Biju Viswappan v. State of Kerala and Secretary, Kerala Sports Council

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938** **WP(C).No. 23720 of 2011 (L) ----------------------------** **PETITIONER(S): -------------** **BIJU VISWAPPAN** **S/O.LATE P.S.VISWAPPAN, PRATHIBHA, PALACE WARD,, ALEPPEY.** **BY ADVS.SRI.K.S.MADHUSOODANAN SRI.P.K.RAKESH KUMAR SMT.M.A.RUXANA SRI.THOMAS CHAZHUKKARAN SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA TO BE REPRESENTED BY SECRETARY, SPORTS AND YOUTH AFFAIRS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.** **2. SECRETARY, KERALA SPORTS COUNCIL, THIRUVANANTHAPURAM-695001.** **R1-R2 BY ADVS. SMT.LATHA KRISHNAN, SC, KERALA STATE SPORTS COUNCIL SRI.PIRAPPANCODE V.S.SUDHEER,SC,SPORTS COUNCIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MLG** **WP(C).No. 23720 of 2011 (L)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **---------------------** **EXHIBIT P1: PHOTOCOPY OF THE PUNISHMENT ORDER BEARING NO.KSSC/B1/757/2008 DATED 30-6-2010.** **EXHIBIT P2: PHOTOCOPY OF THE ORDER BEARING NO.G.O.(RT) NO.113/11/SYD DATED 1-8-2011.** **EXHIBIT P3: PHOTOCOPY OF THE ORDER OF THE 2ND RESPONDENT BEARING NO.KSSC/B1/757/2008 DATED 24-8-2011.** **EXHIBIT P4: PHOTOCOPY OF THE REPORT OF DR.MUHAMMED ASHRAF ADDL.DIRECTOR, SPORTS AND YOUTH DEPARTMENT, THIRUVANANTHAPURAM.** **EXHIBIT P5: PHOTOCOPY OF THE REPORT SUBMITTED BY SRI.GABRIEL, MEMBER OF 2ND RESPONDENT DATED 30-5-2008.** **EXHIBIT P6: PHOTOCOPY OF THE REPORT SUBMITTED BY M.M.ABDUL RAHIMAN DATED 16-12-2008.** - **EXHIBIT P7: PHOTOCOPY OF THE ORDER BEARING NO.KSSC/B1/75708/2008 ` DATED 11-3-2009 ENCLOSING MEMO OF CHARGE.** **EXHIBIT P8: PHOTOCOPY OF THE ENQUIRY REPORT DATED 2-2-2010.** **EXHIBIT P9: PHOTOCOPY OF THE OBJECTION OF THE PETITIONER DATED 21-4-2010.** **EXHIBIT P10:PHOTOCOPY OF THE REVISION AGAINST THE PERVERSE FINDING AS WELL AS NAKED VIOLATION OF PROCEDURE UNDER KCS (CCA) RULE WHICH IS ADOPTED UNDER RULE 22(4) OF KERALA SPORTS COUNCIL RULES, 2008 TO THE 1ST RESPONDENT DATED 30-7-2010.** **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** ## **//TRUE COPY//** **P.S TO JUDGE** **MLG** **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 23720 of 2011 ----------------------------------------------Dated this the 24[th] November, 2016** ## **JUDGMENT** The petitioner is a Basketball Coach under the 2[nd] respondent. It is contended that on the basis of the complaint preferred by one Joseph James, an enquiry was conducted in the year 2008 against the petitioner by the Additional Director, Sports and Youth Department of the Government of Kerala. It is contended that after recording the statements of the petitioner and several other persons, Exhibit P4 report was submitted exonerating the petitioner of the charges of harassment alleged against him. However, the matter did not rest there. The Sports Council again ordered a further enquiry. A member of the 2[nd] respondent was deputed to conduct the enquiry. After an enquiry conducted without notice to the petitioner, Exhibit P5 report appears to have been submitted recommending transfer of the petitioner. 2. On 4.8.2008, the petitioner was placed under suspension. Thereafter, another member of the 2[nd] respondent was directed to hold a further enquiry. It is submitted that Exhibit P6 report dated 2 _**WP(C).23720/11**_ 16.12.2008 was submitted by the said member exonerating the petitioner from all major misconducts. On the basis of Exhibit P6 report, it is stated that another detailed enquiry was directed to be held against the petitioner. Exhibit P7 memo of charges was served on him. He states that copies of the documents referred to in the memo of charges were sought for by him, but were not served. By Exhibit P8, the enquiry officer submitted a report finding the petitioner guilty. 3. On the basis of Exhibit P8, Exhibit P1 order of termination effective from 10.6.2010 was issued to the petitioner. The petitioner had preferred Exhibit P9 before the 2[nd] respondent as well as Exhibit P10 before the 1[st] respondent. The petitioner specifically pointed out that several enquiries had been held against him before Exhibit P7 memo of charges was issued. He stated that the 2[nd] respondent had initiated enquiries after enquiries until the petitioner was found guilty. He further stated that the very action of the Sports Council in having initiated disciplinary enquiry against the petitioner was totally vitiated, since Exhibit P4 detailed enquiry report had found no material to proceed against him. It was on this contention that Exhibit P10 had been preferred before the 1[st] respondent. 3 _**WP(C).23720/11**_ 4. However, by Exhibit P2 order dated 1.8.2011, the Government, after considering the contentions, found that the provisions of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 have been made applicable to the employees of the Sports Council by virtue of Rule 22(4) of the Kerala Sports Act, 2008. The Government went on hold that “the procedure to be followed in terms of the KCS (CCA) Rules are not seen followed in the instant case”. Therefore, the decision of the Sports Council terminating the petitioner from service as contained in Exhibit P1 is cancelled in exercise of power under Section 8(4) of the Kerala Sports Council Act. The petitioner was directed to be reinstated in service. However, it was directed to conduct a _de novo_ enquiry against the petitioner. This direction for _de novo_ enquiry contained in Exhibit P2 order is under challenge in this writ petition. 5. It is contended by the learned counsel for the petitioner that the petitioner had been subjected to at least six enquiries on the basis of the very same allegation. It is contended that an enquiry which led to Exhibit P4 report had been held by the Additional Director, Sports and Youth Department of the _**WP(C).23720/11**_ 4 Government of Kerala with notice to all concerned. The said enquiry report clearly finds that no evidence could be found against the petitioner as regards the nature of misconduct alleged against him. It is further contended by learned counsel for the petitioner that no criminal case had been registered against the petitioner on the basis of the allegations. It is also contended that the repeated enquiries against him by the Sports Council were without notice to him. It was only after several enquiries failed to yield the result as desired by the 2[nd] respondent that Exhibit P7 memo of charges was issued to the petitioner. It is contended that the very initiation of the disciplinary proceedings by Exhibit P7 memo of charges was completely unwarranted in view of Exhibit P4 report of the Additional Director, Sports and Youth Department of the Government of Kerala. This was the specific case raised. In the above circumstances, it is contended that Exhibit P2 order, to the extent it directs initiation of a _deno vo_ enquiry against the petitioner, is completely unwarranted. 6. Learned counsel for the petitioner placed reliance on the decisions of the Apex Court as well as this Court in _**K.R.Deb v. Collector, Central Excise, Shillong**_ [AIR 1971 SC 1447], _**Vijay Shankar Pandey v. Union of India**_ [(2014) 10 SCC 589], _**WP(C).23720/11**_ 5 _**Kesavan Namboodiri v. State of Kerala**_ [1982 KLT 512], _**Thankappan Unnithan v. State of Kerala**_ [1992(1) KLT 263] and _**Baby v. State of Kerala**_ [1999(1) KLT 676] to contend that the disciplinary authority cannot wipe out the enquiry already conducted and direct a _de novo_ enquiry. Construing the provisions of the KCS (CCA) Rules it has been held that where the disciplinary authority does not agree with the findings of the enquiry officer, there can be further proceedings on the basis of the charge memo already issued but _de novo_ enquiry is not warranted. The learned counsel appearing for the respondents would also submit that where an enquiry was found by the appellate authority to be vitiated on some ground, the enquiry can be directed to be continued only from the stage where it was found to have been so vitiated and a _de novo_ enquiry is not permissible. 7. It is the specific case of the petitioner that he had been victimised by the conduct of repeated enquiries against him until he was found guilty. This was the aspect that was specifically highlighted by him in Exhibit P10. It was on the basis of Exhibit P10 that Exhibit P2 order of the Government invoking the provisions of Section 8(4) of the Kerala Sports Act, 2000 was 6 _**WP(C).23720/11**_ rendered. The Government has only stated in Exhibit P2 that the procedure for imposition of the major penalty of removal from service as provided in Rule 15 of the KCS (CCA) Rules has not been adhered to while imposing punishment. The specific contentions urged by the petitioner against Exhibit P8 order as also against the very initiation of the proceedings of Exhibit P7 memo of charges on the ground that Exhibit P4 had exonerated the petitioner and that several enquiries held against him had also failed to find his culpability were not considered by the Government while passing Exhibit P2 order. So also, the question as to the stage from which the proceedings against the petitioner were vitiated has also not been mentioned in Exhibit P2. 8. The contention raised against the petitioner was with regard to incidents in the year 2008. It is not in dispute that several enquiries have been held against the petitioner, some with notice to him and others without any such notice. In any view of the matter, I am of the considered opinion that a _de novo_ enquiry into the allegations raised against the petitioner will not be in the interest of justice. However, it is also clear that proper consideration of the allegations raised by the petitioner as against Exhibit P8 order has not been done by the Government. The _**WP(C).23720/11**_ 7 Sports Council has not challenged Exhibit P2 order of the Government. In the above circumstances, the order setting aside the punishment imposed on the petitioner has become final. In the above view of the matter, all that remains for consideration is the future course of action as regards the petitioner, who has now been directed to be kept away from coaching students. 9. I am of the opinion that the very justifiability of the proceedings initiated by Exhibit P7 being under challenge by the petitioner in Exhibit P10 preferred before the Government, the Government should have taken a decision as to the necessity for initiating such proceedings by the 2[nd] respondent in the light of Exhibit P4 report. This question apparently has not been considered by the Government at all. In the above view of the matter, I am of the opinion that the Government is to be directed to reconsider the question of future action against the petitioner after considering whether the proceedings initiated by Exhibit P7 could have been taken against the petitioner at all in view of the repeated enquiries held against him as also Exhibit P4 report in the enquiry held by the Additional Director. For enabling appropriate consideration of the question as directed above, Exhibit P10, to the extent it orders a _de novo_ enquiry against the 8 _**WP(C).23720/11**_ petitioner is set aside. The Sports Council is directed to produce the entire files relating to the enquiries held against the petitioner before the Government. 10. The Government s directed to consider all the aspects of the matter as it is empowered to do under Section 8(4) of the Kerala Sports Act and pass appropriate orders as to the necessity for conducting any further enquiry against the petitioner. If the Government finds that the initiation of proceedings against the petitioner as per Exhibit P7 was not warranted in the facts of the case, the petitioner shall be permitted to work as per the terms of appointment. Further orders in this regard shall also be issued by the Government, which shall be binding by the 2[nd] respondent. Orders as directed above shall be issued after hearing the petitioner and the 2[nd] respondent within a period of two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. **ANU SIVARAMAN JUDGE** _vgs28/11_