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Petitioner: DR. RAB NAWAZ KHAN VS Respondent: SECRETARY, MINISTRY OF HEALTH, ISLAMABAD
Court Name: Federal Service Tribunal Judge(s): Sir Abdul Rashid, Shah Abdur Rashid, A. O. Raziur Rahman Title: DR. RAB NAWAZ KHAN vs SECRETARY, MINISTRY OF HEALTH, ISLAMABAD Case No.: Appeal No, 103 (R) of 1979 Date of Judgment:1983-12-13 Reported As: 1984 PLC (C. S.) 560 Result: Appeal partly accepted
JUDGMENT
JUDGMENT ' JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-The appellant joined the N.-W.F.P. Health Department on 19th July, 1954 and was confirmed in senior scale w,e,f, 1st July, 1970. As a result of his selection by the Federal Public Service Commission, he was appointed as Associate Physician/Civil Surgeon, with effect from 4th February, 1975 and until further orders vide Government of Pakistan, Ministry of Health gazette notifications, dated 27th February, 1975 and 19th March, 1975. Vide Central Government Polyclinic Islamabad Office Order No, 107, dated 27th May, 1975 the appellant was transferred to sub-health centre No, 1, Islamabad in his capacity as Associate Physician/Civil Surgeon. The appellant protested.: against this transfer on the plea that he had been selected by the Federal Public Service Commission as Associate Physician/Civil Surgeon in the Polyclinic Islamabad and that transferring him out of the said institution amounted to changing his terms of service to his detriment. He was posted back to the Polyclinic. 2. Vide Ministry of Health Office Order, dated 6th June, 1975, the appellant was transferred from the pest of Associate Physician/Civil Surgeon (Grade-18) Central Government Polyclinic Islamabad and appointed as Medical Superintendent (Grade-I8) in the same Polyclinic. The appellant preferred an appeal on 8th June; 1975 against this posting as Medical Superintendent on the ground that it was a non-practising post, the like of which he had held for over ten years and that as Medical Superintendent he might be allowed, by name to surrender his non-prac-tising allowance and permitted to practice in his field of speciality as a heart specialist. He requested further in his said appeal that he be allowed to hold the charge of Associate Physician/Civil Surgeon in addition to that of the Medical Superintendent. There is no evidence that his request was acceded to in so far as private practice was concerned.
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3. The appellant took over as Medical Superintendent Polyclinic Islamabad on 12th June, 1975 and shortly thereafter, on 4th July, 1975 requested, the A.G.P.R. For a special audit due to suspected irregularities in accounts. The Ministry, on the other hand, deputed two of their own officials to conduct the required audit by way of a surprise raid. This was done in early February, 1976. As a consequence, the accountant and the cashier were suspended for irregularities. The appellant, too, was suspended on 19th February, 1976 (but reinstated vide Notification, dated 5th May, 1976). He was charge sheeted on 25th March, 1976 for : (i) certain irregularities/lapses in the maintenance of accounts. (ii) taking unauthorised advances from cash for his personal use by signing temporary receipts which had been recovered ; and (iii) threatening the cashier with dire consequences whenever he demanded refund of the money. 4. As a result of an enquiry, Ministry of Health gazette, dated 4th April, 1978 was issued whereby the appellant stood compulsorily retired on charge of misconduct. In addition, the President, as the competent authority, was also pleased to order "that the amount of Rs, 6,167.25 drawn unlawfully by him from the Government funds shall be recovered from the pension or gratuity due to him". 5. The appellant's review petition, dated 30th June, 1978 having been rejected on 19th July, 1979 he preferred his appeal before the Federal Service Tribunal against the impugned order of his compulsory retirement on 18th August, 1979. 6. The case was heard on 11th January, 1981 and the judgment announced on 14th January, 1981. The Division Bench of the Federal Service Tribunal ordered the re-instatement of the appellant, Dr. Rab Nawaz Khan, with consequential benefits. In addition, the Tribunal ordered the refund of private practice fees amounting to Rs, 6,000 which had been recovered from him. 7. The Government went in appeal against the order of the Federal Service Tribunal and was allowed special leave to appeal by the learned Supreme Court in Civil Appeal No, 147 of 1981. This appeal was heard on 10th October, 1982. The learned Supreme Court came to the conclusion that the precise question being raised before them had not been adverted to by the Service Tribunal and that on the basis of the material before them, whether the appellant Dr. Rab Nawaz Khan, was entitled to share of fees of services rendered by him other than medical attendance to the patients admitted to the Polyclinic, during the period of stay at the said Polyclinic and "whether his share of fees, if he was so entitled was in excess of the amount received by him from the cashier". As a result, the learned Supreme Court, vide their judgment, dated 10th October, 1982 set aside the order of the Service Tribunal, dated 14th January, 1981 and remanded the case to the Tribunal for reconsideration and fresh decision. 8. The case, on remand, was received by the Service Tribunal on 29th November, 1982 vide Supreme Court of Pakistan No, C. A. 147/81- S.C.J., dated 29th November, 1982. It was heard on 4th May, 1983 and is being disposed of by this order. 9. We heard the learned counsel from both sides at length as well as perused the relevant record. The Enquiry Officer has held the appellant "Not Guilty" of charges (i) and (iii). 10. Charge (ii) accuses the appellant of having taken unauthorised advances of various amounts, from time to time, for which he signed chits. The Enquiry Officer has established that the appellant is responsible for fifteen Chits against which he drew an amount of Rs, 6,167.25. The appellant, at the bar, admitted having drawn the said amount but he also claimed that his share of the private practice came to much more (nearly -Rs, 9,000) and that he had, actually, drawn much less. 11. To begin with, the most important issue before us is whether the appellant was, at all, entitled to private practice before he could claim his share of the amount accruing to him as such. The admitted position before us at the bar, is that the appellant while appointed as acting Medical Superintendent Polyclinic, was drawing non-practising allowance of Rs, 400 p. m. While, in his
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capacity as Associate Physician/Civil Surgeon, he was also doing private practice. The post of Medical Superintendent is non-practising post whereas that of the Associate Physician/ Civil Surgeon is a practising post. The appellant was obviously having the best of both the worlds. As an educated and responsible person, he ought to have realised that if he was drawing non-practising allowance then he could, under no stretch of imagination, also indulge in private practice. In his situation, all that he had to do was to obtain permission of the Ministry to do private practice in his capacity as the Associate Physician/Civil Surgeon and as soon as such a permission was received, then to stop drawing non-practising allowance as Medical Superintendent. Alternatively, if he felt very strongly about private practice, then the least he could have done was to stop drawing non- practising allowance before resorting to private practice. 12. The appellant is a Cardiologist. To one of our questions he stated, at the bar, that the four disciplines from which he was realising private fees from the non-entitled patients related to E.C.G. X-ray, Pathology and Physiotherapy. In other words, the appellant was realising fees from three departments which had nothing to do with his field of speciality viz. Cardiology. To elaborate further the appellant stated, at the bar, that quite often there were no cardiologist, pathologist and the physiotherapist. As such, he took over those departments and charged fees from the non- entitled patients and this he considered to be in order because this was the practice in the Polyclinic and that he had done nothing wrong. He also stated, at the bar, that the Medical Superintendents, in the Polyclinic, had always drawn the non-practising allowance as well as carried on private practice and he cited the names of various medical officers. All we would like to mention in this regard is, that if the past Medical Superintendents were drawing non-practising allowance and were also practising, either by holding a practising post and/or by virtue of taking over vacant departments, and that, too,. Without permission from the Ministry, then it is a very serious matter and we shall, under no circumstances, condone it whether or not this was a common practice. We would expect the Ministry to proceed against all medical officers who have been guilty of such gross misconduct in the manner stated before us. 13. We would also like to advert to the Fee Rules to analyse their import, if any. We have been shown Ministry of Health letter No, F. 25-4/64-Per, dated 26th March, 1964 which inter alia, lays down that Government Medical Officers employed in "practising" posts in Central Government Institutions "shall draw share of fees for professional attendance or services other than professional attendance as laid down in the Medical Officers Fee Rules, 1941 until further orders." Rules 3 and 4 of the Fee Rules. 1941 are reproduced : 3. (1) Fees for professional attendance shall be charged from private persons admitted to the paying wards of a hospital at such rates as may from time to time be fixed by the authorities of the hospital with the prior approval of the Central Government. (2) The fees so. Charged for medical attendance shall be credited to the Central Government in full and the fees charged for surgical operations shall be shared in the proportion of 3 to 2 between the Central Government and the medical officer rendering the service. ' Provided that in hospitals where fees for medical attendance were on the 28th June, 1939 shared between the medical officers concerned and the Central Government, or where the proportion of the fees for surgical operations received by the medical officer was on that date higher than 40 per cent., the medical officers employed in those hospitals on or before that date shall continue to receive a share of the fees according to the practice existing before that date. 4. (1) Medical Officers may, with the previous sanction general or special, of the Director-General, Indian Medical Service, render to the public, the Defence Department and any commercial department or undertaking of the Government of India any of the services specified in the Schedule to these Rules and charge therefor fees at the rates specified therein :
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Provided that a medical officer may, subject to such general or Special Orders as the Central Government may issue in this behalf, reduce the rates if in any special case, either because of the pecuniary circumstances of the person to whom the service is rendered or for some other reason of public interest, he considers it necessary so to do. (2) The fees so charged shall be shared in the proportion of 3. To 2 between the Central Government and the medical officer rendering the service or where the service is rendered in a laboratory the head of the laboratory, who may divide his share with his assistants in such manner as he considers equitable : Provided that the fees received for service as an examiner for a University or other examining body or as a lecturer may be retained in full by the medical officer rendering the service : ' Provided further that in laboratories where the fees so charged were immediately before the 12th July, 1940 taken in full, or shared with the Central Government in a different proportion, by the head of the laboratory the fees may continue to be so taken or shared by the medical officer who was the head of the laboratory on that date : ' Provided further that no portion of the fees realised from the Defence Department or any Commercial Department or undertaking of the Government of India shall be paid to the staff who were not entitled to receive it under orders in force immediately before the promulgation of these rules. (3) Nothing in this rule shall be deemed to prohibit medical officers from rendering to the public services other than professional attendance, not being services specified in the Schedule to these Rules and charging fees at the rates laid down by the Central Government, provided that not less than 60 per cent of the fees so charged shall be credited to Government : (a) Provided that the Central Government may at any time prohibit any specified Medical Officer or Officers from rendering to the public any specified service or services other than professional attendance. 14. The perusal of the above rules leaves us in no doubt that it is the rule 4 which is relevant for our purpose. The appellant had to obtain a previous sanction for the Ministry of Health for doing private practice as Associate Physician/Civil Surgeon, a practising post, he claims to be actually holding together with his acting appointment as the Medical Superintendent, a non-practising post. This would have been in consonance with rule 4 (1). The sharing of fee in the ratio of 60 : 40% between the Central Government and the appellant respectively, would be relevant only after the appellant had been allowed to do private practice. To our questioning the Departmental representative submitted, at the bar, that the appellant had not been allowed private practice by any general or special order. However, the said Departmental representative on further questions from us did admit that the post of Associate Physician/Civil Surgeon was a practising post. If the post of Associate Physician/Civil Surgeon was a practising post, which it admittedly was, then it would be quite unnecessary for the appellant to obtain any general or special permission from the Ministry of Health for such a permission would be inherent in the declaration by which a post has been listed as practising or non-practising. We have therefore, no doubt that the appellant bad a right to private practice in his capacity as the Associate Physician/Civil Surgeon. We shall, however, bold that the appellant bad no right without permission from the Ministry of Health to take over vacant departments like X-ray, Pathology and Physiotherapy for which all the work would, ordinarily, be done by the technical assistants. The ethics, whether they existed in writing or not, demanded that 40% of such fees was distributed among the technicians and the rest 60% deposited with the Government or if the appellant had rendered service in these fields. Himself then and only then some share from 40% could be charged while distributing the rest to the Technicians. We are sure, as a result of our questions to the appellant that he may have at best, carried out some work in the field of radiology but nothing in Pathology or Physiotherapy. The fees realised by the appellant in
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these, departments have, therefore been illegal because these have been realised without permission. We hold the appellant guilty of misconduct. We would in this connection like to quote from P. 561 of "Employees Misconduct" by Alfred Avins wherein it is said : "Where the temptation is succumbed to and the employee abuses his employment discretion to advance his own interest, the misconduct is aggravated." ' Before giving our conclusions, we would like to reproduce a relevant portion from Reading v. Attorney-General p. 566 of "Employees Misconduct" which has been contributed by Lord Denning and reads : In my judgment, it is a principle of law that, if a servant takes advantage of his service and violates his duty of honesty and good faith to make a profit for himself, in the sense that the assets of which he has control, the facilities which he enjoys, or the position which he occupies, are the real cause of his obtaining the money as distinct from merely affording the opportunity for getting it, that is to say, if they play the predominant part in his obtaining the money, then he is accountable for it to his master. It matters not that the master has not lost any profit nor suffered any damage, nor does it matter that the master could not have done the act himself. If the servant has unjustly enriched himself by virtue of his service without his master's sanction, the law says that he ought not to be allowed to keep the money, but it shall be taken from him and given to his master, because he got it solely by reason of the position which he occupied as a servant of his master." 15. In the appeal before us, the appellant continued drawing non-practising allowance in his capacity as the acting Medical Superintendent while at the same time and without surrendering his non-practising allowance, he continued doing private practice as the Associate Physician/ Civil Surgeon. Not only that. The appellant also took over occasional charge of vacant departments of Radiology, Pathology and Physiotherapy without permission from the Ministry of Health and realised private fees from the non-entitled patients for the services rendered in the said three fields. The fulcrum upon which the appellant rested his defence is that be had been following the practice of the other Medical Superintendents and if no action had been taken against them then why has he been singled out and since he has been victimised it would indicate that action against him is nothing but mala fide. We are, in no way, impressed by this line of arguments which we would describe as pedantic. If corrupt practices bad been going on in the Polyclinic (or are going on even now) we have no reason to condone them just because they were the order of the day for, by so doing, we shall be legalising corruption, the curse of our society. Arguments like this may befit the intellectual have-nots but, certainly, not the educated elite, the category to which the appellant belongs. 17. We have no doubt that the appellant is guilty of misconduct. We have, therefore, no cause in interfering in this case. We uphold the punishment awarded by the competent authority and dismiss this ap peal with costs fixed at Rs, 100. ' A.O. RAZIUR RAHMAN (MEMBER).- I am inclined to take a different view from that expressed by my learned colleague in his judgment. 2. The finding of the Enquiry Officer is that the appellant was guilty of the charge contained in item (ii) of the charge-sheet, which reads as follows :- "You (Dr. Rab Nawaz Khan) are alleged to have taken unauthorised advances of various amounts at different times from the cash for your personal use and some temporary receipts signed by you in this connection were recovered." 3. The defence put forward by the appellant, both in his reply to the charge-sheet and the enquiry proceedings, as well as in the memorandum of appeal and the arguments before us, is that these were not unauthorised advances but drawals of money payable to him on account of laboratory charges and pathological test fees, part of which was payable to him, when, as Medical Superintendent, he held charge also of the relevant departments. His stand was that these fees
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were payable to him to the extent of 40% of the amount realised from non-entitled patients and that the amounts payable to him were to be calculated and paid to him. Since the Cashier, according to him, was keeping his accounts also, he was drawing advances against his cash lying with the Cashier and drawal of these amounts from the Cashier, on chits issued by him or his P.A. Did not amount to unauthorised advances from the public funds and, therefore, not an offence punishable under the Government Servants (Efficiency and Discipline) Rules. 4. The Enquiry Officer held that : (a) the officer was not entitled to any share in the fees realised from non-entitled persons and (b) that he did not follow the prescribed procedure for obtaining his share, if any. 5. So far as the entitlement of the appellant to a share in the fees is concerned the Enquiry Officer has opined as follows :- (b) "To have been entitled to any share of Fees and Ward Charges it was essential that : (i) He should have had knowledge of such job which it is presumed that he had ; (ii) An order for appointment of those jobs should have been published by the Polyclinic after approval of the authorities which is not borne out by records of the Polyclinic. (iii) He should have actually performed that job and given opinion which too is not borne out by records of the Polyclinic." 6. From the above, it is seen that the Enquiry Officer has conceded that the appellant had knowledge of the job for which he was claiming share in the fees. Being a medical officer of long standing, who was also a heart specialist, he was rightly presumed to have had knowledge of the job for which he was claiming fees. On this point, the finding of the Enquiry Officer seems to be correct. However, in regard to two other points, is not quite easy to accept the views expressed by him. The basis for his finding, that an order should have been published by the Polyclinic, after approval by the competent authorities, allocating the charge of the relevant departments to the M. S., in order to enable him to claim his share in the fees, has not been indicated. Since it had been the practice in the Polyclinic for the M. S. To assume charge of those departments which did not have regular heads at a particular time, and neither the Directorate-General of Health nor the Government bad, at any time, objected to these arrangements, it must be presumed that neither in the opinion of the Directorate-General nor in that of the Government there was anything irregular or illegal in this. A practice which had been in existence since the inception of the Polyclinic, without any objection, either from the Directorate or the Government, would be presumed to have had their approval. As for the point that the particular job done, or opinion given by the officer, should have been on record, since there are no rules laid down as to the manner in which record of these has to be maintained, the possibility cannot be ruled out that the Medical Superintendents who held charge of the departments, in the absence of the permanent incumbents, gave their advice or opinion verbally and no written report of the same was required to be maintained. If it was an essential requirement, it should have been prescribed by Audit in which case the absence of such a record, in the case of the appellant, would have been conclusive proof that the job for which he was claiming share in the fees had not been actually performed by him and, therefore be was not entitled to any payment on that account. As for the rules on the subject, under rule 4(1) of the Medical Officers Fees Rules, 1941, Medical Officer may, with the previous sanction, general or special, of the Director-General, render to the public, the Defence Department, or any commercial department or undertaking of the Government any of the services specified in the Schedule. In the Schedule, the bacteriological work done at Government laboratories attached to hospitals is specified at serial 8, as one of the services. Under rule 4(2), the fees to be charged are to be shared in the proportion of 3 to 2 between the Central Government and the head of the laboratory. Under the Health Division Memo No, F. 25-4/64-Per, dated 26th March, 1964 read with Memorandum No, F. 26-1/62-MER, dated 4th June, 1963 the rate of charges as laid down for the Jinnah Central Hospital,
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Karachi, are to be observed in the Polyclinic. These rules and orders, read together, leave no scope for doubt that Medical Superintendents working as heads of the laboratories, were entitled to payment of shares in the laboratory fees. The only ground for objection to this was the drawing of the non-practising post allowance. 7. The appellant took the plea that some of his predecessors also, namely, M/s. Sarfraz Ahmad and Shaukat Malik, received their shares of practising fees, while bolding charge of one practising and one non-practising post. Similarly, two others, namely, Sirajul Haque and Shamsul Arfeen, drew their shares of fees from non-entitled patients, while holding regular charge of the non-practising post of Medical Superintendent. These precedents, by themselves, do not justify the drawal of non- practising Allowance, while charging shares in the fees, and it has to be held that an officer cannot draw Non-Practising Allowance while also holding a practising post and charging share in the professional fees and laboratory and other charges. 8. In this Connection, our attention was drawn by the learned counsel for the appellant to the fact that, when the appellant was re-posted…
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