IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 OP.No. 30190 of 2001(R) ---------------------------------- PETITIONER: ------------------- DR.Y. NADEER KOYA, ASST. SURGEON, DISTRICT HOSPITAL, PALAKKAD. BY ADV. MR.M.P.ASHOK KUMAR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY, KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM. R1 BY GOVERNMENT PLEADER MR. T.K. VIPIN DAS. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/06/2009, ALONG WITH O.P NO. 36701 OF 2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 30190/2001-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPORT SUBMITTED BY DR. MANICKAM. EXT.P.2: COPY OF THE REPORT SUBMITTED BY THE R.M.O. EXT.P.3: COPY OF THE MEMO OF CHARGES ISSUED AGAINST THE PETITIONER, DTD. 25/10/97. EXT.P.4; COPY OF THE REPLY SUBMITTED BY THE PETITIONER, DTD. 31/05/99. EXT.P.5: COPY OF THE SHOW CAUSE NOTICE DTD. 21/11/2000. EXT.P.6: COPY OF THE REQUEST DTD. 23/12/2000 MADE BY THE PETITIONER. EXT.P.7: COPY OF THE REPLY SENDS BY THE GOVT. DTD. 30/01/2001. EXT.P.8: COPY OF THE EQNUIRY REPORT SEND BY THE R.1. EXT.P.9: COPY OF THE REQUEST MADE BY THE PETITIONER DTD. 02/02/2001. EXT.P.10: COPY OF THE LETTER DTD. 12/02/2001 ISSUED BY THE GOVT. EXT.P.11: COPY OF THE REQUEST IS MADE BY THE PETITIONER DTD. 15/02/2001. EXT.P.12: COPY OF THE ORDER DTD. 21/04/2001. EXT.P.13: COPY OF THE ORDER ISSUED BY THE PUBLIC SERVICE COMMISSION. EXT.P.14: COPY OF THE REPLY DTD. 11/05/2001 SUBMITTED BY THE PETITIONER. EXT.P.15: COPY OF THE ORDER DTD. 27/08/2001. EXT.P.16: COPY OF THE COMMUNICATION RECEIVED BY THE PETITIONER. EXT.P.17: COPY OF THE RELEVANT PAGES OF THE RANK LIST. EXT.P.18: COPY OF THE ORDER G.O.(RT)2308, DTD. 23/08/2001. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. V.K.MOHANAN, J. --------------------------------------------- O.P.Nos. 30190 & 36701 of 2001 --------------------------------------------- Dated this the 2nd day of June, 2009 J U D G M E N T O.P.No. 30190 of 2001: The above two writ petitions are filed connected with the disciplinary action initiated and finalised against one Dr.Y.Nadeer Koya, who is the petitioner in O.P.No.30190 of 2001 and hence, these two writ petitions are heard together and being disposed of by this common judgment. 2. A girl, aged 15 years was admitted on 15.6.1997 at 7.35p.m. in the District Hospital, Palakkad where Dr.Y.Nadeer Koya was working as an Orthopaedic Surgeon at that time. The said patient died at 9 p.m. The relatives of the patient complained that patient died due to the negligence of the Medical Officers who treated the girl. Accordingly, an enquiry was conducted by the District Medical Officer(Health), Palakkad on 15.7.1997 and on 16.7.1997. As per the said report, the officer found that Dr.Y.Nadeer Koya, who attended the patient firstly, failed to give proper treatment in time and the other Doctor, Dr.Ramakrishnan, the duty doctor had not examined the patient and the petitioner has tampered with official treatment records. Thus, the Enquiry Officer OP Nos.30190 & 36701 of 2001 :-2-: recommended disciplinary action and punishment against Dr.Nadeer Koya and Dr.Ramakrishnan. 3. On the basis of the said report, disciplinary proceedings were initiated which finally culminated in Ext.P15 order by which the provisional decision of the Government was confirmed and the punishment of barring of two increments with cumulative effect was awarded against Dr.Nadeer Koya who is the petitioner in O.P.No.30190 of 2001. The said delinquent doctor, who is already retired from service, challenged Ext.P15 order in the above writ petition. 4. O.P.No.36701 of 2001 is preferred by one Fathima, who is the mother of the deceased girl namely Bulkies, in which one of the prayers is to quash Ext.P4, which is the same order challenged in the other writ petition by the delinquent Doctor i.e., Ext.P15 and with a further prayer directing respondents 1 to 3 to take appropriate action against the fifth respondent, Dr.N.Ramakrishnan on the basis of the enquiry report prepared by the District Medical Officer, Palakkad and also with a direction to the first respondent to give stringent punishment as per the directions contained in Ext.P1 order. 5. I have heard Sri.M.P.Ashok Kumar, learned counsel OP Nos.30190 & 36701 of 2001 :-3-: appearing for the petitioner in O.P.No.30190 of 2001 and also the learned Government Pleader and learned counsel appearing for the petitioner in O.P.No.36701 of 2001. 6. The learned counsel for the petitioner in O.P.No.30190 of 2001 strenuously argued that the Government has accepted the report of the Enquiry Officer wherein the Enquiry Officer himself has reported that there was no wilful negligence on the part of the particular officer who treated the patient. The learned counsel further argued that the report further says that the delinquent Doctor, who admitted the patient, should have given importance to the history that the girl was bitten by a snake and had he given the importance to the fact, he might have started the anti venom immediately and it was further observed that whether it would have given the girl a chance for survival is unpredictable. It is also pointed out that the Enquiry Officer further held that the delinquent Doctor is an Orthopaedic Surgeon and hence it cannot be expected from him to treat the snake poisoning in the most scientific manner. On the basis of the above finding of fact through the enquiry, the officer has recommended the transfer of Dr.Y.N.Koya from District Hospital, Palakkad and also recommended to withhold one increment with OP Nos.30190 & 36701 of 2001 :-4-: cumulative effect of Dr.Y.N.Koya as a minor punishment. According to the learned counsel, the Government has accepted the report as such including the proposal of punishment, but while passing Ext.P15 order, the Government had awarded the punishment of barring two increments with cumulative effect which will adversely affect the entire service including the retirement benefit of the petitioner. 7. In the other writ petition, the case of the petitioner is to the effect that the Government has miserably failed to award sufficient punishment against the delinquent Doctor in spite of the direction contained in Ext.P1 judgment of this Court. In Ext.P1 judgment, this Court directed to take immediate action on the basis of the enquiry report. Against Ext.P1, the petitioner along with other delinquent Doctor preferred W.A.No.566 of 1999 which resulted in Ext.P2 judgment, in which it was observed that the enquiry would be proceeded in accordance with law and further observed that the first respondent in the writ appeal can wait for the completion of the disciplinary action and they may proceed further in accordance with law. 8. I have carefully considered the contentions advanced by the learned counsel for both the petitioners as well as the learned OP Nos.30190 & 36701 of 2001 :-5-: Government Pleader. 9. It is brought to my notice by both counsel for the petitioners as well as the learned Government Pleader that on the basis of the direction issued by this Court on 19.6.2007, an additional affidavit has been filed on behalf of the first respondent wherein it is stated that various steps have been taken by the Government and the Department towards providing better facilities in the hospital at Palakkad for treatment in case of snake bite. Thus, steps were taken and from the additional affidavit, it appears that the District Hospital, Palakkad has now increased the convenience and all facilities to give better treatment to the patient in respect of snake bite. 10. But, all these amenities and facilities were arranged after the death of Balkies on 15.6.1997. At the time when Balkies was admitted in the hospital, these facilities were not there. As discernible from Ext.P8 report, the petitioner in O.P.No.30190 of 2001 was only an Orthopaedic Surgeon and it cannot be expected from him to treat the snake poison in the most scientific manner and that too in the absence of the facilities and amenities which are brought in the said hospital after the incident on 15.6.1997. During the enquiry, the Enquiry Officer had found that there was no wilful negligence OP Nos.30190 & 36701 of 2001 :-6-: on the part of the Medical Officer namely, the petitioner in O.P.No.30190 of 2001 who treated the patient. But according to the Enquiry Officer, the delinquent Doctor would have given importance to the fact that the girl was bitten by the snake and he might have started the anti-venum injection immediately. According to the Enqury Officer, even if such course was adopted, it would have given the girl a chance for survival, but the result would be unpredictable. It was on the basis of the above factual assertion on the basis of evidence and materials, the Enquiry Officer found that there is no wilful negligence on the part of the delinquent Doctor. So considering the above fact, the Enquiry Officer recommended for awarding the punishment of barring one increment with cumulative effect. Going by Ext.P15 order, it can be seen that the Government has accepted the report and the recommendation with respect to the punishment and nothing stated in Ext.P12 report to award higher punishment than what suggested by the Enquiry Officer. In fact, the Enquiry Officer himself has found that there is no wilful negligence on the part of the delinquent employee and also found that he is only an Orthopaedic Surgeon and most scientific treatment cannot be expected from him. Though I have repeatedly gone through OP Nos.30190 & 36701 of 2001 :-7-: EXt.P15 order of the Government, nothing could be gathered or seen giving cogent ground for awarding a higher punishment other than what reported by the Enquiry Officer. In the absence of such reasons or explanation and especially, when the Enquiry Officer was of the opinion that there was no wilful negligence on the part of the delinquent Doctor, I am of the view that the punishment awarded by the Government as per Ext.P15 order is exorbitant and disproportionate to the degree of guilt proved against the delinquent employee. Therefore, Ext.P15 is liable to be interfered with. 11. As stated in the foregone paragraph, Ext.P15 order is the final outcome of the disciplinary proceedings initiated against the delinquent Doctor and the petitioner has no role to interfere and say about the mode and extent of punishment to be awarded against the delinquent employee of the Government who is the employer. It is for the Government, being an employer of the delinquent employee, to take appropriate decision with respect to the punishment to be awarded against the guilty servant. In the result, O.P.No.30190 of 2001 is disposed of upholding Ext.P15, but the punishment awarded is reduced to OP Nos.30190 & 36701 of 2001 :-8-: barring of two increments without cumulative effect. In the light of this modification with respect to the punishment awarded, the petitioner, who is retired from service, is entitled to get consequential retirement benefits which will be refixed by the Government. O.P.No. 36701 of 2001 In the light of the order passed by this Court in O.P.No.30190 of 2001, this original petition is closed. V.K.Mohanan, Judge MBS/ OP Nos.30190 & 36701 of 2001 :-9-: V.K.MOHANAN, J. -------------------------------------------- O.P.Nos.30190 & 36701 OF 2001 -------------------------------------------- J U D G M E N T DATED: 2-6-2009 OP Nos.30190 & 36701 of 2001 :-10-: V.K.MOHANAN, J. -------------------------------------------- OP Nos.30190 & 36701 of 2001 :-11-: O.P.NO.30190 OF 2001 -------------------------------------------- J U D G M E N T DATED:2-6-2008 OP Nos.30190 & 36701 of 2001 :-12-: