Relief: Court quashes suspension order of Neurologist accused of private practice

Written by Sanchari Chattopadhyay Published On 2021-07-04T09:30:52+05:30 | Updated On 4 July 2021 9:30 AM IST

Relief: Court quashes suspension order of Neurologist accused of private practice

Srinagar: Quashing the suspension order of a neurologist, the Jammu Kashmir High Court has directed the government to release all the benefits including pensionary and retiral entitlements including gratuity and leave salary to the doctor.

The case concerned a neurologist, who along with two other doctors were suspended on January 6, 2018 on the charges of having indulged in private practice in violation of the rules. The impugned suspension order was issued based on a sting operation carried out by some private journalist reflecting him and the other two doctors to be doing the private practice which is prohibited by the Service Conduct Rules of the SKIMS.

The doctor replied to the charge sheet denying the allegation of having indulged in private practice and subsequently, retired from service as Professor, in the Department of Neurology, Sheri Kashmir Institute of Medical Sciences, Soura, Srinagar (SKIMS) on 31st August, 2018.

However, the neurologist alleged that he received a show-cause letter again and on approaching the authorities for filling the response did not receive cooperation, while the one of the other doctors who was also suspended under the same charges was only warned to be careful in future.

Aggrieved of the action initiated against him, the neurologist filed a petition arguing,

"Despite having retired from active service, has been awarded major punishment of reduction in rank and is only being paid the provisional pension. The question arises as to whether the respondents are justified in adopting two yardsticks in the matter?"

He sought relief and claimed that no proper inquiry has been made in the case, nothing has been proved against him, adding that the inquiry initiated and the report prepared are based on surmises and conjunctures. He further submitted that the sting operation without any evidence about the allegation of indulging in private practice is no proof in law.

Meanwhile, the counsel for the state government contended that all posts of SKIMS are non-practising posts, that is, private practice by faculty members and paramedical staff is banned. The faculty members of SKIMS are given a Non-Practicing Allowance (NPA) to the extent of 25% of their basic pay in lieu of not practicing within and outside the campus during and after official hours.

The counsel added that the Criminal Law Amendment Act, 2002 declared private practice by Faculty Members and Paramedical Staff of SKIMS as a Criminal Offence. Therefore, since the petitioner, was caught in a sting while conducting private practice, the writ petition of the petitioner deserves to be dismissed.

After considering the submission of both the parties, the court found nothing distinguishable in the petitioner's case. The court observed,

"The answer, in my opinion, is an emphatic 'NO' as there was nothing distinguishable in the petitioner's case, at least there is nothing before this court, that would suggest that petitioner deserved to be proceeded differently..I attest to the accuracy and integrity of this document respondents were required to point out very clearly as to how the act of the petitioner constituted a more serious misconduct or the indiscipline compared to the other doctor who has been reprimanded only despite, admittedly, having indulged in the same act as that of the petitioner. The act of the respondents in awarding a major penalty to the petitioner, therefore, is violative of Article 14 of the Constitution of India.""

"Furthermore, the court has to see as to whether the grounds forming basis for suspension of the petitioner have any evidentiary value in law or not. The first thing that strikes mind is that the possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out as it may render the statement out of context, therefore, inadmissible," the court added.

The court noted,

"The submissions made by learned counsel for petitioner carry weight and are persistent with law. In my opinion the treatment extended to the petitioner is discriminatory and violative of Article 14 of the Constitution of India. The punishment awarded to the petitioner, therefore, is held to be bad in law, therefore, deserves to be interfered with."

The court also clarified, "Since there is nothing in the shape of a videotape etc, produced before the court to point out that the petitioner has, in essence, indulged in (the sting video)... I attest to the accuracy and integrity of this document private practice, therefore, to return a finding vis-à-vis its authenticity or its evidentiary value, is out of place."

A bench of Justice Ali Mohammad Magrey subsequently quashed the suspension order and the show-cause notice and held,

"In view of above, the writ petition succeeds and is allowed as such along with all CMs and by a Writ of Certiorari i) the impugned Government Order No. 01-SKIMS of 2018 dated 06.01.2018 insofar as it pertains to petitioner ii) Memorandum No. SIMS/Per/1317/2017/18-546-51 dated 20.01.2018 along with Articles of Charge/ Statement of imputation; iii) Notice bearing No. PS/Home/2018/78 dated 23.04.2018 issued by Inquiry Officer (Principal Secretary to Government, Home Department); iv) Show cause notice issued by the respondent no. 3 bearing No. SIMS/Per/3591/2019-3353-59 dated 16.05.2019 are quashed. Respondents, by a writ of mandamus, respondents are commanded to release all the benefits including pensionary and retiral benefits including Gratuity, Leave Salary and regulate his regular pension, with effect from the date the same has become due to him, in such a way as if nothing incriminating was ever found against the petitioner."

To view the official order, click on the link below:

https://medicaldialogues.in/pdf_upload/reservedon0106202vsstateofjkandotherson28june2021-156727.pdf

Jammu Kashmir High Courtneurologistsuspension revokedprivate practiceSheri Kashmir Institute of Medical Sciencesskims

Sanchari Chattopadhyay

Sanchari Chattopadhyay has pursued her M.A in English and Culture Studies from the University of Burdwan, West Bengal. She likes observing cultural specificities and exploring new places.