J. Alby v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 OP.No. 17373 of 1999(R) ----------------------- PETITIONER(S): - --------------- - J. ALBY, DRIVER HC 4112, ARMED RESERVE, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR RESPONDENT(S): - --------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, KERALA, THIRUVANANTHAPURAM. 3. DEPUTY COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY. GOVERNMENT PLEADER SRI. M.R. SABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT, ON 5/12/2008, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 17373/1999. ---------------------------------------------------------------- EXT.P1 TRUE COPY OF MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DT. 30-11-1994. EXT.P2 EXPLANATION DT. 1-12-1994. EXT.P3 PASSPORT DT. 6-11-1993. EXT.P4 MEDICAL CERTIFICATE DT. 6-11-1993. EXT.P5 P.T. MINUTES DT. 13-12-1993. EXT.P6 ORDER DT. 24-7-1997. EXT.P7 APPEAL DT. 26-9-1997. EXT.P8 ORDER DT. 13-2-1998. EXT.P9 PETITION FILED BEFORE R1. EXT.P10 ORDER DT. 7-12-1998. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. **==> picture [255 x 51] intentionally omitted <==** **==> picture [102 x 12] intentionally omitted <==** A police driver of the Armed Reserve Police, Thiruvananthapuram city has come up with this original petition challenging the order imposing on him the punishment of barring of increment for three years with cumulative effect, for the misconduct of having presented himself before a doctor reporting sickness in an inebriated condition and for having erased entries made by the doctor to that effect in the sick register tampering with the same as also the orders rejecting the appeal and revision petition filed by him against the order of punishment. Ext. P6 is the order of punishment, Ext. P8 is the order in appeal and Ext. P10 is the order in review which are under challenge in this original petition. The facts necessary for disposal of the original petition are as under: 2. On 6-11-1993, at 12 noon, the petitioner reported sick before the Camp Duty Officer. The Camp Duty Officer directed the petitioner to the City Police hospital along with sick passport and sick register. However, contrary to the direction of the Camp Duty Officer, the petitioner went to the General Hospital. On that day, the Government doctors were on strike and the doctor from the Pangode Military camp was deputed for duty in the General Hospital before whom the petitioner presented himself. The doctor examined the petitioner and endorsed in the sick register that the petitioner reported with giddiness and body pain, at which time he was smelling of alcohol, was incoherent in speech and was found drunk. Thereafter, the doctor advised the petitioner to take duty rest for a week. However, the petitioner erased the said endorsement from the sick register and reported to the Police Hospital on the same day and obtained another medical certificate from the doctor of the Police Hospital. Thereafter, without the knowledge or permission from his O.P. No. 17373/1999 -: 2 :- superior officer, the petitioner unauthorisedly purported to go on leave. On the above allegations, Ext. P1 memo of charges was issued to the petitioner. An enquiry was conducted. By Ext. P5 Punishment Roll, which contains the finding of the enquiry officer, it was found that the petitioner was guilty of the misconducts alleged, based on which Ext. P6 order of punishment of barring of his next increment for three years with cumulative effect was imposed on the petitioner, by the 3[rd] respondent. Ext. P7 appeal filed by the petitioner was rejected by the 2[nd] respondent by Ext. P8 order. Ext. P9 review filed by the petitioner before the Government also met with the same fate, by Ext. P10 order. It is under the said circumstances the petitioner has approached this Court challenging Exts.P6, P8 and P10 orders. 3. The petitioner raises three contentions. The first is that the enquiry was conducted in violation of the principles of natural justice in so far as neither the doctor of the General Hospital nor the doctor of the Police Hospital was examined, despite a specific request for the same in Ext. P2 reply to the charge memo submitted by him. Further copy of the punishment roll minutes (P.R. Minutes) was not served on the petitioner. Secondly, there was no reliable evidence in the enquiry to find the petitioner guilty of the misconducts and the P.R minutes were full of contradictions. Thirdly, the appellate and revisional orders are non-speaking orders, which did not specifically refer to the various contentions raised by the petitioner in his appeal and review petitions. 4. The contentions of the petitioner are opposed by the learned Government Pleader on the strength of a counter affidavit filed in this case. According to the learned Government Pleader, the petitioner was given every opportunity to defend himself in the enquiry conducted in which the petitioner fully participated. In accordance with the request in the reply statement, after the evidence of the O.P. No. 17373/1999 -: 3 :- prosecution was over, the petitioner was specifically asked whether he wants to examine any witnesses or produce any documents. The petitioner only wanted to produce the sick passport, medical certificate and fitness certificate obtained from the Police doctor and the receipt obtained from the post office for sending the medical certificate by registered post as documents and on a specific question by the enquiry officer to the petitioner as to whether he wants to say anything further in the enquiry, he categorically replied that he does not want to say anything further. That being so, the contention of the petitioner that he was not afforded an opportunity to examine the doctors is clearly without any basis. He also points out that there is no merit in the contention of the petitioner that he was not served with a copy of the P.R Minutes. Neither in Ext. P7 appeal filed by the petitioner before the 2[nd] respondent nor in Ext. P9 review petition before the 1[st] respondent has the petitioner taken a contention that he was not served with a copy of the P.R Minutes (which is the enquiry report). Further, he points out that in Ext. P7 appeal filed before the 2[nd] respondent , he elaborately quotes from the P.R Minutes to try to point out contradictions in the enquiry report, which would go to show that he was in possession of a copy of the enquiry report even before the punishment was imposed on him. 5. Regarding the question of sufficiency of evidence raised by the petitioner, the learned Government Pleader points out that the doctor who was on duty in the General Hospital on the particular day has issued a certificate dated 17-11-1993 to the effect that he had examined the petitioner on 6-11-1993 complaining of giddiness with body pain and he was smelling of alcohol, was incoherent in speech and found drunk. He has categorically stated in the certificate that he was smelling of alcohol and advised exemption from driving duty for one week. Thereafter, Inspector Sivarajan had produced the sick O.P. No. 17373/1999 -: 4 :- register before him and the doctor had, in his certificate dated 17-111993, stated that the same was the sick register presented by the petitioner on 6-11-1993 and the entries made by the doctor has been erased and tampered with. This is more than sufficient evidence to prove the guilt of the petitioner beyond any reasonable doubt and therefore the contention raised by the petitioner that there was no evidence to find the petitioner guilty is unsustainable. Regarding the third contention, the learned Government Pleader submits that as stated in Ext. P8 itself, the appellate authority has gone through the entire P.R minutes and did not find any merit in any of the contentions of the petitioner and simply because the appellate authority had not in his order dealt with each and every contention of the petitioner, the same does not become any the less sustainable. He further points out that in any event, in Ext. P10 order of the Government, the contentions of the petitioner had been specifically detailed and ultimately it was held that there was no merit in any of those contentions, which is a speaking order. 6. I have considered the rival contentions in detail. 7. The incident was in 1993. The punishment was imposed on 1997. The original petition was filed in 1999 which is being heard in 2008. Therefore, even assuming that the appellate authority had not given elaborate reasons for rejecting the petitioner's appeal, instead of remanding the matter for fresh consideration by the appellate authority, I decided to hear all the arguments of the petitioner on merits and accordingly learned counsel for the petitioner was asked to advance arguments on merits also and he had advanced elaborate arguments on all contentions raised by the petitioner. 8. The first contention is regarding violation of principles of natural justice on the ground that the petitioner was not given an opportunity to examine the doctor who is alleged to have examined O.P. No. 17373/1999 -: 5 :- the petitioner at the General Hospital and the doctor of the Police hospital. Admittedly, the petitioner did not make any request before the enquiry officer for examination of the doctors. What he relies on is a sentence in Ext. P2 reply to the charge memo filed. In Ext. P2, what he has requested for is that Sri. Britto Muthunayakam, the doctor of the Police Hospital may also be examined to prove the innocence of the petitioner. He did not at any time ask for examination of the military doctor, who was on duty at the General Hospital on 6-11-1992, although the certificate issued by the doctor was produced in evidence. I have perused the file No. H1/63878/1993 of the City Police relating to the disciplinary action against the petitioner which contains the entire enquiry proceedings, which was produced as directed by me. In page 29 of the same, I find that after reading out the charge sheet, the enquiry officer asked the petitioner as to whether before starting oral enquiry he has anything to state. He said that before starting oral enquiry he has nothing to state. After prosecution witnesses were examined, he was again asked as to whether he has any witnesses or documents to be produced. He replied that photo copies of passport, medical certificate, fitness certificate and registration slip have been produced. Again, after his evidence and marking of documents were over, the enquiry officer again asked him whether he has anything further to state and he was told that he can also file argument notes. He specifically answered that he has nothing else to produce. Nothing prevented the petitioner from requesting the enquiry officer to examine the doctor who was on duty at the General Hospital on the relevant date or the doctor of the Police Hospital. That being so, I do not think that the petitioner can complain of violation of principles of natural justice on the ground that those doctors were not examined in the enquiry. 9. The petitioner relies on several decisions of the Supreme O.P. No. 17373/1999 -: 6 :- Court in the matter of necessity to supply the delinquent with information which has been relied on to find the delinquent guilty of misconducts, which are **State of Mysore & Ors** . v. **Shivabasappa Shivappa Makapur** , AIR 1963 SC 375, **Sawai Singh** v. **State of Rajasthan** , AIR 1986 SC 995, **Narinder Mohan Arya** v. **United India Insurance Co. Ltd. and others** , (2006) 4 SCC 713 and **Steel Authority of India Limited** v. **Sales Tax Officer, Rourkelai Circle and others** , (2008) 9 SCC 407. Nobody can quarrel with the legal propositions in those decisions. But, that does not mean that those decisions are applicable in the petitioner's case. The petitioner's contention is that he has not been given an opportunity to defend himself in the enquiry. Here, he has been given every opportunity to defend himself. Now he raises a contention that he was not given an opportunity to examine those doctors. I do not find any such contention in Exts.P7 and P9 appeal and review petitions, respectively, filed by the petitioner. Before the enquiry officer also, he neither requested for examination of those doctors as witnesses nor has he complained that he was not given an opportunity to examine those doctors. In spite of specific questions asked by the enquiry officer to the petitioner as to whether he wants to adduce any further evidence or wants to state anything else, the petitioner did not want to either examine any witnesses or to state anything further. That being so, it is too late in the day for the petitioner to contend that he has not been offered sufficient opportunity to prove his innocence. 10. Regarding the sufficiency of the evidence in the enquiry, I have gone through the entire records of the enquiry officer. The same contains a certificate issued by Dr. B.S. Ramnath, doctor of the Military Hospital, Pangode, which is filed at page 79 of the file produced before me. The certificate reads thus: O.P. No. 17373/1999 -: 7 :- “This is to certify that I was sent to General Hospital, Trivandrum on 6-11-1993 to look after the patients since the doctors of the State medical service were on strike. I was deputed by the Army Camp, Pangode. I have examined Hav. Driver T.4112 J. Albi on 6-11-1993. He had reported with C/o giddiness with bodypain (asthalya). This patient was smelling of alcohol & was in-coherent in speech & found drunk. In my notes, I had written that he was smelling of alcohol & also advised excuse driving duty for 1 week. The book now produced by Inspector SIVARAJAN was the same sick register. That Mr. ALBI has presented on 6-11-93 & now it is seen that the entries made by me has been erased & tampered.” Apart from the blank denial that the petitioner did not go to the General Hospital, he has not taken any steps to disprove the said certificate. The contention of the petitioner is that somebody else in order to make out a case against the petitioner, deliberately took the sick register to the General Hospital, got the endorsement from the doctor and concocted the files against the petitioner. That means that the petitioner does not dispute the certificate of the doctor at all. What he says is that somebody else has done it. Such a situation is beyond all probabilities. Perhaps, in a criminal case, the petitioner would have succeeded in that defence in so far as the degree of proof necessary in a criminal case is proof beyond reasonable doubt. But, in disciplinary enquiries, it is settled law that even hearsay evidence is good evidence. Here, a doctor of the General Hospital, that too, a military doctor, who was deputed for duty at the General Hospital on account of the strike of the doctors there, has categorically certified that while he examined the petitioner on 6-111993, the petitioner was smelling of alcohol, was incoherent in speech and was found drunk, which facts were endorsed by him in the sick register, which was later found to be erased and tampered with, on production of the same before him by the concerned Inspector subsequently. There is no reason to disbelieve the said O.P. No. 17373/1999 -: 8 :- certificate or the case of the prosecution. The possession of the sick register by the petitioner was also proved by examining witnesses who had direct knowledge about the same, which would prove that he had opportunity to tamper with the same. The degree of proof necessary in disciplinary enquiries is far less than those in criminal cases and even in civil cases. All material which would appeal to a reasonable man would be admissible in a disciplinary enquiry and the same would be sufficient proof of misconduct. The above evidence of the doctor himself is more than sufficient to find the petitioner guilty of the misconduct alleged against him. It is settled law that in challenge against disciplinary enquiries, sufficiency of evidence is not a matter which this Court can look into, if there is some evidence which would appeal to a reasonable man, if the conclusion is not totally perverse. On a consideration of the evidence adduced in the enquiry, I have no reason to find any perversity in the findings of the enquiring authority, which is based on the evidence on record. Therefore, I do not find any merit in the contention of the petitioner that there was no sufficient evidence before the enquiry officer to find the petitioner guilty of the misconducts alleged against him. 11. The next contention of the petitioner is that he was not served with a copy of the report of the enquiry officer before he was imposed with the punishment. In Ext. P7 appeal and Ext. P9 review petition, he has no such case. On the other hand, in Ext. P7 appeal memorandum, the petitioner has referred to the enquiry report in various places and attempted to make out several contradictions in the conclusions of the enquiry officer. That very well proves that the petitioner was in possession of a copy of the enquiry report. That being so, I do not find any merit whatsoever in that contention also. 12. The last contention is as to whether the proceedings of the appellate authority and the revisional authority are vitiated for want O.P. No. 17373/1999 -: 9 :- of application of mind. Although, they have not elaborately dealt with each and every contention of the petitioner, it cannot be said that they had not applied their mind. In any event, since I had considered the contention of the petitioner on the sufficiency of evidence also and had considered all his contentions, I do not think that even if the contention of the petitioner regarding non-application of mind by the appellate and revisional authority is correct the matter should be remanded to the appellate authority for fresh consideration after 15 years of the incident. For the above said reasons, I do not find any merit in the contentions of the petitioner in the original petition. Accordingly, the original petition is dismissed. S. Siri Jagan, Judge. Tds/ O.P. No. 17373/1999 -: 10 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 17373 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T December, 2008.