Nebu John S/o John Varghese v. State of Kerala and The Director of Health Services, Health Services Directorate

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940** **OP(KAT).No. 813 of 2013** **AGAINST THE ORDER IN TA 5511/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 01-10-2012** ## **PETITIONER/APPLICANT:** **DR.NEBU JOHN S/O. JOHN VARGHESE, age 41, FORMER MEDICAL OFFICER IN CHARGE, PRIMARY HEALTH CENTRE, VECHUCHIRA, PATHANAMTHITTA, NOW WORKING AS ASSISTANT SURGEON, COMMUNITY HEALTH CENTRE, VIZHINJAM.** **BY ADVS.SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.V.S.THOSHIN** ## **RESPONDENT/RESPONDENT:** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** **2. THE DIRECTOR OF HEALTH SERVICES HEALTH SERVICES DIRECTORATE, THIRUVANANTHAPURAM, PIN-695001.** **BY ADV. GOVERNMENT PLEADER SRI. ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 06-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MSP** **OP(KAT).No. 813 of 2013 (Z)** ## **ANNEXURE** ## **PETITIONER'S EXHIBITS:** **EXT.P1 TRUE COPY OF THE PETITION IN T.A.NO.5511/12 EXT.P2 TRUE COPY OF THE COUNTER AFFIDAVIT EXT.P3 ORDER DATED 1/10/12 IN T.A.5511/12 (WPC 2694/12 OF THE HIGH COURT OF KERALA) OF KERALA ADMINISTRATIVE TRIBUNAL.** ## **RESPONDENT(S)' EXHIBITS** **NIL //TRUE COPY// P.A TO JUDGE** **MSP** ## C.T. RAVIKUMAR,J. & ## A.M. BABU, J. =========================== ## O.P.(KAT) No.813 of 2013 =========================== Dated this the 6[th] day of July, 2018 ## JUDGMENT ## **C.T.Ravikumar, J** . This Original Petition is filed against the order dated 1.10.2012 in T.A.No.5511/12 passed by the Kerala Administrative Tribunal. The applicant therein is the petitioner. He filed W.P(C) No.2694/2012 before this court. After the constitution of the Kerala Administrative Tribunal, it was transferred to the Tribunal and was re-numbered as T.A.No.5511/12. It was filed seeking quashment of Ext.P1 and for appropriate, consequential direction. As per Ext.P1, on culmination of disciplinary proceedings initiated against the petitioner, he was imposed with a penalty of barring of next increment for a period of one year without cumulative effect. The O.P.(KAT) No.813 of 2013 2 Tribunal, as per the impugned order dismissed the transfer application. It is in the said circumstances that this Original Petition has been filed. 2. Heard. 3. The petitioner was working as an Assistant Surgeon when he was charge sheeted. Ext.P3 is the memo of charges and Ext.P4 is the statement of allegations. Going by Ext.P3 the petitioner was charge sheeted for commission of sexual harassment, molestation, disorderly behavior and ill-treatment towards woman employees of the Primary Health Centre, Vechuchira, Pathanamthitta. 4. Upon receipt of Ext.P3, the petitioner had submitted his written statement of defence, (Ext.P5). However, it was found unsatisfactory and disciplinary proceedings were initiated against him under Rule 15 of the Kerala Civil Services (Classification Control & Appeal) Rules, 1960 (for short KCS (CC&A) Rules). On conclusion O.P.(KAT) No.813 of 2013 **==> picture [86 x 10] intentionally omitted <==** of the enquiry, the enquiry officer submitted Ext.P6 report containing the following conclusions:- ''i. The allegation of sexual harassment is disproved. ii. The allegation of disorderly behaviour is partly proved. iii. The allegation of ill-treatment of woman employees is not proved. But his behaviour towards lady staff was disrespectful which is quite unbecoming of a Medical Officer in charge of a Primary Health Centre.'' 5. Evidently, the petitioner was served with a notice to show cause why the penalty of barring of next increment for one year without cumulative effect, should not be imposed on him. Evidently, the petitioner had shown cause, but, it was found unsatisfactory and consequently, as per Ext.P1, the proposed punishment was imposed on him. **==> picture [383 x 13] intentionally omitted <==** impugned order whereby Ext.P1 was upheld by the O.P.(KAT) No.813 of 2013 4 Tribunal. A glance at the impugned order would reveal that though the petitioner had challenged Ext.P1 it was not considered on merits and the consideration was actually confined to the scope of power of the Minister concerned to interfere with disciplinary proceedings. Ultimately, it was found, in the light of the decision of the Hon'ble Apex Court in **[Shamsher Singh v. State of Panjab** (AIR 1974SC2192) **],** that the Minister concerned has got powers to take decision in all matters in his department. 7. Evidently, in the case on hand, the question to be considered is whether the imposition of the penalty as mentioned hereinbefore could be sustained. The Tribunal held that the findings are founded on facts based on the materials on record and therefore, no interference is required. After making such observation it was further found that the main attack is against the intervention of the Minister concerned which ultimately led to the O.P.(KAT) No.813 of 2013 **==> picture [86 x 9] intentionally omitted <==** imposition of the aforementioned penalty under Ext.P1. In the contextual situation, we do not find it necessary to consider the conclusions arrived at by the Tribunal as regards the power of the Minister to interfere in disciplinary matters. At the same time, there can be no doubt with respect to the position that if in a disciplinary proceedings, conclusions have been arrived at, based on which penalty was imposed, without any evidence or against the weight of evidence and if that matter was not properly taken into account by the Tribunal interference is possible rather, it would become inevitable. We will consider whether the impugned order passed by the Tribunal Ext.P1 are liable to be interfered with. 8. For considering the aforesaid question, it is inevitable to refer to Ext.P3 charge sheet, Ext.P4 statement of allegations and Ext.P6 enquiry report. Ext.P3 and P4 would reveal that the charge against the petitioner was that he had O.P.(KAT) No.813 of 2013 6 committed sexual harassment, molestation, disorderly behaviour and ill-treatment towards woman employees. As per Ext.P6 the allegation of sexual harassment was held as not proved. The allegation of ill-treatment towards woman employees was also held as not proved. In other words, what was held as partly proved is the allegation regarding disorderly behavior, going by the conclusion in Ext.P6. True that there is another finding with respect to his behaviour towards lady staff by the enquiry officer. It was held as disrespectful. 9. It is relevant to note that despite our careful scrutiny of Ext.P3 and P4, we do not find a specific charge of disrespectful behaviour towards lady staff framed against the petitioner. What was framed against him in that regard was disorderly behaviour and it was only held as partly proved by the Enquiry Officer. Therefore, there cannot be another separate finding based on the same set of facts especially after entering O.P.(KAT) No.813 of 2013 7 into a specific finding on the actual charge levelled against the petitioner. Even if it can be taken as a misconduct, there can be no doubt that for holding so, it should have been specifically alleged in the charge sheet and framed as a charge. When there is absolutely no charge framed against the petitioner for disrespectful behavior towards the lady staff and especially when names of such lady staff towards whom the petitioner behaved in a disrespectful manner is not mentioned either in the charge or in the statement of allegation how could the enquiry officer enter into such a findings. We are of the view that the enquiry officer has gone beyond his powers on entering into a finding on an issue which was not at all framed as a charge against the petitioner. It is a settled position that the enquiry officer cannot find or make any finding with respect to any action which is not at all framed as a charge and an enquiry is bound to be confined with respect to the charges O.P.(KAT) No.813 of 2013 8 specifically levelled against the concerned employee. Without naming the lady against whom he behaved in such a manner how the petitioner could be expected to defend the same especially when no such charge was specifically framed against him. In that view of the matter, the findings and conclusions in Ext.P6 that he had shown disrespectful behaviour towards lady staff cannot be accepted and it is liable to be interfered with. 10. Now, reverting to the findings regarding disorderly behaviour, which was held as partly proved, it is relevant to refer to Ext.P6 itself. The relevant recital is worthy to be extracted and it reads thus:- “The behaviour of the delinquent officer cannot be termed as ''Disorderly behaviour”. When that be the clear finding of the enquiry officer, we are at a loss to understand as to how he could he hold the allegation of the 'disorderly behaviour' as partly proved. We do not find any material in O.P.(KAT) No.813 of 2013 9 the said circumstances, to support the finding on that as partly proved. Based on the aforesaid clear finding, in the absence of specific reason such a finding cannot be sustained. In the circumstances, the question is whether any penalty could have been imposed on the petitioner. Originally, the punishment proposed was censure. This fact is evidenced from records. But, subsequently it was held that the censure is a mild and therefore, imposition of the barring of one increment without cumulative effect is the come-uppance. Evidently, it is based on such noting in the file the original proposal was changed. In the case on hand, certain conclusions made by the enquiry officer in Ext.P6 report also assume relevance in the context of the case. They read thus:- _“It is clear that the complainants are not in the habit of attending the hospital punctually. Usually they reach the hospital late. The witnesses of the delinquent testify to this. Dr. Nebu appears to be a very strict Officer who could not tolerate late attendance. It is seen that the general public and the patients have a very good opinion about the_ O.P.(KAT) No.813 of 2013 10 _doctor. This is evident from the statement of Shri. C.V. Philippose, Vechoochira, Defence Witness at the time of oral enquiry and the statements of the local authorities produced by the doctor. It is to be presumed that being a very strict Officer the staff must have found it difficult to work with him. Moreover Dr. Nebu has not shown patience or expediency in dealing with the problems in the PHC. Instead, the Doctor is seen to lose his temper on many occasions when things went wrong and behaved in a rash manner with the staff including ladies._ _As detailed earlier the intention of the Doctor was the well being of the patients and the proper functioning of the PHC. But in the process of enforcing discipline, punctuality and patient care the Doctor has behaved rashly with the staff of the PHC including lady staff. The behaviour of the delinquent Officer cannot be termed as ''Disorderly behaviour''. But losing his temper and shouting at the staff is not quite becoming of a head of an institution. It can be seen that the complainants, the three ladies were treated disrespectfully. But this cannot be described as ill treatment of women '' employees ._ _(Emphasis added)_ 11. From above extracted recital from Ext.P6, which was virtually endorsed by the disciplinary authority, we are of the firm view that we need not make any further probe into the matter or give any further reason as to why we formed the opinion that based on the findings in Ext.P6, there was no reason to hold that the petitioner had treated certain ladies disrepectfully. 12. Shortly stated, it is evident that it is ## O.P.(KAT) No.813 of 2013 **==> picture [93 x 10] intentionally omitted <==** a case where the aforesaid punishment was imposed on the petitioner even when there is absolutely no evidence to support the charges levelled against him. In other words, the conclusions are against the weight of evidence obtained in this case. In such circumstances, the impugned order of the Tribunal is liable to be set aside. We do so. Consequently, T.A.No.5511/12 is allowed and Ext.P1 is set aside. **Sd/-** **Sd/-** **A.M. BABU, JUDGE** ACM