W.P. (C) Nos. 367 & 12708 of 2009 Page 1 of 59 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P. (C) 367/2009 & CMs 828, 11426/2009 Reserved on: 13th August 2010 Decision on: 9th September 2010 DR. PUNITA K. SODHI ..... Petitioner in-person versus UNION OF INDIA & ORS. ..... Respondents Through Mr. A.K. Bhardwaj with Ms. Jagrati Singh, Advocate for R-1. Mr. V.S.R. Krishna, Advocate for R-3 with W.P.(C) 12708/2009 & CMs 13398/2009, 9952/2010 DR. PUNITA K. SODHI ..... Petitioner in-person versus UNION OF INDIA AND ORS ..... Respondents Through Mr. A.K. Bhardwaj with Ms. Jagrati Singh, Advocate for R-1. Mr. Somesh Chandra Jha, Advocates for R-5. Mr. V.S.R. Krishna, Advocate for R-6. CORAM: JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes JUDGMENT 09.09.2010 1. The background to these two writ petitions by the same Petitioner is more or less the same. The reliefs sought are different. Writ Petition (Civil) No. 367 of 2009 challenges an Office Order dated 17th June 2008, issued by the Lady Hardinge Medical College (‗LHMC‘), a hospital W.P. (C) Nos. 367 & 12708 of 2009 Page 2 of 59 functioning under the Directorate General of Health Services (‗DGHS‘), Government of India whereby a committee was constituted to enquire into the complaint of sexual harassment made by the Petitioner against Respondent No.6 Dr. K.P.S. Malik. The writ petition also challenges the consequential proceedings of the said Committee including the report submitted by it on the Petitioner‘s complaint. 2. The second petition, Writ Petition (Civil) No.12708 of 2009, seeks the quashing of an Office Memorandum (OM) dated 25th April 2008 issued by the Ministry of Health and Family Welfare (hereafter ‗the MHFW‘), Government of India, Respondent No. 1 in the writ petition, constituting a committee of external experts (hereafter ‗Experts Committee‘) ―with a view to substantiate the allegations and counter-allegations‖ between Dr. K.P.S. Malik (Respondent No. 3 in the said writ petition) and the Petitioner. A challenge is also laid to the Report of the said Experts Committee. The Petitioner’s case 3. The Petitioner states that she is an MBBS and MS (Eye) from Delhi University with an excellent academic record. She is presently working as an Assistant Professor in Ophthalmology under the MHFW posted at the LHMC. The Petitioner states that she has three distinctions and three subject awards in the MBBS course, 52 international indexed publications and one Indian indexed publication. The Petitioner states that after completing her MBBS and MS, she joined as a Pool Officer under the Council for Scientific and Industrial Research (‗CSIR‘) at the W.P. (C) Nos. 367 & 12708 of 2009 Page 3 of 59 Safdarjung Hospital on 1st January 2001. She had initially been working under Dr. R.S. Nanda, the Head of Unit-II of the Safdarjung Hospital. She states that in November 2001 she was suddenly shifted to Unit-I under Dr. K.P.S. Malik. 4. According to the Petitioner, Dr. Malik knew that the Petitioner‘s husband was on an outstation job. She alleges that Dr. Malik started devising ways to trap her by calling her repeatedly on one pretext or the other. According to the Petitioner, Dr. Malik used to ask her to assist him in surgeries even where such assistance was usually not required, remain close to her and try to touch her. She states that on account of the vitiating atmosphere at the Safdarjung Hospital she left that institution by taking an exemption plea from the pool job and joined the PGIMS at Rohtak as Lecturer in Ophthalmology on contract basis. She states that her children were very small at that time and started passing through stress due to her absence at home, the travel time from Delhi to Rohtak being very long. Her husband then got transferred permanently to Haldia. She had to return and continue on the post of a Pool Officer at the Safdarjung Hospital. 5. According to the Petitioner after her return to Safdarjung Hospital, Dr. Malik adopted all possible means to harass her by posting her outside Safdarjung Hospital and changing the clinics in which she was previously working. He issued a memorandum dated 26th August 2002 stating that she was using immunosuppressive drugs for treating some ocular condition without the approval of the competent authority/technical W.P. (C) Nos. 367 & 12708 of 2009 Page 4 of 59 committee of the Hospital. The letter included a remark questioning why the Petitioner‘s full tenure should not be terminated ―for such serious lapse‖ and restricted her work only to pursuing her ―approved protocol and no other research.‖ Copies of the memorandum were sent to the Principal and Medical Superintendent, Safdarjung Hospital and the Head, CSIR. The Petitioner states that there was nothing wrong in administering an immunosuppressive drug for the treatment. She spoke to the Medical Superintendent, showed him the relevant literature and was assured that she should not worry. She states that due to the malicious attitude of Dr. Malik, she was under huge stress for three years as Pool Officer at the Safdarjung Hospital. 6. It must be stated at this stage that the Petitioner applied for and was recommended by the Union Public Service Commission (‗UPSC‘) for appointment as an Assistant Professor of Ophthalmology in the teaching sub-cadre of the Central Health Services in 2006. The UPSC recommended three names, namely (1) Dr. Zia Chaudhary (2) Dr. Ruchi Sangal and (3) the Petitioner herein for appointment. The Petitioner stated that she was victimized by being posted out of Delhi while the other two doctors were posted in Delhi. However, the Respondent Union of India submitted that Dr. Chaudhary who was recommended on the basis of an earlier selection and Dr. Sangal who was recommended along with the Petitioner for the same selection, were senior to the Petitioner in the order of merit. According to the Respondents, at the relevant time, i.e., in 2007 there were only two vacant posts in Delhi and, therefore, Dr. Chaudhary and Dr. Sangal were posted in Delhi and the Petitioner was W.P. (C) Nos. 367 & 12708 of 2009 Page 5 of 59 given a posting at JIPMER, Pondicherry where vacancies were available. Thereafter, on the Petitioner‘s request she was deployed from JIPMER, Pondicherry to the Vardhman Mahavir Medical College (‗VMMC‘) at Safdarjung Hospital, New Delhi. 7. The Petitioner states that she reported at the VMMC at Safdarjung Hospital on 13th July 2007 but Dr. Malik made it difficult for her to join. He refused to accept her joining letter and misbehaved with her. She then posted a photocopy of the joining letter to the Department of Ophthalmology and also wrote to the Medical Superintendent of the Safdarjung Hospital requesting that she be posted in Unit-I under Dr. V.C. Gupta. On 26th July 2007, the Petitioner received a memorandum dated 23rd July 2007 from Dr. Malik about a patient that the Petitioner had seen on 17th July 2007. The Petitioner was accused of committing negligence by misdiagnosing a simple corneal disease as acute cornea and instituting a patently wrong treatment. Dr. Malik added in the advisory memo ―you are advised to please re-educate yourself with the help a basic undergraduate textbook and seek the advice of seniors whenever you find difficulty in handling the patients.‖ The Petitioner pointed out that the said patient was fully cured within a span of six days and yet Dr. Malik had issued the above memorandum. 8. After Dr. Malik was stated to have misbehaved with her on 20th August 2007, the Petitioner gave a written complaint to the Medical Superintendent of the Safdarjung Hospital and also to the MHFW. Her W.P. (C) Nos. 367 & 12708 of 2009 Page 6 of 59 specific request was that strict action should be taken against Dr. Malik and that he should be transferred out of Safdarjung Hospital. Her complaint was of sexual harassment by Dr. Malik. She specifically stated in her complaint as under: ―The CCS Conduct Rules do not permit such harassment of females in government offices. Additionally, it is written in Swamy‘s book that ―the concerned female can request for the transfer of perpetrator, who is harassing her.‖ (Annexure 7) Additionally, I am considering Dr. Malik‘s behavior as a total threat and it is creating a ―health and safety problem for me‖. It is clearly written in the Swamy‘s book that to prevent sexual harassment (page 37 3. D. - Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work place and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with employment.‖ 9. On 26th September 2007 the Petitioner wrote to the Delhi Commission for Women requesting that action be taken on her complaint. A third complaint was made on 11th October 2007. The counter allegations 10. Dr. Malik who is the Head of the Department (`HOD‘) of Ophthalmology at VMMC, Safdarjung Hospital complained against the Petitioner about her publications where she is alleged to have represented herself as the HOD. On 29th August 2007 Dr. Malik gave a complaint about the unethical conduct of the Petitioner and accused her of committing ―academic fraud‖ and of concocting data. He further accused W.P. (C) Nos. 367 & 12708 of 2009 Page 7 of 59 her of not taking prior permission from him or the Ethical Committee for the ―so called studies‖ on the basis of which she had prepared and published the papers. The specific allegations were as under: ―In paper No. 7 and 8 of the list, Dr. Punita Sodhi as 1st author is cited to be chairman of Department of Opthalmology, Safdarjung Hospital. I am Head of this Department since January 1990. Dr. Lalit Verma is cited as Chairman, Dr. R.P. Centre. I am surprised that Dr. Lalit Verma r/o E-18, HUDCO Palace, Andrew Ganj Extension, New Delhi, a senior office bearer of AIOS, has allowed his name to be used by such dubious character. In many of her papers Co-authors are Dr. S.K. Ratan and Dr. K. N. Ratan who are Pediatric Surgeons at Medical College, Rohtak. Many of these papers have no Ophthalmology contents. Still Dr. P. K. Sodhi is the co-author in these papers.‖ 11. This was followed by another letter dated 6th September 2007 to the Joint Secretary, MHFW in which Dr. Malik alleged that the Petitioner had refused to receive a memorandum dated 17th August 2007 asking for an explanation about a fictitious paper published by her in an international journal. 12. On 11th October 2007 keeping in view the complaints and counter- complaints of the Petitioner and Dr. Malik, and since it was viewed as vitiating the atmosphere at the Safdarjung Hospital, the MHFW issued an order deploying the Petitioner temporarily at the LHMC. W.P. (C) Nos. 367 & 12708 of 2009 Page 8 of 59 13. It is stated that on 13th December 2007 the MHFW requested the Safdarjung Hospital to investigate the matter and send a report. Safdarjung Hospital constituted a fact-finding team consisting of Dr. M.K. Mohanty, Additional Director General and HOD, Urology and Dr. Sudhir Chandra, Additional Medical Superintendent. The fact-finding team, in its opinion dated 13th December 2007, stated that the complaint and counter-complaint should be examined by an independent team of external experts. 14. The Petitioner filed Writ Petition (C) No. 1336 of 2008 which was disposed of by this Court on 19th February 2008 directing an enquiry into the complaints made by the Petitioner of sexual harassment against Dr. Malik and certain counter allegations made by Dr. Malik against the Petitioner. Constitution and re-constitution of the Committees 15. Pursuant to the above direction, the DGHS issued an OM dated 25th April 2008 constituting a committee of the following external experts: (i) Dr. Pamela D‘Souza, Director, Professor & - Chairperson HOD (Ophthalmology), LHMC, New Delhi (ii) Dr. B. Ghosh, Director-Professor Prof. & HoD - Member (Ophthalmology) GNEC, MAMC, New Delhi (iii) Dr. Nalin Mehta, Associate Professor - Member (Physiology & Ethicist) AIIMS, New Delhi 16. The terms of reference of the above committee were as under: ―(i) To substantiate the allegation of Dr. K.P.S. Malik on fraud fictitious publication by Dr. Punita Kumari Sodhi. W.P. (C) Nos. 367 & 12708 of 2009 Page 9 of 59 (ii) To verify the veracity of the allegation of sexual harassment made by Dr. Punita Kumari Sodhi on Dr. K.P.S. Malik‖ 17. The Petitioner protested against the combining of the two complaints and referring them to the same committee. She submitted a representation dated 30th April 2008 to the MHFW in this regard. She also represented to the National Commission for Women (‗NCW‘), which in turn wrote a letter dated 8th May 2008 to the MHFW. This letter of the NCW was referred to the Director, LHMC by the MHFW with the request to examine the matter and send a report to the Committee. It was clarified in the letter that ―the inquiry should be conducted as per the Supreme Court guidelines in the case of Vishaka v. State of Rajasthan AIR 1997 SC 3011.‖ 18. On 17th June 2008, an office order was issued by the Director, LHMC reconstituting the sexual harassment Committee (hereafter ‗the Committee‘) with the following members: 1. Dr. Manjula Jain Professor & HOD Pathology Chairperson 2. Dr. Chitra R. Dir. Professor of Obstt. & Gynae. Member 3. Dr. Satinder Aneja Professor of Pediatrics Member 4. Dr. Asha Gandhi Professor & HOD Physiology Member 5. Dr. Ram Chander Professor & HOD Skin & VD Member 6. Dr. Dinesh Kataria Asstt. Professor of Psychiatry Member 7. Mrs. Kiran Singh Chairperson MARG Member W.P. (C) Nos. 367 & 12708 of 2009 Page 10 of 59 19. On 1st July 2008 a memo was issued to the Petitioner requiring her to explain why action should not be taken against her under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 enclosing a statement of the ―imputation of misconduct.‖ The statement of imputation of misconduct enclosed with the above notice was that she, while working as Specialist Grade II under the GNCTD, ―threatened over the telephone on 5th January 2007 to Shri Vineet Chaudhary, Joint Secretary that she will approach the media for exposing the alleged harassment to her for not acceding her request of posting in Delhi.‖ 20. Meanwhile on 11th July 2008, a letter was written by the Minister of State (‗MoS‘) for Women and Child Development (‗WCD‘) to the Health Minister requesting that MHFW should examine the complaint made by the Petitioner against Dr. Malik and requesting for personal intervention by the Health Minister. The MoS made a further request that the inquiry should be conducted in an impartial way within a specific time frame. The letter further stated that ―Dr. Punita K. Sodhi is a renowned Ophthalmologist and her request for transfer back to Vardhman Mahavir Medical College and Safdarjung Hospital New Delhi or Guru Nanak Eye Centre may also be considered sympathetically.‖ 21. On 23rd July 2008 the Secretary (Coordination and Planning), Cabinet Secretariat wrote to the Secretary, MHFW drawing attention to the OM dated 13th July 1999 of the Department of Personnel and Training (‗DoPT‘), in which it had been indicated that in a case of complaint of sexual harassment, the Committee constituted for redressal of the W.P. (C) Nos. 367 & 12708 of 2009 Page 11 of 59 complaint should be headed by an officer sufficiently higher in rank to the alleged harasser to lend credibility to the investigation. It was pointed out that the committee had to be chaired by a lady officer of a proper rank in some other Ministry/Department, in case an officer of sufficiently higher rank than the officer against whom the complaint has been made is not available in the Ministry/Department concerned. A request was, therefore, made for reconstitution of the Committee. 22. The Member Secretary of NCW on 24th July 2008 also wrote to the Secretary, MHFW emphasizing the need for an impartial inquiry in terms of the guidelines prescribed in Vishaka v. State of Rajasthan. It was pointed out as under: ―Since the matter is about harassment of a woman doctor and the complaints committee consists of those who are senior to her, yet junior to the person complained against this needs to be rectified and proper and impartial enquiry conducted to sort out the matter. There should also be a third party, an NGO. Since it has been considerably delayed, it is requested that the matter may kindly be expedited.‖ Report of the Committee of External Experts 23. On 14th August 2008 the Experts Committee headed by Dr. Pamela D‘Souza submitted its Report on the allegations made by Dr. Malik against the Petitioner regarding her published articles. The Report noted that the Petitioner did not participate after 22nd May 2008 on the ground that she doubted the fairness of the inquiry. The Report concluded that the patients referred to in the study on the basis of which two of the papers of the Petitioner were published in December 2003 and January W.P. (C) Nos. 367 & 12708 of 2009 Page 12 of 59 2005, were not from Safdarjung Hospital and the place of study was also not Safdarjung Hospital. Further the Report noted that the Petitioner was referred to as Chairman/Chair, Department of Ophthalmology, Safdarjung Hospital in three publications, which was factually incorrect. It was concluded as under: ―Based on the above and also in the absence of any statement forthcoming from Dr. P.K. Sodhi, the fact finding committee concludes that the facts submitted in the above paragraphs are in order.‖ 24. The Petitioner has challenged the above Report by in Writ Petition (Civil) 12708 of 2009. Report of the sexual harassment Enquiry Committee 25. On 21st November 2008, the Committee which examined the complaint by the Petitioner of sexual harassment against Dr. Malik submitted its Report. The conclusions of the Report were as under: ―After reading the filed complaint of Dr. (Mrs.) Punita K. Sodhi and written reply the submissions of Dr. KPS Malik and going through the records, Sexual Harassment Committee is of the opinion that: I. Dr. Punita K. Sodhi was given enough opportunity to submit her complaints and bring witnesses but she did not cooperate even once. At the same time, she has been questioning the validity of the Sexual Harassment Committee and threatened to initiate legal action against the Enquiry Committee on 14/9/08. II. Almost in every opportunity offered to her, Dr. Punita K. Sodhi did not cooperate with the Sexual Harassment Committee rather she kept on raising various questions/issues which were not in preview of Sexual Harassment Committee. However each query of her was referred to MOHFW for clarification, which has resulted in considerable delay. W.P. (C) Nos. 367 & 12708 of 2009 Page 13 of 59 III. Her complaint of Sexual Harassment date back to year 2001-03. However during this period, no allegations were made and she preferred to come back to Safdarjung Hospital and appealed to Hon‘ble CAT against her transfer from Safdarjung Hospital to Lady Hardinge Medical College & Hospital, New Delhi. IV. There is no case of Sexual Harassment against Dr.KPS Malik as he never worked with her in the Operation Theatre and therefore could not have touched her and there is no record/witness to prove that he used to call Dr. Punita K. Sodhi during odd hours. CONCLUSION There is no merit in the case of Sexual Harassment against Dr. KPS Malik.‖ Orders in contempt proceedings 26. On 11th December 2008 the Petitioner‘s Contempt Case (Civil) No. 305 of 2008 was dismissed by this Court after noting that the limited scope of powers of this Court in a contempt petition was only to determine if there was any wilful disobedience of the order of this Court. In relation to the Petitioner‘s contention that the proceedings of the Committee were not in accordance with law and no minutes were drawn, the Court permitted the Petitioner to avail of ―the other remedies as available to her.‖ An appeal was filed against the said order being Contempt Appeal (Civil) No. 2 of 2009, which was dismissed by the Division Bench on 14th January 2009 with the following observations: ―We see no reason to interfere with the said order of the learned Single Judge. The finding is in accordance with law. The Appellant may have a genuine grievance but the remedy for the same is by filing substantive proceedings to challenge the constitution and process of the Enquiry Committee. We have observed so as the Appellant is appearing in person and has been so appearing without the assistance of a counsel and wants to continue to appear in W.P. (C) Nos. 367 & 12708 of 2009 Page 14 of 59 person. The Appellant claims that she requires stay of the proceedings before the Enquiry Committee. Such a relief can be considered only by filing an interlocutory application in the substantive proceedings to be filed by the Appellant. If any, against the process of the Enquiry Committee.‖ Writ Petition 367 of 2009 27. On 5th January 2009 an OM was issued by the MHFW stating that the Committee had found no merit in the complaint made by the Petitioner against Dr. Malik and asked her to explain ―why action should not be taken against her for making a false accusation/charge against Dr. K.P.S. Malik.‖ 28. On 21th January 2009 while directing notice to issue in Writ Petition (Civil) 367 of 2009, this Court directed that no action should be taken pursuant to the OM dated 5th January 2009. 29. In the meanwhile, on 12th February 2009 the NCW again wrote to the DoPT requesting it to advise the MHFW to constitute a proper internal complaints committee as per the Vishaka Guidelines. In reply to this letter, the DoPT on 26th February 2009 reiterated its OM dated 13th February 1998, para 5 of which states that victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer. W.P. (C) Nos. 367 & 12708 of 2009 Page 15 of 59 30. On 6th May 2009, the NCW also wrote to the Secretary, MHFW expressing its displeasure on the state of affairs of the enquiry into the complaint of the Petitioner, the treatment meted out to the Petitioner by the MHFW officials and the issue of non-grant of permission to the Petitioner to travel abroad to meet her husband. Proceedings before the CAT 31. On 25th May 2009, the Central Administrative Tribunal (CAT) allowed the Petitioner‘s OA No. 1235 of 2009 and quashed the vigilance case initiated against the Petitioner. On 15th July 2009 the MHFW issued an order discharging the Petitioner from the services with immediate effect. The Petitioner was referred to as being on probation at the LHMC. The Petitioner challenged the above order dated 15th July 2009 by filing OA No. 1895 of 2009 before the CAT. On 20th July 2009, the CAT stayed the order of discharge dated 15th July 2009. A Contempt Case (Civil) No. 625 of 2009 was also filed by the Petitioner in this Court, in which notice was ordered to be issued on 30th July 2009. 32. Meanwhile on 5th August 2009, Dr. Malik wrote to the Secretary, UPSC alleging that the Petitioner had forged and fabricated publications in her CV submitted to the UPSC while applying for the post of Associate Professor. He also made a complaint to the Medical Council of India (‗MCI‘) which forwarded the complaint to the Delhi Medical Council. W.P. (C) Nos. 367 & 12708 of 2009 Page 16 of 59 33. On 29th September 2009 Dr. Rajesh Jain, Professor Ophthalmology at LHMC wrote to the Director of the LHMC stating that in spite of termination of her services, the Petitioner was involving herself in