IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 WP(C).No. 29515 of 2009(H) -------------------------- PETITIONER(S): --------------- DR.C.H.S.MANI ANESTHETIST, E S I HOSPITAL ,PEROORKADA THIRUVANANTHAPURAM ,RESIDING AT T.C. 37/1777 (I) ADI KESAVA KRIPA, WEST STREET, THIRUVANANTHAPURAM. BY ADV. SRI.J.HARIKUMAR RESPONDENT(S): --------------- 1. THE DIRECTOR OF INSURANCE MEDICAL SERVICES, THIRUVANANTHAPURAM-14. 2. DR.N.K.SYAMALA, JOINT DIRECTOR AND VIGILANCE DIRECTOR INSURANCE MEDICAL SERVICES THIRUVANANTHAPURAM (FORMERLY THE SUPERINTENDENT E S I HOSPITAL, PEROORKADA. 3. DR.SUGANDHI GOPINATH, INSURANCE MEDICAL OFFICER, E S I HOSPITAL, PEROORKADA. 4. DR.PRABHA GOPINATHAN, ASSISTANT INSURANCE MEDICAL OFFICER E S I HOSPITAL, PEROORKADA. GOVERNMENT PLEADER SRI. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.29515 OF 2009 (H) -------------------------------------------------- Dated this the 11th day of November, 2009 J U D G M E N T Petitioner was working as Anesthetist in ESI Hospital, Peroorkada. He has approached this court challenging Ext.P1 order dated 9.10.2009, by which he has been relieved from the duties of Anesthetist, in public interest and permitted to continue as Assistant Insurance Medical Officer. By this very order, the 3rd respondent has been posted in his place. 2. According to the petitioner, Ext.P1 is the result of the manipulations by the 3rd respondent. It is stated that the 3rd respondent was transferred by Ext.P3 order dated 13.5.2008 to Paripally and the petitioner was transferred from Paripally to Thiruvananthapuram and was posted in her place. It is stated that, despite the transfer, she was recalled in June, 2008 itself to Thiruvananthapuram and that since then, she wanted to occupy the post occupied by the petitioner. It is stated that in order to achieve the aforesaid object, respondents 2 to 4 have manipulated the situation and ultimately Ext.P1 was issued. WPC.No.29515 /09 :2 : 3. In view of the allegations in the writ petition a statement was ordered to be filed by the first respondent. In the statement filed, they have produced Annexure-A1, a report of a preliminary enquiry conducted by the first respondent at the ESI Hospital Peroorkada on 30.7.2009. This report says that the superintendent of the Hospital had forwarded a complaint received from the 4th respondent against the petitioner about the difficulty she had faced in the operation theater while conducting an operation on 1.7.2009, duly assisted by the 3rd respondent. It is stated that in spite of the presence of the petitioner in the operation theater and the repeated requests from the surgeons for help to save the patient, the petitioner did not respond and instead, he send a call to another Anesthetist for help. Accordingly, Dr. N.k. Syamala attended the patient and tackled the situation. Similar other incidents were also reported. 4. It was accordingly that after enquiry Annexure-1 preliminary report was prepared by the first respondent. The conclusions in the enquiry report are as follows. “i. Dr. C.H.S.Mani Anaesthetist was present in the theater on 1.7.2009 when the PPS Surgery was WPC.No.29515 /09 :3 : done. In spite of repeated requests from the surgeons for help to save the patient he did not respond instead send a call to another Anesthetist for help, who came and tackled the situation and saved the patient. ii. Surgery, Gynaecology and Orthopedics Department complain that most of the surgical cases are made unfit by Anesthetist and this causes difficulty to patients, relatives of patients and to doctors working in this hospital. iii. Report of D. N.K. Syamala, then Superintendent states that refusing anaesthesia to a patient undergoing surgery, struggling with pain is extreme irresponsibility and similar type of incidences has occurred in the past also. iv. Though Dr. C.H.S. Mani stated that he was not informed about the case earlier, Dr. Prabha Gopinath claims that she has informed him earlier and requested for help. Dr. C.H.S. Mani in his statement admitted that one doctor approached him and said they have to do that case (Elective LSCS) and PPS because it was their prestige affair. He could have evaluated patient at that time and defer surgery then and there itself. But during surgery when the patient was struggling with pain and discomfort, refusing to take measure to save the patient in spite of repeated requests from surgeon is quite unexpected from a medical officer whatever be the technical difficulties. “ 5. It is stated that in view of the findings in the report the petitioner was relieved from duties as Anesthetist. WPC.No.29515 /09 :4 : 6. Petitioner has filed a reply affidavit contending for the incorrectness of the facts stated in the preliminary report. On the material produced, this court only the assertions on the side of the petitioner and its contradiction by way of the report produced by the respondents. The report is one submitted by the Ist respondent against whom no allegations of mala fide are attributed. 7. In these circumstances, I have no reason to doubt the genuineness of the facts stated in the report. If the facts stated in the report are at least prima facie acceptable, I should certainly accept the case of the respondent that public interest justified the action taken by Ext.P1. 8. Counsel for the petitioner raised a contention that the report was filed as early as on 30.7.2009 and that if the facts stated in the report are true, early action would have been taken. It is also stated that so far no disciplinary action has even been initiated. But then delay itself will not make Ext.P1 vitiated, if the facts leading to the same are otherwise justified. Since, prima facie, I have found the report to b e acceptable, even if the action is a delayed one, that by itself will not justify interference by this court. WPC.No.29515 /09 :5 : Writ Petition fails and is dismissed. It is clarified that the observations in this judgment are only for the purpose of examining the contention of the petitioner against Ext.P1 and are not intended to influence the respondents, if any proceedings are initiated against the petitioner. (ANTONY DOMINIC) JUDGE vi/