Himachal Pradesh High Court
Smt. Indira Thakur And Another vs State Of H.P. And Another on 31 December, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 3998 of 2019
.
Date of decision: 31.12.2019
Smt. Indira Thakur and another ...Petitioners.
Versus
State of H.P. and another ..Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes
For the Petitioners : Mr. Onkar Jairath and Mr. Shubham
Sood, Advocates.
For the Respondents : Mr. Ajay Vaidya, Senior Additional
Advocate General with Mr. Desh Raj
Thakur, Addl. Advocate General and Mr.
Narinder Thakur, Deputy Advocate
General.
Tarlok Singh Chauhan, Judge (Oral)
The petitioners were appointed as Staff Nurses in the year 1997. One Anil Thakur made a complaint on 4.7.2016 to the Medical Superintendent, Kamla Nehru Hospital for Mother and Child, alleging therein that on 26.5.2016 an incident of baby exchange had taken place in the hospital and requested for a thorough prove into the incident.
1Whether reporters of Local Papers may be allowed to see the Judgment ?
::: Downloaded on - 03/01/2020 20:25:34 :::HCHP 22. The complaint in turn was referred to the Committee comprising of the Principal, Indira Gandhi Medical College, Shimla (for .
short 'IGMC') and other five members, who were the head of different Departments of IGMC. The aforesaid Committee inspected the entire record and also examined about 16 persons and after detailed investigation came to the conclusion that nothing adverse had been proved against the persons involved in the conduct of delivery on 26.5.2016. The Expert Committee came to the conclusion that it was proved beyond doubt that the exchange of babies was purely a human error.
3. It was thereafter that Sheetal wife of Anil Thakur approached this Court by way of CWP No. 2214 of 2016, titled Sheetal vs. State of H.P. and others. During the pendency of the writ petition both Sheetal and Anjana whose babies had been swapped alongwith their families arrived at amicable settlement and the writ petition was accordingly disposed of vide order dated 27.10.2016 with a direction to the respondents to conclude the investigation and take the departmental inquiries to its logical end.
4. On 5.12.2016, the petitioners were served with Articles of Charges and statement of imputations of misconduct and mis-
::: Downloaded on - 03/01/2020 20:25:34 :::HCHP 3behaviour in support of each Article of Charge. The Articles of Charges framed against petitioners No.1 and 2, read as under:
.
ARTICLE -1 That Smt. Indira Thakur, while working as Staff Nurse at Kamla Nehru State Hospital for Mother and Child Shimla and performing her Night Duty on 26.05.2016 in Labour Room at Kamla Nehru State Hospital for Mother and Child Shimla was found negligent for swapping new born babies as per Duty Roster maintained by Ward Sister. Exchange of babies occurred of Smt. Anjana and baby of Smt. Sheetal born on 26.05.2016 at 11.07 PM and 11.10 PM respectively which was proved by DNA report. As per protocol, the deviation occurred after the birth of babies between 11.07 PM and 11.10 P.M which resulted into the exchange of babies because of the negligence of the staff on duty. She has applied wrong tags and worn wrong clothes to the babies due to error in initial stages. This omission and commission of Smt. Indira Thakur, Staff Nurse amounts to be a misbehaviour/misconduct under the provisions of CCS(Conduct) Rules, 1964 and is liable to face disciplinary action.
ARTICLE-II That the said Staff Nurse was supposed to help the doctor during delivery process as a team work and should have properly handed over the baby to the TBA/Staff Nurse and should have examined the sex of the baby. As per record in the Labour Room Register Smt. Indira Thakur, Staff Nurse has written male baby of Smt. Anjana and female baby of Smt. Sheetal which was proved wrong after the DNA report ::: Downloaded on - 03/01/2020 20:25:34 :::HCHP 4 which is negligence during duty hours. This omission and commission of Smt. Indira Thakur, Staff Nurse amounts to be misbehaviour/misconduct under the provision of CCS .
(Conduct) Rules, 1964 and is liable to be disciplinary action."
ARTICLE -1 That Smt. Sundra Devi, while working as Staff Nurse at Kamla Nehru State Hospital for Mother and Child Shimla and performing her Night Duty on 26.05.2016 in Labour Room at Kamla Nehru State Hospital for Mother and Child Shimla was found negligent for swapping new born babies as per Duty Roster maintained by Ward Sister. Exchange of babies occurred of Smt. Anjana and baby of Smt. Sheetal born on 26.05.2016 at 11.07 PM and 11.10 PM respectively which was proved by DNA report. As per protocol, the deviation occurred after the birth of babies between 11.07 PM and 11.10 P.M which resulted into the exchange of babies because of the negligence of the staff on duty. She has applied wrong tags and worn wrong clothes to the babies due to error in initial stages. This omission and commission of Smt. Sundra Devi, Staff Nurse amounts to be a misbehaviour/misconduct under the provisions of CCS(Conduct) Rules, 1964 and is liable to face disciplinary action.
ARTICLE-II.
That the said Staff Nurse was supposed to help the doctor during delivery process as a team work and should have properly handed over the baby to the TBA/Staff Nurse and should have examined the sex of the baby. As per record in the Labour Room Register Smt. Sundra Devi, Staff Nurse has written male baby of Smt. Anjana and female baby of Smt. ::: Downloaded on - 03/01/2020 20:25:34 :::HCHP 5 Sheetal which was proved wrong after the DNA report which is negligence during duty hours. This omission and commission of Smt. Sundra Devi , Staff Nurse amounts to be .
misbehaviour/misconduct under the provision of CCS (Conduct) Rules, 1964 and is liable to be disciplinary action."
5. The petitioners submitted their written statement and denied the allegations levelled against them.
6. Initially Dr. Ashok Kumar Gupta, Joint Director Health Services was appointed as Inquiry Officer, but the said Inquiry Officer showed his inability to conduct the inquiry and it was Dr. R.K. Baria, Dy. Director Health Services, who thereafter was appointed as Inquiry Officer vide order dated 14.8.2017. The Inquiry Officer conducted the detailed inquiry and submitted the same to the Disciplinary Authority, i.e. respondent No.2 Director Health Services vide his report dated 28.12.2017.
7. The Disciplinary Authority i.e. respondent No.2 on 14.3.2018 pointed out certain alleged discrepancies in the inquiry report and requested the Inquiry Officer to submit inquiry report keeping in view the observations/issues and points so raised.
8. Accordingly, the Inquiry Officer again conducted inquiry and thereafter submitted his report alongwith conclusions on ::: Downloaded on - 03/01/2020 20:25:34 :::HCHP 6 9.01.2019 and the final conclusions drawn by the Inquiry officer were annexed as Annexure R-V, and the same read as under:
.
"Conclusion:
In the detailed deliberations and statements of witnesses which were scrutinized thoroughly and the following conclusion drawn:
1. The incidence of swapping of babies did take place on night of 26.5.2016 which was proved later on by DNA test.
2. The majority of staff on duty was not aware of the incidence and they come to know this episode from the news papers days after the incidence.
3. Even the Complaints Smt. Anjana and Smt. Sheetal was not sure of incidence and this story put forth by Smt. Sheetal who got male child later on by order of the Hon'ble Court is not convincing at all. She only told that she was told in the night about the male child by some female employee whom she did not identify.
4. It is true that the right babies were restored to biological parents.
From the statements of the witnesses it is proved beyond doubt that it is purely a human error especially mentioned by Matrons who were there in the Kamla Nehru Hospital for more than thirty years.
To conclude Article-I does not stand test of inquiry and Article-II does not prove in process of inquiry.
This is for your further necessary action, please."
9. However, the Disciplinary Authority i.e. respondent No.2 again was not satisfied with the conclusion drawn by the Inquiry Officer ::: Downloaded on - 03/01/2020 20:25:34 :::HCHP 7 and accordingly vide letter dated 14.01.2019, directed the Inquiry Officer to submit a fresh report clearly specifying therein whether the .
charge stands "proved" or "not proved".
10. In compliance to the aforesaid order, the Inquiry Officer again submitted his report to respondent No.2 on 19.1.2019 wherein he observed as under:
"1. The incidence of swapping of babies did take place on night of 26.5.2016 which was proved later on by DNA test.
2. The majority of staff on duty was not aware of the incidence and they come to know this episode from the news papers days after the incidence.
3. Even the Complaints Smt. Anjana and Smt. Sheetal was not sure of incidence and this story put forth by Smt. Sheetal who got male child later on by order of the Hon'ble Court is not convincing at all. She only told that she was told in the night about the male child by some female employee whom she did not identify.
4. It is true that the right babies were restored to biological parents.
5. From the statements of the witnesses it is proved beyond doubt that it is purely a human error especially mentioned by Matrons who were there in the Kamla Nehru Hospital for more than thirty years.
Article-I NOT PROVED.
Article -II NOT PROVED."::: Downloaded on - 03/01/2020 20:25:34 :::HCHP 8
11. It is thereafter that respondent No.2 without setting aside the inquiry report as submitted by Dr. R.K. Baria, ordered a denovo .
inquiry by appointing Dr. Sanjay Pathak, Medical Superintendent, HHMH&R, Shimla as Inquiry Officer to inquire into the charges framed against the petitioners.
12. Aggrieved by the order of denovo inquiry, the petitioners have filed the instant petition for the grant of following reliefs:
(I) That the writ in the nature of certiorari or any other appropriate writ, order or directions may kindly be issued, quashing the order dated 30.4.2019 (Annexure P-8), whereby de-novo inquiry has been initiated against the petitioners, being illegal, arbitrary, discriminatory and unconstitutional and against the settled law of service jurisprudence.
(ii) That the writ in the nature of mandamus or any other appropriate writ, order or directions may kindly be issued, directing the respondents to bring the departmental inquiry initiated against the petitioners to its logical end as early as possible making basis the Inquiry Report submitted by the Inquiry Officer on 28.12.2017 (Annexure P-7).
(iii) That the writ in the nature of Mandamus or any other appropriate writ, order or directions may kindly be issued, directing the respondents not to convene fresh DPC proceedings for promotion to the post of Ward Sister till the conclusion of departmental inquiry on the basis of the Inquiry Report dated 28.12.2017."::: Downloaded on - 03/01/2020 20:25:34 :::HCHP 9
13. In the aforesaid background, the moot question is whether the respondents could have resorted to a de-novo inquiry .
without first setting aside the earlier inquiry report submitted by Dr. R.K. Baria.
14. Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 needs to be noticed and the same reads as follows:
"15(1). The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be."
15. The aforesaid Rule clearly contemplates the power of the Disciplinary Authority and the action that is required to be taken on the basis of the Inquiry Report. Nowhere does the Rule empower the disciplinary authority to set-aside the whole inquiry and get the Article of charges re-inquired from any other Inquiry Officer for no substantial reasons.
16. It is well settled that disciplinary proceedings against employees conducted under the provisions of CCS (CCA), Rules, 1965 or under any corresponding Rules are quasi judicial in nature ::: Downloaded on - 03/01/2020 20:25:34 :::HCHP 10 and as such, it is necessary that orders in such proceedings are issued by the competent authorities in accordance with the Rules as .
the order issued by such authorities attribute to a judicial order.
Further any decision arrived at by the disciplinary authority or appellate authority under the said Rules, is in the capacity of quasi judicial authority. Thus, it is obligatory for the authority to record reasons as this will insure that the decision so arrived at is in accordance with law and not a result of caprice, whim and fancy of the officer concerned.
17. The issue otherwise is no longer res integra in view of the judgment of the Constitution Bench of the Hon'ble Supreme Court in K.R. Deb vs. The Collector of Central Excise, Shillong AIR 1971 SC 1447 wherein it was held as under:
"13. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper inquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report- of, the Inquiring Officer or Officers does not appeal to the disciplinary, Authority-. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9."::: Downloaded on - 03/01/2020 20:25:34 :::HCHP 11
18. It needs to be noted here that it is not the case of the respondents that the Inquiry Officer had not followed the correct .
procedure while conducting inquiry, more particularly, in taking evidence of the witnesses. Therefore, the judgment of the Hon'ble Supreme Court in Union of India and others vs. P. Thayagarajan (1999) 1 SCC 733 upon which strong reliance has been placed by Mr. Ajay Vaidya, learned Senior Additional Advocate General, is totally misplaced as therein the Hon'ble Supreme Court had on the peculiar facts of the case held that it was upon the disciplinary authority to order de-novo inquiry when it was found that the Inquiry Officer had not followed the correct procedure in taking evidence of the witnesses.
19. As a matter of fact, an identical question came up before the Hon'ble Supreme Court in Kanailal Bera vs. Union of India and others (2007) 11 SCC 517 wherein while dealing with a similar provision contained in Rule 27 of the Central Reserve Police Force Rules, 1955 the Hon'ble Supreme Court held that once a disciplinary proceedings have been initiated, the same must be brought to its logical end. Meaning thereby, a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidence may be directed to be adduced but the same would not mean that despite holding a ::: Downloaded on - 03/01/2020 20:25:35 :::HCHP 12 delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the same .
charges which could not be proved in the first inquiry.
20. An identical question came up for consideration before a co-ordinate bench (Coram: Hon'ble Mr. Justice Surinder Singh,J, as his Lordship then was) in D.N. Sharma vs. H.P. State Electricity Board Latest HLJ 2009 (HP) 652 wherein after placing reliance on the judgment of the Hon'ble Constitution Bench of the Hon'ble Supreme Court in K.R. Deb (supra) it was held that the disciplinary authority cannot order re-inquiry by some other Inquiry Officer on receipt of the inquiry report as the powers have to be exercised strictly in accordance with Rule 15 of the CCS (CCA) Rules, 1965.
21. In view of the aforesaid discussion, I find merit in the instant petition and the same is accordingly allowed and the impugned order dated 30.04.2019 (Annexure P-8) whereby de-novo inquiry has been ordered to be initiated against the petitioners is quashed and set-
aside and the respondents are directed to take the inquiry report submitted by the Inquiry Officer on 28.12.2017 (Annexure P-7) to its logical end as expeditiously as possible and in no event later than 31.01.2020.
::: Downloaded on - 03/01/2020 20:25:35 :::HCHP 1322. In sofar as the other reliefs as claimed by the petitioners are concerned, the Court is not expressing any opinion on the same.
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In case the petitioners are still aggrieved, they are at liberty to approach this Court for redressal thereof. The mere fact that the instant petition was decided will not be a bar for entertaining such petition.
23. The petition is disposed of in the aforesaid terms, so also the pending application(s) if any.
31st December, 2019 (Tarlok Singh Chauhan)
(GR) Judge
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