JUDGMENTJUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN).-In this appeal, the appellant has called in question the penalty of withholding of one annual increment awarded to him vide order of the Secretary, Health Department, Government of Sindh, dated 20th April, 1988. The impugned order was passed in the background which is as follows. On 13.6.1987 at about 11 p.m., one Mr.Samad Khan was admitted in the Civil Hospital, Sukur, in critical condition. His case was of "Renal Failure". The appellant who was then the doctor on duly immediately attended to the said Abdul Samad Khan and examined him. However the patient could,not survive and died in the morning. As disclosed in the written statement filed on behalf of the official respondents, the appellant was held responsible for his dea|h, on account of his default in making efforts proportionate to the gravity of the patient's illness. He was served with show-cause notice dated 2.1.1988 under the Sind Civil Servants (Efficiency and Discipline) Rules 1973, here in after referred as the said rules, to which the appellant submitted his reply on 20.1.1988. After considering his reply and giving him personal hearing, the Secretary, Health Department passed the impugned order, imposing a minor penalty on the appellant as mentioned above. The appellant challenged the order of his punishment in the departmental appeal filed before the Chief Secretary on 21.7.1988 but the same was rejected vide the Health Department's letter dated 5th March, 1989 addressed to the appellant. After having exhausted the departmental remedy available to the appellant, he filed the present service appeal on 8.4.1989.
We heard the arguments of the learned counsel for the parties and with their assistance went through the relevant record.
The show-cause notice served on the appellant reads as under: "In exercise of the power conferred by Rule 4-A read with sub- rule (3) of the Sind Civil Servants (E&D) rules 1973 I, Salik Nazir Ahmed, Secretary to Government of Sind, Health Department and "Authorized Officer".
(i) am of the opinion that in view of the allegations that you have committed acts of misconduct and indiscipline details of which are given below, there are sufficient grounds that disciplinary action be taken against you under the said rules;(ii) have decided that it is not necessary to have an in-quiry conducted through an inquiry officer or inquiry committee.
I, therefore, inform you through this notice that on the above grounds it is proposed to take disciplinary action against you under Sind Civil Servants (E&D) Rules 1973 and you are accordingly called upon to show-causc(notice?) within fourteen days why major penalty of dismissal from service should not be imposed upon you.The details of misconduct are as under:-1. The patient Mr.Abdul Samad Khan, was admitted in Civil Hospital, Sukur on 13.6.1987 at about 11.00 p.m. From the record it appears that the patient was a case of Renal Failure and was admitted in a serious condition, you failed to properly examine the patient.2. You also did not pass "Foleys Catheter" to the above serious patient.3. You did not make efforts proportionate to the gravity of the illness, as a result of which the patient expired.Your explanation should reach the undersigned within 14 days of the receipt of this notice failing which it will be presumed that you have nothing to say on your defence and it will be decided ex parte accordingly.
You may also indicate if you wish to be heard in person".
2. A careful perusal of the above notice would reveal that, in substance, the charge against the appellant was that when Mr. Abdul Samad Khan was admitted in the Civil Hospital, Sukur, at about 11 p.m. He was the doctor on duty but he did not take proper steps commensurate with the patient s critical condition, so much so that he did not even pass "Foley's Catheter1' to the patient, with the result that the latter died. These allegations appear to us to be vague. We feel that the notice was not clear as to what efforts were considered proportionate to the gravity of the patient's illness, which the appellant was required to make. In this connection the appellant's replv was to the following effect: "It is not correct that I have not made proper efforts as per the gravity of the illness, but I have attended the patient frequently and proper care and treatment has been given by me. There is no any negligence at any stage while attending the case. The kind civil Surgeon and Physician have agreed with my diagnos is and treatment".3. Thus he emphatically denied the charge that he had not made proper efforts as per gravity of the patient's illness. As regards the passing of Foley's Catherter, his explanation was that since urinary blader was found enty. It was a clear case of Renal Failure and as such his omission to pass Foley's Catheter was neither a blunder no the cause of death.
4. May be the appellant's view was not correct. But the question arose on what basis we could record such findings? Admittedly detailed enquiry was not held nor any document necessary for proving the charges against the appellant was supplied to him either simultaneously with the service of the show-cause notice or at any subsequent stage. Neither party got opportunity to prove its respective view point, ln view of the appellant's detailed reply referred to above, the Department had to prove the issues in controversy. For example, they had to show by positive evidence as to what measures the appellant was supposed to take for saving the life of the patient which he had failed to take. Merely saying that he did not make efforts proportionate to the gravity of his illness, was not enough. It was also necessary for the Department to prove by evidence that as regards the passing of "Foley's Catheter" the appellant's view was wrong and further that by using that device the patient's life could be saved. In absence of such evidence the appellant's view about, the said device could not be lightly dismissed. However as stated by him in his reply he had instead passed a rubber catheter to the patient. No evidence was placed on record to show that the said measure was entirely ineffective in the type of the patient's case.
5. At this stage our attention was invited to the reference made in the written statement filed by the learned AAG, to the copies of enquiry report and other relevant documents received from the Deputy Director, Health Services Sukur Division and enclosed with the written statement. The enquiry report shows that the enquiry was conducted on 1.9.1987, about for months prior to the service of the show-cause notice on the appellant and that in course of the said enquiry as many as six witnesses were examined. In para 5 of the report it was noted that as disclosed from the statements of various persons including the appellant after the civil surgeon completed his round on the fateful night the appellant did not turn up again to examine the patient for whole of the night despite the civil surgeon's directions. Of course his non-attendance to the patient for the whole night speaks of his negligence. But the question is if the above findings arrived at by the enquiry officer and taken note in his report were brought to the notice of the appellant so that he had opportunity to furnish his explanation. It is an admitted position that the enquiry which resulted in the aforesaid enquiry report was held before he appellant was served with the show-cause notice. Such enquiry was only in the nature of preliminary enquiry which could not be construed as enquiry envisaged by the said rules. Therefore no document which formed a part of that enquiry could be used against the appellant unless a copy thereof was supplied to him, affording him opportunity to explain the same. As stated above no document, much less any document of the preliminary enquiry was supplied to the appellant simultaneously with or subsequently to the service of the show-cause notice on him. The proper course was that as soon as it transpired in the preliminary enquiry that the appellant had show his negligence in the treatement of the aforesaid patient the said allegations should have been properly proved against him strictly in accordance with the said rules. Instead the Department was contented with only the service of the show-cause notice on the appellant without caring to supply him the relevant written material of the preliminary enquiry.
6. As provided in clause (a) of sub rule (4) of rule 5 of the said rules the authorized officer has power to impose a minor penalty only after he has come to the conclusion that the charges against the accused civil servant are proved. As has been discussed above, in the instant case, the allegations made against the appellant fall short of proof. Accordingly he could not be held guilty of the charges. It is therefore difficult for us to sustain the impugned order. In these circumstances the appeal is accepted with no order as to costs and the impugned order is set aside. However looking to the peculiar circumstances of the case, we leave it open to the Department to take out fresh proceedings against the appellant under the said rules, if the department so desired. Before doing so, the Department will be will advised to first make sure that the reliable evidence was forthcoming to prove their case and the fresh proceedings would not be an exercise in futility.
Given under our hands and the Seal of this Tribunal on this 18th day of October, 1989 at Karachi.