CWP/3998/2019 of INDIRA THAKUR Vs STATE OF HP AND ANOTHER on 31 December 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. 3998 of 2019

Date of decision: 31.12.2019

Smt. Indira Thakur and another

…Petitioners.

Versus

State of H.P. and another

..Respondents.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting ?[1] Yes

For the Petitioners: Mr. Onkar Jairath and Mr. Shubham Sood, Advocates.Sood, Advocates.

For the Respondents : Mr. Ajay Vaidya, Senior Additional Advocate General with Mr. Desh Raj Thakur, Addl. Advocate General and Mr.Narinder Thakur, Deputy Advocate General.Advocate General with Mr. Desh Raj Thakur, Addl. Advocate General and Mr.Narinder Thakur, Deputy Advocate General.

Tarlok Singh Chauhan, Judge (Oral)

The petitioners were appointed as Staff Nurses in the year

1997. One Anil Thakur made a complaint on 4.7.2016 to the MedicalSuperintendent, Kamla Nehru Hospital for Mother and Child, allegingtherein that on 26.5.2016 an incident of baby exchange had takenplace in the hospital and requested for a thorough prove into theincident.

1Whether reporters of Local Papers may be allowed to see the Judgment ?

2. The complaint in turn was referred to the Committeecomprising of the Principal, Indira Gandhi Medical College, Shimla (forshort ‘IGMC’) and other five members, who were the head of differentDepartments of IGMC. The aforesaid Committee inspected the entirerecord and also examined about 16 persons and after detailedinvestigation came to the conclusion that nothing adverse had beenproved against the persons involved in the conduct of delivery on26.5.2016. The Expert Committee came to the conclusion that it wasproved beyond doubt that the exchange of babies was purely a humanerror.

3. It was thereafter that Sheetal wife of Anil Thakur approached this Court by way of CWP No. 2214 of 2016, titled Sheetalvs. State of H.P. and others. During the pendency of the writ petitionboth Sheetal and Anjana whose babies had been swapped alongwiththeir families arrived at amicable settlement and the writ petition wasaccordingly disposed of vide order dated 27.10.2016 with a direction tothe respondents to conclude the investigation and take thedepartmental inquiries to its logical end.

4. On 5.12.2016, the petitioners were served with Articles ofCharges and statement of imputations of misconduct and mis- behaviour in support of each Article of Charge. The Articles of Chargesframed against petitioners No.1 and 2, read as under:

ARTICLE -1

That Smt. Indira Thakur, while working as Staff Nurse at KamlaNehru State Hospital for Mother and Child Shimla andperforming her Night Duty on 26.05.2016 in Labour Room atKamla Nehru State Hospital for Mother and Child Shimla wasfound negligent for swapping new born babies as per DutyRoster maintained by Ward Sister. Exchange of babiesoccurred of Smt. Anjana and baby of Smt. Sheetal born on26.05.2016 at 11.07 PM and 11.10 PM respectively which wasproved by DNA report. As per protocol, the deviation occurredafter the birth of babies between 11.07 PM and 11.10 P.Mwhich resulted into the exchange of babies because of thenegligence of the staff on duty. She has applied wrong tagsand worn wrong clothes to the babies due to error in initialstages. This omission and commission of Smt. Indira Thakur,Staff Nurse amounts to be a misbehaviour/misconduct underthe provisions of CCS(Conduct) Rules, 1964 and is liable toface disciplinary action.

ARTICLE-II

That the said Staff Nurse was supposed to help thedoctor during delivery process as a team work and shouldhave properly handed over the baby to the TBA/Staff Nurseand should have examined the sex of the baby. As per recordin the Labour Room Register Smt. Indira Thakur, Staff Nursehas written male baby of Smt. Anjana and female baby ofSmt. Sheetal which was proved wrong after the DNA report

which is negligence during duty hours. This omission andcommission of Smt. Indira Thakur, Staff Nurse amounts to bemisbehaviour/misconduct under the provision of CCS(Conduct) Rules, 1964 and is liable to be disciplinary action.”

ARTICLE -1

That Smt. Sundra Devi, while working as Staff Nurse at KamlaNehru State Hospital for Mother and Child Shimla andperforming her Night Duty on 26.05.2016 in Labour Room atKamla Nehru State Hospital for Mother and Child Shimla wasfound negligent for swapping new born babies as per DutyRoster maintained by Ward Sister. Exchange of babiesoccurred of Smt. Anjana and baby of Smt. Sheetal born on26.05.2016 at 11.07 PM and 11.10 PM respectively which wasproved by DNA report. As per protocol, the deviation occurredafter the birth of babies between 11.07 PM and 11.10 P.Mwhich resulted into the exchange of babies because of thenegligence of the staff on duty. She has applied wrong tagsand worn wrong clothes to the babies due to error in initialstages. This omission and commission of Smt. Sundra Devi,Staff Nurse amounts to be a misbehaviour/misconduct underthe provisions of CCS(Conduct) Rules, 1964 and is liable toface disciplinary action.

ARTICLE-II.

That the said Staff Nurse was supposed to help the doctorduring delivery process as a team work and should haveproperly handed over the baby to the TBA/Staff Nurse andshould have examined the sex of the baby. As per record inthe Labour Room Register Smt. Sundra Devi, Staff Nurse haswritten male baby of Smt. Anjana and female baby of Smt.

Sheetal which was proved wrong after the DNA report whichis negligence during duty hours. This omission andcommission of Smt. Sundra Devi , Staff Nurse amounts to bemisbehaviour/misconduct under the provision of CCS(Conduct) Rules, 1964 and is liable to be disciplinary action.”

5. denied the allegations levelled against them.

The petitioners submitted their written statement and

6. Initially Dr. Ashok Kumar Gupta, Joint Director HealthServices was appointed as Inquiry Officer, but the said Inquiry Officershowed his inability to conduct the inquiry and it was Dr. R.K. Baria,Dy. Director Health Services, who thereafter was appointed as InquiryOfficer vide order dated 14.8.2017. The Inquiry Officer conducted thedetailed inquiry and submitted the same to the Disciplinary Authority,i.e. respondent No.2 Director Health Services vide his report dated28.12.2017.

7. The Disciplinary Authority i.e. respondent No.2 on14.3.2018 pointed out certain alleged discrepancies in the inquiryreport and requested the Inquiry Officer to submit inquiry reportkeeping in view the observations/issues and points so raised.

8. Accordingly, the Inquiry Officer again conducted inquiryand thereafter submitted his report alongwith conclusions on 9.01.2019 and the final conclusions drawn by the Inquiry officer were annexed as Annexure R-V, and the same read as under:

“Conclusion:

In the detailed deliberations and statements ofwitnesses which were scrutinized thoroughly and the followingconclusion drawn:

1. The incidence of swapping of babies did take place onnight of 26.5.2016 which was proved later on by DNA test.

2. The majority of staff on duty was not aware of theincidence and they come to know this episode from the newspapers days after the incidence.

3. Even the Complaints Smt. Anjana and Smt. Sheetalwas not sure of incidence and this story put forth by Smt.Sheetal who got male child later on by order of the Hon’bleCourt is not convincing at all. She only told that she was told inthe night about the male child by some female employee whomshe did not identify.

4. It is true that the right babies were restored to biologicalparents.

From the statements of the witnesses it is proved beyonddoubt that it is purely a human error especially mentioned byMatrons who were there in the Kamla Nehru Hospital for morethan thirty years.

To conclude Article-I does not stand test of inquiry and Article-IIdoes not prove in process of inquiry.

This is for your further necessary action, please.”

9. However, the Disciplinary Authority i.e. respondent No.2

again was not satisfied with the conclusion drawn by the Inquiry Officer and accordingly vide letter dated 14.01.2019, directed the InquiryOfficer to submit a fresh report clearly specifying therein whether thecharge stands “proved” or “not proved”.

10. In compliance to the aforesaid order, the Inquiry Officeragain submitted his report to respondent No.2 on 19.1.2019 whereinhe observed as under:

“1.The incidence of swapping of babies did take place on night of 26.5.2016 which was proved later on by DNA test.

2. The majority of staff on duty was not aware of theincidence and they come to know this episode from the newspapers days after the incidence.

3. Even the Complaints Smt. Anjana and Smt. Sheetalwas not sure of incidence and this story put forth by Smt.Sheetal who got male child later on by order of the Hon’bleCourt is not convincing at all. She only told that she was told inthe night about the male child by some female employee whomshe did not identify.

4. It is true that the right babies were restored to biologicalparents.

5. From the statements of the witnesses it is provedbeyond doubt that it is purely a human error especiallymentioned by Matrons who were there in the Kamla NehruHospital for more than thirty years.

Article-I NOT PROVED.

Article -II NOT PROVED.”

11. It is thereafter that respondent No.2 without setting asidethe inquiry report as submitted by Dr. R.K. Baria, ordered a denovoinquiry by appointing Dr. Sanjay Pathak, Medical Superintendent,HHMH&R, Shimla as Inquiry Officer to inquire into the charges framedagainst the petitioners.

12. Aggrieved by the order of denovo inquiry, the petitionershave filed the instant petition for the grant of following reliefs:

(I) That the writ in the nature of certiorari or any otherappropriate writ, order or directions may kindly be issued,quashing the order dated 30.4.2019 (Annexure P-8), wherebyde-novo inquiry has been initiated against the petitioners,being illegal, arbitrary, discriminatory and unconstitutional andagainst the settled law of service jurisprudence.

(ii) That the writ in the nature of mandamus or any otherappropriate writ, order or directions may kindly be issued,directing the respondents to bring the departmental inquiryinitiated against the petitioners to its logical end as early aspossible making basis the Inquiry Report submitted by theInquiry Officer on 28.12.2017 (Annexure P-7).

(iii) That the writ in the nature of Mandamus or any otherappropriate writ, order or directions may kindly be issued,directing the respondents not to convene fresh DPCproceedings for promotion to the post of Ward Sister till theconclusion of departmental inquiry on the basis of the InquiryReport dated 28.12.2017.”

13. In the aforesaid background, the moot question iswhether the respondents could have resorted to a de-novo inquirywithout first setting aside the earlier inquiry report submitted by Dr.R.K. Baria.

14. Rule 15 of the Central Civil Services (Classification,Control and Appeal) Rules, 1965 needs to be noticed and the samereads as follows:

"15(1). The Disciplinary Authority, if it is not itself the InquiringAuthority may, for reasons to be recorded by it in writing, remitthe case to the Inquiring Authority for further inquiry and reportand the Inquiring Authority shall thereupon proceed to hold thefurther inquiry according to the provisions of Rule 14, as far asmay be.”

15. The aforesaid Rule clearly contemplates the power of theDisciplinary Authority and the action that is required to be taken on thebasis of the Inquiry Report. Nowhere does the Rule empower thedisciplinary authority to set-aside the whole inquiry and get the Articleof charges re-inquired from any other Inquiry Officer for no substantialreasons.

16. It is well settled that disciplinary proceedings againstemployees conducted under the provisions of CCS (CCA), Rules,1965 or under any corresponding Rules are quasi judicial in nature and as such, it is necessary that orders in such proceedings areissued by the competent authorities in accordance with the Rules asthe order issued by such authorities attribute to a judicial order.Further any decision arrived at by the disciplinary authority or appellateauthority under the said Rules, is in the capacity of quasi judicialauthority. Thus, it is obligatory for the authority to record reasons asthis will insure that the decision so arrived at is in accordance with lawand not a result of caprice, whim and fancy of the officer concerned.

17. The issue otherwise is no longer res integra in view of thejudgment of the Constitution Bench of the Hon’ble Supreme Court inK.R. Deb vs. The Collector of Central Excise, Shillong AIR 1971SC 1447 wherein it was held as under:

“13. It seems to us that Rule 15, on the face of it, reallyprovides for one inquiry but it may be possible if in a particularcase there has been no proper inquiry because some seriousdefect has crept into the inquiry or some important witnesseswere not available at the time of the inquiry or were notexamined for some other reason, the Disciplinary Authoritymay ask the Inquiry Officer to record further evidence. Butthere is no provision in rule 15 for completely setting asideprevious inquiries on the ground that the report- of, theInquiring Officer or Officers does not appeal to the disciplinary,Authority-. The Disciplinary Authority has enough powers toreconsider the evidence itself and come to its own conclusionunder rule 9.”

18. It needs to be noted here that it is not the case of therespondents that the Inquiry Officer had not followed the correctprocedure while conducting inquiry, more particularly, in takingevidence of the witnesses. Therefore, the judgment of the Hon’bleSupreme Court in Union of India and others vs. P. Thayagarajan(1999) 1 SCC 733 upon which strong reliance has been placed by Mr.Ajay Vaidya, learned Senior Additional Advocate General, is totallymisplaced as therein the Hon’ble Supreme Court had on the peculiarfacts of the case held that it was upon the disciplinary authority toorder de-novo inquiry when it was found that the Inquiry Officer hadnot followed the correct procedure in taking evidence of the witnesses.

19. As a matter of fact, an identical question came up beforethe Hon’ble Supreme Court in Kanailal Bera vs. Union of India andothers (2007) 11 SCC 517 wherein while dealing with a similarprovision contained in Rule 27 of the Central Reserve Police ForceRules, 1955 the Hon’ble Supreme Court held that once a disciplinaryproceedings have been initiated, the same must be brought to itslogical end. Meaning thereby, a finding is required to be arrived at asto whether the delinquent officer is guilty of charges levelled againsthim or not. In a given situation further evidence may be directed to beadduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled againsthim another inquiry would be directed to be initiated on the samecharges which could not be proved in the first inquiry.

20. An identical question came up for consideration before aco-ordinate bench (Coram: Hon’ble Mr. Justice Surinder Singh,J, ashis Lordship then was) in D.N. Sharma vs. H.P. State ElectricityBoard Latest HLJ 2009 (HP) 652 wherein after placing reliance onthe judgment of the Hon’ble Constitution Bench of the Hon’bleSupreme Court in K.R. Deb (supra) it was held that the disciplinaryauthority cannot order re-inquiry by some other Inquiry Officer onreceipt of the inquiry report as the powers have to be exercised strictlyin accordance with Rule 15 of the CCS (CCA) Rules, 1965.

21. In view of the aforesaid discussion, I find merit in theinstant petition and the same is accordingly allowed and the impugnedorder dated 30.04.2019 (Annexure P-8) whereby de-novo inquiry hasbeen ordered to be initiated against the petitioners is quashed and set-aside and the respondents are directed to take the inquiry reportsubmitted by the Inquiry Officer on 28.12.2017 (Annexure P-7) to itslogical end as expeditiously as possible and in no event later than31.01.2020.

22. In sofar as the other reliefs as claimed by the petitionersare concerned, the Court is not expressing any opinion on the same.

In case the petitioners are still aggrieved, they are at liberty toapproach this Court for redressal thereof. The mere fact that theinstant petition was decided will not be a bar for entertaining such petition.

23. The petition is disposed of in the aforesaid terms, so alsothe pending application(s) if any.

31[st] December, 2019 (GR)

(Tarlok Singh Chauhan)Judge