Dr. Rajesh Kumar vs Union Of India & Others

Dr. A. K. Dubey Member (A)

The applicant had filed this OA seeking following reliefs:-

“A-1 quash and set aside (i) the Charge Memorandum bearing No.C.14011/07/2009-vig, dated 27.06.2011 at Annexure-A/1 hereto, (ii)

Inquiry Officer’s Report dated 28.04.2014 prepared and submitted by Dr. M. L. Verma, Addl. Director & IO, CGHS; Ahmedabad, at

Annexure â€"A/2 hereto, (iii)m the Memorandum bearing No.C-14011/07/2009-vig., dated 23.07.2014 at Annexure-A/3 hereto, (v) Order of

Penalty being Memorandum bearing No.C-1411/07/2009, dated 12.04.2015 at Annexure-A/5 hereto and (vi) the consequential Order

bearing No.CGHS/AHMD/DRRL/2015/145, dated 23.04.2015 at Annexure-A/6 hereto holding and declaring the same to be arbitrary,

unreasonable, without authority of law and violative of the applicant’s fundamental rights guaranteed by the Articles 14 and 16 of the

Constitution of India;

A-2 issue appropriate directions commanding the respondents herein to (i) forthwith grant to the applicant herein the promotion to the post

of Super time Administrative Grade (SAG) of the General Duty Medical Officer Sub cadre of Central health Service under the Dynamic

Assured Career Progression Scheme (DACP) in the scale of Pay Band-4 (Rs.37400-67000/-) with Grade Pay of Rs.10,000/- plus NPA29.10.2008 at par with all those 298 Chief Medical Officer (NSFG) (for the Panel Year 2008-09) who were granted similar promotion by an

order NO.A.32012/06/10-CHS.II (Vol.III) dated 09.08.2012, along with consequential benefits including the arrears of pay, etc., interest on

arrears @18% thereon.

A-3 impose an exemplary cost of Rs.50,000/- on the respondents for compelling the applicant herein to resort to this otherwise litigation.

A-4 grant such other and further relief/s as may be deemed fit and proper in the peculiar facts & circumstances of the present case.

The case of the applicant is that while working as CMO (NFSG), during 2002-2004, he treated his wife who was a CGHS beneficiary being the

spouse, and for early recovery, he prescribed certain medicines. It was alleged that he prescribed non formulary medicines for his wife and

deliberately prescribed costly medicines in violation of the procedural stipulations in that regard. It was also alleged that costly medicines were

dispensed without valid prescription and hence, vide communication dated 30.03.2004 (Annexure-A/1 Colly) the applicant was called upon to furnish

the details of diagnoses and investigation and also details of the treating doctor. Based on the allegations, he was asked to hand over the in-charge ship

of the CMO dispensary No.3 to another doctor. The applicant however, complied with the instructions. He replied to the communication dated

30.03.2004 vide his letter to Additional Director, CGHS dated 04.06.2004 (Annexure-A/7) enclosing the copies of investigation details and clarifying

that the medicines were purchased locally after due screening of the Additional Director’s office. The applicant’s main say is that he was a

CMO in charge with MD degree and was competent to prescribe the medicines and in the process there was no violation of rules.

2.1 The then Additional Director of CGHS Ahmedabad, constituted on 14.05.2005 a preliminary inquiry committee of 3 doctors comprising of 2 CMOs

and 1 SMO to inquire into allegations. The applicant says that 2 of the members were junior to him. At the first hearing of this inquiry in June, 2004,

the applicant appeared but alleging humiliation and ill treatment, did not participate in further proceedings and brought these facts to the notice of the

then Additional Director, CGHS demanding reconstitution of the committee. However, the committee was not reconstituted; instead the committee

proceeded ex-parte and submitted its report to the additional director. The applicant say that copy of the report was not given to him. The report of the

committee was referred to the CGHS authorities who ordered to constitute a medical board for the purpose of examining the applicant’s wife.

Accordingly, the applicant’s wife was examined by the medical board and the report dated 10.11.2004 was submitted to the respondent authority

(Annexure A/8). Later, vide his representation dated 23.3.2005, the applicant request the Secretary, Ministry of Health & Family Welfare as well as

the Director, Central Government Health Scheme to look into the harassment and victimization by Dr.Arjunan & Dr.Mukta (Annexure-A/9).

According to the applicant, his representation remained unanswered.

2.2 In the year 2007, a committee was constituted with 2 members to inquire into the matter. This committee referred the case to the vigilance

department of the Ministry. There after there was no action for the next four years. Meanwhile, in the year 2008, when the Dynamic Assured Career

Progression empanelment was taken up, the applicant despite being eligible and entitled, was not granted promotion to the Super time Administrative

Grade (SAG) of the General Duty Medical Officer sub-cadre of the Central Health Service upon completion of 20 years of regular service.

2.3 Four years after referring the matter to the vigilance department of the Ministry, the applicant received a memorandum dated 27.06.2011 initiating

departmental disciplinary inquiry for major penalty under Rule 14 against him. The applicant was charged with an allegation that while functioning as

CMO in-charge of dispensary no. 2 & 5 at CGHS Ahmedabad, during the period between April 2002 and March 2004, had indented costly medicines

in the name of his wife against the CGHS card no.6 without valid prescription. The applicant claims that copies of the documents relied upon were not

furnished with the charge memorandum. The applicant made representation vide his letter dated 07.07.2011 (Annexure-A/10) asking for copies of

certain documents/ materials considered by him as crucial for his defense. The respondents however, informed him vide communication dated

25.07.2011 (Annexure-A/11) that he could ask for the documents in course of inquiry and pending that he could submit his statement of defense. Then

the applicant sought information under RTI vide his request dated 06.08.2011 (Annexure-A/12). The applicant, however, did not get the copies of

documents asked for. The respondents informed the applicant vide letter dated 24.10.2011 (Annexure-A/17) that the documents asked for would not

be given to him under section 8(1)(h) of the RTI Act, 2005. Similar reply he received vide Ministry’s letter dated 27.12.2011 (annexure-A/21)

when he went in appeal against denial of information by CPIO.

2.4 In October 2011, the applicant came to this Tribunal challenging the charge sheet on various grounds (OA No.370/2011). This OA came up for

hearing on 02.01.2012. Vide Communication dated 27.3.2012 (Annexure-A/24), the applicant received a copy of the CVC’s first stage advice in

which it was said that inadvertently the copy of the CVC’s first stage advice was not enclosed with the charge memorandum dated 27.06.2011.

The applicant claims that the entire sequence was with a malicious intent. The applicant claims that for want of documents, he could not offer his

effective written statement of defense. On 02.04.2014, he submitted a representation to the IO, raising the plea of inordinate delay in the initiation of

departmental disciplinary inquiry. This he could request only after this Tribunal vide its order dated 13.03.2014, disposed of the OA No.370/2011 of the

applicant with a direction to the respondents to complete their inquiry within 3 months. Of course, the applicant too was directed to cooperate with the

disciplinary proceedings.

2.5 The inquiry proceeding was concluded. The disciplinary authority vide memorandum dated 23.07.2014, (Annexure A/3) forwarded a copy of the

IO report dated 28.05.2014 to the applicant, calling upon him to submit his representation if any, against the IO report within 15 days. The applicant did

submit his detailed representation, requesting the disciplinary authority to exonerate him from the charges. The disciplinary authority had referred the

applicant’s case to the UPSC for advice vide his letter dated 17.12.2014 and the UPSC vide its communication dated 20.01.2015 (Annexure A/4

Colly) recommended imposition of a penalty of withholding one increment without cumulative effect for a period of one year. The applicant received a

Memorandum dated 19.02.2015 (Annexure-A/36) from the Additional Director, CGHS, Ahmedabad enclosing herewith a copy of the memorandum

dated 16.02.2015 from the Ministry of Health and Family Welfare (Annexure A/35), calling upon him to submit his representation against the advice of

the UPSC. The applicant responded to this memorandum by publishing a detailed representation dated 24.02.2015 (Annexure-A/37) contending that

the observations and conclusions of UPSC were not based on evidence and should be quashed. However, vide memorandum dated 01.04.2015, the

penalty of withholding 1 increment of pay without cumulative effect for a year was imposed on him.

The respondents filed their reply. Their main contention is that the applicant in this case, was a CMO (NFSG) and was in the cadre of Medical

Officer and therefore he was not competent to issue non formulary medicine; such medicine could only be issued by a specialist. They contend that

the applicant was not a designated specialist. Moreover and procedurally required, he should have given proper prescription which wasn’t there in

his case. There were some other instances of breach of procedure by the applicant such as not collecting medicine from the dispensary and instead

collecting it from the chemist directly; returning the medicine and receiving the cash etc. Respondents contend that there was nothing malicious about

him, was evident from the language of the letter dated 30.03.2004 (Annexure A/1 colly.) which just mentioned that diagnosis of the patient

investigation carried out along with the report, name of the treating doctor with address along with prescription should be submitted. The inquiry report

clearly indicted the applicant saying that without specific diagnosis and appropriate investigations, continuation of the said medical treatment was

unjustified. This inquiry held the charge based on the documents dated 27.06.2011 proven. Apart from delay in the procedure of inquiry there is no

violation of either the procedure or competence.

4 The applicant had also moved MA for condonation of delay. This has already been considered and the delay was condoned.

5 The matter came up for final hearing on 02.09.2021. Mr. M. S. Rao, learned counsel for the applicant submitted that the entire sequence of leveling

the charge that he prescribed costly medicine, and the medicines were procured without valid prescription and the medicines were recommended

without adequate investigation, was without any basis. He said that the applicant was a post graduate in Medicine and as CMO plus in charge, he was

fully competent to treat his wife who was any way a CGHS beneficiary. Since, he was not simple MBBS but MD Medicine, there was nothing

improper in his recommending costly medicine. Infact the inquiry findings also did not harp on the medicine being costly or otherwise. It is more about

the procedural aspect of getting prescription.

5.1 The counsel submitted that the prescriptions were there as it can be made out from the records of the dispensary (Annexure A/1 colly.) At the

most only thing could be stated that such medicines had to be approved by the Additional Director for the purchase. This means that prescribing the

medicine was not a real issue; it was just the procedure for its procurement that was held against the applicant. Therefore, lack of capacity to suggest

such medicines was not a truly sustainable ground, the counsel for applicant argued. The applicant had also given a representation against the UPSC

advice which does not seem to have been taken into account at all before imposing the penalty. He drew his attention to the definition of treatment

contained in the Central Services (Medical Attendance) Rules, which reads as under:-

“Treatment means the use of all medical and surgical facilities available at the government hospital in which the government servant is treated and

includes employment of such pathological, bacteriological, radiological or other methods as are considered necessary by the authorized medical

attendant (Annexure A/33 colly.).

5.2 The counsel also drew attention to the definition of Chief Medical Officer /Senior Medical Officer/Medical Officer as contained in the Central

Government Health Scheme (Annexure A/33 colly.). It reads as under:-

“1. The medical officer will provide comprehensive medical cure including preventive and curative, family welfare and MCH and health

education to the beneficiaries.

He will also scrutinize the CGHS token number before providing treatment. As per rules, production of card is necessary at the time of

each visit whether new case or old.

He will restrict himself to general list of the formulary. But in case he has to prescribe any specialist item, he should take prior

concurrence from CMO in-charge.â€​

It is obvious from the above provisions that it is not that the CMO cannot prescribe specialist item. He only has to take prior concurrence of the CMO

in-charge and at the relevant time, he himself was the CMO in-charge.

5.3 The counsel also submitted that the committee relied on the inquiry report with the details of cross examination etc. only for the punishment

purposed but as such did not follow strictly from the charge memo. First it was the Arjunan committee and second the Jose Committee. For the

purpose of punishment the report of the Jose Committee was relied upon but its copy was never given to the applicant, which, the learned counsel

argued, was against the principles of natural justice.

The standing counsel for the respondents submitted that language of the letter dated 30.03.2003 is very clear because all that it says is asking for

the investigation’s report and how the diagnosis was made for that and the entire case came out only after the fact that the applicant could not

produce the valid prescription. She stated that the same provision which authorizes the CMO to issue specialist medicine/non formulary medicine

requires him or her to obtain prior approval of the specialist. She submitted that the same para 3 of the CGHS Scheme makes it very clear that the

CMO shall not write on his own any medicine meant for consultant or specialist. To that extent even if the applicant is MBBS MD, he being CMO

could not recommended specialist medicine. Once this is accepted, inability to provide necessary papers and authorization are the matters of

procedure which again were not adhered to and hence the charge memorandum. She stated that after the entire matter was through the UPSC had

given its advice and even though the proceedings were made for major penalty, the applicant was only awarded a minor penalty of withholding one

increment without cumulative effect for a period of 1 year. The period of imposition is also over and now the case has become infructuous at this

distance of time. More over, the applicant has since retired. Awarding minor penalty even as the proceedings initiated were for major penalty had

already taken into consideration various aspects and has considered only the procedural irregularity or the acts of omission on part of the CMO in-

charge i.e., the applicant in this case and therefore, this do not have any application at this stage.

We have gone through the documents and papers brought before us. It is true that despite being late and despite the uneven progress of the inquiry

proceedings, the proceedings have since been completed and punishment awarded and imposed. Thereafter as submitted by the counsel for the

applicant, the applicant had received his promotion also which, at the relevant point of time, was withheld because of the proceedings. A perusal of

these documents and papers indicates 3 major issues in this matter. Firstly, whether there was a procedural breach in the conduct and conclusion of

the inquiry; secondly, whether the applicant was competent to prescribe non formulary medicine and if yes whether the procedure in that regard was

followed; and lastly, the status of the conclusion of inquiry, imposition of penalty and the position thereafter.

7.1 It is obvious from the records produced before us that the supply of relevant document did suffer from hiccups. It is the cardinal principle of any

inquiry that copies of all those paper have to be given to the accused official which are relied upon by the accusers. This has been clearly laid down in

the Hon’ble Apex Court’s judgment in Jaykumar Parida Case [(1996) (1) SCC 441] and accordingly, if any material was adverse to the

applicant which framed foundation of inquiry, it should have been given. In this count, the inquiry proceedings did suffer from infirmity, we observe.

There is a reference to two medical boards and the second medical board was not administrative in nature but was a professional one and had arrived

at certain findings with regard to the elements of the patient that is said to have been treated by the applicant. We cannot lose sight of the fact that

there is a time lag between the occurrence and detection of the disease and the time of medical board’s opinion and if any particular element was

missing subsequently during Board’s sitting one cannot rule out the possibility of the medicine being effective so as to have the patient cured to

that extent. The medical report is an expert opinion and we do not have any observation on that. But the infirmities in the proceedings do not get made

up by this.

We also see that although there is a general prescription in the CGHS Rules that CMO/SMO/MO will restrict themselves to the general list of

formulary, there is an enabling clause that in case he has to prescribe any specialist item, he should take prior concurrence from the CMO in-charge.

There is no express provision saying that if he himself is the CMO in-charge, he cannot do it. The Rules do provide that he will not write of his own,

any medicine meant for consultant or specialist. A plain reading of these provisions together reveals that prescribing a non formulary medicine may not

be a breach of the rules per se. At the most, it is a matter of procedural omission, in not taking prior concurrence. Accordingly, in this particular case,

the issue of competence appears erroneous. As far as allegation about prescribing costly medicine is concerned, the Rules do not prescribe any cost

limitation and hence, we do not find force in it. In fact, it will be undesirable if a doctor attending a patient under his Hippocratic oath starts bothering

for cost of medicine before prescribing it.

We find that this case is a classic example of complicating a simple administrative matter with passage of time. Taking into account the provisions

regarding duties of CMOs as laid down in Central Government Health Scheme (particularly para 3) quoted in para 5.2 above, and not supplying the

papers on the basis of which the applicant was proceeded against, we are of the considered opinion that the inquiry has suffered from procedural

infirmity as observed above. Similarly, we find that the provision regarding competence of CMO in charge too, does not expressly or categorically

debar him from prescribing non formulary medicine it only requires certain procedure to be followed in that case. In this factual matrix, we quash and

set aside the charge memorandum dated 27.6.2011(Annexure-A/1), inquiry report dated 28.04.2014 (Annexure-A/2), Memo dated 23.07.2014

(Annexure-A/3), the order of penalty in memorandum dated 12.04.2015 (Annexure-A/5) and order dated 23.04.2015 (Annexure-A/6). No Cost.