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A. RAJENDRA PANICKER v. KERALA STATE WAREHOUSING CORPORATION - WP(C) No. 37287 of 2003  RD-KL 102 (11 August 2005)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWP(C) No. 37287 of 2003
1. A. RAJENDRA PANICKER, AGED 45 YEARS,
1. KERALA STATE WAREHOUSING CORPORATION
2. G. MOHANDAS, "SIVAM",
For Petitioner :SRI.V.GIRI
For Respondent :SRI.K.RAMAKUMAR
The Hon'ble MR. Justice S.SIRI JAGAN The Hon'ble MR. Justice S.SIRI JAGAN
Dated : 11/08/2005
O R D E R.PL 60 .TM 3 .BM 3 .SP 2
S. Siri Jagan, J.
j W.P(C).Nos.37287/2003, 20554, 28326 & 14851/2004 j
j Dated this, the 11th day of August, 2005. j ((HDR 0 [W.P(C) No. 37287/2003 etc.] -: # :- )) .HE 1
J U D G M E N T
j Parties in these four writ petitions are the same. The subject matters in these writ petitions are interconnected also. Therefore, as agreed to by the parties, these writ petitions were heard together and are being disposed of by a common judgment.
2. The petitioner, the same in all these writ petitions, is an Executive Engineer in the services of the Kerala State Warehousing Corporation, the 1st respondent herein, which is a statutory Corporation owned by the State of Kerala incorporated under the Warehousing Corporations Act, 1962 of which the 2nd respondent is the present Managing Director, who is impleaded in his personal capacity as allegations of mala fides are raised against him. W.P(C) Nos.37287/2003, 20554 and 28326 of 2004 relate to disciplinary proceedings on three separate memo of charges against the petitioner and W.P(C) No.14851/2004 relates to his transfer and non-sanction of increments. It is necessary to narrate here some history also since W.P(C) No.37287/2003 was once disposed of by a learned Single Judge and later a learned Division Bench set aside the judgment of the learned Single Judge and remanded the same for fresh consideration on merits.
3. W.P(C) No.37287/2003 was filed challenging the
punishment of reduction to the post of Assistant
Executive Engineer for a period of two years, imposed
on the petitioner by Ext.P15 order dated 11-11-2003
passed by the Managing Director of the 1st
respondent. The same was once disposed of
learned Single Judge by judgment dated 26-11-2003
directing the petitioner to exhaust the
remedy by way of appeal available to him without
considering the writ petition on
petitioner challenged the same by filing W.A.No.2084
of 2003 which was disposed of
by a Division Bench by
the judgment dated 30-9-2004, in which it was held as
"Since we are inclined to remit the case i back to the learned single Judge in the light of the subsequent developments that have taken place, it is not necessary for us to state the facts giving rise to this Writ Appeal. Suffice to mention that disciplinary proceedings were initiated against the appellant, who was served with a memo of charges and departmental enquiry was held against him. Charges are said to have been proved on the basis of which the Managing Director by his communication dated 11-11-2003 reverted the appellant from the post of Executive Engineer to that of Assistant Executive Engineer for a period of two years with effect from the date of the communication. It was against this order that the appellant filed W.P(C) No. 37287 of 2003 in this Court making serious allegations of mala fides against the second respondent, who is the Managing Director of the Kerala State Warehousing Corporation. The learned single Judge did not examine the allegations of malafides and without obtaining the comments or counter affidavits of the respondents in the Writ Petition, disposed of the same by relegating the appellant to pursue the remedy of appeal before the Board of Directors. It is alleged that the remedy of appeal in the circumstances of the case is not efficacious.
2.We are informed that subsequent to the i passing of the order dated 11-11-2003, the appellant was served with two more charge sheets and disciplinary proceedings have been initiated against him and that he has challenged those proceedings in two separate Writ Petitions, which are pending before the learned single Judge. Learned counsel for the appellant states that those disciplinary proceedings have also been challenged on the ground of mala fides. Since the learned single Judge hearing those petitions is likely to examine the issues raised in those petitions and also the allegations of mala fides, we think it necessary that this case be also remitted back to the learned single Judge for a decision on merits so that the allegations of mala fides could be examined comprehensively. We are adopting this court, because the learned single Judge, who disposed of the Writ Petition out of which the present appeal has arisen did not go into the allegations of mala fides, which are now being seriously pressed before us.
3.Accordingly, we set aside the order i under appeal and remit the case back to the learned single Judge for a decision of the Writ Petition on merits, in accordance with law. Parties through their counsel have been directed to appear before the learned single Judge on October 7, 2004. Till then, the interim order granted in this Writ Appeal shall continue. The learned single Judge may consider the desirability of disposing of the matter expeditiously." .SP 2 It is, as per the above direction of the Division Bench, the said writ petition, along with three other writ petitions have come up for hearing before me.
4. I may briefly refer to the facts of the case as stated by the petitioner in each of the four writ petitions as follows: W.P(C) No. 37287/2003.
5. During 1997, when one Lt.Col. K.G.Ramachandran was the Managing Director of the 1st respondent Corporation, the Corporation decided to take part in the tender invited by the Kerala Live Stock Development Board (KLDB for short), Trivandrum for construction of its Staff Quarters and Pig Breeding Centre at Puthur in Trichur District. The then Managing Director deputed the petitioner to Trivandrum to take part in the tender proceedings. Accordingly, the petitioner, along with Overseer Sri. Lalji V.C., went to Trivandrum (the Head Office of the Corporation is at Kochi). In consultation with the Managing Director, the petitioner worked out the rate to be quoted in the tender and quoted at +30.88% of the KLDB rate. This was on 8-10-1997. After submission of the tender, the petitioner and the Overseer returned to Kochi. On 17-11-1997, the KLDB invited the Corporation for negotiation on the tender submitted by it. The Managing Director again deputed the petitioner to attend the negotiation with instruction to stick on to the quoted rate. During discussion, the Managing Director of the KLDB pressed the petitioner to get sanction to reduce the rate by at least 5%. The petitioner immediately contacted the Managing Director of the Corporation over telephone from the chambers of the Managing Director of KLDB. The Managing Director of the Corporation granted permission to the petitioner to reduce the rate by 2%. On 6-1-1998, the petitioner was deputed to execute the agreement at Trivandrum on behalf of the Managing Director of the Corporation as per order dated 30-12-1997 which order was signed both by the then Managing Director and the then Executive Engineer-I. A bank guarantee for Rs.1 lakh prepared by the Finance Department of the Corporation was also furnished while signing the agreement. However, the work undertaken could not be carried out on account of escalation in prices of materials, especially that of sand on account of ban on sand mining and the work becoming inviable at the quoted rate. This was informed to KLDB, who refused to increase the rate. The KLDB cancelled the agreement and rearranged the work at the risk of the Corporation. Accordingly, the KLDB completed the work at +40.5% over KLDB rates and demanded the difference from the Corporation. Both being establishments owned by the State of Kerala, the Government of Kerala referred the dispute to the High Power Committee for the redressal of inter-departmental issues. At the meeting of the High Power Committee in which the Managing Directors of the Corporation and KLDB participated, the dispute was settled deciding that, (1) the Corporation and KLDB will not enter into any litigation over the issue, (2) the forfeiture of the security deposit of Rs.1 lakh will not be reconsidered and KLDB will not insist on its claim of Rs.2,70,537/- from the Corporation.
6. When notes were prepared regarding the decision of the High Power Committee for placing before the meeting of the Board of Directors, the new Managing Director directed the then Executive Engineer-I to give a detailed note fixing the responsibility of the officer concerned regarding the whole episode. Subsequently, disciplinary proceedings were initiated against the petitioner by Ext.P5 memo of charges dated 25-5-2002 alleging that the petitioner unauthorisedly quoted +30.88% above the estimate rate, unauthorisedly negotiated with KLDB and has reduced the rate to +28.88% above the estimate rate which was unworkable, caused the Corporation to sustain loss of an amount of Rs.1,00,000/- and interest thereon towards forfeiture of security deposit by doing the aforesaid act, quoted such low rate without properly assessing the value of the contract, caused the Corporation to earn bad reputation in the field of construction works, did not serve the Corporation faithfully, thus, violating clause 20(2) of the Staff Regulations and was guilty of negligence, inefficiency and indolence and dereliction of duty.
7. The enquiry officer found the petitioner guilty of all the charges levelled against him. Thereafter, the petitioner was served with Ext.P10 show cause notice dated 9-9-2002 proposing a punishment of reversion to the post of Assistant Executive Engineer for a period of two years and recovery of Rs.1 lakh with interest from him, along with which a copy of the enquiry report was enclosed. Despite the reply submitted by the petitioner, the punishment of reversion as proposed was imposed on the petitioner by Ext.P15 order dated 11-11-2003 and 25% of the pecuniary loss of Rs.1 lakh sustained by the Corporation due to the forfeiture of the security deposit by KLDB was directed to be recovered from the petitioner.
8. By another order dated 12-11-2003 (Ext.P16), the Headquarters of the petitioner was shifted from State Warehouse, Kanhangad to State Warehouse, Kannur. (It appears that pending the above disciplinary proceedings, on 12-6-2002 the petitioner was transferred to Kanhangad.)
9. The petitioner challenged Exts. P15 and P16 orders in W.P(C) No.37287/2003. The same was initially disposed of by a learned Single Judge at the time of admission by judgment dated 26-11-2003 relegating the petitioner to the statutory remedy by way of appeal and directing that till such time orders are passed and communicated to the petitioner, any steps for proceeding against the petitioner, including recovery, are not to be enforced, which was later set aside by a Division Bench and remanded for fresh disposal on merits. W.P(C) No. 20554/2004.
10. On 26-11-2003 itself, after disposal of W.P(C) No.37287/2003 as above, the petitioner filed a representation (Ext.,P3) before the Managing Director of the Corporation, requesting that in view of the directions in the judgment of the High Court, he may be allowed to join as Executive Engineer-I in the Headquarters of the Corporation and stating that copy of the judgment has not been received so far and the same will be handed over as soon as it is received. The petitioner produced the certified copy of the judgment dated 26-11-2003 before the Managing Director on 28-11-2003. Thereafter, the Managing Director issued a letter dated 29-11-2003 (Ext.P4) to the petitioner stating that the petitioner falsified the order of the Court and created a scene at the Head Office asking for a cabin and informing other employees that the petitioner has joined as Executive Engineer-I at the Head Office. By the said letter, the petitioner was directed to report at the Warehouse, Kanhangad.
11. Thereafter, a memo of charges dated 2-12-2003
(Ext.P8) was issued to the petitioner
(a) After cancelling medical leave, without a fitness certificate, instead of joining at the Warehouse at Kanhangad where he was working, the petitioner attempted to join at Head Office, falsely stating that he was permitted to do so by the High Court.
(b) The petitioner misled the Corporation by stating that the High Court has directed the Corporation to allow him to join as Executive Engineer without producing the judgment, fully knowing that the said statement was false which conduct is not befitting an officer of the petitioner's rank.
(c) In spite of the direction of the Personnel Manager to produce the copy of the Court order, the petitioner created a scene at Head Office by asking for a cabin and informed other employees that he has joined as Executive Engineer-I at Head Office and sat in the Head Office throughout on 27-11-2003 and 24-11-2003. This amounted to breach of discipline and violation of Rules of Conduct.
(d) While being on medical leave from 23-11-2003 to 30-11-2003, the petitioner attempted to join duty at Head Office and created unpleasant scenes against the discipline and decorum of an office. The petitioner misled the Corporation by submitting leave on medical grounds while he was not sick.
12. An enquiry was ordered on the charges and an enquiry officer was appointed, by order dated 13-5-2004 (Ext.P15). By communication dated 28-5-2004, the enquiry officer posted the enquiry to 26-6-2004. By letter dated 7-6-2004 (Ext.P17), the petitioner requested the enquiry officer to keep the enquiry in abeyance till a final decision is taken in W.A.No.2084/2003 filed by the petitioner, which request was rejected. By letter dated 30-7-2004 (Ext.P19), the petitioner requested the enquiry officer to allow the petitioner to engage one Sri.V.Chandrakanth, a co-employee as his defence assistant or a lawyer of his choice. By proceedings recorded on 31-7-2004 (Ext.P20), the said request was also rejected. The request was repeated by letter dated 31-7-2004 (Ext.P21), which was again rejected by proceedings recorded on 13-8-2004.
13. In the mean time, the petitioner had already challenged the disciplinary proceedings by filing W.P(C) No. 20554/2004 on 12-7-2004. Although the petitioner sought for stay of further proceedings, this Court, by order dated 13-7-2004, allowed the proceedings to be continued, but directed that final orders shall be passed only after obtaining further orders from this Court. I.A.No.12201/2004 was also filed on 11-9-2004 for a direction to allow the petitioner to engage Sri.V.Chandrakanth as his defence assistant. However, in the meanwhile, the enquiry officer completed the enquiry ex parte and submitted her report dated 15-9-2004 (Ext.P23) based on which punishment of reduction to the post of Assistant Executive Engineer permanently was proposed by show cause notice dated 4-1-2005 (Ext.P24). I.A.No. 8416/2005 was filed seeking to amend the writ petition to include the challenge against the further proceedings also, which was allowed by me by order dated 13-6-2005. W.P(C) No. 28326/2004.
14. By a communication dated 14-5-2004 (Ext.P17), the Managing Director informed the petitioner that the Government have directed to take departmental action on the points raised by one Sri.A.Sudarsanan, Advocate, Vaikom in his complaint, about the petitioner, of amassing wealth disproportionate to his known source of income, copy of which complaint was enclosed with the letter. The petitioner was directed to offer his explanation on the points raised in the said complaint. The allegation in the complaint was that there was corruption in the purchase of 242.45 cents of land in Paravur, Ernakulam for the Corporation and that the former Managing Director and the petitioner were directly responsible for this purchase of land. It was also alleged therein that the petitioner had purchased a plot of land at Maradu in Ernakulam District and built a house costing Rs.30 lakhs, that he had no other source of income, that he had gained money disproportionate to his known source of income and, therefore, it can be inferred that the house built is at the cost of the Corporation.
15. The petitioner submitted his explanation dated 25-5-2004 (Ext.P18) explaining that the land at Paravoor was purchased as per a collective decision of all concerned after complying with all procedural formalities and that the cost paid for the land was less than the value fixed by the District Collector and the revenue officials. Regarding the land and house at Maradu, the petitioner denied having any such plot or constructed house at Maradu in Ernakulam.
16. Thereafter, on 27-5-2004, the Managing Director issued a letter (Ext.P19) to the petitioner directing him to furnish his property statement in respect of himself, his wife and his dependants showing the details of the movable and immovable property possessed and disposed of, year of possession, value and the source of income. By reply dated 3-6-2004 (Ext.P20), the petitioner filed a statement showing details of "assets owned by himself and his family consisting of his wife and daughter aged 19 years." The statement referred to movable and immovable properties in the name of his wife and himself. By another letter dated 14-6-2004 (Ext.P21), the Managing Director informed the petitioner that the statement did not contain details as required by rules and directed him to file a detailed property statement. By reply dated 16-6-2004 (Ext.P22), the petitioner forwarded copies of statement submitted by him before the Lok Ayukta, stating that the same was furnished previously before the Lok Ayukta in the years 2000 and 2001 in the prescribed form which was furnished to comply with the instructions of Hon'ble Lok Ayukta to satisfy the prevailing rules. On receipt of the said statement, the Managing Director again wrote to the petitioner, by letter dated 18-6-2004 (Ext.P23) informing him that instead of giving a detailed reply, the petitioner gave a copy of the statement said to have been submitted to Lok Ayukta and that the Corporation is not concerned with the statement furnished to Lok Ayukta. The petitioner was again directed to give specific reply to the earlier letter. By letter dated 24-6-2004 (Ext.P24), the petitioner replied stating that the details of property under possession of himself and his family was initially submitted to the Corporation in 2000 and 2001 to comply with the directions of the Government of Kerala which was handed over to the Lok Ayukta by the Corporation and copy of the same was kept with the administration department.
17. Thereafter, the petitioner was served with a memo of charges dated 8-7-2004 (Ext.P25) alleging that, (1) the petitioner refused to submit a detailed statement as required under the rules of the property owned or possessed by him, his wife and dependants, in spite of the repeated directions of the Managing Director and (2) purposefully misled the Corporation and attempted to mislead by giving some details of his property in a vague, unclear and haphazard manner, without disclosing full details and specifying the required particulars of the movable and immovable properties owned and possessed by him, his wife and dependants with the deliberate object of concealing the total valuation of the wealth possessed by him and prevent a proper assessment of the value. By letter dated 30-7-2004 (Ext.P27), the petitioner requested the Managing Director to furnish him with copies of documents relating to the purchase of land at Paravoor to enable him to file explanation to the charge memo. However, by letter dated 3-8-2004 (Ext.P29), the Managing Director rejected the request of the petitioner on the ground that none of the documents sought for by the petitioner have any relevance to the nature of the charges levelled against the petitioner. It was also stated therein that they only relate to transactions of the Corporation and it will not be proper to provide the documents sought by the petitioner. The petitioner, thereafter, filed his explanation dated 7-8-2004 (Ext.P30) to the charge memo. On receipt of the same, the Managing Director, by letter dated 4-9-2004 (Ext.P31), appointed an enquiry officer to conduct an enquiry on the memo of charges. The petitioner filed W.P(C) No.28326/2004 challenging the said memo of charges and proceedings thereto. W.P(C) No. 14851/2004.
18. After initiating the disciplinary proceedings which is the subject matter of W.P(C) No. 37287/2003, on 12-6-2002, the petitioner was temporarily transferred to Kanhangad by Ext.P4 order, stating two reasons, namely, (1) it is necessary to closely monitor the work at Padanakkad under the financial assistance of Revamped Public Distribution Scheme of Government of India and (2) it is not conducive to retain him at Head Office since a disciplinary proceeding is initiated against him. In compliance with the order, the petitioner joined at Kanhangad. When the work at State Warehouse at Kanhangad was over in April, 2003, the petitioner requested the Corporation that he may be posted back to Headquarters, by Ext.P5 dated 15-5-2003. In the counter affidavit filed by the Corporation in W.A.No.2084/2003, the Corporation took the stand that although the work at Padanakkad was completed, the petitioner was retained at Kanhangad and that although consequent on the imposition of punishment of reduction to the post of Assistant Executive Engineer, the petitioner was transferred to Kannur, the transfer was not implemented in view of the interim order in W.P(C) No. 37287/2003. The petitioner therefore filed W.P(C) No.10909/2004 which was disposed of recording the submission of the counsel for the Corporation that an appropriate posting will be given to the petitioner. By order dated 13-4-2004 (Ext.P6), the petitioner was posted to State Warehouse, Kannur with a direction that the petitioner shall supervise the work at Kasaragod, Kannur, Wynad, Kozhikode and Malappuram Districts. After joining at Kannur, the petitioner filed Ext.P7 representation dated 28-4-2004 requesting that as the senior-most Executive Engineer, he may be posted at the Head Office.
19. The petitioner was also not paid his annual increment for three years. By Ext.P8 dated 9-4-2003, the petitioner was informed that his increment was not sanctioned since disciplinary proceedings reverting him to the post of Assistant Executive Engineer is pending. A representation dated 7-5-2004 (Ext.P9) was submitted against the non-sanctioning of increment for three years.
20. The petitioner challenges Ext.P6 in W.P(C) No. 14851/2004 and seeks a direction to the Corporation to post the petitioner at the Head Office and to pay the annual increments due to him for the years 2002, 2003 and 2004 with arrears accrued.
21. The 1st respondent-Corporation and the 2nd respondent who is the present Managing Director of the Corporation who has been impleaded in his personal capacity since allegations of personal mala fides are raised against him, have filed counter affidavits in all cases refuting the allegations and averments of the petitioner.
22. Elaborate arguments were advanced by Sri.P.Gopinatha Menon, Sri.N.D.Premachandran and Sri. K. Ramakumar, counsel appearing for the petitioner, the 1st respondent Corporation and Sri. G.Mohandas, the 2nd respondent, respectively, which spanned over a period of almost one week. I have considered the pleadings, arguments of counsel as also such of the records of the Corporation produced before me by counsel for the Corporation pursuant to my directions.
23. I must straight away consider and dispose of a preliminary objection raised by counsel for the 2nd respondent. Counsel argued that since an effective alternate remedy by way of appeal under Regulation 25 of the Kerala State Warehousing Corporation General and Staff Regulations, 1963 is available to the petitioner, this Court should not entertain these writ petitions. I can safely repel this contention even without considering the same on merits. W.P(C)No.37287/2003 was, in fact, originally disposed of by a learned Single Judge relegating the petitioner to the said alternate remedy available to him. In so far as in W.A.No.2084/2003 filed against that judgment, a Division Bench had set aside the same and remitted the case back for a decision of the writ petition on merits, referring to the writ petitions against the proceedings pursuant to the subsequent memo of charges, I need do nothing but to reject the contention of counsel without any further adjudication. Since, in the judgment of the Division Bench, the subsequent writ petitions challenging disciplinary proceedings as per the subsequent charge sheets are also referred to, the direction of the Division Bench, which is binding on me, is equally applicable to the other writ petitions also. Regarding the 4th writ petition, since no alternate remedy by way of appeal is provided, the said contention cannot apply to the same. In the circumstances, I reject the said contention and proceed to consider the writ petitions on merit as directed by the Division Bench in W.A.No.2084/2003.
24. Before going into the merits of the case in detail, I consider it appropriate to inform myself about the limits of jurisdiction of this Court in the matter of judicial review of departmental action in disciplinary proceedings under Article 226 of the Constitution of India. It would be useful to quote the relevant portions from some of the decisions on the point which succinctly summarises the law on the point.
25. In many of the Supreme Court decisions, I
find the following quotation from an English
of Lord Hailsham in Chief Constable of North Wales
v. Evans, reported in (1982) 3 All E.R. 141
purpose of judicial review is to ensure that
i the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized or enjoined by law to decide for itself a conclusion which is right in the eyes of the Court." .SP 2
26. In Union of India v. Sardar Bahadur,
in (1972) 4 SCC 618, the Supreme Court
observed as follows in paragraph 15:
"Where there are some relevant materials which the i authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court, exercising its jurisdiction under Article 226, to review the materials and arrive at an independent finding on the materials. If the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the High Court." .SP 2
27. In Union of India v. Parma Nanda, reported
in (1982) 2 SCC
177, the Supreme Court, while dealing
with the jurisdiction of the High Court or Tribunal
with disciplinary matters and
punishment, opined in paragraph 27 thus:
"We must unequivocally state that the jurisdiction
i of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the enquiry officer or competent authority where they are not arbitrary or utterly perverse." (Emphasis supplied) .SP 2
28. In the decision of B.C.Chathurvedi v. Union
of India, reported in (1995) 6 SCC 749, in paragraphs
12 and 13, I find the following observations.
"12. Judicial review is not an appeal i from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with, whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But, that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal, in its power of judicial review, does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or finding and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the i sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C.Goel, this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued." (Emphasis supplied) .SP 2
29. Another decision on the same lines is that of Government of Tamilnadu v. A.Rajapandian reported in (1995) 1 SCC 216.
30. In a later decision of Apparel Export
Promotion Council v. A.K.Chopra, (1999) 1 SCC 759,
while noting all the previous
decisions on this
point, the Supreme Court reiterated the legal
position as follows in paragraph
"16. The High Court appears to have
i overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact based on appreciation of evidence are recorded, the High Court, in writ jurisdiction, may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion with regard to the guilt of the delinquent for that of the departmental authorities. ......." (Emphasis supplied) .SP 2
31. Thus, the legal position on the point is pretty clear to admit of any doubt. But does that mean that once the enquiry has been conducted properly, the High Court, under Article 226, can in no case not even look into the evidence at all? I think not. In the above decisions themselves, the Supreme Court lays down that where the conclusion or findings reached by the disciplinary authority, on the face of the record is based on no evidence or where the findings are wholly perverse or are legally untenable, the Court can interfere (see the portions emphasised). As laid down in B.C. Chathurvedi's case supra, the test in such cases would be as to whether any reasonable person would have reached the conclusion on the evidence recorded. Therefore, if one were to see whether a reasonable person would have come to the conclusion on the evidence, certainly one would have to look into the evidence as well.
32. Reference to a passage from the decision of
the Supreme Court in Kumaon Mandal Vikas
v. Girija Shanker Pant, (2001) 1 SCC 182 may be useful in this regard. In paragraph 19, it is observed: .SP 1
"19. While it is true that in a i departmental proceeding, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings, but the availability of judicial review even in the case of departmental proceedings cannot be doubted. Judicial review of administrative action is feasible and the same has its application to its fullest extent even in departmental proceedings where it is found that the recorded findings are totally perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted, but in the event of there being a finding which otherwise shocks the judicial conscience of the Court, it is a well-nigh impossibility to deny availability of judicial review at the instance of an affected person. The observation as above, however, do find some support from the decision of this Court in the case of Apparel Export Promotion Council v. A.K.Chopra." .SP 2
33. Thus, it is clear that in appropriate cases, the High Court can certainly delve into the evidence on the basis of which a delinquent is held guilty, for the limited purpose of ascertaining whether (1) this is a case of no evidence, or (2) the findings are perverse, or (3) the findings are legally tenable, or (4) a reasonable man would come to the conclusion reached by the disciplinary authority on the evidence adduced or (5) the finding of the disciplinary authority's finding shocks the judicial conscience of the Court.
34. Thus, being informed myself about the legal position on the point as above, I proceed to decide the case on merits applying the principles of law as found above.
35. The allegation of mala fides is common to all writ petitions and the petitioner would even contend that the sequence of events which led to the subsequent disciplinary proceedings one after the other, would prove that the mala fides is clear from the action taken in subsequent writ petitions, and that the manner in which action is initiated against the writ petitioner is a definite pointer to the existence of mala fides. Hence, I would first examine each of the writ petition relating to the disciplinary proceedings on other grounds separately and examine the sustainability of the allegations of mala fides thereafter commonly.
36. In W.P(C) No. 37287/2003, apart from the
ground of mala fides, the petitioner attacks
disciplinary proceedings on the following grounds:
(a) The very factual basis of the memo of charges is non-existent and the statement of allegations do not spell out any misconduct;
(b) the enquiry was conducted in violation of the principles of natural justice;
(c) the findings in the enquiry is based on no evidence and is perverse and no reasonable man would come to the conclusion reached by the enquiry officer and the disciplinary authority; and
(d) the enquiry is vitiated for want of opportunity to show cause against the findings in the report.
37. I will first deal with issues (a) and (c)
together. There are 8 charges enumerated
charge sheet dated 25-5-2002 on which the first
disciplinary proceedings had been initiated.
the same, charges (a) and (b) constitute the overt
acts of misconduct and the others are
emanating from the said overt acts. Charges (a) and
(b) read thus: .SP 1 "(a) Unauthorisedly quoted +30.88% above the
i estimate on 1996 schedule of rate in respect of the tender for the construction of staff quarters for KLDB Board at Puthoor.
(b) Again unauthorisedly negotiated with Kerala i Live Stock Development Board Ltd. and reduced the rate to +28.88% above estimate on 1996 schedule of rates which was unworkable." .SP 2
38. The statement of allegations in support of
these charges read thus:
"As per the decision taken by the High Power Committee constituted for dealing the issues connected with the construction works of Kerala Live Stock Development Board at Puthur, the forfeiture of the security deposit by KLDB would not be reconsidered. Thus, the Corporation has lost an amount of Rs.1,00,000/- by the action of Sri.A.Rajendra Panicker, Executive Engineer (Designs and Estimates). Usually, this Corporation undertakes the construction works for other government departments on deposit work basis. Contrary to this, Sri.A.Rajendra Panicker, Executive Engineer (Designs and Estimates) on behalf of the Corporation submitted the tender for KLDB's construction of Quarters at Puthoor which is outside the laid down objectives of the Corporation. He had quoted + 30.88% for the tender which was later reduced to + 28.88 percent on negotiation with KLDB. Sri.A.Rajendra Panicker stated that all these actions were as per the instructions of then Managing Director and in consultation with him. But, no written proof could be seen with relevant file in respect of above actions and concurrences from Managing Director. Almost during the same period, the Corporation had been engaged in its own works at Attingal and Iritty, consultancy works for COIRFED and deposit works for Agriculture Department. This Corporation had awarded some of the works at the following rates: .JN Work Month of Year of KPWD Rate Tender Schedule quoted. KSWC Iritty 7/96 1992 + 84% Attingal 7/97 1996 + 28.9% COIRFED Mampatta 11/96 1992 + 100% Thumpur 7/97 1996 + 39% Agriculture Dept. Palakkad 5/97 1996 + 42% Eruthiampathy 5/97 1996 + 40% When compared to the above rates quoting a rate of + 28.88% over 1996 schedule of rates was unworkable. This shows his unprofessional approach to policies, planning and proper evaluation which in turn compelled this Corporation to withdraw from its contractual obligations. This had resulted in the payment of damages for the loss sustained by M/s. KLDB. All the above actions of Sri.A.Rajendra Panicker, Executive Engineer (Designs and Estimates) are detrimental to the interest of the Corporation and violation of provisions in the staff regulations of the Corporation. Hence the Charge Memo. Sd/- Managing Director" .SP 2 39 . From the same, it is to be taken that the allegations against the petitioner are that (a) he took part in the negotiations with KLDB without authorisation from his superior officers; (b) he quoted +30.88% for the tender without authority; (c) he further reduced the quotation to +28.88% without authorisation for the same; (d) the rate of +28.88% was unworkable compared to rates quoted for other works; and (e) there is no written proof that these were as per instructions of the then Managing Director as claimed by the petitioner.
40. The contention of the petitioner is that he had submitted the tender as directed by the then Managing Director and conducted negotiation with KLDB as per directions of the then Managing Director. He also contends that the rate of +30.88% above was arrived at by him on the basis of 1996 rates of the Corporation and quotation of the said rate was also as authorised by the Managing Director. Further, according to him, while negotiations were going on between him and the Managing Director of KLDB, the Managing Director of KLDB pressurised him to get sanction for reduction of rate by 5% and therefore he telephoned the then Managing Director of the Corporation from the Chambers of the Managing Director of KLDB and as instructed by the then Managing Director, agreed to reduce the rate by 2%. According to him, at that time, the rate was very much workable and it is because of the sudden increase of price of sand on account of ban on sand mining and other materials that the rate became unworkable. He would also submit that nobody in the Corporation at any time pointed out that the rate is not workable.
41. Against these contentions, respondents would contend that there is no record available to show that the petitioner had been authorised to submit tenders or enter into negotiation and reduce the rate. According to them, the participation in the tender itself was without sanction from the Board of Directors and hence unauthorised. For proving their contentions, they rely on Ext.P1 extracts from the note file of the Corporation on the subject.
42. Since the respondents rely on Ext.P1 to prove the charges against the petitioner, let me examine whether the same in fact supports the charges.
43. In the enquiry, primary documentary evidence
available is the relevant pages of the
(page nos. 19 to 22) relating to the tender. In the
same, the first notings are that
of the petitioner
himself. The same read thus:
Sub: Construction of staff quarters for Kerala
Board (KLDB) at Puthoor in
Thrissur Dist:- reg.
Based on the discussions
I had with the
M.D, KLDB, during my recent visit to Trivandrum,
it is understood
that they have decided to award
the above work at the negotiated rate of +28.88%.
The PAC for
the work is Rs.26,66,696/= including
cost and conveyance of all materials. It is
learnt that the project work is
implemented under Indo Swiss Project and a time
bound completion is required. So prior to the
handing over the site we may carry out
preliminary steps in this regard.
KLDB insisted that there should not be any sub
letting of contract. But, on further discussion,
it is understood that they are
of the opinion to
sub-letting the work to another outside
agency/contractor in order
to get the works
completed within the stipulated time limit. For
this, a list comprising
the contractors those who
have shown satisfactory completion of our works is
(illegible). We may
invite competitive sealed
tenders from these contractors after meeting all
formalities in respect
EE/MD. F/O. Sd/- EE 4/12/97."
Below that is the notings of the then Executive
Engineer-I which read as follows:
"We have taken up construction works of
i other agencies on deposit work/consultancy charge basis till now. In the case of KLDB work, we have to act as contractor and furnish security in terms of Bank guarantee. As it involves financial implication and risk of financial loss rarely, it is better to seek approval of the Board of Directors of Corporation on safer side. Normally, organisations like us, eg. i KSCC, SIDECO, SILK Etc., are to be exempted from EMD, security and retention while participating in Govt. works as contractors. In our case such exemption is not received. EE2 states that the work is going to be i awarded to us @ 28.88% above estimate rate including cost of all materials. So, on subletting the work as a whole, we have to get an offer less than +28.88% with margin of profit compensating our efforts and involvement. We have to recover about 5% of contract amount towards IT, ST etc., from sub contractors' bill remit to the concerned departments whereas KLDB will recover 5% from our claim also. Arranging the work through contractors of the locality on piece work basis item by item may also be taken into consideration. But, on piece work basis, we have to invest considerable amount initially and it may invite audit objections likely. About aspects and possibility of any i additional sales tax burden on us etc., are to be looked into before moving further on the subject. MD may kindly take decision after ascertaining the views of Finance Section also. Sd/- 4/12/97 EE" .SP 2 Below the same, the Managing Director has made the following note inviting comments from the General Manager (Finance). .SP 1 GM(F) Comments Sd/- 8/2. MANAGING DIRECTOR KSWC. .SP 2 Along with the same, the notings of the General Manager (Finance) as are also there under: .SP 1
"So far we have been taking up only i deposit works. Board's prior approval may be obtained for any deviation. If work is to be got done by piece work basis, why our own works are getting executed through contractors. 8/12" .SP 2 Then comes the notings in the handwriting of Executive Engineer-I endorsed by both the General Manager (Finance) and the Managing Director, which reads thus: .SP 1 "As an experimental case, we may take up
i KLDB work as proposed in view of less deposit works in hand now. The contractor for this work may be selected on pre-qualification basis to be advertised in newspapers. The same pre-qualified list of contractors can be used for other construction works also. Regarding the tax and other usual recoveries from contractor's bill, KLDB will deduct it from our claim. So, we need not deduct it from sub contractor's bill. But sub contractor's bill should be less by that quantum of deduction apart from our reasonable profit margin. Sd/- Sd/- Sd/- 11/12 11/12 MANAGING DIRECTOR (EE-I) (GM(F) K.S.W.C" .SP 2
44. It is true that there is no notings in the
file regarding the authorisation by the then
Director regarding deputing the petitioner to submit
tenders and to conduct negotiations
Despite the absence of such written authorisation, no
reasonable man would believe that
Engineer, that too a no. 2 in the hierarchy of
Executive Engineers, would be able
to do all these
things without authorisation. Further, in the
notings in Ext.P1 quoted above,
there is not even a
suggestion that there was anything unauthorised in
the action of the petitioner.
At every stage, the
notings are initialled by the Managing Director
seeking comments from both
Executive Engineer-I as
also the General Manager (Finance). In their
comments, apart from
suggesting that since there is a
deviation from normal practice, the approval of the
Board may be
obtained, there is not even a hint that
any action of the petitioner is not authorised.
noting their comments, the Executive
Engineer-I, General Manager (Finance) and the
Managing Director together have taken the decision to
go ahead with the work. That would mean that either
the Managing Director did not consider approval from
the Board of Directors as suggested by General
Manager (Finance) necessary or that he had full
confidence that his action would be ratified
Board. Either way, the Managing Director took the
final decision. In fact, that decision
conclusively show that all earlier steps taken by the
petitioner in the matter was also as
instructed by him. Otherwise, the first noting to be
made by the Managing Director
would have been "who
authorised the EE to submit tenders and enter into
negotiations" or something
akin to that. Situation
here is quite the opposite. The petitioner initiates
the file on which
the Managing Director invites
comments from the Executive Engineer-I as well as
from the General
Manager (Finance). That would prove
beyond any reasonable doubt that the actions of the
were as authorised by the then Managing
Director. In this connection, the file reveals a
made by the present Managing Director as
"Discussed with EE-I. Please give a i detailed note fixing the responsibility of the officer concerned regarding the whole episode so that I can understand the position before taking a decision in the matter." .SP 2 Below this note, the EE-I has, on 22-4-2002, made the following note: .SP 1 "EE2 to furnish a note separately with details of
i action taken by hi before awarding the work by KLDB and citing written approvals/directions." Under this note, the petitioner has written thus on 26-4-02.
"Sir, i As I directed the details are submitted i herewith separately for kind information." .SP 2 It appears that on the same day, the petitioner has submitted Ext.P4, giving the chronology of events. Ext.P4 is not seen in the enquiry file. In the enquiry file, I find a separate note by the Executive Engineer-I which is not part of the note file. It reads thus: .SP 1 "Tender submitted by KSWC for KLDB's Work
i forfeiture of security deposit:- As per MD's orders on p. 21 of note file, i detailed note on the subject is put up as follows: We had been executing the construction i works of other departments on "Deposit work basis" charging a centage of 12 to 21% and carrying out the work through contractors selected on competitive tender basis. When such deposit work in hand were less, Sri.A.Rajendra Panicker, EE on behalf of the Corporation submitted the tender for KLDB's construction of buildings at Puthur. He had quoted +30.88% for the tender which was later reduced to +28.88% on negotiation with KLDB. In the note dated 26-4-02, submitted now by Sri.A.Rajendra Panicker, EE, it is stated that all those actions by him were as per the instructions of then M.D. and in consultation with him. But no written proof could be seen in the relevant file in respect of above actions and concurrences from M.D. Thereafter actions taken had been recorded in the i note file and approved by the Managing Director as given under:- .SP 1 For selection a contractor to carry out the work, i pre-qualification notice published in news papers. Bank guarantee for Rs. One lakh issued i towards security and Sri.A.Rajendra Panicker, EE was deputed to sign the contract agreement on behalf of M.D. in 1/98. .JN 19 Contractors responded to i pre-qualification notice. When the tenders invited from the panel of contractors, single tender with +98% received. On re-tendering, two tenders received with i lowest rate of +89% which was reduced to +87% on negotiation. KLDB was requested for time extension and i was granted. Even then, we could not find out a i contractor ready to execute the work at a rate around +28.88% which showed that our quoted rate of +28.88% was not a practicable rate at that time. Finally, KLDB terminated the contract i forfeiting the Bank guarantee of Rs.One lakh furnished by us as security and rearranged the work at a rate of +40.5% in 8/98. Lastly the matter was referred to the i High Power Committee. Sd/- .JN 26/4/02 EE." .SP 2 It is interesting to note that the very same Executive Engineer-I, did not in the note file record that the petitioner had not obtained written authorisation from Managing Director nor did he record that the rate quoted was not practicable. Below the above note, there is a note by the 2nd respondent as under. .SP 1
"G.M.(F) i The Corporation has lost Rs.1 lakh by the i action of E.E. Has he carried out the whole operation i with the concurrence of the Finance department. What was the authority of the EE to reduce i the rate to an unworkable position and on what order. Has he got the authority to do so? i Sd/- MANAGING DIRECTOR K.S.W.C." Below this note, there is a sentence in bracket as follows: "(Note continued in separate sheet)" ij .SP 2 This notation would indicate that this whole note was not intended to be part of the note file. All the same, the note of EE-I, does not state that the action of the petitioner was unauthorised. It only states that "not written proof could be seen in the relevant file in respect of the above actions and concurrences from Managing Director. Even assuming that the same could be regarded as accusing the petitioner, there is absolutely no explanation as to why he did not raise the objection at the relevant time. This would indicate that the Executive Engineer-I had some other motive to write so. The file also does not contain any note either by EE1 or the General Manager (Finance) even suggesting that the petitioner had participated in the tender and quoted rate without authorisation. While giving evidence as MW1 in the enquiry, also EE1 did not categorically state that the petitioner has participated in the tender proceedings without authorisation. On the other hand, the answer given by him to question no. 22 in chief examination is quite revealing. The question and answer are reproduced below. "22.
Then again, his answer to question no. 27 is significant.
"27. These answers would certainly suggest that EE1 had had information regarding the tender, though not in writing, even prior to the note dated 4-12-1997 and that although not in writing, the petitioner had prior concurrence from the Managing Director. His answers to pointed questions on this point were evasive and inconclusive. In fact, no where in his evidence does he categorically state that the petitioner had taken part in the tender proceedings without authorisation from the Managing Director nor does he state that he was not informed about the same prior to 4-12-1997.
45. A further allegation is that the rate of +28.88% over the estimate rate was unworkable. In other words, the petitioner quoted an unworkable rate. First of all, as discussed above, the evidence would decidedly show that the rate was quoted with the full knowledge of the then Managing Director. Further, the Executive Engineer-I who was senior to the petitioner and the General Manager (Finance) did not express any doubt regarding the workability of the rate at that time. Of course, the EE-I had suggested certain precautions to be taken while inviting tenders from sub-contractors. The General Manager (Finance) who was also knowledgeable in such matters did not express even that. He only suggested that Board's approval may be obtained and expressed doubt as to why Corporation's own works are executed through contractors if work is to be got done by piece rate basis. As such, no body had any doubt regarding the workability of the rate at least at that time. As such, I am of the opinion that there is nothing at all in Ext.P1 even to suggest that any of the action of the petitioner in the matter of the tender with KLDB was either unauthorised or that anybody thought that the rate quoted was unworkable. On the contrary, the same goes to show that all the officers of the Corporation was quite aware of the entire proceedings and no body at that time had any doubt about the propriety of the actions of the petitioner. If the petitioner was guilty of any indiscretion, the Managing Director, Executive Engineer-I and the General Manager (Finance) were equally culpable. Therefore, Ext.P1 which is the contemporaneous document available and ironically held against the petitioner as proof of his misconduct itself would conclusively show that there was no circumstance warranting initiation of any disciplinary action against the petitioner. No amount of other evidence, oral or documentary, would be sufficient to offset this evidence, which strangely is relied on to prove the misconduct on the part of the petitioner.
46. Here, we may also look at the evidence of the Executive Engineer-I in the enquiry regarding the workability of the rate. At no place in his evidence did the Executive Engineer-I state that the rate of +28.88% was unworkable although he stated that if he were in the place of the petitioner, he would not have quoted that rate. These questions, one in cross examination and two by the Enquiry Officer all found at page 13 of the evidence of MW1 is significant in this regard. Enquiry Officer's question j Then again another answer to a question put by the Enquiry Officer at page 6 of the deposition is very significant. Enquiry Officer's question. j Question nos. 15 to 18 in chief examination also would suggest that EE-I had no definite conclusion that the rate was unworkable. (15) (16) (17) (18) It is after these questions that the Enquiry Officer asked the question as to whether in his knowledge the Corporation had executed any work at the scheduled rate to which Executive Engineer-I answered that it had even gone below the scheduled rate. From the same, it is abundantly clear that the witness was trying his best not to answer the questions conclusively either way. This attitude of the witness has to be viewed in the light of the averment of the petitioner that the Executive Engineer-I was to be retired shortly and his request for extension of service was under processing by the present Managing Director, who initiated the disciplinary proceedings against the petitioner. In any event, it is abundantly clear that the witness has not given any evidence to the effect that the rate quoted by the petitioner was unworkable. This should further be evaluated taking into consideration the facts that (1) both the Corporation and KLDB are fully Government owned organisations; (2) the petitioner derived absolutely no personal benefit whatsoever on account of the tender being accepted by KLDB; and (3) from the Managing Director's decision as per his note dated 12-12-1997, it is clear that the Corporation had less deposit work at hand. As such, the only conclusion possible in the circumstances was that the Corporation really needed the work and the petitioner had been bona fide trying to obtain the work for the Corporation with the authorisation of the Managing Director.
47. For completion of the discussion, let me also
go into certain aspects of the deposition
other Management witness in the enquiry, namely, Sri.
D.Narayanan Nair who was an Assistant
Higher Grade of the Corporation. Here are some of
the questions put to him in chief
examination and the
answers given by the witness.
"Q. (3) Is it possible to carry out a work
according to the scheduled rate? Ans. It depends upon the market rates. Market rates will be usually higher than the scheduled rates. It is not possible. Q.4. When KSCW's own works are tendered, are we getting tenders at rates below the estimated costs? Ans. Recently, we get rates below the estimates. Below rate Q. 6. Q. 7. Ans. Q. 8. Ans. Q. 9 All his answers were also guarded and he never even suggested that the +28.88% quoted by the petitioner was unworkable although he said that he would not have quoted the rate. In short, in his evidence also, there was no proof that the rate quoted by the petitioner was unworkable.
48. There is another circumstance which would
categorically disprove Ext.P5 memo of charges
the notings in file No.DA108 relating to W.P(C)
No.37287/2003 produced before me, I
"162nd E.C.meeting held on 7-11-2003 i resolved that 75% of the pecuniary loss of Rs.1 lakh sustained by the Corporation due to the forfeiture of the security deposit by KLDB is to be recovered from the then Managing Director and inform the Government to recover the amount from the then M.D. ......." .SP 2 This would essentially mean that the Executive Committee was also convinced that the entire procedure was with the authorisation of the Managing Director, which, in turn, should have absolved the petitioner of the charges against him namely that he did everything "unauthorisedly."
49. A copy of the extract from the minutes of the
160th meeting of the Executive Committee is
file no. DA 108. The same contains only the
resolution quoted in Ext.P10. The same
that only the enquiry report was placed before the
Executive Committee. From the same,
it is clear that
while taking the decision, the Executive Committee
did not have the advantage
of considering the
evidence adduced at the enquiry and the proceedings
of the enquiry to see
whether the enquiry was
conducted in compliance with the principles of
As such, it is clear that the
Executive Committee was guided only by what has been
placed by the
2nd respondent before it. This is
further clear from the extract from the minutes of
meeting of the Executive Committee which
decided to impose the punishment. The same reads as
"Reply of Sri.A.Rajendra Panicker, Executive
i Engineer to the show cause notice issued to him. Sri.C.Batra, Director told that it was the i responsibility of the then Managing Director to bring the matter before the Board of Director for getting approval of the Board and hence the then Managing Director was also responsible for the pecuniary loss sustained by the Corporation. He also told that the role of the then Managing Director might be referred to the Government since the Executive committee has no authority to take action against him. After detailed discussion on the matter, i the Executive Committee resolved to impose the punishment of reduction to the post of Assistant Executive Engineer on Sri.A. Rajendra Panicker for a period of two years with immediate effect and also to recover 25% of the pecuniary loss of Rs.1 lakh sustained by the Corporation due to the forfeiture of the security deposit of M/s. KLDB and authorized the Managing Director to issue necessary orders in this regard. Executive Committee also resolved that 75% of the pecuniary loss be recovered from the then Managing Director and inform to Government to recover the amount from the then Managing Director since the Executive Committee has no authority to recover the amount from him." .SP 2 This would indicate that the Executive Committee was considering as to whether there was approval of the Board of Directors for participating in the tender, which is not part of the allegations either in the memo of charges or the statement of allegations. Further, it also shows that the Executive Committee has indicted the Managing Director also. If the Managing Director was found responsible, it goes without saying that what the petitioner has done was not without authorisation from the Managing Director, which would cut at the root of the disciplinary proceedings itself.
50. Of course, the respondents would draw my attention to some further acts on the part of the petitioner such as signing of the agreement with KLDB etc., which are subsequent events about which there is absolutely no mention in the charge sheet.
51. In the above circumstances, I have no hesitation to hold that there is absolutely no evidence whatsoever to hold the petitioner guilty of the misconducts alleged against him as per Ext.P5 memo of charges and the findings of the Enquiry Officer as well as that of the Disciplinary Authority are perverse and legally untenable as no reasonable person would come to the conclusion reached by them on the evidence available on record. As such, issue nos. (a) and (c) framed by me as above has to be held in favour of the petitioner.
52. The next issue is as to whether there is violation of the principles of natural justice in the conduct of the enquiry. The contention of the petitioner in this regard centres round the non-examination of the former Managing Director, who was cited as a witness by the petitioner in the enquiry. Since the primary charge against the petitioner was that he acted without authorisation in participating in the tender proceedings and quoting the rate which was alleged to be unworkable, nobody can deny the fact that, the evidence of the former Managing Director was vital to the petitioner's defence in the enquiry. He had admittedly cited the former Managing Director as a witness. According to the petitioner, the Enquiry Officer assured the petitioner that the former Managing Director would be requested to attend the enquiry; but the enquiry officer did not take any steps to ensure the presence of the previous Managing Director at the enquiry as a defence witness nor did he direct the petitioner to make arrangements to see that the former Managing Director would attend the enquiry. The petitioner would also allege that the Enquiry Officer promised to request the former Managing Director to give evidence as defence witness but did not do anything in that regard. According to him, he later ascertained from the former Managing Director that he was, in fact, willing to give evidence as is evidenced by the notarised affidavit dated 24-11-2003 given by the then Managing Director, which the petitioner had produced along with the writ petition as Ext.P17. Petitioner would submit that the failure of the Enquiry Officer to send a request to the witness as sought by the petitioner is violative of the principles of natural justice as the same has vitally affected his defence in the enquiry.
53. The respondents would, of course, deny that. According to them, the Enquiry Officer had no power to summon any witness and it is for the delinquent to arrange for the presence of his witnesses. They would submit that the Enquiry Officer had no obligation to request the former Managing Director to give evidence.
54. Before considering the question as to whether
the inaction on the part of the enquiry
violative of the principles of natural justice, I
must remind myself of the guidelines
on the subject,
as evident from the decision of the Supreme Court, in
assessing what all actions
or inactions can be
regarded as constituting such violation. In this
regard, it would suffice
to quote here paragraph 28
from the decision of the Supreme Court in State Bank
of Patiala v. S.K.Sharma, reported in (1996) 3 SCC
which reads thus:
"28. The decisions cited above make one i thing clear, viz., principles of natural justice cannot be reduced to any hard and fast formulae. As said in Russell v. Duke of Norfolk, (1949) 1 All ER 109 way back in 1949, these principles cannot be put in a strait-jacket. Their applicability depends upon the context and the facts and circumstances of each case. (See Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405). The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. (See A.K.Roy v. Union of India, (1982) 1 SCC 271 and Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC
664.) As pointed out by this Court in A.K.Kraipak
v. Union of India, (1969) 2 SCC 262, the dividing line between quasi-judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable - a fact also emphasised by House of Lords in Council of Civil Service Unions
v. Minister for the Civil Service, (1984) 3 All ER 935 where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing - applying the test of prejudice, as it may be called - that any and every complaint of violation of the rule of audi alteram partem should be examined. Indeed, there may be situation where observance of the requirement of prior notice/hearing may defeat the very proceeding - which may result in grave prejudice to public interest. It is for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g. Liberty Oil Mills v. Union of India, (1984) 3 SCC 465. There may also be cases where the public interest or the interest of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether as in the case of situations contemplated by clauses (b) and (c) of the proviso to Article 311(2) or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries; a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity." To illustrate take a case where the person is dismissed from service without hearing altogether (as in Ridge v. Baldwin, 1964 SC 40). It would be a case falling under the first category and the order of dismissal would be invalid - or void, if one chooses to use that expression (Calvin v. Carr, 1980 AC 574). But, where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report (Managing Director, ECIL v. B.Karunakar, (1993) 4 SCC 727) or without affording him a due opportunity of cross-examining a witness (K.L.Tripathi, (1984) SCC 43) it would be a case falling in the latter category violation of a facet of the said rule of natural justice in which case, the validity of the order has to be tested on the touchstone of prejudice, i.e., whether, all in all, the person concerned did or did not have a fair hearing. It would not be correct - in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B.Karunakar should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e. adequate or a full hearing) or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid." .SP 2
55. No doubt, as the law stands on the subject, the Enquiry Officer has no power to summon any witness. However, does that mean that he should not make an effort to secure the presence of witness, especially in circumstances where evidence of such witness would be vital to the defence of the delinquent? I think that he should. The object of a disciplinary enquiry is not merely to compile the evidence adduced by both sides. It is to get at the truth. The enquiry officer is an independent authority invested with the duty to find the truth regarding the allegations of the management against the delinquent. As such, he is duty bound to do everything in his capacity to get evidence for and against the allegations, if he possibly can, of course, as suggested by the parties. Therefore, at least in the case of witnesses who can be reasonably be stated to be connected with the Management, the Enquiry Officer should at least bona fide attempt to secure their presence. The witnesses connected with the Management can be of two categories. One, present employees who are under the control of the Management and the other, employees who had although ceased to be employees, had, at least a moral duty to explain their conduct while in the employment, especially employees who were in the Managerial capacity while in employment. It would certainly amount to violation of the principles of natural justice, if employees under the control of the Management whose evidence is sought by the delinquent, are refused to be made available on the premise that it is for the delinquent to secure the presence of the witness and the Management would not exercise their control over the witness to direct his presence as a witness. If the Management had the power to direct the employee to give evidence as witnesses cited by the Management, by the same token, the Management also has the power to order the witness to give evidence as witness cited on the side of the delinquent also, failure to do which would certainly amount to violation of the principles of natural justice. In the same way, the Management is bound to produce relevant documents in their possession at the request of the delinquent, they are also bound to secure the presence of employees under their control at the request of the delinquent. That much could certainly be said about employee-witnesses presently under the control of the Management.
56. But, what about witnesses who were removed from the immediate control of the management in the recent past on account of cessation of employment, especially in the managerial cadre whose evidence is vital to the defence. May be the Management is not in a position to direct such person to give evidence as of duty like employees presently in service. But, principles of natural justice demands that the Enquiry Officer and the Management should make an earnest effort to secure the presence of such witness in the enquiry by adopting such means as are in their capacity.
57. Precedent on this particular point is
non-existent, it seems. However, I may refer
decision of a learned Single Judge (M.Ramachandran,
J) of this Court in O.P.No.1055
(B.Muraleedharan v. The Hon'ble High Court of Kerala
and another). In that
delinquent-petitioner was a Bench Assistant of an
Additional District Judge.
He, on the direction of
the Additional District Judge, committed certain
grave errors in administrative
procedure in violation
of established procedure. The District Judge in
charge initiated disciplinary
delinquent admitted having adopted the wrong
procedure, but he claimed
that the same was as
required by the Additional District Judge, under
whose control he was
working, disobeyal would also
entail insubordination, another misconduct. The
a contention that adequate
opportunity had not been granted to him in so far as
he had requested
for permission to examine the
Additional District Judge as a witness and was
vitiates the enquiry. While upholding
the contention, the learned Judge, in paragraph 12 of
"12. I feel that when such specific
i contention had been raised, the disciplinary authority had a duty to ascertain the stand of the Additional District Judge. A subordinate employee should have been taken to task only if his hands were not clean. His version that the Additional District Judge was cited as a witness, but he was pressurised to withdraw his request, appears to be probable, especially taking notice of the position in which the petitioner was situated while he was being prosecuted. It is not for any conduct that is not approved by a superior officer that an employee has to suffer a penalty. If error was bona fide, he had to be taken into confidence and counselled. The disciplinary proceedings are extreme measures and are to be initiated sparingly. It seldom adds to motivation, but almost always is counter productive. In the present case, the alleged conduct would have ended in gain to nobody but was capable of wrecking the morale of staff members. At least, in such cases, the proceedings had justification only if the added circumstance that the person had a culpable mind. Further, when the defence was that a responsible officer was in the know of things, though not as a witness, his version could have been ascertained, at least in the interest of general administration." .SP 2
58. I cannot agree more. This observation is a wholesome principle which should form part of service and labour jurisprudence. When more than the delinquent, the management has better access to a witness, especially official witness, whose evidence would be vital to the cause of truth, which may make or break the delinquent, it would certainly serve the cause of the principles of natural justice for the Enquiry Officer either on his own or through the management to make all efforts at his command to attempt to get at the witness, so as to get at the truth. Consequently, the failure of the Enquiry Officer and Management to do the same should violate the principles of natural justice and make the enquiry vitiated on that count.
59. In this case, the main charge is that the petitioner had embarked on the submission of tender and negotiations with the KLDB without authorisation and the defence of the petitioner is that he had done the same as instructed by the then Managing Director. That being so, the only way the petitioner could prove his innocence in the enquiry was by examining the then Managing Director. Although, the Managing Director has ceased to be in service, as a responsible human being, at least, he has a moral duty to see that an innocent employee should not be punished because of him. As a former Managing Director in the know of the things, as the only person posted with the full facts of the case he should depose before the Enquiry Officer to help him to arrive at the truth regarding the charges.
60. Of course, the respondents would deny the
sequence of events in the enquiry proceedings
narrated by the petitioner. However, in the record
of proceedings of the Enquiry Officer on 10-7-2002,
it is recorded thus:
"Presenting officer and Management Witness i No.I were present. Examination of M.W.No.I and cross examination of MW-I were done. The delinquent officer stated that DW1 will not be available for examination. So, next posting is posted to 18th of July 2002." .SP 2 In the writ petition, the petitioner states as follows at paragraph 10. .SP 1 ". . . . . It was (sic in) order to prove
i that the petitioner was acting bona fide and also in order to prove that all his actions were approved by the previous Managing Director that the petitioner had cited him as a defense witness. Though, the Enquiry Officer assured the petitioner that the former Managing Director would be requested to attend the enquiry, he did not take any steps to ensure the presence of the previous Managing Director at the enquiry as a defense witness nor did he direct the petitioner to make arrangements to see that the former Managing Director would attend the enquiry. In fact, the petitioner clearly recalls that the Enquiry Officer remarked in Malayalam (Sir may not like me calling him here, any how, I will do it.) .........." .SP 2 These statements are answered by the 1st respondent in his counter affidavit dated 11-10-2004, in paragraph 21 at page 12 (page 162 of the paper book) as under: .SP 1 ........The petitioner submits that he had cited i the former Managing Director as one of the witnesses on the defence side and the Enquiry Officer did not inform the Managing Director about this. It is submitted that the Enquiry Officer has given all opportunities to the petitioner to adduce evidence and the Enquiry Officer did not object to any evidence being adduced in the enquiry by the petitioner. The Enquiry Officer did not object to the presence of the former Managing Director as the petitioner's witness. It was the duty of the petitioner to bring his witness before the Enquiry Officer. The petitioner admits that at his request, the former Managing Director has sworn to an affidavit stating correct and true facts. The statement in the affidavit submitted by the former Managing Director is not correct and cannot be accepted at all. That will not have any binding on the finding of the Enquiry Officer. There was no impediment for the petitioner to bring the former Managing Director to adduce evidence in the enquiry. He having failed to do so, he cannot later find fault with the Enquiry Officer. .........." .SP 2 Further, in paragraph 41 of the counter affidavit, it is stated thus: .SP 1
"41. The petitioner was given every i opportunity to produce his witness in the enquiry against him. It was his responsibility to produce the former Managing Director who was cited as his witness in the enquiry. It is learnt that the former Managing Director who was cited by the petitioner as his witness in the enquiry was reluctant to come before the Enquiry Officer, who was a subordinate officer while he was working as the Managing Director of the Corporation." .SP 2 As such, there was no specific denial of the averment of the petitioner that he had requested the Enquiry Officer to request the former Managing Director to give evidence and the Enquiry Officer had agreed to do it. Of course, there is nothing in writing. In this connection, we must remind ourselves that the persons involved in the enquiry were not advocates or legally trained persons or persons well-versed in conduct of such proceedings, especially the petitioner, who was defending himself without any assistance from anybody. Legal formalities as in courts like filing of petitions etc, are also not insisted upon in enquiry proceedings. Viewed in that background, I am inclined to believe that the petitioner had in fact made a request to the enquiry officer as stated by him, to request the former Managing Director to give evidence. True, the Enquiry Officer had no power to summon the former Managing Director as a witness. Even then, as the learned Judge observed in the judgment in O.P.No.1055/1997 supra, "further, when the defence was that a responsible officer was in the know of things, though not as a witness, his version could have been ascertained at least in the interest of general administration." The said observation squarely applies to the fact situation obtaining in the present case.
61. It is in this context the notarised affidavit
of the former Managing Director produced
along with the writ petition assumes importance. May
be, the contents of the affidavit cannot
into service to discredit the findings of the Enquiry
Officer in his report, since
he did not have the
advantage of the affidavit while arriving at his
findings. That is exactly
why I did not advert to
the contents of the said affidavit while deciding the
question as to whether
there was any evidence to hold
the petitioner guilty of the charges against him
pursuant to issues
(a) and (c) framed by me as above.
But, it certainly has relevance in deciding whether
was bad for violation of the principles
of natural justice on account of the refusal/failure
Enquiry Officer to request the former Managing
Director to give evidence or at least to ascertain
his version. In Ext.P17, the former Managing
Director States thus in the last paragraph:
"I am filing this affidavit since
i Mr.Panicker informs me that he had cited me as a witness before the Enquiry Officer. The Enquiry Officer however did not even inform me that Mr.Panicker cited me as a witness and my presence would be required for the purpose of enquiry. If I had been called, I would certainly have given my version of the matter as explained above." .SP 2
62. As I have already stated, the contents of the
affidavit may not be pressed into service for
the correctness of the finding of facts on the basis
of the evidence of the enquiry. But,
can be looked into for the purpose of deciding how
the failure of the Enquiry Officer
to request his
presence in the enquiry as witness has prejudiced the
defence of the petitioner.
For this purpose, it
would be advantageous to quote certain portions of
Ext. P17, which read
"During the year 1997, with a view to i diversify its activities, it was also decided that the KSWC may submit tenders for the construction works especially those for the construction of Government buildings. Accordingly, it was decided that the KSWC would also take part in the tender called by the KLDB for the construction of Staff Quarters and Pig Breeding Centre in Trichur District. Mr. A. Rajendra Panicker, Executive Engineer-II, who was looking after the deposit works, was directed to proceed to Trivandrum for the purchase of tender. Since the time was short, he was also directed to stay back at Trivandrum and submit a tender immediately. I also directed him to work out the rates so that a reasonable profit can be achieved by the Corporation. At that point of time, the Corporation was not engaged in any construction activities and the construction staff was being paid out of the Corporation's own funds instead of profit out of construction work. I also directed that Sri.Rajendra Panicker shall see to it even if it is on a no loss/no profit basis he should somehow obtain the work for the Corporation so that the burden of paying the construction staff from the funds of the Contractor (income of the Corporation from other activities) could be reduced to a great extent. Mr. Rajendra Panicker called me over Telephone and told me that the rate of KLDB were much more than that of the 1996 schedule of the PWD which was being followed by the KSWC. He also informed me that he was quoting 30.88% over the KLDB rate which would be roughly 55% over 1996 rate of PWD which was being followed by KSWC. It may also be stated here that at the point of time KSWC was tendering its own work to private contractors at an average of 40% over 1996 schedule rate of KSWC. After submission of tender, the KLDB officials invited the KSWC for negotiation and Sri.Panicker was deputed to Trivandrum to negotiate with KLDB officials. The then Managing Director of KLDB requested to Mr. Panicker to reduce the rates by at least 5%. When Sri. Panicker informed me about this over telephone, I told him that we may not be able to reduce the rate. However, since there was pressure from KLDB to reduce rate, Mr. Panicker contacted me over telephone and requested that we may reduce the rate by 2% so that M/s. KLDB will also be satisfied. He also informed me that in his best judgment, the KSWC will be able to make a reasonable profit from the transaction. On a consideration of the matter, I also found that this was correct, especially in view of the fact that rates were quoted 55% over the 1996 schedule of the PWD and would assure a reasonable profit. I, therefore, instructed Mr.Panicker to go ahead and he quoted 28.88% of the KLDB rate. Subsequent signing of the agreement by Mr. Panicker was authorised by me. The decision to enter into the agreement at the rates quoted was taken also because of the dearth of construction activities for the Corporation at that time. I may also state here that the security i deposit of Rs.1 lakh in order to finalise the contract to be submitted to KLDB was approved on the basis of a note put up by Mr. A. Rajendra Panicker. This was duly recommended by the Executive Engineer-I, Sri. Kunhumohammed and General Manager (Finance) and approved by me as Managing Director. As far as I know, the Executive Engineer-II (Mr. Panicker) has not taken any action on his own without approval from his higher authorities including myself. I may also state here that to the best of my memory, the entire issue was discussed in the Executive Committee meeting as well as the Board meeting and the then Board or Executive Committee did not find any fault on the part of Mr. Rajendra Panicker. It was also observed at this meeting that the cancellation of this contract was beyond the control of the Corporation or any of its officers and was only by reason of unforeseen and unexpected rise in prices of sand and construction materials due to ban of sand mining at that time. All earnest efforts were also taken at the Government level and at the level of the Managing Directors of both the organisation to get back the security deposit of Rs. 1 lakh to KSWC. However, in view of the decision of the High Power Committee, the file was closed." .SP 2
63. This affidavit would go to show that had the evidence of the former Managing Director been brought on record in the enquiry proceedings, the petitioner would have been able to prove his innocence in respect of all charges beyond a shadow of doubt. Thus, because of the failure of the Enquiry Officer to request the former Managing Director to give evidence pursuant to the request of the petitioner, the defence of the petitioner delinquent was both legally and factually prejudiced and, therefore, the inaction on the part of the Enquiry Officer constitutes violation of the principles of natural justice. For that reason, I have to hold that the enquiry was vitiated and the finding in such an enquiry cannot be the basis for imposition of punishment on the petitioner.
64. Then comes the question as to whether the action of the 1st respondent in not affording opportunity to the petitioner to show cause against the findings of the Enquiry Officer before the disciplinary authority accepted the same vitiates the enquiry.
65. Ext.P10 is the show cause notice dated
9-9-2002 issued to the petitioner by the
Director, the relevant portion of which reads thus:
enquiry report was placed
i before the 160th meeting of the Executive Committee held on 07-09-2002 and the Executive Committee resolved the following:
"The executive committee members discussed i the enquiry report of Sri.K.Sankara Pillai (Vigilance and Business Promotion) in detail and resolved to accept the enquiry report in toto. The Executive Committee resolved to recover the pecuniary loss of Rs. 1 lakh sustained by the Corporation due to the forfeiture of the security amount by M/s. Kerala Livestock Development with interest from Sri.A.Rajendra Panicker, Executive Engineer. The Executive Committee also resolved to revert him to the post of Assistant Executive Engineer for a period of two years with immediate effect for his negligence, inefficiency, indolence in the performance of his official duties. Executive Committee authorized the Managing Director to issue show cause notice to Sri.A. Rajendra Panicker in this regard." As such, Sri.A.Rajendra Panicker, i Executive Engineer (Designs & Estimates), State Warehouse, Kanhangad is directed to show cause why he should not be reverted to the post of Assistant Executive Engineer for a period of 2 years with immediate effect and why the pecuniary loss of Rupees One lakh with interest, sustained by the Corporation in this regard, should not be recovered from him. Sri.A. Rajendra Panicker, is allowed 15 days' time from the date of receipt of this show cause notice to submit his statement of defence, if any, failing which the matter will be proceeded on the presumption that he has no defence to offer. A copy of the enquiry report is enclosed for his perusal and reference." .SP 2
66. The petitioner submits that before the disciplinary authority accepts the findings of the enquiry officer, the delinquent is entitled to a notice to show cause against the enquiry proceedings as well as the findings thereon, failure to do which would vitiate the order of punishment. He contends that before the Executive Committee resolved to accept the enquiry report, the petitioner ought to have been given a copy of the report with an opportunity to show why the report could not be accepted. In support of this contention, counsel for the petitioner relied on the decision of the Hon'ble Supreme Court in Managing Director ELIL v. B. CC Karunakar, reported in AIR 1994 SC 1074.
67. On the other hand, citing later decisions of the Supreme Court such as State Bank of Patiala v. S.K.Sharma, (1996) 3 SCC 364, State of U.P. v. Harendra Arora & another, (2001) 6 SCC 392 and other decisions, counsel for the respondents would contend for the proposition that non-furnishing of enquiry report would not be fatal to the order of punishment unless prejudice is shown.
68. Before going into the contention on merits in relation to the case at hand, I would first analyse the position in law as ascertainable from the decisions cited. However, I do not intend to go into the review of all decisions in detail since the decision either way on this point may not be of much consequence because of my findings on the other points against the validity of the enquiry supra and also since even if I find in favour of the petitioner on this point, the only relief that could be granted to him would be to set aside the order of punishment and direct to repeat the process after giving a notice to the petitioner to show cause against the enquiry proceedings and the findings thereon, which would be unnecessary in this case, in view of my findings on the other issues.
69. In paragraph 7 of ELIL's case supra, the Supreme Court, after laying down the reasons for the necessity to furnish copy of the report and opportunity to show cause against the same before the disciplinary authority accepts the same, finally held as under: .SP 1 Hence, it has to be held that when the i Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Inquiry Officer's report before the disciplinary authority arrive at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employees right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a principle of natural justice." .SP 2
70. In Harendra Arora's case supra, the Supreme
Court, in paragraphs
12 to 23, after detailed review
of all its earlier decisions, ultimately laid down as
follows in paragraph
"23. Thus, from a conspectus of the
i aforesaid decisions and different provisions of law noticed, we hold that the provision in Rule 55-A of the Rules for furnishing a copy of enquiry report is a procedural one and of a mandatory character, but even then a delinquent has to show that he has been prejudiced by its non-observance and consequently, the law laid down by the Constitution Bench in the case of ECIL to the effect that an order passed in a disciplinary proceeding cannot ipso facto be quashed merely because a copy of the enquiry report has not been furnished to the delinquent officer, but he is obliged to show that by non-furnishing of such a report, he has been prejudiced, would apply even to cases where there is requirement of furnishing a copy of enquiry report under the statutory provisions and/or service rules." .SP 2 A Division Bench of our High Court has also come to the same conclusion in a very recent decision in Pushkaran v. State of Kerala and others, reported in ILR 2005 (3) Kerala 334, albeit on the basis of earlier decisions of the Supreme Court.
71. From the above decisions, it can be seen that the law on the subject is clear to the effect that in order that non-furnishing of an opportunity to show cause against the finding in the enquiry report is to vitiate the enquiry, a delinquent has to show that he has been prejudiced by such non-furnishing of opportunity. These decisions also lays down that the question whether, in fact, prejudice has been caused to the employee or not on account of the denial of report to him, has to be considered on the facts and circumstances of each case.
72. In the present case, the opportunity given to the petitioner by Ext.P10 is to show cause only against the proposed punishment. That being so, it is evident that before resolving to accept the enquiry report in toto, no opportunity was given to the petitioner to make his representation against either the enquiry proceedings or the findings in the enquiry report. Therefore, the question to be decided is as to whether such failure to give opportunity has prejudiced the petitioner.
73. For a consideration of this issue after the conclusion of hearing, I had directed the counsel for the 1st respondent to make available to the Court all files relating to the case. Pursuant to the same, counsel produced four files. The file relating to the deliberations of the Executive Committee was not included therein. Therefore, I had posted the cases in Chambers and, by order dated 27-6-2005, passed in the presence of all counsel, I directed counsel for the respondent to produce the files relating to the deliberations of the Executive Committee before the enquiry and after the enquiry, as also file relating to the transfer of the petitioner. Pursuant to the same, as per memo dated 29-6-2005, counsel produced three files of which the file relating to W.P(C) No. 37287/2003 was No. DA.108. Although the same contains extract from some minutes of the Executive Committee meeting, the same do not contain any particulars regarding the constitution of the Executive Committee nor does it contain any papers relating to the deliberations of the Executive Committee. As such, I am constrained to comment that this Court has been kept in the dark as to whether any files were maintained regarding the deliberations of the Executive Committee at all in respect of this enquiry.
74. However, in paragraph 18 of the counter affidavit of the 2nd respondent, the names of the members of the Executive Committee are given as follows:
1. Sri. P.E.Narayanji - Chairman
2. Sri. S.C. Batra - Director
3. Sri. R. Ponnappan
4. Sri. M. Viswamony
5. Sri. G.Mohandas - Managing Director. At least one of them is a non-Malayali. The Note file in File No.DA.108 does not indicate that the enquiry file was placed before the Executive Committee. Further, as I have already held, the evidence and enquiry file were not placed before the Executive Committee which is the disciplinary authority. The minutes would show that they saw only the report of the enquiry officer. Further, the minutes of the 162nd meeting would show that what they were considering was as to whether there was approval of the Board for the tender. As can be seen from the enquiry file, a major portion of the evidence was in Malayalam. There is no indication anywhere that any translation was provided to the Executive Committee. Further, as I have discussed earlier, the evidence produced by the Management in the enquiry itself sufficiently indicated that the petitioner was acting under the instructions of the former Managing Director in respect of the allegations of misconduct. So also, the petitioner had a grievance that his request for obtaining the version of the former Managing Director was unjustly denied. All what the Disciplinary Authority, namely, the Executive Committee had before it was the version put up before it by the Managing Director, who, according to the petitioner, was inimically disposed towards him. In the circumstances, the petitioner was certainly entitled to have an opportunity to put his version about the enquiry proceedings and the evidence adduced in the enquiry before the Executive Committee for its consideration before it resolved to accept the enquiry report. In view of my finding on the other issues, it cannot be stated to be far fetched that if he had been granted such an opportunity, they may have come to a different conclusion. Hence, the petitioner was certainly prejudiced by the lack of opportunity to represent against the enquiry proceedings and the finding in the enquiry report. Therefore, applying the law laid down by the Supreme Court on the point, I hold that the failure to furnish the copy of the enquiry report and opportunity to show cause against the enquiry proceedings and the enquiry report has caused prejudice to the petitioner and, therefore, has vitiated the enquiry for violation of principles of natural justice.
75. In W.P(C) No.20554/2004, apart from the
ground of mala fides, the petitioner attacks
disciplinary proceedings on the following grounds:
(a) The charges contained in the memo of charges are totally vague and indefinite and the allegations do not constitute misconduct.
(b) The enquiry conducted is violative of the principles of natural justice in so far as the petitioner was not permitted to engage the services of a defence assistant named by him and the enquiry was completed hastily despite request for adjournment.
(c) The punishment is vitiated on account of the disciplinary authority accepting the findings of the enquiry officer without affording an opportunity to the petitioner to show cause against the findings.
(d) The punishment proposed is disproportionate to the charges.
(e) During the course of arguments, it was also contended that the findings were perverse.
76. Ext.P8 memo of charges contained four
charges, which are:
"a) While working at Kanhangad you entered on i leave on medical grounds up to 30-11-2003. While you were on leave up to 30-11-2003 on medical grounds, cancelled the leave period from 27-11-2003 to 30-11-2003 vide letter dated 27-11-2003 and reported that you are joining duty at Head Office on 27-11-2003, without submitting fitness certificate along with the leave application and instead of joining at State Warehouse, Kanhangad where you are working, stating that you have been permitted by the Hon'ble High Court to join at Head Office. By doing so, you attempted to join at a different place than the station at which you are working by falsely stating that you are permitted to do so by the Hon'ble High Court.
b) You misled the Corporation by stating that i Hon'ble High Court of Kerala has directed the Corporation to allow you to join as Executive Engineer-I in the headquarters of the Corporation vide your letter dated 26-11-2003 without producing the relevant judgment of the court. By doing so, you have tried to make undue advantage by not joining at Kanhangad where you are posted as per Proceedings No.KSWC/Admn/P&T/2002-03 dated 12-06-2002, fully knowing that the Hon'ble High Court has not issued any such direction. Your said statement is false and your aforesaid conduct is not befitting of an officer of your rank.
c) In spite of the direction of the Personnel i Manager to produce the copy of the court order said to have directed the Corporation to allow you to join as Executive Engineer-I in the Headquarters of the Corporation, you created a scene at Head Office by asking the Personnel Manager to provide you a cabin and informed the other employees that you have joined as Executive Engineer - I at Head Office. You again sat in the Head Office unauthorisedly throughout the day on 27-11-2003 and 29-11-2003 (FN). The above action on your part is breach of discipline which is detrimental to the interest of the Corporation and is violation of Rules of conduct and you are liable to the penalties provided in Rule 21 of the General and Staff Regulations 1963.
d) As per the medical certificate produced, you i were advised strict rest during the period of illness and you have applied for leave from 23-11-2003 to 30-11-2003. While on such leave you unauthorisedly rescheduled the leave and attempted to join duty at the Head Office and created unpleasant scenes against the discipline and decorum of an office. Your aforesaid conduct while availing leave on medical grounds is a serious irregularity and you have attempted to mislead the Corporation by submitting leave on medical grounds while you were not sick. If really you were sick and having strict rest as advised by your doctor you could not have come to the Head Office and create unwanted scenes there." .SP 2
77. The basis of the charges are Ext.P3, the
letter dated 26-11-2003 submitted by the
on the initial disposal of W.P(C) No. 37287/2003 and
some incidents alleged to have
thereto. Since, the basis of this charge is Ext.P3,
in order to ascertain whether
there is any misconduct
arising therefrom, it is necessary to advert to the
contents thereof which
are as follows:
"This has reference to W.P.No.37287/2003
i filed by me against the order reverting me to the post of Asst. Executive Engineer dated 11-11-2003 and the order dated 12-11-2003 posting me as Asst. Executive Engineer at Kannur. The above Writ Petition has been disposed of by a Learned Single Judge of the Hon'ble High Court of Kerala on 26-11-2003 after hearing advocate for the Corporation also. The Hon'ble Court has directed that I i shall file an appeal against the order reverting me as Asst. Executive Engineer within 2 weeks from 26-11-2003. It has been further directed that till the disposal of the appeal by the Board of Directors, the order of reversion shall not be implemented and I shall be allowed to continue as Executive Engineer. I shall be filing appeal to the Board of Directors within the period stipulated by the Hon'ble High Court. In view of the directions in the judgment of the Hon'ble High Court, I request you to kindly allow me to join as Executive Engineer-I in the Headquarters of the Corporation. Copy of the judgment of the Hon'ble High Court has not been received so far and same will be handed over as soon as it is received from the Hon'ble High Court." .SP 2
78. The main thrust of the first allegation is
that in Ext.P3, the petitioner misled the Corporation
by stating that he was permitted by the High Court to
join duty as Executive Engineer-I in
Headquarters. The finding in this regard by the
Enquiry Officer is as follows:
"As an Executive engineer, he is fully i aware of the rules existing in the Corporation. He is an officer stationed at Kanhangad and no transfer order has been issued by the M.D. between 20-11-2003 and 27-11-2003 or on any other date. It is also adduced from the depositions that he had wilfully concealed the real fact of the direction of the Hon. High Court and tried to mislead the Personal Manager with fall claims of a non-existent court order. He had falsely claimed to have a court order allowing him to join the Head Office of KSWC at Ernakulam. Instead of producing a copy of the court order to substantiate his claim, when asked to do so by the Personal Manager, he created a scene by demanding that a cabin be provided to him and announced to the other staff and officers that he has joined the Head Office as Executive Engineer. Such misdemeanor is unbecoming of an officer of his rank." .SP 2
79. At the outset, I am constrained to observe
that Ext.P3, by itself, does not disclose
misconduct whatsoever. Every word therein is
perfectly in accordance with the facts
the cases before me. It is true that on 26-11-2003,
the learned Single Judge
W.P.No.37287/2003. It is true that the writ petition
was disposed of after hearing
counsel for the
Corporation also which is recorded in paragraph 2 of
Ext.P2 judgment. In the judgment,
it was directed
that till such time orders are passed in the appeal
to be filed by the petitioner
and communicated to the
petitioner, any steps for proceeding against the
petitioner including recovery
are not to be enforced,
which would mean that `the order of reversion shall
not be implemented and
he shall be allowed to
continue as Executive Engineer', which was what was
stated by the petitioner
in Ext.P3. Of course, he
made a further request that `in view of the
directions in the
judgment of the Hon'ble High Court,
he may be allowed to join as Executive Engineer - I
in the Headquarters
of the Corporation.' There is no
misleading statement or false claim there also.
Lastly, he stated
that `copy of the judgment of the
Hon'ble High Court has not been received so far and
the same will
be handed over as soon as it is
received from the Hon'ble High Court,' which also
false since judgment was pronounced on
26-11-2003 on which date the letter was written. In
joining report dated 27-11-2003 (on the reverse
of Ext.M.D.9) also he only stated as follows:
i I am joining duty at Head Office on i 27/11/03. The present medical leave already applied may kindly be considered as rescheduled and the fitness certificate will be submitted to you shortly. This is for your kind consideration and necessary action, please." .SP 2 Here also, there is no misrepresentation regarding the judgment of the High Court. Therefore, the allegations in the charge sheet on the basis of Ext.P3 letter from the petitioner before the Managing Director, which appears to be totally unwarranted and the said letter does not admit of any such allegations.
80. The next part of the allegation is that he filed a joining report on 27-11-2003 stating that he is joining at the Head Office on that day and created a scene by asking the Personnel Manager to provide him with a cabin and informed other employees that he has joined as Executive Engineer-I at Head Office. The Personnel Officer has given evidence to that effect also. The Personnel Manager, in his deposition, would further state that the delinquent declared that the Hon'ble High Court had reinstated him as the Executive Engineer in the Head Office of the Corporation. But, I find that such an allegation is conspicuously absent either in Ext.P4 memo dated 29-11-2003 issued by the Managing Director to the petitioner or in the statement of allegations forming part of Ext.P8 memo of charges.
81. While deciding whether this allegation has
any basis, the version of the petitioner
be looked into as obtaining in Ext.P9 reply dated
9-12-2003 submitted by the petitioner
to the memo of
charges. In the same, the petitioner stated thus:
"You are aware that the work for which I i was posted at Kanhangad was over as early as in April, 2003. Further, following the order dated 11-11-2003, I had also been posted out of Kanhangad and was directed for duty as Assistant Executive Engineer in the State Warehouse at Kannur. In these circumstances, on the advice of my counsel, I addressed a letter dated 26-11-2003 informing you of the order of the Hon'ble High Court and requesting you to allow me join as Executive Engineer-I at Headquarters. It is incorrect to say that I had created a scene in the office by asking for a cabin etc. I had no occasion to do so. You will kindly note that I had stated in my letter dated 26-11-2003 itself that copy of the judgment has not been received from the Hon'ble High Court and the same will be produced as soon as the same is received. The allegation that I had misrepresented the facts and had stated that the Hon'ble High Court directed that I be posted at Headquarters as Executive Engineer-I is absolutely contrary to the facts. Moreover, the Corporation as well as yourself who were parties to the writ petition were represented at the hearing of the matter by your duly authorized advocate who was aware of the directions contained in the judgment which was dictated in open court. Therefore, even if I wanted to, I could not misrepresent any fact regarding the nature of the order passed by the Hon'ble High Court. I sincerely believe that the memo is an attempt on your part to harass me for approaching the court with my grievances in which I had also raised allegations of mala fides against you. It is incorrect to say that I had misled the Corporation in any manner. This is crystal clear from the documents relied upon in the memo under reply itself. I was sincerely hoping that I would be i permitted to join as Executive Engineer - I at Headquarters, in view of the fact that there was no work at Kanhangad and no official duty has been assigned to me there. In this connection, I may refer to my letter dated 15-5-2003 by which I had requested for a posting to Headquarters. (Copy of this letter is enclosed for ready reference. My leave application cannot be termed as a i misrepresentation of facts. You will recall that on 27-11-2003, you had summoned me to your chamber and asked for a copy of the judgment in W.P(C) No.37287/2003. Since it had not been received, I had informed you that the same will be made available as soon as it is received from the court. You then told me that you will decide what is to be done with me and where I am to be posted after receiving a copy of the order. You yourself asked me to occupy some seat in the office till a decision is taken by you. Therefore, I occupied a seat in the hall occupied by the Asst. Engineers/Overseers/Clerks of the Corporation. Since you had directed me as indicated above, I stated in my leave application that I have joined at Ernakulam since no other directions were given to me by you or anyone else then." (Emphasis supplied) .SP 2 Here, I may observe that the petitioner has taken a defence, on the basis of certain facts to which only the Managing Director was privy to, and the Managing Director has not given evidence to contradict the same, which he was bound to, since it is for the management to prove the guilt of the delinquent.
82. In the light of the above, I am of opinion that the initiation of disciplinary action itself was an exaggerated reaction to an otherwise innocuous request from a harassed officer and, therefore, the finding is perverse.
83. The last allegation is that, after availing sick leave from 23-11-2003 to 30-11-2003, the petitioner rescheduled his leave and attempted to rejoin duty, which would go to show that the petitioner was not sick and availing of sick leave without being sick is a serious irregularity.
84. In this regard, admittedly, the petitioner
had availed of leave on medical grounds supported
a medical certificate. The leave was availed of from
23-11-2003 for the period up to 30-11-2003.
sought to reschedule the leave with the hope of
joining at the Headquarters on 26-11-2003
about the High Court order. He again took leave on
28-11-2003. His own explanation regarding
in Ext.P9 is as under:
" I may further point out that I was
i fact suffering from viral fever. The fever had subsided within 2 or 3 days from the date on which it started. Further, I was advised by my doctor to take rest for at least one week more. I was able to come to the Headquarters only because I was staying with my family at Ernakulam. As stated above, I was also sincerely hoping that you would allow me to join at Ernakulam. This was the only reason for me to come to the Headquarters at Ernakulam. On receipt of your letter dated 29-11-2003 from you directing me to report at Kanhangad, I have joined duty there on 1-12-2003 after producing fitness certificate as directed by you." .SP 2
85. The finding of the enquiry officer on this
charge is as follows:
"From the deposition, it has been adduced i that he has been unauthorisedly absenting himself from station of his posting and the records show that the delinquent was at the head office at Ernakulam, on 27th and 29th of November, 2003 and unauthorisedly joined duty on 27-11-2003, when he had applied for leave on medical grounds from 23rd to 30th November 2003. The medical certificate produced is not in the prescribed format casting doubt on the genuineness of the medical certificate. From the testimony of the management witnesses, the delinquent did not appear to be sick when he had come to the head office to join duty and unauthorisedly scheduled his leave. His misdeamenour was against the discipline and decorum of any office." .SP 2
86. The main witness who spoke about this charge
in the enquiry is MW2 Mr. K. Rajmohanna Nair.
evidence had been summarised in the enquiry report by
the enquiry officer herself as follows:
"Mr.K. Rajmohanan Nair is a Joint Manager
i in the Establishment Section. Exhibit MD9 is the leave application of the delinquent for one day on 28-11-2003 and that his designation shown therein is not correct. His head office is at Kanhangad. The joining report shown at reverse of MD9 is not proper as he should have joined at his headquarters at Kanhangad. Further, as per KSR, a fitness certificate should have been produced and a joining report should have been submitted separately. Rejoining after a medical leave should have been as per KSR Rule No. 71 & 72 (Exhibit MD10). Exhibit MD11 is the medical certificate that was submitted with the delinquent's leave application (Exhibit MD12) dated 20-11-2003. Now MD11 is not proper as per KSR. Rule no.117 of the KSR (Exhibit MD13), format of the medical certificate is applicable in this case. Exhibit MD14 is the fitness certificate submitted by the delinquent. Exhibit MD15 is the joining report submitted by the delinquent referring to his fitness certificate MD14. The delinquent had also not obtained permission to stay away from his headquarters when he had applied for leave. The description of the illness in his leave application differs from his medical certificate." .SP 2 It is also stated in the summing up of evidence by the enquiry officer that MW1, Mr. C.Mohanabalan also stated that the delinquent did not appear to be sick.
87. Looking at the charge sheet and the findings of the Enquiry Officer on this charge, I am constrained to say that she far exceeded her brief. There is no charge in Ext.P8 that the petitioner has been unauthorisedly absenting himself from the station of his posting. There is no charge that the medical certificate produced by him was defective. There was no charge that the medical certificate produced was not genuine. But the Enquiry Officer entered all these findings in favour of the Corporation. The only charge in this aspect was that the petitioner submitted leave on medical grounds while he was not sick. The finding on this aspect is entered on the basis of the opinion of MW1, who is not a doctor, from the personal appearance of the petitioner. Even in domestic enquiry, a finding that a person is not sick cannot be on the basis of opinion of a layman observing the personal appearance of the delinquent, especially when there is a medical certificate already on record regarding his sickness. The only finding against the medical certificate is that it is not in the form. The Corporation did not ask the petitioner to undergo any medical examination to ascertain whether he was sick. Further, he was on sick leave from 23-11-2003 and MW1 saw him on 27-11-2003 and the version of the delinquent was that he had recuperated from his illness. From the above discussion, I cannot but comment that the Enquiry Officer acted more loyal than the King. In view of the above reasoning, it goes without saying that the finding of the Enquiry Officer on this count also is without evidence and perverse.
88. The next issue is as to whether the enquiry is vitiated for the refusal of the Enquiry Officer to permit the petitioner to engage a defence assistant nominated by him. By Ext.P21 letter dated 31-7-2004, the petitioner had followed up his oral request for the purpose with the said letter. The proceedings in the enquiry recorded by the Enquiry Officer on 31-7-2004 shows that the petitioner requested on 30-7-2004 to permit him to engage a co-employee Sri.V.Chandrakant as his defence Assistant. The proceedings dated 13-8-2004 shows that the request was repeated by the petitioner which was again rejected. But, it is recorded that the Enquiry Officer granted an opportunity to appoint any person other than Mr.V.Chandrakant as his representative to defend his case. By letter dated 13-8-2004, he requested that since she had not favoured him with a reply to the request for the purpose by letter dated 31-7-2004, the enquiry may be adjourned to a convenient date so as to enable Sri. Chandrakanth to assist the petitioner in the enquiry. On 7-9-2004, the petitioner requested for a further adjournment to enable him to move the High Court on reopening of the Court after Onam vacation on 7-9-2004 to permit him to be assisted by Sri.Chandrakant. The Enquiry Officer rejected the request and decided to proceed with the enquiry. Therefore, the petitioner did not participate in the enquiry and the Enquiry Officer completed the enquiry on that date itself and filed her report on 15-9-2004.
89. In the proceedings of the enquiry, the Enquiry Officer does not indicate the reason for rejecting the request. But, the file contains a letter dated 8-9-2004 reporting to the Managing Director, the progress of the enquiry, in which she states that the rejection was because "the enquiry officer was aware of the fact that Mr.V.Chandrakant himself was a delinquent employee." Incidentally, it may be noted that the enquiry started on 26-6-2004 and had 5 sittings and concluded on 15-9-2004.
90. Counsel for the petitioner submitted that the rejection of the petitioner's request for defence assistance vitiates the enquiry for violation of principles of natural justice. Counsel would also submit that the petitioner had filed a petition before this Court in this pending writ petition, seeking a direction to permit him to engage the assistance of Sri.Chandrakant, in which the 1st respondent filed a counter affidavit on 20-9-2004 suppressing the fact that the enquiry was already over and the Enquiry Officer had submitted her report on 15-9-2004. He would submit that the Enquiry Officer knowing about the intention of the petitioner to move this Court, completed the enquiry ex parte, thus showing undue haste to foreclose the petitioner's right to be represented by a defence assistant of his choice in the enquiry. Counsel for the petitioner on the strength of the decisions of C.L.Subramaniam v. The Collector of Customs, AIR 1972 SC 2178, The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendra Nadkarni and others, AIR 1983 SC 109, J.K.Agarwal v. Haryana Seeds Development Corporation, AIR 1991 SC 1221, Union of India v. Karunakaran Nair, 1985 KLT 680, Stephen v. Commandant, 2004(1) KLT S.N.38 (Case No.47) and K.Sreedharan v. Chief Security Commr. and 2 others, 1993 (1) KLJ 430, would contend that right to be assisted by a co-employee of his choice or a lawyer is ingrained in the principles of natural justice and since the same has been denied to him in the enquiry, the enquiry is vitiated.
91. In reply, counsel for the respondents contend that there is no indefeasible right in a delinquent to be represented in a departmental enquiry either by a co-employee or by a lawyer unless the service rules specifically confers such a right on the delinquent or the presenting officer is a legally trained person pitted against an untrained delinquent. They would submit that the presenting officer in this case was only a lady officer of the Corporation (Manager - Vigilance) who was not legally trained and the service rules do not provide for granting assistance of even a co-employee to the delinquent and, therefore, there is no merit in the contention.
92. As I had already observed earlier in this judgment quoting the Apex Court, principles of natural justice cannot be reduced to any hard and fast formulae and put in a strait jacket. Their applicability depends upon the facts and circumstances of each case. The objective is to ensure a fair hearing and a fair deal to the person whose rights are going to be affected. In the decisions quoted by counsel for the petitioner, either there was a rule providing for defence assistance or the delinquent was pitted against a legally trained presenting officer. Therefore, right of defence assistant cannot be brandished as an inviolable rule to challenge the validity of a departmental enquiry in all cases. It will depend on the seriousness of the charges, the status of the delinquent, the complexities of facts and law involved, the volume and nature of evidence to be adduced and the like. Of course, counsel for the petitioner contends that the delinquent is stationed at Kanhangad and the venue of the enquiry is Ernakulam which is more than 300 kms. away, he has already been subjected to another disciplinary proceedings immediately prior to the present enquiry imposing on him a major punishment in respect of which he is already fighting a legal battle in Court, he was a mentally disturbed, weak and tired and yet another memo of charges dated 8-7-2004 (subject matter W.P(C) No.28326/2004) has been issued to him, which are all circumstances which would certainly warrant granting a defence assistant of his choice.
93. On the other hand, counsel for the respondents would argue that the charges alleged against the petitioner are the simplest of simple charges, the evidence to be adduced was simple and uncomplicated as is evident from the list of documents and list of witness and the presenting officer was not legally trained also, thus obviating any circumstance warranting sanction of defence assistance.
94. I am of opinion that I need not go into the legal contentions on either side on the point because the Enquiry Officer did not deny defence assistance. She only denied the assistance by the particular individual chosen by the petitioner on the ground that he is a delinquent in another enquiry. Therefore, the only question to be decided is whether that decision of the Enquiry Officer violated the principles of natural justice in so far as the defence assistance of the petitioner's choice was denied on the particular ground. When the Enquiry Officer chose to allow defence assistance, I do not see any logic in denying assistance on the ground that the assistant nominated is a delinquent in another disciplinary action. Therefore, I am of opinion that the denial of assistance on that particular ground is illogical and not proper. But, I leave it at that.
95. The next question is as to whether the denial of opportunity to show cause against the acceptance of the enquiry report has caused prejudice to the petitioner. I find that all the circumstances which prompted me to find in favour of the petitioner in W.P(C) No.37287/2003 is available in this case also and, therefore, I hold that the denial of such opportunity has vitiated the further proceedings.
96. The next issue is regarding the proportionality of punishment. The jurisdiction of Court/Tribunal to interfere with the punishment has been discussed in almost all the cases discussed by me while discussing the legal position regarding jurisdiction in general to interfere with disciplinary enquiries. As held in B.C.Chathuvedi's case and Apparel Export Promotion Council's case supra, the only circumstance warranting interference by Court/Tribunal in punishment imposed by the disciplinary authority is where the punishment imposed by the disciplinary authority shocks the conscience of the Court and the Court held that if it does, "it would appropriately mould the relief either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
97. The proposed punishment in this case, as stated in Ext.P24 show cause notice is reduction to the post of Assistant Engineer, permanently. The petitioner is now aged 47 years, he has come up the ladder step by step. If the punishment is imposed, it would practically put an end to all his future aspirations in career advancement and he will lose his life's achievement. Counsel for the petitioner would argue that considering the nature of the triviality of the charges, even if they are found to be proved, the same would certainly shock the conscience of any reasonable person, especially since the petitioner had nothing to gain from the same. Further, at the most, what can be accused of the petitioner is error of judgment on his part, counsel submits. Counsel for the respondents would controvert this argument by saying that since the punishment of reduction to the post of Assistant Executive Engineer for two years have already been imposed on the petitioner, making such reduction permanent is not of such serious consequence as to shock anybody's conscience.
98. Of course, after having found that the findings are perverse, I need not go into this question at all. Further, in view of orders of this Court, order of punishment has not yet been issued. However, I may observe that even if proved, the charges are of very trivial nature and the proposed punishment would certainly shock the conscience of any court. Therefore, I would answer this issue also in favour of the petitioner.
99. Now, I move on to the last of the three disciplinary proceedings against the petitioner, challenged in W.P(C) No.28326/2004.
100. Ext.P25 in this case is the memo of charges
dated 8-7-2004. Charges 1 and 2 are the overt
of misconduct and 3 and 4 are the consequent charges.
Charges 1 and 2 read thus:
"(1) Refused to submit a detailed i statement as required under the rules, of the property owned or possessed by you, your wife and dependants in spite of repeated directions of the Managing Director in this regard. (2) Purposefully misled the Kerala State i Warehousing Corporation and also attempted to mislead by giving some details of your property in a vague, indefinite, unclear and haphazard manner, without disclosing full details and specifying the required particulars of the movable and immovable properties owned or possessed by you, your wife and dependants, with the deliberate object of concealing the total valuation of the wealth possessed by you and prevent a proper assessment of the value." .SP 2
101. In this case, the petitioner challenged the memo of charges itself. By interim order dated 28-9-2004 at the time of admission, the enquiry was allowed to go on but final orders were to be passed only after getting orders from this Court. Form the enquiry file produced before me, I find that pursuant to the order, the enquiry has been completed and enquiry report has been submitted, finding the petitioner guilty. However, no further action is seen taken pursuant to the enquiry report.
102. Apart from the allegation of mala fides, which I shall consider later, commonly for all the four writ petitions together, the petitioner attacks Ext.P25 memo of charges on the ground that the charges are vague and indefinite, which do not constitute any misconduct.
103. Relying on the decision in Union of India & others v. Upendra Singh, (1994) 3 SCC 357, counsel for the petitioner argues that memo of charges can be quashed if the same read as a whole does not disclose that any misconduct has been committed by the petitioner. On the other hand, counsel for the respondentss argue that in so far as the statement of properties owned and possessed by the petitioner and family members do not contain the full particulars, the memo of charges does disclose a very serious misconduct and since a memo of charges which is in the preparatory stage of a disciplinary proceedings cannot be challenged in writ proceedings, the writ petition itself is not maintainable.
104. Although, in a negative way, the decision in
Upendra Singh's case, supra does concede jurisdiction
of this Court, in cases involving challenge of memo
of charges in the following words
at paragraph 6 of
"In the case of charges framed
i disciplinary enquiry, the tribunal or court can interfere only if on the charges framed (read with the imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law." .SP 2 Therefore, let me examine whether the memo of charges read as a whole discloses any misconduct in this case.
105. Everything started by Ext.P17, a letter dated 14-5-2004 from the Managing Director to the petitioner asking for his explanation regarding a complaint, copy of which was enclosed with the letter, received from one Sri.A.Sudarsanan, Advocate, Vaikom, of amassing wealth disproportionate to his known source of income. In the said complaint, it was alleged that the petitioner, in connivance with the then Managing Director of the Corporation inflated the land value of some property purchased by the Corporation at Paravur, nearly four times above market value and that the petitioner has purchased a plot of land in Maradu in Ernakulam and built a house costing more than Rs.30 lakhs, although he had no other source of income than the salary he gets from the Corporation. The allegation was that the purchase of land and building of house at Maradu was using the ill-gotten gains from the Corporation's land deal at Paravur.
106. The petitioner denied the allegation by Ext.
P18 reply dated 25-5-2004 relevant portions
may be quoted here:
"I hereby deny the allegations. They are i false, baseless and fabricated. It is alleged that the purchase of land was initiated by me, and myself and former Managing Director were directly responsible for the purchase. It is false. It was a collective decision taken after meeting all formalities and norms required for a land purchase. It was fair and transparent. The following steps were taken in the said purchase.
(a) Newspaper notification by KSWC in i Malayalam Dailies.
(b) Site inspection by the purchase i committee members.
(c) Inspection report of purchase i committee submitted to Managing Director.
(d) Managing Director requested District i Collector, Ernakulam for land valuation and obtained the valuation certificate.
(e) Subsequent negotiation by purchase i committee members with the land owners.
(f) Recommendations of purchase committee i to MD and the Board.
(g) Board decided the purchase of the i land. Thus, the suitable land was purchased at i Paravoor by the Corporation at a cost lesser than the value fixed by the Dist. Collector and revenue officials. It clearly shows that myself and former Managing Director were in no way directly responsible in this purchase. Second allegation is that I have purchased i a plot in Marad in Ernakulam and constructed a house costing more than Rs.30 lakhs. This allegation is false and baseless. I hereby submit that I have no such plot and a constructed house in Maradu at Ernakulam." .SP 2
107. On receipt of this reply, the Managing Director issued Ext.P19 letter dated 27-5-2004 directing the petitioner to furnish his property statement in respect of himself, wife and his dependants showing the details of the movable and immovable property possessed and disposed, year of possession, value and the source of income.
108. In reply, the petitioner filed Ext.P20 dated
3-6-2004 stating as follows:
"In reply to your letter under reference,
i I reiterate that I do not own any property or house. The house that my family is using at Palarivattom was purchased in the year 2000, with the money obtained by the sale of ancestral properties belonging to my wife at Kottayam District. She had also obtained a loan from Dhanalakshmi Bank in connection with the purchase of the house. The house stands in the name of my wife. The following are the assets owned by me and my family consisting of my wife and my daughter aged 19 years. .JN Name Owner Property Remarks
1. Smt.M.V.Latha- Wife 2.35 acres (2 acres kumari. of land and disposed house in of from Kottayam 2000) District.
2. Smt. M.V.Latha- Wife 5.6 cents Money kumari. with a obtained house at by sale Palarivattom of ance- for Rs.9 stral lakhs in properties 2000. and a loan from Dhana- lakshmi Bank for Rs.4 lakhs. Money collected from the sale of teak wood, gold etc.
3. M.V.Latha- Wife Maruthi Her own kumari. Esteem money 2000-01 obtained II hand from sale car of her (Rs.1.30 properties. lakhs)
4. A.Rajendra TVS Purchased Panicker Scooty by me. (New) 2000-01 (Rs.28000/-) The details given above are true." .SP 2
109. On receipt of the same, the Managing
Director issued Ext.P21 dated 14-6-2004, the
portions of which are as follows:
"Contrary to the spirit of the contents of the i letter you furnished a reply vide letter cited (4) in a haphazard manner, which will not enable us to assess the wealth possessed by you. Being a senior officer of the i Corporation, you should be aware of the rules and regulations of the Corporation. It was your duty and responsibility to furnish the details of the property, even before asking for it.
1. In your letter you have informed that your i wife possess 2.5 acres of land and house in Kottayam District. Kottayam is a vast district and the value of the land in such a district varies from place to place. You have not shown the Survey No. and the exact location where the above property is situated. The value of the land said to have sold, sale deed are not shown in the statement.
2. In your statement it is also mentioned that i your wife purchased 5.6 cents with a house at Palarivattom for Rs.9/- lakhs and money was obtained by sale of ancestral property, sale of teakwood, gold etc.,. But you have not mentioned the survey No., Plinth i area of the house, exact location, the nature of wood used in the construction of the house, nature of flooring of the house purchased in Palarivattom. Being a Civil Engineer, you are well aware that without these details one will not be able to assess the property. You are therefore purposefully misleading the Corporation. You have also informed that money is obtained by sale of teakwood and gold. As per Government rules, you have to obtain permit from forest department for the sale of teakwood. The details of such permit and the value of the sale are not mentioned in your statement. In the case of the sale of gold also you have not mentioned the quantum of gold sold, its value, to whom it is sold etc.,.
3. Similarly, you have shown in the statement i that your wife owns a Maruti Esteem II hand car 2000-01. The model of the car as mentioned in the RC book and the date of purchase are not shown in the statement.
4. You have not shown the details of the movable i properties owned by yourself, wife and dependents. By giving a vague statement it is clear that you i are misleading the Corporation. You are therefore directed to give detailed i property statement of yourself, wife and dependents showing the date of possession/disposal, value of movable/immovable properties possessed and disposed of, source of income etc." .SP 2
110. To this letter, the petitioner submitted
Ext.P22 reply dated 16-6-2004, the relevant
of which reads thus:
"I am submitting herewith the details
i furnished previously before the Hon'ble Lok Ayuktha in the year 2000 and 2001 in the prescribed form. It was furnished and submitted to comply the instructions of Hon. Lok Ayuktha to satisfy the rules prevailing. True copies of the above statement is submitted herewith. The details like Survey Nos of land in i possession, model of the Car, type of construction of the old house purchased, wood used etc. are not in the proforma circulated by Hon. Lok Ayuktha or Hon. Government of Kerala. In the complaint made by Adv.Sudersanan also the Sy.No and address of the plot and house alleged under my possession is not mentioned. This is the reason for sending the reply as explained in the reference cited as 4 and 5. Any how, there is no property in my name at Maradu and anywhere. So, kindly accept the copies of the i statement submitted to Hon.Lok Ayuktha as a valid document in addition to the reply made by me on 25/5/04 and 3/6/04. The details submitted to Hon. Lok Ayuktha contains the informations like sale of gold, sale of wood, sale of land owned by my wife, purchase of land and house, purchase of 2nd hand Car, purchase of Scooter, other articles like Fridge, Sofa set etc., The items purchased after 2001 are one Air Conditioner using my money and one Computer Set, using the departmental loan by salary cutting. The Car purchased my wife is 1996 model. 2000-01 is year of purchase. I hope the above details will satisfy the points raised in the letter dated 14/6/04. The Sy.No of the plot purchased by my wife will be intimated on or before 26/6/04." .SP 2
111. The Managing Director then issued Ext.P23
letter dated 18-6-2004 stating thus:.SP 1
"Instead of giving detailed reply you gave a copy i of the statement you said to have submitted to Lok Ayukta. You are informed that Corporation is not concerned with the statement furnished to Lok Ayukta", .SP 2 and directing the petitioner to give clear the specific reply regarding the details required in the letter referred.
112. The petitioner again submitted Ext.P24 dated
24-6-2005 relevant portions of which run thus:
"In this juncture, I respectfully submit that the
i details of property under possession of myself and my family was initially submitted to Kerala State Warehousing Corporation in 2000 and 2001, to comply with the directions of Hon'ble Government of Kerala. Then it was handed over to Hon. Lok Ayukta by Kerala State Ware Housing Corporation and copy of the same was kept with Administration department as a valuable document. So my firm belief is that it has got its own value. In my letter dated 16/6/2004, I had given the statement as a revised affidavit that I have no plot or a constructed house in Maradu in Ernakulam or anywhere as alleged by Adv.Sudersanan in his complaint dated 2nd January, 2004. Meanwhile on 21/6/04, I had sent the true i copy of the land tax receipt in favour of my wife of per property at Palarivattom. The registered cost of the said property is also mentioned in that receipt. Regarding other details as described earlier, I have no records of the gold sold, wood sold, to whom it sold etc., because all these transactions were made in 1999-2000. These are all my wife's property and disposed in connection with the purchase of land and house at Palarivattom. This amount was used along with the housing loan availed from M/s.Dhanalakshmi Bank, Ernakulam and also with the amount collected from the disposal of wife's property." .SP 2
113. Still, dissatisfied with the details
furnished, the Managing Director issued Ext.P25
of charges dated 8-7-2004, impugned in the writ
petition. I shall examine validity of this
charges, based on the memo of charges itself and the
statement of imputations and
accompanying the same. Item no. 8 is Ext.P22 herein
the enclosure to which is the
copy of the statement
submitted by the petitioner to Lok Ayukta. The
allegation in the memo of
charges is that neither the
details furnished by the petitioner as per Ext.P20
and Ext.P22 nor the
statement submitted to the Lok
Ayukta, copy of which is furnished along with
the particulars directed to be
furnished. Along with the reply affidavit, the
has produced the copy of the statement
submitted by the petitioner before the Lok Ayukta, as
which also forms part of the enquiry file.
This is a statement in Forms A, B and C prescribed
Rule 2(a) of the rules framed under the Kerala
Lok Ayukta Act, 1999 and as required under Section 22
of the Kerala Lok Ayukta Act, 1999. The said Section
"22. Public Servant to submit property i statement:- (1) Every public servant other than a Government Servant, shall within one year and six months after the commencement of this Act, and thereafter before the 30th day of June, once in two years submit to the competent authority in the prescribed form, a statement of his assets and liabilities and those of the members of his family. (2) If no such statement is received by the i competent authority from any such public servant, within the time stipulated in sub section (1), the competent authority shall make a report to that effect to the Lok Ayukta or the Upa-Lok Ayukta, as the case may be, and send a copy of the report to the public servant concerned. If within two months of such report, the public servant does not submit such statement, the Lok Ayukta or the Upa-Lok Ayukta, as the case may be, shall publish or cause to be published, the name of such public servant in three news papers having wide circulation in the State. Explanation:- In this Section, "family" means the i spouse and such children and parents of the public servant as are dependent on him." .SP 2
114. By virtue of the powers conferred on the
Government of Kerala under Section 23(f)
Kerala Lok Ayukta Act, 1999, the Government have
framed The Kerala Lok Ayukta (Furnishing
Statement) Rules, 1999. Rule 2 of the said Rules
provides as follows:
"2. Property Statement of Public Servants:- Every
i public servant, other than a Government servant, shall submit to the competent authority, the statement showing the details of his assets and liabilities in Form A and the statements showing the details of movable properties, owned or acquired by him and the members of his family, in Form B and C, respectively appended to these rules." .SP 2
115. By Ext.P43 dated 21-6-2000, the Managing
Director himself had directed all employees
Corporation to comply with the rules and pursuant
thereto, the petitioner had filed
through the Corporation. I cannot understand why, in
the circumstances "the Corporation
is not concerned
with the statement furnished to Lok Ayukta", as
stated by the Managing Director
in Ext.P23. As seen
from Exts. P20 and P22, there is also no further
addition to the petitioner's
assets. The details
furnished in Exts. P20 and P23 are themselves
with the directions of the
Managing Director. Further, I wonder why a statutory
statement in prescribed
form does not satisfy the
requirement of the Kerala State Warehousing
and Staff Regulation, 1963, which
itself does not contain any such requirement but in
turn refers to
the Government Servants Conduct Rules.
No specific rule of the Government Servants Conduct
also referred to either in the memo of
charges or the statement of allegations. What is
in the statement of allegations is this:
"All employees of the Corporation are governed by i the rules and orders of the State Government in force from time to time in the matters like gifts, property, marriage etc., as per Chapter 1 of Rule 20 of Kerala State Warehousing Corporation General and Staff Regulations, 1963. As per the relevant rules of the Government Servants Conduct Rules, 1960, it states that every Government servant should submit declaration of all immovable property which may from time to time be held or acquired by him or by his wife or by any members of his family living with or in any way dependent upon him. Hence, Sri.A.Rajendra Panicker is duty bound to furnish the details of property, which he has not complied even after repeated directions." .SP 2 It may also be stated here that the respondents have no case whatsoever that the petitioner or any of his dependants does possess any property other than what has been disclosed by the petitioner. Of course, counsel would argue that in his statement, the petitioner does not specifically state that his daughter does not possess any property. In Ext.P20 before the detailing the properties, the petitioner states thus: .SP 1 "The following are the assets owned by me and my
i family consisting of my wife and my daughter aged 19 years." .SP 2 Of course, the petitioner does not separately state that his daughter does not own any property. When the respondent does not have a case that the petitioner's daughter does own property, I do not find any irregularity in that. On the other hand, I am tempted to say that the said argument is rather silly.
116. On a consideration of Exts P20, P22 and P24 and the statement filed before the Lok Ayukta, through the Corporation, I have no hesitation to hold that Ext.P25 memo of charges does not disclose any misconduct on the part of the petitioner as alleged therein. Therefore, Ext.P25 is liable to be quashed.
117. The last of the writ petition is W.P(C) No. 14851/2004 wherein the petitioner seeks a direction to the 1st respondent to post him at the Headquarters and to pay him the annual increments for the year 2002, 2003 and 2004 with arrears.
118. While the petitioner was working as Executive Engineer - II, disciplinary proceedings were initiated against him, by memo of charges dated 25-5-2002 which is the subject matter of W.P(C)No.37287/2003. By Ext.P4 order dated 12-6-2002, the petitioner was temporarily transferred to Padanakkad work site with headquarters at State Warehouse, Kanhangad. Two reasons were stated in Ext.P4 for the said temporary transfer. The first was that the progress of work at Padanakkad, which was undertaken to be completed within a time frame under the financial assistance of Revamped Public Distribution Scheme of Government of India was very slow. The second was that it is not conducive to retain him at Head Office since a disciplinary proceeding is initiated against him. Petitioner's Ext.P5 request dated 15-5-2003 for posting him back to Headquarters was not considered favourably. The petitioner filed W.P(C) No.10909/2004 claiming the said relief since the work at Kanhangad was over and he had no official duty at Kanhangad. By judgment dated 5-4-2004, the said writ petition was disposed of recording the submission of counsel for the Corporation that orders shall be issued within two weeks giving appropriate posting to the petitioner. By Ext.P6 order, the petitioner was posted at State Warehouse, Kannur with the duties of supervising the works of the Corporation in Kasaragode, Kanur, Wyanad, Kozhikode and Malappuram districts. By Ext.P7 representation, the petitioner objected to the same claiming that he, being the senior most Executive Engineer, is entitled to be posted at the Head Office at Ernakulam. Since it fell on deaf ears, the petitioner challenges Ext.P6 order and prays for a direction to the 1st respondent to post him as Executive Engineer-I at Head Office at Ernakulam.
119. The prayers are resisted by the respondents in their statement on the ground that the Managing Director had the absolute power to post employees at any of its offices and the petitioner cannot seek a posting at his place of choice. It is also stated that there is no necessity for one more Executive Engineer at Ernakulam. The disciplinary proceedings initiated against him are also held against him.
120. Ext.P4 specifically qualifies his transfer to Kanhangad as temporary. The impugned posting order itself shows that the first reason mentioned in Ext.P4 no longer survives. In view of my findings on the three disciplinary proceedings against the petitioner, the second also becomes otiose. As is evident from the files of W.P(C) No.37287/2003, after the Managing Director, Executive Engineer-I and General Manager (Finance) are the top most executives, who are privy to policy decisions of the Corporation. It is also contended by the petitioner that no Executive Engineer-I has ever been transferred out of the Head Office. The circumstances would clearly warrant a finding that the motive of the 2nd respondent in keeping the petitioner away from Ernakulam is not exactly bona fide. As such, I have to hold that the petitioner is rightly and rightfully entitled to be posted at Ernakulam. I do so.
121. The second prayer in the writ petition is to direct the respondents to sanction and pay to the petitioner his withheld annual increments for the years 2002, 2003 and 2004 with arrears. In Ext.P8 communication dated 9-4-2003, the petitioner was informed that his increment was not sanctioned since disciplinary proceedings reverting him to the post of Assistant Executive Engineer is pending.
122. In the statement filed by the respondents, it is stated that in the Corporation, annual increments are sanctioned on the basis of the performance of the employee and recommendation of the competent officer. It is further stated that only officers below the ranks of Assistant Managers are exempted from this condition. Disciplinary proceedings pending against the petitioner is also cited as a reason. According to the respondents, there are other similar instances of withholding of increment in respect of other employees.
123. The respondents could not cite any rule whatsoever empowering the Managing Director or any other authority to withhold annual increments of every employee. Counsel for the respondents submitted that that is the practice followed in the Corporation. On the other hand, delay or stoppage of increments or promotion is a penalty prescribed under Rule 21 of the Kerala State Warehousing Corporation General and Staff Regulations, leading to the inference that increments can be withheld only as a penalty for proved misconduct. Although their statement mentions that there are similar instances of other employees, none are cited before me. Ext.P8 is dated 9-4-2003 in which the reason stated is that disciplinary proceedings reverting the petitioner to the post of Assistant Executive Engineer is pending. However, the order imposing the said punishment was imposed on the petitioner only on 11-11-2003. In any event, in view of my findings in respect of the three disciplinary proceedings against the petitioner that reason does not survive now. Further, the respondents admit that employees below the level of Assistant Managers are exempted from the condition although there is no such rule. Being a statutory authority whose activities are circumscribed by statutory rules, the respondents cannot impose conditions of service outside the rules by citing a practice to that effect. For all these reasons, I hold that there is no justification for withholding the increments of the petitioner and the same are liable to be sanctioned and paid to the petitioner forthwith.
124. Although, in view of my findings above, it may not be strictly necessary, since there are allegations of mala fides against the 2nd respondent personally and since the Division Bench has, in W.A.No.2084/2003 specifically directed consideration of the allegation of mala fides, I will consider the same also in detail.
125. Before going into the truth of the
allegations of mala fides in this case,
briefly refer to the scope of judicial review
relating to allegations of mala fides as
laid down by
the Supreme Court of India. Although precedents are
legion, I will refer to only one
succinctly summarises the law on the subject in a
nutshell, namely, Indian Railway
Ltd. v. Ajaya Kumar, (2003) 4 SCC 579. Paragraph
23 at page 592 is the relevant portion of the
decision which is quoted below:
"23. Doubtless, he who seeks to i invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal illwill is not to be held established except on clear proof hereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessoned when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fides in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (See S.Pratap Sing
v. State of Punjab, AIR 1964 SC 72). It cannot be overlooked that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. As noted by this Court in E.P.Royappa v. State of T.N., (1974) 4 SCC 3, courts will be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration." (Emphasis supplied) .SP 2
126. I shall now proceed to examine whether the petitioner has succeeded in proving his allegations of mala fides on the touchstone provided by the Hon'ble Supreme Court in the above quoted paragraph.
127. The allegations of mala fides of the
petitioner are contained in paragraph 17
No. 37287/2003 to the following effect:
"(a) Whether the 2nd respondent
tried to surrender
i some land belonging to the Corporation for widening the Mukkoothil temple road by the side of the Corporation's container Freight Station at Thrippunithura, at the instance of some neighbouring land owners, the petitioner objected to the same on the ground that apart from the Corporation losing its land, financial liability would be huge as it would involve reconstruction of wall, reconstruction of drainage and relocation of telephone poles, electricity poles and transformers, which would necessitate Government sanction. This infuriated the 2nd respondent who summoned the petitioner to his cabin and verbally abused in the presence of persons who the petitioner thinks were the people who wanted to get the road widened. The petitioner alleges that the Government refused sanction sought for by the 2nd respondent for the purpose also.
(b) In the matter of purchase of land for i setting up a warehouse at Pattanakkad, when the petitioner's attempt to get Government land through the Collector failed, the 2nd respondent wanted to purchase land through private negotiation which was objected to by the petitioner, which attracted the wrath of the 2nd respondent against the petitioner.
(c) When the petitioner refused to recommend i payment of TA Bill of the 2nd respondent's driver without the log book of the vehicle on the ground of possible audit objection, the same was got sanctioned through Mr.Kunhu Mohammed, Executive Engineer-I who was on the verge of retirement and was expecting an extension of service by the 2nd respondent. It is alleged that after the petitioner obtained a stay from the Supreme Court Ext.P11 order of a Division Bench of this Court restraining the 2nd respondent from holding the post of Managing Director of KSWC and holding that he should not be appointed as Managing Director or Director of any other public sector undertaking pending disposal of the two original petitions in which the order was passed, the 2nd respondent summoned the petitioner to his cabin and abused him in foul language in Malayalam for having refused to recommend the TA Bill of his driver and threatened to finish him.
(d) In spite of the fact that the petitioner had i taken appropriate steps to defend O.P.(MV)No.2206/2000 at MACT, Kozhikode by engaging Advocate P.K.Babu, a memo dated 30-10-2001 was issued to the petitioner alleging inaction. The 2nd respondent later engaged another lawyer on 22-1-2000 after getting the opinion of the General Manager (Finance).
(e) On the retirement of Sri. Kunhu Mohammed on i 31-5-2002 as Executive Engineer-I, instead of giving charge to the petitioner, who was Executive Engineer-II, Sri. Kunhu Mohammed was directed to hand over charge to his junior Smt.E. Elizabeth Kurian who was only an Assistant Executive Engineer.
(f) The increments due to the petitioner for the i years 2002 and 2003 were not sanctioned citing the disciplinary proceedings.
(g) The 2nd respondent resented the petitioner's i suo motu efforts to get the rat poison produced by the Corporation purchased by the Collector for fighting rat fever and denque which resulted in the Collector, who was personally known to the petitioner ordering Rs.2,61,000/- worth of rat poison from the Corporation.
(h) The petitioner's request for a `no objection' i from the Corporation for applying for passport was turned down by the 2nd respondent.
(i) Although there was no post of Executive i Engineer at Kanhangad, for the first time in the history of the Corporation an Executive Engineer was transferred out of the Headquarters by transferring the petitioner to Kanhangad on 12-6-2002. Even though the construction work at Padanakkad which was the ostensible reason for such transfer, was over in April, 2003, the petitioner was retained at Kanhangad without any work. Further, when the petitioner reported the inferior quality of the steel truss purchased by the Corporation from private contractors for the work, the 2nd respondent by letter dated 2-9-2002 told him not to indulge in matters not concerning him and to only monitor the affairs without any interference." .SP 2
128. In his counter affidavit, the 2nd respondent has categorically denied these allegations. As such, there is nothing on record either to prove or disprove these allegations. Therefore, it is not possible to enter a finding in favour of the petitioner on the question of existence of mala fides on the part of the 2nd respondent in the matter of initiating disciplinary proceedings against the petitioner on the basis of these allegations alone.
129. However, these allegations have to be viewed in the light of the initiation of the three successive disciplinary proceedings against the petitioner as also denial of posting at Ernakulam and increments to the petitioner. I have already held that there was no sufficient material to initiate disciplinary proceedings against the petitioner, and the manner in which disciplinary proceedings were initiated by the 2nd respondent would suggest that such initiation was on extraneous considerations. First, let us see the first of the three disciplinary proceedings. The allegations against the petitioner was that he `unauthorisedly' quoted +30.88% above estimate rate for the work of KLDB and `unauthorisedly' negotiated with KLDB and reduced the rate to +28.88% which was unworkable. The notings in the file which is the basis for the charges, especially the approval therein by the then Managing Director would not suggest any unauthorised action on the part of the petitioner. Further, when a new Managing Director is confronted with a question as to whether the action was with authorisation of the previous Managing Director, what the new one should have done was at least to try to ascertain from the Managing Director as to whether he had, in fact, authorised the same. Pursuant to the note put up by the then Executive Engineer-I on 22-4-2002, the petitioner put up Ext.P4 detailed note in which he categorically stated, "all these action were carried out as per instruction by the then M.D. and in consultation with him." Even after receipt of Ext.P4, the 2nd respondent did not find it necessary to try to find out the truth from the former Managing Director. In the notes, neither the Executive Engineer-II nor the General Manager stated anything against the petitioner. Despite that, the 2nd respondent decided to initiate the disciplinary proceedings against the petitioner. In fact, Ext.P17 affidavit of the former Managing Director would categorically show that no effort was made to even contact him on this matter and would completely absolve the petitioner of the charges.
130. Further, the notings in Ext.P1 would categorically show that there were collective deliberations among the then Managing Director, Executive Engineer-I, General Manager (Finance) and the petitioner, although, initially the Executive Engineer and General Manager (Finance) had expressed words of caution. In any event, the note at page 21 of the note file which appears to be in the handwriting of Executive Engineer-I written on 11/12, endorsed by General Manager (Finance) on 11/12 and endorsed by the Managing Director on 12/12 would go to show that the three had taken a collective decision to take up the KLDB work as an experimental case, which would make all four of them tarred with the same brush. That being so, if the petitioner was to be proceeded against, the other three were to be equally proceeded against, or at least the Managing Director. But, there is absolutely nothing on record by anybody, much less by the 2nd respondent, to show that such a course was even thought of at least till 7-11-2003, when, much after the disciplinary proceedings against the petitioner were over, without even giving a notice to the then Managing Director, or even an allegation in Ext. P5 memo of charges issued to the petitioner to the effect that the petitioner did that in connivance with the then Managing Director, the Executive Committee resolved to recover 75% of the pecuniary loss from the then Managing Director. If the 2nd respondent thought that the petitioner was doing it in league with the then Managing Director, he should have at least stated in the memo of charges that the petitioner had done the misconduct in connivance with the petitioner. But, then, if it had been done, it would completely absolve the petitioner of the charges since that would show that the petitioner had, in fact, done the same with authorisation from the Managing Director. In fact, the decision to recover 75% of the loss from the Managing Director would render Ext.P5 memo of charges without any basis. Anybody would, without any doubt, straightaway come to the conclusion that a Rs.28 lakh worth work could not have been tendered by an Executive Engineer without authorisation from the higher ups. Therefore, anybody could see that the 2nd respondent wanted to take the disciplinary action against the petitioner badly so as to see him punished somehow and it was as if he knew that if he mentioned the former Managing Director in the charge memo, the petitioner would not have been found guilty.
131. Now, let us take the second disciplinary proceedings. This was initiated on the basis of the letter dated 26-11-2003. In the same, he correctly stated the directions in the judgment passed by the Single Judge in the first writ petition and requested that in view of that judgment, he may be allowed to join as Executive Engineer in the Headquarters. This was termed as a falsification of the High Court order and charge memo issued. Further, although the judgment was delivered on 26-11-2003 in the presence of the counsel for the Corporation, in his letter dated 29-11-2003 (Ext.P4 in W.P(C) 20554/2004), the words used by the 2nd respondent are "though you promised to present the court order, which is said to have directed the Corporation to reinstate you as Executive Engineer-I ......" First of all, the 2nd respondent feigns ignorance of the judgment and secondly, he distorts the letter given by the petitioner. These words are indicative of a punitive mind bend upon taking action on the petitioner at the slightest provocation.
132. In the third disciplinary proceedings, the 2nd respondent initiated action on the petitioner on the basis of a letter from an advocate forwarded to him by the Government. On receipt of the reply from the petitioner which thoroughly discredited the complaint, the 2nd respondent abandons action on the complaint itself and embarks on another proceeding asking the petitioner to furnish details of the movable and immovable properties of himself, wife and dependants. The petitioner dutifully furnishes the same. The 2nd respondent picks holes in the statement for trivial reasons. Then the petitioner furnishes copy of a statutory return under the Kerala Lok Ayukta Act, which was filed as per directions of the 2nd respondent himself and was forwarded through the Corporation. Pat came the reply from the 2nd respondent, "instead of giving a detailed reply, you gave a copy of the statement you said to have submitted to Lok Ayukta. You are informed that Corporation is not concerned with the statement furnished to Lok Ayukta." A curious fact is that at no point, the 2nd respondent had a case that the petitioner or his family members possessed any property other than what he had declared. An action which started on an allegation of purchasing land and building a house worth Rs.30 lakhs at Maradu with ill-gotten gains in an alleged corrupt land deal of the Corporation petered out into a disciplinary action on a trivial, imaginary allegation of not furnishing details of assets the way the 2nd respondent wanted. These actions definitely points to a mind in a punishing mood, for whatever reason he can lay hands on or if not available, for no reason at all.
133. Then, by memo dated 4-7-2003 (Ext.P12 in O.P.No. 37287/2003), the 2nd respondent initiates action against the petitioner for requesting the Collector, Kozhikode to purchase rat poison baits prepared by the Corporation, i.e. for doing something to the benefit of the Corporation.
134. Again, the 2nd respondent withholds the annual increment of the petitioner for 3 years citing the disciplinary action as the reason, despite the non-existence of any rule authorising him to do so, which he justifies as a practice in the Corporation which he could not substantiate.
135. Of course, the 2nd respondent took pains to impress upon the Court that he is innocent of the proceedings since it was the Board of Directors and Executive Committee which took all the decisions. This appears to be just an eye wash. By order dated 27-6-2005, I specifically directed counsel for the respondent to produce the "file relating to the deliberations of the Executive Committee before the enquiry and after the enquiry." Files produced pursuant thereto contains only extracts from the minutes of the meetings of the Executive Committee. In any event, it cannot be disputed that the decision to initiate the disciplinary action was taken by the 2nd respondent and then only the same could be placed before the Executive Committee for approval. Moreover, from the way decisions on the disciplinary action were taken would lend credence to the argument of the petitioner that the Executive Committee was guided by the views of the 2nd respondent alone, without independently considering the same as a collective body. Further, the petitioner cannot be faulted when he complains that the non-Malayalai member could not have considered the matter in the right perspective as much of the evidence was in Malayalam and no translation is seen provided.
136. This is clear from another circumstance also. I have already held that from the minutes of the 160th meeting, the Executive Committee does not appear to have had the advantage of seeing the evidence in the enquiry or the enquiry file and that it appears that the Managing Director had paced before them only the enquiry report. As such, I am constrained to hold that the 2nd respondent had withheld vital information from the disciplinary authority. Again, from the minutes of the 162nd meeting, it is seen that the Executive Committee had, in fact, been swayed by the fact that there was no approval from the Board of Directors for the tender, which was not an allegation against the petitioner. Further, it is not the duty of the petitioner to get such approval. Moreover, since the Executive Committee has found that the former Managing Director was responsible to the extent of 75%, it must be presumed that the actions of the petitioner was with the approval of the Managing Director which would absolve the petitioner. This also would show that the Executive Committee was merely guided (or misguided) by the 2nd respondent without giving them the advantage of the enquiry file and the evidence adduced at the enquiry.
137. The respondents tried to impress upon me the fact that the petitioner was earlier proceeded against for other misconducts also. Assuming that to be true, the fact remains that there was no ground for initiating any disciplinary action in any of the three disciplinary proceedings against the petitioner and, therefore, is of no consequence as far as these writ petitions are concerned.
138. Taking into account the above circumstances discussed above, I am of the firm opinion that "bad faith is discernible from the impugned proceedings as also the established surrounding factors which preceded the orders as a reasonable and inescapable inference from the proved facts", to borrow the words of the Supreme Court. Therefore, I hold that all the proceedings in all the four writ petitions are tainted with mala fides on the part of the 2nd respondent.
139. In the result, I allow all the four writ
petitions on the following terms:
(a) The disciplinary proceedings initiated against the petitioner by Ext.P5 memo of charges and further proceedings pursuant thereto, which culminated in Ext.P15 as also Ext.P16 order impugned in W.P(C) No.37287/2003 are quashed.
(b) The disciplinary proceedings initiated against the petitioner by Ext.P8 memo of charges and all further proceedings pursuant thereto which culminated in Ext.P24 show cause notice impugned in W.P(C) No. 20554/2004 are quashed.
(c) The disciplinary proceedings initiated by Ext.P25 and all further proceedings pursuant thereto impugned in W.P(C) No.28326/2004 are quashed;
(d) Exts. P6 and P8 impugned in W.P(C) No.14851/2004 are quashed and the respondents are directed to post the petitioner as Executive Engineer-I at the Headquarters of the Corporation at Ernakulam and to sanction and pay the annual increments for all years from 2002 onwards till date with arrears thereof forthwith.
(e) The petitioner is entitled to costs in all these writ petitions which I quantify at a total of Rs.10,000/= which shall, in the first instance, be paid by the 1st respondent and thereafter recovered from the 2nd respondent. Before parting with these cases, I would like to place on record my appreciation for the tremendous assistance provided to this Court by counsel in this case, M/s. P.Gopinatha Menon for the petitioner and N.D.Premachandran and K. Ramakumar for the respondents in wading through an ocean of pleadings and sifting through a plethora of decisions, which I could not have done as effectively as I have done without their assistance. The files produced by counsel for the respondents, pursuant to the direction issued by this Court, are returned. Tds/ .JN .SP 1
S. Siri Jagan, Judge..PA ((HDR 0 )) .HE 2 .SP 2 .JN
S.Siri Jagan, J.
J U D Get M E N T 17th June, 2005.
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