Sreejaya K.R. v Regional Cancer Centre & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 6[TH] DAY OF OCTOBER 2022 / 14TH ASWINA, 1944 WP(C) NO. 26657 OF 2019** ## **PETITIONER/S:** SREEJAYA.K.R AGED 34 YEARS W/O. ABIN LSAAC, RESIDING AT QUARTERS NO. B5, BSNL STAFF QUARTERS, PANANVILA, NALANCHIRA P.O. THIRUVANANTHAPURAM 695 015. BY ADVS. BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SMT.ARYA RAGHUNATH SMT.KADIJA JASMINE ## **RESPONDENT/S:** 1 REGIONAL CANCER CENTRE MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM 695 011, REPRESENTED BY ITS DIRECTOR. 2 THE DIRECTOR, REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM 695 011. 3 HEAD OF THE DEPARTMENT, DEPARTMENT OF ANESTHESIOLOGY, REGIONAL CANCER CETNRE, MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM 695 011. 4 DR. CHANDRAMOHAN.K. AGE AND FATHERS NAME NOT KNOWN TO THE PETITIONER ADDITIONAL PROFESSOR, DEPARTMENT OF SURGICAL SERVICES, REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM 695 011. 5 JAYACHITHRA, AGE AND FATHER NAME NOT KNOWN TO THE PETITIONER, STAFF NURSE ATTACHED TO DEPARTMENT OF SURGICAL SERVICES SURGICAL ONCOLOGY DEPARTMENT, REGIONAL CANCER CENTRE, MEDICAL COLLEGE, PO.O THIRUVANANTHAPURAM 695 011. 6 THE GOVERNMENT BODY OF REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, W.P.(C) No.26657 of 2019 **==> picture [16 x 8] intentionally omitted <==** GOVERNMENT SECRETARAIT, THIRUVANANTHAPURAM 695 001. BY ADV SRI.ATHUL SHAJI **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **22.03.2022, THE COURT ON 06.10.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.26657 of 2019 -3- ## **JUDGMENT** Dated this the 06[th] day of October, 2022 The petitioner, while working as Operation Theatre Technician in the Regional Cancer Centre/first respondent, was terminated from service as per Ext.P8 order dated 20.04.2019. The petitioner challenged her termination before this Court, primarily on the ground that the impugned order was passed without giving notice and opportunity to submit explanation. By Ext.P9 judgment, this Court directed the order of termination to be treated as a show-cause notice and permitted the petitioner to submit a detailed explanation to the allegations therein. The respondents were directed to consider the explanation and pass appropriate orders in accordance with law. In purported compliance of the direction, the petitioner's explanation was ## W.P.(C) No.26657 of 2019 -4- considered and Ext.P11 order issued, terminating the petitioner's service. 2. Heard Adv.Vaheeda Babu, learned Counsel for the petitioner and Adv.Athul Shaji, learned Standing Counsel for the first respondent. 3. Learned Counsel for the petitioner contended that Ext.P11 order is _ex facie_ illegal, being in violation of the procedure prescribed in Ext.P12 Rules. It is contended that the allegation of insubordination and dereliction of duty is made without substance. In elaboration, it is submitted that, OT Technician’s duty is to provide technical service in the operation theatre by assisting the Anesthesiologist and create an optimal environment for the surgical team. On 28.03.2019, while the petitioner was assisting the Anesthesiologist, she saw the Surgeon connecting the CO2 Cylinder with the help of Nursing Staff. The petitioner was never asked ## W.P.(C) No.26657 of 2019 -5- to connect the CO2 or to help the Surgeon. That incident was videotaped and utilised for raising false allegations of indiscipline, disobedience and non-cooperation against the petitioner. The earlier incident that had occurred on 31.01.2019 was primarily due to the refusal of the Nursing Staff to replace an empty CO2 cylinder during a laparoscopic surgery. During the surgery, when the CO2 cylinder got empty, the Surgeon asked for replacement. As the cylinder could not be replaced single handedly, the 5th respondent, who was the duty Nurse, was requested for help. The 5th respondent refused to help the petitioner. Thereupon, the petitioner replaced the cylinder with the help of another OT Technician and the surgery was completed. The delay in replacing the CO2 cylinder occurred for the reason that the heavy cylinder (35 kgs) had to be rolled from a distance. The allegation that the petitioner walked out of the operation theatre is patently W.P.(C) No.26657 of 2019 -6- false. 4. Learned Standing Counsel submitted that, disciplinary action was initiated against the petitioner based on grave allegation of having refused to connect/replace the CO2 Cylinders. The first incident was on 31.01.2019, when the CO2 Cylinder got empty while the surgery was progressing and the petitioner refused to connect a new cylinder on the Surgeon’s request and walked out of the Operation Theatre. The CO2 cylinder was finally replaced with the help of the Floor Nurse. A similar incident occurred on 28.03.2019 also. The assigned duties and responsibilities of OT Technicians require them to be available inside the operation room throughout the procedure and help in arranging necessary environment and equipment for the Anesthesiologist and Surgeon as per their instructions. The conduct of the petitioner inside the operation theatre, where critically ## W.P.(C) No.26657 of 2019 -7- ill patients are undergoing surgery, amounts to gross disobedience, indiscipline and disregard to the authority, which calls for very stern action against her. It is submitted that as directed in Ext.P9 judgment, the petitioner's explanation was considered and found to be thoroughly unsatisfactory. The petitioner not being under regular employment of the first respondent, could be removed from service without detailed enquiry. Even if the petitioner is considered to be a regular employee, the incident having occurred within her probation period, the first respondent was at liberty to terminate her from service on finding her performance to be unsatisfactory. 5. In reply, learned Counsel for the petitioner submitted that the petitioner’s termination being stigmatic, the question whether petitioner was in regular service or whether the termination order was issued within her period of probation are of no relevance. As such, the ## W.P.(C) No.26657 of 2019 -8- petitioner service could not have been terminated without conducting an enquiry as mandated in Ext.P12 Rules. 6. In this context, it is pertinent to note that the petitioner was provisionally appointed pursuant to an interim order in W.P.(C) No.29063 of 2015 filed by her. The writ petition was decided today and the following directions issued; _'The respondents is directed to regularise petitioner's service as OT Technician with effect from 30.01.2017, the date of Ext.P9 order.'_ Thus, the petitioner was in the regular service of the first respondent as on the date on which Ext.P11 order of termination was issued. 7. The other contention urged by the first respondent is that, even if the petitioner is taken to be in regular service, the order of termination have been issued during her probation period, no enquiry need be conducted. The W.P.(C) No.26657 of 2019 -9- contention, though appealing at the first brush, will depend on whether the termination is stigmatic. What is meant by stigma and what amounts to stigmatic termination was considered by the Apex Court in _**Allahabad Bank Officers'**_ _**Assn. v Allahabad Bank [(1996) 4 SCC 504]**_ . Paragraph 7 of the judgment being relevant, is extracted hereunder; “ _7. It will, therefore, be necessary to first consider what is meant by stigma and also the cases wherein the orders have been regarded as stigmatic. Stigma, according to the dictionary meaning, is something that detracts from the character or reputation of a person, a mark, sign etc. indicating that something is not considered normal or standard. It is a blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame and mark or label indicating deviation from a norm. In the context of an order of termination or compulsory retirement of a government servant stigma would mean a statement in the order indicating his_ W.P.(C) No.26657 of 2019 -10- _misconduct or lack of integrity.”_ In Ext.P11, the findings are to the effect that the petitioner's conduct was totally unbecoming of a responsible Operation Theatre Technician and she is guilty of serious dereliction of duty. It is also stated that the defiant attitude of the petitioner in disobeying the directions issued by the competent authorities and her failure to discharge the duties and responsibilities assigned to her cannot be tolerated in a hospital like RCC. The above imputations are sufficient to render the petitioner's termination stigmatic. As held in _**Allahabad Bank Officers' Assn.,**_ if the order of compulsory retirement casts a stigma on the Government servant, in the sense that it contains a statement casting aspersion on his conduct or character, then the court will treat that order as an order of punishment attracting provisions of Article 311(2) of the Constitution. W.P.(C) No.26657 of 2019 -11- In _**Pavanendra Narayan Verma** v._ _**Sanjay Gandhi PGI of Medical Sciences [(2002) 1 SCC 520]**_ , the text for determining whether an order is punitive or not is laid down in the following words; “ _21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.”_ Recently, in _**Vijayakumaran C.P.V. v. Central**_ _**University of Kerala [(2020) 12 SCC 426]**_ , after referring to the tests laid down in _**Pavanendra**_ _**Narayan Verma,**_ the impugned order therein was found to be _ex facie_ stigmatic and punitive. Based on the finding, the Apex Court held that ## W.P.(C) No.26657 of 2019 -12- such an order could be issued only after subjecting the incumbent to a regular inquiry as per the applicable Service Rules. The position is not different even with respect to the termination of probationers. In _**V.P.Ahiya v.**_ _**State of Punjab [(2000) 3 SCC 239]**_ , the Supreme Court has held that a probationer is also entitled to certain protections and his services cannot be terminated arbitrarily, or punitively, without following the principles of natural justice. 8. The safeguard against punitive termination is necessary, since stigmatic/ punitive termination will definitely have an adverse impact on the employees prospects of future employment. In view of the settled legal position, Ext.P11 order, issued without conducting any enquiry, cannot be sustained. In the result, the writ petition is allowed. W.P.(C) No.26657 of 2019 -13- Ext.P11 order is set aside. Respondents 1 and 2 are directed to conduct an impartial and independent inquiry into the allegations based on which disciplinary proceedings were initiated against the petitioner. The inquiry shall be conducted and the disciplinary proceedings concluded, within six months of receipt of a copy of this judgment. ## **Sd/-** **V.G.ARUN JUDGE** Scl/ W.P.(C) No.26657 of 2019 -14- ## **APPENDIX OF WP(C) 26657/2019** ## PETITIONER EXHIBITS |EXHIBIT P1|A TRUE COPY OF THE NOTIFICATION DATED| |---|---| ||28/2/2015 ISSUED BY THE 1ST| ||RESPONDENT.| |EXHIBIT P2|A TRUE COPY OF THE RANK LIST DATED| ||19/9/2015 PUBLISHED FOR SELECTION TO| ||THE POST OF OPERATION THEATRE| ||TECHNICIAN.| |EXHIBIT P3|A TRUE COPY OF THE INTERIM ORDER DATED| ||20/12/2016 IN WPC NO. 29063/2015, OF| ||THIS HONBLE COURT.| |EXHIBIT P4|A TRUE COPY OF THE ORDER DATED| ||13/1/2017 ISSUED BY THE 1ST RESPONDENT| ||APPOINTING THE PETITIONER AS OPERATION| ||THEATRE TECHNICIAN, IN PURSUANCE TOE| ||EXHIBIT P3 INTERIM ORDER OF THIS| ||HONBLE COURT.| |EXHIBIT P5|A TRUE COPY OF THE JUDGMENT DATED| ||7/12/2017 IN WPC NO. 29063/2015.| |EXHIBIT P6|A TRUE COPY OF THE REQUEST DATED| ||13/11/2018 SUBMITTED BY THE PETITIONER| ||BEFORE THE 2ND RESPONDENT.| |EXHIBIT P7|A TRUE COPY OF THE REQUEST DATED| ||18/3/2019 SUBMITTED BY THE PETITIONER| ||BEFORE THE 2ND RESPONDENT.| |EXHIBIT P8|A TRUE COPY OF THE ORDER OF| ||TERMINATION DATED 20/4/2019 ISSUED BY| ||THE 2ND RESPONDENT ON BEHALF OF THE| ||1ST RESPONDENT, WHICH WAS RECEIVED BY| ||THE PARTITIONER ON 22/4/2019.| |EXHIBIT P9|A TRUE COPY OF THE JUDGMENT DATED| ||20/5/2019 IN WPC NO. 12566/2019 OF| ||THIS HONBLE COURT.| |EXHIBIT P10|A TRUE COPY OF THE STATEMENT OF| ||EXPLANATION DATED 13/6/2019 BEFORE THE| ||2ND RESPONDENT.| |EXHIBIT P11|A TRUE COPY OF THE ORDER DATED| ||17/9/2019 WRONGLY TYPED AS 17/9/2017| ||ISSUED BY THE DIRECTOR OF THE 1ST| ||RESPONDENT TERMINATING THE SERVICE OF| -15- ## W.P.(C) No.26657 of 2019 THE PETITIONER AGAIN TREATING HER AS PROVISIONALLY APPOINTED OPERATION THEATRE TECHNICIAN. EXHIBIT P12 A TRUE COPY OF THE RELEVANT PORTION OF THE SERVICE RULES APPLICABLE TO THE STAFF OF THE 1ST RESPONDENT. EXHIBIT P13 A TRUE COPY OF THE LETTER DATED 22/3/2019 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT P14 A TRUE COPY OF THE REPORT DATED 8/5/2019 SUBMITTED BY THE REGIONAL CANCER CENTRE STAFF ASSOCIATION BEFORE THE 2ND RESPONDENT. EXHIBIT P15 A TRUE COPY OF THE ORDER DATED 16/6/2015 ISSUED BY THE 1ST RESPONDENT.