K. Radhakrishnan Nair v. Kerala State Road Transport Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **FRIDAY, THE 17TH DAY OF JANUARY 2014/27TH POUSHA, 1935** ## **WP(C).No. 29897 of 2012 (J)** ## **----------------------------** ## **PETITIONER :** **--------------------** **K. RADHAKRISHNAN NAIR, (INSPECTOR WORKING ON OTHER DUTY AS SUIT ASSISTANT LAW SECTION, CHIEF OFFICE), AJITH NIVAS CONVENT LANE, MUTTADA P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.K.P.RAJEEVAN** ## **RESPONDENT(S) :** **----------------------------** **1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM PIN - 695 023.** **2. THE EXECUTIVE DIRECTOR (VIGILANCE), KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM PIN - 695 023.** **3. APPELLATE TRIBUNAL OF KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM PIN - 695 023.** **R1 TO R3 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA, SC, KSRTC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 29897 of 2012 (J)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **--------------------------------------** - **EXHIBIT P1. A TRUE COPY OF CHARGE SHEET NO.VLD2-11830/92 DATED 15.02.1992.** - **EXHIBIT P2. A TRUE COPY OF ENQUIRY REPORT DATED 11.05.1995.** - **EXHIBIT P3. A TRUE COPY OF MEMORANDUM DATED 11.03.1996.** - **EXHIBIT P4. A TRUE COPY OF PAGE NO.19 OF THE SERVICE BOOK OF THE PETITIONER.** - **EXHIBIT P5. A TRUE COPY OF ORDER DATED 07.06.2002 ISSUED BY THE MANAGING DIRECTOR OF THE KSRTC.** - **EXHIBIT P6. A TRUE COPY OF ORDER DATED 17.09.2012 IN REVISION PETITION NO.2/2011 ISSUED BY THE KSRTC APPELLATE TRIBUNAL.** - **EXHIBIT P7. A TRUE COPY OF ORDER NO.DDIS-19048/06/APL DATED 04.12.2006 ISSUED BY THE APPELLATE AUTHORITY.** **RESPONDENTS' EXHIBITS : NIL** **---------------------------------------------------------** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **C.K. ABDUL REHIM, J.** ------------------------------------------------- ## **W.P.(c) No. 29897 OF 2012** ------------------------------------------------DATED THIS THE 17[th] DAY OF JANUARY, 2014. ## **J U D G M E N T** The petitioner was an employee of the 1[st] respondent Corporation, who retired on 30-04-2013. While working as Conductor in the year 1992 disciplinary action was initiated against the petitioner on the basis of Ext.P1 chargesheet and statement of allegations. The charge levelled against the petitioner as enumerated in the statement of allegations is as follows; _“On 20-01-1992 Shri. K. Radhakrishnan Nair, Conductor, Vikas Bhavan operated duty No.30 with Bus No. N 997 and Way Bill No.01045. The bus reached at East Fort at 06.35 hours which was 25 minutes early from the scheduled time._ _The above action of the conductor in having failed to keep punctuality caused much difficulties to the public and this amounts to gross dereliction of duty and hence the charge.”_ An enquiry as contemplated under Rule 15 of the Kerala Civil Service (Classification, Control & Appeal) Rules was ordered. In WP(C). 29897 /2012 2 Ext. P2 report the enquiry officer found that the Inspector concerned who is the only one prosecution witness had failed to attend the enquiry despite receipt of memo to that effect. It is evident that the petitioner appeared before the enquiry officer and submitted that he had performed the duty in the best interest of the Corporation. The allegation of arrival of the bus by 25 minutes earlier was denied and it was submitted that the service had actually reached only 10 minutes earlier than the scheduled time of 6.50 hours. It was also pointed out that the Inspector concerned had not noted any earlier arrival of the bus in the way bill. Only the Squad Inspector had noted an early arrival of 25 minutes, instead of the actual time of early arrival of 10 minutes. The petitioner submitted that, being a newly introduced route operated at the early morning hours there were only few passengers and it only took lesser time to reach bus stand. It was also pointed out that there was no complaint from any passenger for non-stopping of the bus in any of the bus stops. Enquiry officer found that, 10 minutes early arrival happened due to the fact that it was a newly introduced early WP(C). 29897 /2012 3 morning trip having lesser number of passengers and low density of traffic en-route. It is categorically found that in the absence of any prosecution witness, the charge of early arrival is not proved beyond doubt. Hence the petitioner as well as the Driver of the bus who was cited as co-delinquent were found as not guilty of the charges levelled. Despite Ext.P2 report exonerating the petitioner from the charges levelled, the 2[nd] respondent issued Ext.P3 order imposing punishment of 'censure' and directing that the period of suspension should be treated as eligible leave. In Ext.P3 it is stated that the 2[nd] respondent cannot agree with the findings of the enquiry officer and the petitioner is found guilty since he had admitted the charge of early arrival. 2. Eventhough Ext.P3 was challenged in appeal before the Managing Director and further in revision before the appellate Tribunal. The punishment was confirmed concurrently, mainly holding that there is an admission on the part of the petitioner with respect to the early arrival, for which the petitioner can be held as guilty. It is aggrieved by Ext.P3 which is confirmed in Exts.P5 & P6, this writ petition is filed. WP(C). 29897 /2012 4 3. Challenge against the impugned orders are mainly on the ground that the disciplinary authority (2[nd] respondent) has not issued any notice to the petitioner intimating his decision of disagreement with the report of enquiry, and no show cause notice was issued to the petitioner in this regard. Nor the copy of the enquiry report was furnished to him. The disciplinary authority had also failed in considering the correctness of the explanations offered for the admitted early arrival of the bus by 10 minutes of the scheduled time. 4. In this regard it is to be noticed that the disciplinary action was proceeded against the petitioner under Rule 15 for imposition of a major punishment, contemplated under item (v) to (ix) of Rule 11 (1). Question arises as to whether the disciplinary authority can impose any minor punishment coming within items (i) to (iv) of Rule 11 (1), on a disagreement with the report of enquiry, even without issuing a notice intimating such disagreement. The legal position stands covered through a decision of this court in **Surendran V. State of Kerala (1999 (1) KLT 618)** . It is held therein that if there is no finding WP(C). 29897 /2012 5 of guilt in the enquiry report the disciplinary authority cannot impose any of the minor penalties in terms of Rule 15 (13). The disciplinary authority other than the Government cannot disagree with the findings in the enquiry report as contained in sub rule (11) of Rule 15. Even if the disciplinary authority disagrees with the findings the reason for such disagreement shall be communicated to the delinquent. If such procedure is not followed the imposition of penalty on the delinquent will be irregular and arbitrary and will be a capricious exercise of power, as there is no finding of guilt in the enquiry report. 5. In another decision of this court in **Chamy vs. Food** ## **Corporation of India (1997 (2) KLT SN 35 1997 KHC 527)** it is held that when the disciplinary authority feels that he could not agree with the conclusions of the enquiry officer and proposes to proceed against the delinquent, principles of natural justice demand that he should be given opportunity of being heard before the final verdict is given. The principles of 'Audi altrem partem' demands issuance of pre-decisional notice to the delinquent. So also it is held that the delinquent employee will WP(C). 29897 /2012 6 have the right to receive the enquiry report, which is an indispensable right available to the delinquent in a disciplinary proceedings. The above principle is reiterated in the decision of the hon'ble Supreme Court in **Managing Director vs . B. Karunakar (1994 SC 1074) and in Mohammed Ramzan Khan's case (1991 SC 471).** 6. Learned Standing Counsel for the respondent Corporation contended that when it is proposed to impose only a minor punishment, no notice is required under Rule 15 (13) and the disciplinary authority is entitled to pass appropriate orders in such case. But as distinguished in **Surendran's case** (cited supra). The situation is different when an enquiry under Rule 15 is conducted proposing imposition of major punishment and when the enquiry officer had found that the delinquent is not guilty of the charges. In such case it is mandatory that the proposal for disagreement has to be communicated to the delinquent and he should have given an opportunity to object such proposal. 7. More over, on the merits of the issue it is evident that the punishment was imposed on the basis that there is an WP(C). 29897 /2012 7 admission from the side of the petitioner with respect to earlier arrival of the bus. But the disciplinary authority as well as the appellate and the revisional authorities have failed to consider the explanations offered for such early arrival. There was no adjudication conducted with respect to correctness of the explanations. Hence the punishment cannot be sustained, at any rate. 8. In the result the writ petition is allowed . Ext.P3 order which is confirmed in Exts.P5 and P6 are hereby set aside. The period of suspension shall consequently be treated as duty for all service benefits, except for payment of arrears of salary and allowances for the said period. However he will be eligible for subsistence allowance allowable for the said period. 9. Consequential orders making payment of difference if any in the terminal benefits or revision of pension and pensionary benefits if any due shall be passed and such payments shall be made within a period of two months from WP(C). 29897 /2012 8 the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE AMG/pmn WP(C). 29897 /2012 9