## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR**
**& THE HONOURABLE MR. JUSTICE B.KEMAL PASHA**
**WEDNESDAY, THE 22ND DAY OF JANUARY 2014/2ND MAGHA, 1935**
## **WP(C).No. 23868 of 2013 (G)**
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**PETITIONER(S):**
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**C.V. VIJAYAN, SUPERINTENDENT, GURUVAYUR DEVASWOM, GURUVAYUR-680 101. RESIDING AT CHENNEGHAT HOUSE, PERAMANGALAM P.O., THRISSUR DISTRICT, PIN-680 545.**
**BY ADVS.SRI.SAJEEV KUMAR K.GOPAL SRI.R.HARISHANKAR**
**RESPONDENT(S):**
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**1. THE GURUVAYUR DEVASWOM MANAGING COMMITTEE, GURUVAYUR DEVASWOM, GURUVAYUR, PIN-680 101, REPRESENTED BY ITS ADMINISTRATOR.**
**2. THE ADMINISTRATOR, GURUVAYUR DEVASWOM, GURUVAYUR, PIN-680 101.**
**R1 & R2 BY ADV. SRI.P.GOPAL, SC, GDB**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **WP(C).No. 23868 of 2013 (G)**
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## **APPENDIX**
## **PETITIONER(S)' EXHIBITS:**
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**EXHIBIT P1- TRUE COPY OF THE ORDER BY WHICH THE PETITIONER WAS GIVEN THE ADDITIONAL CHARGE OF LIVESTOCK SUPERVISOR DATED 13-07-2011.**
**EXHIBIT P2- TRUE COPY OF THE REPORT SUBMITTED BY THE PETITIONER AS LIVESTOCK SUPERVISOR DATED 15-09-2011.**
**EXHIBIT P3- TRUE COPY OF THE PHOTOGRAPOHS OF THE INJURED ELEPHANT.**
**EXHIBIT P4- TRUE COPY OF THE REPORT THAT APPEARED IN MATHRUBHUMI DAILY DATED 17-07-1990.**
**EXHIBIT P5- TRUE COPY OF THE REPORT SUBMITTED BY THE PETITIONER TO THE CHAIRMAN AND ADMINISTRATOR OF GURUVAYUR DEVASWOM ON 18-09-2011.**
**EXHIBIT P6- TURE COPY OF THE SHOW-CAUSE NOTICE WAS ISSUED TO THE PETITIONER DATED 27-09-2011.**
**EXHIBIT P7- TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 13-10-2011.**
**EXHIBIT P8- TRUE COPY OF THE ORDER NO. B4.6492/11 ISSUED BY THE 2ND RESPONDENT DATED 17-10-2011.**
**EXHIBIT P9- TRUE COPY OF THE DECISION OF THE 1ST RESPONDENT AT ITS MEETING HELD ON 25-04-2012 IN RESOLUTION NO. 6.**
**EXHIBIT P10- TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT VIDE NO. B4-6492/11 DATED 30-04-2012.**
**EXHIBIT P11- TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT VIDE NO. B1-3400/12 DATED 14-05-2012.**
**EXHIBIT P12- TRUE COPY OF THE RESOLUTION DATED 26-04-2012 IN ITEM NO. 197 ISSUED BY THE 2ND RESPONDENT.**
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**..2....**
**WPC.NO.23868/2013 (G)**
**EXHIBIT P13- TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT VIDE ORDER NO. B4-6492/11 (1) DATED 12-06-2012.**
**EXHIBIT P14- TRUE COPY OF THE DECISION OF THE 1ST RESPONDENT AT ITS MEETING HELD ON 23-05-2013 VIDE RESOLUTION NO. 29.**
**EXHIBIT P15- TRUE COPY OF THE NOTICE VIDE NO. B4-6492/11 ISSUED BY THE 2ND RESPONDENT DATED 11-06-2013.**
**EXHIBIT P16- TRUE COPY OF THE ENQUIRY REPORT DATED 20-03-2013.**
**EXHIBIT P17- TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 23-07-2013.**
**EXHIBIT P18- TRUE COPY OF THE ORDER DATED 24-08-2013 VIDE NO. B46492/11.**
## **RESPONDENT(S)' EXHIBITS:**
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**R1(A): COPY OF THE REPORT OF THE LIVESTOCK INSPECTOR DTD.20/09/2011.**
**R1(B): COPY OF THE SUBMISSION MADE BYT Dr.T.C.R.NAMBIAR.**
**R1(C): COPY OF THE RELEVANT PAGE OF THE REGISTER MAINTAINED BY THE VETERINARY DOCTOR IN RESPECT TO THE ELEPHANT NAVANEETH KRISHNAN (AMEETH).**
**/TRUE COPY/**
**P.S.TO JUDGE**
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## **T.R.RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.**
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## **W.P.(C) NO.23868 of 2013**
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## **DATED THIS THE 22ND DAY OF JANUARY, 2014**
## **JUDGMENT**
## Ramachandran Nair, J.
The orders passed in a disciplinary action initiated by the first respondent against the petitioner which resulted in the punishment of barring of two increments with cumulative effect for two years, is under challenge herein.
2. We heard learned counsel for the petitioner, Shri Sajeevkumar K. Gopal and learned Standing Counsel for the Devaswom Managing Committee, Shri P. Gopal.
3. The petitioner is working as Superintendent under Guruvayur Devaswom. In the year 2011, as per Ext.P1 order he was posted as Livestock Supervisor by way of additional charge. The challenge raised by the petitioner is on various grounds including violation of the principles of natural justice, non conformity with any procedure for enquiry and the like. It is explained that the petitioner was suspended from service as per Ext.P8 order, pending disciplinary enquiry. Thereafter, he was reinstated in
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service as per Ext.P10 proceedings dated 30.4.2012. He was given a posting as per Ext.P11 order, in Vengad Gokulam. Ext.P13 is the order by which the Managing Committee appointed Advocate Gopidas as Enquiry Officer and one Shri V.P. Nandakumar as the Presenting Officer. The petitioner's case is that adequate notices were not issued to him, even though he was available in the official address. After the first notice was received to which he replied by seeking adjournment, no further notices have been served on him. It is also the submission of the learned counsel for the petitioner that the Enquiry Officer has routed the notices in the residential address of the petitioner, even though in the official address he was available. He was residing at Peramangalam near Pattambi, but during his official duties he was available at the quarters at Guruvayur even while he was working in Vengad Gokulam. It is therefore submitted that a purposeful attempt was made to deny an opportunity to defend the action.
4. We have perused the report of the Enquiry Officer, a copy of which is produced as Ext.P16. At internal page 4 of the report it is mentioned that to M13 notice the delinquent had given a reply seeking further time and the enquiry was adjourned to 15.9.2012. The subsequent notice dated
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4.9.2012 fixing the enquiry to 15.9.2012 was returned by the delinquent without receiving it. We find from the report that the enqiry started on 29.9.2012 and the Presenting Officer was present. It is mentioned therein that even though a registered letter was given, the delinquent was not present and therefore the enquiry proceeded without the delinquent. The Presenting Officer produced the list of witnesses and documents on that day and he was examined as MW.1. M1 to M9 documents were marked and thereafter the enquiry was adjourned to 17.10.2012. It is seen that on the subsequent postings certain other witnesses have been examined.
5. Even though it may be true that the petitioner had received notice in respect of the start of the enquiry, viz. M13, it was not ensured that subsequent notices reached the delinquent. Therefore, it cannot be said that he had received all the notices for the respective dates of enquiry. The principles of natural justice required service of notice in respect of all the dates of enquiries to which the Enquiry Officer has posted the matter.
6. Apart from the same, we find that the Enquiry Officer has not correctly proceeded with the matter. After the list of witnesses and the documents were produced by the Presenting Officer, he should have ensured
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that the same was supplied to the delinquent also which is not evident here. Apart from it, the Presenting Officer has been examined as M.W.1 which procedure is also not proper.
7. The cumulative effect of all these violations is that the evidence collected is behind the back of the delinquent. Therefore, this has the effect of vitiating the entire proceedings of enquiry and also the punishment imposed.
8. Apart from the above violations, learned counsel for the petitioner further points out that the copy of the enquiry report was not furnished to the petitioner before proposing the punishment and it was forwarded only along with Ext.P15 notice (after Ext.P14 decision of the Managing Committee by which the report was accepted) proposing the punishment. This, according to the learned counsel, is in violation of the principles of natural justice. We find much force in the above submission.
9. Learned Standing Counsel for the Devaswom submitted based on the averments in the counter affidavit and the enquiry file, that the decision taken for imposing the punishment is perfectly justified. It is submitted by referring to the files made available today, that charge memo
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was issued to the petitioner by the management, which was acknowledged by him and he had sought time to furnish reply and only after finding that the reply furnished is not satisfactory, the Enquiry Officer was appointed. Therefore, it is submitted that there is no defect as far as the proceedings at that stage is concerned and the charges have been proved.
10. Learned Standing Counsel further submitted that even if this Court is of the view that there are certain violations, going by the decisions of the Apex Court in **Union of India and others v. M.B. Patnaik and others** (AIR 1981 SC 858) and **Nand Kumar Verma v. State of Jharkhand and others** {(2012) 3 SCC 580, fresh enquiry proceedings are permissible.
11. Learned counsel for the petitioner submits that in the light of the judgment of this Court in **Sudhakaran C.B. (Dr) v. Cochin Educational Society and another** (2009 (1) KHC 685), this Court can go into the merits of the matter and consider whether the punishment awarded is justified.
12. Even though learned counsel for the petitioner tried to persuade us to go into the merits of the matter, in the light of the fact that the evidence collected which led to the filing of the report, is behind the back of
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the petitioner, it cannot be justified at all. We are of the view that it will not be proper for this Court to go into the merits of the charges and the evidence collected against the petitioner, in the defective enquiry.
13. In the light of the above, we allow the writ petition and quash Exts.P14, P15 and P16. In the light of the decisions of the Apex Court in **M.B. Patnaik's case** (AIR 1981 SC 858) and **Nand Kumar Verma's cas** e {(2012) 3 SCC 580}, holding the view that when the disciplinary enquiry is interfered with on the basis of technical errors, a fresh enquiry on the same can be held, we permit the respondents to proceed with the enquiry at the stage prior to the appointment of the Enquiry Officer itself and a proper enquiry will be conducted with due opportunity to the petitioner to adduce evidence. The above will be done, if the Managing Committee is of opinion that the petitioner is to be proceeded afresh. No costs.
## **(T.R.RAMACHANDRAN NAIR, JUDGE)**
## **(B. KEMAL PASHA, JUDGE)**
**kav/**
