No Strike For Doctors: Madras HC directs govt to ensure that doctors are happy and satisfied
Doctor must be kept happy and satisfied and it is the duty of the Government to ensure the same by finding an immediate solution for the long pending problems
Chennai: Taking note of the lack of meeting of the doctors' long term demands in the state and their consequent resorting to strike, the Madras High Court recently observed that , the Doctor must be kept happy and satisfied and it is the duty of the Government to ensure the same by finding an immediate solution for the long pending problems.
The court however, clearly concluded that the Doctors do not have the right to go on strike/boycott under any circumstances.
Responding to a petition of doctors including Senior Resident/Assistant Professor/Associate Professor/Junior Resident in various departments under the control of the Directorate of Medical Education who were seen repeated resorting to strikes to the make the government listen to their demands the court noted
This Court wants to remind the Government Doctors about the findings rendered on the first issue wherein this Court has held that the Government Doctors do not have any right to go on a strike/boycott. Therefore, the chances of the Government Doctors again going on a strike is virtually ruled out.
The court however directed the government to address the demands of doctors at the earliest
This Court makes a fervent request to the Government to immediately address the issues/demands made by the Government Doctors and find a solution. The more it is kept pending without any solution, the more it is going to affect the morale of the Government Doctors. The love and concern shown by a Doctor to a patient plays a major role in the recovery of a patient. For this to happen, the Doctor must be kept happy and satisfied and it is the duty of the Government to ensure the same by finding an immediate solution for the long pending problems. Either of the parties are not winners or losers in this litigation and this judgment must ultimately go in favour of the larger public interest involved in the present case. This can happen only if both the parties come together and find an early solution for the pending issues. Consequently, connected miscellaneous petitions are closed..
The court made these observations while responding to a series of writ petitions filed various government doctors challenging the charge memos and the transfer and posting orders issue by the Director of Medical Education and the Director of Medical and Rural Health Services.
The writ petitioners were working as Senior Resident/Assistant Professor/Associate Professor/Junior Resident in various departments under the control of the Directorate of Medical Education. There were long standing demands made by the Doctors working in various Government Hospitals through out the State seeking for revision of pay, time bound promotions, PGs posting counseling issues etc.
The petitioner narrated the series of meeting that had been taking place since September 2019 regarding the long pending unresolved issues. Post 18.09.2018. meeting the Government agreed to immediately constitute a working group consisting of all the three Directors of the Medical Education, Medical and Rural Health Services and Public Health and Preventive Medicine, and it also contemplated the active representation from the side of the Associations. The working group was expected to come up with a report within four weeks on the factual status and the appropriate recommendations to resolve the grievances. In view of this understanding, the doctors and associations agreed to put on hold all forms of protest for four weeks.However, with no response and progress doctors called for an agitation, which was challenged in the Madurai Bench of the HC. The court while ruling that doctors cannot resort to strike asked the government to deliberate on the issue and arrive at a decision by 16 February, 2019 and file an action taken report on 18 February, 2019.
Again with no progress, the Associations decided to jointly form a federation called as "Federation of Government Doctors Association" (FOGDA) and they decided to go an agitation and submitted ultimatum to government on 09.07.2019 and went on one day boycott on 18.07.2019 for two hours. A meeting was then convened by Hon'ble Minister for Health and Family Welfare 27.08.2019 where the government decided to give time-bound promotions as well as make effort to bring back 50% quota for service doctors in PG courses in the Tamil Nadu Government Medical Colleges
The doctors again went on strike in October 2019 and later withdrawn after government assurances . It is at this stage, the charge memos and transfer and posting orders came to be issued against 135 doctors who were leading the agitation. Challenging these orders on the ground of malafides , the doctors went to court.
It was submitted that nearly 18,000 Doctors participated in the agitation and the respondents have picked and chosen 135 Doctors who were identified as office bearers and charge memos and transfer orders were issued against them. It was further submitted that all the transfer orders are in the nature of punishment for having agitated for legitimate demands which were long pending in spite of repeated assurance given by the Government. It was further submitted that all the petitioners were under the control of Directorate of Medical Education and whereas the transfer orders have been passed by the Director of Medical and Rural Health Services and these orders were passed without any jurisdiction.
The learned counsel for the petitioners concluded their arguments by submitting that the Government must be a model employer and they are not expected to take vindictive against the office bearers who were only demanding the rightful claims on behalf of all Government Doctors.
The Advocate General appearing on behalf of the government submitted that whatever may be the demands of the Doctors, they are not expected to go on strike, since, it has a direct impact on the life and welfare of the patients who are taking treatment in the Government Hospitals.
The learned Advocate General further submitted that the Government took the extreme step, since it wanted to bring the situation under the control. Relying on past decisions, It was submitted that these are certain administrative decisions that have to be taken by the Government and the same cannot be made a subject matter of challenge by filing writ petitions and the petitioners can always give their reply and based on the same, a decision will be taken by the Department. The learned Advocate General submitted that if this attitude is not curtailed, it will set a very bad precedent and the Government will not be able to smoothly run the hospitals if such agitations are allowed in future.
13. The learned Advocate General submitted that the judicial review insofar as the transfer of an employee is concerned, is very limited. The same can be interfered only if it is issued without jurisdiction or if the same is tainted with malafides or it amounts to a punishment. In the instant case none of these three conditions are satisfied and therefore, there is no ground to interfere with the transfer. The same applies also to the charge memos issued to the petitioners and the petitioners can very well give their explanations and the same will be considered before taking any further course of action.The advocate further submitted various decisions of court including supreme court where
"Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
Providing details on each of the transfers the government added that Medical officers in Tamil Nadu Medical Services may be transferred and posted across three Directorates wherever their services are required and decided by the Government, as this is being done routinely.
Therefore, learned Advocate General concluded his arguments by submitting that all the above writ petitions are liable to be dismissed.
After hearing the arguments, the court noted that the important issues that requires the consideration of this Court in this batch of writ petitions are as follows:
(a) Whether the Doctors have the right to go on strike, whatever be their demands?
(b) Whether the State Government is in a way responsible for the Doctors resorting to the extreme step of going on a strike/boycott and if this impasse could have been avoided if effective steps had been taken to address the long standing demands of the Government Doctors?
(c) Whether the charge memos and the orders of transfer and posting is tainted with malafides or/and is in the nature of punishment? and
(d) Whether the impugned charge memos and transfer orders issued to the petitioners is liable to be interfered by this Court?
On the issue of the right of the Doctors go on strike/boycott, the court went in detail the previous strike by doctors, its repercussions on the society's health as well as the view held by the various state courts and apex court regarding doctors strike in the past,also taking note of an SC judgment that clearly held that damage caused on account of strikes by doctors is, sometimes, irreversible
The damage done to a patient is sometimes irretrievable, but the grievances of the persons who are resorting to strikes, etc. can be remedied in appropriate proceedings and the issues are being examined by this Court."
A conspectus of the aforesaid judgments would exposit the unanimity in judicial opinion that strikes by doctors is, ex-facie, illegal and without any justification, the court noted
The issue may be also examined from an ethical perspective. There can be little doubt that by going on strike doctors violate a fundamental maxim of medical jurisprudence "Primum, non nocere" ie., first, do no harm. The harm that befalls patients on account of strikes is unfathomable. By using strikes to resolve issues doctors, like lawyers, forget the moral worth and dignity of patients and leave them in the lurch unmindful of the humanitarian consequences that ensure from their actions. Patients cannot be a means to an end. They cannot be mere playthings whose lives can be put on the line to achieve other ends through the medium of strikes. Doctors, like lawyers, must, therefore, be reminded of what the Prussain German philosopher Immanuel Kant formulated as the second categorical imperative (the principle of humanity) when he observed as under:
"Act in such a way that you treat humanity, whether in your own person or in the person of any other, never merely as a means, but always at the same time as an end."
In view of the discussion, the Court came to a clear conclusion that the Doctors do not have the right to go on strike/boycott under any circumstances.
The court on the issue on the role of the government in addressing demands of govt doctors it noted
The Government must be a model employer. Ours, being a welfare State, the Government is bound to provide people with proper health care through Government Hospitals. These Government Hospitals and Colleges are manned by the Doctors. Their dedicated services are very essential in maintaining the health and care of the citizens. The Government ought to have given top priority for certain demands made by the Doctors and some final solution must have been reached by the Government. It is always essential that the Government takes a very clear stand on these issues, so that, the Government Doctors know, where they stand. The Government cannot keep the issues unresolved and expect the Doctors to wait endlessly. No one can force the Government to take any decisions and there are various factors that goes into the decision making process. Ultimately, if the Government is not able to meet the demands, it can clearly convey the same to the Doctors. By keeping the issue pending, the Government was only unnecessarily escalating the already charged atmosphere. In fact, in two of the meetings convened by the Hon'ble Minister for Health and Family Welfare, Associations were given the hope that the demands are being considered. When ultimately, nothing came out of the Government, it resulted in an agitation / boycott / strike. In a way, the Government itself was responsible for this situation. The Government Doctors felt that the Government is dragging its feet and it was not coming out with any conclusion and all the time lines that were given was also not adhered. The Government Doctors started getting a feeling of betrayal. This ultimately resulted in a State-wide agitation. If the Government had been proactive, the entire incident could have been avoided. In the considered view of this Court, the inaction on the part of the Government had only led to the Doctors going on a State-wide boycott / agitation / strike.
Commenting on whether the charge memos and the orders of transfer and posting is tainted with malafides or/and is in the nature of punishment, the court noted around 18000 doctors were part of the agitation and the same was being published everyday in the media and after issuing assurances of meeting their demands, the Department had chosen 135 persons and issued them with charge memos and transfer orders.
In the present case, the action taken by the Government by picking and choosing certain Doctors and issuing them with the charge memos and transfer orders, was not done to bring the situation under control, but it was done to warn the Doctors that any one who sphere heads such agitations will be dealt with iron hands. It is clear from the facts that the Hon'ble Chief Minister and the Hon'ble Minister for Health had requested the Doctors to resume work on 30.10.2019 with a promise that their demands will be looked into. Immediately, the agitation was called off and the Doctors resumed duty on 01.11.2019. As a model employer, the Government ought to have followed up and come out with solutions for the demands made by the Government Doctors. Instead of resorting to such a positive step, the Government decided to show its might against the office bearers.
There are not many Government servants who will willingly sphere head any agitation. However, there are some who will put their interest behind and take the over all interest of the Doctors to the forefront and decide to lead an agitation. The concerned person is not doing it for his selfish interest and it is being done in the interest of all the Government Doctors. It is seen that some of these Doctors are highly qualified and they have a lot of experience in service. These Doctors who sphere head the agitation are not instigating or conspiring or inciting an unlawful act. They are merely the representatives of the entire body of the Government Doctors. They should not be assigned the role of a villain and singled out and dealt with in such a harsh manner. On one occasion, this Court requested the learned Advocate General to take instructions from the Government as to whether the charges can be dropped and some solution can be found out for the problem. The learned Advocate General on instructions came back and said that the Government is not willing to take back the charge memos and that it has decided to continue further with the action. This attitude of the Government clearly shows that they want to send a very strong message to the Government Doctors that no one in future will make any demands in his capacity as office bearers, on behalf of the Doctors.
The court noted that the charge memos and the transfer orders that have been issued by the respondents, is clearly tainted with malafides. If action had to be necessarily taken for the agitation / strike, then it should have been taken against all the Doctors who participated in the same. However, the respondents have chosen to go only against the office bearers and hasty transfer orders have been passed and charge memos have been issued.Most of the Doctors who were transferred have also joined in the transferred place.
"The manner in which the respondents have picked and chosen Doctors to issue charge memos and transfer orders, clearly demonstrates the vindictiveness in issuing the orders. The charge memo and the transfer orders are clearly punitive in nature. This was not expected from the Government which should be a model employer. The fact that the Government is yet to come out with a solution for the demand made by the Government Doctors, shows that they are more interested in punishing the Doctors than finding a solution for their demands. Doctors going on a strike/boycott is a very rare phenomenon which does not happen very often. Unfortunately, the Government pushed the Doctors to take the extreme step and now the Government wants to punish those Doctors and warn them not to make any demands in future. This attitude of the Government requires a change. The Government will have to lend its ears to the demand made by the Government Doctors and find out a solution rather than spending its energy in punishing Doctors. These Government Doctors are too small before the might of the Government and therefore, the Government, who is a model employer must use its might and power to find a solution and not to wield a sword.
In view of the above discussion, the Court has absolutely no hesitation in coming to a conclusion that the transfer orders and the charge memos issued to the petitioners are clearly tainted with malafides and it has been issued only to punish the petitioners who were sphere heading the agitation. The above discussion does not leave this Court with any other alternative except to interfere with the charge memos and the transfer orders issued by the Director of Medical Education and Director of Medical and Rural Health Services to the petitioners and accordingly the same stands quashed.
The court then allowed all the writ petitions and further directed that the transfer orders issued against the petitioners shall be recalled in the next transfer counseling and the petitioners shall be restored to their original position in the Directorate of Medical Education.
Before ending the judgement the court clearly noted that it expects the Government to adopt this attitude to resolve the long standing grievance of the Government Doctors.
Before ending this judgment, this Court wants to remind the Government Doctors about the findings rendered on the first issue wherein this Court has held that the Government Doctors do not have any right to go on a strike/boycott. Therefore, the chances of the Government Doctors again going on a strike is virtually ruled out. This Court makes a fervent request to the Government to immediately address the issues/demands made by the Government Doctors and find a solution. The more it is kept pending without any solution, the more it is going to affect the morale of the Government Doctors. The love and concern shown by a Doctor to a patient plays a major role in the recovery of a patient. For this to happen, the Doctor must be kept happy and satisfied and it is the duty of the Government to ensure the same by finding an immediate solution for the long pending problems. Either of the parties are not winners or losers in this litigation and this judgment must ultimately go in favour of the larger public interest involved in the present case. This can happen only if both the parties come together and find an early solution for the pending issues. Consequently, connected miscellaneous petitions are closed. No Costs.