Suspension Period Spent In Gainful Private Practice To Be Treated As Leave; Employee Not Entitled To Salary : J&K HC

A Division bench of the Jammu and Kashmir High Court comprising Justice Sanjeev Kumar and Justice Sanjay Parihar held that suspension period during which the employee gainfully engaged in private practice should be treated as leave, and employee is not eligible for salary during such period. Background Facts The respondent was serving as a B-Grade Specialist in Surgery at the District Hospital, Anantnag. On 16.08.2006, he performed a gallbladder surgery on a female patient. Later she unfortunately passed away the same evening. The authorities placed him under suspension alleging medical negligence by order dated 19.08.2006. An Enquiry Committee was constituted on 17.08.2006 to investigate the incident which included a Senior Specialist Surgeon from a district other than Anantnag. However, the Committee proceeded without associating a senior surgeon. It was concluded that the patient's death was due to the overconfidence of the respondent-doctor in operating on a high-risk case, with lack of post-operative care by doctors on duty. Therefore, two show-cause notices were issued to the respondent on 13.06.2008. One proposed termination of service and another proposed withholding of increments. The respondent submitted his replies to both. Thereafter, the authority imposed the penalty of “censure” by order dated 27.07.2009. Subsequently, it was directed by the authority by order dated 27.12.2010, that the suspension period be treated as leave. Aggrieved, the respondent challenged both the orders. The matter was later transferred to the Central Administrative Tribunal, Srinagar. It was held by the Tribunal that the petitioners had not provided a fair opportunity to the respondent-doctor to defend himself, as the enquiry report was never handed over to him for filing an effective reply/representation. The Tribunal also found fault with the constitution of the Enquiry Committee, which was constituted without associating a Senior Surgeon Specialist as was mandated by the terms of reference. Therefore Tribunal quashed the impugned orders imposing the punishment of censure and treating the period of suspension as on leave. Aggrieved by the same, the State filed a petition against the Tribunal's order. It was submitted by the petitioners that the Enquiry Committee, after examining the circumstances of the surgery, found the respondent-doctor negligent and responsible for the death of the patient. The petitioners emphasized that the findings revealed overconfidence on the part of the respondent in undertaking a high-risk surgery, along with inadequate post-operative care. It was further submitted that under Rule 35 of the Civil Services (Classification, Control and Appeal) Rules, 1956, for imposition of a minor penalty such as censure, the only requirement of law is to afford an opportunity of hearing to the delinquent officer. On the other hand it was submitted by the respondent that the Enquiry Committee was not constituted in accordance with the mandate of the order dated 17.08.2006, which required the association of a Senior Specialist Surgeon. It was further submitted that the complete enquiry report was never furnished to him, and only the concluding portion was provided. The respondent argued that without access to the full report, he was deprived of making an effective representation. Findings of the Court It was observed by the Court that the Enquiry Committee was not constituted in accordance with the mandate of the order dated 17.08.2006, which specifically required the association of a Senior Specialist Surgeon. It was further observed by the Court that the complete enquiry report was never supplied to the respondent, and only the concluding portion containing the findings was furnished. It was held that even in the case of a minor penalty such as censure, Rule 35 of the Civil Services (Classification, Control and Appeal) Rules, 1956 mandates that the delinquent must be given an adequate opportunity to make a representation. It was clarified that such opportunity cannot be considered adequate unless the entire material relied upon by the disciplinary authority, including the full enquiry report, is made available. It was noted by the court that supplying only extracts deprived the respondent of his right to effectively defend himself. It was observed by the Court that the Tribunal erred in setting aside the order treating the suspension period as leave. It was held that the respondent, being a qualified surgeon, could not be expected to remain idle during the period of suspension. It was held by the court that respondent was gainfully engaged in private practice. Therefore, granting full salary by treating the period as duty would amount to unjust enrichment. It was held by the Court that treating the suspension as leave was both reasonable and legally sustainable. With these observations, the Court ...

Suspension Period Spent In Gainful Private Practice To Be Treated As Leave; Employee Not Entitled To Salary : J&K HC

Namdev Singh

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