NASEEMA FIRDOUS Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is an appeal under clause 12 of the Letters Patent against the order of learned Single Judge dated 17th August, 1998 by which the learned Single Judge dismissed the writ petition of the appellants -doctors seeking a direction to the respondents not to conduct any departmental enquiry against them till the investigation regarding the alleged death of one Mst. Shakeela, a patient who died in the Lal Ded Hospital ("Hospital") due to medical negligence, was investigated by the police and challan presented in the court of law; or, in the alternative, a direction to the respondents to get a fresh preliminary enquiry conducted into the cause of the death of Mst. Shakeela in the Hospital on account of alleged negligence of the doctors (appellants).

(2.) THE appellants are serving as medical practitioners in various capacities in the Hospital. At the material time, appellant No. 1 Dr. Naseema Firdous, and appellant No. 2, Dr Mahmuda Parveen, were posted as Assistan Professors and appellant No. 3, Dr. Mushtaq Ahmad Matto, as Registrar. During the pendency of these proceedings in this Court, the second appellant, Dr. Mahmuda Parveen, has retired. The incident in relation to which departmental proceedings are contemplated against the appellant is as follows. One lady by the name Mst. Shakeela was admitted to the Hospital in an advanced stage of pregnancy on 16th March 1998. Soon thereafter, she developed labour pains and on 19th March 1998 she was declared dead. A First Information Report (FIR) was lodged by the husband of deceased in the Rajbagh Police Station alleging gross negligence on the part of the doctors attending on his deceased wife. He alleged that the death of Shakeela was caused by culpable negligence on the part of the doctors and the medical staff of the hospital. No investigation could be conducted by the police because the three doctors (appellants herein) did not attend the Police Station. After waiting for ten days, the Station House Officer ("SHO") of the Rajbagh Police Station wrote a letter to the Medical Superintendent of the Hospital requesting him to ask the three doctors to report at the Police Station for investigation. Despite all that, not to speak of investigation, even the FIR alleging commission of serious crime was not registered by the Police. Aggrieved by the inaction of the Police, the brother of the deceased, Mr. Manzoor AhmadDar, approached the Chief Judicial Magistrate, Srinagar for a direction to the Police to register the FIR and investigate the case in the interest of justice. The Chief Judicial Magistrate by his order dated 30th June, 1998 directed the SHO, Police Station Rajbagh to submit a report in the matter. In response to order of the Chief Judicial Magistrate, the SHO, Police Station, Rajbagh, submitted his report to the Chief Judicial Magistrate wherein it was admitted that though information had been received by the Police Station about the alleged death of Mst. Shakeela due to negligence of the doctors, no case was registered by them against the doctors in view of the information received from the Medical Superintendent of the Hospital that a team of doctors had been appointed to enquire into the matter. The Chief Judicial Magistrate took strong exception to the inaction of the Police on the FIR lodged with them on 19th March 1998 regarding alleged death of Mst. Shakeela in the Hospital by the negligence of the doctors. The Chief Judicial Magistrate observed that the matter was serious and its pendency without proper investigation had given rise to serious apprehensions in the minds of the aggrieved persons and the public. He, therefore, directed the Inspector General of Police to register the case of the alleged death of Mst. Shakeela due to medical negligence and to depute some Superintendent of Police to investigate the matter. In the meantime, the report of the preliminary enquiry conducted by a Committee of Doctors (Committee), comprising the Head of Department of Medicine, Prof. A. Nafae, Head of Department of Surgery, Prof. M.S. Misgar, Head of Department of Anesthesiology, Prof. Abdul Ahad, Head of Department of Obsteries and Gynecology, Prof. Bilquees Jameela and Medical Superintendent, LD Hospital, Srinagar, Dr. Munshi Hafizullah, constituted by the hospital administration to enquire into the alleged negligence of the doctors, was received -by the Hospital management. The committee, in its detailed report running into eight pages, examined, inter alia, whether there was any negligence on the part of the doctors with regard to the care of the patient in the hospital and, if so, who were really responsible for the same. The Committee came to a categorical conclusion that the patient had not been managed properly as she could have been, especially in view of her having conceived after treatment with chlomiphene and having mild PIH. The Committee also found Dr. Naseema Firdous, Consultant (appellant No. 1), Dr. Mushtaq Ahmad, Registrar (appellant No. 3) and Dr. Mahmooda, Consultant (appellant No. 2) directly responsible for the same. The Committee felt that the above three doctors were directly responsible at one stage or the other for not taking proper care of the patient. The Committee, therefore, recomraended that to meet the ends of justice action under the rules should be taken against those three doctors who were responsible for the death of Shakeela on account of their negligence. On receipt of the report of the Committee, apprehending departmental proceedings on the basis thereof, the appellants filed a petition before this Court under article 226 of the Constitution of India read with section 103 of the Constitution of Jammu and Kashmir seeking following directions to respondents 1 to 3 (State of Jammu and Kashmir, Principal, Government Medical College Srinagar and the Medical Superintendent Lal Ded Hospital, Srinagar). i) Not to conduct any departmental enquiry against the petitioners until the criminal investigation regarding the alleged death of Shakeela is investigated by the Police and challan is presented in the court of law. ii) Not to act on the report of the enquiry committee which had falsely and fraudulently implicated the petitioners in its report and ignore the said report in all respects till the final report is submitted in the court of law by the police agency. In the alternative. iii) To direct the respondents 1 to 3 to constitute an impartial and independent enquiry committee for enquiring into the death of Shakeela to direct the said committee to consider the pros and cons of the case of death and submit a report to the respondents after giving the petitioners an opportunity of being heard and producing all relevant material before it.

(3.) IN the course of hearing of the writ petition before the learned Single judge, it was urged on behalf of the appellants that the matter being looked into by the police, no departmental proceedings should be permitted to be initiated and/or continued. The learned Single Judge dismissed the writ petition as he was of the opinion that in the facts and circumstances, it was not a fit case for stay of the departmental proceedings. The learned Single Judge observed that the grievance of the appellants against the preliminary enquiry/report on the ground of inclusion of Dr. Bilquees in the five -member committee did not have any force because not only that the report was only a preliminary report but the doctor against whom the appellants were making grievance was only one of the five members of the Committee. He also directed that the said doctor, Bilquees Jameela, should not be associated with the departmental enquiry if the appellants were aggrieved by her association. The learned Single Judge, took note of the grievance of the appellants that they had suffered due to the wide publicity given to the incident in the newspaper and directed that thereafter no publicity would be given to this case in any newspaper.