A BHAGAVATHI AMMAL Vs. SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT CHENNAI

JUDGEMENT

(1.) The applicant is a Doctor by profession. She was working as Assistant Surgeon in the Head Quarters Hospital, Tuticorin. By proceedings of the Director of Medical and Rural Health Services, Madras, the second respondent herein dated 8.2.1995, she was placed under Suspension on the ground that while attending two family welfare sterlisation operations, due to the carelessness and negligence on her part, two patients have died. A charge memo dated 17.7.1995 under Rule 17 (b) was issued containing three charges. An oral enquiry was conducted against the petitioner. The enquiry officer held that two charges are partially proved. Based on the report of the enquiry officer, the first respondent, by the impugned order dated 16.1.1998 passed an order removing the petitioner from service. When opinion was sought for from the Tamil Nadu Public Service Commission, the Commission advised that the disciplinary proceedings taken against the delinquent officer may be re-started from the stage where the flaw pointed out by the Commission may be pursued. According to the petitioner, the Government failed to take into account the opinion given by the Commission and awarded the punishment arbitrarily. Aggrieved by the aforesaid order, the petitioner has filed O.A. No. 8076 of 1998 before the Tribunal. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as W.P. No. 38731 of 2006.

(2.) It was contended by the petitioner that this is a case of no evidence and none of the submissions made by the petitioner was considered by the first respondent before passing the impugned order, which amounts to violation of principles of natural justice, equity and fairplay. It was further contended that a small injury in a case of laparoscopic procedure in any intra abdominal organ is inherent in such surgical complication. Therefore, it cannot be attributed to the negligence and carelessness of the petitioner. The main contention raised by the petitioner was that the petitioner has requested the enquiry officer to examine an eminent laparoscopic surgeon in order to distinguish the negligence of duty and accident as an eminent laparoscopic surgeon alone will be in a position to give a clear picture about the surgical complications, but the said request of the petitioner was denied by the Enquiry Officer, nor the enquiry officer has taken the assistance of any expert opinion before concluding the enquiry, hence, the conclusion of the enquiry officer itself is vitiated. It was further contended that the enquiry officer did not give any valid reasons for coming to the conclusion or afforded sufficient opportunity to the petitioner to put forward her defence and to prove her innocence. The findings of the enquiry officer is only on the basis of suspicion, surmises and conjencture. When the enquiry officer held it is the collective responsibility of all the three Doctors, who had attended the patient, the petitioner alone cannot be held responsible entirely for the death. Therefore also, the disciplinary proceedings are vitiated. Lastly, she contended that the co-delinquent Doctors were examined against the appellant, which is contrary to the well settled principles.

(3.) A detailed reply affidavit was filed by the respondents contending that as per the report of the enquiry officer, the petitioner was mainly responsible for the two death due to her negligence and carelessness. The fact remains that the petitioner d id not suspect the bowel injury in the light of clinical symptoms observed by her on 9.5.1994 at Government Hospital, Tiruchendur and failed to advise Dr. Alamelu, Assistant Surgeon to refer the case to Head Quarters, Tuticorin immediately. Had the petitioner suggested to refer the case as soon as she examined the patient, the death could have been avoided. Therefore, the Government thought it fit to recover the compensation sanctioned by the Government to the two patients based on the directions of the National Human Rights Commission from the petitioner. It was further contended that the Enquiry Officer himself is a Doctor and therefore he is a competent person to conduct the enquiry. Further, the enquiry officer himself is fully acquainted with the treatment and the procedures laid down therein. Therefore, the petitoner has no right to insist the enquiry officer to obtain the opinion of other surgeon while the Enquiry Officer is in the medical cadre and acquainted with the treatment aspect. Since sufficient opportunities have been granted in the enquiry proceedings, the order passed by the respondent, based on the report of the enquiry officer and on consideration of the facts and circumstance of the case is valid and interference of this Court is not warranted.