IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 OP.No. 13400 of 1999(T) ---------------------------------- PETITIONERS: -------------------- 1. N.R. MADHAVAN, HOSPITAL ATTENDER GRADE II, P.H. CENTRE, VATHIKUDI. 2. SOBHANA MADHAVAN, HOSPITAL ATTENDER GRADE II, P.H. CENTRE, VAZHATHOPE. BY ADV.SRI.VIJU ABRAHAM. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVT. OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. DISTRICT MEDICAL OFFICER (H), IDUKKI, PYNAVU. 4. MEDICAL OFFICER, P.H. CENTRE, VATHIKUDA. 5. MEDICAL OFFICER, P.H. CENTRE, VAZHATHOPE. R1 TO R5 BY GOVERNMENT PLEADER SRI. M.R. SABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/12/2008, ALONG WITH O.P NO. 13603/1999 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 13400/1999-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O. NO. G.O. (MS).NO.97/79/L&H DTD. 09/11/79. EXT.P.2: COPY OF THE G.O. (RT) 2018/81 HD DTD. 20/06/84. EXT.P.3: COPY OF THE ORDER NO. K2-6281/90 DMOH DTD. 25/05/91. EXT.P.4: COPY OF THE ORDER NO. K2-4516/84/DMOH DTD. 08/02/91. EXT.P.5: COPY OF THE ORDER DTD. 30/08/91. EXT.P.6: COPY OF THE ORDER DTD. 23/04/91. EXT.P.7: COPY OF THE ORDER DTD. 12/06/92. EXT.P.8: COPY OF THE ORDER DTD. 06/08/92. EXT.P.9: COPY OF THE CHARGE MEMO NO. A (4) 9010/92 DTD. 06/10/93. EXT.P.10: COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE R.3. DTD. 20/10/98. EXT.P.11: COPY OF THE EXPLANATION SUBMITTED BY THE P.2. DTD. 16/11/93. EXT.P.12: COPY OF THE CHARGE MEMO DTD. 13/06/94. EXT.P.13: COPY OF THE REPLY SUBMITTED BY THE P.2. EXT.P.14: COPY OF THE NOTICE DTD. 02/01/95. EXT.P.15: COPY OF THE NOTICE OF THE R.3. DTD. 25/07/95. EXT.P.16: COPY OF THE EXPLANATION SUBMITTED BY THE P.1. DTD. 07/08/95. EXT.P.17: COPY OF THE JUDGMENT DTD. 15/01/99 IN O.P. NO. 13023/95. EXT.P.18: COPY OF THE SHOW CAUSE NOTICE NO. A5 (AR) 9010/92 DTD. 22/04/99. EXT.P.18.A: COPY OF THE PROCEEDINGS OF PERSONAL HEARING HELD ON 28/11/95. EXT.P.18.B: COPY OF THE ENQUIRY REPORT OF THE R.3. DTD. 25/10/95. EXT.P.19: COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE R.3. EXT.P.20: COPY OF THE REPLY SUBMITTED BY THE P.1. BEFORE THE R.3. DTD. 18/05/99. O.P. NO. 13400/1999-T: EXT.P.21: COPY OF THE ORDER NO. A5 (A4) 9010/92 DTD. 25/05/99. EXT.P.22: COPY OF THE ORDER NO. A5 (A4) 9010/92 DTD. 25/05/99. EXT.P.23: COPY OF THE ORDER ISSUED BY THE R.3. DTD. 07/06/99. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. Nos. 13400, 13603, 13655, 13851 & 14127 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 9th December, 2008. J U D G M E N T All these original petitions relate to the same issue and therefore are being considered together and disposed of by this common judgment. Since the pleadings and exhibits in all these original petitions are identical, I shall refer to the pleadings and exhibits as obtaining in O.P.No. 13851/1999. 2. Petitioners in all these original petitions are persons who got appointment as Part-time Sweepers in the Health Service Department in recognition of their earlier experience as family planning promoters in Idukki district. All of them were appointed as Part-time Sweepers on 25-5-1991. They were subsequently promoted as Hospital Attendants Grade II in 1991 itself. While they were so working, they were issued with charge memos, one of which is produced as Ext. P3. In the same, it is stated that on enquiry by the Superintendent of Vigilance (Police), it was found that their appointment was unauthorised and against the Rules and therefore they were directed to show cause why disciplinary proceedings should not be initiated against them. The petitioners filed their reply disclaiming any liability in respect of the alleged misconduct. They also requested for assistance in the enquiry as also copies of documents. None were supplied to them. Again, two more show cause notices were issued to improve upon the original show cause notice, which did not contain any details. They were issued show cause notices to show cause why punishment of removal from service should not be imposed against them. Some of the petitioners challenged the said show cause notices by filing O.P.Nos. 12837, 13023 & 13055 of 1995, in which this Court passed Ext. P10 judgment, whereby while directing the petitioners to file reply to the O.P.. No. 13400/1999 etc. -: 2 :- show cause notices, the following directions were issued: “i. The petitioners shall, if not already filed, file their reply to the show cause notices impugned in these O.Ps within 15 days from today. ii. The Dist. Medical Officer concerned shall consider the said replies with reference to the rules and procedure for disciplinary action and if satisfied that no enquiry had been conducted in accordance with Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, shall conduct a fresh enquiry with due notice to the petitioners after rendering them copies of the documents mentioned in the charge sheet. iii. If no enquiry is found necessary by the Dist. Medical Officer, the Dist. Medical Officer shall pass final orders, at any rate within two months from the date of receipt of a copy of the reply. iv. On the other hand the Dist. Medical Officer finds that a fresh enquiry has to be conducted to tender proper opportunity to the petitioners, that shall be complied within four months from the date of submission of the reply to the impugned show cause notices. Status quo as on today shall continue until further orders are passed.” The petitioners allege that in spite of the same, without conducting an enquiry as contemplated under Rule 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules, again another show cause notice Ext. P11 enclosing therewith an alleged enquiry report Ext. P12 was issued to the petitioners. The petitioners filed detailed reply to the same. Thereafter, by Ext. P15 series of orders, all the petitioners were removed from service as punishment. The petitioners are challenging the orders by which the punishment of removal from service has been imposed on them. 3. The main argument raised by the petitioners is that the removal from service was not after complying with the procedure prescribed under Rule 15 of the Kerala Civil Services (CC & A) Rules. O.P.. No. 13400/1999 etc. -: 3 :- According to them, no enquiry worth the name had been conducted in the matter. In Ext. P12 enquiry report, the disciplinary authority had relied on documents, which were not put to the petitioners. No witnesses were examined, although statements of doctors who gave evidence before the vigilance had been relied upon. The contention of the petitioners is that reliance on statements of witnesses who have not been examined in the enquiry, to cross examine whom no opportunity was also given to the petitioners, is clearly violative of not only the procedure prescribed under rule 15 of the Rules as also principles of natural justice. 4. Counter affidavits have been filed by the respondents in which it is claimed that the disciplinary proceedings and consequent removal from service were after complying with all procedural formalities and principles of natural justice. 5. From the documents produced before me, I do not think that the respondents have been able to prove that the procedure prescribed under Rule 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules has been complied with. First of all, the first show cause notice issued to the petitioners were as vague as vague can be. Later on, further show cause notices were issued to improve upon the original show cause notices which were also totally confusing. For example, in Ext. P6 show cause notice, what has been stated is as follows: “(3) O.P.. No. 13400/1999 etc. -: 4 :- It is not even indicated therein as to which of those allegations applied to the particular petitioner. Going by the first six reasons stated, evidently all of them cannot apply to the same person. In fact, the first, second and third allegations can never apply to the same person. Of course, in Ext. P8 show cause notice, out of the seven reasons, two are ticked which may go to show that the allegation against that particular petitioner was only those two. In Ext. P11, this also has been improved upon by giving the following reasons: O.P.. No. 13400/1999 etc. -: 5 :- In Ext. P12 enquiry report, several documents have been relied upon to prove the allegations against the petitioners. But none of those documents have been made available to the petitioners. Statements of various persons have been relied upon. The respondents have no case that those persons gave evidence in the enquiry conducted against the petitioners. If they have actually given evidence, they were never offered for cross examination by the petitioners. That being so, in Ext. P12 order, documents have been relied upon to find the petitioners guilty which were procured behind their back. Hence, it is more than evident that the entire proceedings have been in violation of the procedure prescribed in Rule 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules as also the principles of natural justice. Therefore, the petitioners could not have been imposed with punishment of removal of service on the basis of such an invalid enquiry and report. That being so, the orders of punishment O.P.. No. 13400/1999 etc. -: 6 :- imposed on the petitioners which are impugned in these original petitions are clearly unsustainable. Accordingly, they are quashed. Learned Government Pleader seeks an opportunity to initiate fresh proceedings after complying with the procedure prescribed. More than 15 years have gone by, after the first memo of charges issued to the petitioners. Many of them have retired from service. That being so, I do not think that it is in the interest of anybody to continue the proceedings at this point of time. Proceedings should attain finality sometime. I consider that this is as good an opportunity as any to end the proceedings. Accordingly, I am not inclined to grant another opportunity to the respondents to continue the proceedings . In any event, I find that in Ext. P10 judgment, earlier, they were given an opportunity in spite of which they were not able to conduct a valid enquiry. That is another reason why I should deny them the same opportunity again. The original petitions are allowed as above. Sd/- S. Siri Jagan, Judge. Tds/ O.P.. No. 13400/1999 etc. -: 7 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. Nos. 13400, 13603, 13655, 13851 & 14127 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 9th December, 2008.