2005 ALL SCR 606
SUPREME COURT OF INDIA

Arijit Pasayat J.Tarun Chatterjee J.

Tara Chand Jain Vs. Sir Ganga Ram Hospital and Anr.

Appeal (Civil) 6930 of 1999

15th December 2005

Petitioner Counsel:
Respondent Counsel:

Compensation Complaint Fee Insurance Insurance Claim Plaint Procedure Reference Settlement State Witness

Cases Cited :

Para 5: Bhaikuntha Nath Das and Anr. Vs. Chief District Medical Officer Braipada and Anr., [1992] 2 SCC 299
Para 5: State of Gujarat Vs. Umedhbhai M. Patel, [2001] 3 SCC 341
Para 5: State of U.P. and Anr. Vs. Vinay Kumar Jain [2002] 3 SCC 641
Para 5: State of U.P. and Anr. Vs. Lalsa Ram. [2001] 3 SCC 389

JUDGEMENT



SEMA, J.:- The appellant at the relevant time was holding the post of Additional District Judge (Rajasthan Higher Judicial Service). By an order dated 9.11.2000, he was compulsorily retired from service. He has assailed the order of compulsorily before the High Court. The High Court of Rajasthan dismissed the Writ Petition after perusing the entire records placed before it. The appellant was compulsorily retired on the basis of Review Committee report submitted by four Senior Hon’ble Judges of the High Court which was approved by the Full Court of the High Court.

2. We have been taken through the entire judgment of the High Court. The High Court, on perusal of the record produced before it, found that in the year 1983, the appellant was not assessed as good officer and his integrity was doubtful. In 1984 he was reported to be corrupt officer. The High Court was also of the view that when the appellant has been granted selection grade, the adverse entries were not brought to the notice of the authority. The High Court also noted that the Review Committee consisting of four Senior Hon’ble Judges of the High Court noticed that the performance of the appellant was poor and he was advised to improve his judgment writing, In 1974 there was a remark that he should be watched and quality of case work was found unsatisfactory. The remarks were also communicated to the appellant. In 1977 there was also an entry that he should improve the quality of his judgments. In 1983 he was not assessed as good officer and his integrity was found doubtful. His representation against adverse entry was reflected. In 1993 there was an entry in his ACR that he failed to inspire the confidence in subordinate staff and lawyers and his disposal was also found low. The Review Committee also noted that he has been superseded without being considered for promotion in 1983. The departmental enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) rules, 1958 where finding against the appellant of being negligent and grossly careless in discharging his judicial duties, have been recorded, which ended in minor penalty of censure imposed on him and he was further warned to remain careful and cautious while discharging his judicial functions.

3. On the basis of overall perusal of the ACR and overall assessment of service record of the appellant, the Review Committee consisting of four Senior Judges found that continuance of officer would be liability to the Department and adverse to the public interest and recommended that he should be compulsorily retired. It is noticed that the recommendations of the Review Committee was accepted by the Full Court in a meeting held on 8th November, 2000. It is really a case of chopping of the dead wood.

4. That apart, either before the High Court or before this Court, the appellant never raised and allegation of mala fide nor the said order has been passed without application of mind. In fact, considering the aforesaid facts and circumstances the appointing authority has come to the conclusion that the appellant’s continuance in the service will be a liability to the public interest and passed the order after subjective satisfaction of the matter on the basis of the record placed before the authority.

5. Learned senior counsel cited the decisions rendered in 1. [1992] 2 SCC 299 (Bhaikuntha Nath Das and Anr. v. Chief District Medical Officer Braipada and Anr.,) 2. [2001] 3 SCC 341 (State of Gujarat v. Umedhbhai M. Patel,) 3. [2002] 3 SCC 641 (State of U.P. and Anr. v. Vinay Kumar Jain) and 4. [2001] 3 SCC 389 (State of U.P. and Anr. v. Lalsa Ram.)

6. The ratio of the decision cited quoted by the learned senior counsel for the appellant, are not applicable in the facts of this case.

7. The contentions raised by the learned counsel for the appellant, in our view does not merit consideration in view of the facts and circumstances as recited above.

8. In the result, we see no merit in this appeal. The appeal is accordingly dismissed. No costs.

2005 ALL SCR 606

2005 ALL SCR 606
SUPREME COURT OF INDIA

H.K. Sema J.Dr. AR. Lakshmanan J.

Shiv Dayal Gupta Vs. State of Rajasthan and Anr.

Appeal (Civil) 5397 of 2002

13th December 2005

Petitioner Counsel:
Respondent Counsel:

Civil Services Interest Departmental Enquiry Promotion State Writ Petition

Cases Cited :

Para 5: Bhaikuntha Nath Das and Anr. Vs. Chief District Medical Officer Braipada and Anr., [1992] 2 SCC 299
Para 5: State of Gujarat Vs. Umedhbhai M. Patel, [2001] 3 SCC 341
Para 5: State of U.P. and Anr. Vs. Vinay Kumar Jain [2002] 3 SCC 641
Para 5: State of U.P. and Anr. Vs. Lalsa Ram. [2001] 3 SCC 389

JUDGEMENT



SEMA, J.:- The appellant at the relevant time was holding the post of Additional District Judge (Rajasthan Higher Judicial Service). By an order dated 9.11.2000, he was compulsorily retired from service. He has assailed the order of compulsorily before the High Court. The High Court of Rajasthan dismissed the Writ Petition after perusing the entire records placed before it. The appellant was compulsorily retired on the basis of Review Committee report submitted by four Senior Hon’ble Judges of the High Court which was approved by the Full Court of the High Court.

2. We have been taken through the entire judgment of the High Court. The High Court, on perusal of the record produced before it, found that in the year 1983, the appellant was not assessed as good officer and his integrity was doubtful. In 1984 he was reported to be corrupt officer. The High Court was also of the view that when the appellant has been granted selection grade, the adverse entries were not brought to the notice of the authority. The High Court also noted that the Review Committee consisting of four Senior Hon’ble Judges of the High Court noticed that the performance of the appellant was poor and he was advised to improve his judgment writing, In 1974 there was a remark that he should be watched and quality of case work was found unsatisfactory. The remarks were also communicated to the appellant. In 1977 there was also an entry that he should improve the quality of his judgments. In 1983 he was not assessed as good officer and his integrity was found doubtful. His representation against adverse entry was reflected. In 1993 there was an entry in his ACR that he failed to inspire the confidence in subordinate staff and lawyers and his disposal was also found low. The Review Committee also noted that he has been superseded without being considered for promotion in 1983. The departmental enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) rules, 1958 where finding against the appellant of being negligent and grossly careless in discharging his judicial duties, have been recorded, which ended in minor penalty of censure imposed on him and he was further warned to remain careful and cautious while discharging his judicial functions.

3. On the basis of overall perusal of the ACR and overall assessment of service record of the appellant, the Review Committee consisting of four Senior Judges found that continuance of officer would be liability to the Department and adverse to the public interest and recommended that he should be compulsorily retired. It is noticed that the recommendations of the Review Committee was accepted by the Full Court in a meeting held on 8th November, 2000. It is really a case of chopping of the dead wood.

4. That apart, either before the High Court or before this Court, the appellant never raised and allegation of mala fide nor the said order has been passed without application of mind. In fact, considering the aforesaid facts and circumstances the appointing authority has come to the conclusion that the appellant’s continuance in the service will be a liability to the public interest and passed the order after subjective satisfaction of the matter on the basis of the record placed before the authority.

5. Learned senior counsel cited the decisions rendered in 1. [1992] 2 SCC 299 (Bhaikuntha Nath Das and Anr. v. Chief District Medical Officer Braipada and Anr.,) 2. [2001] 3 SCC 341 (State of Gujarat v. Umedhbhai M. Patel,) 3. [2002] 3 SCC 641 (State of U.P. and Anr. v. Vinay Kumar Jain) and 4. [2001] 3 SCC 389 (State of U.P. and Anr. v. Lalsa Ram.)

6. The ratio of the decision cited quoted by the learned senior counsel for the appellant, are not applicable in the facts of this case.

7. The contentions raised by the learned counsel for the appellant, in our view does not merit consideration in view of the facts and circumstances as recited above.

8. In the result, we see no merit in this appeal. The appeal is accordingly dismissed. No costs.

2005 ALL SCR 606

2005 ALL SCR 606
SUPREME COURT OF INDIA

Arijit Pasayat J.Tarun Chatterjee J.

Tara Chand Jain Vs. Sir Ganga Ram Hospital and Anr.

Appeal (Civil) 6930 of 1999

15th December 2005

Petitioner Counsel:
Respondent Counsel:

Compensation Complaint Fee Insurance Insurance Claim Plaint Procedure Reference Settlement State Witness

Cases Cited :

JUDGEMENT



ARIJIT PASAYAT, J.:- Challenge in this appeal is to the order dated 25th August, 1999 passed by the National Consumer Disputes Redressal Commission, New Delhi (in short ’the Commission’). The appellant made a claim for compensation alleging that on the ground of medical negligence on the part of the respondents, he had suffered untold miseries and had spent a huge amount of money to get cured without any avail.

2. The background facts disclosed in the complaint were to the effect that the appellant visited the respondent No. 1 - hospital as he was having urinary trouble. The respondent No. 2 with his team examined the complainant and advised him to undergo prostate operation. The complainant was admitted in the hospital on 10.01.1990 and was operated by respondent No. 2 on 11.01.1990. He was discharged from the hospital on 15.01.1990. At the time of discharge, he was advised to take some medicines and was told that he would be perfectly normal within one or two months. The complainant returned to his native place, i.e. Muzaffarnagar and duly followed the advise given and the treatments prescribed. Instead of getting relief, he started feeling acute pain in the thigh muscles and backbone. The tendency of continuous and regular flow of urine which had started immediately after the operation continued. He suffered high fever and increase in blood urea and as a result, his condition become very serious. He was again hospitalized in respondent No. 1’s hospital on 17.11.1990 in the Nephrology department and was discharged on 13.12.1990. Despite the medicines prescribed the problem of continuous urine flow was not cured. The respondents had advised that he should take the injection "Teflon", which was not available in India and was available in America. The complainant wrote to a relative who lived in America for sending the injection. But the relative who happened to be a Doctor, advised the complainant not to take the injection as it had bad side effects and also not of much use in such cases. The complainant visited the hospital on a number of occasions but his problem continued. Same was due to the negligent acts on the part of respondent No. 2. Though the appellant was advised to use clamp all the time so that the urine may not flow but it was so painful to use the clamp that even after the use of clamp, there was no further development.

3. Reference was made to the Text book of Bailey and Love’s Short Practice of Surgery, 16th Edition, pages 1196 and 1197 to contend that the negligence of the respondents was established. Under these circumstances, the complainant claimed compensation of Rs. 40,00,000 (Rupees Forty Lakhs only) on account of deficiency in service on the part of the respondents.

4. The complaint was resisted by the respondents. They contested the claim that the urine flow was continuous on account of any negligence while the operation was conducted. On the contrary, with reference to certain documents which were prepared at the time of discharge, it was submitted that there was no grievance of the nature, as indicated in the complainant petition. Long after about three years, the complainant was filed and never before that on any occasion any grievance was made by the appellant about the difficulties pointed out. It was highlighted that instead of making the grievance, as was made in the complaint, the complainant requested the hospital authorities to change the period for which he had treated, from four years, as recorded in the medical records, to four months, so that it would facilitate settlement of the insurance claims. Taking into account the materials on record, the Commission came to hold that the inference which the complainant wanted to be drawn from the mention of the word ’Teflon’ in one of the documents produced would not make the position different. The Commission noted that it was not known as to who wrote the word ’Teflon’ and if really it was by the Doctor prescribing the medicine, who was serving as a Doctor in the hospital, he would have mentioned it in the prescription itself and not written on the top. In any event, Dr. Ajit Saxena who purportedly wrote it was not examined as a witness by the complainant. The mere scribbling of the word would not take the case of the complainant any further . A reference was also made to the original records produced by respondent No. 1 - hospital. The Commission noted that there was not any negligence on the part of the respondents and the complainant had not been able to substantiate the allegations made with reference to any concrete material. Ultimately, the Commission came to hold that the inferential conclusions which the complainant wanted the Commission to draw, were not possible on the materials. On the contrary, the original records produced by the hospitals clearly established that the ailments which the complainant claimed to have suffered were not present when the complainant was discharged for the hospital. It as also noted that not even a letter was written by the complainant to the respondents complaining about the urinary leakage till July, 1992 which was about two years after his operation in September, 1990. According to the Commission, the only question which was to be decided was whether the sphincter of the muscle of the complainant was cut during the operation performed by respondent No. 2. After referring to the documents on record, it was noted that the materials were not sufficient to establish the claim of the complainant. It was in essence held that the complainant had failed to establish that sphincter was cut during the operation performed by respondent No. 2 and the complainant had been suffering from incontinence from 15.09.1990 to 17.11.1990. As a result, it was held that the complainant had not been able to substantiate the charges of negligence and deficiency in service on the part of the respondent and, accordingly, the complaint was dismissed.

5. Learned counsel appearing for the appellant assailed correctness of the Commission’s order on several grounds. Primarily, it was submitted that the Commission did not take note of all the material aspects and, therefore, the conclusions recorded by it are perverse, contrary to the materials and evidence on record. It was also submitted that the onus of proving certain aspects was on the appellant while the same should have been placed on the respondents. It was submitted that a technical view in such matters is not to be taken looking at the beneficial purpose for which the Statute was enacted.

6. In response, learned counsel for the respondents submitted that the very fact that the complainant was lodged after about three years, itself shows the hollowness in the claim. Additionally, at two different points of time, prior to the filing of the complaint, the appellant had written letters to the Superintendent of respondent No. 1 - hospital. In none of these letters, there was mention about the so called deficiencies and there is not even a whisper that there was any negligence on the part of respondent No. 2 while performing the operation. The documents relied upon by the complainant do not establish his case. On the contrary, the original documents produced by the respondents clearly established that the claim of having the continuous urine flow right from the time of the operation has been belied.

7. It is not a case where the Commission has not referred to the materials on record. On the contrary, on a perusal of the materials placed, the Commission has come to a conclusion that the complainant has failed to establish the allegations of negligence. The proceedings before the Commission are not akin to that of a Suit, though, some of the provisions of the Code of Civil Procedure, 1908 (in short ’the CPC’) are pressed into service as a part of a fair procedure while adjudicating the matter. The findings recorded by the Commission to the effect that the complainant had failed to establish its allegations of negligence, do not suffer from any infirmity to warrant interference. The pivotal documents i.e. those written by Dr. Ajit Saxena do not in any way substantiate the appellant’s case.

8. They do not establish, as rightly observed by the Commission that the incontinence of appellant was due to cut of sphincter muscle during operation performed by respondent No. 2. In the order document (prescription of Dr. B. Rautray) the words "due to sphincter damage" was admittedly scored out by the Doctor. The appeal fails and is dismissed but in the circumstances, without any order as to costs.

2005 ALL SCR 606

2005 ALL SCR 606
SUPREME COURT OF INDIA

H.K. Sema J.Dr. AR. Lakshmanan J.

Shiv Dayal Gupta Vs. State of Rajasthan and Anr.

Appeal (Civil) 5397 of 2002

13th December 2005

Petitioner Counsel:
Respondent Counsel:

Civil Services Interest Departmental Enquiry Promotion State Writ Petition

Cases Cited :

JUDGEMENT



ARIJIT PASAYAT, J.:- Challenge in this appeal is to the order dated 25th August, 1999 passed by the National Consumer Disputes Redressal Commission, New Delhi (in short ’the Commission’). The appellant made a claim for compensation alleging that on the ground of medical negligence on the part of the respondents, he had suffered untold miseries and had spent a huge amount of money to get cured without any avail.

2. The background facts disclosed in the complaint were to the effect that the appellant visited the respondent No. 1 - hospital as he was having urinary trouble. The respondent No. 2 with his team examined the complainant and advised him to undergo prostate operation. The complainant was admitted in the hospital on 10.01.1990 and was operated by respondent No. 2 on 11.01.1990. He was discharged from the hospital on 15.01.1990. At the time of discharge, he was advised to take some medicines and was told that he would be perfectly normal within one or two months. The complainant returned to his native place, i.e. Muzaffarnagar and duly followed the advise given and the treatments prescribed. Instead of getting relief, he started feeling acute pain in the thigh muscles and backbone. The tendency of continuous and regular flow of urine which had started immediately after the operation continued. He suffered high fever and increase in blood urea and as a result, his condition become very serious. He was again hospitalized in respondent No. 1’s hospital on 17.11.1990 in the Nephrology department and was discharged on 13.12.1990. Despite the medicines prescribed the problem of continuous urine flow was not cured. The respondents had advised that he should take the injection "Teflon", which was not available in India and was available in America. The complainant wrote to a relative who lived in America for sending the injection. But the relative who happened to be a Doctor, advised the complainant not to take the injection as it had bad side effects and also not of much use in such cases. The complainant visited the hospital on a number of occasions but his problem continued. Same was due to the negligent acts on the part of respondent No. 2. Though the appellant was advised to use clamp all the time so that the urine may not flow but it was so painful to use the clamp that even after the use of clamp, there was no further development.

3. Reference was made to the Text book of Bailey and Love’s Short Practice of Surgery, 16th Edition, pages 1196 and 1197 to contend that the negligence of the respondents was established. Under these circumstances, the complainant claimed compensation of Rs. 40,00,000 (Rupees Forty Lakhs only) on account of deficiency in service on the part of the respondents.

4. The complaint was resisted by the respondents. They contested the claim that the urine flow was continuous on account of any negligence while the operation was conducted. On the contrary, with reference to certain documents which were prepared at the time of discharge, it was submitted that there was no grievance of the nature, as indicated in the complainant petition. Long after about three years, the complainant was filed and never before that on any occasion any grievance was made by the appellant about the difficulties pointed out. It was highlighted that instead of making the grievance, as was made in the complaint, the complainant requested the hospital authorities to change the period for which he had treated, from four years, as recorded in the medical records, to four months, so that it would facilitate settlement of the insurance claims. Taking into account the materials on record, the Commission came to hold that the inference which the complainant wanted to be drawn from the mention of the word ’Teflon’ in one of the documents produced would not make the position different. The Commission noted that it was not known as to who wrote the word ’Teflon’ and if really it was by the Doctor prescribing the medicine, who was serving as a Doctor in the hospital, he would have mentioned it in the prescription itself and not written on the top. In any event, Dr. Ajit Saxena who purportedly wrote it was not examined as a witness by the complainant. The mere scribbling of the word would not take the case of the complainant any further . A reference was also made to the original records produced by respondent No. 1 - hospital. The Commission noted that there was not any negligence on the part of the respondents and the complainant had not been able to substantiate the allegations made with reference to any concrete material. Ultimately, the Commission came to hold that the inferential conclusions which the complainant wanted the Commission to draw, were not possible on the materials. On the contrary, the original records produced by the hospitals clearly established that the ailments which the complainant claimed to have suffered were not present when the complainant was discharged for the hospital. It as also noted that not even a letter was written by the complainant to the respondents complaining about the urinary leakage till July, 1992 which was about two years after his operation in September, 1990. According to the Commission, the only question which was to be decided was whether the sphincter of the muscle of the complainant was cut during the operation performed by respondent No. 2. After referring to the documents on record, it was noted that the materials were not sufficient to establish the claim of the complainant. It was in essence held that the complainant had failed to establish that sphincter was cut during the operation performed by respondent No. 2 and the complainant had been suffering from incontinence from 15.09.1990 to 17.11.1990. As a result, it was held that the complainant had not been able to substantiate the charges of negligence and deficiency in service on the part of the respondent and, accordingly, the complaint was dismissed.

5. Learned counsel appearing for the appellant assailed correctness of the Commission’s order on several grounds. Primarily, it was submitted that the Commission did not take note of all the material aspects and, therefore, the conclusions recorded by it are perverse, contrary to the materials and evidence on record. It was also submitted that the onus of proving certain aspects was on the appellant while the same should have been placed on the respondents. It was submitted that a technical view in such matters is not to be taken looking at the beneficial purpose for which the Statute was enacted.

6. In response, learned counsel for the respondents submitted that the very fact that the complainant was lodged after about three years, itself shows the hollowness in the claim. Additionally, at two different points of time, prior to the filing of the complaint, the appellant had written letters to the Superintendent of respondent No. 1 - hospital. In none of these letters, there was mention about the so called deficiencies and there is not even a whisper that there was any negligence on the part of respondent No. 2 while performing the operation. The documents relied upon by the complainant do not establish his case. On the contrary, the original documents produced by the respondents clearly established that the claim of having the continuous urine flow right from the time of the operation has been belied.

7. It is not a case where the Commission has not referred to the materials on record. On the contrary, on a perusal of the materials placed, the Commission has come to a conclusion that the complainant has failed to establish the allegations of negligence. The proceedings before the Commission are not akin to that of a Suit, though, some of the provisions of the Code of Civil Procedure, 1908 (in short ’the CPC’) are pressed into service as a part of a fair procedure while adjudicating the matter. The findings recorded by the Commission to the effect that the complainant had failed to establish its allegations of negligence, do not suffer from any infirmity to warrant interference. The pivotal documents i.e. those written by Dr. Ajit Saxena do not in any way substantiate the appellant’s case.

8. They do not establish, as rightly observed by the Commission that the incontinence of appellant was due to cut of sphincter muscle during operation performed by respondent No. 2. In the order document (prescription of Dr. B. Rautray) the words "due to sphincter damage" was admittedly scored out by the Doctor. The appeal fails and is dismissed but in the circumstances, without any order as to costs.