IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 39424 of 2003(R) -------------------------- PETITIONER(S): --------------- N.ANIRUDHAN, EX.MLA., ARUNIMA, THAZHAM, CHATHANOOR P.O., KOLLAM DISTRICT. BY ADV. SRI.R.ANILKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA UNIVERSITY,REPRESENTED BY REGISTRAR, UNIVERSITY OFFICE, THIRUVANANTHAPURAM. 3. PRINCIPAL, T.D.MEDICAL COLLEGE, ALAPPUZHA. 4. DR.DALIS, CHIEF EXAMINER, FINAL YEAR MBBS CLINICAL EXAMINATION, DURING 2000-2002 KERALA UNIVERSITY ASSOCIATE PROFESSOR, T.D.MEDICAL COLLEGE, ALAPPUZHA. 5. DR.RAMAKRISHNAN, EXTERNAL EXAMINER, RESIDING AT PADMASREE, POTHUGANAM LANE, KUMARAPURAM, THIRUVANANTHAPURAM. 6. DR.SUJATHAN, INTERNAL EXAMINER, PROFESSOR OF MEDICINE, MEDICAL COLLEGE, KOTTAYAM. ADV. SRI.M.K.CHANDRAMOHAN DAS,SC,KERALA UTY. FOR R2 SRI.T.G.RAJENDRAN FOR R6 SRI.RAM MOHAN.G. FOR R5 SRI.G.P.SHINOD FOR R5 SRI.MANU V. FOR R5 GOVERNMENT PLEADER SRI. I.V. PRAMOD FOR R1 SRI.S.GOPAKUMARAN NAIR, SC KERALA UTY. FOR R2 SRI.R.S.KALKURA FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1. True photocopy of the Mark list in the Pre-degree examination of 1995 March is produced. Ext.P2. The true photocopy of the mark list for the examination August 1998 dated 17.10.1998. Ext.P2(a) True photocopy of the mark list for the examinations February, 2000. Ext.P2(b) True photocopy of the Mark list for the examination January, 2001 dated 4.1.2002. Ext.P2(c). True photocopy of the Mark list for the examination January, 2002 dated nil Ext.P3. True copy of the report filed in the enquiry in to the alleged irregularities filed by syndicate of Kerala University, Ext.P4. The true photocopy of the representation forwarded to the Kerala Legislative Assembly petition committee on 10.5.2002. Ext.P4(a) True photocopy of the representation forwarded to the Kerala Chief Minister dated 18.2.2003. Ext.P5. True copy of the enquiry report of the petition committee of Legislative Assembly submitted o 20th June, 2003. Ext.P6 True copy of the notice sent to the respondents on 20.3.2003. Ext.P7. True copy of the reply notice sent by 4th respondent on 21.5.2003. Ext.P7(a) True photocopy of the reply notice sent by 6th respondent on 15.5.2003. Ext.P7(b) True copy of the reply notice sent by 2nd respondent on 26.5.2003,. // true copy// P.A to Judge ANTONY DOMINIC,J. --------------------- W.P.(C).No.39424 OF 2003 ------------------------ Dated this the 5th day of June, 2009. JUDGMENT Petitioner's son Late A.S. Aneesh was a final year medical student in the T.D. Medical College, Alappuzha, during the academic year 2001-02. Exts.P1 and P2, the academic records of the student, show that he was a brilliant student. It is stated that on 3.4.2002, in the morning he appeared for the Medicine Practical Clinical Examination. He did not appear for the oral examination in the evening on 3.4.2004 and was found missing. Thereafter, on 7.4.2002, he was found dead in a lodge at Ukkadam, Coimbatore. A case of unnatural death was also registered as Crime No.129/02 in the South Police Station, Alappuzha. 2. Meanwhile, the petitioner, father of the deceased student, complained to the authorities, alleging harassment WP(c).No.39424/03 2 by the 5th respondent herein, an External Examiner. On the complaint made by the petitioner, an enquiry was ordered and Ext.P3 is the report submitted by the Enquiry Committee. It is stated in Ext.P3 that, during the enquiry, the committee has recorded the statement of the 6th respondent that the deceased was harassed by the 5th respondent during the Clinical Examination. However, the committee itself has recorded that, at a later stage of the proceedings the 6th respondent had changed his stand. Be that as it may, the report concludes by saying that further enquiry is warranted in the case. 3. On the complaint made by the petitioner to the Petition Committee of the Kerala Legislative Assembly, action was initiated and Ext.P5 is the report of the Committee, where the Committee apparently came to the assessment that respondents 5 and 6 had harassed the deceased and that lead to his suicide. WP(c).No.39424/03 3 4. In Exts.P3 and P5, the fact that the 5th respondent was absent during the enquiry has been commented upon. Similarly, comments have also been made against the change in the stand adopted by the 6th respondent, in as much as though initially he had accused the 5th respondent of having harassed the deceased, he had later changed his stand to the contrary. Relying on Exts.P3 and P5 report, Ext.P6 notice was issued on behalf of the petitioner claiming damages of Rs.20 lakhs from respondents 5 and 6. The claim was disputed by the replies sent by the parties and it was thereupon that this writ petition was filed with the following prayers. “(a) to issue a writ of mandamus or other appropriate writ, direction or order declaring that the respondents five and six had committed constitutional tort by harassing the petitioner's son at the examination hall which lead to the end of his life and the respondents are liable compensation the petitioner Rs.50 lakhs (fifty lakhs) under various heads jointly and severally with interest at the rate of Rs.18% from 3.4.2002 till the date of realization with the costs of this proceedings. (b) to issue such other writ, direction or order which deem fit for the facts ad circumstance of the case declaring that petitioner is entitled to WP(c).No.39424/03 4 exemplary costs of Rs.50,00,000/-(fifty lakhs only) as compensation for the damage due to the loss of his son due to the harassment and ill treatment done by fifth and sixth respondents against the sons of petitioner who are employed by Ist and 2nd respondents to supervise examinations.” 5. Respondents 5 and 6 have filed separate counter affidavits. In so far as the 5th respondent is concerned, he admits that he was appointed as an External Examiner for the examination held on 3.4.2002. It is stated that the practical examination was conducted in the forenoon of 3.4.2002 and that the oral examination was held in the afternoon and that, as in the case of other students, the clinical examination of the deceased was completed in 15-20 minutes. It is stated that the deceased did not appear for the oral examination in the afternoon. He says that, in both the enquiries leading to Exts.P3 and P5, he was not issued any notice. It is stated that the suicide committed by the petitioner's son was not attributable to his conduct or harassment, although it was an unfortunate incident. WP(c).No.39424/03 5 6. The 6th respondent in its counter affidavit has also disputed the allegation of the petitioner. He does not admit that, it was on account of any harassment that the son of the petitioner had committed suicide. 7. True the deceased son of the petitioner was a brilliant student and it was unfortunate that he had chosen to take his life. However, when the petitioner has raised a claim for damages, it is incumbent on him to provide the materials to establish that it was due to the harassment at the hands of respondents 5 or 6 or both of them that the deceased had chosen to commit suicide. The only materials that are available before this court are Exts.P3 and P5. Both these reports, going by the uncontroverted averments in the counter affidavit filed by the respondent Nos.5 and 6, were without notice and their absence during the enquiry is mentioned in the reports. The findings in the report also cannot be held to be conclusive and on the other hand Ext.P3 recommends further enquiry. WP(c).No.39424/03 6 8. Therefore, this court will not be justified in acting entirely on the report and come to the conclusion that it was on account of the harassment of respondents 5 or 6 or both, that the petitioner's son had committed suicide and fasten liability for the damages on the aforesaid persons. Except in the absence of conclusive materials in this behalf, a court of law will not be justified in acting upon the reports and ordered damages. Therefore, on the materials produced in this case, I am not in a position to grant any relief to the petitioner. Therefore, this writ petition will stand dismissed and I do so. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.39424/03 7