Partly allowed

The Director, National Institute of Technology v. M.Kumaran

Kerala HC12 Feb 2016WA/1287/2015

Case brief

AI extract

What is this about?

The High Court set aside the dismissal order of a clerk for misappropriation, holding that a disciplinary enquiry was mandatory as the employee had not admitted guilt. The direction for a de novo enquiry was not implemented due to the long lapse of time.

What did the court decide?

Dismissal order set aside; petitioner deemed to continue under suspension until retirement age with subsistence allowance; entitled to all retirement benefits.

The Director, National Institute of Technology Vs… — 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 THE CHIEF JUSTICE MR.ASHOK BHUSHAN &

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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FRIDAY, THE 12TH DAY OF FEBRUARY 2016/23RD MAGHA, 1937

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WA.No. 1287 of 2015 () IN WP(C).2186/2005

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------------------------------------------AGAINST THE JUDGMENT IN WP(C) 2186/2005 DATED 02-12-2014 ------------

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APPELLANTS/RESPONDENTS 1 & 2 IN WP(C) :-

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1. THE DIRECTOR, NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT (FORMERLY CALICUT REGIONAL ENGINEERING COLLEGE) CALICUT, REC POST, KERALA.

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2. THE CHAIRMAN

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BOARD OF GOVERNORS, NATIONAL INSTITUTE OF TECHNOLOGY CALICUT.

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BY ADV. SRI.MILLU DANDAPANI

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RESPONDENT/PETITIONER IN W.P.(C) :-

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SHRI.M.KUMARAN 'SOUPARNIKA', MANNILIDAM ROAD P.O., CHATHAMANGALAM, CALICUT - 673 601.

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(2ND RESPONDENT/UNION OF INDIA IN THE WRIT APPEAL, STANDS DELETED FROM THE PARTY ARRAY AS PER ORDERS OF THIS HONOURABLE COURT, DATED 17.11.2015 IN I.A.No.1479/2015).

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BY SRI.SIVAN MADATHIL

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-022016 ALONG WITH WA. 2416/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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jvt

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ASHOK BHUSHAN, C.J & A.M. SHAFFIQUE, J.

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W.A. Nos.1287 & 2416 of 2015

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Dated this the 12^th day of February 2016

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J U D G M E N T

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Ashok Bhushan, CJ.

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These two writ appeals have been filed against the judgment dated 2.12.2014 passed in W.P.(C) No.2186 of 2005. W.A.No.1287 of 2015 has been filed by respondents 1 and 2 in the said writ petition, whereas, W.A.No.2416 of 2015 has been filed by the writ petitioner. The writ petition has been allowed by the learned Single Judge with a direction to conduct a denovo enquiry. Both the parties, feeling aggrieved by the said judgment, have come up with these two writ appeals.

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The brief facts of the case are as follows :- The parties shall be referred to as referred to in the writ petition. The writ petitioner was appointed as Lower Division Clerk in the year 1982 in the Regional Engineering College, Calicut, now known as National Institute of Technology, Calicut. The petitioner was promoted as Upper Division Clerk on 11.7.2002. The next promotion was granted to the petitioner as Junior

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W.A. Nos.1287 & 2416 of 2015

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-: 2 :-

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Superintendent. At a time, when he was working as Junior Superintendent, a memo dated 14.6.2002 was issued to the petitioner alleging irregular handling of cash by the petitioner. In the said memo, certain other allegations were levelled against him. The petitioner submitted a reply to the memo by letter dated 10.7.2002. In the said reply, he had stated that all the payments were effected by him with good intention and trustworthy and he has not taken a single paise from the aforesaid accounts. He, however, stated that if there is any kind of financial loss to the College, he is ready to compensate the loss. The Management, being not satisfied with the explanation, issued a memo dated 12.7.2002 informing that he was placed under suspension with immediate effect and a detailed enquiry into the irregularities will be conducted. The memo of charges was issued on 6.9.2002. The charges related to irregularities including misappropriation of college money, payments made on forged acquittance, keeping the money drawn for Petty Cash out of College Accounts for long periods, embezzlement of cash from the personal claims of staff members etc. The petitioner sent a letter asking for 15 days

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W.A. Nos.1287 & 2416 of 2015

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-: 3 :-

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time to submit an explanation and by Ext.P9 dated 8.10.2002, the petitioner submitted his explanation. In the said explanation, he reiterated that he had worked with utmost sincerity and he never tried to cheat the institution. Further, he reiterated that if any loss is caused to the institution, he is ready to compensate the same. The petitioner submitted another submission dated 7.11.2002 stating that he is ready to remit the amount, which was found misappropriated, defalcated and embezzled by him, within thirty days. The Disciplinary Authority, after receipt of the reply dated 8.10.2002 did not proceed to conduct any enquiry and noted that the petitioner has admitted the charges and remitted the entire amount and came to the conclusion that the charges levelled against the petitioner are of very serious nature as it involves misappropriation and defalcation of Institute money and embezzlement of money due to others and the gravity of offence committed by the petitioner requires that he should be dismissed from the service and by memorandum dated 28.1.2003, directed the petitioner to show cause against the proposed punishment of dismissal. The petitioner submitted a

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W.A. Nos.1287 & 2416 of 2015

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-: 4 :-

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reply, Ext.P11 dated 13.2.2003, again reiterating that he was doing his duty with utmost sincerity and never tried to cheat the institution. He, in his reply, has also referred to his family status, about his minor children and aged mother. He requested that his representation may be accepted and he may be permitted to rejoin duty. An order dated 17.2.2003 was passed by the Disciplinary Authority dismissing the petitioner from service. Against the order of dismissal, an appeal was filed by the petitioner, which was also dismissed by the Chairman, Board of Governors, NIT Calicut by order dated 21.7.2003, Ext.P14. Aggrieved by the dismissal order, the petitioner filed a writ petition praying for the following reliefs :-

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“a) Call for the records leading upto Exts.P1 to P16 and quash Exts.P12 and P14 by the issue of a writ of certiorari, or other appropriate writ, order or direction.

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b) issue a writ of mandamus or other appropriate writ, order or direction directing respondents 1 and 2 to conduct a detailed enquiry as contemplated under the law through a duly constituted committee.

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c) issue a writ of mandamus or other appropriate writ, order or direction directing the third respondent to dispose of Ext.P16 within a time limit that this Hon'ble Court may impose.”

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In the writ petition, a statement has been filed by

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respondents 1 and 2. The learned Single Judge, after hearing

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W.A. Nos.1287 & 2416 of 2015

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-: 5 :-

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the parties, by judgment dated 2.12.2014 allowed the writ petition. The learned Single Judge held that the petitioner never admitted that he had misappropriated or embezzled the amount and the order of dismissal without resorting to a domestic enquiry was also held to be unjustified. The learned Single Judge directed that a denovo enquiry be conducted at the stage at which the petitioner has given Ext.P9 statement of defence. In paragraph 14 of the judgment, the learned Single Judge has issued the following directions :-

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“ 14. On a consideration of the entire materials now placed on record, this Court is of the definite view that Ext.P12 and Ext.P14 orders are to be interfered with.

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In the result, this writ petition is allowed. Exts.P12 and P14 are hereby quashed. The first respondent is directed to conduct a denovo enquiry from the state at which the petitioner has given Ext.P9 statement of defence. The enquiry shall be completed within a period of six months from the date of receipt of a copy of this judgment. The petitioner shall be supplied with all copies of the documents relied on by the first respondent. As Ext.P12 and Ext.P14 orders are quashed, the period from the date of Ext.P12 till the period of final orders to be pronounced after the enquiry shall be reckoned as period of suspension.

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W.A. Nos.1287 & 2416 of 2015

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-: 6 :-

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Needless to say that the petitioner shall be entitled to have subsistence allowance eligible as per rules during the said period. The subsistence allowance eligible as per rules till date shall be released to the petitioner within a period of one month from today.”

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The first and second respondents, aggrieved by the judgment of the learned Single Judge setting aside the dismissal order, has filed a writ appeal, W.A.No.1287 of 2015, whereas, the writ petitioner, aggrieved by that part of the order, by which, the learned Single Judge has directed a denovo enquiry, has filed W.A.No.2416 of 2015.

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We have heard Smt.Sumathy Dandapani, the learned Senior Counsel appearing for the Management and Sri.Sivan Madathil, the learned counsel appearing for the writ petitioner.

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The learned Senior Counsel appearing for the Management submits that the materials indicated in the memo of charges fully proved that the petitioner has committed financial irregularity including embezzlement and since the petitioner has admitted his guilt and deposited the amount, there was no necessity for holding any enquiry. It is submitted that no error was committed by the Disciplinary Authority in not proceeding with the enquiry since the guilt was admitted

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W.A. Nos.1287 & 2416 of 2015

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-: 7 :-

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and the amount was deposited. It is submitted that since the charges have already been proved through the materials indicated in the memo of charges, there was no occasion for setting aside the dismissal order.

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The learned counsel for the writ petitioner, refuting the submission of the learned counsel for the Management, contends that in none of the replies, which were given by the petitioner, ie; Exts.P3, P4 and P9, he admitted that he has committed any financial irregularity or misappropriation. It is submitted that the petitioner has long unblemished service of 21 years and not even a memo was given to the petitioner throughout his career. It is submitted that the petitioner has repeatedly stated that he has not committed any misconduct, but, due to his family status, he is ready to compensate the loss caused by the College, if any. He submitted that the Disciplinary Authority, without holding any enquiry had come to the conclusion that the petitioner has committed embezzlement and based on the said erroneous finding, the order of dismissal was passed, which was unsustainable and has rightly been set aside by the learned Single Judge. The

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W.A. Nos.1287 & 2416 of 2015

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-: 8 :-

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learned counsel submits that due to the dismissal order, the

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writ petitioner was deprived of continuance in service and consequential benefits like gratuity and pension. It is submitted that in normal course, the petitioner would have superannuated from service on 28.2.2011.

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The memo of charges, Ext.P6, was given to the petitioner on 6.9.2002. The reply to which was given by the petitioner by Ext.P9 dated 8.10.2002. It is useful to quote paragraphs 3 and 4 of the said reply. The English translation of which are to the following effect :-

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“ 3. I have submitted a detailed explanation on 10.07.2002 for the memo submitted to be on 11.06.2002. Alleged discrepancies was of the year 2000-2002. Apart from the admission time and other busy situations, I use to handle amounts not less than 100000/-, and I did those with high responsibility. To help me only one assistant post was created. During busy schedule lakhs of rupees was handled by me. As an educational institution with very busy schedule, nothing can be done in a slow manner. As the alleged issued a so old I cannot comment on such issues. Though I verified an tried to recollect the allegation in the memo issued to me I cannot understand any thing. I am totally shattered due to my present situation due to my problems. I worked with utmost sincerity and I never tried to cheat the institution.

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W.A. Nos.1287 & 2416 of 2015

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-: 9 :-

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4. As I am finding difficulty in explaining the facts due to my pathetic state of mind. Hence, I may be pardon and mercy may be shown to my family. If any loss occurred to this institution I am ready to compensate the same, and I assure that in future there will not be any omissions or irresponsible act will occur from my part. I deeply regretting for what ever happened. I am ready and willing to function complying with all conditions impose upon me by the institute.”

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In the reply, the petitioner has never admitted that he has committed any misconduct and has embezzled any amount. In Exts.P3 and P4 initial replies given by the petitioner, he has reiterated that he had worked with utmost sincerity and never tried to cheat the institution. The same averments have been made by the petitioner in his reply to the memo of charges. After the submission of the said reply by the petitioner, no enquiry was initiated by the Disciplinary Authority, either by himself or by any Enquiry Officer, rather, on 28.1.2003, the Disciplinary Authority, after considering the memo, opined that the charges levelled against the petitioner are serious in nature and the petitioner has admitted the charges and thereafter by letter dated 28.1.2003 proposed a punishment of dismissal and held that he is not eligible for any retirement benefits including

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W.A. Nos.1287 & 2416 of 2015

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-: 10 :-

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DCRG. In the reply to the said memo dated 28.1.2003, the petitioner has again reiterated (in the English translation) as follows :-

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“Till day during my tenure in service in this institution I was doing my duties entrusted to me with utmost sincerity and I never tried to cheat the institution. I may be pardon in case any omissions or mistakes occurred from my part. I am deeply regretting for what ever happened.”

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After considering the said reply, order of dismissal has been passed on 17.2.2003. Against the said order of dismissal, the petitioner has preferred an appeal before the Board of Directors, National Institute of Technology, Calicut. After considering the memo of charges levelled against the petitioner and the replies given by the petitioner, the Chairman, Board of Governors had taken a decision on 21.7.2003. The following observations were made in the said decision :-

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“The objections raised in Ground No.10 that an enquiry should have preceded before imposing the penalty is also devoid of merits. It is unsustainable as well. Admitted facts need not be proved. When his action and liability are virtually admitted by Sri.M.Kumaran in some of his statements briefly indicated above and when he had remitted the amount

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W.A. Nos.1287 & 2416 of 2015

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-: 11 :-

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owning his liability and responsibility for the same, it is an instance where an enquiry may not be necessary. Absence of an enquiry when it is unnecessary cannot be taken as a ground by the Appellant to impugn the decision against him.

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The punishment awarded is not disproportionate to the guilt committed by the Appellant. Misappropriation and embezzlement of funds done by the Appellant and which is virtually admitted by him through his statements and conducts as indicated above, deserve the punishment awarded, as such a person cannot be permitted to continue in service and does not deserve any leniency.”

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On a perusal of the order of dismissal issued by the Disciplinary Authority, it would indicate that the Disciplinary Authority proceeded on the premise that the petitioner has admitted his guilt and his statement contains the admission of charges.

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We have noticed the reply given by the petitioner, Ext.P9, wherein, there is no admission of guilt. The petitioner has stated that he had worked with utmost sincerity and has never admitted his misconduct or embezzlement of amount. In the facts of the present case, especially, where serious charges were levelled against the petitioner, holding of an enquiry is

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W.A. Nos.1287 & 2416 of 2015

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-: 12 :-

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must as per the statutory rules applicable to the conduct of enquiry.

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Learned counsel for the petitioner submits that the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 are applicable for conduct of disciplinary enquiry, which may be adopted.

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Rule 15 of the said Rules provides 'Procedure for imposing major penalties'. Rule 15(2) is as follows :-

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“(2)(a) Whenever a complaint is received, or on consideration of the report of an investigation, or for other reasons, the disciplinary authority or the appointing authority or any other authority empowered by Government in this behalf is satisfied that there is a prima facie case for taking action against a Government Servant, such authority shall frame definite charge or charges which shall be communicated to the Government servant together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. The accused Government Servant shall be required to submit within a reasonable time to be specified in that behalf a written statement of his defence and also to state whether he desires to be heard in person. The Government servant may on his request be permitted to peruse or take extracts from the records pertaining to the case for the purpose of preparing his written

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W.A. Nos.1287 & 2416 of 2015

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-: 13 :-

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statement; provided that the disciplinary or other authority referred to above may, for reasons to be recorded in writing, refuse him such access, if in its opinion such records are not strictly relevant to the case or it is not desirable in the public interest to allow such access. After the written statement is received or if no such statement is received within the time allowed, the authority referred to above may, if it is satisfied that a formal enquiry should be held into the conduct of the Government servant, forward the record of the case to the authority or officer referred to in clause (b) and other that a formal enquiry may be conducted.

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(b) The formal enquiry may be conducted by,-

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(i) the Government;

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(ii) the appointing authority;

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(iii) the disciplinary authority;

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(iv) the head of the department or any officer of the department empowered by the appointing authority or the head of the department; or

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(v) a special officer or tribunal appointed by the Government for the purpose or a tribunal generally appointed for making enquiries into the conduct of Government Servants :

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Provided that the formal enquiry in respect of a member of the Kerala Civil Judicial Service or the Kerala Criminal Judicial Service or a District Judge shall be conducted by the High Court or any other authority appointed by the High Court in this behalf.

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Provided further that the Complaints committee constituted in each Department/Office/Institution for inquiring into complaints of sexual harassment falling

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W.A. Nos.1287 & 2416 of 2015

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-: 14 :-

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within the ambit of rule 93 F of Kerala Government Servants Conduct Rules, 1960 shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of the enquiry and the Committed shall hold, on receipt of such a complaint, the enquiry, as far as practicable, in accordance with the procedures laid down in these rules unless separate procedure has been prescribed for the Committee for holding such enquiry.”

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14. It is relevant to note that after considering the first

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reply given by the petitioner to the first show cause notice, a memo was issued on 12.7.2002, Ext.P5, which reads as

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follows :-

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“MEMORANDUM

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The reply submitted by Shri. M. Kumaran, Junior Superintendent, Training & Placement Department, Calicut REC to the memorandum issued to him on 14-62002 under reference cited is not found satisfactory. He is placed under suspension with immediate effect from the date of issue of this memorandum. A detailed enquiry into the irregularities alleged to have been committed by Shri. M. Kumaran, Junior Supdt. will be conducted observing procedure as per rules.

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PRINCIPAL”

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W.A. Nos.1287 & 2416 of 2015

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-: 15 :-

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There was already a decision for holding an enquiry, however, no enquiry was conducted. Since the petitioner has never admitted his guilt and misconduct, holding of an enquiry was necessary as per Rule 15(2) of the Statutory Rules. We, thus, are of the opinion that the order of dismissal passed without conducting any enquiry is unsustainable.

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Learned counsel for the Management has submitted that the direction to hold an enquiry, after such a long lapse of time is impracticable.

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Learned counsel for the petitioner has also challenged that part of the order directing a denovo enquiry. According to the petitioner, he has attained the age of superannuation on 28.2.2011.

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From the materials brought on record, there appears to be some charges levelled against the petitioner, which were based on some materials on record. The reply given by the petitioner did not advert to a specific allegation made in the charge memo. The petitioner in his reply came forward to deposit the loss and had actually deposited the same. However, looking into the fact that the dismissal order was passed on

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W.A. Nos.1287 & 2416 of 2015

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-: 16 :-

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17.2.2003 and more than about 13 years have been lapsed, directing an enquiry at this stage will not serve any purpose. More so, when both the parties are submitting that enquiry ought not to have been directed.

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Hence, both the writ appeals are disposed of as

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under :-

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The order of dismissal is set aside. As directed by the learned Single Judge, the petitioner shall be deemed to continue under suspension until he attained the age of retirement, during which period, he will be entitled for subsistence allowance, ie; from 17.2.2003 till his date of retirement, 28.2.2011. After attaining the age of superannuation, the petitioner shall be entitled for all retirement benefits.

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Sd/-

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ASHOK BHUSHAN CHIEF JUSTICE

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Sd/A.M. SHAFFIQUE

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JUDGE

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Jvt/17.2.2016.

The Director, National Institute of Technology v. M.Kumaran

Case brief

What is this about?

What did the court decide?

The Director, National Institute of Technology v. M.Kumaran

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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