Suspension Period Spent In Gainful Private Practice To Be Treated As Leave; Treating It As Duty Would Lead To Unjust Enrichment: J&K And Ladakh High Court

The Bench further set aside the penalty of censure imposed on the respondent-doctor, finding that it was passed in violation of the principles of natural justice.

The Court was hearing a petition filed by the Union Territory of Jammu & Kashmir challenging the order of the Central Administrative Tribunal (CAT), Srinagar, which had quashed both the censure order and the government’s decision to treat the suspension period as leave.

A Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar observed: “We are saying so for the reason that the respondent, being a B-grade Surgeon Specialist, could not be expected to remain idle during the period of suspension. There is also material on record indicating that during the period of suspension, the respondent was gainfully employed by way of private practice. Otherwise also, it is unreasonable to expect a doctor, who is a specialist in surgery, to remain idle for the entire period of suspension. Treating the period of suspension as duty and granting him full salary would be tantamount to unjust enrichment of the respondent.”

Advocate Waseem Gul appeared for the petitioners, while Advocate G. N. Sofi represented the respondent.

Background

The case arose from an incident when the respondent, a B-grade Surgeon Specialist posted at District Hospital Anantnag, performed surgery on a patient who died the same day. Following allegations of medical negligence, the respondent was placed under suspension, and an Enquiry Committee was constituted to investigate the circumstances of the operation and determine accountability.

The Committee concluded that the respondent had acted with “overconfidence” in performing a high-risk procedure and noted deficiencies in postoperative care. Based on these findings, the disciplinary authority issued a show-cause notice proposing termination of services and another proposing withholding of two increments.

Upon considering the respondent’s reply, the authority imposed the penalty of censure and passed a separate order treating the period of suspension as leave. The respondent challenged both orders before the High Court, and the matter was transferred to the Central Administrative Tribunal (CAT), which quashed both orders. Aggrieved, the government approached the High Court.

Court’s Observations

The High Court examined the Tribunal’s findings and partly agreed with its reasoning. On the issue of censure, the Court observed that the respondent was not provided with the complete enquiry report before the penalty was imposed. The Court held that sharing the entire report is mandatory to enable the delinquent to make an effective representation. Since only extracts of the findings were provided, the order imposing censure was vitiated for breach of natural justice.

However, the Court disagreed with the Tribunal’s view regarding the treatment of the suspension period. Upon reviewing the record, the Bench noted that there was sufficient material showing that the respondent engaged in private practice while under suspension.

The Court added that treating the suspension period as leave would not cause the respondent substantial financial loss, as his leave account would be adjusted accordingly.

Conclusion

The High Court partly upheld the Tribunal’s decision by affirming the quashing of the censure order but set aside the Tribunal’s finding on the suspension period, thereby sustaining the government’s order to treat it as leave.

Accordingly, the petition filed by the government was partly allowed and disposed of.

Cause Title: Union Territory (then State) of Jammu & Kashmir & Ors. v. Dr. Bilal Ahmad

Appearances

Petitioners: Advocate Waseem Gul

Respondent: Advocate G. N. Sofi

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