Allowed

A.Manikandan Nair v. K.S.E.B.

Kerala HC6 Jan 2016OP/4346/2003

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition challenging a disciplinary order barring increments and recovering defalcated funds. The court set aside the enquiry report and subsequent orders, finding a violation of natural justice where the authority declared guilt before receiving objections to the enquiry report, and for relying on records not examined by the delinquent employee.

What did the court decide?

The writ petition is allowed; the enquiry report, show cause notice, and disciplinary orders are set aside, and the matter is remitted for a fresh enquiry with proper procedure.

A.Manikandan Nair Vs K.S.E.B. — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937

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O.P.No.4346 of 2003 (P)

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PETITIONER(S):-

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SHRI.A. MANIKANDAN NAIR, SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM.

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BY ADV. SRI.S.RAMESH BABU.

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RESPONDENT(S):-

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KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.

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EXECUTIVE ENGINEER,

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ELECTRICAL DIVISION, THRISSUR WEST.

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DEPUTY CHIEF ENGINEER,

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ELECTRICAL CIRCLE, KOTTAPPURAM, THRISSUR.

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CHIEF ENGINEER (HRM), VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.

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R1 TO R4 BY STANDING COUNSEL SRI.K.S.ANIL.. R1 TO R4 BYSRI.C.K.KARUNAKARAN, SC, K.S.E.B. R1 TO R4 BY SR.ADV. SRI.C.C.THOMAS, SC, K.S.E.B. R1 TO R4 BY SR.ADV. SRI.P.SANTHALINGAM, SC, KSEB. R1-R4 BY ADV. SRI.S.SHARAN, SC, K.S.E.BOARD.

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THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

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O.P.NO.4346 OF 2003-P

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1	TRUE COPY OF THE ORDER NO.EB1/1053/93-94/631 DATED 9.3.1994.
EXT.P2	TRUE COPY OF THE MEMO OF CHARGES DATED 21.06.1995 ALONG WITH STATEMENT OF ALLEGATIONS.
EXT.P3	TRUE COPY OF THE LETTER DATED 5.7.1995.
EXT.P4	TRUE COPY OF THE LETTER DATED 24.7.1995 ADDRESSED TO THE 2ND RESPONDENT.
EXT.P5	TRUE COPY OF THE LETTER DATED 2.8.1995.
EXT.P6	TRUE COPY OF THE LETTER DATED 13.09.1995.
EXT.P7	TRUE COPY OF THE WRITTEN STATEMENT OF DEFENCE DATED 18.9.1995.
EXT.P8	TRUE COPY OF THE ORDER DATED 16.2.1996.
EXT.P9	TRUE COPY OF THE PETITION DATED 13.8.96.
EXT.P10	TRUE COPY OF THE COMMUNICATION DT.1.10.96.
EXT.P11	TRUE COPY OF THE LETTER DATED 14.10.1996.
EXT.P12	TRUE COPY OF THE REPRESENTATION DATED 23.12.1996.
EXT.P13	TRUE COPY OF THE SHOW CAUSE NOTICE DATED 27.8.97 BY THE 2ND RESPONDENT.
EXT.P14	TRUE COPY OF THE ENQUIRY REPORT DATED 4.7.1997.
EXT.P15	TRUE COPY OF THE REPLY DATED 17.11.1997.
EXT.P16	TRUE COPY OF THE JUDGMENT DATED 29.4.1999 IN C.C.NO.247 OF 1994.
EXT.P17	TRUE COPY OF THE ORDER DATED 30.6.2000.
EXT.P18	TRUE COPY OF THE APPEAL DATED 23.08.2000.

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O.P.NO.4346 OF 2003-P

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EXT.P19 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 23.3.2001.

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EXT.P20 TRUE COPY OF THE ORDER DT.3.9.2002. EXT.P21 TRUE COPY OF THE ORDER DATED 30.09.1993. EXT.P22 TRUE COPY OF THE ORDER DATED 1.1.1994.

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EXT.P23 TRUE COPY OF THE ADDITIONAL AFFIDAVIT DT.24.6.2010. EXT.P24 TRUE COPY OF THE REQUEST DT.21.3.2012. EXT.P25 TRUE COPY OF THE REQUEST DT.26.3.2012. EXT.P26 TRUE COPY OF THE LETTER RECEIVED FROM THE PIO, LAW DATED 4.5.2012.

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EXT.P27 TRUE COPY OF THE REPLY DATED 5.7.2012.

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RESPONDENT'S EXHIBITS:-

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EXT.R2(a) TRUE COPY OF THE ACKNOWLEDGED COPY HANDED OVER OF THE FORMER STANDING COUNSEL (SHRI.C.K.KARUNAKARAN) ON 28.11.2007.

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EXT.R2(b) TRUE COPY OF THE LETTER DTD.26.11.2007 ISSUED BY THE SECRETARY, KSEB, TO THE LEGAL LIAISON OFFICER, KOCHI.

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Vku/[ true copy ]

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K. Vinod Chandran, J

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---------------------------------O.P.No.4346 of 2003-P

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---------------------------------Dated, this the 06^th day of January, 2016

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JUDGMENT

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The petitioner, a Cashier working with the Kerala State Electricity Board [for brevity “Board”], is before this Court challenging the proceedings in a disciplinary action, which culminated in Exhibit P17 order imposing a punishment of barring of three annual increments with cumulative effect and recovery of the defalcated amount of Rs.22,372/40 along with interest at 18% with effect from 25.02.1994. It is stated that the recovery has already been effected and the punishment has also come into force. The order at Exhibit P17 dated 30.06.2000 was challenged in appeal, which was dismissed by Exhibit P19 order dated 23.03.2001. A subsequent review also stood dismissed by Exhibit P20 dated 03.09.2002. The petitioner challenges the orders by the above writ petition of the year 2003.

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The petitioner was suspended by Exhibit P1 order dated 09.03.1994 on allegations of financial irregularity, resulting in misappropriation of funds, while discharging his duties as

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O.P.No.4346 of 2003

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Cashier of the Board. It is also stated that a criminal case was

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filed by the Board, which was numbered as C.C.247 of 1994, in which the petitioner stood acquitted. The said acquittal may not have much relevance in the consideration of the aforesaid case, since as declared in The Divisional Controller, KSRTC v. M.G.Vittal Rao [JT 2011 (13) SC 247] the mere fact of acquittal in a criminal case would not result in the delinquent employee being absolved of the misconducts alleged, particularly for the reason that the nature of evidence required in both the proceedings are totally different.

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Coming back to the disciplinary proceedings, Exhibit P2 memo of charges dated 21.06.1995 was issued to the petitioner, which specifically pointed out 35 instances of defalcation of amounts, 3 instances of delayed accounting and 16 instances of short remittances. On receipt of the memo of charges, the petitioner requested, by Exhibit P3, an opportunity to peruse the records and again, by Exhibit P4, to obtain extracts of the receipts; which were specifically referred to in the memo of charges. The petitioner was permitted the same by Exhibit P5

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O.P.No.4346 of 2003

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dated 02.08.1995. The petitioner's contention is that he did not receive the said communication and that he had made a further request, by a communication dated 21.08.1995, which was replied to by the Board; none of which are produced herein. The petitioner, on the basis of such averments, would contend that he was prejudiced in preferring an explanation to the show cause notice, since it was incumbent upon the employer to have permitted perusal of the documents specifically referred to in the memo of charges; for him to proffer a defence in the way of objection to the show cause notice.

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This Court would deal with the said issue first, since if that is the case and a violation is found on that basis, definitely the matter would have to be sent back to the disciplinary authority. The specific contention of the petitioner is that he did not receive Exhibit P5 communication. There is no explanation as to how he produced Exhibit P5 in the writ petition. The petitioner's explanation is that the petitioner had received a subsequent communication, which enclosed the copy of Exhibit P5. However, the said communication has not been produced by the petitioner.

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O.P.No.4346 of 2003

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The petitioner, having requested by two letters at Exhibit P3 and P4 for perusal of records and for permitting perusal of receipts, asserts that he had sent a further communication dated 21.08.1995, which is not seen produced herein. The petitioner also does not produce the reply to the said communication or the covering letter which enclosed Exhibit P5. In such circumstance, the petitioner's contention with respect to the disciplinary authority having not permitted him to peruse the records before an objection is given to the show cause notice has to be rejected. The petitioner, by his own failure, has refused to peruse the records before an objection is filed.

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Having considered the objections filed by the petitioner as a written statement, which is produced at Exhibit P7, the disciplinary authority passed Exhibit P8 order constituting an enquiry into the allegations levelled against the petitioner. An Enquiry Officer was also appointed. The petitioner contends that only two sittings were held on 17.04.1996 and 30.05.1996; after which Exhibit P14 report was filed.

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The learned Standing Counsel for the Board would

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O.P.No.4346 of 2003

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argue that the petitioner had refused to co-operate in the enquiry and hence, he cannot now raise any ground of prejudice, since the Enquiry Officer has dealt with the entire issue as per the evidence adduced at the enquiry.

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The enquiry report is placed at Exhibit P14. As has been noticed above, this Court does not find any procedural irregularity; insofar as the proceedings till the constitution of an enquiry. The enquiry was also held with full participation of the delinquent employee. The enquiry report, Exhibit P14, is supplied to the delinquent officer by Exhibit P13 show cause notice of the disciplinary authority. The show cause notice itself accepts the conclusions of the Enquiry Officer that the delinquent employee is guilty of the allegations of misconduct levelled against him and that a loss of Rs22,372/40 has been caused to the Board. The show cause, as per Exhibit P13, is only to the extent of the punishment proposed, which was barring of three increments with cumulative effect.

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The disciplinary authority in Exhibit P13, even before the supply of the enquiry report, has found the delinquent

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O.P.No.4346 of 2003

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employee guilty of the misconducts alleged against him. This would go against the specific declaration of law made by the Hon'ble Supreme Court in Union of India v. Mohd. Ramzan Khan [(1991) 1 SCC 588] and Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC 727]. The delinquent employee has to be given an opportunity to proffer his objections against the findings at the enquiry and only after consideration of such objections; enter into a finding of guilt. The Hon'ble Supreme Court in the afore-cited decisions has specifically noticed the amendments made to Article 311 of the Constitution by the 42^nd Amendment and held that the amendment was only to the effect that the opportunity to object against the punishment proposed to be imposed alone has been done away with and the opportunity to represent against the findings in the enquiry would still survive. In such circumstance, there is clear violation of principles of natural justice, insofar as the delinquent employee having not been given any opportunity to object against the findings in the enquiry and the disciplinary authority having not considered such objections.

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O.P.No.4346 of 2003

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The learned Counsel for the petitioner would point

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out that Exhibit P13 show cause notice and Exhibit P17 order passed by the disciplinary authority merely concurs with the findings of the Enquiry Officer and in that respect, the findings of the enquiry has to be looked into, especially since there is no document produced to find the petitioner guilty in the said enquiry. It is trite that this Court, exercising jurisdiction under Article 226 of the Constitution, would not sit in appeal over the enquiry report or the orders of the disciplinary authority and a re-appreciation on facts is not warranted. However, if there is any procedural irregularity in the conduct of the enquiry or the findings are totally without any evidence and based on extraneous considerations, this Court could interfere, since then the findings would be vitiated for reason of it being perverse.

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At the persuasion of the learned Counsel for the petitioner, this Court has looked into Exhibit P14 report, which mainly contains the statement of allegations and the version of the delinquent officer in the first 12 pages. The Enquiry Officer has raised three issues; as to the misconduct/misappropriation and

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O.P.No.4346 of 2003

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defalcation of money, using of additional receipt books to collect the Board's revenue and not having accounted the same as also tampering of receipts and official records. Obviously the allegations could be substantiated only by production of the said documents. The documents produced, as is revealed from page 12 of the enquiry report, are 7 in number; from Exhibits P1 to P7.

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The nature of the documents is revealed in page 13, where the Enquiry Officer discusses each of such documents. Exhibit P1 is said to be a memo given to the delinquent officer and Exhibit P2 is the reply by the delinquent officer; both of which cannot find the allegations against the delinquent officer. Exhibit P3 is a report given by the Senior Superintendent and Exhibit P4 is one of the receipts showing the amount collected, which has raised allegation of one short credit. Exhibit P4 receipt is said to have been received back from the consumer No.10051, who made a complaint to the Executive Engineer. The Executive Engineer is said to have conducted an enquiry, the report of which is marked as Exhibit P5; pursuant to which the Accounts Officer also conducted an enquiry, the report of which is marked as

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O.P.No.4346 of 2003

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Exhibit P6. Thereafter, on the direction of the Deputy Chief Engineer, the Senior Superintendent conducted an inspection and prepared a report, by which a liability was fixed, as Rs.22,372/40; which report is marked as Exhibit P7.

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Exhibits P3, P5, P6 and P7 reports are made by the various authorities without notice to the delinquent employee and without participating him in the enquiry leading to preparation of such report. Those reports are, at best reports of enquiries conducted by the officers to understand the extent of the misconduct committed by the petitioner. Those reports by itself cannot find the petitioner guilty, since the documents referred to in the reports would have to be produced at the enquiry and the delinquent employee permitted to object to such documents and proffer his defence with respect to the charges levelled. Exhibit P4 is the only document which has a direct nexus to the allegations levelled. The findings of the Enquiry Officer is based on Exhibits P1 to P7 and it is not clear as to how the Enquiry Officer could have found the misconduct alleged against the delinquent officer based merely on the reports submitted by the various officers

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which were not prepared with the participation of the delinquent employee. In such circumstance, the only conclusion is that this is a fit case where the enquiry report has to be found to be totally perverse and the proceedings itself found to be bad, since none of the documents connecting the petitioner with the misconduct alleged, except Exhibit P4, was produced before the Enquiry Officer.

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On finding such infirmities, it is trite that this Court would have to direct resumption of enquiry proceedings from the stage at which such illegality or irregularity is found. In such circumstance, the disciplinary authority shall appoint an Enquiry Officer and Presenting Officer and issue notice to the petitioner. The disciplinary authority shall also ensure that the list of documents, to be relied on in the enquiry, shall be supplied to the delinquent officer before the commencement of the enquiry. The delinquent officer shall also be permitted to peruse such documents. The enquiry shall be commenced and concluded within a period of six months from the date of receipt of a certified copy of this judgment and the disciplinary authority shall, without

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any findings, supply the copy of the report to the delinquent officer and call for his objections to the findings, if they are against the delinquent officer. The disciplinary authority shall also consider the objections of the petitioner and pass a reasoned order. It is made clear that this Court has not looked into the merits of the matter and has also not considered whether the misconducts alleged are proved or not. It is only on the question of the gross perversity insofar as the documents relied on by the Enquiry Officer being of no consequence, that the enquiry report itself is set aside. Exhibits P14, P17, P19 and P20 orders are set aside to facilitate the resumption of enquiry proceedings.

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The writ petition shall stand allowed. Since punishment has already been imposed and recovery effected, the further action shall only be after the conclusion of the enquiry proceedings and the decision of the disciplinary authority. Parties are directed to suffer their respective costs.

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Sd/K.Vinod Chandran Judge.

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Vku/-

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[ true copy ]

A.Manikandan Nair v. K.S.E.B.

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A.Manikandan Nair v. K.S.E.B.

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