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JUDGEMENTS                               LPA No. 268/98 & IA No. 278/99                        Back to Index

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
LPA No.268/98 and IA No.278/99

Date of decision: 5th February 2001

Dr. Naseema Firdous & Ors    v/s      State of J&K and others.
Coram:
The Hon’ble Mr. Justice Dr. B. P. Saraf, Chief Justice.
The Hon’ble Mr. Justice N. A. Kakru, Judge.

Whether approved for reporting: Yes
For the appellant: Mr. M. A. Qayoom, Advocate.
For the respondents: Mr. J. A. Kawoosa, AAG, for respondents 1 to 5.
Mr. R. A. Jan, Advocate, for respondent No.6.

JUDGEMENT AND ORDER

Per Dr. B. P. Saraf, Chief Justice

This is an appeal under clause 12 of the Letters Patent against the order of learned Single Judge dated 17th August, 1998 by which the learned Single Judge dismissed the writ petition of the appellants-doctors seeking a direction to the respondents not to conduct any departmental enquiry against them till the investigation regarding the alleged death of one Mst. Shakeela, a patient who died in the Lal Ded Hospital ("Hospital") due to medical negligence, was investigated by the police and challan presented in the court of law; or, in the alternative, a direction to the respondents to get a fresh preliminary enquiry conducted into the cause of the death of Mst. Shakeela in the Hospital on account of alleged negligence of the doctors ( appellants).

2. The appellants are serving as medical practitioners in various capacities in the Hospital. At the material time, appellant No.1, Dr. Naseema Firdous, and appellant No.2, Dr. Mahmuda Parveen, were posted as Assistant Professors and appellant No.3, Dr. Mushtaq Ahmad Matto, as Registrar. During the pendency of these proceedings in this Court, the second appellant, Dr. Mahmuda Parveen, has retired. The incident in relation to which departmental proceedings are contemplated against the appellants is as follows. One lady by the name Mst. Shakeela was admitted to the Hospital in an advanced stage of pregnancy on 16th March 1998. Soon thereafter, she developed labour pains and on 19th March 1998 she was declared dead. A First Information Report (FIR) was lodged by the husband of deceased in the Rajbagh Police Station alleging gross negligence on the part of the doctors attending on his deceased wife. He alleged that the death of Shakeela was caused by culpable negligence on the part of the doctors and the medical staff of the hospital. No investigation could be conducted by the police because the three doctors (appellants herein) did not attend the Police Station. After waiting for ten days, the Station House Officer ("SHO") of the Rajbagh Police Station wrote a letter to the Medical Superintendent of the Hospital requesting him to ask the three doctors to report at the Police Station for investigation. Despite all that, not to speak of investigation, even the FIR alleging commission of serious crime was not registered by the Police. Aggrieved by the inaction of the Police, the brother of the deceased, Mr. Manzoor Ahmad Dar, approached the Chief Judicial Magistrate, Srinagar for a direction to the Police to register the FIR and investigate the case in the interest of justice. The Chief Judicial Magistrate by his order dated 30th June, 1998 directed the SHO, Police Station, Rajbagh to submit a report in the matter. In response to the order of the Chief Judicial Magistrate, the SHO, Police Station, Rajbagh, submitted his report to the Chief Judicial Magistrate wherein it was admitted that though information had been received by the Police Station about the alleged death of Mst. Shakeela due to negligence of the doctors, no case was registered by them against the doctors in view of the information received from the Medical Superintendent of the Hospital that a team of doctors had been appointed to enquire into the matter. The Chief Judicial Magistrate took strong exception to the inaction of the Police on the FIR lodged with them on 19th March 1998 regarding the alleged death of Mst. Shakeela in the Hospital by the negligence of the doctors. The Chief Judicial Magistrate observed that the matter was serious and its pendency without proper investigation had given rise to serious apprehensions in the minds of the aggrieved persons and the public. He, therefore, directed the Inspector General of Police to register the case of the alleged death of Mst. Shakeela due to medical negligence and to depute some Superintendent of Police to investigate the matter. In the meantime, the report of the preliminary enquiry conducted by a Committee of Doctors (Committee), comprising the Head of Department of Medicine, Prof. A. Nafae, Head of Department of Surgery, Prof. M. S. Misgar, Head of Department of Anaesthesiology, Prof. Abdul Ahad, Head of Department of Obstetrics and Gynaecology, Prof. Bilquees Jameela and Medical Superintendent, LD Hospital, Srinagar, Dr. Munshi Hafizullah, constituted by the hospital administration to enquire into the alleged negligence of the doctors, was received by the Hospital management. The committee, in its detailed report running into eight pages, examined, inter alia, whether there was any negligence on the part of the doctors with regard to the care of the patient in the hospital and, if so, who were really responsible for the same. The Committee came to a categorical conclusion that the patient had not been managed properly as she could have been, especially in view of her having conceived after treatment with chlomiphene and having mild PIH. The Committee also found Dr. Naseema Firdous, Consultant (appellant No.1), Dr. Mushtaq Ahmad, Registrar (appellant No.3) and Dr. Mahmooda, Consultant (appellant No.2) directly responsible for the same. The Committee felt that the above three doctors were directly responsible at one stage or the other for not taking proper care of the patient. The Committee, therefore, recommended that to meet the ends of justice action under the rules should be taken against those three doctors who were responsible for the death of Shakeela on account of their negligence. On receipt of the report of the Committee, apprehending departmental proceedings on the basis thereof, the appellants filed a writ petition before this Court under article 226 of the Constitution of India read with section 103 of the Constitution of Jammu and Kashmir seeking following directions to respondents 1 to 3 (State of Jammu and Kashmir, Principal, Government Medical College, Srinagar and the Medical Superintendent, Lal Ded Hospital, Srinagar):

    1. Not to conduct any departmental enquiry against the petitioners until the criminal investigation regarding the alleged death of Shakeela is investigated by the Police and challan is presented in the court of law.
    2. Not to act on the report of the enquiry committee which had falsely and fraudulently implicated the petitioners in its report and ignore the said report in all respects till the final report is submitted in the court of law by the police agency.

In the alternative,

iii) To direct the respondents 1 to 3 to constitute an impartial and independent enquiry committee for enquiring into the death of Shakeela and to direct the said committee to consider the pros and cons of the case of death and submit a report to the respondents after giving the petitioners an opportunity of being heard and producing all relevant material before it.

3. In the course of hearing of the writ petition before the learned Single Judge, it was urged on behalf of the appellants that the matter being looked into by the police, no departmental proceedings should be permitted to be initiated and/or continued. The learned Single Judge dismissed the writ petition as he was of the opinion that in the facts and circumstances, it was not a fit case for stay of the departmental proceedings. The learned Single Judge observed that the grievance of the appellants against the preliminary enquiry report on the ground of inclusion of Dr. Bilquees in the five-member committee did not have any force because not only that the report was only a preliminary report but the doctor against whom the appellants were making grievance was only one of the five members of the Committee. He also directed that the said doctor, Bilquees Jameela, should not be associated with the departmental enquiry if the appellants were aggrieved by her association. The learned Single Judge, took note of the grievance of the appellants that they had suffered due to the wide publicity given to the incident in the newspapers and directed that thereafter no publicity would be given to this case in any newspaper.

4. Aggrieved by the order of the learned Single Judge, this appeal has been filed. At the time of the admission of the appeal, by order dated 9.10.1998, the departmental enquiry initiated by the hospital administration against the appellants was stayed. The direction of the learned single to the newspapers not to give any publicity to the case in the newspapers also continued to operate. Consequently, nothing has happened in the case thereafter. It appears that the public also has by now forgotten the incident. The only persons still aggrieved by the inaction are the relatives of deceased Shakeela, who might be watching the developments as helpless spectators.

5. We have heard Mr. M. A. Qayoom, learned counsel for the appellants, who submitted that in view of the filing of the FIR and pendency of investigation by the police, departmental enquiry against the appellant doctors should be stayed. The learned counsel contended that even the preliminary enquiry conducted by the team of doctors was not fair because it was conducted without giving any opportunity of hearing to the appellants. The appellants are also aggrieved by the preliminary enquiry report on account of the association of Dr. Bilquees Jameela with the enquiry. The learned counsel submitted that in the present case, in view of the pendency of the FIR before the police, no departmental proceedings should be allowed to proceed. In support of this submission, reliance was placed on the decisions of the Supreme Court in Tata Oil Mills Co. Ltd v The Workman AIR 1965 SC 155, Kusheshwar Dubey v M/S Bharat Coking Coal Ltd AIR 1988 SC 2118, Union of India v K. V. Tankiraman AIR 1991 SC 2010 and The Food Corporation of India v George Varghese AIR 1991 SC 1115. Reliance was also placed on a decision of this Court in Sardar Harbans Singh v Transport Commissioner AIR 1966 J&K 73.

6. We have also heard Mr. J. A. Kawoosa, Additional Advocate General, for respondents 1 to 5 and Mr. R. A. Jan, learned counsel for respondent No.6, brother of the deceased Shakeela. Mr. Jan submitted that this case is not one of those cases where the departmental proceedings should be stayed in view of the filing of FIR by the husband of the deceased. According to the learned counsel, this is one of those cases where with a view to restoring the faith of the public in the hospital, departmental enquiry must be conducted and concluded with utmost expedition. The learned counsel drew our attention to the fact that though the incident took place in March, 1998, no investigations were conducted by the Police for months together. Even the FIR was not registered. It was only when the Chief Judicial Magistrate took cognisance of the inaction of the police on the complaint of the brother of the deceased and directed the Inspector General of Police to register the FIR, that the FIR was registered. No serious investigation ever took place. In fact, the police even closed the case and submitted a final report under section 173 Cr. P. C. It is only at the instance of the Superintendent of Police, North , Srinagar that fresh investigation has been undertaken. No finding, however, has been arrived at as yet. The learned counsel submitted that no criminal trial is pending against the appellants even today. Neither the Hospital administration has filed any criminal case against the appellants nor the police has submitted any charge-sheet against them. The learned counsel submitted that the appellants have really succeeded in stalling any action against them for their alleged negligence resulting in the death of a patient in the hospital. In view of the seriousness of the allegation and great public resentment at the time of the incident, it is the hospital administration who got a preliminary enquiry conducted into the incident to ascertain the prima facie merits of the allegation by five senior most doctors of Government Medical College, Srinagar, who recorded a categorical finding of negligence of the doctors and identified the appellants to be the doctors responsible for the negligence which caused the death of Mst. Shakeela in the Hospital. The learned counsel submitted that the appellants have succeeded in stalling the departmental proceedings against them without any cogent reason. According to the learned counsel, in such a case even if criminal proceedings were pending on the basis of the FIR filed by the husband of the deceased, that would not bar the State Government or the hospital administration to conduct the enquiry and to take disciplinary action against the doctors if they were found negligent in the performance of their duties. It was urged that reliance on the decisions of the Supreme Court was wholly misplaced because the Supreme Court has nowhere said that in a case of this type, departmental proceedings should be stayed. The learned counsel submitted that it is a fit case where the appeal should be dismissed and the interim order directing stay of departmental proceedings vacated forthwith to enable a proper disciplinary enquiry against the appellants in the matter of negligence in treating the patient in the hospital. The learned counsel stated that one of the three doctors, namely, Dr. Mahmuda, has already retired during the pendency of these proceedings. The other two doctors were still working in the hospital without any proceedings against them for their alleged negligence. The learned Counsel submitted that if in this case even departmental proceedings are not taken up immediately, the faith of the public in the hospital will be shaked. According to the learned counsel it is a pre-eminently fit case where the doctors concerned should have been straight away suspended on receipt of the preliminary enquiry report. The learned counsel relied on the decision of the Supreme Court in Depot Manager, Andhra Pradesh State Road Transport Corporation v Mohd. Yousuf Miya AIR 1997 SC 2232 wherein the Supreme Court has said that there is no legal bar for both departmental as well as criminal proceedings to go on simultaneously. Mr. Kawoosa, learned Additional Advocate General, has adopted the arguments advanced by Mr. Jan.

7. We have carefully considered the submission of Mr. Qayoom, learned counsel for the appellants that the respondents should be directed not to initiate and/or proceed with departmental enquiry against the appellants till criminal trial against them is over. We, however, find it difficult to accept the same for reasons more than one. Firstly, there is no criminal trial pending against the appellants. Only a FIR has been filed by the husband of the deceased which too was registered five months later only after the direction of the Chief Judicial Magistrate to the Inspector General of Police to do so. The three doctors named in the FIR as responsible for the death of Mst. Shakeela due to medical negligence did not even bother to appear before the Police. The police had to write to the Hospital administration to ask them to attend the Police Station to enable the Police to perform its duty. We are told that later the Police completed its investigation and submitted final report under section 173 of the Code of Criminal Procedure and closed the case. It is only on the intervention of the Superintendent of Police, North, Srinagar that fresh investigation had to be initiated which again is still not complete. Admittedly, no charge has been framed nor any trial is pending in any court of law against the appellants on the charge of causing death due to medical negligence. The incident is very serious. There was great resentment in the public at the time the incident took place. It was because of the public outcry that the hospital administration was forced to constitute the five-member enquiry committee to probe into the cause of death of Mst. Shakeela. The committee made investigations to ascertain whether there was any negligence on the part of the doctors with regard to the care of the patient and, if so, who were responsible for the same. The committee also examined whether the child and the mother could have been saved if proper care had been made available to the mother and senior consultants had given due attention to her and intervened in time. The committee took written statements from the attendants of the patient and even cross-examined them. The committee recorded statements of the doctors of the unit in which the deceased was admitted and who were supposed to take care of her and also of the doctors who were involved in the management of her treatment at some stage during the course of her stay in the hospital. On a close scrutiny of the materials gathered by it, the five-member committee came to the following unanimous conclusion:

"…[T]hat the patient has not been managed properly as she should have been especially in view of her having conceived after treatment with chlomiphene and having mild PIH and the enquiry proves that the direct responsibility lies on the following doctors:

1. Dr. Naseema Firdous Consultant.

2. Dr. Mushtaq Ahmad Registrar.

3. Dr. Mehmooda Dhar Consultant

The Commission feels that the above doctors are involved at one stage or the other for not taking proper care of the patient, in view of which it is recommended that action under rules be taken against these doctors responsible, whatever is permissible under law, to met the ends of justice."

They submitted their report to the hospital management. In the said report, the committee also made recommendations to ensure that there is no recurrence of such incident in future.

8. Obviously the above report of the five-member committee comprising highly qualified persons in the medical field cannot be taken lightly or brushed aside. Apprehending departmental proceedings and/or suspension in contemplation thereof, the appellants approached this Court by filing a writ petition for stay of the departmental proceedings which was dismissed by the learned Single Judge. However, on prayer of the petitioners, the learned Single Judge directed that no publicity should be given to the case in any newspaper. The writ petitioners preferred the present appeal and at the admission stage itself, succeeded in obtaining an ad-interim order of stay of the departmental proceedings against them.

9. More than two and a half years are over. One of the appellants, Dr. Mahmuda, who was also indicted by the five-member enquiry panel, has since retired without facing any departmental enquiry and/or criminal trial. The other two appellants are facing neither criminal trial nor departmental enquiry because of the stay order of this Court. There is no reporting about the case in the newspapers because of the direction of the learned Single Judge in the impugned order to the newspapers not to publish any report about the case.

10. It is clear from the facts of the present case that the appellants have succeeded in avoiding any action against them despite indictment by the five-member panel of highly qualified doctors. The police also, for one reason or the other, has not proceeded with the case the way they should have done. The case, being a case of medical negligence resulting in the death of a pregnant mother during her stay in the hospital, is extremely serious and cannot be allowed to be lightly brushed aside, more so on the face of the prima facie finding of the five-member panel of medical negligence. Suspension of the doctors and expeditious departmental enquiry were the inevitable concomitants to restore the faith of the public which it is clear from the press reports, has been totally shaked by the incident. The public confidence in the hospital and its doctors is the causality. Public confidence cannot be restored by directing the press not to publish any report about the incident. Whether such a direction can be given by the Courts under the law or not is yet another important issue to which we shall advert a little later. For the present, suffice it to say that this is not a fit case where departmental enquiry should be stayed pending completion of police investigation.

11. On the other hand, in our opinion, in the facts and circumstances of the present case, it is highly advisable and desirable that disciplinary proceeding should be initiated and completed with utmost expedition. It is one of those cases where it is most appropriate to proceed with the disciplinary enquiry even if a criminal case is pending against the appellants for medical negligence, though, as a matter of fact, in the present case that is not so. There is no legal bar on both the proceedings, disciplinary and criminal, to go on simultaneously. The staying of disciplinary proceedings is a matter to be determined having regard to the facts and circumstances of each case. No hard and fast rule can be enunciated in that behalf. There may be cases where it may not be desirable or appropriate to proceed with a disciplinary enquiry when a criminal case is pending on identical charges, but while considering the advisability, desirability or propriety, one of the considerations that should be kept in mind is that the disciplinary enquiry cannot be and should not be delayed unduly. The interest of administration demand that departmental enquiries are concluded expeditiously. The purposes of disciplinary proceedings and of criminal prosecution are different and distinct. Criminal prosecution is for the violation of law by the offender. The object of departmental enquiry is to maintain discipline in the service. It is, therefore, expedient that disciplinary proceedings are conducted and completed as expeditiously as possible. There is no bar as such on proceeding with departmental enquiry and criminal trial simultaneously. Moreover, the nature of evidence in criminal trial is entirely different from departmental proceedings. The standard of proof in departmental proceedings is also not the same as in the criminal trial. The evidence required in departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether continuance of departmental enquiry will seriously prejudice the delinquent in his defence in the trial in a criminal case or not. It is always a question of fact to be considered in each case depending on the facts and circumstances of that case. In a case like the one before us, it is neither in the public interest nor in the interest of the hospital administration to defer the departmental proceedings against the doctors who are prima facie found to be negligent in the performance of their duty towards a patient admitted in the hospital which resulted in her untimely death. Expeditious conduct and completion of disciplinary proceeding in such a case is not only necessary for the proper running of the hospital but also for restoring public confidence in the hospital and its doctors. This is one of the most relevant factors which should be taken into consideration in deciding whether departmental proceedings against the doctors for alleged medical negligence should be stayed or not.

12. The law on the subject is well-settled by a catena of decisions. As back as in the year 1969, in Jang Bahadur v Baij Nath Tiwari AIR 1969 SC 30, the Supreme Court said in clear terms that the pendency of the court proceedings would not bar the taking of disciplinary action. The Court held:

"…[T]he pendency of the court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceedings…"

The Supreme Court, however, pointed out that there may be cases where it would be proper to defer the disciplinary proceedings awaiting disposal of criminal case. It will, however, depend on particular facts and circumstances of each case whether the disciplinary proceedings should be deferred or not. The Supreme Court made it clear that it was neither possible nor advisable to evolve a hard and fast, straight-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation.

13. In Union of India v K. V. Jankiraman AIR 1991 SC 2010, the Supreme Court considered the question as to when criminal proceedings can be said to have commenced. The Supreme Court held that it is only when a charge sheet in a criminal proceedings is issued that criminal prosecution can be said to have commenced against an employee.

14. In State of Rajasthan v B. K. Meena AIR 1997 SC 13, the Supreme Court, on a careful consideration of the various decisions on the point, reiterated that there was no legal bar for both the disciplinary and the criminal proceedings to go on simultaneously. The true legal position was summed up by the Supreme Court in the following words:

 

" It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be ‘desirable’, ‘advisable’ or ‘appropriate’ to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced." This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, ‘advisability’, ‘desirability’ or ‘propriety’, as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in… is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry cannot be – and should not be – delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or person holding public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advise and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good Government demand that these proceedings are concluded expeditiously. It may be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant facts, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above."

(Emphasis supplied)

The Supreme Court also noticed the difference between the approach and objective in criminal proceedings and disciplinary proceedings and said in categorical terms that stay of disciplinary proceedings pending criminal proceedings should not be as a matter of course but a considered decision. The Supreme Court in the above case went on to say that even if disciplinary proceedings were stayed at one stage, that decision might require reconsideration when the criminal case gets unduly delayed.

15. This legal position was reiterated by the Supreme Court in Depot Manager, A.P.S.R.T. Corpn. V Mohd. Yousuf Miya AIR 1997 SC 2233. In that case, the Supreme Court quoted with approval the observations cited above in State of Rajasthan v B. K. Meena (supra) and observed:

"The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in departmental enquiry is not regulated by Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances…"

(Emphasis supplied)

Considering the facts of the case before it in the light of the above observations, the Supreme Court held that the charge of failure to anticipate the accident and prevention thereof had nothing to do with the culpability of the offence under sections 304A and 338 I. P. C. and in that view of the matter the High Court was not right in staying the departmental proceedings.

16. It is clear from the above decisions of the Supreme Court that the courts should be careful, cautious and circumspect in staying departmental proceedings on the ground of pendency of criminal proceedings and/or trial. The purpose of the departmental enquiry and of criminal prosecution is completely different and distinct. The delinquent employees should not be allowed to stall, delay or obstruct the departmental proceedings unless they can establish that simultaneous continuation of both the proceedings would cause great detriment to them in the criminal trial. Pendency of proceedings in a criminal court should not be allowed to be used a shield to get rid of departmental proceedings. The process of the court should not be allowed to be abused by the delinquent employee to get the departmental proceedings stayed on flimsy grounds which are not relevant for considering the desirability or advisability of staying the departmental proceedings. The departmental proceedings should not be stayed as a matter of course.

17. The instant case is not one of those cases where departmental proceedings can be stayed. There is no criminal trial pending against the appellants. Even police investigation could not proceed properly for one reason or the other. Two and half years are over. The departmental proceedings remain suspended all these years. The appellants are working as Assistant Professors in the Hospital despite indictment by the panel comprising five senior most doctors of the Government Medical College, Srinagar without any proceedings against them. No criminal trial is pending against them in any court. The departmental enquiry has been stayed by this Court by an interim order. The publication of report about the case in the newspapers has also been stopped by the learned Single Judge on the prayer of the appellants. The appellants have thus got more than what they could have expected. They have not only succeeded in avoiding departmental proceedings but also in stopping publication of any news or views in the newspapers about this case which undisputedly is of great public importance and concern. The real victim in this case is the justice delivery system and the public interest.

18. We are of the clear opinion that this is one of those cases where on the basis of the report of the five-member panel, departmental inquiry should have been initiated forthwith and completed as expeditiously as possible and if the finding of the five-member panel was found to be correct, the services of the doctors concerned should have been done away with. This, in our opinion, was also a fit case where the question of desirability of suspending the doctors indicted by the enquiry committee for medical negligence pending enquiry should have been seriously considered. Probably all that could not be done because of stay of the departmental proceedings by the interim order of this Court in this appeal. In our opinion, the learned Single Judge was right in holding that this is not a fit case for stay of departmental proceedings. On the other hand, this is one of those cases where departmental proceedings should be initiated and completed with utmost expedition, in any event within four months from the date of this judgment.

19. Before we conclude, we would like to deal with the objection of Mr. R.A. Jan, learned counsel for respondent No. 6, brother of the deceased Shakeela, to the direction of the learned Single Judge that no publicity should be given to this case in any newspaper. The learned counsel submitted that this direction was not only illegal but unconstitutional. According to Mr Jan, by such directions the court cannot take away the freedom of speech and expression of the citizens and of the press. He contended that if the appellants were in any way aggrieved by the publication of any news or views about this case, remedy was available to them under the law. But that apprehension cannot justify a blanket ban on publication of any news about the incident with which public is seriously concerned.

20. We have given our careful consideration to the above submission. Freedom of speech and expression including freedom of the Press is the most cherished fundamental right of a citizen under article 19 of the Constitution of India, which has to be very zealously guarded and protected. Freedom of speech and expression is one of the most important fundamental rights of a citizen under article 19 of the Constitution of India. This right cannot be taken away by the court by giving a direction to the press not to publish any news in a particular matter. Any restriction on the right of the press to disseminate information constitutes a restriction upon the freedom of the Press. Freedom of speech and expression is indispensable for the operation of a democratic system. The Press has a right to inform the public about the happenings in a particular institution or sphere of life. It has a right to express its views and comments in matters of public interest freely and frankly and to mobilise public opinion on a particular issue or for a particular cause. This freedom of the Press cannot be abridged or taken away on the ground that publication of certain news or views might cause embarrassment or suffering to any person. It is for the Press to act within the ambit of the law and to publish only such news or views which do not offend the rights of any person or violate any law. If the press exceeds the limits, it would do so at its own peril. It is not immune from action under the law for publishing something which it is not entitled to publish. Remedy is available under the law to the persons aggrieved by any publication. The Courts should not issue general directions to the press not to publish any news or views about a particular incident. Such a direction might offend the freedom of speech and expression guaranteed under article 19 of the Constitution of India.

21 In the premises, we set aside that part of the order of the learned Single Judge by which a direction has been given to the newspapers not to publish anything about the case. Rest of the order is affirmed. The appeal is disposed of accordingly with no order as to costs.