Ajit Kumar Kundu, Dr. vs State of West Bengal

D. Basu, J.—The Petitioner was an Insurance medical practitioner enlisted under the Employees'' State Insurance (Medical Benefit) Scheme, West Bengal, framed under the Employees'' State Insurance Act (annex''s. A-B to the petition). Under this scheme, the practitioner has certain duties as enumerated in Clause (6) of Schedule 1 to the Rules relating to the scheme (reproduced in para. 9 of the petition) and is paid a remuneration varying according to the number of insured persons on the medical practitioner''s list at the beginning of the quarter to which it relates.

There was a surprise inspection of the Petitioner''s clinic at Naihati during his office hours on October 3, 1964, but the Petitioner was found absent. This was pursued by inspection on subsequent dates, leading to an alleged discovery of various irregularities, for which the Petitioner was asked to explain by the letter dated February 8, 1965, at annEx. C. The irregularities, in short, were:

(i) Irregularities in records to be maintained by the Petitioner;

(ii) non-attendance at the prescribed hours;

(iii) medical certificates being written by the compounder the Petitioner only signing them under such writing;

(iv) lavish use of forms;

(v) registers being maintained by the assistants.

The Petitioner submitted his explanation touching all the points aforesaid by his letter dated February 24, 1965 (annex. D). This was followed by the notice at annEx. E, dated May 22, 1965, by which the Deputy Secretary to the Government of West Bengal (Labour Department) informed the Petitioner that the Governor had directed, in exercise of his power under Clause (11)(1) of Schedule 1 to the West Bengal Employees'' State Insurance (Medical Benefits) Rules, 1955 (hereinafter referred to as ''the Rules''), that the Petitioner''s services will not be required after the expiry of one month from the date of receipt of the notice. The Petitioner''s representation to the Minister-in-charge of the Department, dated May 26, 1965 and June 22, 1965, having met with no success, the Petitioner came to Court on August 18, 1965, after serving a demand for justice.

The Petitioner challenges the validity of the notice at annEx. E on various grounds. The Rule is opposed by an amdavit-in-opposition filed by Respondent No. 5, the Administrative Medical Officer.

I. The first ground urged on behalf of the Petitioner is that he is entitled to three months'' notice instead of one month, under Clause (11)(1) of the Rules, which is relied upon in the impugned notice at annEx. E. Clause (11)(1) says:

The State Government may have the name of any individual Insurance medical practitioner removed from the medical list after giving due notice of not less than three months to the Insurance medical practitioner, except in case of gross negligence and misconduct when the period of notice need be only one month.

The Petitioner''s case is that, as there was no charge of any gross negligence or misconduct against him, the power cannot be exercised without giving him three months'' notice, even assuming that the other conditions for the application of the power existed.

The plea of the Respondents is that the charges which led to the impugned notice at annEx. C, contained charges of gross negligence and misconduct.

It is, however, to be noted that the letter at annEx. C nowhere mentions the words ''gross negligence'' or ''misconduct'' which are technical terms. In the ultimate paragraph, the Petitioner was "to explain in writing the above irregularities."

Though the expression -gross negligence'' is not defined in the Rules, we may get some light from the explanation to Rule 25(2) which defines the word ''negligence'' as failure to exercise reasonable skill and care in the treatment of a patient. It would follow that ''gross negligence'' in Clause (11) refers to gross negligence in the matter of treatment of a patient entitled to benefit under the scheme. There was no such allegation against the Petitioner.

In order to construe the implications of Sub-clause (1) of Clause (11) we should also look to the contents of Sub-clause (2) of the same Rule, which gives the medical practitioner the right to have his name removed from the list by giving three months'' notice to the Government It is also to be noted that the employment of a medical practitioner under the scheme does not constitute a ''service'' under the Government. His name is put on the list of Insurance medical practitioners; upon which he gets certain benefits and incurs certain duties and disabilities as listed in Schedule 1 to the Rules, including a remuneration based on the number of patients on the list of the practitioner in question, to be treated by him under the scheme. As soon as the practitioner''s name is removed from the list, he is deprived of the benefits and freed from the obligations as aforesaid. Clause (11) therefore speaks of removal from the list; there is no mention of termination of services. The relationship between the medical practitioner and the Government remains contractual, subject of course, to the Rules which are statutory rules. Clause (11) therefore gives to either party the liberty to terminate the engagement by giving the prescribed notice of three months on either side. But in the interests of the public, the Government has the exceptional powers of removing the name of a particular practitioner with a shorter notice of one month provided such removal is made "in case of gross negligence and misconduct". It is, therefore, imperative that where Government seeks to use this statutory exception of a shorter notice it must recite in the notice itself why one month''s notice instead of three months'' notice is being given. That has not been done in the instant case.

Even assuming that a recital in the notice itself may not be necessary where the medical practitioner is previously told in writing that he is guilty of gross negligence or misconduct or is charged thereof, Government, in the instant case, did not inform the Petitioner before issuing the impugned notice that he was guilty of gross negligence or misconduct. Nor did the letter at annEx. C, taking it to be charged, charge the Petitioner to be guilty of ''gross negligence'' or ''misconduct'' but simply asked him to explain for certain ''irregularities'',

In my opinion, in these circumstances, Government cannot take advantage of the shorter period of notice. But that does not vitiate the impugned notice in toto, unless the Petitioner succeeds on the other points going to the root of exercise of the power.

The result of the instant finding will be that the Petitioner''s name would be deemed to continue on the list, under Clause (11)(1) for a period upto three months from the date of service of the notice at annEx. E and that, accordingly, the Petitioner shall be entitled to remuneration being paid to him in terms of Clause (16) of the schedule, for the said period of three months.

II. The next point taken on behalf of the Petitioner is that the impugned notice contravenes Rule 23 of the Rules which requires an investigation by the Medical Service Committee whenever there is an allegation that there has been a breach of the duties of a medical practitioner under the terms of his service under the Rules.

It has, however, been rightly pointed out by the learned Advocate for the Respondents, that under Sub-rules (1) and (2) of Rule 23, it is obligatory to hold an investigation by the Medical Service Committee only when the allegation of breach of duties by the practitioner has been raised by a person who is entitled to medical benefit under the Rules and not when the question has been raised by the Administration.

There is, of course, Sub-rule (3) in Rule 23, which empowers the Director of Health Services also to refer such question for investigation by the Medical Service Committee. But under this sub-rule, it is not obligatory for the Director to have such investigation, except where the local medical committee (vide Rule 28) so desires; but there is no such case here. Hence, it cannot be held that the impugned notice is ultra vires because of the omission to refer the case for investigation by the Medical Service Committee.

III. It is next contended that the impugned notice shall fail because of want of compliance with Rule 26(ii)(b) which requires a reference to the ''Allocation Committee'' where the Director of Health Services is of the opinion that the medical practitioner has, inter alia, "failed to carry out his obligations under the terms of service" as regards "the recording of clinical data regarding his patients". The allegations in annexe C do not appear to refer to recording of ''clinical (sic)'' regarding the patients. Further, the procedure laid down in Rule 26(1) is not obligatory as is indicated by the word ''may''.

Different sets of provisions exist in the Rules in the matter of removing a medical practitioner''s name from the list.

(a) When the ball is set in motion by a beneficiary under the Insurance scheme it is obligatory for the authorities to refer the question for investigation by the Medical Service Committee under Rule 23. The Committee submits its report to the Director of Health Services, who may take any of the steps enumerated in Rule 25(2) against the practitioner, including Seduction from remuneration and the like. But withholding of money or removal cannot be ordered by the Director himself, he can only recommend such action being taken by the State Government and, before acting on such recommendation, the State Government must give the practitioner an opportunity to make (sic) representation on the matter.

(b) Under Rule 26 either the Director of Health Services or the corporation may refer to the Allocation Committee when there is an allegation of the nature referred, to in Rule 26 and under Rule 26(6) when the report of the Allocation Committee is received, the Director, shall refer the matter again to the Medical Service Committee for investigation, under Rule 24(2) read with Rule 26(6), which will ultimately require (sic) recommendation to the State Government, in case removal of the practitioner''s name from the list is sought for.

There is no provision in the foregoing rules for giving any notice to the practitioner before removal; instead there is provision for giving the practitioner an opportunity to be heard before he is removed on an allegation against him. On the other hand there is no provision for hearing under Clause (11) of the schedule, nor is it stated therein that that power may be exercised only in the cases specified in Rules 23-26. The only reasonable conclusion that can be drawn is that Clause (11) confers reserve power upon the State Government independent of the power conferred by Rules 25-26. It is indeed unnecessary in this case to determine whether the notice under Clause (11) must be served even in cases falling under Rules 23-26.

It is sufficient for the instant case to hold that there is nothing in the statutory provisions to suggest (i) that the power under Clause (11) can be exercised only in those contingencies which are mentioned in Rules 23-26, or (ii) that in every case that the power under Clause (11) is sought to be used, there must be an investigation by the Medical Service Committee or the Allocation Committee.

I have already held that the allegation made at annEx. C do not come under any of the contingencies mentioned in Rules 23-26. The impugned notice under Clause (11) also does not want to remove the Petitioner''s name with any aspersions. Hence, it cannot be held that the impugned notice is without jurisdiction.

In the result, the impugned notice cannot be struck down but the Petitioner shall be entitled to relief by way of three months notice instead of one month''s notice. Since the object of the notice is only to compensate medical practitioner for the sudden fall in his income and to enable him to build up an alternative source of income the purpose will be served by directing payment of remuneration to the Petitioner for an additional period of two months, calculated according to Clause (16)(1) of Schedule 1 of the Rules.

Let the Rule be made absolute in part on the above term without any order as to costs. Respondents be directed to pay to the Petitioner remuneration calculated according to Clause (16)(1) of Schedule 1 to the Rules, for another two months, in addition to what he has been paid or is entitled to by reason of the one month''s notice a annEx. E.

Before concluding I would draw the attention of the Respondents to the need for revising the Rules to put them in a simple form.