June 17, 2019 (Bombay HC: Retirement cannot be used as an immunity against disciplinary actions for misconduct during employment and more)

Bom HC: Retirement cannot be used as an immunity against disciplinary actions for misconduct during employment

The Bombay High Court (“Bom HC”), in the case of Padmini Nandakumar Nair (“Petitioner”) v. High Court of Bombay & Ors. (“Respondent”), passed a judgment holding that retirement of an employee does not preclude the appointing authority from initiating action against misconduct of such employee during service.

In the present case, the Petitioner, a District Judge under the Maharashtra State Judicial Service approached Bom HC for the permission to be relieved as the District Judge but with lien over that post in order to pursue her new appointment as the presiding officer of the National Highway Tribunal. Upon receiving no response from the Bom HC, the Petitioner requested for voluntary retirement.

Meanwhile, the Bom HC instituted disciplinary proceedings against the Petitioner under the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. Subsequently, the Petitioner’s request for voluntary retirement was accepted subject to continuation of proceedings against her.

Upon challenging the above condition, the Bom HC and later, the Supreme Court as well ruled against the Petitioner. The Petitioner further moved the Bom HC challenging the continuation of disciplinary proceedings itself.

The Petitioner submitted that the disciplinary proceedings have no legality as the employer-employee relationship was terminated through the acceptance of her voluntary retirement application. Withholding of the Petitioner’s pension under the Pension Rules, 1972 was also challenged.

The Court held that the Petitioner cannot contest the disciplinary proceedings after voluntarily accepting the notice of her voluntary retirement subject to the continuation of the proceedings. The Court also ruled that the rules governing disciplinary actions and pension payment are linked under the law since good conduct of the pensioner is an implied condition for the receipt of the pension. Therefore, an appointing authority will have the power to initiate action against misconduct of the employee even after retirement.

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The Court’s judgement prevents any employee from claiming retirement as an immunity from any actions of misconduct during the service. Therefore, any appointing authority can ensure that employees are held liable for their actions during employment irrespective of how and when their service ends. The judgement, however, restricts such a power on part of the employer to withdrawal or withholding of pension alone. This also prevents the employer from exercise of any arbitrary powers in the name of such disciplinary actions.

DSCDRC: “Informed Consent” from patient includes knowledge of consequences of surgery

In the case of Bhushan Raina v. Dr. S.K. Jain & Ors, the Delhi State Consumer Disputes Redressal Commission (“DSCDRC”)  has held that the mere presence of “informed consent” written on top of a medical form does not automatically make it “informed consent” and obtaining a patient’s signature on this form which consists of widely worded clauses amounts to obtaining their signature on dotted lines.

In the instant case, senior journalist Bhushan Raina visited Dr. S.K. Jain and Dr. Sudeep Jain in March 2008 as he was seeing black objects fly in his right vision. The doctors informed him that since cataract symptoms were apparent in his right eye, he should wait for 3-4 months before surgery. However, Dr. S.K. Jain then suggested going for surgery immediately. After undergoing the surgery, the patient suffered retinal detachment and lost vision in his right eye.

Dr. Sudeep Jain contended that it was difficult in general to examine the retina prior to removal of cataract, however the Commission rejected the argument stating that the outer layer of cataract could have been diluted by use of medicines, and moreover, the doctors had hurriedly ordered for surgery when they had previously stipulated a time period of 3-4 months for the same.

The doctor then relied on the consent form signed by the patient but the Commission stated that “informed consent” as per the ruling in Baidya Nath Chakraborty v. Chandi Bhattacharjee  means that the consequences of the surgery have been explained to the patient in layman’s terms, such that he is able to make the decision whether to opt for surgery or not. A form otherwise would contain 10 widely worded clauses, and signature on such printed forms does not amount to consent in the eyes of the law.

The Commission awarded a sum of INR 8 lakh, holding that there was negligence on part of the doctors for not referring the patient for a second opinion if they were unable to sufficiently examine his retina, before they scheduled his surgery. Since the patient lived in such miserable state of affairs for 8 years before his death, he was to receive INR 1 lakh for every year of distress he endured.

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In the instant case, the doctors did not have the advanced medical instruments to diagnose the patient sufficiently, but where they erred was the fact that did not refer patient for a second opinion in order to potentially prevent the risks of surgery.

Medical professionals have a high duty of care towards their patients and their well-being and safety must come before any monetary gains that could accrue to the doctors by conducting surgery. The ruling in this case goes a long way to ensure that medical professionals henceforth are very careful when it comes to diagnosing or treating their patients.

Karnataka to amend State Startup Policy according to the Central Startup Policy

The Karnataka Cabinet has decided to amend the Karnataka Startup Policy 2015-2020 to bring it in line with the national policy. The government aims to make changes to the turnover limit and duration limit for a business to be considered as a startup under the policy.

While the national policy prescribes that businesses working for period not exceeding 10 years with a turnover below 100 crore rupees qualify as startups, Karnataka startup policy prescribes for only 4 years duration with turnover less than 50 crore rupees.

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The Cabinet’s decision to amend the state’s startup policy in consonance with the national policy is seen as positive one as it seeks to increase the limits for businesses to claim benefits as startups within the policy. More number of startups will be able to contribute to government’s plans to encourage entrepreneurships, particularly aimed at rural development and social impact.

The policy also seeks to provide employment through creation of new jobs and for various ways for entrepreneurs to obtain funding for their projects.

 

 

Disclaimer: This post has been prepared for informational purposes only. The information/or observations contained in this post does not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal advice from a practicing attorney.

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