The award of the first respondent Labour Court in I.D.No.208 of 1998, dated 04.01.2000, confirming the punishment of dismissal imposed against the petitioner by the second respondent, is under challenge in this Writ Petition.
2. Petitioner joined the service of the second respondent as a Staff Nurse in the year 1992. On 12.10.1997, at about 05.30 p.m., when she was on duty, one Angudoss, estate worker, was brought in a very critical condition to the hospital. The petitioner, with the help of other staff, made the patient to lie on the cot in a male ward and gave oxygen and administered 'Coramine' injection. But, the patient died within ten minutes. The management issued a Memo, alleging that the worker died due to the petitioner not giving life saving injection to the worker and it was a misconduct under the Standing Orders, for which the petitioner sent a reply, denying the charge. Thereafter, a charge sheet was served on the petitioner and an inquiry conducted. Based on the findings of the Enquiry Officer, the petitioner was dismissed from service by the second respondent.
3. The stand of the second respondent was that the petitioner was a senior staff nurse and she did not take stock of the critical condition of the patient by administering the life saving drug, namely, 'adrenaline' or 'decadron', which she was aware, to save the patient; the petitioner also failed to raise the foot end of the cot; she was careless and negligent in discharging her duties as a senior nurse; there were number of incidents where the petitioner committed serious mistakes in her work; she ought not to have admitted the patent in the male ward rather than in Intensive Care Unit, taking into consideration the condition of the patient; she brought disrepute to the hospital and the workmen lost confidence on the services provided by the hospital; the respondent had lost confidence to continue her in the service of the company and, therefore, the respondent was fully justified in imposing the punishment of dismissal, which was based on the findings of the enquiry officer upon evidence.
4. Aggrieved over the said dismissal, the petitioner raised an industrial dispute before the first respondent, which confirmed the order of dismissal passed by the second respondent. Hence, this Writ Petition.
5. The contention of the learned counsel for the petitioner before this Court is that on coming to know the worst condition of the patient, the petitioner immediately gave the patient first aid, put him in oxygen and also gave a life saving injection of 'Coramine'; the petitioner had taken all precautions and she was with the patient throughout, but within minutes of admission of the patient to the hospital, the patient died, for which, the petitioner was charged with negligence of duty; the petitioner was not served with enquiry proceedings to defend the case and, therefore, the order passed by the first respondent, confirming the punishment of dismissal imposed by the second respondent, is liable to be set aside. In support of his contention, the learned counsel has relied upon a decision of the Supreme Court in Ramanuj Pandey v. Sate of Madhya Pradesh and Others, 2009 (7) SCC 248, wherein it has been held as under :
"9.Admittedly, it is for the disciplinary authority or the administrative authority to decide the quantum of punishment in a case of misconduct and the role of the court is only secondary. But in view of the gravity of the misconduct, namely, the appellant having apprehended Laxmi Narain and registering him under Section 13 of the Lunacy Act, where the disciplinary authority held the appellant guilty for detaining a public servant in police post without any reason and removed him from government service, the interference with the imposition of punishment is necessary.
10. In the present matter, the appellant, while discharging his duties apprehended Laxmi Narain and registered him under the Lunacy Act without any sufficient reasons. This act of his had indisputably caused harassment to Laxmi Narain and was detrimental to the image of the Police Department, but the same was also not grave enough to punish him with removal from services. The appellant as a Head Constable was bestowed with official duties and while discharging them he went outside its purview, which definitely warrants that his services must be terminated, but as a warning to others and not as a vengeance.
11. While considering the power to interfere with the order of punishment, this Court in Rangaswami v. State of T.N., 1989 Supp (1) SCC 686, held that this Court, while exercising the jurisdiction under
Article 136 of the Constitution, is empowered to alter or interfere with the penalty. Accordingly, the punishment of the appellant of dismissal from services as imposed by the disciplinary authority is substituted to one of compulsory retirement from the date of his dismissal from service i.e.7-5-1992."
6. On the other hand, learned counsel for the second respondent would contend that the petitioner, being the senior most nurse, ought to have followed the standing instructions and because of the failure of the petitioner in administering life saving injection to the patient, there was a loss of life, which resulted in disrepute to the institution; the petitioner was also warned for such negligent acts earlier and this is not the first incident to let her off and, as such, the award of the first respondent does not suffer from any perversity.
7. I have heard the learned counsel for the petitioner and also gone through the records.
8. On 12.10.1997, when a permanent worker by name Angudass of Thay Mudi Estate, complaining of chest pain and giddiness in addition to miocardial infraction, was brought to the second respondent hospital, referred by Dr.Munisamy of Valparai, for treatment, the patient was made to be admitted to male ward by the petitioner instead of Intensive Care Unit. The foot end of the cot was not raised and the patient was administered only coramine injection instead of adrenalane or decadron, which are life saving injections. The petitioner, being the seniormost nurse of the hospital, failed to follow the standing instructions. Because of the negligence of the petitioner, the patient died within ten minutes of admission.
9. Therefore, on 15.10.1997, a show cause notice was issued to the petitioner, for which the petitioner gave her explanation, dated 17.10.1997. Not satisfied with the said explanation, the second respondent issued a charge sheet to the petitioner, charging her with misconduct of negligence, breach of standing orders and acts subversive of discipline. The said charges read as follows :
"1.Standing order 21 (2) :Negligence or carelessness in work In that, it is alleged that on 12.10.1997, a worker by name Thiru Angudass, No.2837 was brought to the hospital in a critical condition and you were negligent and caress in handling the case in a professional manner and the details of which have already been communicated to you in the complaint dated 13.10.97 preferred by the Chief Medical Officer. Hence this charge.
2. Standing Order 21 (3) read with 21 (15) : Breach of any standing instructions and neglect of work In that, it is alleged that you have deliberately failed to follow the standing instructions that critical cases should be treated in the Intensive Care Unit and that you have failed to give supportive life saving injections and failed to stand by the side of the patient, attending on the patient.
3. Standing Order 21 (30) Acts subversive of discipline In that, if the allegations above are true, the sum total of your conduct and behaviour will attract this charge."
The petitioner was asked to appear for an enquiry. In the enquiry, Chief Medical Officer of the hospital, Wardboy and Staff Nurse were examined in support of the charges. The petitioner did not examine any witness. The Enquiry officer gave his report, holding that the charges against the petitioner were proved. On 08.11.1997, a copy of the report of the Enquiry Officer was furnished to the petitioner and she was also informed of the proposed punishment, for which her reply was sought. On 14.11.1997, the petitioner gave a reply. After considering the reply, on 21.11.1997, the petitioner was awarded the punishment of dismissal with effect from 24.11.1997. The petitioner raised an industrial dispute challenging the order of dismissal. She took the dispute for conciliation and, on failure of conciliation, the dispute was taken to the first respondent where the dispute was numbered as I.D.No.208 of 1998.
10. Before the first respondent, the petitioner examined herself and one Jaganathan and her documents were marked as Exs.W1 to W9. On the side of the second respondent, Dr.Atmaram and Tmt.Elizabeth George were examined and its documents were marked as Exs.M1 to M29. On 28.09.1999, the first respondent passed a preliminary order holding that the domestic enquiry held into the charges levelled against the petitioner was fair and proper. Thereafter, the first respondent took up for consideration the question whether the findings were justified and the punishment was proper.
11. On analysing the entire material available on record, the first respondent, on 04.01.2000, passed the final award, holding that the petitioner had not admitted the patient, who came in a very critical condition, to ICU; she had not administered life saving medicines such as "adrenaline" and "decadron"; she had not raised the foot end of the cot and not remained by the side of the patient and wasted time in contacting the Chief Medical Officer and that the acts of the petitioner constituted serious misconduct, which, in turn, resulted in loss of life, thereby bringing in disrepute to the second respondent hospital.
12. When a patient complained of cardiac arrest and found to be in critical condition is brought to the hospital, the general presumption is that he should be taken to ICU and, on seeing the condition, he should be given life saving drugs like "adrenaline" or "decadron", which are available in the hospital. The petitioner was fully aware that those medicines were to be administered. As a Staff Nurse, with considerable experience, the petitioner ought to have administered one of those medicines. It was also the duty of the staff nurse to see that the foot end of the cot was put in a raised position. The petitioner cannot abdicate her responsibility by saying that her job was to give only first aid and it was the job of the doctor to give life saving drugs like "adrenalane" or "decadron". All these instructions were not followed by the petitioner and, therefore, it cannot be said that there was no violation of instructions on her part.
13. The patient was taken to the second respondent hospital only for the reason that the said hospital was well equipped to treat the patients in critical condition, which fact was not denied by the petitioner either in her explanation or before the enquiry officer. The patient, on his arrival, was found to be in the most critical condition and he was diagnosed to have miocardial infraction, which was recorded in Ex.M.4 Case Sheet, and the same was also admitted by the petitioner. It is in the evidence of Chief Medical Officer and M.W.3 Sister Vadivu that life saving medicine to be administered to such critically ill patient was either adrenalane or decadron. Such being the position, what was administered by the petitioner was coramine, which was not a life saving injection. There was also no explanation offered on the part of the petitioner as to why the patient was not shifted to ICU. Exs.M5 and M7 are the confidential reports of the petitioner for the years 1994-1995 and 1996-1997 respectively. While Ex.M5 would show that the performance of the petitioner was not satisfactory and the remark given was that she was not dependable, Ex.M7 would indicate that on an earlier occasion on 04.09.1997, the petitioner had wrongly copied the prescription given to the patient and on 20.08.1997, she allowed one patient to stay in the used bed without changing the bed sheets and there were a few other occasions, wherein the petitioner was given severe warnings to improve her performance. In the month of October,1994, one patient had absconded from the hospital and it was not brought to the notice of the duty Medical Officer by the petitioner and the same was treated as a major misconduct. Explanation was called for from the petitioner and she, having admitted her mistake, gave an assurance not to repeat the same in future. By a letter dated 08.10.1994, the petitioner was severely warned that any lapse on her part in her duties in future would be viewed very seriously.
14. In the given situation, the petitioner, particularly in the absence of Chief Medical Officer, should have acted in a more diligent manner in her attempt to save the patient who was brought critically ill. The failure on her part to follow the standing instructions resulted in the loss of a life, which, in turn, caused loss of reputation to the hospital, under which circumstances, the management cannot be expected to take a lenient view. The management, having lost confidence in the workman, namely, petitioner, cannot also be compelled to continue the workman in service.
15. Negligence on the part of the petitioner had not only resulted in the death of a workman, but also created a flutter in the hospital. Such conduct on the part of the petitioner could not be countenanced by any standard of dispute. Were the petitioner retained in employment, workmen would have continued the agitation, resulting in chaos.
16. In spite of being given reasonable opportunity to improve her performance, the petitioner had failed to do so and often been found guilty of certain lapses which were serious in nature and prejudicial to the interest of the employer. Under the circumstances, the second respondent had no other option, but to impose the punishment of dismissal on the petitioner, for the proved charges, which did not also warrant any interference by the first respondent.
17. Therefore, the punishment of dismissal imposed on the petitioner, in my considered opinion, cannot be said to be harsh and disproportionate to the charges established. As such, the first respondent was justified in coming to the conclusion that the punishment of dismissal awarded to the petitioner by the second respondent was proper.
18. As far as non-supply of a copy of the enquiry report is concerned, as could be seen from the show cause notice dated, 15.10.1997, the same was furnished along with the show cause notice. Hence, the contention of the learned counsel for the petitioner, in this regard, cannot be sustained.
19. Standing Order 22 deals with penalties in respect of acts of misconduct. Though this Standing Order provides for dismissal of the employee who is found guilty of any act of misconduct under Standing Order 21, the proviso clause to Standing Order 22 contemplates that in case of first commission of any of the misconduct coming under sub-clauses 1 to 4 of Standing Order 21, the punishment or dismissal or discharge will not be awarded.
20. To adopt the proviso clause to the case on hand, it is to be stated that firstly, this is not a case of first commission of misconduct by the petitioner. There were other previous commissions of misconduct, for which the petitioner was warned by the management. In addition, the second charge in question against the petitioner was under Standing Order 21 (3) read with 21 (15). Sub-clause (15) to Standing Order 21 is with regard to negligence or neglect of work involving loss to the employer or habitual negligence or neglect of work. The proviso clause applies only to the misconduct coming under sub-clauses 1 to 4, that too in case of first commission. Therefore, the proviso clause cannot be cashed in on by the petitioner.
21. For all the foregoing reasons, this Writ Petition is dismissed. No costs.
dixit To The Presiding Officer, Labour Court, Coimbatore