IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 1003 of 2007(S)
1. MR.AHAMMED KUTTY,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. PRESIDENT,
3. PRESIDENT,
4. SECRETARY,
5. PRESIDENT,
For Petitioner :SMT.SREEKALA KRISHNADAS
For Respondent :SRI.SAJEEVU MATHEW
The Hon'ble the Chief Justice MR.V.K.BALI
The Hon'ble MR. Justice M.RAMACHANDRAN
Dated :11/01/2007
O R D E R
V.K.Bali,C.J. & M.Ramachandran,J.
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W.P.(C).Nos.1003 of 2007-S, 1023 of 2007-S,
1067 of 2007-S & 1249 of 2007-S
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Dated, this the 11th day of January, 2007
JUDGMENT
V.K.Bali,C.J. (Oral)
By this common order, we propose to dispose of four
connected petitions bearing Nos.1003, 1023, 1067 and 1249 of
2007. The bare minimum facts, however, that need necessary
mention have been extracted from W.P.(C).No.1003 of 2007-S,
Ahmedkutty v. State of Kerala and others. The petitioner is
an Advocate, who is stated to be widely involved in social
activities. Through the present petition filed by him, he invited
the attention of this Court to the illegal, irregular and most
felonious attitude of organisation of doctors, from whom the
whole society expects great responsibility and nobility. It is the
case of the petitioner that one of the greatest achievement of
Kerala Model development is the public health system which was
developed and patroned by the Government of Kerala. This
system imparted a health security consciousness, primarily
WP(C).No.1003 of 2007-S etc. – 2 –
among the poor people in the State. The well dedicated and
scholared doctors who followed this profession is considered as
very sacred, but by passage of time the system has begun to
change. Now, one of the extreme steps likely to happen is the
strike called on by the Indian Medical Association, Kerala Branch
on 12.01.2007. The strike is stated to be in connection with the
arrest against a doctor in Medical College, Kottayam on charges
of corruption, negligence and consequential death of a young
man. The police has registered a case against him. He was also
suspended from service. Against this, the organisations of doctors
started agitation by conducting strikes by all the doctors at all the
five Government Medical Colleges following a call given by the
Kerala Medical College Teachers’ Association. This strike seriously
disrupted the functioning of all the Government Medical Colleges
and is still continuing to affect the public in large scale. On the
same date, whole doctors, including juniors and P.G. students of
Kottayam Medical College went on a 24-hours strike. That strike
practically paralysed the whole function of Medical College,
including the out patient department. Thousands of poor people
were the victims of that strike. The news item appeared in “the
WP(C).No.1003 of 2007-S etc. – 3 –
Hindu” dated 8.1.2007 has been produced along with the
petition. Apart from continuing hazard, now the Indian Medical
Association has called for a full day strike by all the doctors
including the private doctors. On 7.1.2007, the Indian Medical
Association (I.M.A.) had conducted a press conference at Kochi
and announced a ‘medical strike’ on 12.1.2007. The prayer in this
petition is to issue a writ in the nature of mandamus declaring
the strike as alleged to be conducted by the doctors to be illegal
and also to issue a writ in the nature of mandamus directing the
1st respondent-State of Kerala to invoke the provisions of
Essential Services Maintenance Act.
2. Pursuant to notice issued by this Court, the 1st
respondent-State of Kerala has filed a statement. We need not
delve upon the contents of the statement made by the State, as
suffice it to mention that the Minister (Health & Social Welfare)
on 6.1.2007 at 4.30 p.m. along with members of Kerala
Government Medical College Teachers’ Association has given the
following suggestions:-
“(1) Based on the complaint raised by KGMCTA that
the guidelines issued by the Government with regard
WP(C).No.1003 of 2007-S etc. – 4 –
to the registering of cases and investigation in the
matter of medical negligence have not been followed
by the District Authorities in the arrest of the doctor
following the death of a youth in Kottayam Medical
College, Government agreed that the police
investigation would be entrusted to the Crime Branch.
The Home Department would be requested for
necessary orders in this regard.
(2) The incident of death will be referred to the state
level Apex Committee comprising DHS, DME,
Addl.DHS (Vig.) and Director General of Prosecution.
The Committee will examine the various aspects of the
case especially as to whether any negligence has
occurred on the part of doctors including Dr.Asokan in
giving ample treatment to the patient.
(3) The apex committee will be requested to give
their report to the Investigating Officer and
Government within 30 days.
(4) Instructions will be issued that the procedures
laid down as per the Supreme Court verdict and
guidelines/circulars issued in this regard by State
Government should be strictly followed in future in the
matter of investigation and filling of charge sheet in
the cases relating to medical negligence by Doctors”.
3. The grievances of the doctors, if any, it appears, is
being redressed by the Government itself. The decisions or
suggestions by the Government apart, it is always open to the
aggrieved doctor or association of doctors to approach different
forums, be it Government or the Court, if it may find that
WP(C).No.1003 of 2007-S etc. – 5 –
something wrong has been done either to the members of their
association or an individual doctor. This decision or suggestion
given by the Government aforesaid on 6.1.2007 is known to all
the doctors of the State.
4. We had issued notice to respondents 3, 4 and 5 and
they are all represented by their respective counsel. 5th
respondent has filed the counter affidavit. It is pleaded therein
that the Indian Medical Association has declared an agitation on
12.1.2007 and being part of I.M.A., the 5th respondent has also
decided to strike on that day. Even though it is pleaded that the
members of K.G.M.O.A. will not deny treatment to any persons
coming to the hospital casualty and they will take the routine
rounds in the hospital and that they will do all emergency
operations also, the factum of going on strike is not denied. It
has rather been admitted.
5. We have heard learned counsel for the parties at
some length. During the course of argument, learned counsel
representing the Indian Medical Association states that this
Association itself had called off strike on 12.1.2007. The learned
counsel representing the 5th respondent, the Kerala Government
WP(C).No.1003 of 2007-S etc. – 6 –
Medical Officers’ Association states that the members of said
association would abide by the decision taken by the Indian
Medical Association. In view of the stand taken by the
respondents – Indian Medical Association and Kerala Government
Medical Officers’ Association – as mentioned above, we are
sanguine that no strike shall be adverted to on 12.1.2007. There
may not be, thus, any need to deal with these matters, but
before we part with this order, we would like to mention that
adopting to strike by doctors is prohibited by Rule 86 of the
Government Servants’ Conduct Rules, 1960. The same reads
thus:-
“86. Government servants not to partake in any
strike.- No Government servant shall engage himself
in any strike or incitement there to or in any similar
activities. Government servants should not engage
themselves in any concerted or organised slowing
down or attempt at slowing down Government work
or in any act which has the tendency to impede the
reasonably efficient and speedy transaction of
Government work. Concerted or organised refusal on
the part of Government servants to receive their pay
will entail severe disciplinary action”.
We may also observe that the services by doctors are essential
WP(C).No.1003 of 2007-S etc. – 7 –
services and if, therefore, the doctors of the State may strike, the
Government would be well in its right to invoke the provisions of
the Essential Services Maintenance Act and take action against
them accordingly. We may also mention that in a noble
profession which is totally service oriented, strike cannot be
possibly resorted to. The members of the noble profession who
are expected to serve the people cannot leave in lurch the
patients at the time of their extreme difficulty, pain and suffering.
We are sanguine that the doctors or the members of the
association of the Indian Medical Association and Kerala
Government Medical Officers’ Association would always
remember that albeit agony for themselves, they have to render
service to the society. We can visualise that in certain cases
doctors may be victims of harassment by miscreants, but they
require to be aware of the doors of remedial measures that are
available to them. They being engaged in a noble profession,
should invariably seek remedy from an appropriate forum
depending on the issue, instead of going on strike or getting onto
streets shouting slogans.
In view of the present stand taken by the Indian
WP(C).No.1003 of 2007-S etc. – 8 –
Medical Association and Kerala Government Medical Officers’
Association so as not to go with strike on 12.1.2007, we close
these matters. The petitioners are at liberty to file fresh petitions
with regard to any other prayers, if they so desire.
V.K.Bali
Chief Justice
M.Ramachandran
vku/- Judge