Punjab-Haryana High Court
Chandigarh Administration vs Central Administrative Tribunal on 20 March, 2014
Bench: Sanjay Kishan Kaul, Arun Palli
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Civil Writ Petition No. 2167-CAT of 2007
DATE OF DECISION : MARCH 20, 2014
Chandigarh Administration, UT, Chandigarh and another
....... PETITIONERS
VERSUS
Central Administrative Tribunal, Chandigarh and another
..... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN PALLI
...
PRESENT: Ms. Jaishree Thakur, Advocate, for the petitioners.
Mr. HS Dhillon, Advocate, for respondent No.2.
...
KAUL,, CJ. (Oral)
SANJAY KISHAN KAUL Gross negligence on part of various persons resulted in a patient of the same name being wheeled in for surgery which was to be carried on qua another patient of the same name. Fortunately, a small incision detected the possibility of a mistake averting a greater tragedy.
The origin of the tragedy of errors begins with two patients with the same name Saroj Devi wife of Jagdish and Saroj Kang Gursharan Singh 2014.03.21 15:12 I am the author of this document Chandigarh Civil Writ Petition No. 2167-CAT of 2007 2 Devi wife of Udhal Singh being admitted in the Government Medical College and Hospital, Chandigarh, on 19.7.2001. The first Saroj Devi was admitted for superficial Parotidectomy and, thus, was in the ENT Ward while the second one was to undergo Endoscopy D.C.R. and was an OPD patient. Smt. Saroj Devi, who was to undergo an Endoscopy procedure, was wheeled into the Operation Theater for Parotidectomy procedure. After the ground work for surgery was done, an incision was made by the Surgeon who found that the tissues were healthy and, thus, the surgery was immediately stopped and the mistake detected. This incident is stated to have received vide adverse publicity in newspaper - Times of India.
A preliminary inquiry was instituted where the role of Nurses and Doctors was gone into. Respondent No.2 before us - Ms.Sukhwinder Kaur was deployed as a Scrub Staff Nurse/Circulating Nurse and a preliminary finding was reached that she failed to follow the procedure of the Operation Theatre and did not write the name of the patient on the board with the names of the Surgeon and Anaesthetist against it. There were findings adverse against other persons also and, thus, this preliminary inquiry resulted into a regular inquiry under Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for short 'the Rules'). The Article of Charges was served, inter alia, on the respondent No.2 with a Statement of Amputation of misconduct alleging that she had misconducted herself on 19.7.2001 by receiving the patient Mrs. Saroj Devi wife of Udhal Singh in the pre-operative area of the ENT Kang Gursharan Singh 2014.03.21 15:12 I am the author of this document Chandigarh Civil Writ Petition No. 2167-CAT of 2007 3 Operation Theatre without checking the identification of the patient, following the procedure for surgery and pre-operative instructions, etc., resulting in the patient being operated for Parotidectomy while the patient had been admitted as a case of Endoscopy D.C.R. In pursuance to the regular inquiry, the parties were given opportunity to defend themselves, statements were recorded and on completion of the inquiry, the Inquiry Officer submitted report dated 17.5.2002, returning a finding of guilt against respondent No.2. The relevant portion of the inquiry report is reproduced as under:-
"As regards Sukhwinder, she has admitted that on 19.7.2001 she was posted inside the Operation Theatre of OT level-II from 8.00 AM to 2.00 PM, along with Mr. Jacob. She has also admitted that she was assisting as a Circulator Staff Nurse whereas Sh. Jacob was assisting as Scrubbed Staff Nurse in the first Operation on that day. In the second case, she was to act as Scrubbed Staff Nurse but when she was getting ready, she had been informed by Mr. Jacob that as per the desired/advice of the surgeon she may act as Circulator and not as Scrubbed. She had agreed during her cross examination by PO that as Circulating Nurse she could not write on the board since the file of the patient was not made available to her and even the OPD card of the patient have been sent and she was told by the Jr. Technician Aneasthesia that the OPD card of the patient had also been sent for getting the file of the patient. She also admitted that when the patient entered in the Operation Theatre she was being scrubbed and she could not check the patient as it was not possible for her at that time. The argument of the PO that the Kang Gursharan Singh 2014.03.21 15:12 I am the author of this document Chandigarh Civil Writ Petition No. 2167-CAT of 2007 4 Circulator Staff Nurse Ms. Sukhwinder failed to perform her assigning duty to write the name of the patient, name of surgeon, diagnosis and CR No. on the board existing in the OP specifically for this purpose as very valid and further I agree with the PO that CO (Ms. Sukhwinder) fail to perform her duty. She told the operating surgeon/Anaeasthetists that she is not in a position to write the particulars specially the diagnosis etc. because the non availability of the file. Nothing has been brought before me to show that this nurse brought to the notice of the Capt. of the team/or any other doctor and thus failed to discharge her duty. The defence of the CO is not convincing. The allegation levelled against her that she committed the serious professional misconduct by not performing her duty while posted in the ENT OT on 19.7.2001 when the patient Ms. Saroj Devi was received there for operation is established. Thus the charge levelled against the CO is established."
In pursuance to the inquiry report, show cause notice was issued to respondent No.2 by the disciplinary authority, tentatively agreeing with the inquiry report and proposing to impose a major penalty of "withholding of one increment of pay with cumulative effect" under rule 5(v) of the Rules. Respondent No.2 submitted a reply to the same. A detailed order was passed on 2.1.2003. In terms of order dated 2.1.2003, the disciplinary authority finally agreed with the findings of the Inquiry Officer and imposed the punishment as proposed. The appeal filed before the appellate authority was also dismissed on 10.12.2003.
Kang Gursharan Singh
Respondent No.2, thereafter, filed OA 2014.03.21 15:12 I am the author of this document Chandigarh Civil Writ Petition No. 2167-CAT of 2007 5 No.889/CH/2004 before the Central Administrative Tribunal, Chandigarh Bench, which allowed the application filed by respondent No.2 and quashed the charges against respondent No.2. It is this order which is sought to be assailed before us by the department in the present petition under Article 226/227 of the Constitution of India.
A perusal of the impugned order shows that the procedure for wheeling a patient in for surgery has been discussed in paras 20 to 23. It is, thereafter, noticed that two patients were admitted in different Wards and that case file is necessary for proper verification. The discussion on the legal aspect starts from para-24 where the role of respondent No.2 has been discussed. In this context, it has been observed that the findings of the Inquiry Officer are distinct to the charges levelled against respondent No.2 and the charge-sheet too was cryptic. The observations in this behalf are contained in paras 24 and 25 of the impugned order, which read as under :-
"24. Now coming to the legal aspect of the matter, after thorough scrutiny of the case, and examining the root of the cause, we have observed that the findings of the IO are distinct to the charges levelled against the applicant. Even the charge sheet is found to be cryptic and not precise as the applicant has been charge sheeted for receiving the patient in the pre-operative area of the ENT Operation Theatre, whereas "admittedly" she was performing her duties in the Operation Theatre. To receive the patient at pre-operative area of the ENT Operation Theatre was the duty of another staff. She has been charged to violated the pre-operative instructions but what are Kang Gursharan Singh 2014.03.21 15:12 I am the author of this document Chandigarh Civil Writ Petition No. 2167-CAT of 2007 6 those instructions has not been categorically emphasized in the said articles of charges. The IO without looking into this aspect of the charges has found her guilty for the misconduct having failed to perform the assigned duty i.e. to write the name of the patient, name of Surgeon, type of anaesthesia, diagnosis, CR no. etc. on the board existing in the O.T. No such charge has been framed against the applicant which is evident from the article of charge detailed hereinabove. Thus, in our considered opinion, the IO has travelled beyond the charges levelled against the applicant which is not legally permissible, since it has unabled the applicant to put her defence against these allegations of not writing the name of patient etc. on the board. Though she has fully explained her position that for want of case file of the patient, she could not write her detailed on the Board which was also not placed in the O.T. Hence, this has caused grave injustice and prejudice to her.
25. It is also relevant to point out that the charge levelled against the applicant that due to her fault; the patient was operated upon for parotidectomy, whereas the patient was a case of Endoscopic DCR, is factually incorrect, since no such operation was conducted and the error of mistaken identity was detected at the time of incision on the affected area. Therefore, in our considered opinion, genesis of the charge sheet are basically and factually wrong. Therefore, applicant cannot be held responsible for such error of wrong incision on a wrong patient for want of case file. It was however, timely detected when the doctor concerned had found the tissues in diseased area intact."
The Tribunal finds that the findings of the Inquiry Kang Gursharan Singh 2014.03.21 15:12 I am the author of this document Chandigarh Civil Writ Petition No. 2167-CAT of 2007 7 Officer are perverse and suffer from the vice of arbitrariness on account of the fact that while for want of case file of the patient, Ms. Vineeta had been exonerated of the charges against her, respondent No.2 had been found guilty for not writing the details on the board which, as per the explanation and admitted evidence on record, was caused due to non- availability of case file of the patient. The relevant conclusions are contained in paras 31 and 32, which read as under:-
"31. Thus, after careful consideration of the matter, we are of the view that taking into consideration the findings of the preliminary inquiry the overall responsibility was found to be lied with the leader of the team i.e. Dr. S.K. Singal who has also been found guilty by the IO and was imposed with the penalty and also having to the fact that the applicant has been found guilty for the charge on the findings of the IO which are found to be distinct from the charge levelled against the applicant in the articles of charges, therefore, without delving much in the other legal aspects of the matter, we are of the opinion that the grave injustice and prejudice has been caused to the applicant in the present case.
32. The other reasons for interfering with the impugned orders are that the disciplinary authority as well as appellate authority have passed these orders without due application of mind and without going into this aspect of the matter relating to the charge levelled against the applicant and the finding of the IO being distinct from the said charge. Even the orders are not found to be supported with the reasons as to how they have come to this conclusion that the findings of the IO are liable to be upheld. The disciplinary authority while not satisfied with the Kang Gursharan Singh 2014.03.21 15:12 I am the author of this document Chandigarh Civil Writ Petition No. 2167-CAT of 2007 8 reply of the applicant has just come to the conclusion to impose the penalty of withholding of one increment of pay with cumulative effect without assigning any reasons for his dissatisfaction with the reply as to what were the grounds of his being not satisfied with the pleas of the applicant. Similarly, the appellate authority in the concluding paragraph of his order has dismissed the appeal of the applicant on the same ground that there is no reason to interfere in the orders of the disciplinary authority without assigning those reasons. Thus, in our view these orders are non-speaking orders, not supported with reasons to enable this court to analyse the ground of rejection of appeal of the applicant."
Learned counsel for the petitioners, assailing the impugned order, submits that both the preliminary and final inquiry, which should be treated conclusive insofar as matters of evidence are concerned, establish that respondent No.2 failed to perform the task assigned to her. Respondent No.2 had failed to perform the duties of a Staff Nurse. It was, thus, held by the Inquiry Officer that she should have followed the procedure of the Operation Theatre and written the name of the patient on the board and against her name, the names of the Surgeon/Anaesthetist, etc. There was violation of these norms. This aspect is admitted by respondent No.2 herself in her cross- examination. It was also submitted that there were no different charges but what respondent No.2 has been found guilty of formed a part of the larger charge as framed against her. It has been emphasized that a perusal of the record shows that respondent No.2 had admitted her fault and these findings could Kang Gursharan Singh 2014.03.21 15:12 I am the author of this document Chandigarh Civil Writ Petition No. 2167-CAT of 2007 9 not have been interfered with by the Tribunal, which is like an appellate forum, the same being a domestic inquiry.
Our attention has been drawn to the end of para-7 and para-8 of the inquiry report, which reads as under :-
"On Cross-examination, Ms. Sukhwinder revealed that she had not written on the board which is the prime duty of a circulating sister since file was not available and admitted her fault.
8. Ms. Satya, Sister-in-Charge/Operation Theatre stated the CR No. of both the patients were same in the Operation theatre list supplied to the theatre with the same name, age and sex. She further told that as per the routine of the ENT Department, the patient visits the ward and changes the clothes and then comes to operation Theatre. As per her version, the record/file of patient is received by the Staff Nurse of the pre-operative room but the Staff Nurse only received the card in this case, she further stated.
On probing, Ms. Sukhwinder revealed if there was any lacking in the records or preparation of patient, it is the routine practice to send the patient back to the pre-operative room to complete the record/preparation of the patient. It was further found that the patient was not prepared for parotidectomy as it was not having file which is essential for GA Cases and the patient was prepared i.e. shaving of hair for parotidectomy was done on the table which should have been enquired by the Operating Surgeon from the Sister-in-Charge of the Operation Theatre why the patient was not prepared. No body informed the Sister-in-Charge of Operative Theatre i.e. Ms. Satya regarding the same."
On the other hand, learned counsel for respondent Kang Gursharan Singh 2014.03.21 15:12 I am the author of this document Chandigarh Civil Writ Petition No. 2167-CAT of 2007 10 No.2 submits that the fault, if any, lay with the other Nurse - Ms. Vineeta, who had been exonerated. He submits that respondent No.2 has been held guilty for a charge which did not form part of the Article of Charges. This aspect has been duly considered by the Tribunal. He further submits that it is the intervention of respondent No.2 which caused the doctor to detect the mistake as she kept on reminding about the file and the absence of the file was also brought to the notice of the concerned authority.
We have perused the pleadings and the record and examined the submissions of the learned counsels for the parties. We are are of the view that in the given facts of the case, no interference by the Tribunal was called for.
Regarding first aspect of what respondent No.2 has been found guilty of and what she has been charged with differing, in our opinion, is not borne out from the record. A careful perusal of the Article of Charges shows that the same is dedicated on the role to be played by respondent No.2 in the capacity in which she was working. This was coupled with what was found against her in the preliminary inquiry. Final findings are not at variance. It is not as if a completely different charge is sought to be fastened on respondent No.2 so as to give the benefit to respondent No.2 by quashing the inquiry.
It is also to be noticed that as per the submission of the learned counsel for respondent No.2, the endeavour is to shift the burden to Ms. Vineeta while, on the other hand, the Inquiry Officer has found that it is Ms. Vineeta who made the endeavour and followed norms when the patient was received Kang Gursharan Singh 2014.03.21 15:12 I am the author of this document Chandigarh Civil Writ Petition No. 2167-CAT of 2007 11 without the case file. The mistake was not detected at the behest of respondent No.2 as alleged before us but only after the incision was made by the Surgeon, who on finding nothing wrong with the tissues, realised that there was possibility of a mistake. Thus, the damage was curtailed though there is bound to be trauma to the patient on account of incision, for which even the Surgeon has been punished and has accepted the punishment.
The role of respondent No.2 as discussed in the inquiry report and extracted by us hereinabove, would show that there was lack of performance of duties and negligence. The fact that respondent No.2 alone was not responsible and also keeping in mind her role, the punishment imposed is appropriate. It is not as if respondent No.2 is sought to be visited with very serious consequences of suspension of licence, dismissal from service, etc. It is only stoppage of an increment for one year with cumulative effect, which is a major penalty. In our view, taking into consideration the nature of the incident, negligence of respondent No.2 and the findings of the Inquiry Officer which, in turn, had been scrutinized by the appellate authority, the interference by the Tribunal was not called for as it would amount to misplaced sympathy for the Nurse. The matter was extremely serious. A human life was involved and in such matters an extra care is expected of the persons involved in the process.
We are, therefore, of the view that the impugned order of the Tribunal cannot be sustained. Thus, impugned Kang Gursharan Singh 2014.03.21 15:12 I am the author of this document Chandigarh Civil Writ Petition No. 2167-CAT of 2007 12 order dated 18.7.2006 is to be quashed.
The Rule is made absolute.
The parties to bear their own costs.
( SANJAY KISHAN KAUL )
CHIEF JUSTICE
March 20, 2014 ( ARUN PALLI )
Kang JUDGE
Kang Gursharan Singh
2014.03.21 15:12
I am the author of this
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Chandigarh