IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 WP(C).No. 21776 of 2009(N) -------------------------- PETITIONER(S): --------------- DR.M.H.ABDUL RASHEED MS (GENERAL SURGERY) M CH (CARDIO THORACIC) M PHIL, PROFESSOR & HEAD OF THE DEPARTMENT OF THORACIC SURGERY,MEDICAL COLLEGE OF HOSPITAL THIRUVANANTHAPURAM, ROSHAN GARDENS,KANIYAPURAM THIRUVANANTHAPURAM. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.V.K.PEERMOHAMED KHAN RESPONDENT(S): --------------- 1. SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 3. THE PRINCIPAL MEDICAL COLLEGE HOSPITAL THIRUVANANTHAPURAM. GOVERNMENT PLEADER FOR R1 TO R3 SHRI P. NANDAKUMR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON 27.8.2009 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF THE ORDER OF 1ST RESPONDENT PROMOTING THE PETITIONER AS PROFESSOR EXT.P2-TRUE COPYOF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN OF THE HOSPITAL DDEVELOPMENT SOCIETY EXT.P3-TRUE COPY OF THE ORDER OF R1 DATED 28.7.2009 EXT.P4-TRUE COPY F THE COMPLAINTS RECEIVED BY THE PETITIONER AS HOD DATED 22.7.2009 EXT.P5-TRUE COPY OF FIR DATED 24.7.09 EXT.P6-TRUE COPY OF THE PAPER REPORTS PUBLISHED IN MALAYALA MANORAMA DAILY DATED 27.7.2009 EXT.P7-TRUE COPY OF DO. DATED 27.7.2009 EXT.P8-TRUE COPY OF THE INTERIM ORDER DATED 27.3.2009 EXT.P9-TRUE COPY OF REPORT OF VIGILANCE AND ANTI CORRUPTION BUREAU DATED 20.3.2009 EXT.P10-TRUE COPY OF THE COVERING LETTER RESPONDENTS' EXTS: EXT.R1(A) TRUE COPY OF NOTICE ISSUED BY KERALA STATE HUMAN RIGHTS COMMISSIOIN TO DIRECTOR OF MEDICAL EDUCATION EXT.R1(B)-TRUE COPY OF NOTICE ISSUED BY VIGILANCE AND ANTI CORRUPTION BUREAU TO THE SISTER IN CHARGE EXT.R1 © TRUE COPY OF ORDER OF GOVT. DATED 27.7.2009 CONSTITUTING THE EVALUATION COMMITTEE. EXT.R1(A) PRODUCED IN IA 10399 - TRUE COPY OF NOTICEDATED 30.10.2008 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 21776 of 2009-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of August, 2009. JUDGMENT Aggrieved by the order of suspension, Ext.P3, the petitioner has filed this writ petition. It is mainly contended that Ext.P3 is not supported by any allegation of misconduct on the part of the petitioner and therefore the suspension itself is ordered ill-motivated and the same is arbitrary and illegal. 2. The petitioner is the Professor and Head of the Department of Thoracic Surgery, Medical College Hospital, Thiruvananthapuram. He is working as such since 30.4.2007. He was promoted as Professor as per Ext.P1 order dated 29.11.2007. It is his contention that there are no complaints and allegations against him in respect of his functioning as Professor and the Head of the Department. He is the sole person having M.Phil Degree in the said department. He is actively participating in the Cardiothoracic Department Programme which was started by the Hospital Development Committee in the year 1998. In the department there are students doing thesis work as part of the M.Phil course under the guidance wpc 21776/2009 2 of the petitioner. M.Phil in Clinical Epidemiology course is offered only in Medical College Hospital, Thiruvananthapuram within the State. By referring to Ext.P3, it is contended by the petitioner that the only reason shown therein is that the petitioner is found to have failed in rectifying and setting things right as a Head of the Department and the hasty conclusion that this in effect encouraged the movement of touts and middlemen in the Department, is plainly unsustainable, as the allegation is unfounded, irrational and unsupported by any material. The petitioner has produced Ext.P4, complaints by patients, wherein the surgery was done by another doctor and Ext.P5, copy of an F.I.R. It is pointed out that the allegation made therein is that one Mr. Premachandran who was styling as an agent, had induced the complainants to part with money for purchasing valves required for surgery and ultimately by Ext.P5 a criminal case was registered arraying the said Premachandran as an accused on 24.7.2009. By referring to the First Information Statement contained in Ext.P5, it is submitted by the learned counsel for the petitioner that the petitioner is in no way connected with it and no allegation as such is raised against him therein. Exts.P7(a) and P7(b) are two newspaper reports referring to the registration of criminal case. 3. Heard learned counsel for the petitioner Shri Devan wpc 21776/2009 3 Ramachandran and Shri P. Nandakumar, learned Senior Govt. Pleader appearing for the respondents. 4. It is the contention of the learned counsel for the petitioner that none of the relevant statutory prescriptions necessary to invoke the power of suspension are satisfied in this case. There is total abuse of power conferred under Rule 10 of KCS (CCA) Rules. There are no allegations of misconduct against him. There are no materials to connect him with any misconduct in the discharge of his functions as Professor and Head of the Department. The order is passed without any application of mind at all. He is being made a scapegoat in the matter whereas the allegations are really against another doctor, and on receipt of Ext.P4, the petitioner forwarded it to the Principal. Various decisions of this court laying down the principles to be followed in the matter of suspension of a public servant, were relied upon by the learned counsel for the petitioner. Mainly, reliance is placed on the decisions of this court in State of Kerala v. K.C. George (1984 KLT 315), Balakrishnan Nair v. State of Kerala (1996 (1) KLT 14) and Mariamma and others v. Kalyani Amma and another (1999 (2) KLJ 1084). Reliance is also placed on the decision of the Apex Court in State of Orissa v. Bimal Kumar Mohanty {(1994) 4 SCC 126}. Learned wpc 21776/2009 4 Govt. Pleader placed reliance upon an unreported judgment of a learned Single Judge of this court in W.P.(C) No.28804/2006, wherein important decisions rendered by the Apex Court have also been considered. Reliance is also placed on the decision of the Apex Court in S.A. Khan v. State of Haryana (AIR 1993 SC 1152) and of this court in State of Kerala and others v. Ivan Rathinam (2009 (2) KHC 443). 5. First, I may refer to the contents of Ext.P3 and the premise on which the suspension is ordered. In Ext.P3, the news reports that there is an unholy nexus between middlemen and doctors of the Department of Cardio Vascular & Thoracic Surgery, Medical College, Thiruvananthapuram over the procurement of valves and other kit required in heart surgeries, is noted. The registering of a case as Ext.P5 is also stated. The petitioner is placed under suspension for the following reasons noted in Ext.P3: “Dr. Abdul Rasheed as the HOD is seen to have failed in rectifying and setting things right and thus in effect encouraged the movement of touts and middle men in the Department. Government view it as an action unbecoming of a Government servant. It is conspicuously evident that there is breach of conduct Rules on the part of the HOD in this issue.” This part of the order is vehemently attacked by the learned counsel for the petitioner. It is wpc 21776/2009 5 submitted that there is no allegation of misconduct against him. What is alleged, is supervisory lapse in rectifying and setting things right as the HOD, which in effect, encouraged the movement of touts and middle men in the Department. It is submitted that there is no complaint against the professional competence of the doctor by any of the patients. It is pointed out that there should be some prima facie material wherein serious allegations should be there against a Government servant for initiating disciplinary action and to keep him under suspension. Herein, the same are lacking and it is totally bad in law. The power is exercised, evidently for a different purpose and it amounts to abuse of the power itself. 6. A reading of the counter affidavit shows that no particular incident or allegation involving the petitioner is pointed out therein as the basis for his suspension. It does not refer to any allegation of misconduct on the part of the petitioner specifically. It does not indicate what are the supervisory lapses on his part or of any violation of administrative instructions issued at any point of time by the higher authorities or the Government in the matter. It does not also indicate any specific failure to take steps to prevent middle men and touts in the department. It is the contention of the learned Govt. Pleader that suspension order need not be elaborate and the entire matter will have to be relegated to the enquiry. wpc 21776/2009 6 7. It is explained in para 3 of the counter affidavit that the Government had received certain complaints of misadministration of the department of which the petitioner is the Head of the Department. The petitioner and the other doctor, viz. Dr.V.R. Rajasekharan, the Asst. Professor of Cardio Vascular and Thoracic Surgery Department, are not in good terms and they are creating havoc by all means and even quarrelling in front of the patients. Reference is made to a complaint pending before the Kerala State Human Rights Commission in this regard by a relative of a patient. It is mentioned that another patient viz. Mohammed Basheer also died and his son had made a complaint before the Kerala State Human Rights Commission and report was called for in that regard. An enquiry was conducted on 18.3.2009 and the report was submitted by the Director of Medical Education on 19.3.2009 to the Government and the Equiry Committee recommended to take strong action to improve the functioning of the department. Consequently, the petitioner and Dr. V.R. Rajasekharan were transferred to Medical College Hospital, Kozhikode and Kottayam respectively. This order has been stayed by this court in W.P.(C) No.9266/2009 filed by the petitioner and W.P.(C)No.10287/2009 filed by Dr.V.R. Rajasekharan. 8. One of the contentions raised in the counter affidavit is that the wpc 21776/2009 7 allegations between these two doctors have affected the smooth functioning of the Cardio Vascular and Thoracic Surgery Department itself and the local dailies have carried out news items regarding the misadministration of the department which also attracted the attention of the Government. Reference is made to registration of Crime No.489/2009 against a tout called Premachandran. It is pointed out that the Director of Medical Education has initiated an enquiry based on the Press report and the factual report was submitted by the Principal of the Medical College Hospital, which was forwarded to the Government on 17.7.2009. On the basis of the said report, the Government constituted an Evaluation Committee as part of the quality improvement in Cardio Vascular and Thoracic Surgery Department with Dr. Meenu Hariharan, Director of IID and former D.M.E. as Chair Person and Dr.Jayakumar, Dr. K. Suresh and Dr.A. Nizarudeen as Members. The said order is dated 27.7.2009 which is produced as Ext.R1 (c). In para 7 it is stated that “as the petitioner is the Head of the Department, he owes a moral responsibility and also duty bound to protect the interest of the department.” It is also explained in para 8 that with regard to the allegations against Dr. V.R. Rajasekharan, the Government is examining the issue and will take appropriate action, if it is found that the said doctor is also involved in the irregularities connected with heart valves. wpc 21776/2009 8 Finally, in para 9 it is averred that “Ext.P3 order of suspension is issued against the petitioner on his deficiencies in acting as the head of the department.” It is also stated that the petitioner has even gone to the press against his subordinate and he has not taken any steps to rectify the mistakes, if any, committed by his colleagues or subordinates or even taken up the matter with the Government. Consequently, the Government thought it fit not to continue the petitioner as the head of the department on the face of large scale allegations. 9. Therefore, the order of suspension is sought to be supported mainly for the reason that as Head of the Department, the petitioner is duty bound to protect the interest of the department and that he has not taken any steps to rectify the mistake committed by his colleagues or subordinates and taken up the matter with the Government. Whether it satisfies the scheme provided under Rule 10 of the Rules in the light of the dictum laid down in various judgments of this court and Apex Court, is the moot question. 10. Going by Rule 10 of the Rules, a Government servant can be placed under suspension - “(a) where a disciplinary proceedings against him is contemplated or is pending; or (b) where a case against him in respect of any criminal offence is under investigation or trial; or © where final orders are pending in the disciplinary proceeding.” Herein, clause (a) wpc 21776/2009 9 alone is attracted. Going by Rule 15(2), the Government should satisfy itself that there is a prima facie case for taking action against a Government servant, whenever a complaint is received or on consideration of the report of investigation or for other reasons and the framing of charge will follow thereafter. Interpreting these two rules, a Division Bench of this Court in State of Kerala's case (1984 KLT 315) held that “any arbitrary action by the State will violate Article 14 of the Constitution of India. It was further held as follows: “It is fairly settled that the executive has no absolute power in administrative matters. The constitution enshrines and guarantees the rule of law and Article 226 is designed to ensure that each and every authority in the State including the Government acts bona fide and within the limits of its power. The primary purpose of administrative law is the imposition of the checks on the powers of Government or its officers so that they may not either abuse their powers or go out of their legal bounds. Art.14 strikes at arbitrariness in State action and requires that the State action must be based on valid and relevant principles applicable alike to all similarly situated and it must not be guided on extraneous or irrelevant considerations because an action that is arbitrary must involve negation of equality.” 11. While referring to the parameters required for placing a Government employee under suspension, it was held thus in para 11: wpc 21776/2009 10 “It is the exigency of the conditions of service which requires or calls for an order of suspension and there can be no difference in regard to this matter as between a member of the Indian Administrative Service or State Service. The Government is entitled to place an officer under suspension even before definite charges have been communicated, after preliminary investigation has been made into the conduct of the officer concerned following allegations of corruption or malpractices levelled against him. R.10 empowers the appointing authority to place a member of the service under suspension when disciplinary action is under contemplation. This rule read with R.15 makes it clear that disciplinary proceedings is contemplated only when the authority concerned is satisfied that there is prima facie case for taking action. It is on the basis of complaint received or on consideration of the report of investigation or for other reasons the authority is to satisfy that prima facie case exists. Therefore either there should be a complaint alleging misconduct or report of investigation or other material for exercising the power of suspension in contemplation of the disciplinary proceedings.” Going by the admitted facts, there is no allegation of misconduct prima facie, against the petitioner except the statement made in Ext.P3 that he has failed to take action in rectifying and setting things right and and thus in effect encouraged the movement of touts and middle men in the department. Plainly, there is no allegation to the effect that the petitioner was acting wpc 21776/2009 11 hand in glove with any touts or middle men and therefore learned counsel for the petitioner submitted that the petitioner cannot be said to have failed in his official duties in the absence of any direction issued by any of the superior authorities and the Government. It is the contention of the petitioner that no superior authority had brought to his notice any complaint about the movement of touts in the department requiring his immediate intervention. It is his case that going by Exts.P4 and P5, the allegations were only against Dr. V.R. Rajasekharan. It is also pointed out by referring to Ext.P5 F.I.R. that there is no mention of his name therein also by the complainant. Therefore, it is submitted that the above reason is found out only as a figment of imagination to place him under suspension, while the interim order issued by this Court against his transfer is in force. I find much force in the above submission. It is argued, thus, that there is no material worth to place him under suspension. 12. Learned Govt,. Pleader made available the relevant files leading to the order of suspension. The file leading to the issuance of order No.2132/2009/H&FWD dated 27.7.2009 [Ext.R1(c)] shows that it originated from a news item in Metro Malayala Manorama regarding the death of patients during cardiac surgery in the Department of Cardio Vascular and Thoracic Surgery. The Director of Medical Education has wpc 21776/2009 12 forwarded a report of the Principal along with letter dated 17.7.2009. The Principal's report is also dated 17.7.2009 whereby he forwarded the report received from the Head of the department, viz. the petitioner himself. Therein, the details regarding the number of operations done during the year 2008-2009 and the percentage of death, viz. 9% is reported. The said report counters the wild allegations made in the news item that the mortality rate is on a higher side. The Unit Chief II has also signed in the said report along with the petitioner. The Government thereafter appointed an Evaluation Committee of four persons as part of the measure to have a quality improvement. As noted above, this order is dated 27.7.2009 which has been produced as Ext.R1(c). The order of suspension Ext.P3 is issued on the next day. Even going by the said file, there is no mention of any misconduct against the petitioner. There is no other case for the respondents also in para 6 of the counter affidavit regarding these matters. It is evident that the Committee has not gone into their assigned task so far and are yet to submit any report also. Why, therefore, the Government acted with undue haste in placing the petitioner under suspension and that too on the next day of the issuance of Ext.R1(c), is not discernible. 13. In fact, in the Note file leading to the order of suspension, submission of a specific complaint by any patient, against the petitioner is wpc 21776/2009 13 not mentioned. There is a resume of the complaints made by one Sreejith and one Suresh leading to the registration of a crime. The said file also does not help to show at least prima facie that there was any serious allegation of misconduct against the petitioner. 14. Another file produced is regarding the transfer of the two doctors which obviously, is the subject matter of writ petitions filed by them as mentioned already. Another file, viz. G2/17176/2008/MCH relates to a complaint filed by the petitioner to the Principal, Medical College Hospital, Thiruvananthapuram against some actions of Dr.V.R. Rajasekharan. It contains a preliminary report made by a Committee appointed for that purpose. Nothing turns upon that also which leads to the order of suspension. File No. 41522/B3/08 contains certain complaints. Two of the complaints are dated 22.6.2008 and 23.4.2008 alleging want of the qualifications for his promotion. The other complaints are also those originated in September 2008 and October 2008 and ultimately by letter dated 25.10.2008 Government has called for a report from the Director of Medical Education. I have referred to these details in the light of the contention raised by the petitioner that there are no materials against him while issuing Ext.P3. 15. Therefore, none of the above would show any serious allegation wpc 21776/2009 14 of misconduct on the part of the petitioner. Learned Senior Govt. Pleader explained that a cumulative result of all the happenings in the department as explained in the counter affidavit, led to the order of suspension. It is vehemently argued that at this stage this court need not go into such primary materials, as the Government is yet to issue a formal charge memo to the petitioner. All matters are to be subject of enquiry that is contemplated. It is therefore submitted that this court cannot sit in appeal over the reasons stated in Ext.P3 to find out whether there are justifiable reasons to order suspension of the petitioner. 16. In the judgment in W.P.(C) No.28804/2006, a learned Single Judge of this court, after referring to the parameters stated in Rule 10 of the Rules, held thus in para 12: “Whether the Government servant against whom disciplinary proceedings are contemplated should or should not continue in his/her office during the period of inquiry, is a matter to be assessed by the authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are malafide and without there being even prima facie material connecting the Government servant with the alleged misconduct.” Reference is made to an important decision of the Apex Court in State of Orissa's case {(1994) 4 SCC 126} wherein it was held that “it shall not be wpc 21776/2009 15 an administrative routine or an automatic order to suspend the Government servant. The gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee are relevant considerations. A Government servant can be placed under suspension for the smooth conduct of disciplinary proceedings. It is not necessary that before suspending the employee, he shall be found guilty. The dictum laid down in Muhammed v. State of Kerala (1997 (2) KLT 394), to the following effect was referred to: “When the allegations are of a serious nature, which have got considerable public interest, and those allegations are based on some relevant material, authority can always place the Government servant under suspension, even till the completion of the disciplinary proceeding, investigation or trial. It depends upon the gravity of the offences, nature of the allegations as well as public interest involved. Such action of the Government would be justified so as to achieve the purity of administrations.” It was held “that an order of suspension can be passed only after due application of mind.” Finally in para 19, it was held as follows: “This is a case where the disciplinary authority has not framed any charges against the petitioner. As rightly contended by the Senior Govt. Pleader, there is a distinction between the prima facie materials wpc 21776/2009 16 and allegations which may find place in an order of suspension and the specific charges with statement of allegations in a charge memo under Rule 15 or 16 of the Kerala Civil Services (Classification, Control and Appeal) Rules. At the time of passing the order of suspension it is not a legal requirement that the disciplinary authority should have in its possession all the materials necessary to prove the allegations. If the materials already on record show that the allegations are grave and that the suspension of the delinquent employee will be necessary in public interest, the authority which passes the order of suspension can be said to be exercising the power conferred on it under Rule 10 of K.C.S. (CC & A) Rules, legitimately.” Therefore, the dictum laid down in the above judgment makes it clear that there should be prima facie materials at least, wherein