IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 WP(C).No. 11915 of 2010(L) -------------------------- PETITIONER(S): --------------- DR.SEENA N.K, D/O.KRISHNAN, AGED 32, "SREE PADMAM", KANNUR AMSOM, KANNURKARA DESOM, KANNUR. [WORKED AS MEDICAL OFFICER ON CONTRACT/DAILY WAGES BASIS GOVT.AYURVEDA TRIBAL HOSPITAL, ARALAM, KANNUR DISTRICT.] BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO THE HEALTH DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KANNUR DISTRICT, COLLECTORATE, KANNUR. 3. THE PROJECT OFFICER, ITDP OFFICE, CIVIL STATION, KANNUR. ADDL.R4 IMPLEADED ------------------------ ADDL.R4. THE DIRECTOR, SCHEDULED TRIBE DEPARTMENT, GOVERNMENT OF KERALA, VIKAS BHAVAN, THIRUVANANTHAPURAM ; IS IMPLEADED AS ADDITIONL 4TH RESPONDEN SUO MOTO; BY GOVERNMENT PLEADER SMT. RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.11.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 11915 of 2010(L) --------------------------------- APPENDIX ------------- PETITIONER'S EXHIBITS -------------------------- EXT.P1. COPY OF THE COMPLAINT DATED 6.10.2009 BEFORE THE 3RD RESPONDENT EXT.P2. COPY OF THE REPLY DATED 7.10.2009 ISSUED BY 3RD RESPONDENT. EXT.P3. COPY OF THE LETTER DATED 9.10.2009 SUBMITTED BY THE PETITIONER. EXT.P4. COPY OF THE NOTICE ISSUED ON 22.10.2009 BY TH 3RD RESPONDENT EXT.P5. COPY OF THE REPLY TO THE NOTICE, GIVEN BY THE PETITIONER DATED 30.10.09. EXT.P10. COPY OF THE LIABILITY NOTICE DATED 1.3.2010. RESPONDENT'S EXHIBITS : NIL ---------------------------- / TRUE COPY / P.A. TO JUDGE VK C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C) No.11915 of 2010 ------------------------------------------- Dated this the 18th day of November, 2011 J U D G M E N T ---------------------- The petitioner was working as Medical Officer on contract basis under the 3rd respondent at the Government Ayurveda Tribal Hospital, Aralam in Kannur District, for the period from 12.2.2009 to 31.10.2009. Appointment of the petitioner was on a remuneration of Rs.300/- per day, subject to a maximum of Rs.9,000/- per month. The petitioner's salary was disbursed on the basis of the attendance statement and bill submitted by the Medical Officer before the 3rd respondent and it was being disbursed on obtaining counter signature from the 3rd respondent. During the period when she worked as above, there arose some dispute with the Junior Superintendent attached to the hospital, one Sri.Saseendran. According to the petitioner, she was mentally harassed by the above said person and defamed by spreading statement of character W.P.(C).11915/10 -2- assassination. When the petitioner submitted the salary bill for the month of September 2009, the above said Junior Superintendent attempted to misbehave, is the allegation. Under the above mentioned circumstances, the petitioner preferred Ext.P1 complaint before the 3rd respondent on 6.10.2011. But the 3rd respondent had issued Ext.P2 reply raising an allegation that the petitioner had not remitted value of 2939 empty bottles sold by her. By the said notice the petitioner was requested to show cause why the amount received out of sale of the empty bottles were kept without remitting in the Treasury. The petitioner was also requested to produce records regarding auction if any conducted along with tabulation statement, quotations received and order accepting the quotation etc. It is further stated that unless the amount received out of sale of empty bottles is not remitted in the Treasury, salary due to the petitioner from the month of September, 2009 onwards cannot be disbursed. 2. On receipt of Ext.P2 the petitioner submitted Ext.P3 reply stating that when she took charge as Medical W.P.(C).11915/10 -3- Officer in the hospital in question only 748 number of empty bottles were available in the stock and those bottles were sold by inviting quotation and the amount received in this regard has already been remitted to the Treasury, and the auction bidder had already taken possession of the said quantity of empty bottles. It was further replied that the alleged sale of 2929 bottles is not correct and those items mentioned in Ext.P2 are not related to the Department, but it is only connected with LSGD (supply from the Panchayat). It is also stated that those empty bottles were directly given to patients. Records pertaining to sale conducted was also submitted. 3. The 3rd respondent issued Ext.P4 order after considering explanations submitted by the petitioner. It is stated that during enquiry it was revealed that 2929 empty bottles which were available on physical verification are missing from the hospital and the employees working there had reported that those bottles were sold by the Medical Officer during March 2009. It was further alleged that the enquiry conducted from the office of the 3rd respondent W.P.(C).11915/10 -4- revealed that the petitioner had created bogus documents and committed financial misappropriation. The explanation of the petitioner to the effect that there were only748 empty bottles available at the time when she had taken charge was also found to be incorrect. It was noticed that on 12.2.2009 when the petitioner took charge she had endorsed stock of 2929 empty bottles. The 3rd respondent also observed that the documents submitted by the petitioner with respect to inviting quotation for sale of empty bottles and the procedure in finalising such quotation were not done in a regular and proper manner. It was also observed that the explanations that the empty bottles supplied by the Panchayat has been given to patients, could not be justified and that the petitioner has no power to dispose of the bottles in that fashion. Further allegation was also raised to the effect that the remittance made with respect to the value of the bottles is not done in a proper and legal manner applying the procedure. Under such circumstances the petitioner was directed to submit explanation regarding misappropriation of Government fund and with respect to W.P.(C).11915/10 -5- creation of bogus documents in order to cheat the Government. It is further ordered that steps will be taken to recover the value of 2929 bottles along with interest from the petitioner. 4. On receipt of Ext.P4 the petitioner submitted further explanation as per Ext.P5. But the 3rd respondent had issued Ext.P6 notice fixing liability on the petitioner to the tune of Rs.10,031/- and requiring the petitioner to remit the said amount in the Treasury within 10 days. In Ext.P6 notice the 3rd respondent had sought to recover a sum of Rs.7,189/- towards value of medicines found shown in the Stock Register, Rs.1,970/- being the amount found in deficit in the account of the hospital in question detected through inspection conducted by the Deputy Director of Tribal Development and Rs.872/- being the value of empty bottles which is found missing out of the stock. 5. Contention of the petitioner is that the steps for recovery initiated through Ext.P6 is totally illegal, irregular and unsustainable. It is alleged that the entire action initiated in this regard is vitiated by malafides since the 3rd W.P.(C).11915/10 -6- respondent was instigated to take such action only by the Junior Superintendent with whom the petitioner was not keeping good terms. It is further pointed out that the liability is fixed without affording any reasonable opportunity to the petitioner. It is contended that the explanation submitted to Ext.P2 notice was not considered in its proper perspective and before fixing liability the petitioner was not given any opportunity to prove her contentions, which was evident from the records produced by her before the 3rd respondent. It is also contended that Ext.P4 was issued without affording any opportunity of personal hearing to the petitioner. Yet another contention raised is to the effect that while issuing Ext.P6 notice of recovery new amounts were also claimed under two heads other than the amount relating to the value of alleged difference in stock of empty bottles. The amount sought to be recovered with respect to the difference in value of medicines and alleged deficit in the account of the hospital are matters which were not informed to the petitioner in any previous notice issued, is the contention. With respect W.P.(C).11915/10 -7- to those amounts the petitioner was not given any notice at any point of time. Therefore fixation of liability is done in an arbitrary manner without any reasonable opportunity to the petitioner, is the contention. 6. In the counter affidavit filed on behalf of the 3rd respondent it is contended that the liability was fixed after conducting due enquiry and after being satisfied that she had misappropriated the amount and had failed in keeping proper documents and records. It is also mentioned that the liability is fixed on the basis of a report of audit inspection conducted by the ITDP and District Medical Officer (LSM). The liability is fixed only because it was convinced that there was misappropriation from the side of the petitioner. 7. While considering the rival contentions on the basis of the facts and circumstances as narrated above, I am of the view that a proper enquiry after affording reasonable opportunity of hearing to the petitioner is not afforded in the matter. Further I notice that while issuing Ext.P6 recovery notice amounts were added, apart from the W.P.(C).11915/10 -8- amounts due on the basis of the allegation of misappropriation with respect to the value of empty bottles. It is pertinent to note that with respect to the recovery of such amounts there was no notice given to the petitioner, nor any opportunity was seen afforded to her. Eventhough it is evident that the impugned proceedings were initiated on the basis of a report of audit received from the District Medical Officer and other authorities, the petitioner was never informed about such audit and she was not given any opportunity to dispute correctness of such objections reports. However, considering the entire aspects of the matter I am of the opinion that interest of justice will be served if the matter is considered on a detailed basis by any of the higher authorities of the 3rd respondent. 8. Therefore the Director of Scheduled Tribe Department, Government of Kerala, Vikas Bhavan, Thiruvananthapuram is impleaded suo moto as additional 4th respondent in this writ petition. The additional 4th respondent will call for records relating to Exts.P1, P4 and P6 and shall conduct a full fledged enquiry taking note of W.P.(C).11915/10 -9- the explanations submitted by the petitioner as per Exts.P3 and P5. During enquiry the said authority shall afford an opportunity of personal hearing to the petitioner and the petitioner shall be given opportunity to submit further explanations and to produce materials if any in support of her claims. A decision after adjudicating the entire matter with respect to the fixation of liability shall be taken by the Additional 4th respondent as early as possible, at any rate within a period of 2 months from the date of receipt of a copy of this judgment. 9. Needless to say that the arrears of salary if any due to the petitioner during the period for which she worked on contract basis shall be disbursed subject to decision which will be taken on the aspect of liability as mentioned above, without any further delay after a decision is taken on the basis of the directions given above. The writ petition is disposed of with the above directions. (Sd/-) C.K.ABDUL REHIM, JUDGE. okb True copy P.A to Judge