Calcutta High Court (Appellete Side)
Smt. Sumitra Hati & Anr vs The State Of West Bengal & Ors on 11 October, 2018
Author: Abhijit Gangopadhyay
Bench: Abhijit Gangopadhyay
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
W.P. NO. 30765 (W) OF 2017.
Smt. Sumitra Hati & Anr.
-Versus-
The State of West Bengal & Ors.
For the Petitioner: Mr. T. Chowdhury.
For the respondent No. 8 : Mr.J.L.De.
Hearing concluded on: July 26, 2018. BEFORE ABHIJIT GANGOPADHYAY Judge Date: October 11, 2018.
ABHIJIT GANGOPADHYAY, J. :-
In a village in the district of Hooghly in the year 2013 a large number of children were administered Hepatitis -B vaccine instead of Polio vaccine. The petitioners who were found to be directly associated with such negligence of far reaching consequences so far as the lives of the affected children are concerned, have been disengaged from their job. The present petitioners were engaged as ASHA Karmees and on that particular day they were directly involved for administering Polio vaccine to the children.
By filling the writ application the petitioners have prayed for, inter-alia, withdrawal of the order of disengaging them as ASHA Karmees and their re- engagement as ASHA Karmees.
A pertinent question is what is ASHA?
It comes to light from the National Rural Health Policy declared by the Government of India that ASHA is an acronym, full form of which is 'Accredited Social Health Activist'. They are engaged to achieve the objective of National Rural Health Mission (NRHM, in short, hereafter). NRHM was launched by Union of India in the year 2005. Its aim is to provide accessible, affordable, accountable, effective and reliable Primary Health facility, especially, to the poor and vulnerable section of the population. NRHM works through various categories of employees and workers one of which is ASHA. ASHA Kamees are the real persons who are in direct touch with the Primary Health facility of the rural population especially that section of the population which is poor and vulnerable. A large number of NRHM health facilities are extended ultimately through ASHA Karmees.
Now we can take a look at the case made out in the writ application. September 15, 2013 was a date fixed for administering polio vaccine to the children of some villages in the district of Hooghly. For such purpose along with others the petitioners were engaged whose job was to administer the polio vaccine to the rural children of the concerned area. Instead of administering polio vaccine the petitioners administered the children with Hepatitis-B vaccine. Within a short time the children who were administered the Hepatitis -B vaccine instead of Polio Vaccine started feeling sick and a panic situation was created all over the nearby villages and parents and guardians of the children started agitation. To control the situation police force rushed to the spot and controlled the agitating mob.
On the same day as a consequence, the concerned Block Medical Officer of Health (BMOH, hereafter, in short) issued show-cause notices to the petitioner's, and on the same day the Chief Medical Officer of Health (CMOH, in short, hereafter) of the district suspended the petitioners. The CMOH also issued a notice of show- cause to the petitioners with a direction to submit their reply within 24 hours.
The petitioners submitted their replies on October 10, 2013 before the CMOH. Identical replies (to show-cause notices) of the petitioners were sent to the BMOH. From the said replies of the petitioners it is found that they have admitted their mistake which was, according to them, due to inadvertence and it was unintentional. They further admitted that as ASHA Karmees they could not attained the skill of administering vaccine.
The Mission Director, National Rural Health Mission, Government of West Bengal, came to a finding on perusal of the replies to show cause that the petitioners were unable to show any satisfactory cause in their favour and the CMOH of the concerned district was directed to disengage the petitioners due to gross negligence while on duty and further intimated him to direct the BMOH to take necessary action in this regard with immediate effect.
Accordingly, the BMOH by his order dated January 29, 2014 disengaged the petitioners as ASHA Karmees.
Thereafter the petitioners made several representation for engaging them again as ASHA Karmees on the ground that none of the children who were administered the wrong vaccine was affected because of such negligence and some guardians and parents of those children also wanted their engagement as ASHA Karmees again. While claiming further engagement as ASHA Karmees the petitioners have stated that as ASHA Karmees they are absolutely guided by the department of Panchayet of Government of West Bengal; and were engaged by the Block Development Officer of the concerned Block and the Department of Health had no authority to terminate their engagement and therefore, the procedure followed for their disengagement was vitiated in the eye of law. For the same reasons they could not have been even suspend by the CMOH of the concerned district. They further pleaded that they were not controlled and guided by the department of Health, Government of West Bengal and their disengagement could not be made by the department of Health.
While making such contention as to illegal disengagement, the petitioners have not been able to show by whom or by which authority their engagement was controlled if not by the Department of Health and Family Welfare of Government of West Bengal. They have not been able to show who controls their engagement.
From the pro forma for engagement latter of ASHA (annexed to the writ application) It is evident that they were engaged by Block Health and Family Welfare Samity. Block Health and family welfare Samity works under the Block Medical Officer of Health. Block Medical Officer of Health is controlled by the Chief Medical Officer of Health of the concerned District who is again controlled by the department of Health and Family Welfare of the State of West Bengal. In fact the National Rural Health Mission is conducted by the Ministry of Health of Union of India and in turn the Mission is executed under the department of Health and Family Welfare of the concerned State here State of West Bengal. Above governmental echelons are established for years and judicial note thereof can be taken.
Therefore, the allegation of the petitioners as to illegality of their disengagement by the Block Medical Officer of Health as was directed by the State Mission director of National Rural Health Mission, Government of West Bengal dated December 18th, 2013 is wholly baseless and such contention is rejected. It is established from the documents annexed to the writ application that before passing the order of disengagement principles of natural justice was followed.
From the replies to show-cause notices which are annexed to the writ application by the petitioners it is evident that not only the petitioners have admitted their negligence but also have admitted that they did not attain the required skill for administering vaccine. In the letter of engagement of the petitioners it is clearly mentioned that they had to compulsorily attend the five phase training, failing which the engagement would stand automatically cancelled. Therefore, when they were engaged in September 2010 and continued as ASHA Karmees till September 2013 it has to be held that despite attending the compulsory five phase training they declared themselves as not having attained the skill for administering vaccine.
The petitioners have alleged that two other employees of department of health were facing proceeding in which the petitioners have been named as witnesses. Naming the petitioners as witnesses does not mean that they have been exonerated from their negligence of very serious nature.
Therefore, such allegation cannot be held to be of any importance. The petitioners are not at all eligible to be engaged further as ASHA Karmees for the negligence shown by them to the children. They were not at all aware of the importance of their job and seriousness required for performing their duties as ASHA Karmees. Considering all relevant facts and circumstances I hold that there is no illegality in disengagement of the petitioners by the officer under Health and Family Welfare Department of Government of West Bengal being the BMOH.
On the basis of the discussion made above I do not find any merit in the said application. I hold that the petitioners are wholly ineligible for working as ASHA Karmees and the writ application is dismissed.
No costs.
(Abhijit Gangopadhyay, J.)