Judgment:
R.K. Patra, J.
1. The petitioner in this application under Articles 226 and 227 of the Constitution of India impugns the validity of the order No. 17 dated 15-1-1996 (Annexore-3) of the Superintendent, S. C. B. Medical College Hospital. Cuttack removing her from the General Nursing and Midwifery Training Course.
2. The facts as averred in the application may be briefly stated :
The petitioner on being selected for the General Nursing and Midwifery Training Course attached to the S. C. B. Medical College Hospital, Cuttack took admission in the academic session 1994-95 and was a second year (Nursing) student at the material time. On 5-7-1995 she was allotted duty in the Unit I Medicine Ward of the hospital. By that time one Sudhir Kumar Singh, a Post Graduate student of Utkal University (Vani Vihar) was in bed No. 162 of the said Ward who had an attack of Cerebral Malaria. While attending to bed No. 162, she found from the medicine chart that three injections/ viz. Benitim, Epsoline and Rubiquine were to be administered to the patient. The first two injections were to be given directly whereas the third one was to be administered intravenously by diluting in 10% dextrose solution and saline drips were being given to the patient and second saline bottle was to start as per the instructions contained in the medicine chart the petitioner administered the first two injections, viz. Benitin and Epsoline to the patient and was about to administer the third one intravenously by diluting in 10% dextrose solution. At this moment, persons who were attending on the patient raised hue and cry to the effect that because of the petitioner's administering the injections, the conditions of the patient started deteriorating. The patient unfortunately died immediately thereafter. The attendants of the patient being enraged at the petitioner although she was in no way responsible for the death tried to assault her and the nurses and the doctors who were present then. The police arrived at the spot. When autopsy was going to be conducted over the dead body the attendants of the deceased did not allow the same to be done and took away the dead body after giving necessary declaration in the hospital Ward.
3. As the matter stood, the petitioner was surprised to receive the notice dated 1-1-1996(Annexure-1)from the Superintendent, S. C. B. Medical College Hospital, Cuttack (hereinafter referred to as 'the Superintendent') calling upon her to show cause as to why she would not be removed from the training course. It was mentioned in the notice that the petitioner administered Rubiquine injection directly in the vein of the patient instead of administering through drips and as a student nurse, she was not supposed to administer intravenous injection. In response to the said notice, she submitted her explanation as per Annexure-2 denying the entire allegations. She has specifically stated that she did not administer the Rubiquine injection to the patient and in absence of the post mortem report, it could not be conclusively held that cause of death was on account of administration of Rubiquine injection. She also specifically demanded for a copy of the report of the Revenue Divisional Commissioner. To her utter surprise she was served with the impugned order Annexure-3. According to the petitioner, the impugned order is vulnerable inasmuch as it was passed without giving her a reasonable opportunity of hearing.
4. The Superintendent Principal, Tutor, School of Nursing, S. C. B. Medical College Hospital, Cu tack and the State of Orissa represented by its Secretary in Health and Family Welfare Department are opp. parties 1 to 5 whereas the Revenue Divisional-Commissioner, Central Division, Cuttack is the opp. party No. 4 in the case. Counter affidavit has been filed by the Superintendent contending inter alia, that the administrative enquiry conducted by the Revenue Divisional Commissioner revealed that the petitioner administered the Rubiquine injection improperly and, as such, decision was taken at all levels to take action aganst the erring personnel. It was also pleaded in the counter affidavit that the petitioner at the time of her admission entered into agreement which stipulated that in the event the authorities are dissatisfied with her job she can be removed.
5. Shri B. N. Mohanty, learned counsel for the petitioner, contended that the impugned order at Annexure -3 was passed in violation of the principles of natural justice inasmuch as no opportunity of hearing was afforded to the petitioner. Shri R. K. Mohanty, learned Additional Government Advocate, on the other hand, argued that the decision was taken as per the stipulations contained In the agreement executed by the petitioner at the time of her admission to the nursing course and there was no violation of the principles of natural justice.
6. At this stage, let us first deal with the submission of learned Additional Government Advocate that the impugned decision was taken in terms of the stipulations contained in the agreement executed by the petitioner. It appears that the petitioner at the time of her admission as a student in the nursing course entered into agreement which, inter alia, stipulated that in the event the authorities are dissatisfied with her job, she can be removed. We may state here that under the agreement, the concerned authority might have the power to remove the petitioner from the nursing course In the present case, we are directly concerned with the manner in which the petitioner was removed from the nursing course and not with the existence of power of removal. As such, reference to the agreement in the counter affidavit and the argument by the learned Additional Govt. Advocate baring on the agreement are absolutely irrelevant.
7. The precise and exact question that arises for consideration is whether the rule of audi alteram partem that is, hear the other side was complied with before the adverse decision was taken against the petitioner. It is now well settled that an administrative order which involves civil consequence must be made consistently with the rule of audi alteram pattern. It means that a person against whom an order to his prejudice may be made should be informed of the allegations and charges against him be given opportunity of submitting his explanation thereto, have the right to know the evidence on which the matter is proposed to be decided against him. The rule of audi alteram pattern being not embodied rule, its scope and extent depend upon particular fact situation and circumstances peculiar to each case.
In order to appreciate the core question whether the petitioner was given reasonable opportunity of hearing before she was removed from the nursing course, it is necessary to extract the impugned order Annexure-3. It reads as follows:
'Order No. 17/Dated Cuttack 15th Jan. 1996.
In pursuance of Govt. in Health and F. & W. Deptt. letter No. 26716/R., dt. 20-11-1995 communicated by the Director of Medical Education and Training, Orissa vide his letter No 3310/C., dt. 20-12-1995, Miss-Jyotirmayee Nayak, 2nd year student Nurse of School of Nursing, S. C. B. Medical College Hospital. Cuttack. is hereby removed from the General Nursing and Midwifery Training Course. with immediate effect as the explanation submitted by Miss. Nayak is not just.'
Sd/-.
Superintendent, S. C. B. Medical College
Hospital, Cuttack.'
It would appear from the aforesaid that there is reference to the Government letter No. 3471 /E. dated 22-11-1995 which was communicated to the Superintendent by the Director. Medical Education and Training. Orissa, in his letter No. 3310/C. dated 20-12-1995. As the said Government letter has direct bearing on the issue involved, we may profitably quote the same:
'To
The D. M. E. T.,
Orissa. Bhubaneswar.
Sir,
I am directed to say that the administrative enquiry conducted by the R. D. C. Central Division, Orissa, in the context of death of Shri Sudhir Singh, a Vani Vihar student in S. C. B. Medical College Hospital. Cuttack on 05.07.1995 reveals that the Miss. Jotirmayee Nayak, a student Nurse, administered Rubiquine injection directly in vein of Mr. Sudhir Singh instead of administering through drips. A student Nurse is not supposed to administer intravenous injection but she has done so although the Nursing Sister Smt. Nisamani Devi and Staff Nurse Smt. Panchali Dei were present In the ward.
2. There is a prima facie case to remove the student Nurse Miss, Jyotirmayee Nayak from training for her unauthorised work.
3. I am. therefore, desired to request you to remove her from the training immediately after observing all usual formalities.
Action taken may please be intimated to Govt. forthwith.
Yours faithfully
Sd/-
dt. 21. 11. 95
Joint Secretary to Government.'
8. Bare reading of the Government letter referred to above would reveal that the finding of guilt was reached by the Government on the basis of the enquiry report wherein the Revenue Divisional Commissioner has held that the petitioner being a student nurse was not supposed to administer Intravenous injection but she did it instead of administering through drips and, accordingly, the Government 'desired' the Director, Medical Education and Training to remove the petitioner from the nursing training immediately. On receipt of the command of the Government through the Director, Medical Education and Training, Orissa, Bhubaneswar, the Superintendent issued the notice to 'show cause', Annexure-1. This is apparent because there is reference to the letter No. 3310/C. dated 20-12-1995 of the Director, Medical Education and Training, Orissa, Bhubaneswar in Annexure-1 itself. The Superintendent who has passed the impugned order (Annexure-3) was dictated by the State Government to remove the petitioner from the nursing course. The order of removal as per Annexure-3 is thus not the out-come of independent application of mind by the Superintendent. The deeper we examine the impugned order Annexure-3, more flaws are revealed in Annexure-3 as well as in the Government letter in question, there is reference to the enquiry held by the Revenue Divisional Commissioner with regard to the death of the patient Sudhir Kumar Singh. Admittedly, the copy of the report was not made available to the petitioner despite her demand in her explanation Annexure -2. This indicates that an important document has been utilised against the petitioner behind her back without furnishing copy of the said report to her. The explanation submitted by the petitioner was not at all considered by the Government as is evident from the Government Letter No. 34716/H. dated 22-11-1995. On the contrary there is clear command to the Superintendent to remove the petitioner from the nursing course. In Anne-xure-3, the Superintendent has observed that the explanation submitted by the petitioner 'is not just'. At the cost of repetition, we may mention that the petitioner in her explanation (Annexure-2) has totally denied the allegation of administering Rubiquine injection to the patient. The Superintendent cannot acquit himself from the decision making process by merely observing that the explanation 'is not just.' He was required to indicate his reasons as to why the explanation submitted by the petitioner was not acceptable.
9. On careful consideration of the entire fact situation, we have no hesitation to hold that the Superintendent and the State Government have made the entire process of fair hearing a mess-up and the rule of audi alteram pattern has become casualty instead of the victor. For all the reasons aforesaid, the impugned order cannot be sustained in law and we quash it.
10. In the result, the writ application is allowed. Hearing fee is assessed at Rs. 500/-.
R.K. Dash, J.
I agree.