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2002 DIGILAW 1873 (RAJ)

Dr. Surendra Kumar Chutani v. State of Rajasthan

2002-11-25

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - The petitioner, noted Doctor in the field of Cardiology in S.M.S. Hospital Jaipur, seeks to quash the order dated August 9, 2001, whereby the petitioner was placed under suspension. 2. From the material on record, it appears that on the reports published in news paper that two patients namely Vidyawati and Shakti Singh, who were operated for Angioplasty plus PTCA and were charged for implanting the Stents in artery were cheated as the Doctor had actually not put any stent at all. On the basis of said report preliminary enquiry was held. As per the report of Dr. K.C. Goswami of AIIMS New Delhi there was no obvious visible stent in the Artery of Shakti Singh. The Secretary to the Government of Rajasthan, Department of Personnel, thereafter issued the impugned order dated August 9, 2001 under Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short the CCA Rules) directing suspension of the petitioner in contemplation of departmental enquiry under the CCA Rules. 3. The petitioner averred in the writ petition that he by sheer hard works and unflinching dedication to medical profession, succeeded in creating niche for himself. Fortunately success and recognition came very fast to him. This success is closely followed by jealousy and he has to pay the price of the success. For no fault of the petitioner during the last couple of years, the associate doctors in Cardiology have become panicky, specially Dr. R.K. Madhok, Professor and Head of Department in Cardiology. Dr. Madhok did not have any teaching experience as Assistant Professor (Cardiology) or Associate Professor of Cardiology. He is actually Professor of Medicine but by influence has been illegally redesignated as Professor of Cardiology by the authorities concerned. Dr. Madhok apprehended that in the event of the petitioner becoming Professor in Cardiology, he might have to lose the post of Professor and Head of Department of Cardiology. The creation of new post of Professor of Cardiology has been under serious contemplation. Goaded by sheer self interest, Dr. Madhok had been spreading his tentacles to form a nexus amongst fellow senior doctors with a calculated design to tarnish the ever growing popularity and fast emerging image of the petitioner. Dr. Madhok sees a formidable rival in the petitioner. 4. Goaded by sheer self interest, Dr. Madhok had been spreading his tentacles to form a nexus amongst fellow senior doctors with a calculated design to tarnish the ever growing popularity and fast emerging image of the petitioner. Dr. Madhok sees a formidable rival in the petitioner. 4. The petitioner further averred that Dr.Madhok after his redesignation as Professor in Cardiology and his becoming the head of Cardiology Department had been severally charged of negligence in treatment of patients (resulting even in death), corruption and malpractices etc. The petitioner gave details of malpractices of Dr.Madhok in the writ petition. Dr.Madhok also conspired against the petitioner in chargesheeting the petitioner under Rule 16 for alleged sale of one Unit blood. In the said enquiry the petitioner was exonerated and posted back in SMS Hospital as Head of Unit II Cardiology. Dr.Madhok further hatched a conspiracy with the help of Dr.Arvind Kumar Sharma, who is co-accused with Dr.Madhok in the matter of death of Shri M.L. Kalia. 5. As submitted above, in the matter of news items the Chief Minister Rajasthan ordered an inquiry and a committee of following three persons was constituted: (i) Dr. Kunal Kothari (ii) Dr. M.R. Goel (iii) Dr. Ashok Pangaria. The committee did not express any final opinion and advised fluoroscopic visualisation of Stent with assistance of an expert. The expert as submitted above from AIIMS Dr. K.C. Goswami was called and in the presence of the petitioner Cine fluoroscopy of Vidyawati and Shakti Singh was done and it was found that in Patient Shakti Singh there was no obvious visible Stent. The reports were submitted to the Government. The petitioner protested against the reports by his representation dated July 30, 2001. On the basis of the reports submitted by the committee, the State Government placed the petitioner under suspension vide order dated August 9, 2001. 6. The petitioner averred that the competent authorities have taken action against him solely on the basis of manipulated reports and he has not been afforded opportunity of submitting explanation with regard to the reports. The action is based on one sided version. The petitioner pleaded that even from the reports no case of misconduct against the petitioner is made out. The respondent State did not objectively study the facts and circumstances of the case. The suspension order is wholly unwarranted and based on malice. The action is based on one sided version. The petitioner pleaded that even from the reports no case of misconduct against the petitioner is made out. The respondent State did not objectively study the facts and circumstances of the case. The suspension order is wholly unwarranted and based on malice. Instances of malice have been detailed out by the petitioner in the writ petition. 7. The respondents 1 and 6 in their return to the writ petition stated that the petitioner has been placed under suspension by the State Government in according with Rule 13(1)(a) of the CCA Rules. Suspension is neither a penalty nor a punishment. Since a departmental enquiry is contemplated against the petitioner hence it was found desirable to exercise the jurisdiction under Rule 13(1) of the CCA Rules. The order of suspension has been passed objectively without any extraneous consideration and none of the fundamental or legal right of the petitioner has been violated and thus the petitioner is not entitled to invoke the extraordinary jurisdiction of the Constitution. The answering respondent submitted that the petitioner has not stated any convincing reasons to establish that his colleagues feel panicky. The order of suspension has been passed by an authority having jurisdiction and foundation of the order does not suffer from any extraneous reason of whatsoever in nature. In regard to appointment of respondent No.2 the respondents stated that it was well within the Rules. The petitioner was under erroneous impression that he has been placed under suspension at the instance of Dr. Madhok. The order of suspension has been passed without any outside influence and Dr. Madhok has nothing to do with the order of suspension. After publication of news item in the newspaper, the Chief Minister issued directions to conduct enquiry into the matter. These directions show that an independent enquiry was ordered to be conducted. The committee constituted for enquirying in the matter gave its report and recommended that conclusive evidence of stenting can be ascertained in Cath Laboratory with the assistance of specialists in the field. After this recommendation of the Committee a specialist in the field Dr. K.C. Goswami, Additional Professor Cardiology, All India Institute of Medical Science New Delhi was requested to examine the patients under Cine fluoroscopy. After this recommendation of the Committee a specialist in the field Dr. K.C. Goswami, Additional Professor Cardiology, All India Institute of Medical Science New Delhi was requested to examine the patients under Cine fluoroscopy. Dr.Goswami submitted his report on July 24, 2001 and gave a definite finding that out of two patients one Shri Shakti Singh was not having obvious visible stent. The respondents averred that prima facie the finding given by Dr. Goswami can not be doubted. The finding given by Dr.Goswami has not been treated as final and therefore a departmental enquiry is contemplated in order to dispel all doubts in the mind of general public and other concerned and it was felt necessary that the petitioner may not be permitted to work for the time being. Since the allegations against the petitioner were serious therefore looking to the gravity of the allegations the petitioner was rightly placed under suspension. The course of enquiry from the stage of preliminary enquiry conducted by three doctors from various specialities and on further their recommendations an enquiry by a specialist in the subject concerned, from All India Institute of Medical Science, New Delhi was sufficient to establish that the preliminary enquiry against the petitioner has been conducted without outside influence, extraneous consideration or for collateral purposes. The three members Committee very objectively concluded that a final and better opinion can be given by an Expert. The expert gave its opinion that one patient was not having visible stent. There is no scope to raise doubt in the course of enquiry. The allegations made by the petitioner were baseless and the suspension order has been passed in general public interest to dispel all doubts in the mind of public. 8. Respondents Dr. R.K. Madhok, and Dr. Arvind Kumar Sharma also filed return denying allegations of malice levelled against them. 9. Mr. S.R. Bajwa learned Senior Advocate highlighted following contentions for my consideration. (i) Impugned order of suspension suffers from the vice of non- application of mind to the relevant record. (ii) State of Rajasthan did not afford opportunity to the petitioner of submitting his explanation. The action of the State is thus based on one sided version and therefore is unjust and arbitrary. (iii) Suspension is a very harsh step and in view of circular dated January 10, 2001 it should not be resorted to except after charge sheet has been served. The action of the State is thus based on one sided version and therefore is unjust and arbitrary. (iii) Suspension is a very harsh step and in view of circular dated January 10, 2001 it should not be resorted to except after charge sheet has been served. In the case of the petitioner, even the reports do not disclose any charge of misconduct therefore action of suspension is wholly unjustified. (iv) Power of suspension should be exercised sparingly, under most extraordinary situation and for compelling reasons, after due care and caution. It should not be exercised as a matter of course. Guidelines issued vide circular dated January 10,2001 can not be ignored. (v) All the reports in the matter are vitiated due to bias of the committee constituted to enquiry in to the matter. The committee had a bias infested with predisposed mind for falsely implicating the petitioner and such reports deserves out right rejection. (vi) The committee did not consist of any expert of Cardiology. The Convenor and Members were not qualified to assess the action of petitioner and even to analyse the opinion of outside Expert. Angioplasty including anchoring of stent, is highly technical subject, which requires deep study. The technique was all greek to the Members of the Enquiry Committee. As such the Constitution of committee itself was illegal. (vii) Respondents Dr. R.K. Madhok, Dr. Kunal Kothari, Dr. Arvind Kumar Sharma and Manish Sharma correspondent, Rajasthan Patrika had conspired against the petitioner out of their ill motives and the State of Rajasthan had acted irresponsibly or under influence of vested interest. Hence the action deserves to be quashed. (viii) The petitioner has been treated with hostile discrimination. Operation of Angioplasty and Stenting is not an individual's task, but a team work. Those deposing before the Enquirying committee actively participated in the act. They are equally responsible for any such conduct. The very fact that the petitioner alone has been picked up and indicated for action, renders apparently the action violative of Articles 14, 16, 21 and 311 of the Constitution and void abinitio. (ix) The State of Rajasthan had applied different yardsticks in the exercise of discretionary powers. They are equally responsible for any such conduct. The very fact that the petitioner alone has been picked up and indicated for action, renders apparently the action violative of Articles 14, 16, 21 and 311 of the Constitution and void abinitio. (ix) The State of Rajasthan had applied different yardsticks in the exercise of discretionary powers. Responsible doctor in the same department having been clearly implicated in series of graver complaints has ever been subjected to action of suspension and on the other hand has been allowed to rule the roost in has capacity as Head of Department whereas the petitioner has been immediately suspended. (x) In such type of cases requiring super-speciality, high skill and exemplary expertiese and talent, unscrupulous complaints should not be made basis of disciplinary action, particularly when they emanate from stronger sources. (xi) The State of Rajasthan failed to appreciate that there being several contingencies of non-visibility of stent after deployment and there being clear proof of falsity of the reports published and statements of hospital staff and record in one out of the two patients. 10. Learned Senior counsel placed reliance on Dr. B.M. Bohra v. State of Rajasthan 1991(1) RLR 383 , M. Paul Anthony v. Bharat Gold Mines (1999) 3 SCC 679 : [ 1999(2) SLR 338 (SC)] and K. Sukhender Reddy v. State of A.P. (1999) 6 SCC 257 . 11. Per contra Mr. R.N. Mathur learned Additional Advocate General reiterated the averments of the return and supported the impugned order of suspension. Reliance is placed on Mohammed Ghouse v. The State of Andhra ( AIR 1957 SC 246 ), V.P. Gindroniya v. State of M.P. ( AIR 1970 SC 1494 ) : [1970 SLR 329 (SC)] , State of Haryana v. Hari Ram Yadav (1994) 2 SCC 617 : [1994(2) SLR 63 (SC)] , Union of India v. P.K. More ( AIR 1962 SC 630 ) and State of M.P. v. State of Maharashtra (1997) 2 SCC 288 . 12. Mr. R.C. Joshi learned counsel of the respondents Dr. R.K. Madhok and Dr. Arvind Kumar Sharma made an attempt to establish that the respondents had no malice with the petitioner and the State of Rajasthan never acted at their behest. 13. Dr. Kunal Kothari (respondent No. 3) and Manish Sharma (respondent No. 5) were also impleaded as parties in the writ petition but their service was dispensed with. 14. R.K. Madhok and Dr. Arvind Kumar Sharma made an attempt to establish that the respondents had no malice with the petitioner and the State of Rajasthan never acted at their behest. 13. Dr. Kunal Kothari (respondent No. 3) and Manish Sharma (respondent No. 5) were also impleaded as parties in the writ petition but their service was dispensed with. 14. I have given my thoughtful consideration to the submissions advanced before me and closely scanned the material on record. 15. In Oxford Dictionary the term 'suspension' has been defined as "Action of debarring or state of being debarred, especially for a time from a function or privilege, temporary deprivation one's office or position, state of being temporarily kept from doing or deprived of something..." 16. Constitution Bench of the Hon'ble Supreme Court in V.P. Gindroniya's case (supra) indicated three kinds of suspension. Their Lordships observed in para 6 as under: "6. Three kinds of suspension are known to law. A public servant may be suspended as a mode of punishment or he may be suspended during the pendency of an enquiry against him if the order appointing him or statutory provisions governing his service provide for suspension. Lastly he may merely be forbidden from discharging his duties during the pendency of an enquiry against him which act is also called suspension. The right to suspend as a measure of punishment as well as the right to suspend the contract of service during the pendency of an enquiry are both regulated by the contract of employment or the provisions regulating the conditions of service. But the last category of suspension referred to earlier is the right of the master to forbid his servant from doing the work which he had to do under the terms af the contract of service or the provisions governing his conditions of service at the same time keeping in force the master's obligations under the contract. In other words the master may ask his servant to refrain from rendering his service but he must fulfil his part of the contract." 17. The provisions related to suspension incorporated in Rule 13(1) of the CCA Rules, provides as under: "13. Suspension.-(1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf may place a Government servant under suspension. The provisions related to suspension incorporated in Rule 13(1) of the CCA Rules, provides as under: "13. Suspension.-(1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf may place a Government servant under suspension. (a) Where a disciplinary proceedings against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation or trial; Provided that where the order of suspension is made by an authority lower then than the Appointing Authority, such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made." 18. The Department of Personnel (A-III) Government of Rajasthan issued guide lines regarding suspension of officers and serving of charge sheet upon those officers who are placed under suspension vide circular dated January 10, 2001. This circular provides as under: "Normally, Officers should be placed under suspension only in the following circumstances: (i) Where an officer is caught red handed in a trap proceeding organised by the Anti Corruption Bureau, or (ii) Where a criminal case involving moral turpitude, embazzlement of funds or some other grievous offence is pending investigation or trial against an officer, or (iii) Where the officer concerned is prima facie guilty of some major lapse and departmental enquiry under Rule 16 of the CCA Rules is pending or contemplated against him and the gravity of the charge(s) is such that, if proved, it will most probably lead to his removal or dismissal from service, and (iv) Where the retention of the officer concerned in office is likely to hamper or frustrate the inquiry or it is otherwise inadvisable that he should continue to perform the duties of his office. Before placing any person under suspension,the competent authority should personally study the facts and circumstances of the case and satisfy himself/herself that in the facts and circumstances of the case a prima facie case is made out for initiating disciplinary action under Rule 16 of the CCA Rules and that the gravity of the charge is such that, if proved, it will most probably lead to his removal for dismissal from service. The competent authority should pass a speaking order stating that he/she has personally examined the facts and circumstances of the case and that he/she is personally satisfied that suspension is justified in the facts and circumstances of the case. Contrary to normal belief, suspension is a very harsh step and, except in rare cases, suspension should not be resorted to except after charge-sheet has been served upon the concerned officer and, to the extent possible after giving an opportunity to the concerned officer to state his case with respect to the charges against him. However, it has been observed in several cases that after an officer has been placed under suspension, the charge sheet is not served upon the officer concerned for several months while he continues to remain under suspension. This is a matter of serious concerned and it is enjoined upon all concerned to ensure that such a situation is avoided at all costs. Once an officer has been placed under suspension, it is the duty of the concerned authority to ensure that the charge sheet is served upon him without any delay. It is expected that normally the charge sheet should be served upon the concerned officer within a period of two months from the date of suspension, in future all concerned should ensure that charge sheet is served upon suspended officers within a period of two months from the date of suspension. It has also been observed that at times officers belonging to the State Services are placed under suspension by the concerned State Services are placed under suspension by the concerned Administrative Departments/Heads of Departments. In this connection it is clarified that under the Rajasthan Rules of Business the powers for disciplinary action against officers belonging to the State Services, including the power to suspend an officer, vest only in the Department of Personnel. Administrative Departments/Heads of Departments are not authorised to suspend an officer, of the State Services. Therefore, officers belonging to the State Services can be placed under suspension only by the Department of Personnel. If in a rare and extraordinary case the concerned Administrative Department demands it necessary that an officer should be immediately placed under suspension, the concerned Principle Secretary/Secretary to Government should necessarily consult the Chief Secretary and obtain his consent for placing the Government servant under suspension. If in a rare and extraordinary case the concerned Administrative Department demands it necessary that an officer should be immediately placed under suspension, the concerned Principle Secretary/Secretary to Government should necessarily consult the Chief Secretary and obtain his consent for placing the Government servant under suspension. Therefore, the case should be immediately referred to the Department of Personnel and the suspension order should be got confirmed by the Department of Personnel. Keeping in view the above mentioned position, all concerned are requested to review the cases of officers who are presently under suspension. If any officer has been placed under suspension and chargesheet has been served upon him under Rule 17 of the CCA Rules, action should be taken to the immediately reinstate such Officer. If any officer has been under suspension for more than two months and charge sheet has still not been served upon him, the competent authority shall ensure that the charge sheet is served upon the concerned officer immediately. All concerned are requested to ensure that these instructions are fully complied with the future. Non-compliance of these instructions shall be viewed seriously by the State Government." 19. Constitution Bench of Hon'ble Supreme Court in Mohammed Ghouse v. The State of Andhra (supra) propounded that order of suspension is neither one of dismissal nor of removal from service within the meaning of Article 311 of the Constitution. 20. In State of M.P. v. State of Maharashtra (supra) their Lordships of the Supreme Court held that the order of suspension does not put an end to the service of an employee. Suspension merely suspends the claim to salary. During suspension there is suspension allowance. Real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to works and is paid only subsistence allowance which is less than his salary. 21. A two Judge Bench of Hon'ble Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another (supra) indicated in para 29 thus: "29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by a "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by a "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non- payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nickname of "subsistence allowance", so that the employee may sustain himself." 22. In K. Sukhendar Reddy v. State of A.P. and another (surpa) their Lordships of the Supreme Court indicated that the Government cannot be permitted to resort to selective suspension. It can be permitted to place an officer under suspension just to exhibit and feign that action against the officers, irrespective of their high status in the service hierarchy, would he taken. 23. The meaningful questions that need my answer in the instant writ petition are: (i) Whether the impugned order is based on 'suspension syndrome'? (ii) Whether the impugned order can be termed as 'selective suspension'? (iii) Was it necessary for the Secretary D.O.P. of the State Government to pass speaking order stating the reasons justifying the order of suspension? (iv) Whether the impugned order of suspension was issued at the behest of three Doctors and one correspondence of Newspaper? 24. It is well settled that to place an employee under suspension is an unqualified right of the employer. This right is conceded to the employer in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including Government of India and the State Government. Section 16 of the General Clauses Act too provides that power to appoint includes power to suspend or dismiss. 25. In the case on hand as already noticed that after publication of news item that two patients who were operated for Angioplasty plus PTCA and were charged for implanting the stents in artery, were cheated as the Doctor had actually not put any stent at all, the Chief Minister issued directions to conduct enquiry in to the matter. 25. In the case on hand as already noticed that after publication of news item that two patients who were operated for Angioplasty plus PTCA and were charged for implanting the stents in artery, were cheated as the Doctor had actually not put any stent at all, the Chief Minister issued directions to conduct enquiry in to the matter. Thereafter Committee was constituted that gave its report and recommended that conclusive evidence of stenting could be ascertained in Cath Laboratory with the assistance of specialists in the field. After this recommendation of Dr. K.C. Goswami, Additional Professor Cardiology AIIMS New Delhi, a specialist in the field, was requested to examine the patients under Cine fluoroscopy. Dr. K.C. Goswami in his report dated July 24, 2001 gave a finding that out of two patients one Shakti Singh was not having obvious visible stent. In view of the report given by a specialist in the subject I prima facie do not see any scope to raise doubt in the course of enquiry. I find it difficult to agree with the submissions of learned Senior Counsel that the State of Rajasthan in placing the petitioner under suspension, had acted irresponsibly or under influence of vested interest. In my considered opinion the departmental enquiry is contemplated in order to dispel all doubts in the mind of general public. Impugned order, to my mind neither suffers from 'suspension syndrome' nor comes in the definition of 'selective suspension' Under Rule 13(1) of the CCA Rules a Government servant can be suspended when the disciplinary proceedings are in contemplation. The petitioner was placed under suspension in view of most extraordinary situation and for compelling reasons after due care and caution. Mere fact that impugned order of suspension does not contain a recital that the Government was satisfied that it was either necessary or desirable to place the petitioner under suspension does not render the said order invalid (vide State of Haryana v. Hari Ram Yadav (supra). In Dr. B.M. Bohra's case (supra) this court indicated that guidelines are not law and need not be followed in strict sense but they have to be kept in mind and the spirit with which they have been issued must form part of consideration required to be made while passing order of suspension. In Dr. B.M. Bohra's case (supra) this court indicated that guidelines are not law and need not be followed in strict sense but they have to be kept in mind and the spirit with which they have been issued must form part of consideration required to be made while passing order of suspension. In the instant case I am of the view that the competent authority did keep in mind the guidelines while passing the impugned order. 26. I cannot accept the extreme argument of Mr. S.R. Bajwa, learned Senior Counsel that the State Government acted at the behest of three influential doctors and one correspondent of a newspaper in placing the petitioner under suspension. Common man now a days, is helpless bewildered and shocked and if disciplinary enquiry is contemplated or initiated and person involved in such enquiry is demobilised for a time being, in order to dispel all doubts in the mind of general public, such action cannot be termed as arbitrary. The State Government acted well within the rights provided to it in service jurisprudence. 27. For the reasons aforementioned I do not find any merit in the writ petition, it stands accordingly dismissed. All the interim orders passed during the pendency of writ petition shall stand vacated. There shall be no order as to costs.Petition dismissed. *******