AI Structured Summary
Not yet generated for this judgment
Judgment
These petitions arise in common background. They have been heard together and would be disposed of by this common judgment.
For convenience, facts may be noted from W.P. (C) No.1164 of 2016. Petitioner Dr. Prasun Bhattacharjee has challenged an order dated 12.11.2015 by which the Secretary to the Government of Tripura had imposed a punishment of withholding three increments with cummulative effect on him. He has also challenged the appellate order dated 31.03.2016 by which his Appeal was dismissed by the Chief Secretary, Government of Tripura.
The record would show that on 22.07.2013, one patient Prasanta Das was admitted in the male medical ward of GBP hospital, Agartala. He was referred to the said hospital from Tripura Sundari District Hospital, Udaipur for further treatment for complain of breathing problem and wheezing. At about 8.45 a.m. on 23rd July, 2013, the patient Prasanta Das expired. This sudden death of the patient admitted in the hospital created considerable excitement and drew public attention. It appears that the Government had constituted a Committee headed by Director of Health Services and comprising of 5 other doctors to inquire into the cause of death, particularly, from the angle of possible negligence of the hospital staff in providing proper medical facilities to the patient. The Committee submitted a report on 20.09.2013 holding that the patient was given all standard treatments and other ancillary facilities and there was no failure to give any of the standard treatments establishing negligence on part of the doctors or physicians on duty.
A suo motu public interest petition W.P. (C) (PIL) No.01 of 2013 was registered in the High Court in relation to this incident. High Court held detailed discussions with the hospital authorities and the other Government officials and eventually passed a detailed order on 24.09.2013. Though this was an interim order in which several observations were made and directions issued which were of great importance. The High Court was not impressed by the report of the Medical Committee headed by Director of Health Services submitted on 28.09.2013. After recording the conclusions of the Committee that there was no negligence from part of the doctors on duty, the Court observed that such findings are erroneous and were made without examining necessary witnesses. The Court was of the opinion that inquiry was nothing but a cover-up job to protect the erring doctors and Para-medical staff of the hospital. As a result, the High Court directed constitution of a new Committee, which would consist of the following members:
(i) Sri Kasthala Venkata Satyanarayana, the Addl. Chief Secretary, Health & Family Welfare, Department, Govt. of Tripura, Agartala, as Chairman of the Committee;
(ii) Dr. G.K. Debbarma, Addl. Director, Medical Education;
(iii) Dr. Partha Sarathi Chakraborty, Retired Addl. Medical Superintendent, GBP Hospital, Agartala;
(iv) Sri Subhash Ch. Saha, Retired Addl. District Judge; and
(v) Sri P.K. Biswas, President, High Court Bar Association;"
The Committee so constituted by the High Court submitted its report dated 13.02.2014. Based on this report, a joint departmental inquiry was instituted against the petitioner Prasun Bhattachrjee, who was a junior doctor at GBP hospital at the relevant time and the other three petitioners, out of which one of them like him was a junior doctor and the other two were the nurses posted at GBP hospital. For such purpose, a charge sheet was issued on 09.07.2014. The charge sheet contained one charge as under:
"Article-I
That the said 1) Dr. Raja Jamatia, THS of Gr-IV, 2nd Year PG Student, Department of Medicine (2) Dr. Prasun Bhattacharjee, THS of Gr-IV, 1st year PG Student, department of Medicine, (3) Smti. Anima Das, Staff Nurse and (4) Smti. Mousumi Das (no.3), Staff Nurse of AGMC & GBP Hospital, Agartala while functioning has done gross negligence in their duties on 22nd July, 2013 while attended the patient Prasanta Das in the Male Medical Ward of GBP hospital, Agartala. The said patient referred from the Tripura Sundari District Hospital, Udaipur to GBP Hospital, Agartala for better treatment who admitted on 22-07-2013 on the complain of breathing problem and wheezing etc. Both the doctors did not take care of the patient at night on 22-07-2013. After 11.45 p.m. till 8.45 a.m. of 23rd July 2013 (till the death of Prasanta Das) both the doctors had not taken care properly even they did not put any call to any Senior Doctors who are on call duty and the Sisters on night duty of that night also did not take care to the patient as per standard expected trained nurse and also not informed the doctors the condition of the patient. Result of which, the patient had died on 23rd July 2013 at 8.45 a.m. due to gross negligence of doctors and nurses.
By the above activities of the Govt. employees of their status has shown lack of integrity & devotion to duties and also gross negligence to duties which are most unbecoming and all of the above delinquents are jointly, and individually responsible & thus violated Rule 3 of TCS (Conduct) Rules, 1988."
According to this charge, thus, all the delinquents had not taken proper care to look after the admitted patient and as a result of which, the unfortunate incident took place. In the process they had shown lack of integrity and devotions to duties and gross negligence in discharge of the duties. In the statement of imputation it was pointed out that the High Court had registered a suo motu PIL and constituted a 5 member Committee. The Committee had submitted the report on 13.02.2014. As per this report, the two doctors on duty of the ward where the patient was admitted, namely, Dr. Raja Jamatia and Dr. Prasun Bhattacharjee (who are the petitioners of these petitions) had not taken due care as they should have under the circumstances. They did not put any call for the senior doctors. No doctor visited the patient in the night between 22nd and 23rd of July till he died the next day. The Committee had also found that both the doctors and the nurses, who were attached to the ward, were negligent in discharge of the duties. Along with the charge sheet, a copy of the said inquiry report dated 13.02.2014 was annexed. Some other documents in the nature of show cause notices, replies of the delinquents and statements of the delinquents were attached.
Petitioner Prasun Bhattacharjee replied to the charge sheet under communication dated 11.08.2014 and denied the charges. Other petitioners also likewise denied the charges. The oral inquiry was thereupon conducted. During the course of the inquiry, petitioner Prasun Bhattacharjee filed an application before the Additional Chief Secretary and raised the ground of bias on part of the inquiry officer. He pointed out that he was not allowed the assistance of a legal practitioner. He also pointed out that he had asked for several documents which were also not supplied by the inquiry officer. He, therefore, requested that the inquiry officer may be changed. The Secretary to the Government of Tripura rejected this application by an order dated 11.9.2014.
The inquiry was completed and the inquiry officer submitted his report dated 18.09.2015 in which he held that the charge against all the delinquents was duly proved. In this report, he recorded the request of Dr. Raja Jamatia and Dr. Prasun Bhattacharjee for providing copies of six documents which inter alia included the duty register of ward doctors of male and female medical ward for the relevant period, duty roster of the PG students of the said wards, the register of on call doctor' for the said wards and so on. He also recorded the request of the nurse Smt. Anima Das for providing similar documents concerning her. These requests were met with the following response of the inquiry officer:
"4.5 On analyzing the request, it was felt that the aforesaid additional documents, as such, would not help in ascertaining the factual position and circumstances of the case matter and hence, in exercise of powers vested in me as IA, I rejected the request of the AOs."
The inquiry officer, in the report, discussed the materials and documents on record at considerable length and came to the following conclusions:
"(5) In view of the above circumstances and based on the statement of Shri K.V. Satyanarayana (Chairman of the 5-members Enquiry Committee) as PW2, it is concluded that the aforesaid two doctors had not taken due care of the patient, Prasanta Das and there was negligence of duty on their part.
(8) In view of the position mentioned in clauses (6) & (7) above, it is concluded that Smt. Anima Das and Smt. Mousumi Das (No.3), staff nurses were negligent in their duty in providing due care to the patient, Shri Prasanta Das.
(9) From the Duty Roster of Nursing Staff for 22-07-2013 and 23-07-2013 {obtained by the AOs as supplementary document), it is revealed that there was another staff nurse, namely, Smt. Bandita Das, who was also having night duty in MMW on 22-07-2013. As responsibility of providing nursing care to patients of MMW was to be equally shared by all three staff nurses, Health & Family Welfare Department and GA(AR) Department may consider initiating a separate inquiry against her with consequent disciplinary proceeding."
All the petitioners were provided the copies of the inquiry officer's report and allowed to make the representations, which they have. In such representations they had taken the stand of proper opportunity of defending themselves not been granted and there being inadequate evidence of their negligence in discharge of the duties. Ignoring such pleas of the petitioners, the disciplinary authority proceeded to hold that the charge against all the petitioners was proved. He, therefore, imposed the punishment of withholding of three increments with future effect on the two doctors and nurse Smt. Anima Das. With respect to the nurse Mousumi Das, it was found that she was still under fixed pay and therefore, the punishment imposed was to defer her being brought out to regular scale by three years. Relevant portion of the impugned order of punishment reads as under:-
"NOW THEREFORE, after careful consideration of all relevant aspects, the undersigned imposes the following penalties upon the Accused Officers:-
(a) Withholding of 3(three) increments with cumulative effect upon Dr. Raja Jamatia, THS of Gr-IV & 2nd Year PG Student, Dr. Prasun Bhattacharjee, THS of Gr-IV & 1st Year PG Student and Smt. Anima Das, Staff Nurse;
(b) Smt. Mousumi Das, (no.3), Staff Nurse who is working on fixed pay basis, her eligibility for regular scale be delayed/deferred by 3(three) years;".
The petitioners filed Appeals against this order. The Chief Secretary, Government of Tripura, however dismissed the Appeals. Thereupon these petitions have been filed.
Appearing for the petitioners, learned senior counsel Mr. Somik Deb raised following contentions:
(i) The inquiry was conducted in breach of principles of natural justice. The petitioners had requested for providing several documents which were vital for their defence. These documents were not provided. The requests were not even considered till the inquiry was over. Had these documents been provided the petitioners would have established that there was no protocol for call doctors. No senior doctors were available in the hospital to whom the delinquents as junior doctors could have summoned.
It is also pointed out that in case of the delinquent doctors, advice of Tripura Public Service Commission was obtained. The recommendations of TPSC were not shared to the petitioners. This also amounted to breach of natural justice.
(ii) The inquiry officer did not examine important witnesses. Only witness of importance examined was a member of the Committee which was constituted by the High Court and which had submitted the report and which was the foundation of the departmental inquiry.
(iii) The only material before the inquiry officer was the report of the High Court constituted Committee which itself cannot be independent evidence of negligence of the petitioners.
(iv) The entire inquiry was conducted with a prejudged mind. Merely because the Committee constituted by the High Court had submitted the report of negligence of the petitioners, the inquiry officer was influenced by such findings. It was pointed out that none the petitioners were parties to the public interest litigation in which the High Court had directed constitution of the inquiry Committee.
(v) It is also argued that the Committee constituted by the High Court did not contain a single expert. There were no doctors included in the Committee. No experts were examined during the course of inquiry. Previously, the Committee constituted by the Government which comprised of several doctors had exonerated all the staff members of the hospital. Such findings could not have been overturned on the basis of the report of a Committee which did not include a single doctor. The issue being one of medical negligence, evidence of the expert was of great importance.
(vi) It was lastly contended that the junior doctors were still pursuing their Post Graduation courses. They cannot be treated as Government servants who were subjected to CCS (CCA) Rules. With respect to the staff nurse Mousumi Das on whom the punishment of delaying her being brought over to regular pay scale by 3 years of imposed, it was argued that such punishment is not prescribed under the relevant service rules and therefore could not have been imposed by the disciplinary authority.
Learned counsel has relied on certain decisions, reference to which will be made at appropriate stage.
On the other hand, learned Additional Government Advocate, Mr. Dipankar Sarma opposed the petitions contending that the High Court had constituted a Committee whose report was made the basis for holding the departmental inquiry. Copy of this report was provided to the petitioners. However, the report of the Committee was not the sole basis for holding the petitioners negligent in discharge of the duties. There was independent other evidence of their misconduct. He submitted that the disciplinary authority has come to factual findings which are supported by evidence on record. The punishment imposed is also commensurate with the proved charge. The petitions may therefore be dismissed.
As noted, with respect to sudden death of the patient, who was referred to the hospital and admitted, the Government at one stage conducted an internal inquiry. The report submitted by the Committee did not find any evidence of medical negligence. In the public interest petition, however, High Court was not pleased with the report of this Committee and therefore constituted a fresh Committee which would submit the report. On the basis of the report submitted by the Committee so constituted by the High Court, common departmental inquiry was instituted against all the petitioners. Perusal of the charge sheet, the copy of the inquiry officer's report and a final findings of the disciplinary authority, would lead to only one conclusion mainly, that for initiation of the inquiry and for holding that the charge against all the delinquents as proved, the sole material with the department was the report of the High Court constituted inquiry Committee. We would elaborate on this aspect a while later.
For the present, we may demonstrate the number of occasions where the principles of natural justice were violated. We have recorded that the doctors and the nurses had applied to the inquiry officer for supplying certain documents. These documents were in the nature of duty roster of the wards on 22nd July and 23rd July, duty rosters of the PG students posted in the said wards and register of on call doctor' applicable at the relevant time. Nurse Anima Das had asked for duty roster of herself and duty roster of other nurses. None of these documents were supplied to the petitioners. In fact, the requests were not even dealt with during the course of the inquiry. It was only in his report that the inquiry officer tersely dealt with these demands observing that upon analysis of the request it was felt that these additional documents, "would not help in ascertaining the factual position and circumstances of the case matter and hence, in exercise of powers vested in me as IA, I rejected the request of the AOs". Non-supply of these documents was also urged by the petitioners before the disciplinary authority when they made their representations against the inquiry officer's reports. The disciplinary authority did not even deal with this contention.
In our opinion, this is a serious breach of principles of natural justice which goes to the very root of the matter. The petitioners had made out relevance for providing certain documents. The documents do not become relevant only if they are required by the department. In a given case, a document, a piece of evidence even though not relied upon by the department to prove the charge, the delinquent can demand the same in order to prove his innocence. This is in built in fair play with which every departmental inquiry must be visited. The inquiry officer failed to deal with such requests till he submitted his final report. In the final report also his dealing of these requests was totally un-satisfactory. He merely concluded that such additional documents were not necessary to ascertain the factual position and circumstances of the case. Firstly, these conclusions are neither elaborated nor preceded by any reasons. Secondly, these conclusions are also defective. The case of the petitioners was that there was no register of on call doctors, this would go to establish their prime defence that they had not failed to summon a senior doctor if the condition of the patient had deteriorated. Whether they would have been able to establish this factum or not is not important and cannot be prejudged. What is important is they were deprived of a legitimate defence. As noted, the disciplinary authority did not even examine this contention and thereby, compounded the injustice done to the petitioners.
Equally, the State has not met with the petitioners' ground of non- supply of the recommendations of TPSC. The fact that TPSC was consulted and its recommendations kept in mind by the disciplinary authority while imposing punishments is not in dispute. That being the position, the disciplinary authority ought to have provided a copy of the TPSC advice to the delinquents to enable them to represent against the same. Being a material which the disciplinary authority was in the process of taking into account for holding that the charge was proved and that a certain punishment was necessary, the same could not have been done without sharing such material with the delinquents. In this respect, we may refer to the decision of the Supreme Court in case of Union of India and others vs. R.P. Singh, reported in (2014) 7 SCC 340, in which following observations were made:
"23. We have referred to the aforesaid decision in B. Karunakar case [ECIL v. B. Karunakar, (1993) 4 SCC 727] in extenso as we find that in the said case it has been opined by the Constitution Bench that non-supply of the enquiry report is a breach of the principle of natural justice. Advice from UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 provides for supply of copy of advice to the government servant at the time of making an order. The said stage was in prevalence before the decision of the Constitution Bench. After the said decision, in our considered opinion, the authority should have clarified the Rule regarding development in the service jurisprudence."
Had this been the only grounds on which we were inclined to set aside the orders of punishment, we would have been persuaded to remand the proceedings for fresh disposal from the stage where the defects were detected. However, in the present case, we find that there are far more fundamental and substantial grounds on which the impugned orders cannot be sustained. The grounds of failure to observe principles of natural justice are only by way of pointing out the manner in which the departmental inquiry was conducted. We have perused the documents on record and find that only material of note which the department had brought on record during the inquiry was the report of the High Court constituted Committee. The report can certainly be a basis for initiation of departmental inquiry against employees, who were prima facie found to be negligent in discharge of the duties but cannot be the sole basis for holding that the charge was proved. Firstly, none of the petitioners were parties to the public interest petition in which the Committee was constituted. Secondly, these petitioners had no opportunity to represent their cases before such a Committee. The constitution of the Committee as well as the finding of the Committee were thus ex parte qua these petitioners. They, therefore, had an important right to challenge the findings of the Committee. In fact, it was a duty of the department to bring on record appropriate evidence to establish the negligence of the petitioners. All that was examined by the department of note was one of the members of the Committee which had submitted the report and such report was exhibited.
The discussion in the inquiry officers report, the conclusions of the inquiry officer and the findings of the disciplinary authority all point to only one aspect mainly, that the charge was held to be proved because the inquiry Committee had so held. There was no independent evidence and in fact the findings suggesting when the two junior doctors and the nurses on duty were negligent which cause the death of the patient could not have been arrived at without at least bringing on record the basic materials and evidence such as availability of the roster for summoning senior doctors in case of emergency. In fact, when the petitioners asked for copies of such rosters, the request was summarily rejected on the ground that the same was unlikely to be useful for finding of the truth. We clearly get an impression that the inquiry officer and the disciplinary authority felt themselves bound by the findings of the Committee constituted by the High Court. Whatever be sanctity and seriousness of the report of the Committee, the petitioners had a valuable right to point out that the findings of the Committee were not correct or borne out from the record and defend themselves.
An additional ground which also appeals to us is of the punishment of delaying the process of being brought over to regular pay scale awarded to nurse Anima Das. This is clearly not one of the prescribed punishments under the service rules. We understand the difficulties of the disciplinary authority in selecting a proper punishment for a Government servant who was yet to be brought over to regular pay scales and was still in the fixed salary regime. Nevertheless, such practical difficulties of the administration cannot be the ground for permitting imposition of punishment not prescribed under the service rules.
Under the circumstances, impugned orders of punishment are set aside. All the petitions are allowed and disposed of. Pending application(s), if any, also stands disposed of.