Bombay High Court
Dr. Dilip Amonkar vs State Of Goa, Thr. Its Chief Secretary, ... on 3 October, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-GOA:1670-DB
2024:BHC-GOA:1670-DB
WP-453-2023(1).DOC
Andreza
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 453 OF 2023
Dr. Dilip Amonkar, age 68 years, Plot no. 41,
Lakie View, La Campala Lane 2, Miramar, ... Petitioner
Panaji, Goa.
Versus
1. State of Goa, Through its Chief Secretary,
Government of Goa, Secretariat, Porvorim,
Goa.
2. Secretary - Health, Government of Goa,
Secretariat, Porvorim, Goa.
3. Secretary - Finance, Government of Goa,
Secretariat, Porvorim, Goa.
4. Director of Vigilance, Government of Goa,
Serra Building, Near All India Radio, Altinho,
Panaji, Goa.
5. Director - Administration, Goa Medical
College & Hospital, Bambolim, Goa.
6. The Dean, Goa Medical College &
Hospital, Bambolim, Goa.
7. Joint Secretary - Health, Public Health
Department, Government of Goa, Panaji,
Goa.
8. Director of Accounts, Government of Goa,
Panaji, Goa.
9. Inquiry Officer, Directorate of Women &
Child Development, Government of Goa,
...Respondents
Panaji, Goa.
All registered Addresses.
Mr. S. D. Lotlikar, Senior Advocate with Ms. Sailee Keny,
Advocate for the Petitioner.
Page 1 of 9
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WP-453-2023(1).DOC
Mr. Prashil Arolkar, Additional Government Advocate
the Respondents-State.
_______________________
CORAM:
M. S. KARNIK &
VALMIKI MENEZES, J
RESERVED ON : 19th September, 2024
PRONOUNCED ON: 3rd October, 2024
_______________________
JUDGMENT (Per M. S. Karnik, J.)
1. By this petition under Article 226 of the Constitution of India,
the petitioner prays for quashing and setting aside the
inquiry/disciplinary proceedings initiated belatedly against the
petitioner ten years after the actual incident had occurred. It is
further prayed that directions be issued to release forthwith the
pensionary and retirement/terminal benefits payable to the
petitioner including the payment of gratuity.
2. The facts of the case in brief are as under :
The petitioner was appointed to the post of Lecturer on ad-hoc
basis at the Goa Medical College and Hospital (GMC). Over a period
of time, the petitioner became the Professor & Head of the
Department of Surgery at GMC from 11.12.2002 which post he held
right until his retirement at the age of 65 years on 31.12.2018. The
incident which was the cause for initiating disciplinary proceedings
against the petitioner happened some time in July 2010.
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WP-453-2023(1).DOC
3. Briefly stated, a Doctor, a specialist in the field of female
diseases was treating a patient Ms. 'R'. She was admitted in a private
Nursing Home situated in Vasco Da Gama. Upon her clinical
examination, the Doctors opined that Ms. 'R' was suffering from
acute appendicitis and was in need of undergoing an urgent operation
so as to prevent any risk and threat to her life. The surgery was
scheduled in the morning of 3 rd July 2010. The surgeon normally
operating such cases was unavailable and as the operation had to be
carried out on an emergency basis, the petitioner's help was
requested for. On the assessment of her condition and considering
the risk perception, the petitioner after following the standard
Alvarado test, proceeded to perform the emergency operation with all
the skills at his command taking all due care, caution and diligence in
conducting the operation. It was reported that the surgery was
completed successfully.
4. However, on 09.07.2010, the patient complained discomfort
and pain and had to be re-admitted. The patient was rushed to GMC
for treatment. She had to be operated by a team of Doctors at GMC
due to some complications that had arisen. Post operation the
patient was found to be stable. Later on, the condition of the patient
deteriorated and she unfortunately expired on 29.10.2010.
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WP-453-2023(1).DOC
5. A medico legal case was recorded by the police. The patient's
sister filed a complaint on 02.08.2010 alleging that death of her sister
was due to medical negligence. A Committee was formed by the
Government under the Chairmanship of Secretary (Health) to
conduct an inquiry into the allegations made vide the complaint
dated 02.08.2010. The patient's father filed another complaint
before the Disciplinary Committee of Goa Medical Council on
07.12.2011. It was alleged that the death was due to the gross
negligence of the Doctors including the petitioner.
6. On the basis of the preliminary inquiry conducted by the
Committee, the Director of Vigilance issued a memorandum to the
petitioner with the imputations of misconduct and articles of charge
by the Directorate of Vigilance. The Disciplinary Committee after
conducting a detailed investigation into the complaint, arrived at a
decision on 12.09.2016 that none of the charges framed against the
petitioner were substantiated and, as such, the petitioner was
exonerated of the charges.
7. The petitioner continued to function as a Professor & Head of
the Department of Surgery at GMC till 31.12.2018. The petitioner was
also granted an extension of 3 years after attaining the age of 62 and
eventually retired on attaining the age of 65. Two years after the
petitioner retired from service, he received a notice dated 21.07.2020
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WP-453-2023(1).DOC
from the Inquiry Authority to conduct the disciplinary proceedings
against the petitioner.
8. Learned Additional Government Advocate, Mr. Arolkar,
vehemently opposed the petition.
9. Heard. The unfortunate incident is of the year 2010. The
petitioner continued as Professor & Head of the Department of
Surgery at GMC till his retirement in 2018. The petitioner was
granted three years extension of service even after attaining the age of
62 years. There is nothing on record to indicate that during his long
stint as a Professor & Head of Surgery at GMC, there is any complaint
in the discharge of his duties except for the alleged incident. After
the disciplinary inquiry was initiated against the petitioner on
05.11.2015, the Disciplinary Committee after conducting a detailed
investigation into the complaint made by the victim's father and the
allegations/charges made therein arrived at a decision that none of
the charges framed against the petitioner are substantiated and as
such the petitioner was exonerated of the charges.
10. We find that the charges levelled against the petitioner have
been sufficiently investigated by the Disciplinary Committee of the
Goa Medical Council which exonerated the petitioner of all the
charges. A team of expert Doctors who were part of the Committee
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WP-453-2023(1).DOC
opined that there is no negligence on the part of the petitioner. Thus,
the inquiry conducted by the Committee constituted by the Goa
Medical Council had exonerated the petitioner. The petitioner had to
perform the operation in a private hospital on the request made as a
result of an emergency. There is nothing to indicate that as a result of
attending to the call for an emergency operation at a private hospital,
had resulted in neglect of performing his duties at the GMC. In fact,
post this incident of 2010, the petitioner continued as a Professor &
the Head of the Department of Surgery till his retirement in 2018
upon grant of three years extension of service was after reaching the
age of 62 years.
11. The inquiry was initiated five years after the incident on the
basis of a preliminary report of the Committee. After the inquiry was
initiated in 2015, the Committee of the experts Doctors constituted by
the Goa Medical Council exonerated the petitioner of all the charges
and found that there was no negligence on his part and that all due
care and caution was exercised as expected in performing the surgery
and post operative care. In the disciplinary inquiry which
commenced in 2015, the Inquiry Officer was appointed in 2020
almost two years after the petitioner retired. This petition was filed
in September, 2020. It must be mentioned that during the pendency
of the proceedings, the inquiry proceeded.
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WP-453-2023(1).DOC
12. Learned Additional Government Advocate submitted that as
the inquiry is at its fag end, the petition should not be entertained
only on the ground that there is a delay in completing the nquiry
having regard to the gravity of the charges.
13. During the course of the hearing, the inquiry report of the
Inquiry Officer dated 18.09.2024 was placed on record. We have
perused the findings and the conclusions arrived at by the Inquiry
Officer holding that the articles of the charges against the petitioner
are not proved. No doubt, upon considering the inquiry report, the
Disciplinary Committee can always take a different view and hence it
was urged by learned Additional Government Advocate that
directions be issued to complete the inquiry proceedings in a time
bound manner. In ordinary course, we would have accepted the
submissions of learned Additional Government Advocate. In the
present facts, we are not in favour of subjecting the petitioner to any
further disciplinary proceedings.
14. The disciplinary inquiry was initiated after five years post the
incident on the basis of a preliminary inquiry report of the Committee
constituted by the Goa Medical Council. The petitioner has been
ultimately exonerated by the Committee of all the charges levelled
against him. The petitioner was not found to be negligent in any
manner. The petitioner was competent and qualified to perform the
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WP-453-2023(1).DOC
surgery. The petitioner continued for eight years as a Professor and
Head of the Department of Surgery after the incident. In fact the
petitioner was granted an extension of three years even upon
attaining the age of 62 years. But for the unfortunate incident, the
track record of the petitioner holding such a responsible position,
appears to be without any blemish. The inquiry officer was appointed
in 2020, two years after the petitioner retired in the year 2018. The
Inquiry Proceedings continued for a period of nine years since the
time of its initiation in 2015. The delay is not solely attributable to
the petitioner. Apart from the fact that the inquiry officer held the
charges against the petitioner as not proved, it is pertinent to note
that the Committee consisting of expert Doctors, has already
exonerated the petitioner. Though the inquiry is at an advanced
stage, in the facts and circumstances of the present case and also on
the ground of delay in initiating the inquiry and concluding the
inquiry, we are inclined to allow the petition.
15. The petitioner has suffered enough mental agony on account of
the disciplinary inquiry. We rely upon the observations of the
Hon'ble Supreme Court in P. V. Mahadevan vs. Md. T. N.
Housing Board1 and State of Andhra Pradesh vs. N.
Radhakishan2, to support the view that we take.
1 (2005) 6 SCC 636
2 MANU/SC/0278/1998-(Civil Appeal no. 3503/1997 decided on 07.04.1998)
3rd October 2024
WP-453-2023(1).DOC
16. The petition is accordingly allowed in terms of prayer clause
(A) and (B), which read thus :
"(A) For a writ of mandamus or any other writ,
direction or order in the nature of mandamus,
quashing and setting aside the
inquiry/disciplinary proceedings initiated
belatedly against the petitioner ten years after the
actual incident in question had occurred and
sought to be initiated by appointing an Inquiry
Officer two years after the retirement of the
petitioner; and
(B) For a writ of mandamus or any other writ,
direction or order in the nature of mandamus,
directing the respondents to release forthwith the
pensionary and retirement/terminal benefits
payable to the petitioner including the payment
of gratuity."
17. There shall be no order as to costs.
VALMIKI MENEZES, J M. S. KARNIK, J
3rd October 2024
