Partly allowed

V.P.Prasadu v. the Kerala Agricultural University

Kerala HC26 Feb 2018WP(C)/8004/2014

Case brief

AI extract

What is this about?

A university employee challenged reversion and recovery from retirement benefits. The court set aside reversion for noncompliance with the prescribed enquiry procedure but upheld recovery as a minor penalty. It directed refixation of pensionary benefits, consequential benefits and payment of pay arrears.

What did the court decide?

Reversion set aside; pensionary benefits to be refixed with consequential benefits; pay arrears to be disbursed within three months of receipt of the judgment.

V.P.Prasadu Vs the Kerala Agricultural… — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939

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WP(C).No. 8004 of 2014

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PETITIONER(S):

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V.P.PRASADU, FARM SUPERINTENDENT, REGIONAL AGRICULTURAL RESEARCH STATION, AMBALAVAYAL, WAYANAD - 673 593, RESIDING AT: VATTODIL HOUSE, AYYAPPANKOVIL P.O., MATTUKADA, IDUKKI -685 507.

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BY ADVS.SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN

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SMT.S.LEENA

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RESPONDENT(S) :

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1. KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR - 680 656, REPRESENTED BY THE REGISTRAR.

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2. THE REGISTRAR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR - 680 656.

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3. THE VICE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR - 680 656.

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4. THE COMPTROLLER, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR- 680 656.

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BY ADV. SRI.ROBSON PAUL, S.C

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd. 01/03/2018

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WP(C).No. 8004 of 2014 (A)

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APPENDIX

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PETITIONER(S)'	EXHIBITS
EXHIBIT P1:	THE PHOTOCOPY OF LETTER NO.CRSP(2)300/12 DATED 28.03.2012 SUBMITTED BY THE PROFESSOR AND HEAD OF THE CARDAMOM RESEARCH STATION, PAMPADUMPARA TO THE 2ND RESPONDENT.
EXHIBIT P2:	THE PHOTOCOPY OF ORDER NO.GA/L3/37801/2011 DATED 09.08.2012 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P3:	THE PHOTOCOPY OF REPORT DATED 22.11.2012 SUBMITTED BY THE ENQUIRY COMMITTEE.
EXHIBIT P4:	THE PHOTOCOPY OF REPORT DATED 09.05.2013 SUBMITTED BY THE ASSOCIATE DIRECTOR OF RESEARCH (FARMS) BEFORE THE 3RD RESPONDENT.
EXHIBIT P5:	THE PHOTOCOPY OF ORDER NO.GA/L3/37801/2011 DATED 16.05.2013 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P6:	THE PHOTOCOPY OF LETTER NO.GA/L3/37801/2011 DATED 18.05.2013 ISSUED BY THE 2ND RESPONDENT TO THE PROFESSOR AND HEAD, CARDAMOM AND RESEARCH STATION, PAMPADUMPARA.
EXHIBIT P7:	THE PHOTOCOPY OF ORDER NO.GA/L3/37801/2011 DATED 17.08.2013 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P8:	THE PHOTOCOPY OF ORDER NO.GA/L3/37801/2011 DATED 09.09.2013 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P9:	THE PHOTOCOPY OF NOTICE NO.GA/L3/37801/2011 DATED 17.10.2013 SERVED ON THE PETITIONER.
EXHIBIT P10:	THE PHOTOCOPY OF THE EXPLANATION DATED 08.11.2013 (WITHOUT ANNEXURES) SUBMITTED BY THE PETITIONER BEFORE THE ENQUIRY COMMITTEE.
EXHIBIT P11:	THE PHOTOCOPY OF ORDER NO.GA/L3/37801/2011 DATED 25.11.2013 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P12:	THE PHOTOCOPY OF REPRESENTATION DATED 21.12.2013 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P13:	THE PHOTOCOPY OF JUDGMENT DATED 12.02.2014 OF THIS HON'BLE COURT IN W.P.(C)NO.2216/2014.
EXHIBIT P14:	THE PHOTOCOPY OF THE ACKNOWLEDGEMENT CARD OF THE POSTAL DEPARTMENT EVIDENCING THE RECEIPT OF CONSIGNMENT FORWARDED BY THE PETITIONER IN THE OFFICE OF THE 2ND RESPONDENT ON 15.02.2014.
EXHIBIT P15:	THE PHOTOCOPY OF NOTICE NO.GA/L3/37801/2011 DATED 13.02.2014 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT.

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WP(C).No. 8004 of 2014 (A)

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EXHIBIT P16:	THE PHOTOCOPY OF ENQUIRY REPORT FURNISHED TO THE PETITIONER ALONG WITH EXT.P15 NOTICE.
EXHIBIT P17:	THE PHOTOCOPY OF REPLY DATED 28.02.2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P18:	THE PHOTOCOPY OF ORDER NO.GA/L3/37801/2011 DATED 14.03.2014 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P19:	THE PHOTOCOPY OF INTERLOCUTORY APPLICATION (UN-NUMBERED) DATED 12.03.2014 FILED BY THE RESPONDENTS HEREIN BEFORE THIS HON'BLE COURT IN W.P.(C)NO. 2216/2014.
EXHIBIT P20:	THE PHOTOCOPY OF THE JUDGMENT DATED 26.05.2014 OF THIS HON'BLE COURT IN R.P.NO.259/2014 IN W.P.(C)NO. 2216/2014.
EXHIBIT P21:	THE PHOTOCOPY OF THE ORDER NO.GA/B1/39323/11 DATED 28.05.2014 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P22:	THE PHOTOCOPY OF THE NOTE NO.GA/L3/27167/2012 DATED 21.03.2015 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P23:	THE PHOTOCOPY OF ORDER NO.GA/L3/37801/2011 DATED 04.07.2015 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P24:	THE PHOTOCOPY OF LETTER DATED 17.03.2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P25:	THE PHOTOCOPY OF THE REPRESENTATION DATED 28.04.2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P26:	THE PHOTOCOPY OF THE REPRESENTATION DATED 12.05.2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P27:	THE PHOTOCOPY OF THE REPRESENTATION DATED 25.09.2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P28:	THE PHOTOCOPY OF THE REPRESENTATION DATED 29.12.2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P29:	THE PHOTOCOPY OF THE REPRESENTATION DATED 31.07.2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P30:	THE PHOTOCOPY OF THE LETTER NO.CRSP(2) 747/12 DATED 05.08.2015 ISSUED TO THE PETITIONER BY THE ASSOCIATE PROFESSOR AND HEAD OF THE CARDAMOM RESEARCH STATION, PAMPADUMPARA, IDUKKI.
EXHIBIT P31:	THE PHOTOCOPY OF ORDER NO.PEN B2/8982/2015 DATED 18.08.2015 ISSUED BY THE DEPUTY COMPTROLLER OF THE 1ST RESPONDENT UNIVERSITY.
EXHIBIT P32:	THE PHOTOCOPY OF LETTER NO.GA/L3/2015/101/6673 DATED OCTOBER, 2015 ISSUED BY THE 2ND RESPONDENT TO THE DIRECTOR OF PHYSICAL PLANT OF THE 1ST RESPONDENT UNIVERSITY AND TO THE CHIEF SECURITY OFFICER OF THE 1ST RESPONDENT UNIVERSITY.

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WP(C).No. 8004 of 2014 (A)

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EXHIBIT P33: THE PHOTOCOPY OF THE MINUTES OF THE INSPECTION TEAM ON THE HANDING OVER OF THE STAFF QUARTER KEY BY THE PETITIONER ON 18.11.2015. EXHIBIT P34: THE PHOTOCOPY OF THE ORDER NO.CRSP(2)911/2013 DATED 01.11.2012 ISSUED BY THE ASSOCIATE PROFESSOR AND HEAD OF THE CARDAMOM RESEARCH STATION, PAMPADUMPARA. EXHIBIT P35: THE PHOTOCOPY OF LETTER NO.GA/G2/5448/15 DATED 19.09.2015 ISSUED TO THE PETITIONER BY THE STATE PUBLIC INFORMATION OFFICER IN THE 1ST RESPONDENT UNIVERSITY. EXHIBIT P36: THE PHOTOCOPY OF NOTE NO.GA/G2/9095/2015(65/15) DATED 08.06.2015 ISSUED BY THE 1ST RESPONDENT UNIVERSITY.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.S.TO JUDGE

Msd. 01/03/2018

P.V.ASHA, J.

W.P.(C) No.8004 of 2014

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Dated this the 26^th day of February, 2018

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JUDGMENT

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The petitioner, who was the Farm Superintendent in the Cardamom Research Station, Pampadumpara under the Kerala Agricultural University, has filed this writ petition challenging the punishments awarded to him including the recovery effected from his pensionary benefits.

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The Professor and Head of the Cardamom Research Station, Pampadumpara had by Ext.P1 letter dated 28.3.2012, addressed to the Registrar of the University, informed that there was total administrative collapse and requested to have administrative intervention to sort out the issues. The 2^nd respondent thereupon issued Ext.P2 order constituting a 3 member committee to enquire into the issues in the Research Station. The committee consisted of the Registrar as its Chairman and Director of Research and Director of Planning as its members. Consequent to this 6 employees including the petitioner were transferred from the Cardamom Research Station, Pampadumpara. However that transfer was canceled and petitioner was brought back based on the demand made by the Employees Union. The committee submitted Ext.P3 report on 22.11.2012 with

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several recommendations. Petitioner submits that one of the suggestions in the report was to give overall charge of the farm area and experimental blocks to the petitioner. Thereafter the Vice Chancellor ordered an enquiry and the Associate Director of Research (Farms) furnished a report on 9.5.2013 in which there were allegations of dereliction of duty, insubordination, indiscipline etc. against the petitioner, for which a detailed enquiry was recommended. Immediately thereafter, petitioner was placed under suspension as per Ext.P5 order dated 16.5.2013 of the Vice Chancellor pending detailed enquiry under section 17 (a) of SRO 293/72. Thereafter the Registrarthe 2^nd respondent, issued Ext.P7 order on 17.8.2013 constituting a two member enquiry committee to conduct an enquiry into the allegations leveled against the petitioner and to submit a report within one month. A committee consisting of the Associate Director of Research (AR&T) as Chairman and Professor and Head, Agricultural Research Station, Mannuthi were the members of the committee. Based on notice issued to him, petitioner appeared before the enquiry committee, on 8.11.2013, along with requisite documents. Thereafter as per Ext.P11 order dated 25.11.2013, which was served on the petitioner on 21.12.2013, the suspension was revoked, referring to the interim report of the two member enquiry committee. Petitioner

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was thereupon posted at the Regional Agricultural Research Station, Ambalavayal at Wayanad.

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As there was no progress in the enquiry, petitioner filed WP(C) No.2216 of 2014, which was disposed of as per Ext.P13 judgment directing the respondents to finalise the disciplinary action within a period of one month. Thereafter on 13.02.2014, the 2^nd respondent, issued Ext.P15 notice to the petitioner calling for his remarks on Ext.P16 enquiry report, saying that the enquiry committee constituted as per Ext.P7 order, had submitted its final report and University had accepted the same. The enquiry committee recommended that petitioner shall not be permitted to rejoin the Cardamom Research Station at Pampadumpara as Farm Superintendent or Farm Manager. It was also recommended to award him exemplary punishment in accordance with the procedure laid down in the Kerala Agricultural University Statutes in SRO 293/72, Part IV in respect of the charges formulated in the enquiry report.

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Thereupon as per Ext.P17 reply dated 28.2.2014 petitioner stated that inquiry report ought to have been furnished to him before the University took the decision to accept the report. He pointed out that no formal enquiry was conducted against him in accordance with the Kerala Agricultural University Statutes (SRO.239/72-Statute

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prescribing the conditions of service relating to officers, teachers and other employees of the Kerala Agricultural University) so as to issue such a notice. Referring to Statute 30, he pointed out that no charges were framed against him and no statement of allegation was also furnished to him. No defence statement was called for from him; he was also not furnished any statement of allegations. He stated that evidence was adduced behind his back and he was not given any opportunity to cross examine the witnesses. He stated that no action can be taken against him. He sought for clarification as to the nature of Ext.P16 report as to whether the report was the outcome of a formal enquiry under Statute 30. He stated that his explanation on the merits of the enquiry report Ext.P16 would be submitted after receiving clarification he sought.

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But the 2^nd respondent finalized the disciplinary action as per Ext.P18 order dated 14.03.2014, (i) awarding a punishment of reversion of the petitioner to immediate lower grade under clause 23 (V) of SRO 293/72 (ii) directing the Professor of the Farm to file a police complaint regarding the allegations; (iii) to realise the financial loss incurred to the University from petitioner; (iv) directing the Head of Station to assess and report the financial loss to the University, etc.

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Whileso the petitioner retired from service on 31.3.2014 on

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attaining the age of superannuation. As per Ext.P21 order dated 28.5.2014, the 2^nd respondent reverted the petitioner to the cadre of Farm Manager Gr.I with effect from 14.3.2014. In continuation of Ext.P18 order, the 2^nd respondent, referring to the penal bill issued towards unauthorised load detected by Anti theft Power Squad, on 15.2.2012, for a sum of Rs.1,09,500/-, issued Ext.P22 order directing recovery of a sum of Rs.1,09,500/- along with interest from 22.6.2013 from the terminal benefits of petitioner. On 4.7.2015 the 2^nd respondent issued Ext.P23 order in tune with Ext.P36 decision of the executive committee in the meeting held on 21.5.2015 which approved the punishment awarded to petitioner and decided to treat the period of suspension from 16.5.2013 to 23.12.2013 as loss of pay, which shall to be counted for any service benefits. Petitioner is challenging the orders Exts.P5, P18, P22 and P36 for a declaration that Ext.P16 report cannot be treated as an outcome of a formal enquiry based on which any punishment can be imposed on the petitioner. He has also prayed for a declaration that Ext.P15 notice calling upon him to offer explanation to Ext.P16 report is illegal as the same was issued after accepting Ext.P16 report.

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The respondents have filed a counter affidavit stating the constitution of various committees to enquire into the allegations of his

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suspension, re-instatement, etc. It is stated that several complaints were received against the petitioner while he was working as Farm Superintendent at Cardamom Research Station, Pampadumpara pertaining to his misbehaviour, insubordination, dereliction of duty etc. On an enquiry into the letter received from the Professor and Head of the Department, an enquiry committee was constituted to enquire into the allegations and that committee, consisting of Registrar and Director of Research and Director of Planning as Committee Members, enquired into it and submitted Ext.P3 report where severe dereliction of duty was found on the part of the petitioner. On receipt of further complaints, another committee was entrusted with a detailed enquiry and on receipt of Ext.P4 enquiry report from Dr.V.K.Raju ADR, petitioner was placed under suspension as per Ext.P5 order. Another enquiry committee was constituted as per Ext.P7 order and that committee issued Ext.P9 notice before whom petitioner submitted Ext.P10 explanation. Thereafter suspension was revoked as per Ext.P11 order. Subsequent to the judgment Ext.P13 directing finalization of the enquiry, Ext.P15 notice was issued to the petitioner calling for his remarks on Ext.P16 inquiry report informing him that the enquiry report had been accepted by the University. Petitioner submitted Ext.P17 reply. Ext.P18 order was issued thereafter in

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finalization of the disciplinary action reverting the petitioner to the immediate lower grade. Simultaneously the Head of the Department was directed to file a complaint before the Police and to recover the financial loss caused to the University from the petitioner.

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According to the respondents the enquiry has been conducted in tune with SRO 293/72 of the Kerala Agricultural University Statute. The Registrar appointed the enquiry committee as per Statute 30. The enquiry committee consisted of officers authorized by the appointing authority as prescribed in Statute 30(b). It is stated that petitioner appeared for the inquiry and he was given opportunity to adduce evidence. But petitioner did not ask for an opportunity to cross examine the witnesses though it is seen that enquiry authority suggested the petitioner about his right to cross examine the departmental witnesses. Respondents denied the allegation that only a preliminary enquiry was conducted. According to them all the formalities contained in the Statute were observed and it was only thereafter the enquiry report was forwarded calling for his remarks and punishment was awarded under clause 23(v) of SRO 293/72. According to the respondents, Ext.P13 judgment in WP(C) No. 2216 of 2014, directing the University to finalise disciplinary proceedings in the light of the enquiry reports, was binding on the petitioner as well as

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the University and Ext.P18 order was issued in tune with Ext.P13 judgment.

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Petitioner filed a reply affidavit stating that no detailed enquiry was conducted against him so as to award a major penalty. It was also stated that Ext.P13 judgment cannot be considered as an authorisation to conclude the disciplinary action by imposing a major penalty on the recommendation of an enquiry committee without following the procedure prescribed in the Statute. According to the petitioner a major penalty can be imposed only if the disciplinary authority is satisfied that there is prima facie case to take action against an employee and thereafter such authority can be proceeded only after framing definite charge and communicating the same to the employee together with statement of allegations.

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The contention of the respondents is that the punishment is imposed after observing the procedure under the rules.

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Having heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents, the first question to be examined is whether the enquiry was conducted in accordance with rules, observing the procedure prescribed. The punishments awarded to petitioner in Ext.P18 order are reversion and recovery of the financial loss caused to the University from the petitioner. As per part

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IV of chapter IV of the Kerala Agricultural University Statute, SRO 293/72 deals with the disciplinary proceedings. Statute 23 which provides for the penalties which can be imposed on a University employee, reads as follows:

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23. Penalties: The following penalties may, for good and sufficient reasons and as here in after provided, be imposed on a University employee namely:-

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i. Censure;

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ii. Fine (in the case of person on whom such penalty may be imposed under these rules);

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iii. Withholding of increments or promotion;

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iv. a) Recovery from pay of the whole or part of, any pecuniary loss cased by a university employee to the University or a State Government or the Central Government or to a local authority or any legally constituted body, by negligence or breach of orders or otherwise.

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b) recovery from pay to the extent necessary, of the monetary value equivalent of the amount of increments ordered to be withheld where such an order cannot be given effect to.

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Explanation:- In cases of stoppage of increments with cumulative effect the monetarily value equivalent to three times the amount of increments ordered to be withheld may be recovered.

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v. Reduction to a lower rank in the seniority list or to a lower grade or post or time-scale or to a lower stage in a time-scale. vi. Compulsory retirement; vii. Removal from University service which shall not be a disqualification for future employment; viii. Dismissal from the University service which shall be a disqualification for future employment ix. Reduction of pension xxxxxx

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The procedures to be followed for imposing major penalties

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are provided under statute 29 to 43. Statute 30 provides that whenever a complaint is received or on other reasons the disciplinary authority or the appointing authority or any other authority empowered by the appointing authority in that behalf is satisfied that

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there is a prima facie case for taking action against the University employee, definite charges shall be framed and communicated to the employee together with a statement of allegation 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. Thereafter the employee shall be required to submit his written statement of defense and to state whether he desires to be heard in person. He shall be permitted to peruse and take extracts from the records for preparing his written statement. On receipt of the written statement within the time prescribed if it is satisfied that a formal enquiry should be held the disciplinary authority may itself hold the formal enquiry or it may forward the records to an officer or authority to conduct a formal enquiry. As per clause (b) of Statute 30, the formal enquiry may be conducted either by the appointing authority or any officer authorised by the appointing authority. Statute 31 provides that the authority conducting the inquiry can add to, amend or modify the charges, in which case the employee shall be required to submit his written statement of defense. Under Statute 32, the employee shall be permitted to inspect and take extracts from the official records as he may require; under statute 33, on receipt of statement of defence or if no statement is received within the time limit, the inquiry authority

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may inquire into the charges which are not admitted. Under Statute 34, the disciplinary authority if it is not inquiring authority may nominate any person to present the case in support of the charges before the inquiring authority. Statute 35 provides that the inquiring authority shall consider such documentary evidence and take such oral evidence relevant to the charges and University employee shall be entitled to cross examine the witness and also to give evidence in person and to examine witnesses in support of his defense and such witness can be cross examined by the presenting officer. If permission to examine a witness is denied the reasons shall be recorded. The oral evidence adduced shall be recorded in writing and verified by the witnesses. Explanation to Statute 33 provides that if the inquiry authority proposes to rely on the oral evidence of any witness, the authority shall examine that witness and give an opportunity to the employee to cross examine the witness; any previous written record of a statement made by a witness shall not be used or relied on and shall not form part of the enquiry except where the university employee agrees in writing to treat it as such. Under Statute 36, the employee may present a list of witnesses to be examined in his defense and the inquiry authority may procure the presence of witness if he is an employee of the University; otherwise it is for the employee

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to produce the witness for examination; Statute 37 provides that the enquiry authority shall prepare a report of the enquiry recording the findings on each charge together with reasons thereof. If in the opinion of the inquiring authority the proceedings of enquiry establish charges different from those framed it may record findings on such charges, in case the employee has admitted the charge or had an opportunity for defending against that. Statute 38 provides that the record of enquriy shall consist (i) the charges framed against the University employee and the statement of allegations furnished to him (ii) his written statement of defence, if any (iii) a summary of the oral evidence considered in the course of the inquiry (iv) the documentary evidence considered in the course of the inquiry (v) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry, and (vi) a report setting out the findings on each charge and the reasons therefore. Under Statue 39 the disciplinary authority shall consider the records of the enquriy and in case it departs from the findings of the inquiring authority, it shall record its findings on each charge with reasons thereof. Statute 40 provides for the imposition of major penalty. It further provides that if the disciplinary authority is of the opinion that any of the penalties specified in items (v) to (ix) of statute 23 shall be imposed it shall furnish the University employee

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with a copy of the enquiry report and where the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority and give a notice stating the action proposed to be taken and calling upon him to submit within not more than one month, such representation as he may wish to make against the proposed action. After considering the representation of the employee, the disciplinary authority shall determine what penalty should be imposed and pass orders. Under Statute 41, the disciplinary authority, if it is of the opinion, having regard to the findings that any of the penalties specified in items (i) to (iv) of Statute 23 shall be imposed, it shall pass appropriate orders.

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Reduction to lower rank in the seniority list or to a lower grade is a penalty enumerated under statute 23(v). In Ext.P18 order the petitioner was awarded with the punishment of reversion to immediate lower grade under statute 23(v). It was also ordered that financial losses incurred to the University would be fully realized from the petitioner. Recovery from pay of the whole or part of, any pecuniary loss caused by a University employee is a minor punishment coming under clause iv (a) of Statute 23. Thus a major penalty as well as minor penalty is imposed as per Ext.P18 order. Ext.P18 order is

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issued on the basis of the findings of the enquiry committee constituted as per orders dated 17.8.2013 and 9.9.2013. Ext.P18 order further states that the committee had made a detailed enquiry in

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the matter and petitioner had appeared before the committee on 8.11.2013. It is thereafter that the enquiry committee submitted the report Ext.P18, in which the following charges were found established:

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i. Acts from the part of Sri.V.P.Prasadu, amounting to abetment of suicide of Sri.Ramanan, labourer, CRS Pampadumpara.

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ii. Physical threat and mental torture by Sri.V.P.Prasadu to the fellow employees, labourers and scientists which prevented their fair and fearless discharge of duties and functions.

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iii. The financial loss incurred to Kerala Agricultural University due to the fine amount imposed by KSEB (Anti theft squad) for the unauthorized and illegal electricity tapping.

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iv. Physical and financial losses incurred to Kerala Agricultural University due to spoiling of research experiments and research materials by the unbecoming action of the accused officer.

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v. He has not handed over the charge of stock and stores of farm material, including that of one SHM project.

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vi. He has committed insubordination, dereliction of duty and misbehaviour to other staff.

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The punishment is awarded based on those reports. On perusal of Ext.P16 enquiry report and the orders issued by the enquiry authority it is seen that petitioner was not issued any memo of charges along with statement of allegations by the disciplinary authority or the appointing authority as provided in Statute 30. After constituting the enquiry committee, the enquiry committee has in their report referred to the charges framed. Part II of Ext.P16 report refers to the charges

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framed. What is stated therein is that:

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“the Committee assigns the following charges against Mr.V.P.Prasadu, the erstwhile Farm superintendent (FS) of the cardamom Research Station, Pampadumpara now under suspension: xxxxx”.

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Part III provides for the grounds on which charges were framed. It further refers to the complaint received before the Vice Chancellor, the depositions made by the petitioner before the enquiry committee. But it does not even mention whether these charges framed were communicated to the petitioner and his defence statement was called for. Even when the inquiry committee is empowered to alter or add any charge, the employee shall be asked to submit his written statement of defence on such charge. The inquiry report, though it refers to the deposition of a series of witnesses, is silent on the procedure, if any, followed as to the issuance of memo of charges by the disciplinary authority, calling for a defence statement from the petitioner, adducing evidence on behalf of the University with opportunity to the petitioner to cross examine. Even though as per Ext.P9 notice petitioner was directed to appear before the committee, producing evidence, such a call letter was not issued after informing him the charges against him or after calling for his statement of defence. Though the petitioner appeared before the committee and submitted Ext.P10 reply and produced several documents, stating that he was unnecessarily

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harassed, no evidence is seen adduced in his presence with opportunity to cross examine the witnesses. Report is based on statements taken by the committee behind the back of the petitioner. Even though the committee had taken depositions from several persons the enquiry was not conducted as provided in Statute 30 to 43. Under these circumstances no major penalty can be awarded to the petitioner.

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The next question is whether a minor penalty could have been imposed on the basis of the findings of the enquiry committee. While awarding the punishment of reversion, by Ext.P18 order, it was also ordered to realise the financial loss incurred to the University from petitioner while directing the Head of Station to assess and report the financial loss to the University. In Ext.P22 it is stated that the Anti Theft Power Squad of KSEB had conducted an inspection at Cardamom Research Station, Pampadumpara on 15.5.2012 and reported that they found an extension connection from the trainees hostel of that station to the quarter of the petitioner. The KSEB issued a penal bill for Rs.1,09,500/- being the dues and penalty for unauthorised load for the period of one year. The amount was remitted by the University. The University had granted permission to the Head of Cardamom Research Station to remit the penal amount with a direction to recover the said

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amount from the officer responsible. On the basis of the enquiry report, in which the Associate Director of Research, Dr.Jim Thomas, Commission, recommended to recover the loss to the University, due to electricity trapping, from the petitioner, the 2^nd respondent - the Registrar, requested to recover the said amount along with 12% interest from 26.2.2013 onwards from the terminal benefits of the petitioner.

¶115

According to the learned Standing Counsel recovery from pay is a minor penalty and therefore even in the absence of an enquiry conducted for imposing major penalty, in view of the findings of the enquiry committee the respondents had every authority to recover the amount after the enquiry report was furnished to the petitioner. But the contention of the petitioner is that the respondent cannot award major penalty as well as minor penalty based on the same set of proceedings. It is also pointed out that there is no memo of charge or statement of allegations from the disciplinary authority to impose a major penalty or a minor penalty.

¶116

The procedure for imposing minor penalty is described in rule 44, according to which the penalties specified in items (i) to (iv) of Statute 23 shall not be passed except after the University employee is informed in writing of the proposal to take action against him and of

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the allegations on which it is proposed to be taken and given an opportunity to make any representation he may wish to make against the proposal and such representation, if any, made by him is taken into consideration by the Disciplinary Authority. Under Statute 45, the record of proceedings under Statute 44 shall include (i) a copy of the intimation to the University employee of the proposals to take action against him, (ii) a copy of the statement of allegations communicated to him, (iii) his representation, if any and (iv) the orders in the case together with reasons therefore.

¶120

In this case minor penalty of recovery from pay is imposed on the basis of Ext.P16 report. Ext.16 report was forwarded by the Registrar as per Ext.P15 notice dated 13.2.2014. In that letter petitioner was informed that as per the report of the enquiry committee 7 charges stated therein were leveled against him. Clause 4 among those charges is the following:

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“financial loss to the University by spoiling the research experiments and research material and miss management of public resources such as electricity which needs further assessment and realisation”.

¶122

Paragraph 17 of the report in part III under the head “ground on which charges were framed”, relates to the electricity taping from consumer no.7484, the site mahazer report prepared by the anti theft squad of KSEB which found a plug socket and switch fixed in the quarter

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occupied by the petitioner. It was suspected that there might be unauthorized tapping of electricity from consumer no.7484 to consumer no.7875. It was stated that the electricity fine imposed by the KSEB has to be reexamined and should be recovered from the petitioner stating that the site mahazar was self explanatory for all the whole episode and the Commission arrived at the conclusion that the loss to the University due to electricity tapping might be realised from the petitioner for reasons known to everybody in the station. Based on those findings in paragraphs 1 to 42 the enquiry committee had recommended to recover the financial loss caused to the University by way of fine imposed by KSEB (Ante Theft Squad) as he cannot be exonerated from material and circumstantial evidence as verified by the committee. Thus it can be seen that the allegations against the petitioner was communicated by way of Ext.P15 letter by the Registrar along with Ext.P16 report in which he had referred to the charges relating to recovery of fine amount. The petitioner did not submit any explanation pursuant to Ext.P15 notice but he only requested for a clarification. This was followed by Ext.P18 order directing recovery from the petitioner. The ingredients for imposing of minor penalty can be said to be by way of Exts.P15, P16 and P18. Petitioner did not submit any explanation pursuant to Ext.P15. Petitioner was made

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aware of the allegation against him against which he had opportunity to submit his defence. Therefore principles of natural justice are observed. It cannot be said that the procedure for imposing minor penalty was not followed before the recovery of loss was ordered.

¶129

Statute 25 provides that minor penalties specified in statute 23 may be imposed on the university employee below the rank of Assistant Registrar by the Registrar, or as the case may be by the Head of the Department under whose administrative control the employee is working. Statute 26 provides that the powers which are exercisable under Statute 25 can also be exercised by higher authorities. Therefore the minor penalty imposed on petitioner by the Registrar, after the enquiry report which contained the charges as well as the reason for the same which was communicated to the petitioner calling for his reply satisfies the procedure prescribed for imposing minor penalty. However the order of reversion of the petitioner will not stand since there is no enquiry.

¶130

The learned counsel for the petitioner relied on the judgment of the apex court in Union of India and another v. S.C.Parashar : 2006 (3) SCC 167. The apex court held therein that an amalgam of minor and major penalties is not legal. It is seen from paragraph 10 of the judgment that the apex court was considering the question as

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follows: “The question is as to whether the penalty imposed by the President upon taking into consideration the report filed by the enquiry officer, was under clause (iii) and (iii)(a) or clause (v) of Rule 11 of CCS Rules”. It was a case where three different punishments were awarded to the petitioner under rule 11 of CCS Rules.

¶134

The procedure prescribed in the University Statutes do not prevent the disciplinary authority/University from awarding a major punishment as well as minor punishment in a composite proceedings. Even otherwise as it is found that the major penalty was imposed on petitioner without observing the procedural formalities and it is being set aside, the question of awarding both the punishments do not arise in this case. A reading of paragraph 10 of the judgment (supra) would show that the apex court was considering the question as to whether the penalty imposed by the President, upon taking into consideration the report of the enquiry officer, was under clauses (iii) and (iii)(a) or clause (v) of R.11 of the CCS Rules. Those circumstances do not arise in this case. Statute do not provide that either a major penalty or a minor penalty alone can be awarded to a delinquent employee. What is provided in statue 23 is “the following penalties may for good and sufficient reasons and hereinafter provided be imposed on a university employee”. Going by the provisions contained in the Statute there

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cannot be a bar in directing recovery of pay along with a major penalty even assuming that the penalty ordered was after following the procedure. Therefore I am of the view that the judgment relied on by the learned counsel does not apply to the facts and circumstances of the case. I am fortified in my view, by the decision of the division bench in Balagopalan v. Syndicate Bank; 2010 (2) KLT 879, which was rendered while considering the validity of punishment of compulsory retirement as well as recovery of pecuniary loss imposed on a bank employee, in which another decision of the Division Bench in Sankaran Nair v. K.S.S.I.D. Corporation Ltd. (2005 (2) KLT 245) was relied on, analysing the provisions contained in the rules relating to disciplinary proceedings, which in turn relied on the judgment of the apex court in Depot Manager, A.P.S.R.T. Corpn. v. N.Ramulu & Anr. ((1997) 11 SCC 319) . In the circumstances of the case I do not also deem it appropriate to interfere with the recovery, in exercise of the discretionary jurisdiction under Article 226 of the constitution of India.

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Therefore Ext.P18 to the extent it directs reversion of the petitioner is set aside. The recovery ordered in Ext.P18 and the consequential order Ext.P22 directing recovery of a sum of Rs.1,09,544/-, which is covered by the penal bill issued by KSEB for

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unauthorised load, from his retirement benefits cannot be found illegal. The petitioner has already retired from service. It is seen that the petitioner was paid the admitted pensioary benefits with reference to his pay admissible to him in the lower cadre. As the reversion is set aside respondents shall refix the pensionary benefits of the petitioner and grant him all consequential benefits. The arrears of pay if any on account of setting aside of punishment of reversion shall also be disbursed to the petitioner within a period of three months from the date of receipt of copy of the judgment.

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sd/-

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P.V.ASHA JUDGE

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rkc

V.P.Prasadu v. the Kerala Agricultural University

Case brief

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V.P.Prasadu v. the Kerala Agricultural University

Case brief

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