Dr. Dhruba Banik vs The State Of Tripura
2021 Latest Caselaw 1220 Tri

                    IN THE HIGH COURT OF TRIPURA
                                  AGARTALA
                             W.P.(C)No.581 of 2021

     Dr. Dhruba Banik,
     son of late Rajendra Chandra Banik,
     Officers' Quarters Lane, Krishnanagar,
     Agartala, West Tripura, PIN: 799 001


                                                          ............ Petitioner (s)

                                   -Versus-

1.   The State of Tripura,
     represented by the Chief Secretary,
     Government of Tripura,
     New Secretariat Complex,
     P.O. Dhaleswar, P. S. East Agartala,
     P.S. N.C.C., District: West Tripura,
     PIN: 799 010
2.   The Chief Secretary,
     Government of Tripura,
     New Secretariat Complex,
     P.S. N.C.C., District: West Tripura,
     PIN:799 010
3.   The Principal Secretary,
     Government of Tripura,
     New Secretariat Complex,
     P.S. N.C.C., Agartala,
     District: West Tripura,
     PIN:799 010
4.   The Director of Health Services,
     Government of Tripura,
     P.N. Complex, Gurkhabasti,
     P.S. N.C.C., District: West Tripura,
     PIN:799 010
                                                  ............ Respondent(s)

     For the Petitioner (s)        :        Mr. A. Roy Barman, Adv.
     For the Respondent (s)        :        Mr. D. Sharma, Addl. G.A.
     Date of hearing & delivery    :        08.12.2021
     of Judgment & order
     Whether fit for reporting     :        No





              HON‟BLE MR. JUSTICE S. TALAPATRA
                   JUDGMENT & ORDER [ORAL]

Heard Mr. A. Roy Barman, learned counsel appearing for

the petitioner as well as Mr. D. Sharma, learned Addl. G.A.

appearing for the respondents.

[2] The controversy as raised in this writ petition falls within

a short compass. The petitioner conducted an appendectomy

operation on one Saumyajit Das on 23.06.2015 at a private

nursing home in the late night of 23.06.2015 which was emergent

in order to save the life of that patient. It has been stated by the

petitioner that the emergency operation theatre of Indira Gandhi

Memorial Hospital, Agartala was not functioning at night and the

patient was reluctant to go to the other government hospital at

Agartala. The condition of the patient was fast deteriorating and as

such, the petitioner was persuaded to conduct the said operation in

a private nursing home.

[3] Against the petitioner, a complaint was lodged by the

mother of the patient that the petitioner had taken payment of

Rs.25,000/- for conducting the said operation on 23.06.2015. The

petitioner was charged of practising at private nursing home during

the period from 23.06.2015 to 26.06.2015 and thereby he had

breached the prohibition clamped by the notification dated

04.08.2015 that no government doctor is permitted to attend in

any nursing home/private hospital/clinic. But the petitioner has

breached that notification and thus violated Clause-(iii) of Rule 25

of Tripura Health Services Rule, 1974.

[4] The petitioner by filing the written statement denied the

allegations and contended that as a doctor he was persuaded to

conduct the said emergency operation in order to save the life of

the patient. After inquiry, the inquiring authority filed its report on

29.05.2019 and in the inquiry report, it has been observed inter

alia that the petitioner has mis-conducted himself by taking up the

responsibility of operating that patient. However, it has been

further observed in the said inquiry report that analysis of the

evidence shows that the petitioner had indeed

conducted/performed appendectomy operation at a private nursing

home. The petitioner has responded by saying that at the relevant

point of time, the emergency operation theatre of IGM Hospital

was not operating. According to the inquiry authority that plea is

not acceptable. Thus, the final finding by the inquiry authority is

that the petitioner has violated the provisions of Rule 3 of the

TCS(Conduct) Rules, 1988. It is noteworthy that prior to this

inquiry, a group of experts [the committee] were asked to make

the preliminary inquiry. That committee has also observed that the

operation of the said patient was done in a private hospital, but

they have observed as well that the operation was essential for the

saving life of the patient and the post-operation complications that

occurred are known phenomena. But they did not get any proof

that the petitioner charged any fees. At least, there was no

documentary evidence.

[5] Mr. A. Roy Barman, learned counsel appearing for the

petitioner has submitted that by the notification dated 13.07.2015,

policy of the Government was circulated. The said policy stated,

amongst other things, that:

"In order to enable the Health Administrative Officers under the Health & Family Welfare Department, Government of Tripura to effectively discharge their official duties and in the interest of public service, the State Government in pursuance of Rule 25 of T.H.S. Rules, 1974 as amended, from time to time, hereby declares that the following administrative posts as „Non Practicing‟ with immediate effect.

             i.    All Directors of the Health & Family Welfare Department
             ii. All Additional Directors
             iii. All Joint Directors
             iv. All Deputy Directors
             v.    All Assistant Directors

Vi. All Medical Superintendent of State/District Hospitals vii. Chief Medical Officers/Programme Officers viii. Sub-Divisional Medical Officers"

[6] In para-3 of the said notification dated 13.07.2015

postulated that permission for private practice, if any, issued to the

incumbents holding the above posts shall be treated as withdrawn

with 'immediate effect'. In respect of the other officers Rule 25

would apply. Rule 25 deals with 'private practice' for the medical

officers in the Tripura Health Services. Rule 25 of Tripura Health

Service Rules, 1974 provides as under:

"A person appointed to the service shall not ordinarily be allowed to do private practice of any kind whatsoever, including consultant and laboratory practice. Instead, they shall be entitled to a non-practicing allowance indicated in rule 19 Provided that on their exercise of option so to do, they may be allowed to do private practice subject to the following terms and conditions:

i. Non-practising allowance shall not be allowed to those who shall opt for private practice;

ii No Medical Officer shall be allowed to do private practice of any kind during their duty hour and when they are required to attend patients in Hospital;

iii. They shall not be allowed to be attached to any Nursing home, Clinic, Laboratory or any Medical Institution run privately;

iv. They shall charge fees from the private patients at a fixed and reasonable rate to be determined in consultation with the Medical Association and approved by the Government; v. They shall not charge any fee from the patients already admitted in the hospital or the patients who are registered in the Out Patients Department;

vi. Medical Officers opting for private practice shall maintain detailed diary of their patients and fees charged; vii. The option so exercised by the Medical Officer for doing private practice may be withdrawn at any time and the Government also may obliterate the same at their discretion; viii. Medical Officers opting for private practice shall display those rules prominently in their private chamber for information of the patients in general.

The above provisions are notwithstanding anything said in Rule 15 of Central Civil Service (Conduct) Rules as extended to Tripura."

[Emphasis added]

[7] Mr. A Roy Barman, learned counsel for the petitioner

has produced today a document to show that on 20.06.2008, the

petitioner surrendered in writing his non practicing allowance with

effect from 1st July, 2008. However, the petitioner was asked to

submit such statement in the prescribed format. From the records,

as made available to this court, it appears that the petitioner has

submitted the statement in the format. It further appears from one

representation dated 18.09.2015, a copy of which has been filed

by Mr. A. Roy Barman, learned counsel appearing for the

petitioner. There, the petitioner has made a categorical statement

that he has not been paid NPA with effect from 01.07.2008 by the

Medical Superintendent, IGM Hospital where he was posted during

the relevant period. Thus, he had right to private practice.

[8] Mr. D. Sharma, learned Addl. G.A. appearing for the

respondents has submitted that such option was accepted only on

19.11.2015 by the appropriate order. But Mr. Sharma, learned

Addl. G.A. did not dispute the statement that the petitioner

surrendered NPA with effect from 01.07.2008 the petitioner was

not paid NPA from that day. From the charge memo dated

17.01.2017 [Annexure-1 to the writ petition] it transpires very

clearly that the only charge against the petitioner, in crux, is that

he performed his private practice in a private nursing home during

the period from 23.06.2015 to 26.06.2015 and thus, he has

violated the said notification dated 04.08.2015 as well as Clause-

(iii) of Rule 25 of Tripura Health Service Rules, 1974.

[9] The moot point in this controversy is whether the

petitioner had surrendered the Non-Practicing Allowance to carry

on the private practice before the said operation. The documents

as filed by Mr. Roy Barman are taken on record. Even the copy of

the order dated 19.11.2015 as submitted by Mr. Sharma, learned

Addl. G.A. is also taken on record. This aspect of the matter was

not placed before the inquiry authority. The inquiry authority as

well did not explore on aspect. According to this court, the inquiry

authority's report dated 29.05.2019 ought to have considered

whether the petitioner had surrendered the non-practicing

allowance (NPA) or not. The focus of the inquiry was whether the

petitioner had done the private practice or not and if the petitioner

had done the private practice whether such practice would

constitute misconduct for taking disciplinary action against him

under Section 3 of Tripura Civil Services(Conduct) Rules, 1988.

The allegation of negligence as brought against the petitioner as it

appears from the charge memo did not form part of the charge. It

has been placed in the perspective facts. The charge was confined

to the private practice of the petitioner which according to the

disciplinary authority was carried on in violation of Clause-(iii) of

Rule 25 of the Tripura Health Service Rule, 1974. Even the defence

plea was not structured on the surrender of NPA by the petitioner.

[10] From a close reading of the entire inquiry report, it

would be apparent that the petitioner had asserted that he had a

chamber for private practice. The petitioner had also stated that he

was also aware of the substance of the notification dated

04.08.2015, but no further question was asked to the petitioner

whether he has been allowed to do private practice on surrender of

NPA. There had been a slew of questions relating to 'carelessly

conducting the operations'. But the allegation of the negligence

has not formed the part of the charge. Reference of the

preliminary report as submitted by the committee [of experts] has

been recorded in the inquiry report. There had been a categorical

finding that the petitioner was negligent while conducting the

operation. This finding in the considered view of this court is

extraneous to the charge as framed by the disciplinary authority.

The said inquiry report was supplied to the petitioner by the

forwarding letter dated 07.04.2020 [Annexure-5 to the writ

petition]. Thereafter the petitioner submitted his representation on

05.07.2019 stating that the findings and the proposed penalty are

unsustainable. However, the disciplinary authority, the Principal

Secretary to the Government of Tripura, General Administration

(Administrative Reforms) Department has taken care of the

representation and has passed the final order dated 07.04.2020

imposing a major punishment by withholding three increments

with cumulative effect for three years.

[11] Against the said order of penalty dated 07.04.2020

[Annexure-5 to the writ petition] the petitioner had preferred an

appeal under Rule 23 of CCS (CCA) Rules, 1965 to the Chief

Secretary, Government of Tripura, Agartala. In the said appeal the

grounds are elaborately drawn. According to the petitioner, the

finding of the inquiry authority is without evidence and such report

suffers from perversity for that reason. Even the petitioner has in

the alternative raised the ground that the penalty that has been

afflicted on him is disproportionate. The appellate authority by the

order dated 22.06.2021 has held that the petitioner has violated

the provision of THS Rules, 1974 and hence the appellate authority

has declined to interfere with the order of penalty.

[12] Being aggrieved by those decisions, as noted before,

the present writ petition has been filed. According to this court the

communication surrendering the Non-Practicing Allowance is

enough to do the private practice from the date of surrendering

the Non Practicing Allowance inasmuch as Rule 25 of the Tripura

Health Service Rules, 1974 provides that a person appointed to the

service shall not ordinarily be allowed to do private practice of any

kind whatsoever, including consultancy and laboratory practice. In

lieu thereof, they shall be entitled to non-practicing allowance

indicated in Rule 19. By the proviso, immediately below Rule 25, it

has been laid down that on their exercise of option, they may be

allowed to do private practice, subject to the conditions as noted

above. The petitioner had surrendered his Non-Practicing

Allowance (NPA) with effect from 01.07.2008 and according to

him, no NPA was paid to him from 01.07.2008. Therefore, a formal

communication of acceptance of surrender of Non-Practicing

Allowance (NPA) by the petitioner becomes immaterial.

[13] This court pointedly asked the respondents, represented

by the counsel, whether the respondents would file any reply in

respect of the substance as emanating from the documents filed

by Mr. A. Roy Barman, learned counsel today. Mr. D. Sharma,

learned Addl. G.A. has categorically replied that those are the

copies of official records and hence, this court can rely the

substance contained therein, subject to provisions of the rules.

[14] As noted, the misconduct as imputed by the

memorandum dated 17.01.2017 is only as regards the petitioner's

private practice (See Article 1 & 2) under the statement of Article

of Charges framed against the petitioner. Had the petitioner

surrendered NPA with effect from 01.07.2008, the petitioner was

allowed to do his private practice as the petitioner was not getting

NPA with effect from 01.07.2008. However, so far the negligence is

concerned, it occurred at all has occurred in a private nursing

home. That may be the reason why formal charge on negligence

has been framed by the disciplinary authority. If there had been

any negligence, the victim or the person representing the victim

can take legal action against the petitioner by invoking the

appropriate law. So far negligence is concerned, even the expert

committee has not whispered a single word against the petitioner.

Be that as it may, since the incidence of negligence has not been

made part of that charge, there should not have been any

observation by the inquiry authority on that aspect.

[15] As it has not been disputed that the petitioner had

surrendered NPA and the formal order was passed on 19.11.2015,

it cannot be held against the petitioner that he was prohibited from

private practice by operation of Rule 25 of Tripura Health Services

Rule, 1974. On the contrary, as he had surrendered the Non-

Practicing Allowance (NPA), he had liberty to do the private

practice. What transpires from the records is that neither the

inquiry authority nor the petitioner had pushed this aspect for

examination. But from the inquiry report it can be gathered that

the petitioner had placed the fact that he has been doing private

practice by opening a chamber. It should have prompted the

inquiry authority direct the inquiry towards whether the petitioner

had been permitted to do the private practice or not. But the

inquiry authority as well as the disciplinary authority has left that

point at lurch. Since the petitioner has raised the ground of

perversity on account of absence of evidence, this court having

deviated from the ordinary scale of exercising jurisdiction has

delved deep whether at all there is any evidence that the petitioner

had breached Clause(iii) of Rule 25 of the Tripura Health Service

Rules, 1974 or the said notification dated 13.07.2015.

[16] Having appreciated all the records available with the

writ petition and the reply filed by the respondents, this court does

not find any evidence to infer that the petitioner's private practice

was without surrendering NPA. Hence the finding of the inquiry

authority as contained in the report dated 29.05.2019, the final

order dated 07.04.2020 imposing penalty as stated above and the

order of the appellate authority dated 22.06.2021 are interfered

and set aside. As corollary, the respondents are directed not to

withhold three increments of the petitioner as directed. If in the

meantime any increment has been withheld that shall be released

from the date when the petitioner was entitled to get that

increment with no any further effect on the service of the

petitioner.

In terms of the above, this writ petition stands allowed.

There shall be no order as to costs.

JUDGE

Moumita