IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11..01..2011
Coram:
The Honourable Mr.M.Y.EQBAL, CHIEF JUSTICE
and
The Honourable Mr.Justice T.S.SIVAGNANAM
Writ Appeal No. 650 of 2010
and
M.P.No.1 of 2010
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Dr.R.Padmavathy . Appellant
vs.
1. The Secretary to Government,
State of Tamil Nadu,
Health and Family Welfare Department,
Fort.St.George, Chennai 9.
2. The Director of Medical and Rural Health Services,
Chennai 6. . . Respondents
Appeal filed under Clause 15 of the Letters Patent against the order dated 04th August, 2009 passed in W.P.No. 42264 of 2006 (T) (O.A.No.3675 of 1999) on the file of this Court.
For Appellant ::::Mr.C.Selvaraju, Senior Counsel
for M/s.C.S.Associates
For Respondents :::: Mr.Raja Kalifulla, Govt. Pleader
Assisted by Ms.M.Sneha,
Government Advocate
J U D G M E N T
The Honble Chief Justice
and
T.S.Sivagnanam, J
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The appellant, a Gynecologist in Government Hospital, Mettur Dam, was subjected to a departmental proceeding on the charges of demanding bribe and dereliction of duty, and on the basis of the charges proved against her, she was dismissed from service.
2. The charges against the appellant are that on 18.9.1995 at about 9.00 p.m. a pregnant lady by name Tmt.Boodhammal, aged 18 years, came to the Government Hospital, Mettur Dam for confinement. A staff nurse examined the case and informed the appellant over phone that the pregnancy was in advanced stage. The appellant without attending the patient immediately informed the staff nurse over phone to get ready for cesarean operation and informed the patient to make ready a sum of Rs.1500/- for purchase of materials, though the expenditure would be only about Rs.250/-. When the patient could not afford to pay the said amount, the appellant instructed the staff nurse to refer the patient to Salem for further treatment, as a result of which the patient delivered a dead baby on the road side. The second charge against the appellant was that even after the patient admission in the Mettur Dam Hospital after road side delivery, the appellant failed to give follow up treatment, and thereby she was charged of dereliction of duty. Consequently, the appellant was put under suspension and a departmental enquiry was initiated, in which she denied the charges and took a stand that since it was late night, she could not attend the patient and further, she never demanded any money. According to the appellant, when she received a call from the staff nurse at about 9.30 p.m. about a pregnant lady with advanced pregnancy stage, she immediately directed the staff nurse to examine the pregnant lady and to get the operation theatre ready. It was contended that in the Government Hospital, Mettur Dam the material meant for operation was not available, and therefore, the patient and his attendant was instructed to get the same from the market.
3. It is pertinent to mention here that the staff nurse and also the Doctor on duty were subjected to departmental proceeding along with the appellant. The charges framed against the appellant ware proved in the departmental enquiry and on the basis of that, she was dismissed from service.
4. The said order of dismissal was challenged by the appellant in the writ petition. The learned single Judge, after considering the entire facts of the case, and also the evidence adduced in the departmental enquiry, came to the conclusion that the charges framed against the appellant were fully proved, and that having regard to the gravity of the charges levelled against the appellant, the same needs no interference by this Court. Hence, this appeal.
5. Learned senior counsel appearing for the appellant assailed the impugned judgment passed by the learned single Judge mainly on the ground that the learned single Judge failed to re-appreciate the evidence, and came to the conclusion that the finding is perverse in law. Learned counsel drawn our attention to the evidence adduced in the enquiry and submitted that in case of re-appreciation of evidence, one can come to the conclusion that the finding suffers from perversity.
6. The scope of judicial review of the administrative decision particularly the disciplinary inquiry and the order imposing punishment by the authority has been discussed by the Supreme Court in catena of decisions. Normally Courts should not interfere with the administrative decisions unless it was illogical and suffers from procedural impropriety or is shocking to the conscious of the Courts. When the administrative action is challenged as arbitrary, the question will be whether the administrative order is rationale or reasonable and the test would be Wednesburys test. In the case of Chairman and Managing Director, United commercial bank and others vs. P.C. Kakkar [2003 AIR SCW 944], the Supreme Court observed: –
11. The common thread running through in all these decisions is that the court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.
7. In the case of Tilak Chand Magatram Obhan vs. Kamala Prasad Shukla and others [1995 Supp (1) S.C.C.21], strong and hostile bias was alleged and the Supreme Court while dealing with the question of bias observed as under: –
There is, however, a distinction between a defect in the enquiry and a lapse which almost destroys the enquiry. Where the lapse is of the enquiry being conducted by an officer deeply biased against the delinquent or one of them being so biased that the entire enquiry proceedings are rendered void, the appellate authority cannot repair the damage done to the enquiry. Where one of the members of the Enquiry Committee has a strong hatred or bias against the delinquent of which the other members know not or the said member is in a position to influence the decision-making, the entire record of the enquiry will be slanted and any independent decision taken by the appellate authority on such tainted record cannot undo the damage done. Besides where a delinquent is asked to appear before a committee of which one member is deeply hostile towards him, the delinquent would be greatly handicapped in conducting his defence as he would be inhibited by the atmosphere prevailing in the enquiry room. Justice must not only be done but must also appear to be done. Would it so appear to the delinquent if one of the members of the Enquiry Committee has a strong bias against him? And we repeat the bias must be strong and hostile and not a mere allegation of bias of a superior having rebuked him in the past or the like.
8. In the case of Union of India vs. Sardar Bahadur reported in 1972 (4) SCC 618, the Supreme Court observed:- (SCC page 623, para.15)
A disciplinary proceeding is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that lender was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. The Letters Patent Bench had the same power of dealing with all questions, either of fact or of law arising in the appeal, as the Single Judge of the High Court. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. A finding cannot be characterised as perverse or unsupported by any relevant materials, if it was a reasonable inference from proved facts.
9. The Supreme Court reiterated its earlier view in the case of Union of India vs. Parma Nanda reported in 1989 (2) SCC 177 and observed: – (SCC page 189, para 27)
We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the inquiry officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the inquiry officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.
10. In the instant case, indisputably, a pregnant lady, aged 18 years, came to the hospital for her first delivery. The duty doctor immediately contacted the appellant over phone and informed her that on examination of the patient, it was found that umbilical cord was prolapsed and cervix 2/5 dilated. The appellant informed the staff nurse to keep ready for cesarean, and further asked the party to make ready an amount of Rs.1500/- and Rs.300/-. According to the mother of the patient, she requested to help them, as they are not able to spend any money. Since the patient and her relatives were not in a position to pay any amount, the patient was referred to Government Mohan Kumaramangalam Medical College Hospital, Salem. On the way, she delivered a dead child on the road. It is, further, clear that in a disciplinary action taken against the appellant along with the duty doctor and the staff nurse, the patient relatives had deposed that they were asked to arrange money. The staff nurse and the duty doctor have also not disputed that they received information from the appellant over phone, and keep the operation theatre ready and also asked the patient to arrange the aforementioned amount. Based on this evidence, the charges were found to be proved.
11. The learned single Judge in the impugned judgment has referred to various decisions of the Supreme Court where the Professional Ethics of a Doctor has been discussed. In our view also, the appellant being a Medical Officer hold the position of trust where honesty and integrity are inbuilt requirements of functioning. It is not expected from a Doctor to treat the patient carelessly or to say casually, especially a pregnant lady who had rushed to the hospital with labour pain, and because the patient could not pay the money demanded, she had to go to another hospital and on the way she delivered a dead child on the road.
12. In Regional Manager, U.P. SRTC vs. Hoti Lal, reported in 2003 (3) SCC 605 the Supreme Court observed: – ( SCC page 614, para 10)
If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable.
13. As stated above, the appellant being a medical officer, whose legal and moral duty is to give best treatment to the patient. In this profession, absolute devotion, diligence, integrity and honesty needs to be preserved. It is for this reason, when the medical officer commits this kind of misconduct, they should be dealt with iron hand, and there is no question of dealing with the matter leniently.
14. On the facts of the case, we fully agree with the view taken by the learned single Judge affirming the punishment imposed on the appellant for the misconduct committed in the capacity of a Doctor. We do not find any reason to differ with the punishment imposed in the departmental enquiry.
15. For the reasons aforesaid, we do not find any merit in this appeal, which is accordingly dismissed. No costs. Consequently, miscellaneous petition is closed.
Pv/-
Copy to:
1. The Secretary to Government,
State of Tamil Nadu,
Health and Family Welfare Department,
Fort.St.George, Chennai 9.
2. The Director of Medical and Rural Health Services,
Chennai 6