S. GOPAKUMARAN NAIR v. STATE OF KERALA & OTHERS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 WP(C).No. 16454 of 2008(H) -------------------------- PETITIONER(S): --------------- S.GOPAKUMARAN NAIR, SENIOR SCIENTIFIC OFFICER, DEPARTMENT OF GASTROENTEROLOGY, MEDICAL COLLEGE, KOZHIKODE. BY ADV. SRI.N.SUGATHAN SRI.S.PRASANTH (AYYAPPANKAVU) RESPONDENT(S): - --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE, THIRUVANANTHAPURAM-695011. 3. DR.MANGALAM, JOINT DIRECTOR (GENERAL) DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE, THIRUVANANTHAPURAM-695011. GOVERNMENT PLEADER SMT. M.R. SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX EXT.P1-TRUE COPY OF REPRESENTATION DT. 8.5.2001 EXT.P2-TRUE COPY OF DO. DATED 28.8.2001 EXT.P3- TRUE COPY OF MINUTES OF THE MEETING HELD ON 5.11.2001 EXT.P4-TRUE COPY OF GO DATED 13.5.2002 EXT.P5-TRUE COPY OF ORDER DATED 28.6.2002 EXT.P6-TRUE COPY OF REPORT OF INPECTION EXT.P7-TRUE COPY OF GO DATED 25.8.2006 EXT.P8-TRUE COPY OF MEMO OF CHARGES DATED 15.1.2007 EXT.P9-TRUE COPY OF STATEMENT OF DEFENCE DT.14.5.2007 EXT.P9(A)-TRUE COPY OF REPORT OF VIGILANCE & ANTI CORRUPTION BUREAU EXT.P10-TRUE COPY OF GO DATED 14.8.2007 EXT.P11- DO. DATED 16.10.2007 EXT.P12-TRUE COPY OF REPRESETNATION DT.24.10.2007 EXT.P13-TRUE COPY OF LETTER DT.20.11.2007 EXT.P14-TRUE COPY OF REPLY DATED 13.11.2007 EXT.P15-TRUE COPY OF LETTER DATED 13.11.2007 EXT.P16-TRUE COPY OF ORDER IN WPC 37497/2007 EXT.P17-TRUE COPY OF ORDER DT.22.1.08 IN WPC 37497/2007 EXT.P18-TRUE COPY OF JUDGMENT IN WPC 37497/2007 EXT.P19-TRUE COPY OF LETTER DT.12.5.2008 EXT.P20-TRUE COPY OF REPRESENTATION DT.17.5.2008 EXT.P21-TRUE COPY OF GO DATED 10.4.2008 EXT.P22-TRUE COPY OF LETTER DT.20.5.2008 EXT.P23-TRUE COPY OF GO DATED 21.4.1989 EXT.P24-TRUE COPY OF GO DAETD 21.10.1989 EXT.P25-TRUE COPY OF NOTE FILEd EXT.P26-TRUE COPY OF GO DATED 20.8.1992 EXT.P27-TRUE COPY OF GO DATED 25.11.1998 EXT.P28-TRUE COPY OF JUDGMENT IN WPC 21561/2006 // TRUE COPY // P.S. TO JUDGE ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 16454 of 2008-H** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 6th day of April, 2011.** ## **JUDGMENT** The petitioner challenges mainly Ext.P21 order passed by the Government directing to continue the disciplinary action against him under Rule 15 of Kerala Civil Services (Classification, Control & appeal) Rules, 1960 and to appoint the Enquiry Officer. One of the contentions raised by the petitioner is that the Enquiry Officer is biased and accordingly the petitioner seeks for a direction to the first respondent to appoint only a non-medical man as Enquiry Officer. 2. The petitioner is working as Senior Scientific Officer, Department of Gastroenterology, Medical College, Kozhikode. The events which have led to the disciplinary action are narrated in paragraphs 1 to 4 of the writ petition. According to him, there are no reasons for taking disciplinary action in the matter. Ext.P7 is the order by which he was suspended from service and Ext.P8 is the copy of the memo of charges. The main allegation is that he left the department without the permission of the Head of the Department and used abusive words against a female staff, on 11.2.2002. Reference is also made to the enquiry earlier conducted and the wpc 16454/2008 2 findings of the Enquiry Committee itself. Ext.P9 is the copy of the statement of defence. By Ext.P10 order he was reinstated in service. By Ext.P11, the third respondent was appointed as Enquiry Officer. The said order is dated 16.10.2007. The petitioner filed a representation as Ext.P12, seeking the intervention of the Government to examine his written defence and to drop the disciplinary proceedings. The Government finally rejected the request to change the Enquiry Officer, by order dated 13.11.2007. The petitioner had occasion to file Writ Petition No.37497 challenging the order passed by the Government to take disciplinary action against him. By Ext.P18 judgment, this Court found that the Government will have to examine the written statement of defence and then form an opinion. Again, the Government considered the matter and passed Ext.P21 order. 3. Heard learned counsel for the petitioner Shri N. Sugathan and learned Govt. Pleader. 4. Learned Counsel for the petitioner vehemently argued that the Enquiry Officer is totally biased against him and in a matter like this, the appointment of a woman as Enquiry Officer itself will cause prejudice him. In that context, it is pointed out that even the final order passed by the Government was not communicated to the petitioner and the Enquiry Officer had also addressed a letter Ext.P22 to the Professor and Head of the wpc 16454/2008 3 Department of Gastroenterology, Medical College, Kozhikode seeking for various information about him, which are unnecessary for the purpose of the enquiry. 5. The respondents have filed a detailed counter affidavit. 6. The first question to be considered is whether Ext.P21 order is vitiated by any non application of mind by the Government. In Ext.P18 judgment, this Court quashed the order (Ext.P5 therein) passed by the Government mainly on the ground that there is nothing in the said order which indicates that the Government had independently considered the written statement of defence filed by the petitioner before deciding to proceed further. The Government being the disciplinary authority, ought to have independently considered the written statement of defence before taking a decision as to whether the same is satisfactory or not. 7. A reading of Ext.P21 will show that the Government has examined the written statement of defence in detail and found that the same is least satisfactory. It is the contention of the petitioner that no detailed reasons have been stated by the Government in Ext.P21 order. 8. What was directed to be done by this Court is an examination of the matter by the Government. Evidently, the Government itself had examined the matter and decided to continue the disciplinary action. Apart wpc 16454/2008 4 from considering the written statement of defence, it is not a case where the Government will have to address each and every one of the points raised by the petitioner in the written statement of defence and pass an order accordingly. What is required to be done by the Government is to satisfy itself that the disciplinary action is warranted or not. That satisfaction has been arrived at evidently, going by Ext.P21 order. Therefore, the grounds urged by the petitioner for quashing Ext.P21 order cannot be accepted and there is no infirmity in the same. 9. The other question raised is regarding the alleged bias attributed to the Enquiry Officer. Shri Sugathan pointed out that it is not explained as to why the Enquiry Officer has sought more information about the petitioner from the Head of the Department. It is submitted that the same shows the anxiety of the Enquiry Officer to cull out evidence to be used against him. True that in Ext.P22 communication the Enquiry Officer has sought for various details. It is too premature at this stage to conclude whether the information sought for was for any purpose to be used as a material in the enquiry itself. The enquiry has to proceed only in terms of the memo of charges. The petitioner will be given ample opportunity also to enter on his defence. Therefore, the said letter alone cannot be of any assistance to show that the Enquiry Officer is biased. wpc 16454/2008 5 10. When an allegation of bias is raised, there is heavy burden on the petitioner to plead and prove the alleged bias on the part of the Enquiry Officer. The test to ascertain what constitutes bias, has been laid down by the Apex Court in **S. Parthasarathi v. State of A.P.** {(1974) 3 SCC 459}. The said principles have been stated in para 14 thus: “The test of likelihood of bias is based on the “reasonable apprehension” of a reasonable man fully cognizant of the facts. A real likelihood of bias has to be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries.” Therefore, going by the test laid down by the Apex Court, it cannot be concluded that merely because of the letter Ext.P22, the Enquiry Officer can be stated to be biased. The important question is whether there is real likelihood of bias and the circumstances should cause a reasonable apprehension in the mind of the parties that there is likelihood of bias affecting the decision. The said grounds are really absent in this case. The enquiry has not proceeded further so far. Hence, materials are not sufficient to conclude at this stage, that the third respondent is biased. 11. Apart from that, the order Ext.P14 was passed by the Government on 13.11.2007, whereby the Government rejected the request for changing 6 wpc 16454/2008 the Enquiry Officer. The previous writ petition, viz. W.P.(C) NO.37497/2007 was disposed of by judgment dated 7.3.2008. Obviously, the said order was not under challenge in the earlier writ petition, as rightly pointed out by the learned Govt. Pleader. For this reason also, the appointment of the Enquiry Officer does not call for any interference. 12. Therefore, none of the grounds stated by the petitioner are sufficient to interfere with the proceedings. Hence, the writ petition is dismissed. There will be a direction to the Enquiry Officer to complete the enquiry expeditiously, at any rate, within a period of four months from the date of receipt of a copy of this judgment. All opportunities will be given to the petitioner to adduce evidence and the enquiry will be conducted in a fair and reasonable manner. No costs. ## **(T.R. Ramachandran Nair, Judge.)** **kav/**