In the Court of State Commissioner for
Persons with Disabilities
National
Capital Territory of Delhi
25-
D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2
Phone-011-23216002-04,
Telefax: 011-23216005,
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act,
2016]
1. Case
No. 546/1023/2018/10/ 3786-3790 Dated:
26.07.2019
In
the matter of:
Dr. Nitesh Tripathi,
H.No.
8, B-Block,
Swami
Vivekanand Marg,
Sant
Nagar, Burari,
Delhi-110084. …….Complainant
Versus
The Commissioner,
North
Delhi Municipal Corporation,
4th
Floor, Dr. S.P.M. Civic Centre,
J.L.N.
Marg, New Delhi-110002. ……...…Respondent
No. 1
Dr. Ajay Kumar
Hudson
Lane Maternity Hospital
Kingsway
Camp, Delhi 110009 ……...…Respondent No. 2
2. Case No. 582/1111/2018/11 Dated:
In
the matter of:
Dr. Nitesh Tripathi,
H.No.
8, B-Block,
Swami
Vivekanand Marg,
Sant
Nagar, Burari,
Delhi-110084. …….Complainant
Versus
The Commissioner,
North
Delhi Municipal Corporation,
4th
Floor, Dr. S.P.M. Civic Centre,
J.L.N.
Marg, New Delhi-110002. ……...…Respondent
No. 1
Date of Hearing: 27.06.2019
Present: Dr.
Ajay Kumar, RMS alongwith Dr. K. Sarin, RMS and Sh. Raj Kumar, RMS for
respondent no. 2.
Order
582/1111/2018/11—The
above named complainant, a person with 65% locomotor disability vide his email
dated 06.11.2018 inter-alia submitted as under:
i)
That he is an easy target of
Sr. Officers of Health Department or harassment and pressurise him not to carry
on with his cases in the Court of State Commissioner as he has been raising the
issues of installation of AC at his work place, patient’s safety as the
medicines were being stored at above permissible temperature. Death of 20 children due to negligence of
North DMC, huge backlog in recruitment of medical doctors under RTI Act, demand
for accessible work place and lift as per DoPT instructions and the decisions
to make Delhi Model Accessible City under Accessible India Campaign.
ii)
Dr. Kamal Sarin had no
mala-fide intention but his seniors were using him inappropriate way to harass
him. Consequently, he misunderstood and
lodged complaint against him at PGMS of Delhi Govt. which he later on withdrew
and requested that he did not want any action and Dr. Naresh Kumar, CAMO and
Additional DHA started harassing him.
iii)
CAMO issued memos to him to
create a condition of fear. That Dr.
Naresh Kumar, CAMO and his Addl. DHA (M&TB) should be kept away from his
harassment otherwise they should be held guilty of any kind of injury or
unpleasant harm to either him or his belongings.
2. He
requested that the respondents should be made aware and sensitised towards the
implementation of RPwD Act.
3. The
complaint was taken up with the Secretary, Health & Family Welfare
Department vide notice dated 26.11.2018 who forwarded the complaint to
Commissioner, North DMC vide letter dated 18.12.2018. Subsequently a hearing was held on 01.02.2019
and Dr. Yogesh Kataria, Nodal Officer for Respondent no. 1 submitted that the
matter pertains to North DMC which is not under Health & Family Welfare
Department and therefore Secretary, Health & Family Welfare was removed
from the array of respondents.
4. Sh.
Prashant Aggarwal, GDMO and Sh. S.C. Gupta, Sr. Superintendent, CAMO produced
the relevant files and stated that explanation of Dr. Nitesh Tripathi and
others was sought based on an inspection report of CAMO office and there has
been no harassment of the complainant in any manner. The inspection was a routine matter
applicable to all. The Inquiry Committee
in connection with the complaint of Dr. Tripathi which he later withdrew, had
already been constituted before Dr. Tripathi submitted his request for
withdrawal of his complaint. The Inquiry
Committee has recommended that no further action was required in view of the
withdrawal of complaint by Dr. Tripathi.
5. Dr.
Naresh Kumar, CAMO, CLZ vide his written submission dated 01.02.2019 inter-alia submitted that the complaint
is not maintainable as the complainant has adopted tactics to harass
respondents so that they can overlook the irregularities and bunking by the
complainant during his duty hours and disciplinary action is not started
against him. It has further been stated
that he being the responsible officer, is supposed to check the presence and
efficiency of various units under his jurisdiction from time to time. The Attendance Register is the only and key
record of the unit. It has been pointed
out that the complainant made allegations of harassment against RMS in the PGMS
on 13.07.2018 and withdrew his complaint on the same day after giving self
certification to the RMS. The surprise
check was done on the 12.09.2018. The
memo dated 12.09.2018 was given to the entire staff for absence at the time of
inspection which is necessary in public interest.
6. The
respondent also questioned the veracity of the explanation given by the
complainant that at the time of inspection he had gone to the toilet outside
the Hospital when the facilities are available within the Hospital. It has been alleged that the respondent has
also submitted that the complainant is a habitual late comer and remains absent
from duty without prior intimation. The
complainant should clarify what kind of safety he needs. It has been alleged that the complainant
actually wants to bypass rules and regulations in the shadow of the Rights of
Persons with Disabilities Act, 2016 which amounts to its misuse. Persons with disabilities Act does not
provide for exempting employees with disabilities from doing their job as per
norms or they can harass their seniors and restrain them from supervising their
work. Dr. Naresh Kumar has requested
that rather he should be saved from threats and harassment by complainant by
lodging such complainants.
7. RMS/SSVPC
vide action taken report dated 13.02.2019 informed that salary of the
complainant from July 2018 to September 2018 had been credited in the month of
October 2018 itself and his contractual appointment was renewed vide order
dated 19.09.2018.
8. The
complainant reiterated his written submissions and alleged that Dr. Naresh
Kumar is guilty of his harassment.
9. Thereafter, the case was tagged with another
complaint no. 546/1023/2018/10 filed by the complainant against the RMS Dr.
Ajay Kumar vide his email dated 04.10.2018, 05.10.2018, 15.10.2018, 16.11.2018
and 26.11.2018 all of which pertain to
the allegations of harassment, humiliation unavailability of basic amenities
like drinking water etc. Both cases were scheduled for hearing on 21.01.2019.
10. The respondents’ stand had been that the
complainant was absent from duty from 04.02.2015 to 11.02.2015 without prior
intimation following which the then DHA, North DMC , Dr. D.K. Seth ordered for
deducting his salary for the period of absence.
Dr. K. Sarin, RMS, Dr Sahib Singh Verma Polyclinic, Jharoda, Burari,
Delhi submitted that he joined as RMS of the said polyclinic in 2016 and the
incident in question pertains to 2015 when Dr. Ajay Kumar was the RMS. He has already intimated the position
relating to this case to the Head Quarter.
He also produced copies of the Attendance Register for February, 2015,
letter dated 05.02.2015 of Dr. Ajay Kumar to Additional DHA, (M&TB) and
letter dated 01.04.2015 of the office of RMS addressed to Dr. Ajay Kumar which
is regarding the pay bill in respect of Dr. Nitesh Tripathi, GDMO II for the
month of February, 2015.
11. It is observed from the copy of the Attendance Register for the
month of February, 2015 that Dr. Nitesh Tripathi has been marked ‘L’ (on leave)
from 04.02.2015 to 11.02.2015. The
letter dated 05.02.2015 of Dr. Ajay Kumar is regarding the absence of the complainant
on 02.02.2015 without intimation and further requesting for appropriate
action. The note-sheet dated 15.04.2015
of Dr. Vinita, the then RMS to Dr. D.K. Seth, DHA/ North MCD is that Dr.
Tripathi was absent from 04.02.2015 to 11.02.2015 without prior intimation or
approval from the competent authority and hence action be taken against him as
per Rules concerning contractual doctors.
DHA decided that the salary may be deducted as per Rules and the absence
without information cannot be adjusted against leave.
12. The above facts were read out to the complainant who was heard
on telephone during the hearing. He submitted that Dr. Ajay Kumar who has since
been transferred to Hudson Lane, Polyclinic, Delhi North DMC is the person who
harassed him and therefore he should be made one of the respondents. He also stated that he had emailed his
request for leave to the then Additional Commissioner, Health Sh. Pankaj
Singh. He further submitted that Dr.
Ajay Kumar regularized the absence of Dr. Deepali Garg, who was marked absent
in red ink in the Attendance Register for the same period and thus he was
treated differently and discriminated. In
the attendance Register for February, 2015, Dr. Deepali is shown to have
resigned and no marking of leave or absence or otherwise has been mentioned
against her name. The complainant
submitted that he would produce the supporting documents regarding harassment
by Dr. Ajay Kumar.
13. Dr. Ajay Kumar was impleaded as respondent no. 3 and was
directed to submit his version of the case relating to allegation of harassment
and discrimination by 08.02.2019.
14. Dr. Ajay Kumar vide his reply dated
08.02.2019 submitted that Dr. Nitesh Tripathi was absent from 04.02.2015 to
11.02.2015 from his duty without any prior intimation. He informed the higher authorities and did
his duty in his official capacity in order to ensure smooth functioning of the
polyclinic. As regards, the details
about Dr. Deepali Garg’s leave, the same can be obtained from RMS office as he
has been transferred to Narela. As
regards the allegation of Dr. Nitesh Tripathi about harassment, he submitted
that the same is totally baseless and false.
15. RMS/SSVPC vide his letter dated 13.02.2019
submitted the action taken report as per which Dr. Nitesh Kumar Tripathi has
been provided a room on ground floor which has a ramp. His wash basin and toilet are also disabled
friendly. All facilities required are
provided to him. On 27.07.2018, his
leave was marked at 10.00 am as he was not on duty without information. He was supposed to report at 8.00 am. As regards his representation regarding installation
of biometric machine, the same is under the preview of addl. DHA (Med&
TB). All his grievances are being
addressed regularly.
16. In his rejoinder dated 21.01.2019, the
complainant objected to the delay in submission of ATR by the respondent. He also pointed out that Dr. Ajay Kumar had
marked Dr. Deepali Garg as absent with red ink and alleged that after an
unlawful deal, her salary was released without deduction. But his leave application which he gave to
Dr. Ajay Kumar, was torn by him and prohibited him from entering his OPD room
no. 5 and informed the then Additional Commissioner, Health and Finance, North
DMC, Sh. Pankaj Kumar Singh on his mobile which was made available to him
during the hearing taken by the then Commissioner for Persons with Disabilities
Sh. K.S. Mehra. But he did not get any
reply/relief. He reiterated that he was
harassed by Dr. Ajay Kumar on the ground of disability and wondered why Dr.
Ajay Kumar had not been made the main respondent. The complainant made his submission vide
email dated 13.02.2019 also.
17. On 15.02.2019, while the complainant was
present, Dr. Ajay Kumar stated on telephone that he was under the impression
that as he had submitted his reply on 08.02.2019 as per direction vide RoP
dated 24.01.2019 he was not required to appear in the hearing.
18. The attachment referred to in his email
dated 16.11.2018 was neither available in the case file nor the complainant
could retrieve it during the hearing.
19. The hearing scheduled on 03.04.2019 was re-scheduled
on 26.04.2019 as the complainant informed that he had to go for some medical treatment.
20. In reply to the RoP dated 18.02.2019, Dr.
Rajni Kukreja, Additional DHA (M&TB) North DMC vide letter dated 12.04.2019
also submitted that Dr. Nitesh Tripathi was absent from duty from 04.02.2015 to
11.02.2015 without prior intimation and therefore the then DHA directed to
deduct his salary as per rules. The said
letter was sent to the complainant for comment, if any.
21. The complainant reiterated his earlier
submissions and also alleged that the official record was not being maintained
in the Polyclinic, Burari because of the posting of an officer on probation
without any administrative experience to handle administration of the
hospital. He requested that an
independent probe by an inquiry committee should be conducted in which no
medical professionals who were party to his case should be part of such
committee. The inquiry committee should
consist of Secretary, Health & Family Welfare Department, Secretary, Social
Welfare and eminent activist from the disability sector. He reiterated his allegation of harassment by
Dr. Ajay Kumar.
22. On the next date of hearing on 01.05.2019,
respondent no. 1 was advised to direct the RMS, Dr. SSVPC, Burari to submit
copy of leave application in respect of complainant and other functionaries
including Dr. Deepali Garg during January and February 2015. The complainant was also advised to submit
the proof of having submitted the leave application or taken permission for
absence from 04.02.2015 to 11.02.2015.
The parties were directed to be present on the next date of hearing
failing which the complaint would be disposed of based on available record. The matter was posted for hearing on 06.06.2019.
On 06.06.2019, Sh. Kamal Sarin, RMS,
Dr.Sahib Singh Verma Polyclinic, Burari appeared and produced the original
attendance register for the month of January & February, 2015 and submitted
that Dr. Deepali Garg was working for polyclinic on diverted capacity for two
days in a week and was drawing her salary from Kasturba Hospital. She had resigned from North DMC in February,
2015. As regards her absence on 03rd,
7th and 12th January, 2015, Ms. Deepali Garg was on
earned leave. As per the practice being
followed, the employees on diverted capacity submit their earned leave
application in the department from where they draw their salary. In the attendance register, the concerned
incharge marked her absence. Subsequently,
she took earned leave and was marked so in the attendance register. As per practice, a copy of the attendance
register is sent to the DDO of the paying office.
23. On the other hand, Dr. Nitesh Tripathi was
absent without intimation for 8 days from 04.02.2015 to 11.02.2015 and the then
RMS, Dr. Vinita Arora put up to the DHA for action as per rules on 15.04.2015. The then DHA, Dr. D.K. Seth observed that
absence without information cannot be adjusted against leave and salary may be
deducted as per rules vide his noting dated 16.04.2015. Thus, the action taken in respect of Dr.
Nitesh Tripathi was according to the rules and there was no harassment
whatsoever. Dr. Sarin also submitted
that he cannot ever even think of discriminating against Dr. Tripathi.
24. The complainant was heard on telephone as
he had not submitted a copy of the leave application from 04.02.2015 to
11.02.2015 as directed vide RoP dated 01.05.2019. After the hearing, the complainant emailed a
copy of his application dated 02.02.2015 addressed to RMS, Dr. SSVPC for leave
from 04.02.2015 to 11.02.2015 with diary no. rms/ssvpc/2015/231/3/2/2015 and requested
for one more opportunity for hearing.
25. The respondents were directed to intimate
action taken on the application dated 02.02.2015 of Dr. Nitesh Tripathi and if
he had submitted the leave application, why did the then RMS stated in her note
that the complainant was absent without prior intimation for that period. The complainant was given the last
opportunity to be present in person on the next date of hearing on 27.06.2019
and the parties were informed that no further adjournment would be allowed.
26. On 27.06.2019, Dr. Kamal Sarin, RMS and Dr.
Ajay Kumar appeared. Dr. Ajay Kumar
reiterated that Dr. Nitesh Tripath was absent from duty from 04.02.2015 to
11.02.2015 without any prior verbal or written intimation. The OPD strength used to be 500 to 600 per
day. It was very difficult to manage
without a medical officer. Therefore, he
just informed the higher authorities for smooth functioning of the polyclinic. The copy of leave application dated 02.02.2015
which has been produced by Dr. Tripathi after 4 years was not received by him
and it does not contain his signature.
He just did his duty to ensure smooth functioning of public
services. He also questioned if the
complainant had submitted an application for leave why did he not submit the
same earlier to the higher authorities when his salary was deducted during the
tenure of Dr. Vinita Arora. Apparently,
Dr. Tripathi is making false allegations against him and therefore there should
be a proper inquiry by some higher authorities in the matter. He also submitted that he is the only Pediatrician
in the Polyclinic where he is posted and a large number of children and new born
babies numbering 250 are suffering because of the fact that he has to attend
the hearings of complaints which are false. Dr. Kamal Sarin submitted a leave application stated
to have been submitted by Dr. Tripathi had not been diarized. However there is an entry in the “Patra Preshan Register” (dispatch
register) on 03.03.2015 at serial no. 231 in the name of Dr. Nitesh Tripathi
which mentions ‘letter regarding not attending duties in absence of Dr. Puneet’. Below that entry, ‘leave application’ in a
different handwriting and ink has been written.
27. From the written submissions and the
interaction during the hearing with the parties, it is observed that there are
no supporting documents as evidence for discrimination. From the record submitted by the parties, it
is observed that the complainant has been marked absent in the forenoon and on
leave in the afternoon of February 2015.
He has marked his presence on 03.02.2015 and from 04.02.2015 to
11.02.2015, he is marked ‘L’ for which copy of the leave application submitted
by the complainant on 06.06.2019 has an issue of its authenticity as explained
in the preceding paragraph. The said
leave application contains a diary no. which is not the way a receipt is
diarized. It does not have a column for
it. It appears to be a file number. Secondly, perusal of dispatch register also
creates doubts about the authenticity of entry at serial no. 231 on
03.02.2015. As regards the allegation of
discrimination vis-a-vis other
doctors, particularly Ms. Deepali Garg is concerned, irrespective of whether
Dr. Deepali Garg was paid even for the days of her absence, it is for the
Administration and the concerned Administrative Authorities to look into this
administrative matter. Denial of an irregularity to a person with disability on
the ground that it was allowed to a person without disability cannot be treated
as discrimination on the ground of disability.
Accordingly, no recommendations are made in the case.
28. The complaint is disposed of.
29. Given under my hand and the seal of the Court this 26th
day of July, 2019.
(T.D. Dhariyal)
State Commissioner for Persons with
Disabilities
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