Madras High Court
Dr.Elizabeth Rajaram vs The Principal Secretary on 27 July, 2015
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.07.2015
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
W.P.(MD) No.10198 of 2015
Dr.Elizabeth Rajaram ... Petitioner
-vs-
1. The Principal Secretary,
Health and Family Welfare Department,
Government of Tamil Nadu,
Secretariat, Chennai-600 009.
2. The Director,
Director of Medical Health and Rural Services,
Chennai-600 006.
3. The Joint Director
Medical and Rural Health Services,
Virudhunagar.
4. Regional Medical Board,
Government Rajaji Hospital,
Madurai-625 020. ... Respondents
PRAYER
Writ Petition is filed under Article 226 of the Constitution of India
for the issuance of a Writ of Certiorarified Mandamus, calling for the
records of the 1st respondent dated 08.06.2015 in Ref.No.16175/E3/2/2015,
rejecting petitioner's Voluntary Retirement, quash the same as illegal and
non application of mind and consequently, direct the 1st respondent to grant
all monetary benefits by accepting petitioner's Voluntary Retirement dated
06.03.2015.
!For Petitioner : Mr.M.S.Suresh Kumar
For Respondents: Mr.K.P.Krishnadoss
Govt. Advocate
Judgment Reserved on : 23.07.2015
Judgment Pronounced on : 27.07.2015
:ORDER
The petitioner has filed this writ petition, seeking to quash the impugned order dated 08.06.2015 passed by the 1st respondent in Ref.No.16175/E3/2/2015, in and by which, the petitioner's request for Voluntary Retirement, was rejected.
2. The case of the petitioner in nutshell is as under:
i) The petitioner was appointed as Assistant Surgeon in the medical service on 06.07.1987 and her services were regularized on 06.07.1987 and that her probation was declared on 05.07.1989. She has rendered 27 years of service without any blemish. She has completed her Post Graduation on 31.08.1991 and at present, she is working as Chief Civil Surgeon at Government Hospital, Rajapalayam, Virudhunagar District and her retirement date is 31.01.2017.
ii) The petitioner has submitted that due to pain in her shoulder, neck and spine, she has been taking treatment from Doctors, specialized in the particular area. Since the pain in her spinal chord began to increase aggressively, she could not concentrate in her treatment and that she feared that there is a chance of death of baby and mother due to any mistake in the midst of operation. Pursuant to the severe pain, she applied for leave and the Doctors, who treated her, opined that she is not fit to work in the hospital and granted leave periodically. Since she has already exhaused her medical leave and other leave, she is on loss of pay. But, it is stated that, she is eligible for 4 years leave deemed as Extrordinary Leave due to her 28 years of service.
iii) The petitioner has further submitted that she had undergone bypass surgery some 15 years back for triple vessel disease and had stent insertion due to blockade of graft some 5 years back. Considering her bad health condition, she submitted a letter for Voluntary Retirement annexed with the medical treatment and reports to the 1st respondent, in which she has also narrated her type of disease as under:
?1. Severe Osteoporosis of entire vetebral column with BMD shows high risk for fracture of L2, L-3 spine.
2. Severe inflammatory with superadded osteoarthritis of both sacroiliac joints, shoulder joints and knee joints.
3. Early sensory nerve loss in both the ears.?
iv) The petitioner has stated that the 1st respondent, without considering her bad health condition after the expiry of 90 days notice (8.6.2015), refused to accept her Volunray Retirement Letter vide order dated 09.06.2015, on the ground that speciality of Obstetrics and Gynaecology has been declared as Rare / Scarce speciality, which has been excluded from Volunary Retirement Scheme and that she has not completed the cool off period of five years after reaching Pay Band IV.
v) The petitioner assiled the impugned order stating that the rejection order is on the basis of non application of mind and the Government Orders dated 15.12.2009 and 23.10.2009, referred to by the 1st respondent, are silent with respect to employees opting for Volunary Retirement on health ground. Moreover, the impugned order came to be passed after expiry of 90 days and the provisions of Rule 56(3)(f) of the Fundamental Rules have not been followed, which entitles her to get the relief sought in the writ petition. She has stated that since she has been ill for the past six months, it will have reverse and seriour impack in her profession, especially while undertaking operation for delivery of babies, which is quite dangerious to the society. Thus, she prayed for setting aside the impugned order.
3. The respondents have not filed any counter, but however produced a letter dated 02.07.2015 seeking for three months' time to file a detailed counter. Learned Government Advocate has submitted that the Government vide its order in G.O.Ms.No.408 dated 15.12.2009, has prescribed certain norms for acceptance of Voluntary Retirement letter, pursuant to which, the request of the petitioner was rejected and the does not call for any interference by this Court.
4. Heard the learned counsel on either side and perused the material documents available on record.
5. A scrutiny of the affidavit would unfold that the petitioner is a specialist in Gynecology and has been working as Chief Civil Surgeon undertaking surgery, especially for pregnant women. Pursuant to her unbearable pain in the spinal chord, she decided to quit her job on the mode of Voluntary Retirement, which admittedly stood rejected by the 1st respondent after expiry of 90 days. Aggrieved by the same, the petitioner is before this Court.
6. It is no doubt true that G.O.Ms.No.408 dated 15.12.2009 clearly stipulates that Medical Officers in certain categories have been declared as scarce categories in Tamil Nadu Medical Service in view of public interest and they have not been permitted to go on voluntary retirement. One such category (as found mentioned in Sl.No.36 of the said Government Order) is Obstetrics and Gynaecology. However, it is to be noted that individual doctors serve their patients by assessing, diagnosing and treating patients and through rehabilitation and habilitation, palliation, health promotion, and disease prevention. However, medicine is more than procedures and physicians are more than purveyors of technology. In this case, once the petitioner herself does not have courage and confidence in treating her patients and undertaking surgical operations, the act of the respondent in insisting her to do so is ridiculous and unwarranted.
7. Admittedly, the petitioner is suffering from spinal chord problems, which is evident from the medical reports annexed at Page Nos.36 and 37 in the typedset of papers. She has also clearly expressed her inability in handling her patients by stating that there is a chance of death of baby and mother, in case any untoward incident happens in the midst of operation. When she herself has stated so, it is a million dollar question, as to how can a common and sensible person come to her for treatment. Then, what is the real purpose going to be served in keeping her in service? even though her specialization falls under rare / scarce speciality and the service of a Doctor means working for the benefit of another. When that itself is a question mark?, the rejection order passed by the 1st respondent based on the technicality cannot be sustained and has no legs to stand and passed without application of mind. If the petitioner is allowed to continue her service, it will cause great wretchedness not only to her, but also to the hospital authorities, Government and also to mothers and babies, being treated at her hands, which will in turn result in hospital authorities facing consumer cases and paying huge amount towards compensation, for which, the petitioner cannot be held responsible. The 1st respondent should at first understand that physicians, as a profession, also have a collective responsibility to the public, which is demonstrated by collaborating with and supporting colleagues and other health professionals, and participating in self- regulation in the public interest. The profession has a critical responsibility to the public as a whole via its responsibility to regulate and the Doctors have the ethical and statutory responsibility to serve the public at large. The respondents have to think as to their real mentality in case their family members are going to be treated by the petitioner and will they dare enough to allow them to get treatment at her hands? Therefore, instead of insisting upon her to continue in service, the Government may think of replacing her with a suitable fresh candidate. Though this Court agrees with the contention of the learned Governmet Advocate that after enjoying all the benefits of the Government, she should not be allowed to quit the service, her further continuation in service will be hazardous to the society. In case, the petitioner is not allowed to retire prematurely, after joining duty, there may be chances of the Government initiating disciplinary action against her for not reporting to work, which will, besides her physical agony, be another worry to her and a hindrance to her service to the public ultimately.
8. The Hon'ble Supreme Court in the case of Balram Prasad vs. Kunal Saha and others (Civil Appeal No.2867 of 2012) decided on 24.10.2013, refused to discharge the Doctors, who were negligent while they were on duty and also the Hospital, to which they were attached. For better appreciation, the relevant paragraphs of the judgment (supra) are extracted below:
?148. Before parting with the judgment we are inclined to mention that the number of medical negligence cases against doctors, Hospitals and Nursing Homes in the consumer forum are increasing day by day. In the case of Paschim Banga Khet Mazdoor Samity Vs. State of West Bengal[37], this Court has already pronounced that right to health of a citizen is a fundamental right guaranteed under Article 21 of the Constitution of India. It was held in that case that all the government Hospitals, Nursing Homes and Poly-clinics are liable to provide treatment to the best of their capacity to all the patients.
149. The doctors, Hospitals, the Nursing Homes and other connected establishments are to be dealt with strictly if they are found to be negligent with the patients who come to them pawning all their money with the hope to live a better life with dignity. The patients irrespective of their social, cultural and economic background are entitled to be treated with dignity which not only forms their fundamental right but also their human right. We, therefore, hope and trust that this decision acts as a deterrent and a reminder to those doctors, Hospitals, the Nursing Homes and other connected establishments who do not take their responsibility seriously.
150. The central and the state governments may consider enacting laws wherever there is absence of one for effective functioning of the private Hospitals and Nursing Homes. Since the conduct of doctors is already regulated by the Medical Council of India, we hope and trust for impartial and strict scrutiny from the body. Finally, we hope and believe that the institutions and individuals providing medical services to the public at large educate and update themselves about any new medical discipline and rare diseases so as to avoid tragedies such as the instant case where a valuable life could have been saved with a little more awareness and wisdom from the part of the doctors and the Hospital.
151. Accordingly, the Civil Appeal No. 2867/2012 filed by Dr. Balram Prasad, Civil Appeal No. 858/2012 filed by Dr. Sukumar Mukherjee and Civil Appeal No. 731/2012 filed by Dr. Baidyanath Haldar are partly allowed by modifying the judgment and order of the National Commission in so far as the amount fastened upon them to be paid to the claimant as mentioned below. Dr. Sukumar Mukherjee and Dr. Baidyanath Haldar are liable to pay compensation to the tune of Rs.10 lakhs each and Dr. Balram Prasad is held liable to pay compensation of Rs.5 lakhs to the claimant. Since, the appellant-doctors have paid compensation in excess of what they have been made liable to by this judgment, they are entitled for reimbursement from the appellant-AMRI Hospital and it is directed to reimburse the same to the above doctors within eight weeks.
152. The Civil Appeal No. 692/2012 filed by the appellant-AMRI Hospital is dismissed and it is liable to pay compensation as awarded in this judgment in favour of the claimant after deducting the amount fastened upon the doctors in this judgment with interest @ 6% per annum.
153. The Civil Appeal No. 2866/2012 filed by the claimant-Dr.Kunal Saha is also partly allowed and the finding on contributory negligence by the National Commission on the part of the claimant is set aside. The direction of the National Commission to deduct 10% of the awarded amount of compensation on account of contributory negligence is also set aside by enhancing the compensation from Rs.1,34,66,000/- to Rs.6,08,00,550/- with 6% interest per annum from the date of the complaint to the date of the payment to the claimant.
154. The AMRI Hospital is directed to comply with this judgment by sending demand draft of the compensation awarded in this appeal to the extent of liability imposed on it after deducting the amount, if any, already paid to the claimant, within eight weeks and submit the compliance report.?
9. Even if we test the impugned order legally also, it has no legs to stand, because the impugned order came to be passed after a lapse of one day of the expiry of the notice period, i.e., 90 days. It is relevant to extract the provisions of Rule 56(3)(f) of the Fundamental Rules:
?(f) The appointing authority shall issue orders before the date of expiry of notice either accepting the voluntary retirement or not. Otherwise, the Government servant shall be deemed to have been retired voluntary from service at the end of the period of notice:
Provided that where a Government servant under suspension or against whom disciplinary or criminal action is pending, seeks to retire voluntarily, specific orders of the appointing authority for such voluntary retirement is necessary. The appointing authority may with-hold the permission sought for by the Government servant, if any of the conditions specified in clause (e) are not satisfied.
A perusal of the above is very clear that the competent authority is entitled to withhold the permission in case of any disciplinary proceedings or criminal case pending against the particular employee. In the case on hand, such question does not arise at all. Apart from the above, in the Government Orders in G.O.Ms.No.354 dated 23.10.2009 and G.O.Ms.No.408 dated 15.12.2009, there is a clear instructions as to who all are Doctors not allowed to go on voluntary retirement. However, the said Government orders are silent as to what will happen to the rare specialists, who decide to opt for voluntary retirement on severe health grounds, duly supported by medical reports and other documents. When Rules or Act are silent, ultimately, the Court has to come to the rescue by giving a different interpretation in one way or the other.
10. For the foregoing reason and discussion, this Court is of the view that the petitioner is entitled to the relief sought in the writ petition. Accordingly, the writ petition is allowed and impugned order dated 08.06.2015 is set aside. The 1st respondent is directed to grant all monetary benefits by accepting her Voluntary Retirement letter dated 06.03.2015 and her unauthorized leave shall be treated as extraordinary leave, but the said period shall be taken for the purpose of her terminal benefits. Though it is incumbent on the petitioner to serve for the department till her superannuation, taking into consideration the health condition of the petitioner, she is allowed to go on Voluntary Retirement and therefore, the petitioner should not join any other hospital or institution till the date of her actual retirement. Liberty is granted to the Government to proceed against her in case she violates the above condition. It is needless to emphasize that in view of the order passed hereinabove, the petitioner need not appear before the Medical Board either for fitness or vice versa.
11. The Hon'ble Supreme Court in the case of Gujarat Pottling Co.Ltd. and others vs. The Coca Cola Co. and others, reported in AIR 1995 SC 2372, has been pleased to hold as under:
?45.In the matter of grant of injunction, the practice in Enland is that where a contract is negative in nature, or contains an express negative stipulation, breach of it may be restrained by injunction and injunction is normally granted as a matter of course, even though the remedy is equitable and thus in principle a discretionary one and a defendant cannot resist an injuction simply on the ground that observance of the contract is burdensome to him and its breach would cause little or no prejudice to the plaintiff and that breach of an express negative stipulation can be restrained even though the plaintiff cannot show that the breach will cause him any loss. [See :
Chitty on Contracts, 27th Edn., Vol.1, General Principles, para 27-040 at p.1310; Halsbury's laws of England, 4th Edn. Vol. 24, para 992]. In India section 42 of the specific Relief Act, 1963 prescribes that notwithstanding anything contained in clause (e) of Section 41, where a contract comprises an affirmative agreement, express or implied, not to do a certain act, the circumstances that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. This is subject to the proviso that the plaintiff has not failed to perform the contract so far as it is binding on him. The Court is, however, not bound to grant an injunction in every case and an injunction to enforce a negative covenant would be refused if it would indirectly compel the employee either to idleness or to serve the employer.?
12. The reason for quoting the above judgment is that under the pretext of ill-health, persons, who may be facing departmental or criminal proceedings, may approach this Court, seeking the similar relief of Voluntary Retirement. In order to safeguard the principles of law, this Court has given a positive direction that the respondents are empowered to enforce negative covenant or claim damages, by placing reliance on the pargraph No.45 of the judgment (supra).
13. No costs. Consequently, connected miscellaneous petition is closed.
To:
1. The Principal Secretary, Health and Family Welfare Department, Government of Tamil Nadu, Secretariat, Chennai-600 009.
2. The Director, Director of Medical Health and Rural Services, Chennai-600 006.
3. The Joint Director Medical and Rural Health Services, Virudhunagar.
4. Regional Medical Board, Government Rajaji Hospital, Madurai-625 020.
.