CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3430 of 2010 This the 27th day of September, 2011 HONBLE MR. JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Ms. Surekha Sama D/o R. M. Sama, R/o ouse No.75, Sector 16-A, Faridabad (Haryana). Applicant ( By Mr. R. K. Singh with Ms. Aakriti Jain, Advocates ) Versus 1. Government of National Capital Territory of Delhi through its chief Secretary, Players Building, IP Estate, New Delhi. 2. Medical superintendent, Deen Dayal Upadhyaya Hospital, Hari Nagar, New Delhi-110064. 3. Principal Secretary (Health), Department of Health & Family Welfare, Level Delhi Sachivalaya, IP Estate, New Delhi. Respondents ( By Ms. Renu George, Advocate ) O R D E R
Justice V. K. Bali, Chairman:
Ms. Surekha Sama, the applicant herein, vide order dated 25.8.2010 has been divested of the officiating charge of Principal Tutor of the Panna Dai School of Nursing on certain allegations, which we will mention hereinafter, and on exactly the same very allegations, has also been, sequel to a departmental enquiry held against her for minor punishment, inflicted the penalty of censure vide orders dated 4.12.2010. The first order came to be challenged by her in the OA, and inasmuch as, the later order came to be passed during pendency of the OA, the same has also been challenged by amending the OA. These are the orders that have been challenged by her in this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985.
2. The facts as may need necessary mention in view of the contentions raised by the learned counsel representing the applicant in support of the OA, reveal that the applicant graduated in 1980 with B.Sc. (Hons.) Nursing and passed her post-graduation with gold medal in nursing in 1986 from Delhi University. She also possesses M.Phil in Nursing and is stated to be holding membership of various accredited professional bodies such as Trained Nurses Association of India, Nursing Research Society of India, Society of Midwives of India, National Neonatology Forum and Diabetic Self-Care Foundation. She is also a member of the Advisory Committee of Trained Nurses Association of India. She claims to have wide experience both in administrative as well as teaching fields. In 1993, the Delhi Government established the Panna Dai School of Nursing in Deen Dayal Upadhyaya Hospital, Delhi, for purposes of imparting training to students and preparing them for being employed as professional nurses in hospitals. In 1997, the State Assembly enacted the Delhi Nursing Council Act with the intent of providing for registration of nursing personnel and accreditation of nursing institutions in the State of Delhi. The Delhi Nursing Council was established in June, 2001. Thereafter, the Delhi Government also notified the recruitment rules for the posts of Principal Tutor/Senior Lecturer/Vice Principal in the Health and Family Welfare Department, vide gazette notification dated 26.11.2002. There may not be any relevance of making mention of the jobs held by the applicant at various points of time. We may, however, mention that before joining as Sister Tutor in the Panna Dai School of Nursing in March, 2008, the applicant served as Registrar of the Delhi Nursing Council from 13.3.2003 to 24.3.2008. It is her case that at the time she joined the said School, Ms. Sobha Mathew was the acting Principal Tutor, and on her representing that she alone fulfilled the essential as well as the desirable eligibility criteria, vide order dated 18.8.2008 (Annexure A-4), the applicant was appointed as the acting Principal Tutor. This arrangement was to continue till the regular selection on the post aforesaid. It is the case of the applicant that till date the respondents have not initiated the process for regular recruitment to the said post. She claims to have done exceedingly well as Principal Tutor of the School aforesaid. She states that as Principal Tutor she maintained strict discipline both amongst the faculty as well as nurse-students, and since as Principal she was responsible for maintaining excellence in standards of the institution, she strictly enforced and reorganized proper internal assessment system and holding of practical tests, and that she also strictly implemented the curriculum and syllabus as prescribed by the Indian Nursing Council. She also claims to have introduced innovations in the practical tests by way of direct observation and interaction with patients in different wards in the hospital to provide a hands-on job experience to the students. As the things would have it, 13 out of 21 students of II year DGNM course failed at the Practical II Psychiatric Nursing Examination held on 20.3.2009. Soon after the results were declared, the failed students submitted a complaint that they had been deliberately failed by the applicant. On the basis of the complaint of the students, a committee of three members was constituted to hold a preliminary enquiry. It is the case of the applicant that the said committee submitted a vague report to the effect that clause 6 of the guidelines circular dated 17.3.2009 of the Nursing Council had been violated by the applicant, and further that she had acted as the examiner without being appointed so by the Delhi Nursing Council. According to the committee, of the total 50 marks, the subject teacher and the other teacher had the authority to hold test for and to award 25 marks each, whereas the applicant conducted the entire test on her own and gave marks out of 50 total marks. The committee observed that the subject teacher, Ms. Nirmal Negi, although present during the practical examination, was not given the chance to be the examiner at all, and, therefore, the applicant would be guilty of misconducting the Practical Examination of Psychiatry Nursing-II. Vide OM dated 15.10.2009, the respondents issued a show cause notice to her, but the applicant in response thereto, vide her interim reply dated 22.10.2009 denied the allegations and requested to be provided copies of the preliminary report, complaints, statements of students and Ms. Nirmal Negi, the subject teacher. She was supplied the documents asked for by her and was required to submit her response within three days, vide order dated 26.10.2009. The applicant submitted her detailed reply to the show cause notice on 5.11.2009 and contested the charges. It was inter alia stated by her that clause 6 of the circular dated 17.3.2009 would not specify at all that the total marks of 50 have to be divided between the two examiners, and further that there is no such uniform practice followed by all the eleven nursing schools in Delhi. It is her case that even without waiting for her response, on 4.11.2009 the respondents issued a removal order divesting her of the charge of acting Principal Tutor of the School and directed to hand over the charge to Ms. Sobha Matthew. It is further the case of the applicant that in the year 2007, the examination rules were formulated and finalized by the Delhi Nursing Council, which was done under the tutelage of the applicant when she served as its Registrar. Copies of circular concerning the examination rules of 2007, and circular dated 17.3.2009 (the one in question) have been annexed with the OA as Annexures A-9 and A-10 respectively. Aggrieved of the order of removal divesting her of the charge of acting Principal Tutor, the applicant submitted a representation, but since there was no response thereto, she was constrained to file an Original Application bearing OA No.3414/2009 in this Tribunal. Vide order dated 4.6.2010, the Tribunal rendered its judgment directing the respondents to consider the show cause afresh and pass appropriate orders, as the representation made by her against the show cause had not been considered. Subsequent to filing of the OA aforesaid, the respondent also issued a chargesheet to the applicant under rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, with the same allegations as were subject matter of the show cause notice dated 15.10.2009. The applicant responded to the same vide representation dated 20.10.2010, protesting against the proceedings. She stated that the respondents had already held her delinquency conclusively vide order dated 25.8.2010, and, therefore, there was no legal validity of the fresh charge-sheet. The respondents, however, passed an order of penalty of censure dated 4.12.2010. These are the orders, as mentioned above, that have been questioned in the present Original Application.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed a short reply. The cut and dry facts culminating into filing of the present OA have not been controverted, and, therefore, there would be no need to refer to the short reply that has been filed on behalf of the respondents.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Before we may take into consideration the rival contentions raised by the learned counsel for parties, we may mention that, be it the initial order or the later that came to be passed after the directions issued by this Tribunal divesting the applicant of the charge of acting Principal Tutor, there is no finding as regards the correctness of the allegations made by the students or their parents. The applicant is stated to have only violated the provisions of clause 6 of circular dated 17.3.2009. The allegation of the students and their parents was that the applicant had already threatened not to pass them. We reiterate that no finding in that regard has been returned against the applicant. We may also mention that in the order dated 25.8.2010, which came to be passed after the direction was issued by the Tribunal in the first OA of the applicant, the finding returned against her is only as regards violation of clause 6 of the circular dated 17.3.2009. In the order dated 25.8.2010, clause 6 of the circular referred to above has been commented upon by the concerned authority as follows:
As per the Clause 6 of circular issued by Delhi Nursing Council Internal Examination for 50 marks may be conducted by two teachers as the word may has been incorporated in the Clause 6, Principal Ms. Surekha Sama, considered herself to be sufficient enough to take the examination which according to the Committee, is violation of the Examination Rules circulated by the Nursing Council. The subject teacher Ms. Nirmal Negi was physically present on the day of the Practical Examination but she was not given the chance to be the Examiner of this particular 50 marks which could be divided by these two examiners and a total of 25 + 25 = 50 marks could have been given by the two teachers as already recommended in the Clause 6 of the Circular. The finding then returned by the concerned authority, Dr. Jilay Dar, Medical Superintendent, DDU Hospital, is that Hence, since Ms. Surekha should have deputed one more examiner/subject teacher to take the internal assessment whereas she considered herself to be sufficient enough to take the examination which, according to the Committee, is violation of the examination rules circulated by the Nursing Council. In the order dated 4.12.2010 inflicting the punishment of censure upon the applicant, it has been observed as follows:
The charge against her is with regard to misconduct committed by her in conducting the Practical Examination of Psychiatry Nursing for which she should have followed the relevant instructions of Delhi Nursing Council which clearly emphasized that the examination may be conducted by two teachers of which one of them would be the subject teacher and the other can be the one with 3 to 5 years of experience in teaching the subject. Since the subject teacher Ms. Nirmal Negi was physically present on the date of Practical Examination, she should have been associated by Ms. Surekha Sama in conducting the Practical Examination as required under the provisions of Clause 6 of Circular dt. 17-03-2009 of the Delhi Nursing Council. After observing as extracted above, it has then been mentioned, It has been admitted by Ms. Surekha Sama that it is a joint exercise and marks allotted jointly and no division of marks allotted by each teacher, but she conducted the examination without associating the other subject teacher and could have associated her and marks could have been divided amongst them by not associating the second examiner, she has violated the instructions of Clause 6 of the Circular issued by Delhi Nursing Council. The respondents have not shown any admission as may have been made by the applicant, either from the representations submitted by her from time to time or from the available material. In fact, it is the case of the applicant, so specifically pleaded, that she contested the charge of violation of the examination rules and demonstrated how the said practical examination was conducted by the duo jointly, and also the fact that clause 6 aforesaid would not specify at all that the total marks of 50 have to be divided between the two examiners, and further that there is no such uniform practice followed by all the eleven nursing schools in Delhi. These pleadings have been made in para 4(viii) of the unamended OA. The corresponding para of the reply reads as follows:
Para 4(viii) of the O.A. is matter of record.
6. We may not determine the controversy, as regards interpretation of clause 6 of the circular dated 17.3.2009 of the Delhi Nursing Council at this stage, as presently we are of the view that since both the impugned orders came to be passed by way of punishment, the respondents ought to have applied their mind as to whether it was a case of sheer negligence, carelessness or delinquency. It may be recalled that allegation of the students that they would be failed has not been substantiated. In any case, no such finding has been recorded, at least in the two impugned orders. In these circumstances, the vital question that ought to have engaged the attention of the respondents was as to whether it was a case of misconduct. When the allegations may be serious like corruption, embezzlement and so on, no difficulty would arise, as such acts are indeed misconduct. However, if it may be a case of procedural lapses or unintentional infraction of rules, there would be a thin line between mere unintentional deviation from the procedure, and misconduct. In our considered view, misconduct would have some undertones or overtones of mala fide intentions. A case of negligence would also come under delinquency, but mere unintentional mistake may also invite some adverse remarks to be recorded in the annual confidential reports of an official, but that may not become a case for proceeding departmentally against him/her. These aspects have not been taken into consideration by the respondents at all. The applicants service graph is impressive. Allegations of mala fides have not been proved at all. That apart, the case of the applicant is that the practice as envisaged in clause 6 of the circular aforesaid is not uniformly followed by all the eleven nursing schools in Delhi, for which there is no denial. The examination rules came to be formulated and finalized by the Delhi Nursing Council, which was done under the tutelage of the applicant when she served as its Registrar, and that could be the reason for her to believe in the way and manner she acted. In addition to what we have observed above, we find the present case to be one where principles of natural justice have been violated. It may be recalled that in the first instance, the Medical Superintendent, the disciplinary authority of the applicant, would pass the orders conclusively establishing the guilt of the applicant without even considering her representation. After the matter was sent back to the said authority with directions as passed by us in the earlier OA filed by the applicant, the defence of the applicant does not seem to have been properly dealt with, when once again a conclusive finding came to be returned against her. To cap it, what we find is that it is the same very person and the same very authority who dealt with the case of the applicant departmentally earlier as well, who has now passed the order inflicting the punishment of censure upon her. We are conscious that once the disciplinary authority of the applicant may be the Medical Superintendent, it may be competent for him alone to pass orders, but surely, he could not deviate from his earlier orders, and ought to stick to what he had already said.
7. Yet another question that arises in the present case is as to whether for infraction of rules without any ill intention on the part of the applicant could result in two separate proceedings against her, one for divesting her of the acting charge of Principal Tutor of the School, and the other for inflicting her with punishment in departmental proceedings. Was it not, in the facts and circumstances of the case, enough to divest the applicant of her position as acting Principal Tutor, or, would it be a case of proceeding against her departmentally as well, ought to have been gone into, particularly when the applicant has raised this issue.
8. During the course of arguments, we were thinking of, and to an extent observed as well, that whereas, we may retain the first order divesting the applicant of the acting charge of Principal Tutor, we may set aside the order dated 4.12.2010 inflicting the punishment of censure upon her, but inasmuch as, some of the aspects which have been pointed out would be common to both the orders, in our view, both the orders shall have to be set aside. We order accordingly. In the peculiar facts and circumstances of this case, we direct that the matter may now be decided by an authority higher to the Medical Superintendent, who, we are told, would be the Principal Secretary (Health), Department of Health & Family Welfare, the 3rd respondent herein. It may be clearly understood that we are making no adverse comments upon the Medical Superintendent for the simple reason that he has already applied his mind not once but twice, and on both occasions stated the same reasons for rejecting the defence of the applicant. On the principle that justice should not only be done, it must also appear to have been done, we would like the matter to be taken up and finally determined by the Principal Secretary (Health), as mentioned above.
9. The Original Application is disposed of in the manner fully indicated hereinabove. There shall, however, be no order as to costs.
( Dr. Veena Chhotray ) ( V. K. Bali ) Member (A) Chairman /as/