Allahabad High Court
Dr.(Smt.) Abha Gupta vs The State Of U.P. And Others on 29 October, 2013
Author: Rajes Kumar
Bench: Rajes Kumar, M.C.Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved. Civil Misc. Writ Petition No. 64216 of 2011 Dr. (Smt) Abha Gupta.............................................................Petitioner. Vs. State of U.P. and others..................................................Respondents. ********* Hon'ble Rajes Kumar, J.
Hon'ble M.C.Tripathi, J.
(Delivered by Hon'ble Rajes Kumar, J.) Heard Sri Manish Goyal, learned counsel for the petitioner, Sri Yogesh Kumar Yadav, learned Standing Counsel appears on behalf of respondent nos. 1 to 5 and Sri Mahendra Pratap Yadav, Advocate, appears on behalf of respondent nos. 8, 9 & 10.
By means of the present petition, the petitioner is challenging the order dated 2.9.2011 passed by respondent no. 1 whereby the petitioner has been awarded a major punishment by way of downgrading her from Medical Officer Level -2 to Medical Officer Level-1.
In the year 2008, the petitioner was posted as a seniormost Women Medical Officer at District Joint Hospital, Maharajganj. On 5.6.2008, one Saroj, daughter of Sri Ramanand Shahni, filed an FIR against one Sri Dharmendra, alleging that she had been raped by him on 26.5.2008. In pursuance thereof, a case Crime No. 940 of 2008, under Section 376 I.P.C. was registered. Pursuant to the FIR, Saroj was brought to the District Joint Hospital, Maharajganj at about 11-30 AM for her medical examination. She had been examined by the petitioner. Upon physical examination of Saroj, the petitioner prepared a report. The report is Annexure-2 to the writ petition. In the report, it has been categorically stated that "final opinion can be given after Radiological and Pathological report." Saroj belongs to the Nishad community. On 7.6.2008, one Sri Jamuna Nishad, a sitting M.L.A., also appears to be a Minister, along with some anti social elements, came at the Police Station, Mahrajganj and put the entire Police station on fire, which was followed by cross-firing in which one Constable Krishna Nand Rai died. A First Information Report was lodged against Sri Jamuna Nishad by the Police Officer Incharge of Police Station, Maharajganj. On 8.6.2008, at about 11-45 PM, a Medical Board, consisting of 6 doctors, was constituted, which included Radiologist and Pathologist. The Board examined Saroj and given the report at 2-00 AM i.e. in the night of 8/9.6.2008. The report is Annexure-3 to the writ petition. The report reveals that no final opinion has been given about the rape having being committed. However, the Superintendent of Police, Maharajganj wrote a letter dated 9.6.2008 to the District Magistrate, Maharajganj recommending disciplinary action against the petitioner. The said letter is Annexure-4 to the writ petition. In pursuance thereof, the District Magistrate wrote a letter dated 9.6.2008 to the State Government for taking disciplinary action against the petitioner. On 11.6.2008, the petitioner has been suspended. The First Information Report was lodged, which was registered as Case Crime No. 1048 of 2008, under Sections 119, 192 and 201 IPC read with Section 7/13 of the Prevention of Corruption Act. In pursuance of above, a departmental disciplinary enquiry has been initiated. On 18.6.2008, a charge-sheet has been submitted, which is Annexure-7 to the writ petition, on the allegation that the report of the petitioner and the report of the Medical Board were different and the petitioner by giving incorrect report had not discharged her medical duty and responsibility. The petitioner filed reply on 2.7.2008, which is Annexure-8 to the writ petition, and demanded six specific documents and also raised objection about the continuance of the disciplinary proceedings simultaneously with the criminal proceedings. However, despite the objection, disciplinary proceedings proceeded. The petitioner was provided only two out of six documents demanded. Thereafter, the petitioner filed a detailed objection on 29.9.2008 before the Inquiry Officer. The copy of the reply is Annexure-11 to the writ petition, and further filed a letter dated 29.9.2008 with the request to examine eleven witnesses. On 6.10.2008, four Doctors, who were members of the Medical Board, presented themselves before the Inquiry Officer and their statements had been recorded.
It was the case of the petitioner that when the statements of the doctor had been recorded, the petitioner had been directed to sit outside. The statements were recorded behind the back of the petitioner and after recording statements, the petitioner was called inside and was asked to cross-examine those four doctors. The petitioner requested for being provided the statements in-chief of the four doctors but the Inquiry Officer refused to provide such statements to the petitioner. The petitioner was compelled to cross-examine the witnesses without being provided with the copy of the statements in-chief of such doctors. The proceeding was concluded on 6.10.2008.
It appears that the other witnesses, namely, Police Constable and the staff nurses were summoned for the examination on 14.10.2008 but they did not appear. The inquiry was finally concluded and the inquiry report was submitted on 20.10.2008. The copy of the inquiry report is Annexure-19 to the writ petition. In pursuance thereof, a show cause notice was issued to the petitioner on 7.1.2009, which is Annexure-20 to the writ petition. The petitioner filed a detailed reply dated 28.1.2009, which is Annexure-21 to the writ petition. Before filing the reply dated 28.1.2009, the petitioner wrote two letters dated 16.1.2009 and 23.1.2009 by which it had been complained that four documents, sought by the petitioner, had not been provided and the minutes of the inquiry proceedings as well as the statements of the witnesses were not provided to the petitioner. On 12.4.2010, the disciplinary authority issued a letter to the Department to provide documents to the petitioner as demanded in her letters dated 16.1.2009 and 23.1.2009. In pursuance of the said letters, the documents, sought, were provided to the petitioner. After the receipt of the remaining documents, the statements in-chief of four doctors and the copy of the minutes, the petitioner filed an application dated 30.4.2010 requesting the disciplinary authority to recall the witnesses for cross-examination. However, no further opportunity of cross-examination has been given. On the warning given by the respondent, the petitioner had filed written representation in detail on 31.1.2011. The respondent no. 1 has passed the impugned order dated 2.9.2011 imposing major penalty reducing the rank of the petitioner from Medical Officer Level-2 to Medical Officer Level-1, which is impugned in the present writ petition.
Learned counsel for the petitioner submitted that the entire proceeding was preconceived, with mind set, bias and full of malafide. It is alleged that Saroj was raped by one Dharmendra on 26.5.2008. The First Information Report was lodged on 5.6.2008 under Section 376 IPC and she was brought for medical examination in the hospital on 6.6.2008 at 11-30 AM. The petitioner examined her physically given a tentative report categorically stating that "final opinion can be given after the Radiological and Pathological report." When the final report had not been given, there was no occasion to constitute a Medical Board. However, it appears that when local M.L.A.; who was also a Minister, had exerted pressure, entered in the Police Station along with anti social elements, resulting in the death of Constable Krishna Nand Rai on 7.6.2008, the Chief Minister gave a statement on 8.6.2008 that the Doctor, who had physically examined the victim will be punished reference is made to the newspaper publication, which is part of annexure-25 to the writ petition (Page 214) and thereafter hurriedly a Medical Board, consisting of six Doctors at 11-45 P.M., including Radiologist and Pathologist was constituted, which gave its report at 2-00 A.M. In normal course, the Medical Board of six doctors is never formed. The formation of Medical Board at 11-45 P.M. and the report given at 2-00 A.M. shows that the Medical Board has been formed under pressure in pursuance of the statement of the Chief Minister to punish the Doctor. Medical Board in its report concluded that "no final opinion can be given about the rape having being committed." The disciplinary proceeding has been taken on the letter being written by the Superintendent of Police, Maharajganj to the District Magistrate, Maharajganj and the District Magistrate to the State Government and, accordingly, the petitioner was suspended. He submitted that averments made in para-7 of the writ petition about the statement of the Chief Minister that the Medical Officer of the Women's Hospital will soon be suspended and action will be taken against her has not been denied in para-6 of the counter affidavit. He submitted that the statements of the four Medical Officers, who are members of the Board, were recorded behind the back of the petitioner and their statements reveal that they are evasive and guarded so that the truth may not come on surface. He submitted that the report given by the petitioner was only a tentative and it was specifically stated that "final opinion can be given after Radiological and Pathological report, therefore, a non-conclusive report, which was subject to further investigation, could not be made as a basis to form an opinion that the incorrect report has been given. He submitted that only difference which has been noticed is that in the report given by the petitioner, it has been stated that hymen intact while in the report of the Board, it has been stated that hymen torn and healed, but the Board has also drawn inference, namely, "no definite opinion regarding rape can be given." Before the Board, reports of the Pathology and Radiology were available. The Radiologist and Pathologist were also members of the Board. He submitted in the cross-examination, on the query being made by the petitioner that how much time the torn hymen takes to be healed; the reply was, one week. Admittedly, in the Board report, the hymen at that time was not found torn but was found healed. It could not be healed within three days, therefore, the opinion that "hymen torn" was only a subjective opinion. As per first information report incident was occurred on 26.5.2008 and victim was examined on 6.6.2008 by the petitioner after eleven days. Thus, hymen could have healed if torn, therefore, reasonably, a prima facie opinion could be formed that it was intact. On the query being made, whether there was any injury in private part; the reply was no. On the query being made, whether the report has been made by all the Doctors, it has been stated that one report has been prepared, which has been signed by all the doctors. On the query being made that in the report, it has been stated that hymen torn and healed while in the inference it has been stated that definite opinion about the rape cannot be given, what do you mean by that; it has been stated that since sperm was not found, therefore, no definite opinion could be given. In the report, it was found that when the girl was examined by the Doctors of the Board she was in meness. This fact has been admitted by the Doctors in their cross-examination also. On a query being made, whether she has put the pad, the reply was yes. Further on the query being made that when there was a pad whether the blood available on the pad has been preserved which was necessary according to the Essential of Forensic and Toxicology written by Doctor K.S. Narayan Reddy, the reply was that it was not preserved. On the query being made that if the lady was in meness then in accordance to the medical jurisprudence, the lady should have been called again and if it has not been done, why the reply was no and further it is not in their knowledge. He submitted that when the girl was in meness, the assessment whether the hymen was intact or little torn and healed was difficult. Such report was on the dictate of the authorities and under pressure. He submitted that the entire action suffers from bias, the proceeding drawn against the petitioner is nullity and is liable to be set aside.
Reliance is placed on the decision of the Apex Court in the case of State of Punjab Vs. V.K. Khanna and others, reported in 2001 (2) SCC-330 paras-25 and 34.
He further submitted that there was a breach of principles of natural justice and violation of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the ("Rules, 1999") for the reason that four documents were not provided to the petitioner by the Inquiry Officer even though specifically demanded; the same were provided by the disciplinary authority. Four Doctors were examined behind the back of the petitioner in a closed room and the petitioner was asked to wait outside; the petitioner was asked to cross-examine such witnesses without being provided the copy of the statements of their examination-in-chief, which were provided subsequently after the inquiry report being submitted by the disciplinary authority; the petitioner denied the facility of a defence assistant; seven other witnesses, who were to be examined as in defence by the petitioner, were not produced in the disciplinary proceeding; the petitioner compelled to give defence without even the case being stated by any Presiding Officer or by the Inquiry Officer; the denial to recall the witnesses for cross-examination; reply to documents were not considered; non-calling of the Medico Legal Expert's report from the State Laboratory. He submitted that Rule 7 of the Rules, 1999 provides procedure, which inter-alia requires examination of witnesses in the presence of the delinquent and also requires supply of documents along with chargesheet as well as supply of documents by the delinquent, relevant to the issue and also provide witnesses as have been called for by the delinquent; none of the aforesaid procedures were followed and hence, the entire proceedings stand vitiated.
Reliance is placed on the following decisions:
1- Dr. Subhash Chandra Gupta Vs. State of U.P., reported in 2011 (5) ESC-3270 (All) (DB), paras- 11, 12 and 13.
2-Vijay Kumar Sinha Vs. State of U.P. and others, reported in 2011 (4) ESC-2949 (All) (DB), paras-32 to 36 and 39.
3-Munish Chandra Verma Vs. State of U.P. and others, reported in 2011 (1) ESC-335 (All) (DB), paras-13 and 17.
4-Khardah & Co., Ltd. Vs. The Workmen, reported in 1963 (7) FLR-274, Page 277 bottom.
5-State of U.P. Vs. C.S. Sharma, reported in AIR 1983 (Alld)-94.
6- State of Uttaranchal and others Vs. Kharak Singh, reported in 2008 (8) SCC-236, para-15.
7- Central Bank of India Ltd. Vs. Karunamoy Banerjee, reported in AIR 1968 SC-266, para-19.
He further submitted that the conclusion drawn by the Inquiry Officer is perverse, inasmuch as the Inquiry Officer on the face of the two reports, that forms the basis of the charge did not consider the evidence and the statements of the petitioner to the effect that in both the reports no final opinion was expressed. The statements of the witnesses, who were cross-examined by the petitioner, supported the fact that there is no misconduct on the part of the petitioner and the report submitted by the petitioner, by no stretch of imagination, can be termed to be wrong or incorrect. The report submitted by the petitioner was tentative, subject to further investigation.
He submitted that the charges framed against the petitioner do not establish any misconduct as there is no charge of deliberately giving a false report. It is only the comparison of two reports wherein a conclusion has been drawn, inter-alia, to the effect that the report of the petitioner appears to be incorrect. Mere difference in opinion of two sets of Doctors or between a Doctor and a set of Doctors is not a misconduct. Neither there is a charge nor there exists any evidence to show that there is any deliberate omission or commission on the part of the petitioner so as to fall within the wrath of Rule 3 of the U.P. Government Servant Conduct Rules, 1956; hence there is no misconduct and the inquiry proceedings could not have been undertaken against the petitioner.
Reliance has been placed on the decisions of the Apex Court in the case of Kusum Sharma Vs. Batra Hospital and Medical Research Centre, reported in AIR 2010 SC-1050, paras- 49 (i), 74 and 94 (v) and Jacob Mathew Vs. State of Punjab and another, reported in AIR 2005 SC -3180, para-25.
He further submitted that the quantum of punishment is wholly unjustified.
Sri Y.K. Yadav, learned Standing Counsel submitted that in the report dated 6.6.2008, given by the petitioner on physical examination, it was stated that hymen was intact while in the report, given by the Medical Board consisting of six Doctors, it was stated that hymen torn but healed. This was the major difference in the two reports and accordingly, it has been concluded that incorrect report has been given by the petitioner and the petitioner failed to discharge her medical duty and obligation. The same has been treated as misconduct and accordingly, the petitioner has been punished. He supported the impugned order.
We have considered rival submissions and perused the records.
Perusal of the impugned punishment order shows that the punishment has been awarded merely on the basis of the inference drawn in the inquiry report. Neither contents of the inquiry report have been referred nor the reply of the petitioner has been referred and considered. In the inquiry report, it has been inferred that a difference has been found in the report of the petitioner's dated 6.6.2008 and the report of the Medical Board dated 8.6.2008. The difference stated is, that in the report of the petitioner's dated 6.6.2008, it is mentioned that "hymen intact, os admit one finger UT, Av, NS" while in the report of the Board's dated 8.6.2008, it is mentioned that "hymen torn and healed vagina admit two finger UT. normal size." It is observed that in case os admit one finger, the situation of UT and size cannot be assessed and since the difference in two reports were found, it can be said that the petitioner could not discharge her medical duty and responsibility by giving wrong report, is established.
The punishment is being awarded under Rule 3 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the ("Rules, 1999"). The procedure for making the inquiry is provided under Rule 7 of the Rules, 1999. Rule 3 and 7 read as follows:
"3. Penalties - The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon the Government Servants:-
Minor Penalties:-
(I)Censure;
(II)Withholding of increments for a specified period;
(III)Stoppage at an efficiency bar;
(IV)Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders;
(V)Fine in case of persons holding Group 'D' posts;
Provided that the amount of such fine shall in no case exceed twenty-five per cent of the months pay in which the fine is imposed.
Major Penalties:--
(i) Withholding of increments with cumulative effect;
(ii) Reduction to a lower post or grade or time-scale or to a lower stage in a time scale;
(iii) Removal from the service which does not disqualify from future employment;
(iv) Dismissal from the service which disqualifies from future employment.
Explanation._ The following shall not amount to penalty within the meaning of this rule, namely:-
(I) Withholding of increment of a Government servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service;
(ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar;
(iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation;
(iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation.
"7. Procedure for imposing major penalties. Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner:
(i) The Disciplinary Authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges.
(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the Disciplinary authority :
Provided that where the Appointing Authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department.
(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same along with oral evidences, if any, shall be mentioned in the charge-sheet.
(iv) The Charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex parte.
(v) The charge-sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by by publication in a daily newspaper having wide circulation :
Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.
(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission.
(vii) Where the charged Government servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged-Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence :
Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
(viii) The Inquiry Officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of witnesses and Production of Documents) Act, 1976.
(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.
(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.
(xi) The Disciplinary Authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presiding Officer" to present on its behalf the case in support of the charge.
(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner of the Disciplinary Authority having regard to the circumstances of the case so permits :
Provided that this rule shall not apply in following cases:-
(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonable practicable to hold an inquiry in the manner provided in these rules; or
(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules."
The undisputed facts of the case are that on 5th June, 2008, one Saroj, daughter of one Ramanand Sahani, lodged a First Information Report against one Dharmendra, alleging therein that her daughter, Saroj, has been raped by Dharmendra on 26th May, 2008. In pursuance thereof, a Case Crime No. 940 of 2008, under Section 376 of the IPC has been registered at Police Station Maharajganj. Pursuant to the first information report, the victim has been sent to the District General Hospital, Maharajganj at about 11:30 AM for her medical examination where she has been physcially examined by the petitioner. Upon physical examination of the victim, the petitioner prepared a report, stating therein that "hymen intact, os admit one finger UT, Av, NS". In the end of the report, under the heading 'opinion' it has been stated that "The Final opinion can be given after radiological and pathological reports". On 7th June, 2008, one Sri Jamuna Nishad, a sitting Member of Legislative Assembly (MLA) and the Minister, alongwith some antisocial elements came at the Police Station, Maharajganj and put the entire Police Station at fire, which was followed by cross firing between the Police force and the antisocial elements in which one Police Constable, Sri Krishna Nand Rai, died. A first information report was lodged against Sri Jamuna Nishad by the Police Officer, Incharge of the Police Station Maharajganj. On 8th June, 2008, at about 11:30 P.M. a Medical Board, consisting of six Doctors, including the Radiologist and the Pathologist, was constituted. The Board examined the victim, Saroj, and given a report at about 02:00 A.M., that is, in the night of 8th /9th June, 2008. In the said report, it has been stated that "hymen torn and healed vagina admit two finger UT. normal size." In the physical examination of the victim, the Medical Board, so constituted, considered the report of the Radiologist and the Pathologist. Under the heading 'Inference', it has been stated that "no final opinion can be given about the rape having been committed."
In paragraph-7 of the writ petition, it is avered that in the news papers, the report has been published that the Chief Minister has given the statement that the Medical Officer of the Women's Hospital would soon be suspended and disciplinary action would be taken against her. The news papers' report is part of the Annexure-25 (Page 204) of the writ petition. This averment made by the petitioner has not been denied in paragraph 6 of the counter affidavit. The Superintendent of Police, Maharajganj wrote a letter dated 9th June, 2008 to the District Magistrate, Maharajganj, recommending disciplinary action against the petitioner, pursuant to which, the District Magistrate, Maharajganj, wrote the letter on the same day to the State Government for taking disciplinary action against the petitioner. On 11th June, 2008, the petitioner has been put under suspension, followed by a departmental disciplinary proceeding and a first information report was lodged. A chargehseet has been submitted on the allegation that the report of the petitioner and the report submitted by the Medical Board were different and the petitioner by giving an incorrect report had not discharged her medical duties and responsibilities to which the petitioner filed a reply on 2nd July, 2008, Annexure-8 to the writ petition, and demanded six specific documents, but she has been provided only two out of six documents demanded and the other documents were provided to her after submission of the enquiry report by the Disciplinary authority. Thereafter, the petitioner filed a detailed objection on 29th September, 2008 before the Enquiry Officer. The petitioner wrote a letter dated 29th September, 2008, with a request to examine eleven witnesses. On 6th October, 2008, four Doctors, who were members of the Medical Board, presented themselves before the Enquiry Officer, and their statements have been recorded, but behind the back of the petitioner without providing her the copy of the statement-in-chief. The petitioner has been asked to cross-examine these Doctors. The other witnesses, namely, Police Constable and the several Nurses, who were summoned for examination on 14th October, did not turn up. The enquiry proceeding has ultimately been concluded finally and the enquiry report was submitted on 20th October, 2008. In pursuance thereof, a show cause notice was issued to the petitioner on 7th January, 2009 to which the petitioner filed a reply on 28th January, 2009. Before filing the reply, dated 28th January, 2009, the petitioner wrote two letters dated 16th January and 23rd January, 2009, by which it was complained that four documents sought by the petitioner, including, minutes of the enquiry proceeding as well as the statements of the witnesses were not provided to the petitioner. On 12th April, 2010, the Disciplinary authority issued a letter to the department to provide documents to the petitioner as demanded in her two letters dated 16th and 23rd January, 2009, in response to which the documents sought by the petitioner were provided to her. After receipt of the remaining documents, the statement in chief of four Doctors and the copy of the minutes of the enquiry proceeding, the petitioner filed an application dated 30th April, 2010, requesting the Disciplinary authority to recall the witnesses for cross-examination. However, no further opportunity of cross-examination has been given to the petitioner. The petitioner filed a written representation in detail on 31st January, 2011. Thereafter, the impugned order dated 2nd September, 2011 has been passed. The impugned order is solely based upon the inference drawn in the enquiry report. In the enquiry report, it has been inferred that difference has been found between the report of the petitioner dated 6th June, 2008 and the report of the Medical Board, dated 8th/9th June, 2008. The difference stated in two reports is that in the report of the petitioner dated 6th June, 2008, it is mentioned that "hymen intact, os admit one finger UT, Av, NS" while in the report of the Medical Board, dated 8th June, 2008, it is mentioned that "hymen torn and healed vagina admit two finger UT. normal size."
It is observed that in case OS admitted one finger, the position and the size of the UT cannot be assessed and since the difference in two reports were found, it cannot be said that the allegation that the petitioner could not discharge her medical duties and the responsibilities is established by giving an incorrect report. On the basis of the report, the petitioner has been awarded the major penalty, as contemplated under Rule 3 of the Rules of 1999 by way of downgrading her from Medical Officer Level-II to Medical Officer Level-I. On the aforesaid facts, the questions for consideration are:
(I) Whether the impugned order is bad in law inasmuch as it has been passed merely on the basis of the inference drawn in the enquiry report, without referring to the contents of the enquiry report and the reply of the petitioner and without consideration of the same?
(II) Whether the entire disciplinary proceeding is in violation of the principles of the natural justice as also in violation of the procedure provided under Rule 7 of the Rules of 1999?
(III) Whether the entire enquiry report is with the pre mind set to punish the petitioner and was biased, full of malice and accordingly the impugned punishment order is bad in law?
(IV) Whether on the facts and circumstances, there was any misconduct or breach of conduct on the part of the petitioner warranting any punishment?
(V) Whether the alleged difference in the reports of the petitioner and the Medical Board amounts failure in discharging duties and responsibilities of a Medical Officer resulting in misconduct?
I. Whether the impugned order is bad in law inasmuch as it has been passed merely on the basis of the inference drawn in the enquiry report, without referring to the contents of the enquiry report and the reply of the petitioner and without consideration of the same?
The Apex Court in the case of Vijay Singh v. State of Uttar Pradesh and others, reported in (2012) SCC 242, has held that the departmental proceeding and recording of the finding of guilt against the delinquent and imposing the punishment for the same is a quasi judicial function and not an administrative function, hence the authorities have to strictly adhere to statutory Rules while imposing the penalty. Therefore, the enquiry proceeding has to be conducted in accordance with the procedure provided under the Rule, in the present case, Rule 7 of the Rules of 1999 and further the Disciplinary authority, while passing the punishment order is under the statutory obligation to refer the enquiry report, the explanation given by the delinquent officer, time to time, and thereafter record the reason for acceptance and non-acceptance of the reply of the delinquent officer.
In the present case, the Disciplinary authority has neither referred the enquiry report nor the explanation of the petitioner and without consideration of explanation and recording any finding in this regard awarded major punishment merely on the basis of the enquiry report. Such order is wholly vitiated and is not sustainable in law.
II. Breach of natural justice and non-compliance/observance of the procedure prescribed in U.P. Government Servant (Discipline and Appeal) Rules, 1999 Clause (v) of the Rules of 1999 provides that the charge-sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records.
Clause (vii) provides that where the charged Government servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged-Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence.
Clause (viii) provides that the Inquiry Officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of witnesses and Production of Documents) Act, 1976.
Clause (ix) provides that the Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.
Clause (xii) provides that the Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner of the Disciplinary Authority having regard to the circumstances of the case so permits.
In the present case, the statements of four Doctors, who were part of the Medical Board, have not been recorded in the presence of the petitioner. When the statements were being recorded, the petitioner has been asked to sit outside the room. The copy of the statement-in-chief has not been provided to her and the petitioner has been asked to cross examine in the absence of the copy of the statement-in-chief. This action of the Enquiry Officer was in complete violation of Clause (vii) of the Rules, 1999 and was in complete violation of the natural justice and thus vitiates the enquiry report.
The petitioner has asked to provide her six documents, out of which, admittedly, only two documents have been provided to her and four documents have been provided to the petitioner after submission of the enquiry report by the Disciplinary authority. This act of the Enquiry Officer is also in violation of the principles of the natural justice and vitiates the enquiry proceeding. When the copy of the four documents, the minutes of the enquiry proceeding and statement-nin-chief have been provided by the Disciplinary authority, the petitioner asked for the opportunity to cross-examine six Doctors, whose statements were recorded behind her back, but such opportunity has been denied to her. It also amounts to violation of principles of natural justice and clause (vii) of Rules, 1999.
On the demand being made, the petitioner has also been denied the facility of having Defence Assistant, as provided under the Rules. Seven other witnesses, who were to be examined as defence, though called by the Enquiry Officer, but have not been produced for cross-examination. No sincere efforts have been made to produce them. On this count also enquiry proceeding stands vitiated.
The Division Bench of this Court, in the case of Salahuddin Ansari v. State of U.P. and others, reported in 2008 (3) ESC 1776, has held that not holding of oral enquiry is a serious flaw which can vitiate the order of the Disciplinary authority, including the order of the punishment. It has been observed that "Non-holding of oral enquiry in such a case is a serious matter and goes to the root of the case."
The Division Bench of this Court in the case of Subash Chandra Sharma v. Managing Director and another, reported in 2000 (1) UPLBEC, 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that "if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee".
Similar view has been reiterated by the Division Bench of this Court in the case of Dr. Subhash Chandra Gupta v. State of U.P., reported in 2011 (5) ESC 3270.
The Division Bench of this Court, in the case of Vijay Kumar Sinha v. State of U.P. and others, reported in 2011 (4) ESC, 2949, has held that "in cases where no oral evidence in the presence of charged government servant has been recorded, there is no question of opportunity to cross-examine to him and in respect to providing opportunity to award major punishment like dismissal, holding of full-fledged enquiry must be there." The Division Bench in the said case has observed as under:
"This Court in the case of Nishith Chandra Tiwari Vs. U. P. Sahkari Gramya Vikash Bank Ltd., Lucknow and others reported in 2003 (2) E.S.C.1170 made the following observation:
"However, when it is proposed to impose a major punishment like dismissal, ordinarily a full fledged oral enquiry must be held. This is because a major punishment has very serious consequences for the employee. It can result in the employee and his whole family been driven to starvation and destitution. Hence, the law imposes a stricter and more elaborate procedure requiring a full fledged oral enquiry in cases of major punishment. In such category of cases, it is ordinarily necessary for the employer to issue a notice to the employee indicating the date, time and place of the enquiry and appointing an Inquiry Officer. On the date and time fixed, the witnesses against the concerned employee must be examined ordinarily in his presence and he must be given an opportunity to cross examine them. Thereafter he must be allowed to adduce his own witnesses and produce the other evidence whether oral documentary. It is only after completing this procedure that a major punishment can be imposed. This is the view which this Court has taken in Subhash Chandra Sharma Vs. Managing Director and another, 1999 (4) AWC 3227 against which judgment SLP has been dismissed by the Supreme Court. The judgment in the case of Subhash Chandra Sharma (supra) has been followed by this Court in several decisions, e.g. Sahngoo Ram Arya V. Chief Secretary, State of U. P., Lucknow and others, 2002 (1) ESC 479 (All) against which SLP has been dismissed by the Supreme Court on 10.3.2003 and Subhash Chandra Sharma V. U. P. Cooperative Spinning Mills and others, (2001) 2 UPLBEC 1475 etc."
In another decision given by the Bench of this Court in the case of Mohd. Javed Khan Vs. State of U. P. and others reported in 2008 (1) ADJ 284 on the ground that in the enquiry petitioner was not afforded an opportunity to participate and no date, time and place was fixed and enquiry proceeding, decision to punish the petitioner was set aside."
In the case of Subhash Chandra Sharma v. Managing Director, U.P. Cooperative Spinning Mills Federation Ltd., reported in 1999 (4) AWC 3227, the Division Bench of this Court has held that "if no evidence was led in presence of the petitioner and if he was not given opportunity to cross examine the witnesses, order of dismissal is to be quashed." The Division Bench, in paragraphs 5, 6 and 7 of the said judgement, has observed as under:
"5. In our opinion, after the petitioner replied to the charge sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry, then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case, it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge sheet, he was given a show cause notice and thereafter the dismissal order was passed. In our opinion, this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion, the impugned order is clearly violative of natural justice.
6.In Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719, the Supreme Court observed : "It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and his requirement must be substantially fulfilled before the result of the enquiry can be accepted."
7. In S.C. Girotra v. United Commercial Bank, 1995 Supp. (3) SCC 212, the Supreme Court set aside a dismissal order which was passed without giving the employee an opportunity of cross examination. In State of U. P. V. C.S. Sharma, AIR 1968 SC 158, the Supreme Court held that emission to give opportunity to the Officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations and opportunity has to be given to the delinquent to cross-examine these witnesses and to lead evidence in his defence. In Punjab National Bank V. AIPNBE Federation, AIR 1960 SC 160 (vide para 66), the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd. v. Their Workmen, 1963 II LLJ 396, and in Tata Oil Mills Co. Ltd. v. Their Workmen, 1963 II LLJ 78 SC."
The Apex Court, in the case of Khardah & Co. Ltd. v. The Workmen, reported in 1963 (7) SC FLR, 274, has held that "unless there are compelling reason to do so, normal procedure should be followed and all evidences should be recorded in the presence of the workman, who stands charged with the commission of acts constituting misconduct". It has also been held that "the examination of the witnesses should be in the presence of the person charged".
In the case of State of Uttaranchal and others v. KharaK Singh, reported in 2008 (8) SCC 326, the Apex Court has held that "the departmental enquiry should not be an empty formality". The Apex Court, in paragraph 20, of the said judgment, held as follows:
"20. A reading of the enquiry report also shows that the respondent herein was not furnished with the required documents. The department's witnesses were not examined in his presence. Though the respondent who was the writ petitioner specifically stated so in the affidavit before the High Court in the writ proceedings, those averments were specifically controverted in the reply affidavit filed by the department. Mere denial for the sake of denial is not an answer to the specific allegations made in the affidavit. Likewise, there is no evidence to show that after submission of the report by the enquiry officer to the disciplinary authority, the respondent herein was furnished with the copy of the said report along with all the relied upon documents. When all these infirmities were specifically pleaded and brought to the notice of the appellate authority (i.e. Forest Conservator), he rejected the same but has not pointed the relevant materials from the records of the enquiry officer and disciplinary authority to support his decision. Hence, the appellate authority has also committed an error in dismissing the appeal of the respondent."
III. Whether the entire enquiry report is with the pre mind set to punish the petitioner and was biased, full of malice and accordingly the impugned punishment order is bad in law?
In the case of State of Punjab v. V.K. Khanna and others, reported in 2001 (2) SCC, 330, the Apex Court has held that the concept of fairness in administrative action has been subject matter of considerable judicial debate, but there is total unanimity on the basic element of the concept to the effect that the same is dependent upon the facts and circumstances of each matter pending scrutiny before the court and no strait jacket formula can be evolved therefor. As a matter of fact, fairness is synonymous with reasonableness and on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed. Bias is included within the attributes and broader purview of the word "malice". Therefore, the factual details are relevant to determine whether there was existing cogent evidence of improper conduct and motive resultantly a malafide move on the part of appellants against the respondent. The Apex Court, in paragraph 25 of the said judgment, has observed as under:
"25. Bias admittedly negates fairness and reasonableness by reason of which arbitrariness and mala fide move creep in --- issuance of the two notifications, assuming in hot haste, but no particulars of any mala fides move or action has been brought out on record on the part of Shri V.K.Khanna-- while it is true that the notings prepared for Advocate General's opinion contain a definite remark about the mala fide move on the part of Shri V.K.Khanna yet there is singular absence of any particulars without which the case of mala fides cannot be sustained. The expression "mala fide" has a definite significance in the legal phraseology and the same cannot possible emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona fide - actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is in accompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act."
Now let us test the present case on the principles laid down by the Apex Court, referred hereinabove.
As per the first information report, the incident occurred on 26th May, 2008. The allegation was that Saroj was raped by one Dharmendra. The first information report has been lodged on 5th June, 2008, that is, after ten days from the day of occurrence of the incident. Saroj was presented before the petitioner for medical examination on 6th June, 2008. On the physical examination, a report was given in which it was observed that 'hymen was intact'. The report given by the petitioner was only tentative and not conclusive. It was only a preliminary report. No final report has been given by the petitioner and was subject to the Radiologist's and Pathologist's reports. It appears that the observation that the hymen was intact in the report offended the persons concerned having some vested interest because the persons interested might have felt that by the said report, the allegation of rape could not be established. Thus, without waiting for the final report, the interested persons became offended and Sri Jamuna Nishad, who was a sitting MLA and a Minister, belonging to the same community to which the victim belonged, reached to the Police Station Maharajganj, alongwith some anti-social elements and set the Police Station at fire, which was followed by cross-firing resulting in the death of one Police Constable, namely, Sri Krishna Nand Rai. The pressure of the said Minister was so extensive that a Medical Board, consisting of six Doctors, was formed immediately on 8th June, 2008 at 11:45 P.M. and the report was given at 02:00 A.M. in the night of 8th /9th June, 2008. Situation was apparently abnormal.
As stated above, the incident occurred on 26th May, 2008 and when the Medical Board examined the victim, 14 days' have already passed. The Medical Board was constituted without waiting for the final report of the petitioner. It appears that the pressure of the Minister and the politicians was so extensive upon the authorities that the Superintendent of Police, Maharajganj had to write a letter on 9th June, 2008 to the District Magistrate, Maharajganj, recommending for disciplinary action against the petitioner and pursuant to which the District Magistrate, Maharajganj wrote a letter on the same day to the State Government for taking the disciplinary action against the petitioner and the petitioner was suspended on 11th June, 2008. The news paper reports, which are part of Annexure-25 to the writ petition (at page 214), published that the Chief Minister gave a statement on 8th June, 2008 that the Doctor, who had examined the victim, would be punished. The sequence of the entire events reveals that the disciplinary proceeding has been initiated under the influence and the pressure exerted by the political persons. Further, the statement of the four Doctors have been recorded in the absence of the petitioner and evasive reply has been given by them. Though in the report, the observation that hymen was torn, but healed, appears to have been made under pressure, just to give a little scope to leave a possibility of rape being committed, but no final conclusion about the rape has been given.
On the facts and circumstances of the case, we are of the view that the entire disciplinary proceeding right from the beginning was conducted in complete violation of Rule 7 of the Rules, 1999, with pre mind set, in an unfair manner and was biased with the view to to punish the petitioner. and the disciplinary proceeding was not fair and it was initiated with biased motive with a pre set mind with a motive to any how punish the petitioner.
IV and V. Whether on the facts and circumstances, there was any misconduct or breach of conduct on the part of the petitioner warranting any punishment?
Whether the alleged difference in the reports of the petitioner and the Medical Board amounts failure in discharging duties and responsibilities of a Medical Officer resulting in misconduct?
In the case of Kusum Sharma v. Batra Hospital and Medical Research Centre and others, reported in AIR 2010 SC 1050, arising under the Consumer Protection Act, the Apex Court has dealt with the medical negligence and on consideration of a number of decisions of this country and of outside the country, has laid down basic principles of the medical negligence, which are as follows:
"67. The aforementioned statement of law in Andrews's case (supra) has been noted for approval by this court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30. This court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. The court opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
68. A three-Judge Bench of this court in Bhalchandra alias Bapu & Another v. State of Maharashtra AIR 1968 SC 1319 has held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
78. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. This court in Jacob Mathew's case very aptly observed that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
81. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals.
89. In Spring Meadows Hospital & Another (supra), the court observed that an error of judgment is not necessarily negligence. In Whitehouse (supra) the court observed as under:-
"The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence.
94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind."
The Apex Court, in the case of Jacob Mathew v. State of Punjab and another (2005) 6 SCC 1, while dealing with the case of negligence by professionals also gave illustration of legal profession. The court observed as under:-
"18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd. , [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charles worth & Percy, ibid, Para 8.03).
The Apex Court, while dealing with the issue of negligence on the part of the Doctors/professional, in the case of Jacob Mathew v. State of Punjab and another (supra), has summed up by concluding in paragraph 49 as under:
"(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence."
Let us examine the difference between the report of the petitioner and the report given by the Medical Board.
The petitioner, on a preliminary physical examination of the victim, has observed that the hymen was intact while the Medical Board in its report has stated that the hymen was torn, but healed. This difference has been treated as a vital and material difference to draw an inference that the petitioner has given an incorrect report.
We are of the view that the inference that the petitioner has given an incorrect report, appears to be wholly unjustified as the report was only preliminary and tentative report which was subject to radiologist's and pathologist's reports.
In the present case, the Doctors of the board in cross-examination have admitted that healing takes place in seven days. The incident occurred on 26th May, 2008. Even assuming that either by Masturbation or by committing rape, hymen has been ruptured, but the victim was produced before the petitioner on 6th June, 2008, that is, after eleven days from the date of occurrence. Even as per the statement of the members of the Board, hymen could be healed within seven days. If it is so, it could have healed by 6th June, 2008 and, therefore, if the petitioner on a preliminary physical examination has observed that the hymen was intact, it cannot be said to be absolutely incorrect because as a result of healing also, it could have been found intact. Further, it has been admitted in the present case that the victim was on Meness, when she was examined by Medical Board on 8th June, 2008, she had used the pad. The possibility of wrong assessment that the hymen was torn and healed cannot be over-ruled when the bleeding was going on. Even after the radiological and pathological tests, the Medical Board itself was not able to give any conclusive opinion and it has been observed in the report that "no final opinion can be given about the rape having being committed." In this backdrop how it can be inferred that the petitioner on the physical examination has given an incorrect report. On these facts, even though the Medical Board could not reach any conclusion that the rape has been committed, but left some scope open to infer some possibility of rape, by observing "hymen was torn, but found healed." On the background stated above, the report of the Board also appears to be a tutored report prepared under the political pressure and influence.
Rule 3 of the Uttar Pradesh Government Servants Conduct Rules, 1956 (in short referred as 'Rules, 1956'), provides as follows:
"3.General.- (1) Every Government Servant shall at al times maintain absolute integrity and devotion to duty.
(2) Every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be in force.
If a Government servant conducts himself in a way not consistent with due faithful discharge of duty in service it is misconduct, misconduct means, misconduct arising from ill motive. Acts of negligence, errors, judgment or innocent mistakes do not constitute misconduct."
Under the aforesaid Rule, misconduct means, misconduct arising from ill motive. Acts of negligence, errors, judgment or innocent mistakes do not constitute misconduct. Against the petitioner, no case of any wilfully and deliberately preparing an incorrect report has been made out. Neither in the enquiry report nor in the pleading it has been alleged that the said report has been given wilfully and deliberately on extraneous consideration. No case of ill motive has been made out. Therefore, no case of misconduct, as defined under Rule 3 of Rules, 1956, has been made out against the petitioner.
The victim was brought for physical examination before the petitioner on 6th June, 2008 at 11:00 A.M. and immediately she has been examined by the petitioner as a normal patient in a routine manner. There was no occasion of any undue influence or pursuation or pressure by any of the interested party to pursue the petitioner to give such report. Such report appears to have been given bonafidely in discharge of her medical duties. Therefore, no case of misconduct has been made out and it could not be established on the facts and circumstances of the case. In any view of the matter for such a minor difference of opinion, while discharging the medical duty, no inference of misconduct can be drawn.
In view of the above discussions, we are of the view that the punishment order is not sustainable and is liable to be quashed.
In the result, the writ petition succeeds and is allowed with costs. The impugned order dated 2nd September, 2011, passed by the respondent no.1, Annexure-1 to the writ petition, is quashed. All the consequential benefits, namely, restoration of the petitioner on her original position of Medical Officer Level-II, promotion, full salary for the period during which she remained suspended and thereafter, shall be provided to the petitioner within a month.
On the peculiar facts and circumstances of the case, that an innocent Doctor has suffered a lot mentally and socially at the hands of the respondents, we feel it a fit case to award cost to compensate the petitioner for the sufferings and the mental agony she had undergone, which we quantify at Rs.50,000/= (Rupees Fifty Thousand only), payable to the petitioner within a month from today.
29.10.2013 OP/bgs/-