IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 OP.No. 27278 of 2000(V) ----------------------- PETITIONER(S): --------------- P. KAMALAM, NURSING SUPERINTENDENT GR.II, GOVT. HOSPITAL, KOZHIMJAMPARA, CHITTUR TALUK, PALAKKAD. BY ADV. SRI.H.BADARUDDIN RESPONDENT(S): --------------- 1. STATE OF KERALA,REP. BY THE PRINCIPAL SECRETARY TO GOVT. HEALTH & F.W.(C) DEPARTMENT, GOVT, OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL SERVICES (MEDICAL), THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER (HEALTH), PALAKKAD. GOVERNMENT PLEADER SRI. M.R. SABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 27278/2000. ---------------------------------------------------------------- EXT.P1 TRUE COPY OF SHOW CAUSE NOTICE DT. 10-12-1996. EXT.P2 REPLY DT. 16-1-1997. EXT.P3 ORDER DT. 23-9-1997. EXT.P4 APPEAL DT. 11.11.1997. EXT.P5 JUDGMENT IN O.P.NO. 1341/2000. EXT.P6 NOTES OF ARGUMENT DT. 26-6-2000. EXT.P7 ORDER DT. 28-6-2000. EXT.P8 TRUE COPY OF CITATION. EXT.P9 CETIFICATE DT. 27-12-1999. EXT.P10 CERTIFICATE DT. 21-6-2000. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 27278 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st October, 2008. J U D G M E N T The petitioner was a Nursing Superintendent Grade II working in the Government Hospital, Kozhimjampara, in Palakkad District at the time of filing of the original petition. In respect of a complaint regarding the death of a child patient in the hospital where she was working at the relevant time, disciplinary proceedings were initiated against the petitioner on allegations of dereliction of duty, for imposition of a major penalty, under Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules. After the petitioner filed her written statement of defence, taking a lenient view, it was decided to proceed for imposition of the minor punishment of barring of one increment with cumulative effect. Accordingly, Ext. P1 show cause notice was issued to the petitioner directing her to show cause why the said punishment should not be imposed on her. She filed Ext. P. 2 reply. However, by Ext. P. 3, barring of increment with cumulative effect was imposed on the petitioner. The petitioner filed Ext. P. 4 appeal before the Government. Pursuant to the direction in Ext. P. 5 judgment, the Government considered the appeal and passed Ext. P. 7 order rejecting the appeal. The petitioner is challenging Exts. P. 3 and P7 orders in this original petition. The petitioner raises several grounds, including that of violation of principles of natural justice, non- application of mind and lack of evidence to prove the misconduct alleged against her. 2. The Government Pleader supports Exts. P3 and P7 orders with the help of a counter affidavit filed on behalf of the 1st respondent. 3. I have considered the rival contentions in detail. 4. Ext. P3 order reads thus: O.P No.27278/2000.. -: 2 :- “Based on the complaint received from Shri. Janardhanan about the death of his son, an enquiry was conducted by the Addl. Director of Health Services (Vigilance) and revealed that she has committed the offence of negligence and grave dereliction of duty and hence she was charge sheeted vide memo of charges read as first above. Accordingly, she had submitted her statement of defence read as second above have been examined in detail with relevant records and found not to be acceptable and hence a show cause notice have been served to her vide read as third above, proposing a minor punishment of barring of increment with cumulative effect. In view of the explanation submitted by her vide letter read as fourth above the punishment of barring of one increment with cumulative effect proposed is hereby confirmed.” 5. Ext. P7 order reads thus: “With reference to the Judgment cited the High Court has directed to consider and pass orders on Ext. P4 representation within 3 months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. Accordingly, Smt. P. Kamalam was heard in person by the Joint Secretary, Health & Family Welfare Department on 26.6.2000. She has not adduced any new points proving/supporting her innocence. The points raised by her had already been examined in detail before finalising the disciplinary action by the Director of health Services. More over in all the three departmental enquiries she was given every chance to cross examine the complainant and the witnesses, but she did not accede to. All the procedure under Kerala Civil Services (Classification, Control and Appeal) Rules were observed in this case and the order dated 23-9-1997 of the Director of Health Services awarding the punishment is genuine in facts and law. Being a Public Servant, you are liable to discharge your duties most cautiously and in this particular case the unwarranted negligence on your part denied chances to save the life of a child. In view of the above your request is declined.” 6. In Exts.P 3 and P7 orders, there is not even any mention about the misconduct which the petitioner is found guilty of. There is absolutely no mention as to how the petitioner is found guilty of the misconduct or the materials based on which the finding of guilt was arrived at. There is no discussion as to why the explanation submitted by the petitioner or the grounds raised by her in her appeal are not sustainable. As such, I am satisfied that Exts.P3 and P7 orders are O.P No.27278/2000.. -: 3 :- violative of principles of natural justice in so far as those orders on the face of it, do not show that the disciplinary and appellate authorities had considered the contentions raised by the petitioner. Without a speaking order, Ext. P.3 does not conform to the requirements of Rule 16 of the Kerala Civil Services (Classification, Control & Appeal) Rules. So also, in Ext. P. 7 there is no consideration of any of the grounds raised by the petitioner in her appeal. That being so, Ext. P. 7 is also unsustainable. Accordingly, Exts.P3 and P7 orders are quashed. It would be open to the 2nd respondent to pass fresh orders after specifically adverting to the misconducts alleged against the petitioner and the materials on which she is to be found guilty of those misconducts, if she is so guilty. In such orders the explanation submitted by the petitioner shall be specifically dealt with and reasons must be stated as to why they are not acceptable. The original petition is allowed as above. S. Siri Jagan, Judge. Tds/ O.P No.27278/2000.. -: 4 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 27278 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 21st October, 2008.