Kerala High Court
Dr.Abraham Kuruvilla Aged 42 Years vs Sree Chitra Tirunal Institute For ...
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 26TH DAY OF MARCH 2013/5TH CHAITHRA 1935
WP(C).No. 26471 of 2012 (H)
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PETITIONER(S):
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DR.ABRAHAM KURUVILLA AGED 42 YEARS
ADDITIONAL PROFESSOR OF NEUROLOGY
SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND
TECHNOLOGY
THIRUVANANTHAPURAM, PIN 695 011.
BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.N.SANTHA
SRI.K.A.BALAN
SRI.PETER JOSE CHRISTO
SRI.S.A.ANAND
RESPONDENT(S):
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1. SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY
THIRUVANANTHAPURAM, PIN 695 011
REPRESENTED BY ITS DIRECTOR.
2. INSTITUTE BODY AND GOVERNING BODY
SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY
THIRUVANANTHAPURAM
REPRESENTED BY ITS PRESIDENT AND PRINCIPAL SCIENTIFIC ADVISER TO
THE GOVERNMENT OF INDIA
318, VIGYAN BHAVAN ANNEXE, MAULANA AZAD ROAD
NEW DELHI, PIN 110 011.
3. DR.K.RADHAKRISHNAN
DIRECTOR
SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY
THIRUVANANTHAPURAM, PIN 695011.
R1 BY ADV. SRI.T.R.RAVI,SC,SREE CHITRA TIRUNAL INS
R2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-03-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 26471 of 2012 (H)
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT-P1: COPY OF THE ORDER NO.P & A1/PF-1591/1487/SCTIMST/2011 DATED
08.03.2011 OF THE 3RD RESPONDENT.
EXHIBIT-P2: COPY OF THE REPRESENTATION DATED 09.03.2011 SUBMITTED BY THE
PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT-P3: COPY OF THE STATEMENT OF ALLEGATIONS AND MEMO OF CHARGES
NO.P & A.1/PF-1591/1487/SCTI MST/2011 DATED 28.03.2011 OF THE 3RD
RESPONDENT.
EXHIBIT-P4: COPY OF THE EXPLANATION DATED 02.04.2011 SUBMITTED BY THE
PETITIONER.
EXHIBIT-P5: COPY OF THE EXPLANATION DATED 13.04.2011 SUBMITTED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT-P6: COPY OF THE LETTER NO.DIR/SCTIMST/2011 DATED 14.11.2011 OF THE 3RD
RESPONDENT TO THE PETITIONER.
EXHIBIT-P6(a); COPY OF THE INQUIRY REPORT AGAINST THE PETITIONER.
EXHIBIT-P7: COPY OF THE HIS LETTER DATED 22.11.2011 OF THE PETITIONER.
EXHIBIT-P8: COPY OF THE LTTER NO.P & A/DD/PF-1487/SCTIMST/2012 DATED
20.01.2012 OF THE 3RD RESPONDENT.
EXHIBIT-P9: COPY OF THE LETTER NO.DIR/SCTIMST/2012 DATED 24.01.2012 OF THE 3RD
RESPONDENT.
EXHIBIT-P9(a):COPY OF THE EXPLANATORY NOTE SUBMITTED BY THE INQUIRY
OFFICER.
EXHIBIT-P10:COPY OF THE LETTER DATED 28.01.2012 OF THE PETITIONER.
EXHIBIT-P11:COPY OF THE ORDER NO.P&A.1/X/7/SCTIMST/2012 DT.07.02.2012 OF THE
3RD RESPONDENT.
EXHIBIT-P12:COPY OF THE APPEAL DATED 20.02.2012 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT.
EXHIBIT-P13: COPY OF THE ORDER NO.P&AIII/PF-1591/1487/SCTIMST/2012 DATED
06.09.2012 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT-P14: COPY OF THE ORDER NO.P&A III/PF1591/1487/SCTIMST/2012 OF THE 3RD
RESPONDENT.
EXHIBIT-P15: COPY OF THE REPLY DATED 14.12.2011 SUBMITTED BY THE PETITIONER
WP(C).No. 26471 of 2012 (H)
EXHIBIT-P16 :COPY OF LETTER NO.C-13011/09/2012-VIG DATED 19.2.2013 FROM THE
MINISTRY OF SCIENCE AND TECHNOLOGY
RESPONDENTS' EXHIBITS
EXHIBIT R1(A): COPY OF LETTER FROM SECRETARY, DEPARTMENT OF SCIENCE &
TECHNOLOGY
/TRUE COPY/
P.A. TO JUDGE
SKV
A.M.SHAFFIQUE, J
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W.P.(C).No. 26471 OF 2012
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Dated this the 26th day of March 2013
JUDGMENT
Petitioner challenges the proceedings taken against him alleging certain misconducts which ultimately resulted in Ext.P13 order of the Appellate Authority imposing a minor penalty of withholding one increment for one year without any cumulative effect.
2. The factual situation that had arisen in the above case will disclose that the petitioner alongwith one Doctor Neema was placed under suspension as per Ext.P1 order dated 8.3.2011 and thereafter a memo of charges was issued on 28.03.2011. The allegation in the memo of charges was that the petitioner along with Doctor P.K. Neema had accessed the e-mail account of '[email protected]' which was the e-mail account of the senior residents of the Institute and through the said e-mail account several information was being forwarded to various Doctors of the Institute creating a false impression on the Director of the Institute and attaching various documents containing derogatory and defamatory statements about the Director. Enquiry was conducted pursuant to the memo of charges on the W.P.(C).No. 26471 OF 2012 2 basis of the explanation offered. Ext.P6 record of enquiry was served on the petitioner. It was stated in Ext.P6 that the charges against the petitioner as well as Dr.P.K. Neema were proved. Against the findings in enquiry, the petitioner had given explanation. However, the Governing Body after considering the matter by Ext.P8 decision called upon the Inquiry Officer to specifically deal with the charges based on evidence collected. Ext.P9 is the said report giving specific findings in relation to the same. Based on Ext.P9 further reply was called for from the petitioner and the Institute passed Ext.P11 order, whereby it was found that the charges were proved and it was resolved to impose on both the officers minor penalty of reduction to a lower stage in the time scale of pay for a period of one year without cumulative effect and without adversely affecting their pension. The suspension was also revoked. The petitioner preferred an appeal before the Appellate Authority in terms of Rule 13 of the Sree Chitra Tirunal Institute of Medical Sciences and Technology Thiruvanathapuram, Service and Personnels Conduct Rules. Ext.P12 is the appeal wherein the petitioner inter alia contended that proper opportunity was not given to the petitioner for adducing evidence and the witnesses cited by the petitioner were not summoned. In respect of one witness the cross examination W.P.(C).No. 26471 OF 2012 3 could not be completed. It is contended that all the allegations were raised against Dr.P.K. Neema and the petitioner was not at all responsible for the submission of documents. The attachments that were forwarded from the e-mail were public documents as all documents had been filed before this Court and the Appellate Authority after having considered the material on record reduced the punishment by withholding one increment for one year without any cumulative effect and there was a direction to pay the full pay and allowances for the period of suspension. In the mean time, petitioner was served with Ext.P14 dated 03.10.2012 denying him the benefit of the full pay and allowances. It is stated that the said amount can be paid only on obtaining no objection from the DST Vigilance, with reference to a trip undertaken by the petitioner to USA during the period of suspension and alleging that he had worked in some hospitals and received salary. Ext.P14 is also under challenge.
3. Counter affidavit is filed by the 1st respondent supporting the stand taken by them in the enquiry proceedings and stated that there was valid evidence in the enquiry to support their stand and only a minor penalty had been imposed which will not affect the petitioner in any manner and the penalty is not disproportionate to the charges proved.
W.P.(C).No. 26471 OF 2012 4
4. The question to be considered in the writ petition is whether the proceedings of enquiry is conducted properly and whether there is any material to impose a minor penalty on the petitioner.
5. The two authorities viz, the Disciplinary Authority as well as the Appellate Authority had gone into the matter in detail. They have come to the conclusion that the charges leveled against were proved especially based on the evidence on record.
6. Petitioner has a case that he was not involved in hacking of the email account. Reference is made by the learned counsel for the 1st respondent to the enquiry report, wherein reference is made to Ext.17, a report of the Assistant Commissioner of Police. This report is obtained by the Disciplinary Authority from the Cyber Cell of Police Department. They have verified the e-mail id of the '[email protected]' and have formed an opinion that the said e-mail id was accessed on 2nd March 2011 at 9.11 pm using a certain IP No. which belonged to BSNL and as per the details furnished by BSNL, the IP address has been accessed through WLL No.918006599 which is provided to one Dr.Abraham Kuruvilla. Infact the petitioner admitted in cross-examination that the address was belonging to him. Therefore, the Inquiry Offier had come to a definite finding that there is proof to show W.P.(C).No. 26471 OF 2012 5 that the petitioner had hacked the e-mail id '[email protected]' on 2nd March, 2011. So this is not a case purely relating to exchanging derogatory or defamatory materials with reference to the Director. It is also a case where a responsible officer had accessed an e-mail account which does not belong to him and which was being operated by the members of the Institute for various purposes. Apparently, though the materials which were sent by way of attachment were all in public domain, still these materials have been sent through an e-mail id which did not belong to the petitioner. It is clear case of hacking and if there is evidence on record for that alone, there is reasonable justification on the part of the authorities to have found that the petitioner has committed misconduct.
7. The materials attached apparently were in relation to certain activities of the Director and when it is generated from an e-mail id of the members of the Institute, it definitely gives a different picture to the recipients of the said message. When the enquiry report shows that there is considerable material to indicate such an act on the part of the petitioner, I do not think that there will be any justification on the part of this Court to interfere with the said findings.
8. Petitioner has a case that he was not given sufficient W.P.(C).No. 26471 OF 2012 6 opportunity to adduce evidence by examining the Director. Infact the whole enquiry was with reference to an allegation of hacking of computer system and sending certain materials which were derogatory. Once it is proved that the e-mail account was hacked and messages were sent from the said e-mail id, the fact as to whether the allegations were defamatory or derogatory may not be of any consequence and that will again give rise to another cause of action for taking action against the parties concerned for making defamatory statement. That being the situation, I do not think that any prejudice will be caused to the petitioner for not examining the Director and by not completing the cross examination of one of the witnesses.
9. That apart, the punishment imposed is of a very minor nature. Taking into consideration the nature of allegations raised against the petitioner, I am not inclined to interfere with Ext.P13.
10. Coming to Ext.P14, the Director while issuing the said order released the full pay and allowances to Dr.P.K. Neema. But in regard to the petitioner, it was stated that full pay and allowances can be released only after getting no objection from the DST Vigilance. Apparently there was no such complaint pending with the DST Vigilance at that point of time. The learned counsel for the 1st respondent however relied upon Ext.R1(a) to W.P.(C).No. 26471 OF 2012 7 indicate that there was a direction from the Govt. of India, Ministry of Science and Technology to take action against the petitioner. This letter is dated 19.11.2013 and this letter also does not contain any indication regarding any enquiry pending before the DST, Vigilance. The learned Counsel for the petitioner also brought to my notice the communication from DST Vigilance indicating that no such enquiry was pending. Under these circumstance, I am inclined to set aside Ext.P14 to the extent of not releasing the full pay and allowances of the petitioner.
In the result the Writ Petition is disposed of as follows:-
(i) The challenge as against Ext.P13 is rejected.
(ii) Ext.P14 is set aside to the extent of
restriction imposed for payment of full pay
and allowances to the petitioner and there
shall be direction to the 1st respondent to
release the full pay and allowances to the
petitioner which he was entitled to receive
during the said period. Appropriate orders
may be passed within one month from the
date of receipt of copy of this judgment.
Sd/-
A.M.SHAFFIQUE, JUDGE.
/TRUE COPY/
SKV.