, Hyderabad and marked as defence exhibits in the inquiry together with MRI scans confirmed applicant clinical diagnosis. But the applicant asserted in the representation that from the inquiry report, it may be seen that the I.O. had not discussed how his diagnosis in both the cases in question was not correct. Inquiry Officer did not comment on the submission made by the applicant in the report that the case papers of the patients as well as MRI scan obtained from Apollo Hospitals, Hyderabad confirmed by clinical diagnosis. The fact finding inquiry committee has not given a finding that his diagnosis in these two cases was not correct. They only said that full details of the condition of the patients was not available in their O.P. Sheets and that investigations were not conducted before giving the treatment in question.
4. The Inquiry Officer has made the following findings against the applicant:
(a) The charged officer has failed to make use of professional knowledge in diagnosis, choose of drugs and route of administration in the cases of Smt. Viswasamma and Smt. Ananthamma.
Though the Inquiry Officer had not given reasons for his finding, yet the applicant had explained what diagnosis he made and how it was subsequently con finned from the case papers as well as MRI scans of Apollo Hospitals, Hyderabad and how no credible evidence had been led by the prosecution to prove that the applicant's diagnosis in both the cases were wrong except saying that the applicant should have done further investigation and also should have sought and obtained the opinions of Orthopaedician and Neurophysician ignoring the fact that the technique and method of giving epidural injection came under the purview of Anaesthetisiology. It is therefore submitted by the applicant that the Inquiry Officer gave this finding without discussing evidence and without giving reasons for the finding.
(b) The charged officer has failed to explain in detail the sequence of effects and complications to the patients, i.e. Smt. Viswasamma and Ananthamma.
In this regard, the applicant has submitted that the evidence on record fully proved that not only the patients but also their husbands were explained about all the effects and according to deposition of PW-2 and PW-3 the patients in question did not express unwillingness and agreed to treatment most willingly as they were unable to withstand the pain and wanted early relief. The applicant has also submitted that without their willing cooperation it would not have been possible for the Doctor to administer the drugs in question extrathecally.
(c) Charged Officer has failed by giving (he mixture of several drugs to the patients without any supporting literature to mix the said several drugs in that particular manner and route.
In this regard, the applicant submitted that the mixture of drugs in the manner done by him was not prohibited and they were not toxic drugs and there was no harm in mixing them and support of literature was not required in this connection. The finding of Inquiry Officer is without any supporting evidence or of credible analysis.
(d) The Charged Officer has failed by giving injection Diclofenac Sodium Intraethical/Epidural without any supporting literature.
In this regard, the applicant submitted that injection Diclofenac Sodium could he given epidurally and DW-3 also fully supported the doctor's stand. The prosecution did not contradict this PW-8 and 9 also did not contradict this in their deposition. The finding of Inquiry Officer is based on mere presumption.
(e) Charged Officer has failed to stop the same technique that was adopted on 19.09.2001 in the case of Smt. Viswasamma and its repercussions such as resulting into paraplegia with loss of Bladder and Lower Control and again used the same system and technique on 26.09.2001 in the case of Smt. Ananthamma which ultimately resulted into paraplegia with the same long control cover bladder and lowel of Smt. Ananthamma.
In this regard, the applicant submitted that he adopted the same technique in case of Ananthamma, as he was not informed of the condition of Viswasamma which was required in case of no improvement. The applicant was under the impression that she was improving. Under those circumstances, only, he gave the same injection epidurally to second patient also.
(f) Being an Anaestheist by qualification, Charged Officer has failed to obtain the Ortho/Neuro specialist opinion for diagnosis and line of treatment before doing an invasive treatment by himself though there was no emergency, which resulted in paraplegia and loss of bladder and lowel control.
In this regard, the applicant submitted that his Clinical Diagnosis was proved to be correct from the case paper as well as MRI scans of Apollo Hospitals, Hyderabad in respect of these patients. Further epidural injection is a technique that exclusively belonging to Anaesthesiology. Hence, the finding of Inquiry Officer that the applicant Doctor should have consulted Ortho/Neuro Specialists before proceeding with the treatment has no relevance and also devoid of objective consideration of the issue. The patients in question were suffering from excruciating pain and they needed relief and hence the treatment in question was contemplated and it was within the Doctor's competence and purview as a qualified and experienced Anaestheist to diagnose and treat them.
(g) The circumstantial evidence shows that the injection in both the above discussed cases were intrathecal rather than epidural.
In this regard, it has been stated by the applicant that PW-3 who assisted the applicant in both the cases has categorically stated in his deposition that Doctor did not use needle from P.C. (KZJ) but a Disposable one available with him which was blunt and Tuhohy epidural needle having a curved tip at its end. The staff nurse has used it as due intrathecal injection since she had no working knowledge of operation theatre for the last 15 to 20 years. The drug mixed and administered to both the patients would have been fatal to them had they be given intrathecally. The circumstantial evidence is therefore in favour of the applicant since had the Doctor given injection intrathecally such a high volume of solution, it would have been produced very bad high level of anaesthesia that would have killed the patient and movement there on the table only. But, that did not occur. So, it clearly indicates that the medicine had not gone into the deep intrathecal space.
(h) Charged Officer has failed to appreciate the negative impact of the therapy leading to permanent disability of the above two cases.
In this regard, the applicant has submitted that he had all the sympathy for both the patients and as a Doctor his approach to the patients is always professional and humane. He further submitted that he was never casual in his approach and treated several patients during his service in the Railways and earned high appreciation from his superiors for his sincere and hardwork and for rising to the occasion in crucial situations.
5. It is further submitted by the applicant that the General Manager, SC Railway, being Disciplinary Authority, after considering the representation of the applicant dated 31.07.2002, reached to a tentative decision i.e., to impose a penalty of compulsory retirement on the applicant and recommended the imposition of the major penalty on the applicant. But, as General Manager was not competent to impose major penalty on a Group A officer, the case was remitted to Railway Board for further necessary action. The Railway Board in the Ministry of Railways, sought for the opinion of the UPSC on the subject vide their letter dated 08.10.2002. The UPSC in their reply dated 25.07.2003 stated that after evaluation of facts as placed on the record, the Commission is of the view that the charge against the applicant of exhibiting gross negligence in treating the patients resulting in their becoming partial pasuplegics is proved beyond doubt and this has to be viewed seriously and in the light of their findings and after taking into account all aspects relevant to the case, the Commission considered that the penalty of dismissal from service be imposed on the applicant.
6. Thereupon, the President of India, in his order dated 26.08.2003, held that in consultation with the UPSC and after carefully considering the charge memorandum, statement of defence, proceedings after inquiry, the inquiry report as also relevant records of the case has come to the conclusion that the charge against the applicant of exhibiting gross negligence in treating the two patients resulting in their becoming partial paraplegics, it is proved beyond doubt and the same has to be viewed very seriously and accordingly, agreeing with UPSC's advice for the detailed reasons given in their letter dated 25.07.2003, the President has decided that ends of justice would be met in this case if the penalty of dismissal from service is imposed on the applicant and the said penalty is therefore, imposed hereby on Dr. P.V. Surya Rao. The said order dated 26.08.2003 issued to this effect by the Railway Board was communicated to the applicant by GM (P) SCR on 03.09.2003.
7. Aggrieved by the aforesaid order dated 26.08.2003 dismissing him from the service of the Railways, the applicant has filed this O. A. for redressal of his grievance, praying for setting aside of the impugned order and consequently restoring the applicant into Railway Service with all consequential benefits thereon, on the following grounds:
(i) That the impugned order of dismissal dated 26.09.2003 imposed by the President upon the applicant is arbitrary, excessive and violating Article 14 of the Constitution of India;
(ii) That the impugned order is not a speaking order, in as much as it does not portray the relevant reasons for rejecting each of the applicant's contentions and for coming to a conclusion on that the charge against the applicant of exhibiting gross negligence in treating the two patients resulting in their becoming partial paraplegics is proved beyond doubt. Mere agreeing with UPSC's advice for the reasons given in their letter dated 25.07.2003, does not amount to exercise of independent and discretionary application of mind by the President in respect of the grievances expressed by the applicant for consideration of Disciplinary Authority. Hence, the impugned order is improper, illegal and bad in law.
(iii) That the impugned order is not consistent with the charge against the applicant since in the Article of Charge it is specified that the applicant has committed serious irregularity in that he failed to make use of his professional knowledge in the diagnosis and treatment of two patients, Mrs. Visasamma and Ananthamma, diligently which resulted in their being immobilized from the waist downwards and thus the applicant has failed to maintain devotion to duty and acted in a manner unbecoming of a Railway Servant violating Rule 3 of the Railway Servants (Conduct) Rules, 1966. But in the operating portion of the impugned order it is held that the President has come to the conclusion that the charge against Dr. P.V. Surya Rao of exhibiting gross negligence in treating the two patients resulting in their becoming partial pasulegics, is proved beyond doubt. It is submitted that the alleged gross negligence exhibited by the applicant in treating the two patients, without any wilful or capricious intention can at best be an innocent error of judgment, but it cannot constitute into a serious irregularities of failure to make use of professional knowledge in the diagnosis and treatment, nor to maintain devotion to duty and acting in a manner unbecoming of a Railway Servant. Thus the conclusion arrived at in the impugned order is unjust, unfair and beyond the scope of Rule 3 of the Railway Servants (Conduct) Rules, 1966 and hence, violative of Rule 9 of R.S. (D & A) Rules, 1968.
(iv) That the Disciplinary Authorities have failed to take into consideration the entire service record of the applicant, while taking decision for imposing major penalty, like dismissal or compulsory retirement, since the applicant had put in an accredited service of 16 years and secured good commendation certificates in Anaesthesiology and Neurology from consultants and specialists and in Railway also. While working in Secunderabad Headquarters Hospital for his correct diagnosis in innumerable cases without the help of X-Ray/MRI and diligently spent all his time with sleepless nights and saved many patients from dying, apart from the applicant being India Gold Medialist 25 years back itself in his final MBBS. Hence, the impugned order has become non-est, void and unenforceable.
(v) That the extreme punishment of dismissal of the applicant from service is highly harsh and disproportionate into the grounds of charges proved against the applicant and shocking to the conscience, keeping in view of the single charge framed against the applicant and the material on record shows the long service put in by the applicant which is otherwise blemishless and overall view of the facts and circumstances of the applicant's case, therefore, the impugned order is liable to be struck down as the punishment imposed thereon is grossly excessive, contrary and out of proportion to the alleged irregularities committed by the applicant.
(vi) That the finding of the Disciplinary Authorities is utterly perverse in as much as the authorities failed to prove the charge against the applicant, after giving the matter a judicious consideration, so that the applicant does not feel humiliated as held in Bhagatram v. State of A.P., . As such the penalty imposed is liable to be quashed.
8. The respondents in their counter reply submitted that it is not true to say that the applicant is an Anaesthetist Doctor in the South Central Railway service. Doctors are appointed as General Duty Medical Officers through UPSC and not as Specialists. They further stated that the applicant has not been working as an Anaesthetist for quite some time and at the time of the occurrence he was working as a General Duty Medical Officer. The respondents further submitted that it is true to say that the applicant who was suspended on 10.10.2001 while he was working as Medical Superintendent, Khazipet in South Central Railway, for his misconduct and also for having failed to treat the patients properly and thus he was issued major penalty charge memorandum dated 18.11.2001 wherein the charges were clearly spelt out. The respondents further submitted that it is not correct to contend that Inquiry Officer overlooked various submissions made by the applicant during the general examination. The guilt of the applicant was amply proved based on the evidence available on record. The claim of the applicant that he has not done any thing consciously or otherwise to deserve framing of the charges in question against him is untenable as he being qualified medical practitioner should have been prudent enough to treat the patients in a very safe manner prescribed as per the standard medical practices observing the ethics related to the medical practice.
9. The respondents have further stated that it is hot true to say that the Inquiry Officer had not discussed how the diagnosis in both cases was not correct. In fact, the I.O., after carefully going through all the evidences, case papers and statements, came to conclusion that the applicant made one diagnosis in the first instance and quickly changed the diagnosis into a totally unrelated condition without confirming the same through prescribed/ warranted investigations. On 15.9.2001 Smt. Viswasamma (first patient) attended Polyclinic, Kazipet and consulted the applicant for treatment of pain in abdomen. The applicant in the first instance diagnosed her to be suffering from sub-acute appendicitis. After giving her symptomatic treatment, she was sent home with an advice for review after three days. The said lady again consulted the applicant on 19.9.2001 as she did not have relief from the symptoms. The applicant without proper examination or investigation or attempting to seek specialist opinion diagnosed her to be suffering from LS syndrome on the same day. All these facts were taken into consideration by the I.O. meticulously and came to a conclusion that the applicant failed to make correct diagnosis and also failed to use the professional knowledge to treat the patient. The respondents also submitted that it is also pertinent to note that Senior Medical Superintendent, Kazipet Polyclinic vide his letter dated 26.9.2001 instructed the applicant not to undertake such procedures in Health Units. He was also advised to follow and adopt only those procedure which any General Duty Midical Officer will follow at a Health Unit. He was also specifically advised not to give spinal blocks for pain relief as it was not a permanent cure without investigations and without the expressed permission from the Senior Medical Superintendent, Secunderabad Division. Despite the written advice and caution given to the staff by the Senior Medical Superintendent, Kazipet Polyclinic on 25.9.2001, the applicant resorted to repeat the maneuvre in question which caused irreversible damage to the patients. It is also submitted by the respondents that in the second case i.e. Smt. G. Ananthamma consulted the applicant on 26.9.2001 at 13.00 hours for low back ache (as recorded on the Out Patient Chit) and the applicant recorded on the case sheet that Smt. Ananthamma was admitted for severe excruciating pain in lumber and sciatic region. This time, even without making a provisional diagnosis nor recording any findings, the applicant has administered the mixture of drugs in question for obtaining regional block. It is not true to say that the MRI scan obtained from Apollo Hospitals, Hyderabad confirmed the applicant's clinical diagnosis. The MRI scan from Apollo does not make a diagnosis of Spinal Canal Stenosis but it only says that the canal dimensions are in a lower limit of normal and also suggested Arachnoiditis. The respondents have therefore, submitted that the above facts clearly show that I.O. findings are fully corroborative and contentions contrary are not tenable and the applicant was at fault on 8 different counts which were objectively mentioned.
10. Besides the above, the respondent authorities have vehemently objected the certain facts as stated by the applicant in view of the various contentions raised by the respondents in this regard which are as under:
(a) It is not true to say that the diagnosis made by the applicant was subsequently confirmed from the case papers as well as MRI scans of Appollo Hospitals, Hyderabad. In fact, the MRI scan from Appollo does not make a diagnosis of Spinal Canal Stenosis but it only says that the canal diagnosis are in the lower limit of normal and also suggested Arachnoiditis. The Inquiry Officer has rightly pointed out that the applicant should have done further investigations and also should have sought and obtained the opinions of Orthopedician and Neurophysician before doing an invasive procedure like Epidural/Intrathecal Anaesthesia.
(b) It is not true to say that the evidence on record fully proved that not only the patients but their husbands are explained about all the effects of treatment. In fact, the treating doctor should have obtained a written consent as per the procedure before doing such invasive procedures and also explained all the consequences in vernacular to the patients and their husbands/ relatives.
(c) It is not true to say that the mixture of drugs in the manner done by the applicant was not prohibited and they were not toxic drugs and there was no harm in mixing them. In fact, it is the responsibility of the applicant to prove beyond doubt that a cocktail mixture of several drugs can be administered epidurally/intrathecally with valid support of literature and it is not imperative on the part of the Inquiry Officer to produce any literature as it is a known fact that the drugs cannot be mixed indiscriminately even for intra-muscular injection leave alone epidural/ intrathecal administration.
(d) The respondents have further stated that the contention that DW3 fully supported the doctor's stand is totally false and untrue. The answers of DW-3 are evasive and not categorical. None of his answers are supported by valid literature. The DW-3 answered in an evasive and vague manner for important questions and he was defencive saying that he was not present at the time of injection given.
(e) The contention of the applicant that he had adopted the same technique in case of Ananthamma as he was not informed of the condition of Viswasamma is untenable and clearly shows that the applicant has failed in his legitimate duties to follow up the patient whom he treated and made the said two parties suffer from paralysis of both lower limbs. The respondents have further stated that the applicant repeated the same technique in spite of written advice from the Sr. Medical Superintendent, Polyclinic Kazipet not to repeat such techniques before administering to the second patient. As submitted by the authorities, the said letter was duly acknowledged by the applicant.
11. The respondents have therefore, submitted that as the inquiry has been properly held and no allegations against the proper conduct of the enquiry have been made, Court cannot interfere in the Disciplinary Authority's decision as laid down by the Hon'ble Supreme Court in the case of Union of India v. Sardar Bhadar, . The respondents have further submitted that the Supreme Court further held that where charges are proved and of serious nature, Court could not interfere with quantum of punishment in the case of Union of India v. Narayan Singh, . In the instant case, since the charges against the applicant are quite serious in nature, the punishment is commensurate with the proved charges as decided by the Hon'ble Supreme Court in the case of Union of India v. Parmananda, . The respondents have therefore, prayed that there are no merits in this original applicant and the same deserves to be dismissed.
12. The learned Counsel for the applicant has cited the decision of the Hon'ble Supreme Court in the case of the State of Punjab and Ors. v. Ram Singh Ex-Constable, in favour of the applicant. In that case, the Hon'ble Supreme Court had observed that "there is distinction between gravest misconduct and grave misconduct." It was further held that "before awarding an order of dismissal it shall be mandatory that dismissal other should be made only when there are gravest acts of misconduct, since it impinges upon the pensionary rights of the delinquent after putting long length of service." In that case, a police constable in a heavily drunken position, carrying a service revolver was sent to the doctor for medical examination. Then he abused the medical officer on duty which shows his depravity or delinquency due to his drinking habit. It was held by Their Lordships that "it would constitute gravest misconduct warranting dismissal from service. The authorities, therefore, were justified in imposing the penalty of dismissal" in the case.
13. The learned Counsel for the applicant also cited another decision of Hon'ble Supreme Court in the case of Union of India and Ors. v. J. Ahmed, . In that case, the official was suspended on a charge of misconduct. It was held by Their Lordships that "failure to attain highest standard of administrative abilities while holding a high post would themselves constitute misconduct." It was further held that:
"There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high."
It was further held by the Supreme Court that :
"failure to come up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute as failure to maintain devotion to duty. The expression 'devotion to duty' appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty."
It was further held by the Hon'ble Supreme Court that:
"It is, however, difficult to believe that lack of efficiency, failure to attain highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character or personal ability would not constitute misconduct for the purpose of disciplinary proceedings."
Their Lordships of the Supreme Court further held in that case that:
"The High Court was of the opinion that misconduct in the context of disciplinary proceedings means misbehaviour involving some form of guilty mind or mens rea. We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may not involve mens era but may still constitute misconduct for disciplinary proceedings."
Further in that ease, the substance of allegation against the respondent who was an officer was that he was not an efficient officer, lacked the quality of leadership and was deficient in the faculty of decision making. It was further held that "these deficiencies in capacity would not constitute misconduct." It was, therefore, held by the Supreme Court in that case that:
"The High Court was, therefore, right in coming to the conclusion that the respondent was no longer in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void."
14. We have considered all the facts of the case and the material placed before us, together with the arguments made by the learned Counsel for the applicant as well as the respondents. The respondents submitted that it is not true to say that the applicant's clinical diagnosis is proved to be correct from the case paper as well as MRI scans of Apollo Hospital, Hyderabad. In fact, the applicant in the first instance diagnosed the case to be acute appendicitis and changed it to lumbago/sciatica. Further the assertion made by the applicant that the staff nurse had no working knowledge of operation theatre techniques as she slopped working in operation theatre for the past 15 to 20 years itself proves that the applicant has chosen a wrong method because such facilities are not available in a polyclinic set up. The circumstantial evidence is clearly against the applicant. It is also pertinent to note that even though the patient did not die but had a permanent irreversible damage below the waist which was caused by the unwarranted and unethical treatment given by the applicant. It is also not found to be correct on the part of the applicant that he was never casual in his approach as the very statement that the applicant was not informed of the condition of the patient and he was under the impression that she was improving is indicative of his approach.
15. Moreover, in our view all the employees continue in service subject to proper discharge of their respective duties and proper disciplinary proceedings are initiated in case they fail to discharge their duties. Even human life is precious and a doctor is supposed not to be negligent, in any case which is against the oath he has taken before becoming a medical doctor. When the negligence of the applicant in treating the patients were proved beyond doubt during the enquiry, punishment is bound to be imposed on the applicant keeping in view the incorrigible and lackadaisical attitude of the applicant.
16. After going through the facts of the case, we find that the Inquiry Officer took advantage of the innocence and ignorance of the staff nurse during the enquiry and accepted her statement which says that CSF came out and so concluded that needle entered in the deeper space, since she has forgotten the experience 20 years hack itself. There is another circumstance evidence in which one witness by name Mr. Kamruddin who clearly expressed during the enquiry that the applicant has not used hospital needle but opened the disposable pack of needle for negotiating the procedure with the disposable needle present in the pack. However, the Inquiry Officer instead of allowing the witness to complete his wording, he had written in a negative way that lumber puncture needle to negotiate the deeper space. We also find the fact that the first patient developed serious complication and was unlikely to recover which fact was not communicated to the applicant for more than one week. This fact also indicates slackness or irresponsibility of the doctors who are dealing with the patients at Lalaguda Railway Hospital, Secunderabad as if they are instructed not to pass the information to Kazipet. Here, we find some substance in the arguments made by the applicant that it is the mistake of the staff nurse in sending the case into O.T. without consent and for no fault of him, the applicant is made scapegoat for the error committed by staff nurse and Medical Superintendent with regard to the issue of non-availability of consent.
17. We also find that the applicant, at the time of occurrence of the event, had been working as GDMO and also Specialist. While working at Secunderabad Headquarters as GDMO in Family Welfare for a pretty long period nearly 5 years, he was corning to Kazipet and giving Anaesthesia for small eases and family welfare cases also. At Kazipet with the permission of CMD and as per his orders he worked as the Anaesthetist in both headquarters. Same type of special Anaesthesia was attempted by him in the case in dispute at Kazipet. The applicant has charged the Inquiry Officer in his rejoinder that the I.O. is child specialist only and does not possess knowledge in Anaesthesia and General medicine, Orthopaedics, Neurology, Neuro Surgery. Since the patient was very seriously limping and was suffering from unbearable pain, the diagnosis was reviewed by the applicant and epidural anaesthesia was considered and administered accordingly. We also find some substance from the applicant's submission that two anatomical abnormalities will not occur overnight. They have been there since very long and the patient is saying that she had been suffering from ailment for many years together. Form this fact, it looks that the clumping of nerve roots and displacement of vertebral discs and displacement of spinal cord posterior 100% confirm the applicant's diagnosis as lumbago siatica compression syndrome. It is true that Apollo Hospital Radiologist or any other radiologist will give any X-Ray/MRI findings and will not step into the diagnosis of Physician or an Aesthesia or whosoever it may be and it is up to the referral doctor to corroborate the radiologists findings with his clinical findings on the patient and come to the conclusion. It is, therefore, possible that the I.O. may have taken a very hurried and wrong step in denying applicant's diagnosis in haste to confirm his biased opinion with mala fide intention. Moreover, from the perusal of the records, we find that the applicant appears to be a prudent and confident person in his diagnosis and he knew his job in tackling such cases. It is not mandatory that only Neuro Surgeon, Ortho surgeon are competent to make diagnosis. Besides, during the enquiry in the Lalaguda Hospital when they were asked whether they were kept informed before giving injections with the patients, the answer was affirmative. They never said that they were not informed of injection in the back also which clearly explains that they were aware that the procedure was meant for giving relief for the leg pain they were suffering from. Thus, the consent was implied and procedure was accepted by both the patients.
18. Here, we find some substance in the version made by the learned Counsel for the applicant that one or two instances committed by the applicant, may be there has been some negligence on the part of the applicant in that regard, cannot constitute grave misconduct. The learned Counsel for the applicant repeatedly contended that the punishment awarded to the applicant is too high and disproportionate to the guilt of the applicant and it should be suitably modified. We also find support from the Supreme Court decision in the case of Union of India and Ors. v. J. Ahmed referred to by the learned Counsel for the applicant wherein it was held by their Lordships that failure to attain highest standards of administrative abilities alone would not constitute misconduct. Since the applicant is found to be in fault for adopting a negligent view in the matter, whereby two patients suffered so heavily, he is bound to be given punishment. But, we also feel that the punishment awarded to the applicant for having committed the error in treating the two patients is disproportionate to his guilt. We are, therefore, of the view that the applicant deserves a lesser punishment which is in commensurate to his guilt like that of Compulsory Retirement from service, which was earlier proposed by the General Manager, S.C. Railway in the case of the applicant, instead of dismissal from service.
19. In view of the above, the order of dismissal from service passed against the applicant dated 26.8.2003 is hereby quashed. The respondents are directed to modify the order by awarding him punishment of Compulsory Retirement from service with effect from the same date and to pay him all pensionary benefits including pension to which the applicant is entitled, within a period of three months from the date of communication of this order.
20. With the above remarks, this O.A. is disposed of with no order as to costs.