A. Purushothaman and Abdul Gafoor v. State Farming Corporation of Kerala Ltd. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** ## **WP(C).No. 10901 of 2015** ## **PETITIONERS:** **1 A. PURUSHOTHAMAN,ASSISTANT MANAGER, CHITHAL VETTY ESTATE, STATE FARMING CORPORATION OF KERALA LTD., PUNALUR, KOLLAM-689 696, RESIDING AT NIRAPPUVILA VEEDU, MALOOR COLLEGE P.O.,PATHANAPURAM, KOLLAM. 2 ABDUL GAFOOR,FIELD SUPERVISOR GRADE-I, MULLUMALA ESTATE, STATE FARMING CORPORATION OF KERALA LTD., PUNALUR, KOLLAM-689 696, RESIDING AT KOLAKKAT HOUSE, EDAPPAL, MALAPPURAM-679 576.** **BY ADV. SRI.S.MOHAMMED AL RAFI** ## **RESPONDENTS:** - **1 THE STATE FARMING CORPORATION OF KERALA LTD. REPRESENTED BY ITS MANAGING DIRECTOR, FARM HOUSE, P.B.NO.13, VETTITHALA P.O., ALIMUKKU, PUNALUR, KOLLAM-689 696.** - **2 THE CHAIRMAN STATE FARMING CORPORATION OF KERALA LTD., FARM HOUSE, P.B.NO.13, VETTITHITTA P.O., ALIMUKKU, PUNALUR, KOLLAM-689 696.** - **3 THE PERSONAL MANAGER STATE FARMING CORPORATION OF KERALA LTD., FARM HOUSE, P.B.NO.13, VETTITHITTA P.O., ALILMUKKU, PUNALUR, KOLLAM-689 696.** **BY ADVS. SRI.DENIZEN KOMATH, SC, STATE FARMING CORPORATION OF KERALA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 10901 of 2015** 2 **"C.R."** ## **JUDGMENT** Petitioners are employees under the respondents 1 to 3. The petitioners were proceeded against departmentally on the allegation that due to their dereliction of duty, substantial loss has been suffered by the first respondent Corporation. The alleged incident occurred during 2009-2010, contends the learned counsel for the petitioners. The specific allegation was 9275 cashew plants were lost in Chithalvetty Estate causing a loss of Rs.1,83,943.75/- to the first respondent Corporation. Certain other charges were also levelled against the petitioners. 2. After an enquiry the Managing Director of the first respondent Corporation issued Ex.P1 Office Order dated 16.01.2013 stating that the petitioners have caused loss to the Corporation and therefore, the first petitioner is liable to remit Rs.15,724/- and the second petitioner is liable to remit Rs.1,51,525/to the Corporation. A further penalty of withholding of one increment (without cumulative effect) was also imposed as per Ext.P1. The petitioners contend that Ext.P1 punishment order was issued on 16.01.2013 and before imposing punishment as per Ext.P1, the **WP(C).No. 10901 of 2015** 3 petitioners were not served with a copy of the enquiry report nor they were required to give explanation to the enquiry report. Without complying with this basic principles of natural justice Ext.P1 was issued on 16.01.2013. 3. The petitioners contend that subsequently as per Ext.P3 letter dated 30.01.2013 of the Personnel Manager of the first respondent Corporation, Ext.P2 Domestic Enquiry Report dated 24.09.2012 was served on the petitioners. Ext.P3 letter serving copy of the equiry report on the petitioners, does not require the petitioners to give explanation to the enquiry report. Aggrieved by imposition of penalty, without serving a copy of the enquiry report, the petitioners filed appeals before the second respondentChairman of the Corporation. 4. The Chairman constituted a One man Committee to consider the appeal petitions submitted by the petitioners. The One man Committee found that all the points of concern expressed by the delinquents were very well addressed in the course of the enquiry and natural justice was never denied to them. The One man Committee found no reason whatsoever to disagree with the findings of the enquiry officer. 5. Based on the report of the One man Committee annexed **WP(C).No. 10901 of 2015** 4 to Exts.P4 and P5, the third respondent-Personnel Manager issued letter dated 27.03.2015 holding that he finds no reason to interfere with the punishment orders. Learned counsel for the petitioners therefore, submit that the enquiry is vitiated for the reason that the petitioners were not served with a copy of the enquiry report and were not given an opportunity to show cause against the enquiry report. The petitioners were neither heard on the quantum of the alleged loss incurred by the first respondent Corporation. The petitioners urge to set aside Exts. P1, P2 , P4 and P5 6. Learned Standing Counsel representing the respondents 1 to 3 filed counter affidavit and defended the writ petition. Learned Standing Counsel representing the respondents 1 to 3 submits that the enquiry proceedings were conducted with due notice to the petitioners. The proceedings were conducted giving all reasonable opportunities to the petitioners to defend their case. In the enquiry witnesses were examined. The petitioners were permitted to crossexamine the witnesses. The petitioner had the liberty to examine the documents relied on by the respondents 1 to 3 during the enquiry proceedings. Therefore, Ext.P1 is perfectly legal and cannot be said to be vitiated by violation of principles of natural justice. 7. Learned Standing Counsel for the respondents further **WP(C).No. 10901 of 2015** 5 submitted that, when the petitioners filed appeals before the Chairman, Chairman took the appeals very seriously and appointed a One man Committee to look into the grievances of the petitioners contained in the appeal memorandum. The independent One man Committee thoroughly perused the disciplinary proceedings file. The said Committee found that the petitioners were extended with all reasonable opportunities to defend the writ petition. The One man Committee did not find it necessary to interfere with the orders of the disciplinary authority. On the basis of the report of the One man Committee, the appeal filed by the petitioners were disposed of as per Exts.P4 and P5 orders. Learned Standing Counsel for the respondents further submitted that the petitioners have not raised the grievances of non-supply of the enquiry report at the appropriate time and therefore they are barred from agitating the issue in a writ petition filed under Article 226 of the Constitution of India. Learned Standing Counsel submitted that huge loss has been caused to the first respondent due to the negligence and dereliction of duty of the petitioners and hence the writ petition of the petitioners has to be dismissed. 8. I have considered the pleadings in the case and the arguments raised on either side. **WP(C).No. 10901 of 2015** 6 9. Going through the pleadings in the matter it is seen that though a departmental enquiry was conducted by the respondents against the petitioners 1 and 2, the respondents did not serve a copy of the enquiry report finding them guilty, on the petitioners before imposing penalty of withholding one increment and recovery of amounts from the petitioners. The enquiry report was served on the petitioners only as per Ext.P3 by a letter dated 30.01.2013. A perusal of Ext.P3 would also show that no explanations were called for from the petitioners while serving copy of the enquiry report. The imposition of penalty on the petitioners without serving a copy of the enquiry report and without giving them an opportunity to show cause against enquiry report definitely vitiates the enquiry proceedings in view of the judgment of the Apex Court in **Managing Director, E.C.I.L, Hyderabad v. B.Karunakar (II)** reported in [1994 Supp. (2) SCC 391] 10. From the pleadings I further find that the petitioners have preferred appeals before the second respondent-Chairman of the Corporation. Being appellate body under the rules, the appellate authority itself has to consider the appeals preferred by the petitioners and pass appropriate orders thereon. The appellate power cannot be delegated by an appellate authority. In the case on **WP(C).No. 10901 of 2015** 7 hand the appellate authority without considering the appeals by himself appointed a One man Committee, obtained a report from him and on that basis the appeals were rejected. There is nothing on record to show that the appellate authority has applied his mind independently while passing Ext.P4 and Ext.P5 orders. Exts.P4 and P5 appellate orders are liable to be set aside for that reason also. 11. Further more Exts.P4 and P5 orders show that the appeals have been disposed of by Personnel Manager, though the appeals were preferred before the second respondent-Chairman of the Corporation. It also vitiates the appellate orders. 12. For all the aforesaid reasons, I find that Ext.P1, P4 and P5 cannot stand the scrutiny of law. Accordingly those orders are set aside. 13. However, it is made clear that the respondentCorporation is at liberty to proceed against the petitioners from the stage of serving a copy of the enquiry report. In case the respondents propose to proceed with the enquiry, the petitioners shall be given an opportunity to give their explanation to the enquiry report. Further more, since substantial amounts are sought to be recovered from the petitioners, the petitioners should be made available with a copy of the report of the Auditor and General **WP(C).No. 10901 of 2015** 8 Manager in respect of the quantum of the amount of loss, so that the petitioners can raise their objections to the quantum of loss also. The writ petition stands disposed of with the above directions. **Sd/-** ## **N.NAGARESH** **JUDGE** dlk/31.01.19 **WP(C).No. 10901 of 2015** 9 ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXHIBIT P1 COPY OF THE OFFICIAL ORDER NO.SFCK/PER/2012-13/3554 DTD.16.1.2013 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2 COPY OF THE ENQUIRY REPORT DTD.24.9.2012. EXHIBIT P3 COPY OF THE COVERING LETTER NO.SFCK/PER/2012-13/3708 DTD.30.1.2013 ISSUED TO THE 2ND PETITIONER. EXHIBIT P4 COPY OF THE ORDER NO.SFCK/PER/4798 DTD.27.3.2015 ISSUED TO THE 1ST PETITIONER. EXHIBIT P5 COPY OF THE ORDER NO.SFCK/PER/4799 DTD.27.3.2015 ISSUED TO 2ND PETITIONER.**