Dr. Naveen Chandran, Nirmala vs State of Kerala, Additional Secretary to Govt., Additional Director of Health and Director of Health Services

S. Siri Jagan, J.—The Petitioner was an Assistant Surgeon in the Health and Family Welfare Department of the Government of Kerala, who retired from service on 30.9.2008. While he was in service, disciplinary proceedings were initiated against him under the Kerala Civil Services (Classification, Control and Appeal) Rules, on the basis of Ext.P1 memo of charges and statement of allegations. The allegation against him was that, on a surprise check made, medicines and supplies belonging to the Government were seized from the car of the Petitioner and Government supplies of medicines were seized from Nirmala Nursing Home, a nursing home run by the Petitioner''s wife. Subsequently, apparently, on the basis of Ext.P11 enquiry report, the punishments of barring of two increments with cumulative effect and recovery of loss of Rs. 10,000/- suffered by the Government were imposed on the Petitioner by the Government, by Ext.P15 order. The Petitioner''s review petition against that order was also rejected by Ext.P17 order. The Petitioner is challenging Exts.P11, P15 and P17 orders in this writ petition.

The Petitioner challenges the disciplinary proceedings on several grounds. The first is violation of principles of natural justice. The Petitioner submits that no valid enquiry has been conducted, no witnesses were examined in the presence of the Petitioner, the Petitioner was not given any opportunity to defend himself, no documents relied upon were given to the Petitioner and no witness list and list of documents were furnished to him.

A counter affidavit has been filed seeking to support the impugned orders, to which, a reply affidavit has also been filed by the Petitioner.

The Petitioner submits that Ext.P11 is the document which has been furnished to him as the enquiry report. The same is not disputed in the counter affidavit. Ext.P11 is more an opinion of the Additional Director of Health Services (Vigilance) than an enquiry report. It does not mention any notice of enquiry to the Petitioner, collection of evidence with notice to the Petitioner or any evidence at all except some statements alleged to have taken from five persons including the Petitioner. I am of opinion that Ext.P11 is an apology for an enquiry report. Specific procedure is prescribed in the Kerala Civil Services (Classification, Control and Appeal) Rules, as to how enquiries are to be conducted in disciplinary proceedings. None of the procedures is seen complied with while preparing Ext.P11 enquiry report. It merely says that on a surprise check some medicines were recovered from the car belonging to the Petitioner and the nursing nome of the Petitioner''s wife. The Petitioner has given some explanation in his statement for the alleged removal of medicines from the hospital. Without examining the witnesses to prove the seizure and the fact that the medicines are Government supply, in an enquiry conducted for that purpose, Ext.P11 cannot be said to be a valid report in a valid disciplinary proceeding. For that reason alone the disciplinary proceedings are liable to be quashed. Accordingly, I quash Exts.P11, P15 and P17.

The learned Government Pleader seeks liberty to conduct a fresh enquiry in accordance with law. The Petitioner has retired from service three years ago. It is not as if the Respondents were not aware of the procedure prescribed for conducting a disciplinary enquiry. Despite knowing fully well the procedure prescribed, the Respondents have not chosen to conduct a valid enquiry. In the above circumstances, after all these years I am not inclined to grant any fresh liberty in the matter.

Accordingly, this writ petition is allowed as above.