IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 WP(C).No. 20022 of 2008(H) ----------------------------------------- PETITIONER(S): ------------------------- PRAKASH.N, 15310430H, NK/SK-II,GARRISON ENGINEER (AF), THURUVIKKAL P.O, PULAYANARKOTA, THIRUVANANTHAPURAM RESIDING AT PRAKASH BHAVAN, PRASANTH NAGAR, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM. BY ADV. SRI.K.T.SHYAMKUMAR RESPONDENT(S): ----------------------------- 1. UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF DEFENCE, CENTRAL SECRETARIAT, NEW DELHI. 2. BENGAL ENGINEER GROUP & CENTRE (RECORDS) ROORKEE.PIN:908779. 3. THE STATION COMMANDER, MILITARY STATION, PANGODE, THIRUVANANTHAPURAM. 4. GARRISON ENGINEER (AF), THURUVIKKAL P.O, PULAYANARKOTA, THIRUVANANTHAPURAM. 5. THE COMMANDING OFFICER, MILITARY HOSPITAL, PANGODE, THIRUVANANTHAPURAM. ADV. SRI.K.SANIL KUMAR, ADDL.CGSC FOR R1 TO 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20022/2008 H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE DISCHARGE SUMMARY ISSUED BY THE HEAD OF THE DEPARTMENT OF MEDICINE AND PULMONOLOGY, CHAF, BANGALORE. EXT.P2: COPY OF THE HOSPITAL DISCHARGE SLIPS ISSUED BY THE MILITARY HOSPITAL, THIRUVANANTHAPURAM ON 20/03/2008 AND 4/4/2008. EXT.P3: COPY OF APPLICATION DTD. 3/05/2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4: COPY OF REPLY DTD. 9/05/2008 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT. EXT.P5: COPY OF CERTIFICATE DTD. 2/06/2008 ISSUED BY THE ASSISTANT PROFESSOR OF MEDICINE, MEDICAL COLLEGE, THIRUVANANTHAPURAM. EXT.P6: COPY OF LETTER DTD. 3/06/2008 ADDRESSED TO THE 2ND RESPONDENT BY THE 4TH RESPONDENT. EXT.P7: COPY OF REPRESENTATION DTD. 14/06/2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P8: COPY OF OUTPATIENT CARD DTD. 14/06/2008 ISSUED BY THE MEDICAL COLLEGE, THIRUVANANTHAPURAM. EXT.P9: COPY OF FASTING BLOOD SUGAR COUNT ISSUED BY THE INDIAN INSTITUTE OF DIABETES. EXT.P10: COPY OF BLOOD SUGAR REPORT DTD. 4/10/2008 ISSUED BY THE ADVANCED CLINICAL & RESEARCH LABORATORY, THIRUVANANTHAPURAM. EXT.P11: COPY OF OUTPATIENT RECORD ISSUED BY THE MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM DTD.7/10/2008. EXT.P12: COPY OF DISCHARGE CARD ISSUED BY THE MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM. EXT.P13: COPY OF THE TREATMENT CERTIFICATE DTD. 18/10/2008 ISSUED BY THE PROFESSOR OF MEDICINE, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM. Kss ..2/- ...2...... WPC.NO.20022/2008 H RESPONDENT'S ANNEXURES: ANNEXURE R4(A): COPY OF THE LETTER NO.PF/NK/PN/TUE/EIM DTD. 07 OCT.2008 UNDERWHICH THE PETITIONER WAS ADVISED TO ATTEND THE OFFICE FOR UNDERGOING MEDICAL EXAMINATION FROM CLASSIFIED MEDICAL SPECIALIST. ANNEXURE R4(B): COPY OF MILITARY HOSPITAL TRIVANDRUM LETTER NO.200294/STATS/PC/2008 DTD. 08 OCT.2008 UNDERWHICH THE MEDICAL OFFICER IN CHARGE OF MH TRIVANDRUM OPINED THE PETITIONER IS MEDICALLY FIT TO TRAVEL TO ROORKEE. /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.20022 of 2008 ------------------------------- Dated this the 10th November, 2008. J U D G M E N T The petitioner entered service as Store Keeper (Technical) in the Core of Engineers, Madras, under the Madras Engineering Group Centre, Bangalore, on 11.9.1991. In September, 1999, he was transferred to the Military Engineer Services, Bengal Engineering Group II having its headquarters at Roorkee as Store Keeper Grade II. Later, the petitioner was shifted to Gandhinagar in Gujarat. While at Gandhinagar, the petitioner developed Pancreatitis as a result of which he became a chronic diabetic. He therefore sought a transfer to Thiruvananthapuram, his home town. That request was granted. As the illness of the petitioner aggravated, he was hospitalised from 8.3.2007 to 28.3.2007 at the Military Hospital, Thiruvananthapuram. Though he was discharged on 28.3.2007, he did not report for duty, since had had not fully recovered from W.P.(C) No.20022 of 2008 2 his illness. As the petitioner was unauthorisedly absent, the fourth respondent declared the petitioner as a Deserter and directed him to report at Roorkee for finalising the disciplinary proceedings. This was during March, 2008. On the way to Roorkee, the petitioner's illness aggravated and he was hospitalised as an inpatient at the Air Force Hospital, Bangalore, from 3.3.2008 to 16.3.2008. From there, he was shifted to the Military Hospital, Thiruvananthapuram, where he was treated as an inpatient from 16.3.2008 to 19.3.2008 and thereafter from 27.3.2008 to 4.4.2008. Exts.P1 and P2 are the discharge summaries issued from the Air Force Hospital, Bangalore, and the Military Hospital, Thiruvananthapuram, respectively. Exts.P1 and P2 disclose that the petitioner is not fit to continue in employment and that a Medical Board has to be constituted to invalidate him out of service. 2. After the petitioner was discharged from the Military Hospital at Thiruvananthapuram, he moved the Officer in W.P.(C) No.20022 of 2008 3 charge of Records, Bengal Engineer Group & Centre, Roorkee, in Ext.P3 representation dated 3.5.2008, to convene the Medical Board at the Military Hospital, Thiruvananthapuram. By Ext.P4 letter dated 9.5.2008, the fourth respondent informed the petitioner that his illegal absence has to be regularised before he is invalidated out of service and for that purpose, he has to be attached with a Combatant Unit for completion of the disciplinary proceedings. By Ext.P6 letter dated 3.6.2008, the fourth respondent directed the petitioner to report at Roorkee, for the purpose of completing the disciplinary proceedings. The petitioner thereupon submitted Ext.P7 representation to the second respondent requesting that on account of his illness and his inability to travel, he may be attached to the Unit at Thiruvananthapuram and proceedings completed at Thiruvananthapuram itself. Thereafter, this Writ Petition was filed seeking the following reliefs:- W.P.(C) No.20022 of 2008 4 i) Call for the records leading to the issuance of Exhibit P4 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction; ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to attach the petitioner to any of the units in Thiruvananthapuram under the 1st respondent and complete the proceedings for invalidating the petitioner out of service on medical grounds at Thiruvananthapuram considering the medical condition of the petitioner; iii) declare that the petitioner is entitled to have the proceedings for invalidating him out of service at Thiruvananthapuram wherein he was last posted and was continuing in service considering the health condition of the petitioner which has been certified by the 5th respondent; iv) issue a writ of mandamus or any other writ, order or direction directing the 2nd Respondent to take immediate action on Exhibit P7 representation submitted by the petitioner as expeditiously as possible at any rate within a time limit to be prescribed by this Honourable Court; W.P.(C) No.20022 of 2008 5 3. The learned counsel for the petitioner submits that the petitioner is not in a position to travel to Roorke, that the allegation against him is that he was authorisedly absent without leave, that no oral evidence is required to be adduced as the petitioner does not dispute the fact that he was absent, that as the enquiry does not involve examination of witnesses it can be had at Thiruvananthapuram and that the respondents would not, in any manner be prejudiced by holding the enquiry at Thiruvananthapuram. 4. The respondents resist the Writ Petition contending inter alia that the petitioner is bound to report at Roorkee, for the purpose of completing the disciplinary proceedings and that as a Deserter, the petitioner has to report at Roorkee for finalisation of the enquiry. It is stated that the question of invalidating the petitioner out of service on medical grounds can be considered only after disciplinary enquiry is over. W.P.(C) No.20022 of 2008 6 It is also stated that the fourth respondent is not competent to hold the enquiry or to invalidate the petitioner out of service. 5. Pursuant to the directions issued by this Court on 25.9.2008, the petitioner was subjected to medical examination by the fourth respondent at the Military Hospital, Thiruvananthapuram. After medical examination on 4.10.2008, the fourth respondent has filed a report to the effect that the petitioner whose blood sugar value is FBS: 212 mg/dl & PPBS : 328 mg/dl as per the blood biochemistry reports, is fit to travel by train to Roorkee to participate in the disciplinary proceedings. The petitioner has thereafter produced evidence to show that his blood sugar level as on 4.10.2008 was 358 mg/dl and 525 mg/dl, as against the normal range of 80-120 mg/dl. 6. The question whether an Assistant Sub Inspector of Police in the CRPF has to go over to Bihar for finalising the disciplinary proceedings against him was W.P.(C) No.20022 of 2008 7 considered by a learned Single Judge of this Court in W.P.(C) No.29105 of 2005, and by an order passed on 5.9.2008 in R.P.No.943 of 2008 in the said Writ Petition, this Court directed the authorities to appoint an enquiry officer in Kerala to conduct the enquiry and for that purpose, to transfer the files to Kerala. The said order was passed in a case where the employee who was medically fit was afraid to go to Bihar fearing harassment at the hands of his superiors. In the instant case, the petitioner is an accute diabetic who has been frequently hospitalised. His medical condition as per the records is unstable. The fact that he suffers from accute diabetes is not in dispute. The petitioner is being proceeded against for Desertion in the sense that he was unauthorisedly absent from duty, after the expiry of the leave. The petitioner does not dispute the fact that he has not reported for duty after the expiry of the leave. In such circumstances, no oral evidence regarding the petitioner's absence from duty is required to be collected in the enquiry. The question whether the W.P.(C) No.20022 of 2008 8 petitioner is guilty of desertion or not can be decided with reference to the records including the statement made by the petitioner. All that is required is that an enquiry should be held and there is no reason why it cannot be held at Thiruvananthapuram where the fourth respondent's establishment is situated. On the short ground that the fourth respondent is not competent to initiate disciplinary action against the petitioner or to invalidate him out of service, it will be grossly unjust to direct the petitioner who is sick, to report at Roorkee and face the disciplinary action. Having regard to the above facts, I direct respondents 1 to 3 to appoint an Enquiry Officer to hold the enquiry in the office of the fourth respondent at Thiruvananthapuram. For that purpose, the records shall be transferred to the fourth respondent or entrusted with the Enquiry Officer. The petitioner shall co-operate with the enquiry. Needful in the matter shall be done and the disciplinary W.P.(C) No.20022 of 2008 9 proceedings completed within six months from today. The question of invalidating the petitioner out of service on medical grounds shall also be considered by the respondents simultaneously or immediately after the conclusion of the disciplinary action. P.N.RAVINDRAN, JUDGE nj.