By TABEENAH ANJUM
Jaipur: He spent 500 days in jail after being arrested three times, for culpable homicide and negligence, for causing a disturbance and for being a threat to national security for delivering a speech against India’s new citizenship law.
Kafeel Khan, MD, 40, a paediatric doctor often singled for punitive action by the Uttar Pradesh government of chief minister Yogi Adityanath, continued to be the target of selective action when he was dismissed from service in November 2021, even as his case was to be heard in the Allahabad High Court.
In the weeks following the death of 63 children at the Baba Raghav Das (BRD) Medical College and Hospital in the eastern Uttar Pradesh city of Gorakhpur due to an oxygen shortage in a paediatric ward in August 2017, the state government suspended eight staffers, including the college principal, doctors and clerical staff.
On 12 November 2021, the government terminated the employment of Khan, while the other seven were reinstated over the last two years.
Khan, 40, had been suspended from service on 22 August 2017. He received a copy of the termination letter on 22 November, 2021 after being found ‘guilty’ in the probe into the circumstances leading to the death of children at Gorakhpur’s BRD Medical College due to an alleged shortage of oxygen.
While charges were framed and departmental enquiries instituted against all eight suspended employees, the other seven were made to forgo a year’s appraisal and salary increment. The principal and the pharmacist completed their service and retired.
At least two of colleagues who were in prison with him told Article 14 that the government’s move of singling out Khan was “injustice”. Speaking anonymously, one senior colleague said the others did not wish to speak up for fear of retribution.
The termination notice cited, among other things, medical negligence, but Khan was expressly cleared of that charge in a 2019 departmental enquiry report accessed by Article 14. The report had held that Khan had no role to play in the tendering for and supply of oxygen.
“This termination comes as a shock especially when the case is still pending in the court,” Khan said. He had filed a writ petition in the Allahabad High Court against his suspension on 3 July 2021. The next hearing is on 7 December. In 2018, the same court, while granting him bail, observed there was “no material on record, which may establish medical negligence”.
The children died in the hospital because the government failed to pay outstanding dues of Rs 68 lakh to the oxygen supplier, Khan said.
“I am the only one of the eight accused to get terminated, rest all got reinstated (sic),” Khan said in a statement released to the media on 5 December, in which he cited other inquiry reports that did not find evidence of negligence by him, including reports by the district magistrate, a central government panel and a high court-initiated inquiry.
Inquiry Found No Evidence Of Negligence By Khan
On 23 August 2017, a first FIR was lodged against Khan, accusing him of private medical practice.
A departmental inquiry in 2019 found evidence that Khan was engaged in private practice, violating his terms of service, but the inquiry did not find him guilty of medical negligence in Ward 100, where the August 2017 tragedy unfolded, named so for it houses 100 beds.
Conducted by additional chief secretary Himanshu Kumar, the inquiry found Khan guilty on two counts, but exonerated with regard to two other charges. Kumar told Article 14 he had nothing to add to his report submitted two years ago. “The report is available and could be referred to,” he said.
The 23-page fact-finding report detailed four charges against Khan. The first two charges related to Khan being engaged in private practice and violating service rules. These charges were proven to be true, the report said.
The third charge, of medical negligence, was not proven.
Pages 9 to 15 of the report said the charge was that Khan was present during the deaths of the children, and he was the nodal person in-charge of the 100-bed ward, despite which he allegedly didn’t bring to the notice of higher officers the matter of shortage of life-saving oxygen.
The inquiry, however, could not prove the charge.
The fourth charge accused him of being “irresponsible” in his administrative duties as head of the 100-bed ward but was also not proven in the inquiry, the report said on page 14.
Khan said in his press statement that information he obtained through the Right To Information (RTI) Act, 2005, showed that another doctor had been posted as the in-charge of acute encephalitis syndrome (AES) patients.
The government, however, rejected the findings of the departmental inquiry.
On 24 February 2020, the government ordered a second departmental inquiry against him with regard to the 2017 case. “On 6 August 2021, the government submitted to the court that the second inquiry against me was quashed,” Khan told Article 14.
Khan first heard of his dismissal via news reports when UP principal secretary (medical education) Alok Kumar told journalists on 11 November 2021 that the doctor was sacked after being found guilty in a probe into the circumstances leading to the children’s deaths.
Khan told Article 14 that the first charge against him in the termination order was of continuing to have a private practice, but said he had given up his personal practice upon joining government service. “I joined the medical college on 8 August 2016,” he said. “Before that, if I had any private or public practice, it was not anyone’s business.”
The termination order also charged him with not having the required registration with the Uttar Pradesh Medical Council, but Khan said he was registered with the Indian Medical Council and was permitted to practise anywhere in the country.
Eight Staffers Arrested, Seven Reinstated
In September 2017, days after the tragedy in the hospital, nine persons were sent to jail including Khan, the principal of the medical college, other staff members and the private oxygen supplier.
On 26 November 2017, the police filed a chargesheet in the Gorakhpur district court.
Khan was the first to be released on bail, after nine months in custody. The other staff members and the oxygen supplier remained in custody for 15 months.
Principal Raju Mishra was charged under sections 409 (criminal breach of trust by public servant), 308 (attempt to commit culpable homicide), 120B (conspiracy) of the Indian Penal Code (IPC), 1860 and and 7/13 of the Prevention of Corruption (PC) Act, 1988.
Khan was charged under sections 409, 308 and 120 B of the IPC.
Poornima Shukla, a doctor and the wife of the principal, was charged under IPC section 120B, and sections of the PC Act.
Satish Kumar, a doctor in charge of oxygen supply and the head of department (anaesthesia), faced charges under sections 308, 120B, 466 (forgery of records), 468 (forgery for cheating), 469 (forgery for harming reputation) and 471 (using as genuine a forged document) of the IPC and sections of the PC Act.
The pharmacist, Gajanand Jaiswal, responsible for maintaining the logbook at the hospital, was booked under IPC sections 120B, 466, 468, 469 and 471, and the PC Act.
Three clerical staff, Uday Sharma, Sanjay Tripathi and Sudhir Pandey, were booked under similar sections.
Manish Bhandari, the owner of Pushpa Sales, the oxygen supplier, was booked under IPC sections 120B and 406.
Of the eight hospital staffers arrested, all the others barring Khan were reinstated. The principal, also reinstated, retired from service.
The trial is underway.
‘The Injustice Was Against Dr Khan’
Gajanand Jaiswal, the pharmacist at BRD Medical College at the time of the tragedy and one of the eight staffers to be booked and arrested said he was exonerated in a departmental inquiry on 25 July 2019. “I was reinstated on 18 August 2021, 12 days before I retired from service,” said Jaiswal.
Jaiswal told Article 14 he was surprised that seven of them had been reinstated while Khan’s services were terminated. “The injustice has been against him, as all of us went to jail and charges were levelled against all of us,” said Jaiswal.
Of Khan’s seven co-accused colleagues, three have retired, while four continue to be in service.
A former official at BRD Medical College said the former principal Raju Misra was reinstated as professor of pathology and retired one year ago. His wife, Poornima Shukla, also retired a few months after being reinstated, as did Jaiswal, the pharmacist.
“However, Dr Satish was reinstated and was transferred to Azamgarh Medical College where he is heading the anesthesia department,” the official told Article 14, on condition of anonymity. “The three clerical staff were reinstated.”
The official added that two of those who retired were facing trouble with collecting pension, a portion of which was stopped by the department. The four who continue to be employed had to forgo a year’s appraisal and salary revision as punishment.
Khan Found Guilty On Three Charges
The Uttar Pradesh government maintained that no departmental committee had given Khan a clean chit.
“No departmental inquiry has ever given Dr Kafeel Khan a clean chit,” Alok Kumar told Article 14.
He said it was on the basis of a report by the preliminary fact-finding committee headed by the chief secretary that Khan and others were suspended and criminal charges filed against them. This report, he said, concluded that there was negligence, and appropriate action must be taken.
Kumar said this was a “prima-facie establishment that negligence has been created”.
On why Khan had been singled out for dismissal among the seven arrested, Kumar said departmental chargesheets had been framed against all those identified including the college principal, head of the paediatric ward and the in-charge for medicine procurement.
While he had not dealt with cases other than Khan’s, he said the principal had been demoted from the rank of professor, and the others were “punished and reinstated after the proper inquiry”.
When Kumar took charge of the department in February 2021, only Dr Kafeel Khan’s matter was pending, he said.
According to Kumar, the three charges against Khan were for continuing his private practice while employed with the government, as in-charge of the paediatric unit where the infants’ deaths occurred, and not informing the government about the oxygen shortage though the problem of oxygen stoppage was known for some time.
The 35-page termination order found Khan guilty of continuing his private practice and of being negligent in the paediatric ward.
Kumar said Khan still has the option of appealing against the termination order. “He can either take legal recourse, approach the governor of the state or the civil service tribunal,” he said.
As the termination letter said the government has not debarred him from future employment, Khan could apply for work elsewhere.
“The idea behind the termination letter is to explain that negligence of high order had taken place and hence punishment was to be given,” said Kumar, adding that the government had undertaken a three-year inquiry before arriving at the decision to dismiss him.
Khan said that for 54 hours between 10 and 12 August 2017, the hospital, an important tertiary care centre in eastern UP, faced a shortage of liquid oxygen. “…I had indeed arranged jumbo oxygen cylinders to save many children from dying,” his statement said.
Khan had later submitted a copy of his letter seeking leave of absence on 10 August. “Despite being on leave on 10 August, I had rushed to the medical college on that fateful night and tried to save every innocent life possible,” he said, adding that he called 26 people that night, including top officials of the hospital and the district magistrate.
“There are more than 168 doctors and around 5,000 employees, but they got me as a scapegoat,” Khan said in his official statement.
A second suspension order against him, for allegedly forcibly treating patients at the district hospital in Bahraich, about 250 km west of Gorakhpur, and for “criticising government policies”, was stayed by the Allahabad HC on 9 September 2021.
Still Fighting After Three Cases, 500 Days In Jail
“I have no idea why I was terminated. It is nothing but harassment,” Khan told Article 14.
He said that over the last three years, while his career as a medical professional remained suspended, the government was reluctant to accept his resignation though it had stopped paying his salary.
It was after the intervention of the SC in May 2019 that the government began to release 50% of his monthly salary.
“The only way to fight is through legal proceedings, and I have all the right to enquire why I have been terminated,” he said.
A second FIR had been filed against Khan on 22 September 2018 and a third FIR on 13 December 2019.
The third FIR was under sections 153A (promoting enmity between different groups), 153B (imputations, assertions prejudicial to national integration), 505(2) (statement creating or promoting, enmity, hatred or ill-will between classes) and 109 (abetment of offence) of the IPC.
This case pertained to an allegedly provocative speech he made at a students’ protest against the Citizenship (Amendment) Act (CAA), 2019, and the proposed National Register of Citizens (NRC), at the Aligarh Muslim University. On 13 February 2020, police also slapped charges under the stringent National Security Act (NSA).
A chargesheet was filed on 16 March 2020, and the chief judicial magistrate in Aligarh took cognisance of it on 28 July 2020.
On 11 August 2020, Khan’s mother filed a habeas corpus—literally, produce the body—petition, following which the Supreme court ordered the Allahabad HC to decide on the applicability of the NSA charge.
On 1 September 2020, the HC quashed the NSA charge and Khan was released on bail late that night from Mathura jail.
The Allahabad high court said Khan’s detention under the NSA was “not sustainable in the eye of the law” and ordered his immediate release. The division bench of Chief Justice Govind Mathur and Justice Saumitra Dayal Singh noted that the Aligarh district magistrate had quoted selectively from Khan’s speech at the AMU in order to justify his detention.
After seven months in jail, instead of returning home to Gorakhpur, Khan relocated to Jaipur, where he currently lives in a rented house with his wife and two children. “We find the place peaceful and feel safe and away from the threat our family has been facing in Uttar Pradesh,” Khan said.
The entire family relocated initially, but the others returned to Gorakhpur a few months later.
Asked if he was tired of moving court, Khan said: “I was booked in three cases. I have spent 500 days in jail in three separate stints. But still, I am not tired of fighting. I haven’t lost hope in the rule of law.”
Khan has been travelling to different cities to organise free medical camps, while his wife Shabista, also a doctor, looks after their two children, five-year-old Zabrina and two-year-old Oliver.
Shabista also felt it was unsafe to return to Gorakhpur. “We have lost faith in the UP government and are apprehensive of returning to our hometown,” she said.
‘Our Neighbours Stopped Talking To Us’
Khan’s home in Gorakhpur is located in the Basantpur area near Ghanta Ghar, about 4 km from the Gorakhnath temple where Uttar Pradesh chief minister Yogi Adityanath is the head priest. Adityanath, who also holds the home affairs portfolio, is an elected member of the legislative assembly from Gorakhpur.
Khan’s elder brother Adeel Khan said the locality they live in is home to a mixed population of Hindu and Muslim families, as well as some Christians.
Hindu festivals such as Holi and Diwali were occasions for the family to receive boxes of sweets, gujjiya (a traditional Holi sweet) and diyas (lamps) from their Hindu neighbours. On Eid, the Khans would serve home-cooked seviyan (festival sweet made of vermicelli) to neighbours, he said.
This is no longer the case, Adeel told Article 14.
Following the events of 2017, the family witnessed a change in neighbours’ behaviour. “Our neighbours stopped talking to us. No one visits us on festivals,” he said. “They not only behaved coldly towards us but made us feel socially secluded.”
The family said they felt targeted. “We could see the spread of hate for us,” according to Adeel.
Unidentified Assailants Shot At Khan’s Younger Brother
On 11 June 2018, Khan’s younger brother Kashif Jameel was shot at by unidentified assailants. Jameel, 35, a property dealer, was returning home on his bike and was near the JP Hospital area of North Humayunpur in Gorakhpur city when three bullets hit him.
A bullet hit him in the neck, another on the upper arm. He underwent surgery at a private hospital in Gorakhpur.
He was then referred to the trauma centre of the King George Medical College, Lucknow, where he underwent surgery again to have the bullets removed.
The attack came two months after Khan was released from jail.
On a complaint by Jameel and Adeel, Gorakhpur police lodged an FIR against unidentified persons at the City Kotwali police station, but the case was closed in 2021.
The family had accused BJP leaders Kamlesh Paswan, the member of parliament from Bansgaon in Gorakhpur district, and Satish Nangalia of being involved in the attack, and demanded a probe by the Central Bureau of Investigation (CBI).
A day after the attack, the Khans were determined not to leave Gorakhpur, but not any longer. “We three brothers are living in three cities,” Adeel said. Kashif was nervous about visiting Gorakhpur since the attack and lives in Lucknow with his parents-in-law.
“We are scared that the BJP government will harm us,” said Adeel, adding that their mother was distraught at the brothers fearing for their lives.
Family Faces Social, Economic Boycott
Over the last four years, the family’s business income has been hit by the cases against Khan.
Adeel, who owns an electronic household equipment store in the Rustampur market of Gorakhpur, said the store did very well before 2017 but business nosedived after the arrest, as customers hesitated to visit the store.
Their customers are often women. “They are scared to enter the shop as there would always be a police vehicle parked outside the shop,” he said.
The sales staff were also questioned by police, Adeel claimed. “They left the job and never returned,” he said.
Meanwhile, human rights organisations protested Khan’s termination with a demonstration on 14 November at Jantar Mantar in New Delhi.
Bijnan Kumar Bera, MBBS and general secretary of Medical Service Center, an organisation working for the welfare of medical professionals, said in a statement that the gathering was to vehemently oppose this “undemocratic” move and “fascist step”.
“The Allahabad high court as well as the honourable Supreme Court have dismissed all the charges against Dr Kafeel Khan. But nonetheless the Yogi Adityanath-led UP government decided to dismiss him from his post once again without paying any regards towards the ruling of these judicial authorities,” Bera said.
The All India Students’ Association also issued a statement criticising the termination. The Progressive Medicos and Scientists Forum wrote to Suresh Khanna, UP’S minister for medical education, asking him to revoke Khan’s termination.
Khan said he and his family have realised that “someone has to speak up for justice, for all those oppressed by the powers that be”. He said he would challenge his termination in court.
“Strange as it may seem, the attempts to intimidate me into silence have made me all the more conscious of what I owe to society,” he said.