K. Balakrishnan v State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 OP(KAT) NO. 366 OF 2023** ## **PETITIONER:** K. BALAKRISHNAN, AGED 60 YEARS S/O T. KRISHNAN NAIR, SENIOR CLERK (RETIRED), COMMUNITY HEALTH CENTRE, MELATTUR, MALAPPURAM DISTRICT, PIN- 679 325. RESIDING AT GEETHA QUARTERS, CHERANI, KARUVAMBRAM P.O., MALAPPURAM DISTRICT, PIN- 676 123 ,(NOW RESIDING AT 'THIRUVONAM', BEHIND VILLAGE OFFICE, KARIKKAD, THRIKKALANGODE, MALAPPURAM DISTRICT., PIN - 676123 BY ADVS. P.SAMSUDIN MILAN RACHEL MATHEW NASRIN WAHAB ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE DIRECTOR OF HEALTH SERVICES, OFFICE OF THE DIRECTOR OF HEALTH SERVICES, TRIVANDRUM, PIN - 695001 3 THE DISTRICT MEDICAL OFFICER FOR HEALTH, MALAPPURAM, PIN - 676505 4 THE SENIOR ADMINISTRATIVE OFFICER, OFFICE OF THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM, PIN - 695001 BY SR.GOVT.PLEADER SRI.SAIGY JACOB PALATTY **THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP FOR ADMISSION ON 25.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P.(KAT) NO.366 OF 2023** :-2-: ## **A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.** **-----------------------------------------O.P.(KAT) NO.366 OF 2023 'C.R' -----------------------------------------Dated this the 25[th] day of October, 2023** **J U D G M E N T** ## **SHOBA ANNAMMA EAPEN,J:** **This OP(KAT) is filed by the petitioner, who is the applicant in OA(EKM) No.258 of 2017 before the Kerala Administrative Tribunal, Thiruvananthapuram [Additional Bench, Ernakulam) [for short 'the Tribunal'].** **2. The petitioner is aggrieved by the order of the Tribunal dismissing the original application, holding that the disciplinary proceedings initiated against him do not call for any interference. The petitioner, a Senior Clerk in the Department of Health Services, retired from service on 31.12.2016. Disciplinary proceedings were initiated against him which culminated in the imposition of punishment of** ## **O.P.(KAT) NO.366 OF 2023** :-3-: **barring of one increment without cumulative effect for one year.** **3. The petitioner, while working as Upper Division Clerk in the Taluk Headquarters Hospital, Ponnani, was suspended from service alleging insubordination, misconduct and dereliction of duty. The petitioner was issued Annexure A1 memo of charges dated 04.03.2013. Though the petitioner submitted his written statement of defence and reply to the memo of charges, without properly appreciating the defence of the appellant, punishment of barring of one increment for one year was imposed on the petitioner without cumulative effect and the period of suspension was treated as eligible leave. The Tribunal dismissed the original application.** **4. Heard the learned counsel for the petitioner and the learned Senior Government Pleader.** **5. The arguments of the learned counsel for the petitioner are as follows:-** ## **O.P.(KAT) NO.366 OF 2023** :-4-: **Earlier, the petitioner had sought information from the State Public Information Officer, Manjeri namely Dr.P.N.Remani, about the staff pattern of clerks and 9 other information. It is also submitted that the Information Officer refused to answer many questions. The petitioner filed an appeal before the appellate authority, which also happened to be the very same officer, who refused to answer the questions sought for by the petitioner. The appeal was dismissed against which the second appeal was filed before the State Information Commission. In the second appeal, the State Information Commission found that there was a delay in providing information to the petitioner by the State Public Information Officer viz., Dr.P.N.Remani, evidenced by Ext.P7. The Commission directed to give the information and also ordered to seek an explanation from the Information Officer. It is the very same State Public Information Officer, who was the enquiry officer in the complaint raised against the petitioner to enquire into the allegations** ## **O.P.(KAT) NO.366 OF 2023** :-5-: **against the petitioner and hence, the learned counsel for the petitioner submits that the enquiry officer is highly prejudicial and biased to the petitioner for the above reasons. The Counsel further submits that punishment is imposed against the petitioner with ulterior motives and these aspects were not brought to the notice of the Tribunal. The Tribunal without hearing the counsel for the petitioner, on mere appraisal of reply statement, dismissed the original application and hence the order of the Tribunal is liable to be set aside.** **6. The case of the respondents is that the stubborn nature and adamant attitude of the petitioner caused administrative inconvenience in the department, and he insulted and behaved indecently towards higher officers. It is also submitted by respondents that in the year 2010, a complaint was received from the Superintendent of Medical College, Calicut and an enquiry was ordered into the complaint, during the enquiry, the petitioner misbehaved towards the enquiry** ## **O.P.(KAT) NO.366 OF 2023** **officer, who is the Additional Director (Vigilance) and the petitioner left the premises without permission and hence, there was misconduct and dereliction of duty on the part of the petitioner and the Tribunal was justified in dismissing the original application.** **7. In order to appreciate the rival contentions, it is necessary to extract the relevant** **portion of Ext.P7 order, passed by the State Information Commission, Kerala, which reads as** **follows:** _“7. The Commission posted the case for hearing on 5.11.2009. The appellant, Sri.K.Balakrishnan was not present. Dr.Bhagyalekkshmi, Civil Surgeon and State Public Information Officer, District Hospital, Manjeri was present. She was heard. She submitted that Dr. P.N. Ramani was the State Public Information & Superintendent, District Hospital, Manjeri during the relevant period. It was she who provided the information to the appellant on 19-8-2008. Dr.P.N.Ramani was acting as Appellate Authority also during that period. Smt.Bhagyalekshmi also submitted that she joined duty only on 5.3.2009._ _8. In this case, the Commission observed that the information for the RTI application dated 12-6-2008 was provided only on 19-8-2008. Hence, there was delay in providing the information. The information on item Nos.6.7 and 8 of his request was not provided also._ _9. Hence, the Commission order that all the information on item Nos.6,7 and 8 of the request of the appellant should be provided to him within 7 days, free of cost, and report compliance to Commission. As_ ## **O.P.(KAT) NO.366 OF 2023** :-7-: _there was delay in providing the information, notice u/s.20(1) should be issued to the then State Public Information Officer Dr.P.N.Ramani, Superintendent, District Hospital, Manjeri asking her to furnish her explanation within 7 days of receipt of this notice.”_ **Admittedly,the disciplinary proceedings were initiated against the petitioner on the basis of the enquiry report filed by the said Additional Director (Vigilance), who was none other than the very same officer, the State Public Information Officer. Though in the appeal and review, the petitioner had raised a contention that the enquiry officer in the disciplinary proceedings was the very same officer, against whom the State Information Commission has passed an order, against the complaint raised by the petitioner, the said aspect was not considered by the appellate authority as well as the revisional authority. It was found by the Tribunal that the petitioner misbehaved with the Additional Director (Vigilance), who was entrusted with the enquiry into the alleged misconduct of the applicant at the Office of the Superintendent of Government Medical College,** ## **O.P.(KAT) NO.366 OF 2023** :-8-: **Kozhikode. The finding of the Tribunal that the Additional Director (Vigilance) was neither the disciplinary authority nor the Enquiry Officer in the disciplinary proceedings initiated against the** **applicant by Annexure A1 memo of charges is incorrect. It is clear from Ext.P7 that it is the very same officer against whom the State Information Commission had asked for an explanation on the complaint filed by the petitioner. It cannot be said that the enquiry conducted by the enquiry officer in a proceeding initiated against the petitioner was without any bias and prejudice. An enquiry officer should be free from all bias. The requirement of natural justice is that an enquiry officer should be independent, impartial, fair and objective** . **A person with a foreclosed mind or a person who has prejudged on the issue or predetermined to punish the delinquent should not act as an enquiry officer. In this case, it cannot be said that the** ## **O.P.(KAT) NO.366 OF 2023** :-9-: **enquiry officer acted in good faith and without any bias.** ## **8. In the decision reported in Ranjit Thakur v.** **Union of India and others [1987 KHC 1117], it was held by the Apex Court that as to the tests of the likelihood of bias, what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. It was further held as follows:-** _“...........The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly “am I biased?”, but to look at the mind of the party before him. ….................. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was an impartial as could be nevertheless if right minded persons would think that in the circumstances, there was a real likelihood of bias on his part, then it is proper that he should not …...”_ **9. The deciding authority must be impartial and without bias. It has been held by the Apex Court** **in Government of T.N. v. Munuswamy Mudaliar and another [1988 (Supp)SCC 651] that a predisposition** **to decide for or against one party** ## **O.P.(KAT) NO.366 OF 2023** :-10-: **without proper regard to the true merits of the dispute is bias.** **10.The Tribunal failed to notice the fact that the enquiry officer was the very same person against whom the State Information Commission had asked for an explanation on the complaint filed by the petitioner. Whatever the allegation against the petitioner, disciplinary proceedings were initiated, and a penalty was imposed on the basis of the enquiry report filed by the enquiry officer. It is discernible from Ext.P7 that Additional Director (Vigilance), who was the enquiry officer, was the same officer against whom the State Information Commission had asked for an explanation on the complaint filed by the petitioner.** **11. We are, therefore, of the view that it will be difficult to deny the challenge on account of bias and prejudice on the part of the enquiry** _**officer.**_ **Hence, we are of the opinion that the finding of the tribunal that the terms of punishment and orders in the appeal and review petition do not call** ## **O.P.(KAT) NO.366 OF 2023** :-11-: **for any interference is liable to be set aside.** **Accordingly, the O.P.(KAT) is allowed and Annexures A3, A4 and A6 orders of punishment against the petitioner are set aside.** ## **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE sd/-** **SHOBA ANNAMMA EAPEN, JUDGE** **MBS/-** ## **O.P.(KAT) NO.366 OF 2023** :-12-: ## **APPENDIX OF OP(KAT) 366/2023** PETITIONER ANNEXURES Annexure-A1 TRUE COPY OF THE MEMO CHARGES DATED 04-032013 Annexure-A2 TRUE COPY OF THE REPLY SUBMITTED BY THE APPLICANT TO ANNEXURE A1 Annexure-A3 TRUE COPY OF THE ORDER NUMBER ECS76219/10/DHS DATED OCTOBER 2014. Annexure-A4 TRUE COPY OF THE ORDER DATED AUGUST 10, 2015 OF THE 2ND RESPONDENT Annexure-A5 TRUE COPY OF THE REVISION SUBMITTED BY THE APPLICANT DATED 15-02-2016 CHALLENGING ANNEXURE A3 AND A4 Annexure-A6 TRUE COPY OF THE GOVERNMENT ORDER NO. 43/2017 DATED 09-01-2017. Annexure-R1(a) TRUE COPY OF THE COMPLAINT RECEIVED FROM DR. V.R. RAJENDRAN, SUPERINTENDENT, MEDICAL COLLEGE, KOZHIKODE, DATED 0309.2010, COMPLAINT NO. G1-10343/10 Annexure-R1(b) TRUE COPY OF LETTER FROM DMO(H), MALAPPURAM, DATED 14-09-2010 TO DIRECTOR OF HEALTH, TRIVANDRUM. Annexure-R1(c) TRUE COPY OF THE ENQUIRY REPORT FURNISHED BY THE ADDITIONAL DIRECTOR (VIGILANCE) DATED 03-02-2011. Annexure-R1(d) TRUE COPY OF LETTER NO. EC5/76219/10/DHS DATED 04-03-2013 ISSUED BY THE 1ST RESPONDENT. Annexure-R1(e) TRUE COPY OF THE ORDER NO. EC5/76219/10/DHS DATED 16-10-2014 ISSUED BY THE 1ST RESPONDENT Exhibit-P1 TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION NO. 258/2017 Exhibit-P2 TRUE COPY OF THE REPLY STATEMENT IN ORIGINAL APPLICATION NO. 258/2017 Exhibit-P3 TRUE COPY OF THE ORDER DATED 30-06-2022 IN ORIGINAL APPLICATION (EKM) NO. 258/2017 ON THE FILES OF KERALA ADMINISTRATIVE ## **O.P.(KAT) NO.366 OF 2023** :-13-: TRIBUNAL (ADDITIONAL BENCH ERNAKULAM) Exhibit-P4 TRUE COPY OF THE COMPLIANT DATED 30-062008 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR OF HEALTH SERVICES THIRUVANANTHAPURAM Exhibit-P5 TRUE COPY OF THE LETTER DATED 01-10-2010 ISSUED BY THE TRAVANCORE-COCHIN MEDICAL COUNCIL TO THE PETITIONER. Exhibit-P6 TRUE COPY OF THE LETTER DATED 08-07-2011 ISSUED BY THE TRAVANCORE-COCHIN MEDICAL COUNCIL TO THE PETITIONER. Exhibit-P7 TRUE COPY OF THE ORDER DATED 05-11-2009 OF THE STATE INFORMATION COMMISSION.