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2018 DIGILAW 2221 (RAJ)

Sunita Jain W/o Rakesh Jain v. State of Rajasthan

2018-11-26

G.R. MOOLCHANDANI, PRADEEP NANDRAJOG

body2018
JUDGMENT 1. Heard learned Counsel for the parties. 2. Challenge in the appeal is to an order dated 20.07.2011 dismissing the writ petition filed by the appellant in which she had challenged penalty levied upon her on 03.03.2010 of stoppage of two annual grade increments with cumulative effect. The learned Single Judge has held that the report of Enquiry Officer indicts the appellant of negligence, in that, after the anaesthetist administered anesthesia to the patient the Laparoscopic Tubectomy operation was performed by the appellant after two and a half hours; by which time the effect of anesthesia had waned, causing great discomfort to the patient. 3. Dismissing the writ petition the learned Single Judge has held that this is a finding of fact and cannot be gone into by the Court by re-appreciating evidence as an appellate authority. 4. Vide charge memo dated 27.12.2007 two charges were alleged against the appellant. The charge No.1 was of conduct unbecoming of a doctor. The second charge was of performing the surgery in a negligent manner. The statement of imputation concerning the first charge shows that the same was that when the patient and her husband visited the nursing Center where appellant was a doctor, she demanded 2000/-. Suffice it to state that said charge has not been proved and as per the enquiry report dated 21.08.2009 the appellant has been exonerated. 5. Concerning the second charge the statement of imputation is to the effect that on the date of the operation the patient was wheeled into operation theatre at 10.A.M. The anaesthetist administered anesthesia. The appellant walked outside and returned at 12.30 P.M. and thereafter commenced the operation by which time the patient had re-gained consciousness. The operation was performed causing discomfort to the patient. 6. The report of the Enquiry Officer notes that the complainant withdrew the complaint. The complainant was none other than the husband of the patient. He did not support his complaint which gave birth to the charge-sheet. Concerning the evidence on the second charge the enquiry report notes that two preliminary enquiries were conducted and were the only evidence before him. The analysis of the two enquiry reports which were exhibited as P-2 and P-3 by the Enquiry Officer reads as under:- 7. He did not support his complaint which gave birth to the charge-sheet. Concerning the evidence on the second charge the enquiry report notes that two preliminary enquiries were conducted and were the only evidence before him. The analysis of the two enquiry reports which were exhibited as P-2 and P-3 by the Enquiry Officer reads as under:- 7. Translated into English the findings would be as under:- "From Ex.D-2 and Ex.D-3 it is proved that from the time when injunction was administered till operation there was no negligence. In Exhibit P-3 and Exhibit P-2 also the investigating officers in their investigation reports have not stated that a mistake was committed in operation and delinquent has been found guilty in discharge of duties and committing negligence. But it is also not clearly stated as to what was the negligence and how it was committed by the erring officer. Therefore it cannot be said beyond doubt that the erring officer has not committed negligence. In this respect since both the investigating officers have admitted in their report that erring officer was negligence in discharge of duties, therefore, the said allegation regarding committing negligence is partially proved against the erring officer.." 8. The last sentence in the report of the Enquiry Officer is extremely confusing for the reason it has been written in a negative language. The sentence that therefore without doubt it cannot be said that the delinquent has not been negligent has obviously led the learned Single Judge to hold that the charge against the appellant was proved. 9. A perusal of the findings arrived at by the Enquiry Officer shows that the offending sentence is in direct contradiction with the positive finding returned in the previous sentence. In the previous sentence the enquiry report that the only incriminating material were the two preliminary enquiry reports which held the appellant to be guilty of negligence but sans any discussion of evidence. Yet inspite of thereto the Enquiry Officer has committed the same wrong. 10. We have perused the enquiry report and we find that there is no evidence whatsoever led that the patient was administered anesthesia by the anaesthetist at 10.00 A.M. and that the operation was performed by the appellant two and a half hours thereafter i.e. at 12.30 P.M. 11. We agree with the appellant that it is a case of no evidence. 12. The appeal is allowed. We agree with the appellant that it is a case of no evidence. 12. The appeal is allowed. Impugned order dated 20.07.2011 is set aside. Writ petition filed by the appellant is allowed. Penalty of withholding two annual grade increments with cumulative effect is set aside. Consequences shall follow. 13. Since the penalty has been given effect to, the salary of the appellant shall be refixed ignoring the penalty. Arrears shall be paid within six weeks.