BEFORE HON'BLE SHRI V.

VENKATRAMAN, EX- OFFICER ON SPECIAL DUTY (EE)

& INQUIRING AUTHORITY

In the matter of Departmental Enquiry against Dr. BK Mishra, Sr. Specialist, WCL,

Majri Area under Rule 29 of the Coal India Executive's Conduct Discipline and Appeal

Rules, 1978 in respect of Memorandum NO.WCL/PER/EE/2710 dt.19.9.2008 issued by

Chairman-cum-Managing Director WCL and Disciplinary Authority.

BRIEF WRITTEN NOTE OF ARGUMENTS IN DEFENCE.

The proceedings of the Departmental Enquiry, depositions of the witnesses of

prosecution as well as the defence and cross-examinations thereof by the opposite parties

and documents filed by the parties are already on record of the Hon'ble Inquiring Authority.

The undersigned has been charged by the disciplinary authority on two counts i.e.

i) I was in inebriated condition on 18.8.2008 while on emergency duty, hurled abuses and

secondly that I have misbehaved with another Doctor by asking him to get out.

ii) In the Departmental Enquiry the prosecution mainly put forward its case of my inebriated

condition and hurling of abuses for which the deposition of one Sri Sattan Yadav was

relied and no corroborative evidence was abused by the prosecution although the

daughter of Sri Sattan Yadav had deposed her statement on 19.8.2008 was a patient

admitted in the hospital about whose alleged serious illness was stated in the articles of

charge. The evidence of the patient, Ku.Sunita was not led by the prosecution and the only

evidence led by the management was of that Sri Sattan Yadav, who is a complainant in

the matter. The prosecution has alleged due to my alleged hurling of abuses and shouting

the patients in the ward had got up but the prosecution did not lead any evidence to this

effect. Thus, the deposition of Sri Sattan Yadav about whose daughters treatment in Majri

Area Hospital on 18.8.2008 and my alleged misbehaviour with the patient is a matter of

bone contention or the prosecution. In this case Sri Sattan Yadav being a complainant is a

vested interest witness and none of the other witnesses from the prosecution side have

corroborated the deposition of Sri Sattan Yadav about my alleged misbehaviour with the

patient and alleged hurling of abuses by me have been corroborated therefore the

deposition of Sri Sattan Yadav cannot be relied upon.

In his deposition Sri Sattan Yadav had stated that his daughter was suffering from

serious headache, fever and omitting since 12.8.2008 and was given treatment at Rajur

Colliery Dispensary and on not being cured she has been referred to Majri Area Hospital

on .17.8.2008 and he further deposed in his deposition that while, I was examining the

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patient on 18.8.2008 on being questioned by me to the patient about the reasons for her

severe pain in the abdomen and Sri Sattan Yadav showed me the treatment paper s of his

daughter given in Rajur Colliery Dispensary . A close perusal of the said treatment papers

filed by the prosecution in the enquiry as document no. ME-V shows that the patient visited

Rajur Colliery Dispensary on 12.8.2008 and was given treatment and the patient was

again given treatment on 13.8.2008 followed by the treatment of 14.8.2008, 15.8.2008 and

on 17.8.2008 the patient was referred to Majri Area Hospital on 17.8.2009 at 9:30 pm. In

this connection, it is submitted that 12.8.2008 fell on Tuesday whereas, 13.8.2008 fell on

Wednesday and Wednesday is normal weekly day of rest of Rajur Colliery Dispensary and

the patient is stated to have been given treatment by way of administrating injection on

15.8.2008 and the said 15.8.2008 was Independence Day a paid holiday (National

Holiday) and on paid holidays the Colliery Dispensaries remain closed. therefore the

alleged treatment given to the patient on 13.8.2008 (Wednesday) the weekly day of rest of

Rajur Colliery and 15.8.2008 a National Holiday and keeping the dispensary open on

13.8.2008 (Wednesday) and 15.8.2008 (Independence Day) cannot be relied upon. The

patient was referred to Majri Area Hospital on 17.8.2008 at about 9:30 pm and a close

perusal of the signatures of the Doctor attendant the patient on 12.8.2008, 13.8.2008,

14.8.2008. 15.8.2008 with the signature of the Doctor of 17.8.2008 while referring the

patient to Majri Area Hospital reveal that the signatures of the doctor of Rajur Colliery of

12.8.2008 to 15.8.2008 do not tally with that of the signatures of the doctor of Rajur

Colliery of 17.8.2008 when the patient was referred to the Majri Area Hospital. The

reasons for retaining the treatment papers of the patient by Sri Sattan Yadav in respect of

the period from 12.8.2008 to 17.8.2008 without depositing them in Majri Area Hospital at

the time of admission of the patient have not been satisfactorily explained by the said Sri

Sattan Yadav. Therefore, the allegation of shouting, hurling abuses as alleged against me

have not been genuinely proved by the prosecution through its corroborative evidence. It

was no where mentioned either in the article of charges or by the depositions of the

prosecution witnesses that at whom, I had abused, shouted and therefore the allegation of

shouting, hurling of abuses has not been proved in the enquiry by the prosecution through

corroborative evidence. The prosecution failed to adduce the evidence of the patient in the

departmental enquiry and the only vested interest Sri Sattan Yadav had deposed in the

enquiry that I have misbehaved with his daughter while examining her and he felt hurt and
showed me the treatment papers of his daughter given in Rajur Colliery Dispensary and

the other side the prosecution didn’t adduce the evidence of the patient Ku. Sunita Yadav.

In the departmental enquiry the management produced the treatment papers of Rajur

Colliery dispensary in which the age of the patient was initially written as 16, which was

struck off and written as 17 but no proof about the age of the patient was produced by the

prosecution in the enquiry. May be the reason that the question of giving treatment to the

ward of an employee after attaining age of 18 years could arise and the patient would have

been become disentitled to receive free treatment in WCL Hospitals / Dispensaries. The

prosecution witnesses Dr. Bohidar as well as Dr.Tikas have neither stated that I was in

inebriated condition nor any medical test was conducted by them on me to prove the

allegation. Therefore the allegation that I was in inebriated condition was also not proved in

the departmental enquiry.

As regard to article to allegations that I have misbehaved with Dr.Tikas and asked

him to get out which was not admitted by the said witnessed Dr.Tikas while deposing in the

departmental enquiry and during the course of cross-examination of him by the defence.

The management witness Dr. Bohidar had also no were stated that either he was present

when I stated to have misbehaved with Dr. Tikas nor Dr.Bohidar had stated that Dr.Tikas

complained to him about my alleged misbehaviour with him and I had asked Dr. Tikas to

get out. A close perusal of the treatment papers of Majri Area Hospital indicate that I had

given treatment to the patient while on emergency duty on 18.8.2008 but neither

Dr.Bohidar nor Dr. Tikas have given any treatment to the patient nor their prescriptions of

line of treatment appear in the case sheet of the patient of Majri Area Hospital. Had I not

been given treatment to the patient and Dr. Bohidar as well as Dr.Tikas given treatment to

the patient on 18.8.2008 by prescribing medicines and their observations about the

condition of the patient would have appeared in the case sheet of the patient of Majri Area

Hospital on 18.8.2008. Dr.Tikas had examined the patient only on the next day

i.e.19.8.2008 and advised to refer the case to Orange City Hospital. It may kindly be

perused that while deposing in the departmental enquiry Dr. SN Bohidar, Dy.CMO I/c Majri

Area Hospital had submitted the copy of the complaint given by him to the CGM, Majri

Area on 19.8.2008 which was taken on record in the enquiry as document on ME-I in

which he stated that "I examined the patient personally". This submission of Dr.Bohidar

does not corroborate with the case sheet of treatment of the patient in Majri Area Hospital

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from 17.8.2008 to 19.8.2008 and had Dr. Bohidar being the Dy.CMO, I/c of Majri ARea

Hospital he should have recorded his findings in the case sheet of the patient of Majri

ARea Hospital which was not done by him and during the course of cross-examination

also Dr.Bohidar admitted that in fact he didn’t examine the patient personally on 18.8.2008

immediately after receiving the report by him about existence of tense situation in the Area

Hospital. Thus, there is inconsistency in the deposition of Dr.Bohidar, Dy.CMO, I/c Majri

Area Hospital. The defence witnesses have corroborated my submission that while

examining the patient on 18.8.2008 when the father of the patient was also standing

nearby the bed of the patient and Sister of the ward on duty was assisting me I had

enquired from the patient about the regular Menstrual Cycle of her which is a normal

routine medical question put on female patient by any Doctor but the father of the patient

took serious objection about it and started heated arguments with me and expressed his

displeasure about asking from the patient by me about her Menstrual Cycle. Enquiring

from a female patient by any doctor when a patient complain about abdominal pain about

menstrual cycle but Sri Sattan Yadav being the father of the patient got hurt and started

arguing with me in a indecent manner and left the place by abusing me and meted out

threats against me by the Sattan Yadav have been corroborated consistently by the

defence witnesses namely Mrs. Dhole and Mrs.Lydia David. Thus, the prosecution failed to

bring home the charge of my hurling abuses altercation with the patient as well as her

attendant father Sri Satan Yadav, as Sri Sattan Yadav either in his deposition or on being

examined by the presenting officer no where had stated that I entered in altercation with

him as well as the patient.

As regards the article -2 of charge about my altercation with the patient as well as

her attendant father and my misbehaviour with Dr.Tikas while Dr.Tikas was attending the

patient and asking him to get out, it is stated that neither from the records nor from the

statement from the Dr.Tikas during the course of examination by him the presenting officer

or during the course of cross-examination of Dr.Tikas admitted that he had not attended

the patient personally nor recorded the finding on examination and any line of treatment

prescribed by him were not established and Sri Tikas vehemently denied in his deposition

during the enquiry that I misbehaved with him and asked him to get out . Rather Dr.Tikas

admitted that he was informed by me that I have already given suitable treatment to the

patient and he satisfied with the treatment given by me to the patient. The defence witness
Sister Vijaya Dhole has stated in the departmental enquiry that while I was attending to an

emergency road accident patient in the dressing room and she was assisting me when she

received a message about the complaint of abdominal pain and omitting by the patient Ku.

Sunita Yadav and I advised her to give injection "RANITIDINE" and Injection "EMESET"

which were given by the sister to the patient and this statement of Sister Vijaya Dhole

squarely proved that inspite of my being engaged in attending to the road accident

emergency patient I have attended to the complaint of the patient Ku.Sunita Yadav and

gave her suitable treatment.

Sri DN Choubey who is one of the prosecution witnesses had stated in his

deposition that I had misbehaved with the patient on 18.8.2008 while examining her and

this statement of Sri DN Choubey is a hearsay statement because of the fact Sri DN

Choubey was not present when I examined the patient except the attendant father of the

patient. It is consistently stated by the defence witnesses about hurling filthy abuses

against me by Sri DN Choubey and Dr.Bohidar, Dy.CMO I/c Area Hospital stated that he

took DN Choubey to his home and pacified him and consoled the attendant father of the

patient which indicates that DN Choubey had disorderly behaved with me and created

tense situation in the hospital without enquiring from me rather relying upon the misleading

information given to him by Sri Sattan Yadav. Dr.SN Bohidar, in his deposition had stated

that he had assured DN Choubey that suitable action will be taken against me (Charged

Officer) without verifying from me about the matter which indicates that Dr.Bohidar,

Dy.CMO I/c Majri Area Hospital had already made up his mind to implicate me on false

and fabricated charges and he used the attendant father of the patient Sri Sattan Yadav

and Sri DN Choubey as tools.

The prosecution produced the treatment papers in respect of the patient Ku.Sunita

Yadav who was referred to Orange City Hospital, Nagpur on 19.8.2008 by Majri Area

Hospital and the treatment papers indicate that the patient was suffering from "DEVIATED

NASAN SEPTUM" and "CHRONIC SUPPURATIVE OTITIS MEDIA" and the said

diagnosis does not tally with the diagnosis indicated by Majri Area Hospital while referring

the patient to Orange City Hospital, Nagpur. A close perusal of the treatment papers of the

patient given to her in Orange City Hospital, Nagpur it is no were indicated that the patient

was having any abdominal problem inspite of various medical tests conducted in the

Orange City Hospital, Nagpur and the patient was rather diagnosed to have been suffering

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from the problems of Nose and Ear. Thus, the deposition of the prosecution witnesses

about severe abdominal pain complained by the patient as well as her attendant father

proved to be false / fabricated with ill motives.

I once again submit that the document no.ME-V about treatment given to the patient

in Rajur Colliery Dispensary on 13.8.2008 (Wednesday) - normal weekly day of rest of

Rajur Colliery ) and on 15.8.2008 (National Independence Day which is a paid holiday for

all Mines and Establishment being a National Holiday and the signature of the person who

appears to be other than Dr.Sharma of Rajur Colliery appear to be a fabricated document

and Dr.Sharma of Rajur Colliery was not produced as a prosecution witness to ratify the

treatment given by him to the patient during the period from 12.8.2008 to 17.8.2008.

As regards the arguments put forward by the presenting officer in his brief written

note of arguments in support of the charges I have to reply para-wise as under :

1. As to Para No.1, it is a matter of record.

2. As to Para No.2, it is a matter of record.

3. As regards Para NO.3 that Sister Vijaya Dhole in her deposition had stated that the

patient Ku.Sunita Yadav was complaining about pain in abdomen and I had advised

her to give Injection since I was attending to an emergency road accident patients,

the submission that the Nurse on duty had complaint to me about deteriorating

condition of patient at about 11:00 pm of 18.8.2008 was not proved by the

prosecution.

4. The contents of this para are admitted to be extent that while I was attending to an

emergency road accident patient in the dressing room on 18.8.2008 Sister Dhole

informed me about the complaint of the patient of abdominal pain and I advised the

Nurse verbally to give injection as stated above.

5. This submission is denied on the ground that the allegation is not corroborative

rather a mere fabricated statement of the attendant father of the patient which could

not be genuinely proved by the prosecution during enquiry. Therefore there is no

force behind this submission.

6. This submission has not been proved by the prosecution with consistent evidences

of the prosecution.

7. This submission has not been proved and Dr.Tikas in his deposition in the enquiry

had specifically denied that I misbehaved with him and asked him to get out from
 the hospital. Therefore there is no force behind this submission.

8. This submission has not been proved by the prosecution through records that

Dr.Bohidar, Dy.CMO I/c examined the patient personally and recorded his

observations in the case sheet of the patient. Thus, this submission does not

sustain.

9. This submission of prosecution has not been proved by adducing evidence of any of

the patients admitted in the ward at the relevant time nor by any of the hospital staff

on duty at relevant time. Therefore this submission also suffers from any support.

The charges leveled against me under rule 4.1(iii), 4.1(iv) red with rule 5.5, 5.12 and

5.20 of CIL Executives Conduct Discipline and Appeal Rule as reproduced by the

prosecution do not stand before the test of proof. As regards the depositions of the

prosecution witnesses as well as defence witnesses their examination by the respective

parties and cross-examination thereof by opposite parties the same has already on the

record of the proceedings of the enquiry which need not be repeated again as has been

done by the presenting officer in his brief note of argument.

The submission of the prosecution that the patient was referred to Orange City

Hospital, Nagpur for treatment on 20.8.2008 is misleading as evident from the Discharge

Card of the patient of Orange City Hospital wherein it has been mentioned that the patient

was admitted on 19.8.2008 on being referred from Majri Area Hospital and discharged on

23.8.2008 after the brief stay of the patient for a period of 4 days and the contention of the

presenting officer that the patient was referred to Orange City Hospital in view of her

serious ailment was not true.

As regards to document ME-I dt.19.9.2008, the contents of the same have been

proved to be incorrect as admitted by Dr.Bohidar during the course of his cross-

examination but from this document it proves that he assured Sri Choubey about

departmental action against me. Thus, the complaint of Dr.Bohidar is a preplanned with

ulterior motives and the testimony of Dr.Bohidar is inconsistent and misleading. As regards

the document ME-II the witness had vehemently stated during his examination by

presenting officer as well as cross examination by defence that the charged officer neither

misbehaved with him nor asked him to get out from the hospital. Rather he had stated that

he was satisfied with the treatment given by the charged officer to the patient as such

neither he examined the patient nor prescribed any medicines at the relevant time.

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 As regards the evidence of Sri DN Choubey, I have to state that he is a person with

the proved disintegrity and while he was in service, he was charge sheeted and imposed

punishment by the management of WCL after proved misconduct and since he is a Area

Representative of a trade union of Majri Area management had imposed upon him with a

punishment of stoppage of increment although the charges proved against him warrant

dismissal from service looking into the seriousness of the charges leveled against him by

way of indulging into the acts of fraud, dishonesty with the management of WCL.I could not

earlier get the document of fraudulent acts of the said witness of Sri DN Choubey during

the course of enquiry but subsequently. I could get the copy of the charge sheet

no.WCL/MA/SAM/MUG/PER/03/3486 dt.1.3.2003 issued to Sri DN Choubey, SPS Man

New Majri UG No.3 by the SAM, New Majri Sub ARea wherein it was alleged that Sri

Choubey had defrauded the management of WCL to the extent of Rs.40,000/- by

fraudulently drawing TA Bills and after proved misconduct of the above acts he was

imposed with the punishment stoppage of increment and recovery of the fraudulently

drawn amount of Rs.40,000/- from WCL.

The Hon'ble Inquiring Authority is requested to direct the presenting officer to

submit the copy of the charge sheet issued to Sri DN Choubey and the copy of the order of

punishment of stoppage of increment imposed upon Sri Choubey by the management of

WCL Majri UG Sub Area which will prove that Sri Choubey is a person with immoral

conduct and involved in the acts of fraud, dishonesty and misappropriation of the funds of

WCL and deposition of such person with a character of disrepute cannot be relied upon. I

am enclosing a copy of the above referred charge sheet dt.1.3.2003 issued to Sri Choubey

by the SAM, New Majri UG Sub Area while Sri Choubey was in employment of WCL and

the same may kindly be taken on record by the Hon'ble I Authority as additional document

of the defence.

As regards the depositions of the defence witnesses namely Sister Viajaya Dhole

and Sister Lydia David their depositions are consistent corroborative and undisputed.

AS regards the contention of the presenting officer that the submission of the

defence witnesses that Sri DN Choubey lifted stool to assault me which was not stated by

me in my reply to the charge sheet, it is submitted when Sri Choubey entered the hospital

in a aggressive mood trying to enter into an altercation with me intentionally and I had

avoided to meet with him and I was going to my chamber when he might have lifted the
stool to assault me from my behind which could not be seen by me, whereas, the attempt

of Sri Choubey was noticed by the sisters and they prevented him from committing the act

of assaulting me with stool from my behind and in the normal course it is not possible for

anybody to notice the act of any person behind him except this, argument the prosecution

has not disputed with the depositions of the defence witnesses. Thus, the deposition of the

defence witnesses stand before the test and proved to be consistent and corroborative.

The prosecution availed the benefit of re-examination of management witness no.1

Dr.SN Bohidar and avoided intentionally to produce the management witness no.3 DN

Choubey for his re-examination by defence which indicates that the prosecution didn’t

want to get Sri DN Choubey (MW-3) re-cross examine by defence and thus the defence

was denied natural justice in the departmental enquiry to re-cross examine the

management witness no.3 Sri DN Choubey while the prosecution enjoyed the benefit of

reexamination of Dr.SN Bohidar(MW-1)

In conclusion, it is submitted that the charges as contained in the articles of charges

I & II as well as the contents of Annexure -II, III & IV could not be proved by the

prosecution as such the undersigned charged officer deserve to be Honorably acquitted

from the charges levelled against me.

In the event, the presenting officer files a reply against my this note of arguments

before the Inquiring Authority, the undersigned may kindly be supplied a copy thereof and

be given an opportunity by the Inquiring Authority to file my rejoinder in the interest of

extending principles of natural justice and affording me reasonable opportunity in the

interest of justice.

Date :

Place :

(Dr. B.K. MISHRA)

Sr. Surgeon, WCL, Majri Area /
(Charged Officer)