IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 WP(C).No. 32415 of 2009(V) -------------------------- PETITIONER(S): ------------------- DR.M.K.SHAJI, S/O.P.K.ABDUL KHADIR, AGED 45 YEARS, ASSISTANT SURGEON, TALUK HEAD QUARTERS HOSPITAL, SASTHAMCOTTA, KOLLAM DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.M.SAJJAD RESPONDENT(S): ------------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF HEALTH SERVICES, TRIVANDRUM. 3. THE DISTRICT MEDICAL OFFICER (HEALTH), KOLLAM. GOVT.PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 32415 OF 2009 (V) ===================== Dated this the 12th day of November, 2009 J U D G M E N T Petitioner was working as Assistant Surgeon in Taluk Head Quarters Hospital, Karunagapally during August 2004. On 12.8.2004, he conducted surgery on a young patient by name Vysakh and post operation complications developed and finally both the toes of the patient had to be separated on the 12th day of the operation. 2. Petitioner was placed under suspension on 2/9/2004 and was reinstated in December 2004. He was issued Ext.P2 memo of charges and statement of allegations, which discloses misconduct of gross negligence on the part of the petitioner in discharging his duties resulting in loss of both the toes of a young patient. An enquiry was conducted and in Ext.P4 report submitted by the Additional Director of Health Services, he was found guilty. 3. Thereafter, Ext.P5 show cause notice was issued proposing a punishment to bar three increments with cumulative effect. Like any other delinquent, petitioner filed his explanation WPC 32415/09 :2 : pleading innocence and seeking to be exonerated. Strangely enough, inspite of the findings in the enquiry report, Director of Health Services also apparently came to the rescue of the petitioner by giving Ext.P7 recommendation for reduction of punishment to withhold one increment and that too without cumulative effect. However, the Government imposed the punishment as proposed in the show cause notice as per Ext.P8 order. Petitioner filed Ext.P9 review petition. In that again, the Director attempted to save the petitioner by recommending reduction in the punishment by Ext.P10. But the Government dismissed the review petition by Ext.P11. It is challenging Ext.P8 and P11 order referred to above, the writ petition is filed. 4. The petitioner was proceeded against for gross negligence in the surgery that he conducted on a patient resulting in loss of his both the toes on the 12th day of surgery. The gross negligence is the content of the statement of allegations. Enquiry was conducted and he was found guilty. Show cause notice was issued and it was therefore that adverting to all the facts available, the Government imposed the punishment in Ext.P8. Ext.P11 review also shows that due advertance has been made to WPC 32415/09 :3 : the materials and it was thereafter that the review petition was rejected. Thus, enquiry was conducted in accordance with the principles of natural justice. Finding has been arrived at by the enquiry officer consistent with the evidence, and adverting to all circumstances punishment has been imposed. In these circumstances, the only question is whether the punishment imposed is one disproportionate to the gravity of the misconduct proved against the petitioner. 5. In one sense, punishment is disproportionate to the gravity of misconducts proved against the petitioner in as much as, despite the proved misconduct of gross negligence resulting in a patient loosing both his toes, disciplinary authority has, strangely enough, thought to impose only a punishment of barring 3 increments with cumulative effect. This is really a travesty of justice. Writ petition is only to be dismissed and I do so. ANTONY DOMINIC, JUDGE Rp