Calcutta High Court
Abhishek Mukherjee vs The Board Of Trustees on 1 October, 2019
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present :- Hon'ble Justice Amrita Sinha
W.P No. 441 of 2018
G.A. No. 2928 of 2018
Abhishek Mukherjee
Vs.
The Board of Trustees, Kolkata Port Trust & Ors.
For the writ petitioner :- Mr. Soumya Mazumder, Adv.
Ms. Ashmita Chakraborty, Adv.
Ms. Sunita Kar, Adv.
For the respondent :- Mr. Probal Kr. Mukherjee, Sr. Adv.
Ms. Sujata Mukherjee, Adv.
Hearing concluded on :- 04-09-2019
Judgment on :- 01-10-2019
Amrita Sinha, J.
The petitioner is an employee of the Kolkata Port Trust. He joined as a Senior Medical Officer on probation for a period of two years vide appointment letter dated 21st June, 2016.
The petitioner is guided by the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 and the Kolkata Port Trust Employees' (Conduct) Regulations, 1987. The duties and functions of the employer that is the Kolkata Port Trust are enumerated in the Major Port Trust Act, 1963 and the Rules and Regulations framed thereunder.
By an order dated 13th February, 2018 the petitioner was placed under suspension with immediate effect as a disciplinary proceeding was contemplated against him. The suspension order was valid until further orders. The petitioner was entitled to draw subsistence allowance during the period of suspension, upon application, indicating that he was not employed in any business or vocation for profit/remuneration during the said period.
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By a confidential letter dated 2nd March, 2018 the Deputy Chairman, Disciplinary and the Appointing Authority of the petitioner sought for explanation from the petitioner as to why his services should not be dispensed with. The petitioner submitted his explanation by a letter dated 8th March, 2018 denying the allegations made in the letter under reference.
The disciplinary authority by an order dated 9th May, 2018 intimated the petitioner that the Suspension Review Committee recommended continuation of his suspension for a further period of 90 days with effect from 14th May, 2018. The period of suspension of the petitioner has thereafter been extended from time to time and the said position is continuing till date.
The petitioner is aggrieved by issuance of the memo dated 21/25th June, 2018 issued by the Deputy Chairman and Disciplinary Authority intimating the petitioner that an inquiry will be held against him under Regulation 8 of the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations. The statement of Article of charge framed against the petitioner, the statement of imputation of misconduct in support of the charge, list of documents, and the list of witnesses were forwarded to the petitioner along with the aforesaid memo. The petitioner was directed to submit a written statement whether he admitted or denied any or all the Article of charges.
On receipt of the aforesaid memo of charge the petitioner duly submitted his written statement denying the allegations levelled against him.
The Deputy Chairman and the Disciplinary Authority by an order dated 2nd August, 2018 intimated the petitioner that an inquiry officer has been appointed for conducting an inquiry in respect of the charges framed against him.
The petitioner has been charged with gross misconduct on the allegation that he indulged in an unethical activity in the ICU of Centenary Hospital on 3rd 3 February, 2018 by issuing order to inject/injecting KCL/insulin to a patient leading to her death immediately, after she was prematurely declared dead by another doctor who was on duty in ICU. The act of injecting the above injection was intentionally done to bring the premature end to the life of the patient. The same amounted to unethical practice by a medical practitioner amounting to gross misconduct and criminal conspiracy.
The statement of imputation of misconduct in support of the charges framed against the petitioner mentions that the aforesaid behaviour of the petitioner amounts to gross negligence of duty, criminal conspiracy and lack of devotion to his work and poor conduct, which is in violation of Regulations 3(1) and 3(9) of the Kolkata Port Trust Employees' (Conduct) Regulations, 1987 which is unbecoming of an officer of Kolkata Port Trust.
According to the petitioner, the initiation of the disciplinary proceeding against a medical practitioner by his employer on the ground of professional misconduct is not permissible in law and the same is liable to be set aside. It has been submitted that the disciplinary authority is not competent/authorised to inquire into the allegation of professional misconduct.
Being a medical practitioner the petitioner is guided by the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.
It has been contended that the charges levelled against the petitioner in the show cause notice as well as the charge sheet are in variance to the statement of imputation of misconduct. In the charge sheet the petitioner has been alleged to have committed unethical activity, unethical practice and criminal conspiracy which is unbecoming of a medical professional whereas in the statement of imputation of misconduct the petitioner has been alleged to commit gross misconduct of duty, lack of devotion and poor conduct and violation of the 4 Regulations 3(1) and 3(9) of the Kolkata Port Trust Employees' (Conduct) Regulations, 1987.
According to the petitioner the allegations are of such a nature that it requires in depth inquiry/investigation by competent persons having qualification in the field of medicine. The same cannot be subject to the Kolkata Port Trust Employees' (Conduct) Regulations, 1987. The allegation of criminal conspiracy is liable to be dealt with under the Indian Penal Code, 1860 and the same cannot be adjudicated under the service regulations.
The petitioner relies upon the judgment delivered by the Hon'ble Supreme Court in the matter of Surath Chandra Chakravarty vs The State of West Bengal & Ors. reported in AIR 1971 SC 752 on the issue that the grounds on which the disciplinary authority proposes to take action have to be reduced to the form of definite charge or charges which have to be communicated to the person charged together with the statement of allegations on which each charge is based. In the instant case the statement of imputation has brought in and included fresh charges which were not initially mentioned /included in the statement of charge.
The petitioner relies upon an unreported judgment dated 12th September, 2018 passed by a learned single Judge of this court in WP 24993 (W) of 2017 in the matter of Anjan Bhattacharya vs Registrar General, High Court, Kolkata & Ors. on the issue that the disciplinary proceeding initiated by the employer to inquire into the allegations was not amenable to inquiry in the disciplinary proceeding. It has been submitted that as there is a specified Act according to which the professional conduct of the doctors are regulated, accordingly, any steps taken in furtherance of the disciplinary proceeding is bad in law and liable to be set aside.
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The petitioner refers to the judgment delivered by the Hon'ble Supreme Court in the matter of Union of India vs H. C. Goyel reported in AIR 1964 SC 364 on the proposition that the inquiring authority merely acts as a delegatee of the disciplinary authority while the ultimate decision to arrive at a finding of guilt is always vested in the disciplinary authority. It has been submitted that it is not necessary that the disciplinary authority will accept the findings of the inquiry officer. The disciplinary authority has every right to disagree with the findings of the inquiry officer and may come up with a different finding. In the instant case, as the disciplinary authority does not have the expertise to deal with the charges levelled against the petitioner, it will invariably rely upon the report of the inquiry officer, who is a medical practitioner, and the petitioner will lose one forum and opportunity to persuade and convince the disciplinary authority to disagree with the findings of the inquiry officer, in the event, the same goes against him. Resultantly, the inquiry officer's report will remain binding on the disciplinary authority and he may not be in a position to differ from the same. In view of the above, the valuable right of the petitioner to make representation against the inquiry report will be an empty formality.
Submission has been advanced that the allegation of negligence of duty has to be understood as a case of negligence on the part of a medical practitioner in performance of his duties. The same will constitute medical negligence.
The petitioner relies upon the judgment delivered by the Hon'ble Supreme Court in the matter of Jacob Mathew vs State of Punjab & Anr. reported in (2005) 6 SCC 1 wherein the court held that the essential components of negligence are "duty", "breach" and "resulting damage". A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something, in the 6 given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do.
It has been submitted that the standard of practice and technique of medical practitioner is enumerated in the Indian Medical Council (Professional Conduct, Conduct and Ethics) Regulations, 2002 which has been framed under the Indian Medical Council Act, 1956. The Indian Medical Council Act, 1956 and the delegated legislation that is the Indian Medical Council (Professional Conduct, Conduct and Ethics) Regulations, 2002 are central legislations and operate in the special field relating to the act and conduct of the medical practitioner.
Reliance has been placed upon Section 20A of the Indian Medical Council Act, 1956. The said regulation was framed to specially deal with professional conduct of medical practitioners and it operates in a special field. The Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 and the Kolkata Port Trust Employees' (Conduct) Regulations, 1987 is the general law applicable to all employees. The general law is always subject to the special law.
The petitioner relies upon Section 38(1)(3) of the West Bengal Clinical Establishment (Registration, Regulation and Transparency) Act, 2017 which mentions that any complaint of medical negligence against the medical professionals will be dealt with by the respective State Medical Councils. It has been submitted that disciplinary action in respect of professional misconduct can only be undertaken by the competent authority having expertise and none else.
It has been argued that the petitioner even though is an employee of the Kolkata Port Trust shall always be guided by the provisions of the Indian Medical Council Act, 1956 and the subordinate legislations. The service regulations are meant for each and every employee of the Kolkata Port Trust and the same deals with the general service conditions of an employee. As the allegations made against 7 the petitioner relates to his professional misconduct the same has to be dealt with by the special law and not the general one.
To fortify his argument on the above issue the petitioner has relied upon the judgment delivered by the Hon'ble Supreme Court in the matter of Life Insurance Corporation of India vs D. J. Bahadur & Ors. reported in AIR 1980 SC 2181, KSL & Industries Ltd. Vs Arihant Thread Ltd. & Ors. reported in (2015) 1 SCC 166 and Atmaram Porperties Pvt. Ltd. Vs Oriental Insurance Co. Ltd. reported in (2018) 2 SCC 27.
The petitioner is also aggrieved by the act of the respondent KoPT in paying him 50% of his last pay drawn with allowance, as subsistence allowance to him. The petitioner submits that as the regulation under which he has been suspended does not provide for any rate of subsistence allowance accordingly he is entitled to claim full salary during his period of suspension.
The petitioner submits that an employee is entitled to receive full emoluments during his period of suspension, in the absence of a provision specifying the percentage or amount that is to be paid on account of subsistence allowance.
The petitioner relies upon a judgment delivered by the Hon'ble Supreme Court in the matter of Balvantray Ratilal Patil vs State of Maharashtra reported in AIR 1968 SC 800 wherein the court held that the amount that is to be paid to the public servant during suspension will depend upon the provisions of the statute in that connection. If there is no such provision the public servant will be entitled to his full emolument during the period of suspension.
The petitioner relies upon the judgment delivered by this court in the matter of The Secretary of the Managing Committee of Rabindra Smriti (S) B. & Ors. vs M. Bhattacharya & Ors. reported in 2009 (1) CLJ (Cal) 410 wherein the court 8 held that in the absence of a restrictive provision it would be unjust to deny full salary to the employee during the period of suspension.
The petitioner cites the judgment delivered by the Hon'ble Supreme Court of India in Delhi Cloth and General Mills Co. Ltd. vs The Workmen & Ors. reported in AIR 1967 SC 469 on the issue that the payment of subsistence allowance during suspension is a matter incidental to the disciplinary proceeding initiated against the petitioner. Institution of a fresh writ petition only for a direction for payment of subsistence allowance will amount to multiplicity of proceedings.
The petitioner has prayed for a direction upon the Kolkata Port Trust to pay full salary from the date of suspension after adjusting the amount that has already been paid on account of subsistence allowance.
The respondent Kolkata Port Trust submits that the petitioner admitted in his writ petition that he is on probation and subject to the provision of the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 and the Kolkata Port Trust Employees' (Conduct) Regulations, 1987.
It has been submitted that the question of unethical practice by a medical practitioner is a disciplinary issue, which if proved, may lead to suspension of practice, either temporarily or permanently. There are regulatory bodies which regulate the professionals. The same can never stand in the way of an employer from taking disciplinary action against his employee on the ground of misconduct. The petitioner was liable to be proceeded with departmentally as he committed misconduct in his workplace. In the event of his indictment in the disciplinary proceeding the consequences of penalty prescribed in the service regulations may be attracted. The penalty may also include termination of service. 9
It has been submitted that there is a provision for appeal under Regulation 15 of the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 if an employee is aggrieved by the order of suspension and the order passed for suspension allowance. The petitioner never availed of the alternative efficacious remedy of appeal and straight away approached the Hon'ble High Court for relief.
The respondents submit that the proceeding is at a very initial stage and the recording of evidence in the said case has not been initiated till date. It has been submitted that the issuance of charge sheet does not give rise to any cause of action and the writ petition is liable to be dismissed on the ground of being pre- mature.
The respondents rely upon the judgment delivered by the Hon'ble Supreme court in the matter of State of Punjab vs Ajit Singh reported in (1997)11 SCC 368 wherein the court held that the High Court was in error in setting aside the charge sheet that was served upon the respondent in the disciplinary proceedings. The court held that till the evidence is produced it cannot be said that the charges contained in the charge sheet are without any basis whatsoever. The respondents submit that in the case at hand the court ought not to enter into the merits of the charge sheet as recording of evidence has not started as yet. There is no scope of judicial review at this stage.
The respondents rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of Ram Laxman vs Presiding Officer reported in (2010)10 SCC 201 wherein the court held that if the management has held a disciplinary inquiry against an employee it has got the right to place that employee under suspension, if on the basis of the findings in the departmental inquiry the management is prima facie of the opinion that the employee, on account of charges having been proved, was liable to be dismissed from service. Once the employee is 10 placed under suspension, the management cannot take any work from the suspended employee nor can the employee claim full salary from the management. But the management has to pay the subsistence allowance to the employee so that he may sustain himself.
The respondents rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of P. B. Desai vs State of Maharashtra reported in (2013) 15 SCC 481 wherein the court held that whenever the principle of 'duty to take care' is founded on a contractual relationship, it acquires the legal character. The ethical 'duty to treat' on the part of the doctors is clearly covered under the Code of Medical Ethics, 1972 and whenever there is breach of the Code the aggrieved patient or the party aggrieved can approach the relevant disciplinary committee constituted by the State Medical Council concerned.
It has been very submitted by the learned senior advocate appearing on behalf of the respondents that the petitioner will be subjected to the disciplinary proceeding in respect of those charges which do not touch his professional conduct. Since the petitioner was an employee of Kolkata Port Trust, the employer by virtue of the service regulations is free and entitled to take appropriate action against the petitioner in accordance with such regulations.
The respondents pray for dismissal of the writ petition so that they can proceed with the disciplinary proceeding in accordance with the service regulations.
I have heard the submissions made on behalf of both the parties. Admittedly, the petitioner is an employee of the Kolkata Port Trust and is guided by the service regulations. According to the petitioner the charges which have been levelled against him cannot be decided by the disciplinary authority as the same touches his professional conduct. The Indian Medical Council 11 (Professional Conduct, Etiquette and Ethics) Regulations, 2002 was promulgated for regulating the professional conduct, etiquette and ethics for registered medical practitioners. There is enough provision in the said regulation for punishing and taking disciplinary action against a medical professional who has acted in derogation of the code. The same is a special regulation to address the medical professionals.
The primary allegation against the petitioner is unethical activity, unethical practice, and criminal conspiracy. All the three charges points towards the professional conduct of a medical practitioner. The service regulations framed by the employer is applicable to all the employees of the organisation. There may be various issues with regard to/relating to the service conditions of an employee. In such a situation the general law which is applicable for all the employees can be invoked. The moment the charge relates to professional conduct or misconduct the same cannot be addressed by invoking the general law and the same is required to be redressed by application of the special law.
It is noteworthy that the patient party did not lodge any FIR or complaint against the petititioner either before the police or the medical regulatory authority.
The charges of gross negligence of duty, lack of devotion to work and poor conduct are not reflected in the Article of Charge. In the statement of imputation of misconduct the same has been incorporated. The petitioner has been charged to act contrary to the provisions mentioned in Regulations 3(1) and 3(9) of the Kolkata Port Trust Employees (Conduct) Regulations, 1987. The aforesaid Regulations are applicable to all the employees of the Kolkata Port Trust.
Regulation 3(1) mentions that every employee shall, at all times, maintain absolute integrity and devotion to duty and Regulation 3(9) mentions that no employee shall neglect his duties or cause others to neglect their duties including 12 slowing down of work deliberately which may cause loss to the employer or act in a manner which will be prejudicial to the interest of the employer. No employee shall commit any act which is subversive of discipline or good behaviour.
The statement of imputation clearly indicates that the behaviour of the petitioner on the fateful day was such that the same amounted to gross negligence of duty, criminal conspiracy and lack of devotion to work and poor conduct. Negligence of duty, lack of devotion and poor conduct relates to the professional conduct of the petitioner and not in respect of the general conduct of an employee.
The behaviour complained of, is the act of the petitioner in issuing order to inject/injecting KCL/insulin to a patient leading to her death immediately. The expression 'such behaviour of Dr. Mukherjee amounts to' implies that the professional behaviour of the petitioner is in question and not his general behaviour. Accordingly the petitioner is liable to be tried under the special law and not the general law/regulation covering all the employees of Kolkata Port Trust.
An employer always has the right and authority to take steps against an erring employee. But when an employee serving in a specialised field, with special knowledge, is charged with an act which appears to be a transgression to the standard practice then he is liable to be dealt with by the regulatory body which is specially constituted to deal with such action or inaction. When the legislature has enacted specific laws to deal with specified acts of misconduct there is no reason to try the wrongdoer under a different law, not suitable to cater to the appropriate requirement.
The charge sheet in the instant case revolves around the professional behaviour of the employee. Embarking upon an inquiry into the said charges, by the employer, who is not authorised in law to adjudicate the same, will amount to 13 initiating and continuing a proceeding without jurisdiction. A proceeding initiated by an authority without jurisdiction, is bad in law and liable to be set aside.
The court in the matter of Anjan Bhattacharya (supra) held that as there is a suitable legislation to deal with the issues then no other mechanism including a disciplinary proceeding may be allowed to sub-plant or circumvent it. Hence the argument of the petitioner that the disciplinary authority is not competent to decide the charges levelled against him in the charge sheet is partially correct.
The issue of quantum of subsistence allowance to be paid to a suspended employee has been set at rest by the Hon'ble Supreme Court in the matter of Balbantray Ratilal Patil (supra) wherein a three-Judge Bench laid down that what amount should be paid to the public servant during the period of suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is no such provision the public servant will be entitled to his full emoluments during the period of suspension. The decision in the matter of Mahavir Bhattacharya (supra) reiterates the same principal that in the absence of any restrictive provision it would be unjust to deny full salary to an employee during his period of suspension.
Admittedly, the service regulations of Kolkata Port Trust do not mention the amount of allowance that is to be paid to an employee when under suspension. In the absence of any specific provision restricting such payment the employee is entitled to receive his full salary during the period of suspension.
Fundamental Rules are the general rules guiding central government employees. As the employer has its own set of rules and regulations concerning service of its employees the Fundamental Rules shall not be applicable in the instant case.
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In view of the discussions made herein above the disciplinary proceeding initiated against the petitioner is liable to be set aside. The same is hereby quashed. As a consequence thereof the petitioner shall be entitled to receive the full salary, less the amount paid as subsistence allowance, during the period of suspension. The respondent authority shall clear the dues of the petitioner within a period of three months from date. The employer will be free to proceed against the petitioner under the service rules concerning his general behaviour, if situation so demands.
In view of disposal of the writ petition the connected application is also disposed of.
W.P No. 441 of 2018 and G.A. No. 2928 of 2018 are disposed of accordingly. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.
(Amrita Sinha, J.)