K.G. Venugopal & Ors. v. Mahatma Gandhi University & Ors.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 ``` ## **`WP(C) NO. 5502 OF 2006`** ## **`PETITIONERS:`** ``` 1K.G.VENUGOPAL SHEELA BHAVAN, KAPPU, MADAKKATHANAM, ERNAKULAM DISTRICT. ``` ``` ADD.P2SHEELA VENUGOPAL SHEELA BHAVAN, MADAKKATHANAM P.O., ERNAKULAM DISTRICT. ``` ``` *THE 2ND PETITIONER IMPLEADED AS THE LEGAL REPRESENTATIVE OF THE 1ST PETITIONER AS PER ORDER DATED 12.10.2009 IN I.A.12228/09. ``` ``` BY ADVS. S.RAMESH ELVIN PETER P.J. ``` ## **`RESPONDENTS:`** - **`1 MAHATMA GANDHI UNIVERSITY PRIYADARSINI HILLS, KOTTAYAM, REPRESENTED BY ITS REGISTRAR.`** - **`2 THE VICE CHANCELLOR MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM.`** - **`3 THE CHANCELLOR MAHATMA GANDHI UNIVERSITY, KERALA RAJ BHAVAN,, THIRUVANANTHAPURAM.`** - **`4 SRI. MATHAI LUKOSE ENQUIRY OFFICER AND RETIRED JOINT REGISTRAR, MAHATMA GANDHI, UNIVERSITY, RESIDING AT PUTHIYADATH, D.B.R.A., (DEVASWOM BOARD RESIDENTS ASSON), DEVASWOM, BOARD JUNCTION, THIRUVANANTHAPURAM. BY ADV DR.P.LEELAKRISHNAN, SC, M.G.UNIVERSITY SRI SURIN GEORGE IPE, SC MG UNIVERSITY`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ``` ``` ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.5502/2006 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.5502 of 2006** **---------------------------------------------Dated this the 13[th] day of March, 2024** ## **JUDGMENT** This writ petition is filed by K.G.Venugopal and he died pending the writ petition. Therefore the 2[nd] petitioner was impleaded as the legal representative of the deceased Venugopal. Deceased Venugopal was appointed as Assistant Grade-II in Mahatma Gandhi University on 16.03.1988. Disciplinary proceedings were was initiated against him based on Ext.P2 investigation report given by the Chief Vigilance Officer of Mahatma Gandhi University. Based on the same, an enquiry was conducted against the deceased Venugopal. It is the case of the 2[nd] petitioner that no evidence was adduced against the deceased Venugopal by any independent witness to prove the charges framed against him. It is the further case of the 2[nd] petitioner that charges 1 and 3 were not proved in the disciplinary enquiry. But charge-2 have been proved based on the version given by the main delinquent is the submission. According to the 2[nd] petitioner, the main delinquent WP(C).No.5502/2006 **3** Mr.Purushothaman is not a witness in the disciplinary enquiry. So the deceased Venugopal was denied the opportunity to cross- examine him is the submission. It is submitted that Mr.Purushothaman's version before the Chief Vigilance Officer contained in Ext.P2 was proved by examining the Chief Vigilance Officer. Further by examining the Chief Vigilance Officer, the version given by the deceased Venugopal, Mr.Ramesh and Mr.Anwar wrongly recorded in Ext. P2 is sought to be proved and based on that, the finding of guilt was recorded is the submission. Hence the enquiry was conducted in violation of all principles of natural justice is the further submission. For finding guilt against the deceased Venugopal the hearsay information given by the Chief Vigilance Officer alone is the criteria is the submission. Therefore it is submitted that Ext.P8 enquiry report is illegal and liable to be set aside. No other material, except Ext.P8 enquiry report, is stated in Ext.P13 to find the deceased Venugopal guilty of the charges. Therefore it is submitted that the finding of guilt against the deceased Venugopal is in violation of the principles of natural justice. Though an appeal was filed against Ext.P13 WP(C).No.5502/2006 **4** order, the 3[rd] respondent dismissed the appeal by a nonspeaking order, without stating any reason is the submission. Hence this writ petition. 2. Heard the learned counsel for the petitioners and the learned Standing Counsel for the 1[st] respondent. 3. The counsel for the petitioners reiterated the contentions raised in this writ petition and submitted that the impugned orders are unsustainable because the same violate the principles of natural justice. The counsel also submitted that, since Venugopal, the employee, is no more, further enquiry against him is not possible. Therefore the 2[nd] petitioner is entitled the benefits under Rule 56B of Part-I KSR. The Standing Counsel for the University supported the impugned orders. 4. This writ petition was originally allowed by this Court as per judgment dated 24.09.2013. The same was taken up in appeal by the 2[nd] petitioner stating that the learned Judge disposed the writ petition without considering the fact that Venugopal died pending the writ petition. The Division Bench of this Court allowed the writ appeal and set aside the judgment dated 24.09.2013, with a direction to dispose the WP(C).No.5502/2006 **5** writ petition afresh. Hence this writ petition was heard again by this Court. 5. The deceased Venugopal was working as a Section Officer in the respondent University. Disciplinary proceedings were initiated against him based on Ext.P2 investigation report by the Chief Vigilance Officer of the respondent University. Based on that, an enquiry was conducted. Charges 1 and 3 were not proved in the disciplinary enquiry. However, charge-2 is stated to have been proved. Ultimately the deceased Venugopal was dismissed from service as per Ext.P13. Though an appeal was filed against Ext.P13 before the 3[rd] respondent, it was also dismissed. 6. The main grievance of the 2[nd] petitioner is that for finding the deceased Venugopal guilty, hearsay information given by the Chief Vigilance Officer was made use of. According to the 2[nd] petitioner, Charge No.2 is stated to have been proved based on the version given by one Purushothaman who is not a witness in the disciplinary enquiry in which case, the deceased Venugopal would have an opportunity to cross examine him. However, the contention of the 2[nd] petitioner is that the versions given by certain WP(C).No.5502/2006 **6** witnesses before the Chief Vigilance Officer contained in Ext.P2 was sought to be proved by examining the Chief Vigilance Officer. It is true that the Standing Counsel appearing for the University submitted that the copy of the enquiry report was made available to the deceased Venugopal. But, it appears that it was at a subsequent point of time. It is an admitted fact that Ext.P2 enquiry report by the Chief Vigilance Officer was made use of during the course of enquiry. It is settled law that the purpose of holding a preliminary enquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie to know as to whether the alleged misconduct has been committed. On the basis of the finding recorded in the preliminary enquiry, no order of punishment can be passed. It can be used to take a view as to whether a regular disciplinary proceedings against the delinquent is required to be held. The evidence recorded in the preliminary enquiry cannot be used in regular enquiry as the delinquent is not associated with and the opportunity to cross examine the persons examined in such enquiry is not given. Hence, using WP(C).No.5502/2006 **7** of such evidence would be violative of the principles of natural justice. Therefore, I am of the considered opinion that Ext.P8 enquiry report and the consequential orders including Ext.P13 shall not be allowed to stand. But at this stage, this Court cannot order de novo enquiry because the employee K.G.Venugopal is no more. In such situation, what is the course of action to be taken is considered by this Court in **Rajendra Babu v. State of Kerala** [1998 (2) KLT 410], in which this Court observed that in the light of Rule 56B(2) of Part-I KSR, the employee died pending disciplinary proceedings, the legal representatives are entitled to the salary from the date of suspension till the date of death. It will be beneficial to extract the relevant portion of that judgment: “3. R. 56 B (2) Part I reads as follows: "Notwithstanding anything contained in R. 55, where an officer under suspension dies before the disciplinary, or court proceeding instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid." WP(C).No.5502/2006 **8** In view of the above provision contained in the Kerala Service Rules the legal representatives of the deceased appellant are entitled to get an order from this Court to pay the salary due to Rajendra Babu from the date of suspension till the date of his death as if he was not suspended from service after deducting the subsistence allowance if already paid. It is submitted that since Ext. P1 order was passed on 18.7.1995 no salary was paid to Rajendra Babu during the month of July 1995. Hence, the salary was legitimately due to Rajendra Babu from 1.7.1995 to 12.1.1998. It is also claimed by the legal representatives that salary has to be paid counting the increments legitimately due to him every year and the pay revision, if any effected during that period. The wife of Rajendra Babu is entitled to get family pension counting the period from date of suspension till the date of his death as duty. The amount of gratuity also has to be disbursed treating the suspension period as duty. Further Provident Fund amount will also have to be given to Rajendra Babu treating the period of suspension as duty. It is stated in the affidavit that one of the sons of Rajendra Babu, K.R. Dinsha Raj is deaf and dumb. The eldest daughter of Rajendra Babu is married and she is residing with her husband. The wife of Rajendra Babu K.G. Ambika Kumari and other members are said to be residing WP(C).No.5502/2006 **9** in a house at Kadavoor, Perinad and that they were depending on the salary received by K.N. Rajendra Babu for their livelihood and after his death they are finding it difficult to carry on day to day affairs. In the above circumstances Rajendra Babu died while in service and K.R. Premlal, second son applied for the post of Lower Division Clerk in the Health Services Department under the dying-inharness scheme. He has passed Pre degree and according to him he is qualified to be appointed as Lower Division Clerk in the government service. His application for appointment under the dying-inharness scheme is also pending with the Government. Hence the legal representatives of the deceased appellant submitted that the Writ Appeal may be disposed of by issuing the following directions:- i) to disburse the salary due to Sri. K.N. Rajendra Babu after deducting the subsistence allowance for the period from 1.7.1995 to 12.1.1998 to appellants 1 to 5. ii) to treat the period during which Sri. K.N. Rajendra Babu was kept under suspension under Ext. P1 order as duty for all purposes. iii) to disburse the gratuity and provident fund amount due to Sri. K.N. Rajendra Babu treating his period of suspension as duty. iv) to pay family pension to the 1[st] appellant treating the period of suspension of Sri. WP(C).No.5502/2006 **10** ## K.N. Rajendra Babu as duty. v) to consider the application submitted by the 4[th] appellant for appointment under the dying-in-harness scheme as Lower Division Clerk in the Health Service Department treating that Sri. K.N. Rajendra Babu was in service and was on duty as Health Inspector Gr. II in the Health Services Department when he died on 12.1.1998," 4. We see merit in their submission. We therefore, direct the State of Kerala to consider the prayers above referred to and pass suitable and appropriate orders in accordance with law within three months from the date of receipt of the copy of this judgment. The State of Kerala is also directed to consider the application submitted by fourth appellant K.R. Premlal for appointment under the dying-in-harness scheme in accordance with law and dispose of the same within three months from the date of receipt of the copy of this judgment. The above directions are now given in view of the death of the appellant during the pendency of the appeal in this Court. Writ Appeal is disposed of accordingly. C.M.P. No. 5 of 1998 stands dismissed. No costs.” 7. I think a similar order can be passed in this case also. WP(C).No.5502/2006 **11** Therefore, this writ petition is disposed of with following directions: 1. Exts.P8, P13 and P16 are quashed. 2. It is declared that the 2[nd] petitioner is entitled the benefits under Rule 56B(2) of Part-I, KSR. 3. The competent authority among the respondents will disburse the eligible amount due to the 2[nd] petitioner as per Rule 56B(2) of Part-I, KSR, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV WP(C).No.5502/2006 **12** ## **`APPENDIX OF WP(C) 5502/2006`** ## `PETITIONER EXHIBITS` ``` EXT. P1 TRUE COPY OF ORDER NO. AA, AT- 3- 2412/02. DATED 11-10-2002 ISSUED BY THE IST RESPONDENT. ``` ``` EXT.P2 TRUE COPY OF THE REPORT SUBMI TTED BY THE CHIEF VIGILANCE OFFICER OF THE MAHATMA GANDHI UNIVERSITY. ``` ``` EXT.P3 -TRUE COPY OF THE STATEMENT GIVEN BY THE PETITIONER BEFORE THE CHIEF VIGILANCE OFFICER. ``` ``` EXT.P4 -TRUE COPY OF THE STATEMENT GIVEN BY MR. ANWAR BEFORE THE CHIEF VIGILANCE OFFICER. ``` ``` EXT. P5 - TRUE COPY OF ORDER NO. AD, AT-3- 2412/02. DT. 17-10-02 ISSUED BY THE IST RESPONDENT. ``` ``` EXT.P6 TRUE COPY OF MEMOM OF CHARGES AND STATEMENT OF ALLEGATIONS NO. AD, AI-3- 2412(2)/2002. DT. 20-11-2002 ISSUED BY THE IST RESPONDENT. ``` ``` EXT.P7 TRUE COPY OF STATEMENT OF DEFENCE DATED 24TH DECEMBER, 2002 SUBMITTED BY THE PETITIONER. ``` ``` EXT.P8 -TRUE COPY OF ENQUIRY REPORT DATED 22ND APRIL, 2003 SUBMITTED BY THE ENQUIRY OFFICER. ``` ``` EXT.P9 - TRUE COPY OF MEMO NO. AD.AI- 3-2412/2002. DATED 30-8-2003 ISSUED BY THE IST RESPONDENT. ``` ``` EXT.P10 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO EXT.210. IST RESPONDENT ``` ``` EXT.P11- TRUE COPY OF MEMO NO. AD. AT- 3-2412/02. DATED 19-9-2003 ISSUED BY THE IST RESPONDENT. ``` ``` EXT.P12 TRUE COPY OF THE REPRESENTA- TION DATED 6-10-2003 SUBMITTED BY THE PETITIONER. ``` ``` EXT.P13 TRUE COPY OF ORDER NO. AD. AT- ``` WP(C).No.5502/2006 **13** ``` 3-2412/2002. DATED 11-12-2003 ISSUED BY THE IST RESPONDENT. ``` ``` EXT. P14- TRUE COPY OF THE APPEAL PETITION DATED 30TH JANUARY, 2004 FILED BY THE PETITIONER ``` ``` EXT. P15 - TRUE COPY OF JUDGMENT AT. 23RD MAY, 2005 IN W.P. (C)NO. 6617/2004 OF THIS HON. COURT. ``` ``` EXT.P16 - TRUE COPY OF ORDER NO. GS3- 427/2004. DATED 21ST JULY, 2005 ISSUED BY THE 3RD RESPONDENT. ``` ``` EXT.P17 TRUE COPY OF THE STATEMENTS GIVEN BY M/S. ANVAR, PURUSHOTHAMAN AND RAMESH GIVEN BEFORE THE ENQUIRY OFFICER. ``` ``` EXT.P18 TRUE COPY OF THE REPORT DT. 24-2-2006 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ETTUMANOOR. ``` ``` EXT. P19 - TRUE COPY OF THE STATEMENT OF THE PETITIONER RECORDED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PALA. ``` ``` EXT.P17: COPY OF THE DEATH CERTIFICATE ISSUED BY THE REGISTRAR OF BIRTHS & DEATHS, MANJALLOOR GRAMA PANCHAYAT ``` ``` Exhibit P20TRUE COPY OF THE JUDGMENT DATED 24-9- 2013 IN W.P.(C) NO.5502/2006 OF THIS HONOURABLE COURT. ``` ``` Exhibit P21TRUE COPY OF THE JUDGMENT DATED 12-12- 2013 IN WRIT APPEAL NO. 1871/2013 OF THIS HONOURABLE COURT. ``` - **`Exhibit P22 TRUE COPY OF THE JUDGMENT DATED 4-42022 IN C.C. NO. 77/2010 OF THE COURT OF THE JUDICIAL I CLASS MAGISTRATE (SPECIAL COURT FOR MARK LIST CASES).`** - **`Exhibit P23 TRUE COPY OF THE REPRESENTATION DATED 5-9-2022 SUBMITTED BY THE 2ND PETITIONER BEFORE THE HONOURABLE VICE CHANCELLOR OF THE UNIVERSITY.`**