WP(C) 3948 of 2007 Page 1 of 46 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P(C) No.3948/2007 % Date of Decision : 27.05.2008 Dr.Manoj Singhania ….… Petitioner Through: Mr. Pawan Upadhyay, Ms.Shubhra Goyal and Ms. Anisha Upadhyay, Advocates Versus Union of India & Ors ......... Respondents Through : Ms. Preetika Dwivedi, Advocate for the respondents no. 2 & 3. Mr. Rakesh Gosain, Advocate for the respondent no.4. CORAM :- * HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may YES be allowed to see the judgment? 2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported YES in the Digest? ANIL KUMAR, J. * 1. The petitioner has challenged the order dated 3rd May, 2007 of Medical Director, Northern Railway terminating petitioner‟s attachment as DNB 3rd year candidate in the department of Medicine, WP(C) 3948 of 2007 Page 2 of 46 Northern Railway, Central Hospital, New Delhi with effect from 3rd May, 2007. 2. Brief facts to comprehend the controversies between the parties are that the petitioner is a Doctor and he was selected as a Diplomat of National Board Training Course by the Medical Director, Northern Railways, Central Hospital, New Delhi. He was offered the DNB course in internal medicine under the said hospital and the factum of his selection was communicated by the respondent Nos.1 to 3 to the National Board of Examination, respondent No.4. 3. The petitioner asserted that DNB training consists of three years period and on completion of this period, examination is held by National Board of Examination which is functioning under the Ministry of Health and Family Welfare. The successful candidates are awarded post graduate degree in the discipline in which they undergo and complete training. According to the petitioner the DNB training leading to post graduate degree in the discipline in which a candidate undergoes training is controlled by the rules known as Residency Scheme review of consolidated revised instructions dated 5th June, 1992. WP(C) 3948 of 2007 Page 3 of 46 4. The petitioner pleaded that on being selected as DNB (medicine) he resigned from the post of junior resident in Department of Medicine and joined the Northern Railway, Central Hospital for his training for DNB (Medicine). According to him during the course of three years training, the candidates are given all those privileges and facilities which are admissible to junior residents. The DNB trainees are not only imparted training but they are required to perform all duties of a resident doctor attending patient wards, ICUs, OPD, etc. and they are paid stipend with full allowances for the same. The petitioner‟s grievance is that under para 13 of Residency Scheme a resident doctor is not to perform normally exceeding 12 hours per day and resident doctors are allowed one week holiday by rotation and junior residents ordinarily work for 40 hours per week, however, number of call duties of 24 hrs have also been increased to 7 instead of 5 per month. Another allegation of the petitioner is that the Northern Railway, Central Hospital has breached the rules of the Residency Scheme more often than complying with the same. The petitioner has also contended that even the emoluments of the DNB training was reduced from Rs.21,000/- per month to Rs.8,000/- per month leading to filing of a writ petition which was allowed by order dated 25th August, 2005. WP(C) 3948 of 2007 Page 4 of 46 5. The petitioner plea is that since he and some other doctors took leading part in the litigation initiated against respondent No.3 against reduction of their stipend from Rs.21,000/- to Rs.8,000/-, the respondent No.3 became inexplicably prejudiced against him. In order to substantiate the case against respondent No.3, it was contended that petitioner is not paid an amount of Rs.2000/- per year against book allowance and he is also not paid the amount of Rs.3000/- per month which is deducted from his emoluments without giving any reason and without any written order. 6. The petitioner had sent a legal notice through his counsel on 1st September, 2005 seeking attention of the authorities including respondent No.3 to various irregularities being committed by Railway Administration particularly in respect of violation of rules of working hours by extending them and of the period of leave and for payment of all his emoluments. He had sought all the facilities, privileges which the junior residents are entitled for. The relevant rules under Residency Scheme are as under: “13. Hours of Work. Continuous active-duty for resident doctors will not normally exceed 12 hours per day. Subject to exigencies of the work the resident doctors will be allowed one weekly holiday by rotation. The resident doctors will also required to be on call duty not exceeding 12 hours at a time. The junior residents should ordinarily work for 48 WP(C) 3948 of 2007 Page 5 of 46 hours per week and not more than 12 hours at a stretch subject to the condition that the working hours will be flexible and maybe decided by the Medical Superintendent concerned keeping in view the workload and availability of doctors for clinical work.” The rules also contemplated that the junior residents are not to be treated as the Government servants but are to be governed by the terms of their agreement under the Residency Scheme. The notice given on behalf of petitioner was not replied. The petitioner made another representation dated 7th November, 2006 regarding excessive stress imposed in the form of physical, mental, emotional and about his financial exploitation. He categorically contended that number of duty of 24 hours duties have been increased to 7 per month instead of 5 per month and at times these duties are stretched to 29 hours without any break. He also complained about meaningless enquiries which are conducted to force the trainee doctors to work under inhuman conditions. He also complained that one of the faculty members had represented to him not to give good marks in confidential reports of training. The petitioner had to contend that his suspension/rustication will be less stressful than working under those circumstances. The petitioner‟s notice and representation were not replied. Instead his monthly pay and allowances for January and February, 2007 were withheld and were paid later on 2nd April, 2007. Petitioner contended that he was not allowed to perform his duties as WP(C) 3948 of 2007 Page 6 of 46 resident doctor after 1st March, 2007 nor his salary has been released from the month of March, 2007 onwards. The petitioner sent a letter dated 2nd March, 2007 to the Medical Director intimating him that Dr. Sudhir Sharma Sr. Administrator had not allowed him to join the duties and he had promised to send petitioner suspension/termination letter within 3 to 4 days. He also intimated that Mr. Pujara, Mrs. Dinesh and Mr. Vishnu had refused to accept his application and therefore he had addressed the letter dated 2nd March, 2007 to the Medical Director. It appears that none of the letters/representations were replied. The petitioner sent various representations which he mentioned in his letter dated 16th March, 2007 and he stated that he is deemed to be on duty since his suspension/termination letter had not been issued. By another communication dated 29th March, 2003 he again requested the Medical Director to allow him to join the duties which had been denied to him without any justification since 2nd March, 2007. 7. On 15th March, 2007 a preliminary enquiry was ordered into working and conduct of the petitioner as well as allegations which were leveled by the petitioner against various authorities. The petitioner has contended that the respondent no.3 did not take any action despite personal interview of the petitioner. On 28th March, WP(C) 3948 of 2007 Page 7 of 46 2007 he had received a letter from Chief Orthopedic Surgeon, Central Hospital to attend his room for an enquiry at 11 o‟clock on the same date. The petitioner appeared for enquiry on 28th March, 2007 and he was asked certain questions and after that he was allowed to leave. A copy of the statement of petitioner shows that the recording of the statement started on 28th March, 2007 but it was signed on 9th April, 2007. 8. The petitioner thereafter filed a writ petition being 2921/2007 as nothing was communicated to him. During the pendency of the writ petition, the order dated 3rd May, 2007 terminating his training was passed. Consequent whereto the petitioner withdrew the earlier writ petition and has filed the present petition. The petitioner has challenged the order of termination of his attachment as DNB 3rd year candidate on the grounds that the order is not a termination simplicitor but a punitive order passed by malafide intention to throw the petitioner out and to damage his career. It is contended that the order of termination is in violation of principles of natural justice and is also an act of vindictiveness on account of active participation of petitioner against the action of the respondent No.3 of reduction of stipend from Rs.21,000/- per month to Rs.8,000/- per month. The order is also challenged on the ground that the petitioner was WP(C) 3948 of 2007 Page 8 of 46 admitted to three year Diplomat of National Board and so the same could not be terminated during the training after two years. It is also asserted that the petitioner has a right to complete his three years training as a Diplomat of National Board and the order of termination is punitive and bad in law and is liable to be set aside. 9. The petitioner has relied on (1980) 2 SCC 593, Gujarat Steel Tubes Ltd and Ors Vs. Gujarat Steel Tubes Mazdoor Sabha and Ors; (1993) 1 SCC 13, State Bank of India and Ors Vs.D.C.Aggarwal and Anr; (1999) 3 SCC 60, Dipti Prakash Banerjee Vs.Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors; (2005) 13 SCC 652, State of U.P and Ors Vs. Ashok Kumar and (2006) 2 SCC 584, South Bengal State Transport Corpn. Vs. Sapan Kumar Mitra and Ors to contend that termination of petitioner‟s attachment as DNB 3rd year candidate in the Department of Medicine is stigmatic and has been passed without due opportunity and is in violation of principles of natural justice and, therefore, it is vitiated and is liable to be set aside. 10. The petition is contested by the respondents. On behalf of respondent No.3 a counter affidavit of Dr.Sudhir Kumar Sharma, Senior Divisional Medical Officer (Administration) Northern Railway has been filed who has contended that the Diplomat of National Board Trainee is not the employee of Indian Railways. Any medical graduate WP(C) 3948 of 2007 Page 9 of 46 with MBBS qualification who has completed internship and registered with MCI/State Medical Council and who accepts the terms and conditions of the Indian Railway, is eligible to become a DNB Trainee in the Railway hospital and, therefore, Railway Servants (Discipline and Appeal) Rules, 1968 will not be applicable to the petitioner. According to the respondent No.3 the terms and conditions for DNB Trainees working in every Railway Hospital of Indian Railways, are in accordance with the Government of India, Ministry of Railways (Railway Boards) communication No.2006/H/2-1/5 dated 26th February, 2007. The said terms and conditions stipulate the stipend, accommodation, leave rules for DNB Trainees and other types of leave and medical treatment policy and training charges only. The respondent No.3 further asserted that DNB trainees are posted in different wards and are required to work from 9 AM to 5 PM subject to the requirement of their services and in case of emergencies they can be asked to work after 5 PM. It was contended that those candidates who pursue their DNB training in Railways, it is the policy and the rules circulated by the Indian Railways which are applicable. Therefore, reliance has also been placed on the circular dated 26th February, 2007 and circular dated 15th January, 2008 of Northern Railways regarding payments etc. to be made to the DNB trainees. The allegations of prejudice against the petitioner were denied and WP(C) 3948 of 2007 Page 10 of 46 deduction of Rs.3000/- per month was justified on account of training charges in accordance with Rule 5 of Rules dated 26th February, 2007. Regarding stipend payable to the petitioner, it is contended that the petitioner has not worked after 8th February, 2007 and, therefore, the salary commencing 8th February, 2007 has not been paid. The Railways have justified the termination order dated 3rd May, 2007 on the ground that there had been grave misconduct on the part of the petitioner which compelled the respondent No.3 to initiate an enquiry into working and conduct of the petitioner which was conducted on 16th April, 2007. During the enquiry the statements of various senior medical officers were recorded and the enquiry officer had concluded that the petitioner‟s performance was highly unsatisfactory and he is short tempered, rude to behave with seniors, colleagues and patients and used to leave his duty without making any arrangements for the care of critical patients and on the basis of the report of enquiry, the training of petitioner was terminated by letter dated 3rd May, 2007. In paragraph 14 of the counter affidavit it has been categorically admitted that the training of the petitioner has been terminated on the basis of report after enquiry. Paragraph 14 of the counter affidavit is as under: “14. It is stated that owing to the great misconduct of the petitioner, the respondent was compelled to initiate an enquiry into the working and conduct of the petitioner. WP(C) 3948 of 2007 Page 11 of 46 The same was conducted on 16th April, 2007, and is attached herewith and marked as Annexure R-3. Statements of various Senior district medical officers were recorded and the enquiry report concluded that: „… the work and conduct of Dr. Manoj Singhania is highly unsatisfactory. He is short tempered, rude to seniors, colleagues and patients, and used to leave his duty without making any arrangements for critical patients.‟ It was on the basis of this report that the petitioner was terminated, vide letter dated 03.05.2007.” 11. In the counter affidavit it was not denied that owing to alleged misconduct of the petitioner he was not allowed to continue after 2nd March, 2007. The respondents 1 to 3 contended that the petitioner is not an employee as a Diplomat of National Board of Trainees attached to railway hospitals. It was asserted that the complaints of indiscipline were received against the petitioner and a fact finding inquiry was conducted on 16.4.2007 to ascertain the facts to determine whether the work and conduct of the petitioner was satisfactory. The findings were against the petitioner and, therefore, his training has been terminated. It is also pleaded that against his termination, the petitioner should have approached the Appellate Authority without disclosing which is the Appellate Authority. It has been further asserted by the respondents that in the fact finding inquiry constituted by the respondents, a fair opportunity was given to WP(C) 3948 of 2007 Page 12 of 46 him and charges were intimated to him by letter dated 15th March, 2007 by which enquiry committee was appointed, a copy of which was sent to the petitioner. It is also pleaded that since the inquiry was a summary fact finding inquiry, no charge sheet was issued and since the petitioner participated in the inquiry, the plea of the respondents is that petitioner is misleading in contending that the inquiry was conducted behind his back. 12. The respondents 1 to 3 have contended that since the petitioner was a trainee his status is different from that of an employee and judicial review is limited in case of disciplinary action taken against a student/trainee by Institution imparting training. For this submission, the respondents have relied on Director, Indian Institute of Technology, Kanpur v. Hiyat Khan, (2000) 3 A.W.C. 2265. It is asserted by the respondents that judicial review of orders in the matter of enforcement of discipline in the educational institutions is limited and authorities in charge of imparting education are best suited to deal with students for their lapses and malpractices. 13. Regarding the violation of principle of natural justice, it is contended that principle of natural justice is not a straight-jacket formula. It is pleaded that in any case principals of natural justice WP(C) 3948 of 2007 Page 13 of 46 were complied with, as the petitioner was intimated by letter dated 28th March, 2007 about the inquiry and he has, in fact, participated in the inquiry. Relying on the statement given by the petitioner to the fact finding inquiry, it is contended that all allegation against him were made known to him, however, the names of the doctors who had leveled the allegations against the petitioners were not disclosed to him which was in the best interest of the patients and to avoid any possibility of hostile environment in the hospital. It was also pleaded that since doctors are in close proximity with each other and doctors of various Departments are dependent on each other for the treatment of their patients, it was thought fit not to reveal the names of the doctors who had leveled the allegations against the petitioner and thus there is no violation of the principle of natural justice and the petitioner has been given a fair opportunity. Relying on Miss Shefali Pathak v. Indian Institute of Technology, Delhi, AIR 2006 Delhi 66, it was asserted that Principle of Natural justice are not a straight jacket formula and must be molded to suit specific circumstances. Reliance has also been placed by the respondents on AIR 2006 SC 3096, Om Prakash Mann v. Director of Education. WP(C) 3948 of 2007 Page 14 of 46 14. The respondent No.4, National Board of Examination, contended that the petitioner was enrolled in DNB Internal Medicine for three years training with the respondent No.3 on 28th February, 2005 and his name was sent for registration on 21st April, 2005. The respondent No.4 also contended that the petitioner has deserted/abandoned his mandatory three years training after 8th February, 2007. It was asserted that the petitioner did not inform or sought any advice from the respondent no.4 before leaving the training in mid-session and the petitioner who is seeking to reactivate his training with effect from 8th February, 2007 cannot be allowed to do so. It is also contended that the respondent No.4 does not have any right for granting any latitude to any candidate for giving any relaxation in the period of three years. It is pleaded that allowing the petitioner to continue would adversely effect upon the standards in higher medical education. The training of the petitioner is short by one year and 20 days. It is further contended that the petitioner would have to complete his three years mandatory training and submit his thesis with the answering respondent No.4 before appearing in DNB Theory Examination. 15. The respondent No.4 has also asserted that in the peculiar facts the respondent No.4 could consider granting migration of petitioner to WP(C) 3948 of 2007 Page 15 of 46 some accredited institutions for the remaining period of his mandatory three years training, however, the respondent No.4 in any way is not taking any responsibility for providing the approval of appointment of the petitioner to any other institute. 16. I have heard the learned counsel for the parties in detail and have also perused the writ petition and the replies filed to the writ petition and the documents relied on by the parties. In South Bengal State Transport Corporation (Supra), relied on by the Learned Counsel for the petitioner, a bus driver was removed from service after holding departmental enquiry against him. The order of the disciplinary authority removing the driver from the service was challenged by filing a writ petition on the ground that the documents relied on by the enquiry officer did not feature in the list of documents annexed to the charge sheet nor the copies thereof were supplied to the delinquent driver. The removal was also challenged on the ground that the delinquent driver was acquitted in the criminal case. The learned Single Judge of Calcutta High Court had set aside the order of removal and had directed the disciplinary authority to supply the copies of the documents and after considering the comments of the delinquent driver to reach a fresh conclusion about the punishment of removal awarded to the driver. In appeal the Division Bench came to the WP(C) 3948 of 2007 Page 16 of 46 conclusion that finding of the disciplinary authority as well as enquiry officers were wholly perverse and the judgment of the learned Single Judge was set aside and the order of removal of the delinquent driver was set aside and he was reinstated with full back wages. In the appeal to the Supreme Court, the judgment of the Division Bench was set aside and the order of the Single Judge was restored subject to certain modifications. Since the copies of the documents sought by the delinquent driver were supplied, he was allowed to file comments or representations against the finding made in the enquiry report and on the basis of the representations of the delinquent driver, the disciplinary authority was directed to reach a final conclusion. The Apex Court relying on Union of India Vs. Mohd.Ramzan Khan, (1991) 1 SCC 588 and Managing Director, ECIL Vs. B.Karunakar, (1993) 4 SCC 727 had held that wherever there has been an enquiry officer and he has furnished a report to the disciplinary authority at the conclusion of the enquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non- furnishing of the report would amount to violation of rules of natural justice and make the final order liable to be challenged. The Constitution bench of the Apex Court in Managing Director, ECIL Vs. WP(C) 3948 of 2007 Page 17 of 46 B. Karunakar, (1993) 4 SCC 727 on the issue of non supply of enquiry report had held in para 26 at page 754 as under:- “26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before