Karnataka High Court
Dr Malini vs The State Of Karnataka on 15 April, 2013
Bench: N.Kumar, B.Manohar
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF APRIL, 2013
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE B MANOHAR
WRIT PETITION No.23406/2010 (S-KAT)
BETWEEN:
DR.MALINI,
AGED ABOUT 46 YEARS,
W/O. DR.B.K.MURLIDHAR,
WORKING AS ASSISTANT DIRECTOR
FORENSIC SCIENCE LABORATORIES,
MADIVALA, (NOW ON DISCHARGE)
R/AT NO.14/3,1ST MAIN ROAD,
BRAHAMAPURAM,
RAMACHANDRAPURAM,
BANGALORE - 60. .....PETITIONER
(BY M/S.RAVIVARMA KUMAR ASSOCIATES
FOR SRI.V.R.SARATHY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
HOME DEPARTMENT (POLICE SERVICES)
VIDHANA SOUDHA,
BANGALORE - 560 001.
2. DIRECTOR GENERAL & INSPECTOR
GENERAL OF POLICE
2
NRUPATHUNGA ROAD,
BANGALORE - 01.
3. DIRECTOR
FORENSIC SCIENCE LABORATORY,
MADIVALA,
BANGALORE - 560 068. ...RESPONDENTS
(BY SMT.S.SUSHEELA, AGA)
THIS WRIT PETITION IS FILED PRAYING TO QUASH
THE IMPUGNED ORDER PASSED BY THE HON'BLE
KARNATAKA ADMINISTRATIVE TRIBUNAL IN APPLICATION
NO.1010/09, BY ITS ORDER DATED 16.12.2009, VIDE
ANNEXURE - A & FURTHER ALLOW THE APPLICATION AS
PRAYED FOR AND DIRECT THE RESPONDENTS TO
RESTORE THE SERVICE OF PETITIONER AS DEPUTY
DIRECTOR OF FORENSIC SCIENCE WITH ALL
CONSEQUENTIAL BENEFITS FLOWING FROM SUCH
RESTORATION INCLUDING DECLARATION OF
PROBATIONARY PERIOD AND TO GRANT INTERIM ORDER
TO STAY THE OPERATION OF IMPUGNED ORDER DATED
16.12.09, PASSED BY THE HON'BLE KARNATAKA
ADMINISTRATIVE TRIBUNAL IN APPLICATION
NO.1010/2009 VIDE ANNEXURE - A.
THIS W.P. COMING ON FOR ORDERS THIS DAY,
N.KUMAR, J., MADE THE FOLLOWING:-
ORDER
The petitioner has preferred this writ petition challenging the order passed by the Karnataka Administrative Tribunal, Bangalore dated 16th December 2009 in Application No.1010/2009 dismissing her application and upholding the order of discharge. 3
2. Petitioner was the applicant before the Tribunal. It is her case that she is a Master Degree holder in Psychology and specialized in Clinical Psychology from Bangalore University and also holds Ph.D degree. She also holds Post Graduate Diploma in System Management and Post Graduate Diploma in Psychology Counselling. In the year 1993, she joined the services at NIMHANS as a Senior Research Fellow to work under the Indo - US Project. While working in the said project, in order to conduct Narco analysis and Brain Mapping tests for various under-trials, suspects, who were involved in committing murders and other organized crimes, she was appointed as an Assistant Director of Forensic Psychology w.e.f. July 1999 for a period of one year on contract basis. Subsequently her services have been renewed every year without any break in the service. While she was so working on contract basis, during the year 2007, this Court while disposing W.P.No.122/2005 made an observation in its order that "to facilitate the Government of Karnataka to absorb the services of the petitioner in the existing post of Assistant Director, against which, she was working on contract basis as she fulfils the 4 essential qualifications and experience to hold the post. In the said proceedings, the Secretary to the Government of Karnataka filed an affidavit stating that she would be retrospectively absorbed in the said post. The Government framed Special Rules for recruitment to the post of Assistant Director of Forensic Psychology by issuing a notification calling upon the eligible candidates to fill up the notified posts. The said notification is dated 17-05-2007. The applicant applied for the said post as she had requisite qualifications. A Special Recruitment Committee for Selection to the post of Assistant Director of Forensic Psychology was constituted by the Government on 16-06- 2007. Two eligible candidates had applied for the said posts. The said Committee conducted interview of eligible candidates to the said post. While scrutinizing the applications, the application of the other candidate came to be rejected at the initial stage as he did not possess the requisite qualification. The applicant was interviewed, each and every document submitted by her was verified and her name was recommended for the post of Assistant Director of Forensic Psychology. The Committee also recommended the State Government to invoke Rule 57 of the Karnataka Civil 5 Service Rules in public interest to sanction premature increment considering the length of service of the applicant rendered on contract basis to be counted for promotion and pension. The then DGP and IGP also supported the said recommendation. Accepting the recommendation of the Committee, by an order dated 30-06-2007, the applicant was appointed as Assistant Director of Forensic Sciences in the respondent-Department.
3. The second respondent, behind the back of the applicant conducted a suo-motu enquiry regarding her date of birth as well as her qualifications and without hearing her, he submitted a report that SSLC marks card produced by her is a tampered one. Further, while she was working in the 3rd respondent Department, she was also working in a private Nursing Home and sought for discharging her from services. On receipt of the said report, the then Home Minister ordered issue of notice to the petitioner to have her say in the matter. In the meanwhile, on the Floor of the Karnataka Legislative Council, there was a demand from the opposition leaders to discharge her from services. Yielding to the said pressure without holding any enquiry, her 6 services came to be terminated. Aggrieved by the said order, she preferred an application before the Tribunal contending that her termination is not a termination simpliciter as evident from the order of the Home Minister, it was on the ground of misconduct. The Tribunal after looking into the entire records which was summoned by them and after referring to the various Confidential Records, has set out the proceedings on the Floor of the Legislative Council and held that the opposition leaders have vehemently and strongly demanded for discharge of the applicant. It is not that nothing was known to the applicant. This has become a sensational issue and media people were day to day either telecasting or publishing the issue in television or newspapers. One can also take judicial note of that. The applicant could have taken this opportunity and opposed if she had any proof in her support, in proof of her date of birth. A glimpse of the entire proceedings show that there were heated exchange of arguments between the Members on the Floor of the Legislative Council. They adjourned the proceedings for 15 minutes...etc. At the end, a decision was taken. Then it is observed that the Tribunal feels a word of appreciation to our opposition leaders is necessary. They 7 have taken up such a sensational matter on the Floor of the Legislative Council and tried to excavate the truth or otherwise of some of the erring officers. This shows that our leaders are alert and watching the working pattern of the State. Therefore, the Tribunal was of the opinion that the discharge is warranted in the facts of the case and it is a discharge simpliciter and not stigmatic and therefore, a case for interfering in such order was not made out. Accordingly, the application came to be dismissed. Aggrieved by the said order, this writ petition is filed.
4. Prof. Raviverma Kumar, the learned senior counsel appearing for the petitioner assailing the impugned order contends that, as is clear from the proceedings of the legislative council, when this question was raised on the floor, the Home Minister stated that they would take action against the petitioner and in that regard they have already issued notice. But the opposition leaders opposed the said move on the part of the Home Minister and as she was a probationer as on that date, even without issuing the notice and without holding any enquiry, she should be discharged from service. Yielding to the said threat, without enquiry, 8 the impugned order discharging her from service is issued. Therefore, an order of discharge terminating her services came to be passed under pressure and there is no independent application of mind by the respondents. They have mechanically issued the said order yielding to the political pressure mounted on them in the legislature. He submits on that score alone, the order is liable to be set aside. Secondly, he contended it is undisputed that applicant was working on a contract basis for a period of seven long years. During that period, she was involved in unearthing a murder case successfully. Her services have been lauded not only by this Court but also by the High Court of Kerala apart from the various authorities. Her problem started only when on the opinion given by her, arrests were made in what is popularly known as "Abhaya Sisters murder case" at Kerala. It is thereafter, an attempt for her removal from the said post gained momentum. That the terms of the impugned order shows it is not a discharge simpliciter. Having regard to her expertise in the field, the fact that she was serving the Government for nine long years and her services were found useful by several authorities all over the country, it cannot be said that she was not suitable 9 for the said post. The reason for her removal is her role in the aforesaid Abhaya Sisters murder case and the political pressure mounted on the floor of the legislative assembly. It is a motivation and foundation stone for her discharge from services. As is clearly set out by the Tribunal in its order, it was a sensational issue. The media people were telecasting the day to day issue in the television and in the newspapers. Therefore, the said incidence has a direct nexus for her removal notwithstanding the words used in the order of discharge, she was dismissed from service on the alleged misconduct. Therefore, it is not a discharge simpliciter as contended by the respondents and held by the Tribunal. He further contended her case did not fall under Rule 6 of the Karnataka Civil Services Rules (Probation Rules 1977) but fall under Rule 7. Therefore, the said impugned order requires to be set aside as the impugned order is stigmatic in nature.
5. Per contra, the learned Government Advocate supporting the impugned order contended that before the order of termination was passed, the authorities applied their mind in order to avoid any embarrassment to the 10 Government regarding the false date of birth which she had given, it decided to discharge her from services. Secondly, it was contended that her name was figured in the discussion before the floor of the legislative council and that is not a foundation for her removal. Her case falls under Rule 6 and not 7 and therefore, the order of termination is valid and proper and cannot be found fault with. In the light of contentions advanced and the rival contentions, the point that arise for our consideration is:
Whether the impugned order passed by the respondents is an order of discharge simpliciter or stigmatic in nature?
6. Before we appreciate the material on record and decide whether the order of discharge is punitive in nature or it is a discharge simpliciter, it is necessary to notice the law on the point.
7. The seven Judges Bench of the Apex Court in the case of Shamsher Singh Vs. The State of Punjab and another reported in AIR 1974 SC 2192 dealing with the termination of a probationer held as under: 11
"63: "No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated, it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.
64. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post.
In the absence of any Rules governing a probationer in this respect, the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved, in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an 12 inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Article 311(2) he can claim protection. In State of Bihar Vs. Gopi Kishore Prasad, AIR 1960 SC 689 it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment. Instead of taking the easy course, the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer.
65. The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance. In R.C.Lacy Vs. State of Bihar (Civil Appeal No.590 of 1962 decided on 23.10.1963 (SC)), it was held that an order of revision passed 13 following an enquiry into the conduct of the petitioner in the circumstances of the case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2). A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311. On the other hand, a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment.
66. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. The substance of the order and not the form would be decisive.
67. An order terminating the services of a temporary servant or probationer under the Rules of employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with, Article 311 will not be attracted unless it can be shown that the order 14 though unexceptionable in form is made following a report based on misconduct"
8. The Apex Court in the case of DIPTI PRAKASH BANERJEE V/S. SATYENDRA NATH BOSE NATIONAL CENTRE FOR BASIC SCIENCES, CALCUTTA AND OTHERS reported in (1993) 3 SCC 60 while dealing with the question whether termination of service is punitive or simpliciter at paragraphs 21, 35 and 37 has held as under:
21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular department enquiry, the simple order of termination is to be treated as "founded"
on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a 15 motive and not the foundation and the simple order of termination would be valid.
35. The above decision is, in our view, a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its Annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. We shall presently consider whether, on the facts of the case before us, the document referred to in the impugned order contain any stigma.
37. On this point, therefore, we hold that the words amounting to "stigma" need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. Point 3 is decided accordingly.
9. The Apex Court further in the case of GOVERNING COUNSEL OF KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY, BANGALORE V/S. DR.PANDURANG 16 GODWALKAR AND ANOTHER reported in AIR 1993 SC 392 at paragraph 7 has held as under:
7. When an appointment is made on probation, it presupposes that the conduct, performance, ability and the capacity of the employee concerned have to be watched and examined during the period of probation. He is to be confirmed after the expiry of probation only when his service during the period of probation is found to be satisfactory and he is considered suitable for the post against which he has been appointed. The principle of tearing of the veil for finding out the real nature of the order shall be applicable only in a case where the Court is satisfied that there is a direct nexus between the charge so leveled and the action taken. If the decision is taken, to terminate the service of an employee during the period of probation, after taking into consideration the overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment. It need not be said that it amounts to his removal from service as punishment. It need not be said that the appointing authority at the stage of confirmation or while examining the question as to whether the service of such employee be 17 terminated during the continuance of the period of probation, it entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of performance of such employee.
10. The Apex Court in MATHEW P. THOMAS V/S. KERALA STATE CIVIL SUPPLY CORPORATION LIMITED AND OTHERS reported in (2003) 3 SCC 263, after referring the passage from the DIPTI PRAKASH BANERJEE's case referred to supra has held as under:
From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so-called order of termination simpliciter of a probationer clearly indicate that it 18 is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigamatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the façade of the termination order may be simpliciter, but the real face behind it to get rid of the services of a probationer is on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct.
11 . In the case of UNION OF INDIA AND OTHERS V/S. MAHAVEER C.SINGHVI reported in (2010) 8 SCC 220, 19 the Apex Court at paragraphs 41, 42, 45 and 46 has held as under:
41. Mr. Bhushan submitted that, as has been rightly held by the High Court, the case of the respondent was .fully covered by the series of decisions of this Court which have also been referred to on behalf of the petitioners.
Mr.Bhushan, however, laid special emphasis on the following decisions of this Court, some of which have also been cited on behalf of the petitioners. Namely, (1) State of Bihar v.Shiva Bhikshuk Mishra; (2) Samsher Singh, (3) Gujarat Steel Tubes Ltd; (4) Anoop Jaiswal v. Govt of India; (5) Nehru Yuva Kendra Sangathan v.Mehbub Alam Laskar wherein it has been repeatedly observed that if a discharge is based upon misconduct or if there is a live connection between the allegation of misconduct and discharge, then the same, even if couched in language which is not stigmatic, would amount to a punishment for which a departmental enquiry was imperative. Various other decisions were also cited by Mr.Bhushan, which reflect the same views as expressed by this Court in the abovementioned decisions.
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42. From the facts as disclosed and the submissions made on behalf of the respective parties, there is little doubt in our minds that the Order dated 13-06-2002, by which the respondent was discharged from service, was punitive in character and had been motivated by considerations which are not reflected in the said order.
45. Since the High Court has gone into the matter in depth after perusing the relevant records and the learned Additional Solicitor General has been not able to persuade us to take a different view, we see no reason to interfere with the judgment and order of the High Court impugned in the special leave petition. Not only is it clear from the materials on record, but even in their pleadings the petitioners have themselves admitted that the Order of 13-06-2002, had been issued on account of the respondent's misconduct and that misconduct was the very basis of the said order. That being so, having regard to the consistent view taken by this Court that if an order of discharge of a probationer is passed as a punitive measure, without giving him an opportunity of defending himself, the same would be invalid and liable to be quashed, and the same finding would also apply to the respondent's case.
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46. As has also been held in some of the cases cited before us, if a finding against a probationer is arrived at behind his back on the basis of the enquiry conducted into the allegations made against him/her and if the same formed the foundation of the order of discharge, the same would be bad and liable to be set aside. On the other hand, if no enquiry was held or contemplated and the allegations were merely a motive for the passing of an order of discharge of a probationer without giving him a hearing, the same would be valid. However, the latter view is not attracted to the facts of this case.
12. Therefore, the law on the point is fairly well settled. Whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. If the form and language of the so-called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. The order speaks for itself. The 22 stigmatic words are found in the order itself. No enquiry is required. However, in case, where the services of a probationer is terminated by an order of termination simpliciter, language and form of it do not show either it is punitive or stigmatic on the face of it, in such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct. In other words, the facade of the termination order may be simpliciter, but the real face behind it to get rid of the services of a probationer is on the basis of misconduct. There may be a background of attending circumstances to show that the misconduct was the real basis and design to terminate the services of a probationer on the basis of the misconduct. The substance of the order and not the form would be decisive. If a discharge is based upon misconduct or if there is a live connection between the allegation of misconduct and discharge, then the same, even if couched in 23 language which is not stigmatic, would amount to a punishment for which a departmental enquiry was imperative. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. If an order of discharge of a probationer is passed as a punitive measure, without giving him an opportunity of defending himself, the same would be invalid and liable to be quashed. It is purely a question of fact to be decided on the basis of the facts and circumstances that exists, in that particular case. If there are any Rules governing the probationer, those also are to be looked into.
13. Rules 6 of the Karnataka Civil Services (Recruitment to District Cadres) Rules, 1994 (for short, hereinafter referred to as 'the Rules') reads as under:
"Discharge of a probationer during the period of probation:24
(1) Notwithstanding anything in Rule 5, the Appointing Authority may, at any time during the period of probation, discharge from service a probationer on grounds arising out of the conditions, if any, imposed by the rules or in the order of appointment, or on account of his unsuitability for the service or post; but the order of discharge except when passed by the Government shall not be given effect to, till it has been submitted to and confirmed by the next higher authority."
(2) An order discharging a probationer under this rule shall indicate the grounds for the discharge but no formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, shall be necessary Rule 7 deals with the termination for misconduct:
No order terminating the services of a probationer, whether during or at the end of the period of probation for any misconduct, shall be passed except in accordance with the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957.25
14. A harmonious reading of these two rules make it clear that a probationer could be discharged from service on three grounds. They are:-
(1) On the conditions imposed by the rules, (2) On the conditions imposed by the order of appointment, (3) On the ground of unsuitability
15. The order of discharge shall indicate the ground of discharge. When a probationer is discharged on any of these grounds, no formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal Rules 1957) shall be necessary. However, no probationer can be discharged on the ground of misconduct. It is because such cases are covered under Rule 7 . If a probationer is discharged on the ground of misconduct, it amounts to termination. Rule 7 expressly provides that no order terminating the services of the probationer shall be passed on the ground of misconduct except in accordance with the aforesaid Rules of 1957. The reason being, it amounts to removal from service within the meaning of Article 311(2) of the Constitution of India, which gives him a constitutional 26 protection from illegal termination, thus securing certainty of service.
16. In the light of the aforesaid law declared by the Apex Court and in the light of the aforesaid statutory provisions, it is necessary to find out whether in this case, the probationer was discharged on the ground of misconduct?
17. The material which is not in dispute and which is produced on record shows that the petitioner joined the services of NIMHANS after obtaining Master Degree in Psychology and Specialized in Clinical Psychology from Bangalore University and Ph.D Degree in Psychology from Mysore University. While working at NIMHANS, she was appointed as Assistant Director of Forensic Psychology w.e.f. July 1999 for a period of one year on contract basis to conduct Narco Analysis and Brain Mapping tests on various under-trials, suspected accused who were involved in committing murders and other organized crimes from 1999 till 2007. On the expiry of one year, her appointment was 27 continued on contract basis. In W.P.(HC) No.122/2005 before the Division Bench of this Court, when the court expressed displeasure about the delay in getting the forensic report, the Chief Secretary to the Government of Karnataka filed an affidavit on 19-6-2006 has sworn to as under:
5. I submit that, there is only one expert viz., Dr.(Smt) S. Malini available in the Forensic Psychology Division to conduct Polygraph, Brain Mapping and Narco Analysis tests after observing all the procedural protocols laid down in the manual issued by MHA, Government of India.
6. I submit that, the Narco Analysis test is conducted in the operation theatre with the help of Anesthetists available in the Government hospital. The availability of the Operation Theater in the Government Hospital and that of those anesthetists who have experience in conducting anesthetic procedures for Narco Analysis; is also rare. It is further submitted that, the rarity and the unavailability of experts for Brain Mapping and others in the fields of Clinical Psychology and anesthesia, OT for Narco Analysis are the impediments responsible for delay.
7. I submit that apart from the expertise required in the above fields the skills involved in 28 handling the persons are widely different from that of those handled for other therapies.
Therefore, the Brain Mapping test for retrieval of Crime information is done only in FSL, Bangalore and not in any other institution in the state.
8. I submit that, even though the clinical psychologists are available in CFSL, CBI. New Delhi no Brain mapping and Narco analysis tests are yet undertaken. It is also further submitted that no other state FSL excepting Karnataka and Gujarat are undertaking cases for Brain mapping and Narco Analysis tests because of paucity of experts.
9. I submit that, on consideration of the impediments explained above and the expertise of Dr.(Smt).S.Malini, the Govt., has been extending her contract without any break since the date of her appointment of issuing Govt., orders. The proposal of regularization of the services of Dr.Malini will be considered by the Government at the earliest.
18. Instead of regularizing the services of the petitioner, the Government issued a notification calling for applications and framed Special Rules as per Annexure-A- 15, which is called as Karnataka State (Forensic Science 29 Laboratory Services) (Recruitment to the post of Assistant Director Forensic Psychology) (Special) Rules, 2006. In pursuance to the said Rules, a notification came to be issued calling for applications to the post of Assistant Director. As the petitioner was only the candidate who possessed the requisite qualifications and experience, she was appointed as Assistant Director Forensic Psychology by an order dated 30-6-2007 (Annexure A-13). She reported for duty on 5-7-2007. During this interregnum, when she was performing her duties as Forensic expert, her service was recognized by various authorities. The Directorate of Forensic Sciences had issued a Commendation Certificate as per Annexure-A4 dated 18-1-2004 certifying that the petitioner is highly Commendable in achieving Excellence in providing Forensic Science Support Service to Crime Investigation. The Department of Police, Government of Karnataka also issued a Commendation Certification to the petitioner for the commendable work done by her in the discharge of her official duties/concluding a special assignment, as per Annexure-A5 which is dated 9-6-2006. Similarly, the Directorate of Forensic, Ministry of Home Affairs, Government of India issued a DFS Meritorious 30 Certificate certifying that the petitioner is awarded with DFS Meritorious award in Forensic in recognition of her outstanding contribution made in the field of Laboratory Analysis. The Commissioner of Police, Mysore, by a letter dated 3-1-2006, addressed to the second respondent commended the service of the petitioner in the Investigation of Serial Killings of the animals in the Mysore Zoo as per Annexure-A9. The Commissioner of Police (Administration), Hyderabad City also Commended the service of the petitioner regarding sincere and hard work put in by her in subjecting number of accused to scientific tests even on holidays in the bomb blast that took place on 18th may 2007 and again on 25th August 2007 at Hyderabad. He has stated that due to her untiring and systematic efforts, a lot of information was revealed, which has helped the investigations to proceed systematically. The Kerala High Court, while disposing I.A. No.1614/2008 in W.P.(C) No.35590/2007 on 4th day of September, 2008 has made certain observations, which reads as under:
"Before parting with this case, I wish to place on record the valuable response shown to this Court by Dr.B.M.Mohan, Director, Forensic 31 Science Laboratory, Bangalore and Dr.S. Malini, Asst. Director, Forensic Psychology Division, FSL, Bangalore. It is a matter of great pleasure to note that notwithstanding the fact that the FSL is under the Police Department, the aforementioned officers have exhibited remarkable independence and integrity in apprising this Court of the true facts. Even before getting the inputs from the FSL, Bangalore, the impression which this Court, had gathered was that a CD was enclosed with each of the narco reports pertaining to the three suspects. It was the said impression which has been confirmed by the FSL, Bangalore. I have the least suspicion that the FSL, Bangalore had indulged in either editing or manipulating the CDs so as to make them incongruous, illogical or incompatible with the narco reports submitted by them. The Registrar General shall convey the appreciation of this Court to both the aforesaid officers."
19. The fact that she was in service as contract employee for a period of 7 years continuously and during that period she was involved in number of sensitive cases, her hard work and ability was appreciated by various authorities is not in dispute. In fact, she is a National 32 Award winner and renowned researcher, specialized in conducting Narco Analysis and Brain Mapping tests for various under-trials, suspects involved in sensational cases from across the country. She has done her yeomen service to the country and she has received number of awards, appreciations and recommendations, including recommendations from Maharashtra Government for solving the sensational Stamp Paper case where she had conducted Narco Analysis test on Sri.Abdul Karim Telgi and for Bombay Blast case, Malegoan Blast Case, wherein, because of her Narco Analysis Report, the Maharashtra Government was able to secure 38 live bombs. Further, she had also received recommendations from the Andhra Pradesh Government for helping to solving the sensational Hyderabad Mecca Masjid Bomb Blast and also helped to solve the sensational Arushi case. In the Sister Abhaya murder case which has been pending for nearly 17 years, Kerala High Court gave their appreciation for the work the petitioner has performed. All these materials clearly establish that she is specialized in the field, she has put in hard work, she has been helpful in the criminal justice administration and she was suitable for the said post. 33
20. It is not the case of the respondents that the petitioner is not suitable for the said post. Very strangely, after the appreciation given by the Kerala High Court to her in Sister Abhaya murder case, her problem started. Curiously, an enquiry was initiated to find out her date of birth on the ground that she had tampered her SSLC Marks Card. In addition to that, she was also accused of having private practice and behind her back, the DGP submitted a report finding her guilty of those two charges of misconduct. In the meanwhile, she became the center of controversy on the Floor of the Karnataka Legislative Council, the entire proceedings has been recorded. A substantial portion of it has been extracted by the Tribunal. It clearly demonstrates that the opposition parties wanted to oust her from the said post forthwith. Though the Home Minister promised action and directed issue of notice on the aforesaid ground of misconduct, the Members of the opposition parties wanted her removal forthwith, without any notice being issued to her and without any enquiry. In fact, the records show that the DGP has described her as "Threat to the Security of the State" and such person should not continue in the office 34 even for a second. The Tribunal on going through the entire proceedings of the legislature at paragraph 38 has categorically held that even the opposition leaders have vehemently and strongly demanded discharge of the applicant. It has become sensational issue and all the media people were day to day either telecasting or publishing the issue in television and newspapers. A glimpse of the entire proceedings show that there were heated exchange of arguments between the Members on the Floor of the Legislative Council. They adjourned the proceedings for 15 minutes........ etc. However, at the end, a decision was taken and for that decision, the Tribunal at paragraph 65 records its appreciation in the following words:
"We feel, word of appreciation to our opposition leaders is necessary. They have taken up such a sensational matter on the Floor of the Council and tried to excavate the truth or otherwise of some of the erring officers. This shows that our leaders are alert and watching the working pattern of the State."
Therefore, it is clear that the foundation for removal of the petitioner is the proceedings of the legislature and the 35 valiant efforts put forth by the leaders of the opposition parties.
21. On reading of the order of the Tribunal, it clearly shows that the Tribunal was completely carried away by the said proceedings and according to the Tribunal, her termination was justified because those allegations constitute a serious misconduct and in fact she was "Threat to the security of the State". Therefore, it is not a case of termination of service on the ground of unsuitability, it is on the ground of those charges against her which constitute misconduct. If it is the misconduct that is the foundation for her termination, Rule 7 is applicable and not Rule 6. Then the authorities ought to have initiated an enquiry, establish those acts by adducing the evidence. The petitioner should have been given an opportunity to cross- examine them and to have her say in the matter. When this was pointed out to the Tribunal, it had rejected the said contention on the ground that all these facts were within the knowledge of the applicant. When it became the sensational issue and the media people were either telecasting the issue in Television or in Newspapers, the court can take judicial 36 note of that and the applicant could have taken this opportunity and oppose, if she has any proof to support her date of birth. Therefore, the Tribunal proceeded on the assumption that when once all these allegations were made known to her through media and newspaper and the same was being agitated on the Floor of the House which constitutes sufficient notice to her, then the burden shifts on her to disprove the said case. She having not taken any steps to disprove the allegations against her, no enquiry against her was not necessary. Further, it is stated in the report of the DG and IG and in the confidential letter to the Chief Secretary, there is reference to the documents relating to the date of birth and also she was working in Spandana Nursing Home. The petitioner is silent in so far as these documents are concerned. Her only argument is enquiry was not a formal one and it was done behind her back. When she did not dispute these documents, it cannot be said that principles of natural justice is violated and non holding of an enquiry in any way has effected her. Thereafter, the Tribunal looked into the documents i.e., the xerox copy of the SSLC marks card and records a finding on the basis of the documents produced by the Government 37 that at the time of appointment, without any verification of the original testimonials, she was given an appointment. She had submitted fabricated documents and tampered documents and making statements which are incorrect or false and used illegal means to obtain appointment which is liable for criminal prosecution or disciplinary action. Therefore, it comes to the conclusion that the order of discharge is not stigmatic and no enquiry was required.
22. From the aforesaid facts, it is clear no enquiry as contemplated under law has been initiated by the respondents. No charge sheet was given to her. No reply was sought. No enquiry was conducted and no witnesses were examined and no documents were produced and no opportunity to cross-examine was given to her. This is what the law expects. Unfortunately, the Tribunal has over simplified the whole thing without reference to the law and comes to the conclusion that no enquiry was required. After coming to such an opinion, virtually it conducts an enquiry and looks into the documents produced and then records a finding. This approach of the Tribunal to say the least, is not what is contemplated under law. These Tribunals are 38 constituted as specialized bodies which have rich experience in service matters. This approach of the Tribunal is unknown to service jurisprudence. The very finding shows that the order of discharge is passed on the ground of misconduct. This is not a discharge simpliciter. Therefore, Rule 7 was attracted as held by the Apex Court in Shamsher Singh's case and enquiry was a must under the Rules. It is only after recording a finding of misconduct, her service could have been terminated. As the material on record shows her service came to be terminated because of the pressure mounted by the opposition party on the floor of the legislature and she was removed without enquiry being conducted and without notice being given, it can be held that the order impugned is passed without application of mind which is contrary to law. The termination is on the ground of proved misconduct in an enquiry conducted behind the back of the petitioner and on the basis of a finding by The Tribunal while hearing the application. It is totally unsustainable in law. In this view of the matter, the order passed by the Tribunal and the impugned order of discharge is both contrary to law and illegal and are liable to be set aside. Hence, we pass the following order: 39
The writ petition is allowed.
a) The impugned order passed by the Tribunal is hereby set aside.
b) The impugned order of discharge simpliciter (A1) dated 28.02.2009 is hereby quashed.
c) The petitioner is entitled to be reinstated forthwith with all consequential benefits.
d) No costs.
Sd/-
JUDGE
Sd/-
JUDGE
mpk/vg/ujk