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Gujarat High Court · body

2020 DIGILAW 271 (GUJ)

T. K. Vaghela v. State Of Gujarat

2020-02-10

A.S.SUPEHIA

body2020
JUDGMENT : 1. The present writ petition has been filed seeking quashing and setting aside the dismissal order dated 30.09.2005 as well as the appellate order dated 17.03.2006 confirming the dismissal of the petitioner. 2. The brief facts of the case are as under: 2.1 The petitioner was served with a chargesheet dated 07.08.1999 for certain charges relating to the period when he was serving at Sarsa Health Center, Dist.Kheda. Upon service of the chargesheet, the petitioner tendered his explanation on 01.09.1999. After taking into consideration the explanation, the respondent No.2 initiated the disciplinary inquiry by appointing an inquiry officer, who held the inquiry and gave his report on 14.05.2001, wherein out of six (6) charges leveled against him, Charge Nos.3 and 6 came to be proved against the petitioner. The said report was served upon the petitioner in the year 2003, upon which the petitioner made a representation on 07.06.2003. By the order dated 30.09.2005, the petitioner came to be dismissed from service on the basis of the alleged charges leveled against him, more particularly Charge Nos.3 and 6. 2.2 An appeal was preferred by the petitioner under Rule 18 of the Gujarat Civil Services Rules (Disciplinary and Appeal) Rules, 1971 (GCS Rules, 1971) on 08.11.2005, which came to be dismissed and the said order came to be confirmed by the respondent No.1 vide order dated 17.03.2006. 2.3 Charge Nos.3 and 6 are the main charges based upon which the order of dismissal came to be passed against the petitioner, as confirmed in appeal by the respondent No.1. Charge No.3, as is alleged to have been proved, is administrative in nature as it refers to certain procedures to be followed before proceeding with the Medical Termination of Pregnancy (MTP) and Charge No.6 relates to patient, namely Dhulabhai, who was examined by the petitioner as an Outdoor Patients (OPD), when the petitioner was looking after the OPD patient on 12.08.1994. Dhulabhai was examined for diarrhoea, vomiting and dehydration complaints and was advised immediate hospitalization and accordingly, medicines were also prescribed. It is alleged that since the said patient was not properly attended to by the petitioner and the inhouse medico as well as paramedico staff of the Health Center, he died at around 1:10 p.m. 3. Dhulabhai was examined for diarrhoea, vomiting and dehydration complaints and was advised immediate hospitalization and accordingly, medicines were also prescribed. It is alleged that since the said patient was not properly attended to by the petitioner and the inhouse medico as well as paramedico staff of the Health Center, he died at around 1:10 p.m. 3. Learned Senior Counsel Mr.G.M.Joshi with learned advocate Mr.Digant Popat with learned advocate Mr.Jaimin Patel appearing on behalf of the petitioner submitted that there is neither any negligence on the part of the petitioner nor has the petitioner committed any error in diagnosing the said patient and in that view of the matter, the charge, as is leveled against the petitioner, that he has shown negligence or has not acted sincerely is totally false. It was submitted that on the day the patient died there was heavy rush in the hospital, and the petitioner had to treat more than 150 patients. It was submitted that thus, looking to the heavy burden of the work, the impugned order may be set aside. He submitted that the respondents have not taken any action whatsoever against the inhouse staff, medico or paramedico for the negligence or lack of sincerity in treating the said indoor patient, but instead, has dismissed the petitioner blaming him to be negligent. 3.1 Learned Senior Counsel, Mr.Joshi submitted that the disciplinary inquiry came to be initiated by chargesheet dated 07.08.1999 for the irregularities alleged to have been committed by the petitioner in a period from 1990 to 1994. Thus, he has submitted that the disciplinary inquiry is delayed in nature, which precludes the petitioner from remembering and explaining each and every minute details regarding the alleged charges and, therefore, the said disciplinary proceedings being delayed in nature deserve to be quashed and set aside. 3.2 Learned Senior Counsel Mr.Joshi contended that there were various documents which were considered by the inquiry officer while arriving at the guilt of the petitioner. He submitted that such documents were required to be proved, by examining relevant witnesses. It was submitted that the findings are based on no evidence. No witnesses are examined. He has submitted that the charges are proved on the personal opinion of the presenting officer, Mr.Patel as he has referred to the Books and documents. Thus, he submitted that the disciplinary inquiry is required to be set aside. It was submitted that the findings are based on no evidence. No witnesses are examined. He has submitted that the charges are proved on the personal opinion of the presenting officer, Mr.Patel as he has referred to the Books and documents. Thus, he submitted that the disciplinary inquiry is required to be set aside. 3.3 In support of his submissions, learned Senior Counsel Mr.Joshi has placed reliance on the judgments of the Apex Court reported in Rattan Lal Sharma Versus Managing Committee Dr.Hari Ram (Coeducation) Higher Secondary School, 1993 (4) S.C.C. 10 , Sawai Singh vs. State of Rajasthan, 1986 (3) S.C.C. 454 , Kuldeep Singh vs. Commissioner of Police, 1999 (2) S.C.C. 10 , and Roop Singh Negi vs. Punjab National Bank & Ors, (2009) 2 S.C.C. 570 . 4. Learned Assistant Government Pleader Mr.Dhawan Jayswal appearing on behalf of respondent No.1 has submitted that the impugned order does not require any interference since after the petitioner was provided sufficient opportunity to defend his case, the charges leveled against him are proved. He submitted that due to negligence and irregularity committed by the petitioner, one patient Shri. Dhulabhai, who was merely suffering from diahorrea, had passed away. Learned AGP submitted that it is proved in the departmental inquiry that there was sufficient stock of medicines available in the hospital for treating the said patient, he had asked his son to buy the same outside the hospital, which consumed time and hence, due to such action of the petitioner, the concerned patient had passed away. Learned AGP invited the attention of this Court to the statement of the son of deceased patient Dhulabhai. He submitted that there were various irregularities committed by the petitioner while working as a Medical Officer, more particularly treating the patients particularly pregnant women, new born children, patients of malaria, patients of abortion by non observing the procedure of the Medical Termination of Pregnancy Act, 1975. 4.1 With regard to the contentions of delay in initiating the departmental proceedings, the learned AGP has placed reliance on the affidavit filed by the respondent and has submitted that the delay is sufficiently explained, and hence the disciplinary proceedings may not be set aside on the ground of delay. 4.1 With regard to the contentions of delay in initiating the departmental proceedings, the learned AGP has placed reliance on the affidavit filed by the respondent and has submitted that the delay is sufficiently explained, and hence the disciplinary proceedings may not be set aside on the ground of delay. Thus, he submitted that there is sufficient explanation of delay in initiating the departmental proceedings, hence the judgments, on which the reliance is placed by the petitioner, will not apply to the facts of the case. 4.2 Finally, the learned AGP has submitted that the disciplinary proceedings cannot be set aside since the petitioner has not alleged any violation of the statutory rules. He also submitted that the petitioner, being a Medical Officer, cannot take the excuse of being overburdened for the irregularities committed by him. 5. This Court has deliberated on the submissions advanced by the learned advocates for the respective parties. The documents as pointed out by them are also perused. 6. The petitioner has been dismissed from service vide order dated 30.09.2005 after holding a regular departmental inquiry under the provisions of the (GCS Rules, 1971). The petitioner was issued the charge sheet dated 07.08.1999 containing six charges inter alia alleging that during the period between 1993 and 1994, while he was working as a Medical Officer, ClassII, he had committed various irregularities with regard to the treating patients, more particularity the pregnant women by non-observing the provisions of the Medical Termination of Pregnancy Act, 1975, (MTP) and also treating the patients having malaria, etc. One of the specific charges leveled against the petitioner was that on 12.08.1994, one patient Shri Dhulabhai Babarbhai Bhoi was admitted as an indoor patient at 10.00 in the hospital complaining sever diahorrea. It is alleged that though the sufficient stock of medicine was available in the hospital, he advised to bring the medicine outside the hospital, which consumed time and due to lack of timely treatment, he passed away at 1:10. 7. After holding the departmental inquiry, the inquiry officer found the subcharge of charge nos. 1, 2, and charge no. 3 and 6 as fully proved. The following charges are leveled against the petitioner. (i) Charge no.1(a) relates to death of infant due to administration of excess oxytocin injection on 31.12.1993. 7. After holding the departmental inquiry, the inquiry officer found the subcharge of charge nos. 1, 2, and charge no. 3 and 6 as fully proved. The following charges are leveled against the petitioner. (i) Charge no.1(a) relates to death of infant due to administration of excess oxytocin injection on 31.12.1993. (ii) Charge no.1(b) relates to administration of injection oxyticin and opigesin to one Smt.Laxmiben Shanabhai Gomechi though she was not pregnant. It is stated that the aforesaid drug is meant to be administered to a women carrying pregnancy. (iii) Charge no.2(a) relates to treatment of Smt.Zubedaben Akbarmiya, who was suffering from malaria. It is alleged that the petitioner has not administered the requisite medicine meant for malaria. (iv) Charge no.2(b) relates to prescribing irregular doses of medicine meant for malaria to one Smt.Zubedaben Badarbhai. (v) Charge no.2(c) states about prescribing incorrect doses of malaria to one Shri Jagdishbhai Hirabhai Vankar. (vi) Charge no.2(h) relates to treatment of Bhikhiben Chandubhai Chauhan, who was suffering from diahorea and malaria. She was discharged from the hospital without informing the Superintendent and was referred to outside, and she passed away after four days. (vii) Charge no.3 relates to violation of the provisions of MTP, Act, 1975. It is alleged that it is mandatory to consult the panel of two doctors before conducting abortion and in the cases of Smt.Sumitraben Kiklabhai Makwana, Smt.Sumitraben Rmanbhai Parmar and Smt.Manekben Punamsingh Chauhan, he has carried out abortion without consulting the panel. (viii) As per Charge No.4(2) though on 08.03.1994, the petitioner was asked to follow 10 points with regard to follow the provisions of the MTP Act and treating the malaria patients, he has responded in an arrogant manner and continued with his irregularities. (ix) Charge no.4(3) was issued memo on 19.7.1994 to return the Government fan and table but did not do so. (x) Charge no.5(1) has administered to Bhikhiben Chandulal Chauhan Anima though she did not require and hence she suffered paralyzic elipse, thereafter, she was referred to the private hospital without informing the Superintendent. (xi) Charge no.5(2) has referred Harishbhai Bhurabhai to a private Dr.G.M.Mannari by writing a note. His x-ray was taken and though he was not having any stone, he was referred to the private hospital. (xii) Charge no.6(5) pertains to death of Shri Dhulabhai as referred to hereinabove. (xi) Charge no.5(2) has referred Harishbhai Bhurabhai to a private Dr.G.M.Mannari by writing a note. His x-ray was taken and though he was not having any stone, he was referred to the private hospital. (xii) Charge no.6(5) pertains to death of Shri Dhulabhai as referred to hereinabove. Thus, the aforementioned charges, which are very serious in nature, are proved against the petitioner after holding a departmental inquiry. The first and foremost contention raised by learned Senior Counsel Mr.Joshi is with regard to delay caused in issuing the chargesheet. 8. I may refer to the various communications in this regard Vide communication dated 24.10.1994, the Medical Superintendent of the Community Health Center, Sarsa sent his remarks on the complaints made against the petitioner to the Commissioner, Health, Medical Services and Medical Education (Health), Gandhinagar regarding irregularities committed by the petitioner in treating the patients, particularly pregnant women, new born children, patients for abortion non-observing the provisions of the Medical Termination of Pregnancy Act, 1975, etc. and recommended to take necessary action on the petitioner. The Commissioner forwarded the communication of the Medical Superintendent sent on 24.10.1994 to the Government on 10.03.1995 to take necessary departmental action. Thereafter, the State Government took serious note of the aforesaid allegations levelled against the petitioner and called for the record with certain clarifications vide letters dated 04.04.1995, which was replied on 23.05.1995. The Government again called for certain details on 02.07.1996, which was replied to on 23.10.1996. Upon finding that there is no specific conclusion / observations made by respondent No.2, a proposal was sent with papers to the Commissioner on 22.11.1996 and reminders were sent on 22.01.1997 and 15.09.1998. Vide communication dated 07.01.1999, the respondent No.2 replied to the Under Secretary, Health and Family Welfare Department, Gandhinagar. Upon getting the substantial proof that the petitioner has committed negligence in his duty, the Under Secretary forwarded the proposal of issuing the chargesheet to the Gujarat Vigilance Commission on 23.02.1999, who in turn granted the permission on 09.03.1999 and the said chargesheet came to be issued to the petitioner on 07.08.1999 by the respondent No.2. Thus, it cannot be said that there is absolutely no explanation of delay by the respondent authorities. In the considered opinion of this Court the delay is well justified, and hence the disciplinary proceedings cannot be set aside on the ground of delay. Thus, it cannot be said that there is absolutely no explanation of delay by the respondent authorities. In the considered opinion of this Court the delay is well justified, and hence the disciplinary proceedings cannot be set aside on the ground of delay. There were various irregularities committed by the petitioner during his tenure and the same required proper verification before the initiation of the disciplinary proceedings. 9. At this stage, I may with profit refer to the observations of the Supreme Court with regard to setting aside the disciplinary proceedings on the ground of delay. The Apex Court in the case of Shri Anant R.Kulkarni vs Y.P.Education Society, 2013 (6) S.C.C. 515 has observed thus: “8 The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a chargesheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, must be carefully examined, taking into consideration the gravity/magnitude of charges involved therein. The Court has to consider the seriousness and magnitude of the charges and while doing so the Court must weigh all the facts, both for and against the delinquent officers and come to the conclusion, which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the said proceedings are allowed to be terminated, only on the ground of a delay in their conclusion.” Thus, in the present case, it cannot be held that there was an unexplained delay of five years in initiating the departmental proceedings. As observed hereinabove, the authorities have in fact waited for ascertaining the correct facts of irregularities committed by the petitioner, and after ascertaining all the irregularities, he was issued the chargesheet in the year 1999. As observed hereinabove, the authorities have in fact waited for ascertaining the correct facts of irregularities committed by the petitioner, and after ascertaining all the irregularities, he was issued the chargesheet in the year 1999. Hence, the disciplinary proceedings cannot be set aside on the ground of delay. 10. A careful analysis of the inquiry officer’s report reveals that the entire inquiry proceedings are premised on the medical case papers of the patients. The case papers reveal the illness of the patients and the course of medical treatment adopted by the petitioner while treating them. All the medical case papers are supplied to the petitioner. The petitioner has not raised any grievance with regard to nonsupply of the medical papers or he has not doubted the veracity of the medical case papers. He has only raised his defence with regard to the treatment administered by him to such patients. 11. In the considered opinion of this Court, the non-examination of the witnesses will not prove fatal to the departmental proceedings as the entire proceedings are based on the medical case papers of the patients, who have undergone the treatment administered by the petitioner. The petitioner was given the opportunity to explain the line of treatment administered by him to the patients suffering from a particular illness. The petitioner has not denied that the medical case papers do not relate to any patients, who were under his treatment. The petitioner has tried to defend his line of treatment administered by him. The allegations against him was about violation of the procedure, which was required to be followed as per the medical practice, viz. he has administered incorrect drugs to the patients suffering from malaria and he has also not followed the procedure prescribed under the MTP Act. Under such circumstances, non-examination of the witnesses will not be fatal, as the entire evidence is premised on the documentary evidence. The petitioner was supplied such documents and in his defence, he has only defended his mode of treatment and has not raised any suspicion about the medical case papers. In wake of the fact that the petitioner has not raised any suspicion with regard to the case papers, and has accepted them as genuine and further restricted his defence apropos his treatment, the disciplinary proceedings cannot be vitiated on the ground that no witnesses are examined. In wake of the fact that the petitioner has not raised any suspicion with regard to the case papers, and has accepted them as genuine and further restricted his defence apropos his treatment, the disciplinary proceedings cannot be vitiated on the ground that no witnesses are examined. In fact charge no.6, which is the most serious charge relating to death of one patient due to negligence of the petitioner, is proved after examination of the relevant witnesses. 12. The charge, which can prove to be the most fatal to the petitioner is the charge no.6, which relates to the death of Shri Dhulabhai caused by the remissness of the petitioner. Even if all other charges are ignored, the established Charge no.6 against the petitioner is suffice to justify the punishment of dismissal. Two vital witnesses are examined in the departmental inquiry for proving the said charge; one was Shri Nileshbhai Parekh, who was serving as Pharmacist at the Community Health Center, Sarsa, where the petitioner was serving, and another is Prabhatbhai Dhulabhai, the son of deceased Shri Dhulabhai, who was admitted in the Health center for diahorrea and vomiting. The son of Shri Dhulabhai has specifically deposed that the petitioner had asked him to bring the medicines outside the hospital by writing the prescription, and accordingly he had left to the market by leaving his cousin Ishwarbhai Shankerbhai. He has narrated that till 11.00 a.m. in the morning he was not administered the treatment, and hence he passed away at 12:30 noon. Pharmacist Shri Nileshbhai A. Parekh has deposed that sufficient stock of medicine was available in the hospital. The inquiry officer, after recording the aforesaid statement, has opined that if the petitioner had given appropriate medicine immediately to the deceased his life could have been saved, but the petitioner asked his son to fetch the medicine from outside. No discrepancy is found in the proceedings with regard to the findings of the said charge. Hence, assuming that the departmental proceedings are initiated for this sole charge, and if the same is proved by following the statutory rules, without being tainted with violation of principles of natural justice; the same is adequate for attracting the penalty of dismissal. The petitioner was serving as a Medical Officer, ClassII in the Government Health Center situated in a remote village. The petitioner was serving as a Medical Officer, ClassII in the Government Health Center situated in a remote village. The only hope for the local residents at the time of ailment would be the Government Health Center since they are unable to afford private treatment. In such circumstances, the petitioner has illustrated grave apathy and callousness in treating the poor patients. Being a doctor, he is supposed to be more compassionate and sensitive in treating the poor, who perceive him not less than God. These poor patients approach the hospitals run by the State Government with high hopes and regards, but due to such approach of the medical officer, the name of the State, which runs the hospitals, gets tainted, and the patients prefer to undergo treatment in private hospitals even at the risk of taking debt. Hence, the excuse tendered by the petitioner of being overburdened in his work, which led to negligence resulting in the death of the patient, cannot be countenanced. 13. Now, I shall make an endeavor to distinguish the decisions cited by the learned Senior Counsel in favour of the petitioner. In the case of Sawai Singh (supra), the Apex Court has held that in the departmental inquiry, there must be fair play in action and there must be investigation to the charges consistent with the requirement of the situation in accordance with the principles of natural justice. The petitioner has not alleged any violation of statutory rules in his case. The inquiry proceedings reveal that the petitioner was afforded full opportunity of hearing to defend his case. No objection is raised by him before the Inquiry Officer with regard to violation of principles of natural justice. Hence, the decision of the Apex Court will not apply to the case of the petitioner. 13.1 The decision of Rattan Lal Sharma (supra) will not come to the rescue of the petitioner since the same does not apply to the facts of the case. In the case before the Apex Court the facts suggest that there was likelihood of bias since the delinquent has raised an objection to one of the members of the Managing Committee, who was inimical towards him. In the instant case, nothing is pointed out from the inquiry proceedings with regard to any objection taken by the petitioner before the inquiry officer expressing any bias towards him. In the instant case, nothing is pointed out from the inquiry proceedings with regard to any objection taken by the petitioner before the inquiry officer expressing any bias towards him. Thus, the aforenoted decision will not apply to the facts of the case. 13.2 In the case of Kuldeep Singh (supra), the punishment order was set aside since the findings of the Inquiry Officer was not supported by any evidence. In the present case, the record reveals that the findings of the Inquiry Officer are premised on cogent and reliable evidence. 13.3 The decision in case of Roop Singh Negi (supra) will also not apply to the petitioner, since the decision of the disciplinary authority and the findings of the Inquiry Officer are based on the evidence arrived at after granting full opportunity of hearing to the petitioner and also examining the relevant witnesses. 14. This Court while exercising its jurisdiction under Articles 226 of Constitution of India cannot venture into the field of experts and impose its opinion on the authorities. The inquiry officer, the presenting officer and the petitioner belong to Health Department. The Court cannot go into validity or legitimacy of the treatment followed by the petitioner. The petitioner was allowed full opportunity of defending his case and to put forth his defence. The Supreme Court in the case of Union Of India vs. P.Gunasekaran, 2015 (2) S.C.C. 610 has laid down the parameters for the High Court while exercising its jurisdiction under Article 226/227 of the Constitution of India with regard to the judicial review in disciplinary proceedings. The Apex Court has held thus: “13 Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.” 15. Under Article 226/227 of the Constitution of India, the High Court shall not: (i). reappreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; (v). interfere, if there be some legal evidence on which findings can be based. (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience. 16. The facts of the case do not suggest that the inquiry has been held by an incompetent authority or there is any violation of principles of natural justice. The entire petition is bereft of the contention alleging any violation of statutory regulations, and it cannot be said that the findings are based on no evidence. 16. The facts of the case do not suggest that the inquiry has been held by an incompetent authority or there is any violation of principles of natural justice. The entire petition is bereft of the contention alleging any violation of statutory regulations, and it cannot be said that the findings are based on no evidence. Hence, if such grounds are missing, then, as enunciated by the Apex Court, the High Court, while exercising its jurisdiction under Articles 226/227 of the Constitution of India, cannot reappreciate the evidence, go into the adequacy or reliability of evidence and interfere with the findings of the inquiry officer and go into the proportionality of punishment unless it shocks its conscience. In the instant case, it is not established that the punishment of dismissal shocks the conscience of the court looking to the misconduct which is proved. 17. The writ petition fails legal scrutiny, hence is dismissed. Rule is discharged. There shall be no order as to costs.