M. Manikandan v. Guruvayur Devaswom Managing Committee, Administrator, A. Suresan, Enquiry Officer K.B. Haridas, State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938** **WP(C).No. 24122 of 2015 (M) ----------------------------** ## **PETITIONER(S):** ## **-------------** ## **M.MANIKANDAN** **S/O.LATE P.GOVINDANKUTTY NAIR, AGED 47 YEARS, MOZHAYATH HOUSE, THEKKE SAMOOHAM, GURUVAYUR DESOM, CHAVAKKAD TALUK, POST GURUVAYUR.** **BY ADV. SRI.A.DINESH RAO** **RESPONDENT(S):** - **--------------** **1. THE GURUVAYUR DEVASWOM MANAGING COMMITTEE REPRESENTED BY ITS ADMINISTRATOR, GURUVAYUR 680101.** **2. THE ADMINISTRATOR, GURUVAYUR DEVASWOM, GURUVAYUR.** **3. A.SURESAN,** - **ADVOCATE, BOARD MEMBER, GURUVAYUR DEVASOM MANAGING COMMITTEE,GURUVAYUR.** **4. ENQUIRY OFFICER,** - **K.B.HARIDAS, ADVOCATE, KARTHIKA, CIVIL LANE ROAD, THRISSUR - 680004.** **5. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEVASWOM, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **R1,2 BY ADV. SRI.P.GOPAL BY GOVERNMENT PLEADER SRI.UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 24122 of 2015 (M)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1: TRUE COPY OF THE ORDER OF SUSPENSION DATED 15.11.2008 COMMUNICATED TO THE PETITIONER BY THE ASSISTANT MANAGER REFERRING TO RESOLUTION NO.59 OF THE MANAGING COMMITTEE OF THE GURUVAYUR DEVASWOM.** **EXHIBIT P2: TRUE COPY OF THE MEMORANDUM OF CHARGE DATED 02.03.2009.** **EXHIBIT P3: TRUE COPY OF THE EXPLANATION DATED 20.03.2009 SUBMITTED BY THE PETITIONER AND RECEIVED BY THE FIRST RESPONDENT ON 21.03.2009.** **EXHIBIT P4: TRUE COPY OF RESOLUTION DATED 23/12/2008 APPOINTING EASHWARA PILLA AS ENQUIRY OFFICER.** **EXHIBIT P5: TRUE COPY OF AUTHORIZATION DATED 31.03.2009.** **EXHIBIT P6: TRUE COPY OF THE LETTER DATED 03.03.2011 ISSUED BY THE SECOND RESPONDENT.** **EXHIBIT P7: TRUE COPY OF THE REPLY DATED 19/03/2011.** **EXHIBIT P8: TRUE COPY OF THE RESOLUTION DATED 28/06/2011.** **EXHIBIT P9: TRUE COPY OF THE ORDER DATED 30.04.2012 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P10: TRUE COPY OF ORDER POSTING THE PETITIONER TO ALSS, PUNNATHURKOTTA FAR AWAY REMOVED FROM E6 SECTION OF THE DEVASWOM BOARD OFFICE AND DATED 04.05.2012.** **EXHIBIT P11: TRUE COPY OF THE COMMUNICATION ISSUED BY THE FIRST RESPONDENT AND DATED 11.10.2013.** **EXHIBIT P12: TRUE COPY OF THE PROCEEDINGS (ORDER SHEETS) OF THE DOMESTIC ENQUIRY CONDUCTED BY ADVOCATE K.B.HARIDAS.** **EXHIBIT P13: TRUE COPY OF THE VAKKALATH FILED BY MENON ASSOCIATES PRODUCED IN O.S.NO.85/2014 ON THE FILE OF THE SUB COURT, THRISSUR AND DATED 27.05.2014.** **EXHIBIT P14: TRUE COPY OF THE LETTER DATED 26.11.2011 ISSUED BY THE ADMINISTRATOR AND SECRETARY, GURUVAYUR DEVASWOM MANAGING COMMITTEE ADDRESSED TO THE FOURTH RESPONDENT ENQUIRY OFFICER WITH A COPY MARKED TO ADVOCATE, A.SURESAN.** **EXHIBIT P15: TRUE COPY OF THE COMMUNICATION DATED 22.8.2014 ISSUED ON BEHALF OF THE GOVERNMENT OF KERALA AND ADDRESSED TO THE SECOND RESPONDENT ADMINISTRATOR.** **EXHIBIT P16: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT.** **EXHIBIT P17: TRUE COPY OF THE COMMUNICATION ADDRESSED TO THE SECOND RESPONDENT BY THE PETITIONER.** ## **WP(C).No. 24122 of 2015 (M)** **EXHIBIT P18: TRUE COPY OF THE LETTER DATED 09.10.2014 SUBMITTED BY THE PETITIONER AND ADDRESSED TO THE FOURTH RESPONDENT ENQUIRY OFFICER.** **EXHIBIT P19: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 27.04.2015.** **EXHIBIT P20: TRUE COPY OF THE RESOLUTION REFERRED TO AS ITEM NO.9 IN EXT.19 AND DATED 17.03.2015.** **EXHIBIT P21: TRUE COPY OF THE ENQUIRY REPORT DATED 24/02/2015 ANNEXED ALONG WITH THE SHOW CAUSE NOTICE.** **EXHIBIT P22: TRUE COPY OF THE REPLY ADDRESSED TO THE 2ND RESPONDENT DATED 29.05.2015.** **EXHIBIT P23: TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT AND ADDRESSED TO THE PETITIONER.** **EXHIBIT P24: TRUE COPY OF THE RESOLUTION NO.66 OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE DATED 30.06.2015 REFERRED TO AS ITEM NO.13 IN EXT.P23 COMMUNICATION.** **EXHIBIT P25: TRUE COPY OF THE LETTERS ISSUED TO THE MANAGER, ANDHRA BANK BRANCH OF GURUVAYUR DATED 03.05.2006.** **EXHIBIT P26: TRUE COPY OF THE LETTERS ISSUED TO THE MANAGER, ANDHRA BANK BRANCH OF GURUVAYUR DATED 10.01.2007.** **EXHIBIT P27: TRUE COPY OF THE LETTERS ISSUED TO THE MANAGER, ANDHRA BANK BRANCH OF GURUVAYUR DATED 20.01.2007.** **EXHIBIT P28: TRUE COPY OF THE LETTER DATED 26.11.2011 TO DR.V.M.GOPALAN, SECRETARY TO GOVERNMENT, CORPORATION DEPARTMENT AND GDC, SECRETARIAT, THIRUVANANTHAPURAM.** **EXHIBIT P29: TRUE COPY OF THE CHEQUE DATED 20.11.2007.** **EXHIBIT P30: TRUE COPY OF THE CHEQUES DATED 04.07.2008.** **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXT.R2(A):TRUE COPY OF THE MINUTES OF THE MANAGING COMMITTEE SHOWING THE MEMBERS WHO ATTENDED THE MEETING FOR TAKING DECISION ON AGENDA NO.66** **EXT.R2(B):TRUE COPY OF THE LETTER OF THE GOVERNMENT DATED 7.5.2014** **EXT.R2(C): TRUE COPY OF THE REPLY OF THE DEVASWOM DATED 30.5.2014** **//TRUE COPY//** **P.A TO JUDGE** **(CR)** ## **A.K.JAYASANKARAN NAMBIAR, J.** **............................................................. W.P.(C).No.24122 of 2015 ............................................................. Dated this the 17[th] day of October, 2016** ## **J U D G M E N T** The petitioner, while working as a UD Clerk in E6 Section of the Guruvayur Devaswom, was placed under suspension with effect from 15.11.2008, in connection with disciplinary proceedings initiated against him,. He was served with a memo of charges dated 02.03.2009, that contained 12 charges alleging misappropriation of funds belonging to the Devaswom. By a reply dated 20.03.2009, the petitioner responded to the memo of charges. He was, thereafter, intimated by communication dated 31.03.2009 that Sri.Eashwara Pillai had been appointed as an Enquiry Officer in connection with the enquiry contemplated against him. While matters stood thus, by Ext.P6 communication dated 03.03.2011, the Administrator of the Devaswom Board informed the petitioner that the Managing Committee had decided to terminate his services, and he was asked to show cause as to why such action should not be proceeded with. The petitioner promptly preferred a -2- **W.P.(C).No.24122 of 2015** reply dated 19.03.2011 stating that, as per the rules in force, he could not be terminated from service without holding an enquiry. Thereupon, by Ext.P8 communication dated 25.06.2011, the Managing Committee of the respondent Board appointed a new Enquiry Officer (Advocate Haridas) to proceed with the enquiry that was contemplated against the petitioner, pursuant to the charge memo issued to him. Inasmuch as the petitioner had been kept under suspension for more than three years by that time, by Ext.P9 order dated 30.04.2012, he was also reinstated in service pending completion of the disciplinary proceedings. By Ext.P10 order dated 04.05.2012, the petitioner was then transferred to ALSS, Punnathurkotta. While so, citing the findings of the Vigilance Department, which had found the petitioner guilty of the offences charged against him, the petitioner was once again suspended from service by Ext.P11 order dated 11.10.2013. The petitioner challenged the said suspension order before this Court through W.P.(C).No.25983 of 2013. While there was no interim stay of suspension granted in the said case, it is stated that the writ petition was subsequently heard finally. The judgment in the -3- **W.P.(C).No.24122 of 2015** said case, however, is yet to be pronounced. As regards the disciplinary proceedings itself, the facts in the writ petition would indicate that the proceedings continued and led to Ext.P21 enquiry report being drawn up by the Enquiry Officer. Thereafter, by Ext.P20 resolution, the Managing Committee resolved to issue a show cause notice to the petitioner, asking him to show cause as to why the enquiry report should not be accepted and a major penalty imposed on the petitioner in connection with the findings in the enquiry report. Ext.P19 is the show cause notice issued to the petitioner, which also forwarded a copy of the enquiry report to the petitioner. By Ext.P22 reply dated 29.05.2015, the petitioner preferred a detailed reply to the show cause notice stating, inter alia, his objections to the acceptance of the enquiry report and to the proposal for imposition of a major penalty. By Ext.P24 decision of the Managing Committee, it was decided to impose the punishment of “dismissal from service which shall ordinarily be a disqualification for future employment”, on the petitioner, and further, to recover from him an amount of Rs.19,89,398/- towards the loss sustained by the respondent Board on account of the -4- ## **W.P.(C).No.24122 of 2015** actions of the petitioner. The decision of the Managing Committee was communicated to the petitioner by Ext.P23 order dated 08.07.2015. In the writ petition, Exts.P23 and P24 are impugned. 2. A counter affidavit has been filed on behalf of the 1[st] and 2[nd] respondents, wherein the orders passed by the Managing Committee of the respondent Board are sought to be justified for the reasons stated therein. The counter affidavit deals with the procedure that was followed by the respondent Board in the matter of holding the enquiry against the petitioner, and points out that a fair procedure was followed in connection with the enquiry, and that the petitioner had been given an opportunity to engage a lawyer of his choice to defend him in the enquiry proceedings. It is also pointed out that, the documents that were relied upon by the respondent Board were all furnished to the petitioner, and his lawyer was granted ample opportunity for commenting upon the documents, as also cross examining various witnesses that were produced on behalf of the respondent Board. It is stated that, the petitioner, although given ample opportunity to adduce his own -5- **W.P.(C).No.24122 of 2015** evidence, through witnesses of his choice, did not produce two witnesses, who were Bank Officers, despite having been given an opportunity to do so. It is further stated that, although, the person who was appointed as Presiding Officer initially by the respondent Board in the enquiry proceedings- Sri. A.Suresan, was subsequently nominated as one of the members of the Managing Committee of the Devaswom Board, apart from the meeting on 17.03.2015, he did not participate in any of the further meetings of the Managing Committee while considering the further course of action in the disciplinary proceedings against the petitioner. As regards the punishment imposed on the petitioner, it is stated that, the offences that stood proved against the petitioner in the disciplinary proceedings were sufficiently grave so as to justify the major punishment of dismissal from service as was imposed on the petitioner in the instant case. 3. I have heard the learned counsel appearing for the petitioner as also the learned Standing counsel appearing for the respondent board. -6- **W.P.(C).No.24122 of 2015** 4. The learned counsel for the petitioner would impugn Exts.P23 and P24 orders of the respondent Board primarily on the following grounds: (i) It is his contention that, despite seeking an opportunity to examine two Bank Officers, who were supposedly instrumental in passing the cheques that were stated to have been encashed by the petitioner, the Enquiry Officer did not grant the petitioner ample opportunity to examine the said witnesses, and proceeded to close the evidence in the disciplinary proceedings with undue haste. It is in particular pointed out that, while in the proceedings the petitioner had indicated that the said Bank Officers, who he wanted to produce as witnesses to testify on his behalf, had indicated that they could appear before the Enquiry Officer, if the Enquiry Officer provided a letter indicating that the enquiry itself was posted on the particular dates on which they were asked to appear, the Enquiry Officer apparently refused to issue any such letter to facilitate the appearance of those witnesses at the enquiry -7- ## **W.P.(C).No.24122 of 2015** proceedings. It is contended that this act of the Enquiry Officer effectively prevented the petitioner from adducing relevant evidence to establish his innocence in the disciplinary proceedings. Reliance is placed on the decision reported in **Chhel Singh v. MGB Gramin Bank, Pali and Others [(2014) 13 Supreme Court Cases 166].** (ii) It is stated that in the meeting of the Managing Committee, which decided to issue a show cause notice calling upon the petitioner to show cause against the acceptance of the enquiry report by the Managing Committee, and against the proposal to impose a major penalty on him, the 3[rd] respondent, who was the Presenting Officer in the enquiry proceedings, until he was nominated as the member of the Managing committee, also participated. It is contended, therefore, that the participation of the 3[rd] respondent in the meeting of the Managing Committee, that decided to issue the show cause notice to the petitioner, effectively vitiated the said show cause notice, in that, it was issued in a meeting in which the 3[rd] respondent, who was biased, was also a -8- ## **W.P.(C).No.24122 of 2015** member. The learned counsel would fortify his submission on this aspect by referring to Ext.P24 decision of the Managing Committee of the respondent Board that met on 30.06.2015, where a reference is made to Ext.P20 decision dated 17.03.2015 to indicate that, in the meeting dated 17.03.20154, a decision was actually taken by the Managing Committee to accept the enquiry report of the Enquiry Officer, and it was thereafter that a show cause notice was issued to the petitioner. (iii) Referring to Rule 15 (11) of the Kerala Civil Services (CC & A) Rules, which is made applicable to the respondent Board, it is contended that the Managing Committee was obliged to record its findings on each of the charges that stood proved against the petitioner in the disciplinary proceedings, at the time of deciding to accept the enquiry report. It is stated that, inasmuch as Exts.P23 and P24 orders do not contain the recording of reasons by the Managing Committee, as to what weighed with them while accepting the findings of the Enquiry Officer in the enquiry report, the said orders fall foul of Rule 15 (11) of the Kerala Civil Services -9- **W.P.(C).No.24122 of 2015** (CC & A) Rules. Reliance is placed on the decisions reported in **Roop Singh Negi v. Punjab National Bank and Others [(2009) 2 Supreme Court Cases 570], Chairman, Life Insurance Corporation of India and Others v. A Masilamani [(2013) 6 Supreme Court Cases 530],** and **Dharampal Satyapal Limited v. Deputy Commissioner of Central Excise, Gauhati and Others [(2015) 8 Supreme Court Cases 519].** (iv) It is contended, with reference to Ext.P15 letter dated 22.08.2014 of the Government, addressed to the Administrator of Guruvayur Devaswom, and through Ext.P28 letter of the Guruvayur Devaswom Managing Committee dated 26.11.2011 to the Secretary to the Government, that the Government had intervened in the matter of disciplinary proceedings against the petitioner, and the said communication would indicate that it was at the instance of the Government that the punishment was imposed on the petitioner pursuant to the disciplinary proceedings. It is the suggestion of the learned counsel for the petitioner that Exts.P15 and P28 would indicate that the decision to impose the -10- **W.P.(C).No.24122 of 2015** harsh punishment on the petitioner was taken by the Managing Committee of the respondent Board primarily at the dictates of the Government. (v) It is the further submission of the learned counsel for the petitioner that Exts.P23 and P24 orders of the Managing Committee do not contain any reasons, and therefore, do not manifest any independent application of mind by the disciplinary authority in the matter of imposition of the punishment on the petitioner, pursuant to the findings in the enquiry report drawn up by the Enquiry Officer. It is the contention of the learned counsel for the petitioner that, the disciplinary authority was obliged, in terms of the Rules, to independently apply its mind to the findings of the Enquiry Officer, and take a decision independent thereof, after considering the explanation of the petitioner in response to the show cause notice issued to him. It is pointed out that, in the instant case, in Exts.P23 and P24 orders, there is no such exercise seen adopted by the Managing Committee of the respondent Board, and hence, the said orders are vitiated by a patent non- -11- **W.P.(C).No.24122 of 2015** application of mind. Reliance is placed on the decisions reported in **Anil Kumar v. Presiding Officer and Others [AIR 1985 Supreme Court 1121], Babu Sunder v. Cochin University [2001 (2) KLT 321]** and **S.Neelakanta Iyer v. State of Kerala [1960 KLT 222].** (vi) The learned counsel for the petitioner would further contend that Exts.P23 and P24 orders are also vitiated by an error apparent on the face of record since they do not take into account the apparent fact that the cheques, which were in a mutilated condition, and admittedly referred to amounts which were beyond the powers of the signatory to sanction, could not have been relied upon without further corroboration with regard to the power to issue such cheques, and the power in the Bank Officials to pass such cheques. It is contended, therefore, that there was no basis for fastening a liability on the petitioner in the instant case. (vii) Lastly, it is contended that the disciplinary proceedings itself endured for almost seven years since its initiation and the -12- **W.P.(C).No.24122 of 2015** long delay in completing the proceedings itself vitiated the disciplinary proceedings. 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I must, at the outset, observe that the scope of interference with disciplinary proceedings, in a writ petition under Article 226 of the Constitution of India, is very limited, as has been noticed by the Supreme Court in the recent decision in **Union of India and** ## **Others v. P.Gunasekaran [(2015) 2 Supreme Court Cases** **610]** . In paragraphs 12 and 13 of the said decision, the Supreme Court has laid down the principles that would govern the exercise of discretion under Article 226 and 227 of the Constitution of India, in matters of disciplinary proceedings against delinquent employees of an organisation that answers to the description of “State” under Article 12 of the Constitution of India. The said paragraphs read as under: “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating -13- **W.P.(C).No.24122 of 2015** even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; -14- **W.P.(C).No.24122 of 2015** (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” 6. An examination of the legal contentions raised in this writ petition, on the basis of the aforementioned guidelines indicated in the decision of the Supreme Court, would suggest that once it is -15- **W.P.(C).No.24122 of 2015** found that the orders impugned in the writ petition have been passed based on an enquiry that was held by the competent authority, in accordance with the procedure that is prescribed in the Rules, and in due compliance with the principles of natural justice, then the findings would not be interfered with by this Court unless the conclusion is so arbitrary or capricious that no reasonable person would arrive at such a conclusion. In otherwords, this Court would not be justified in re-appreciating the evidence or interfering with the conclusions by going into the adequacy of evidence, or reliability of evidence that was adduced by the Enquiry Officer. Similarly, this Court would also not be justified in interfering with the punishment unless it is shown that the punishment imposed is so grossly and shockingly disproportionate when compared with the nature of the offence that stood proved against the delinquent employee. In the instant case, as already noted, the initiation of disciplinary proceedings against the petitioner was in connection with charges of misappropriation of substantial amounts from the respondent Board. It would follow, therefore, that if, as a matter of fact, the -16- **W.P.(C).No.24122 of 2015** charges alleged against the petitioner stand proved against him in disciplinary proceedings that are found to be legal and valid, then the punishment of dismissal from service, imposed on him, cannot be seen as one that is grossly disproportionate when compared to the charges proved against him. The decisions of the Supreme Court in **Janatha Bazar v. Secretary, Sahakari Noukarara Sangh [AIR 2000 Supreme Court 3129] and Regional Manager, U.P.SRTC, Etawah and Others v. Hotilal and another [(2003) 3 Supreme Court Cases 605]** are authorities for the proposition that, it is not only the amount involved but the mental set up, the type of duty performed and similar relevant circumstances that go into the decision making process, while considering whether punishment is proportionate or disproportionate. It has been held that if the charged employee is in a position of trust, where honesty and integrity are implied requirements for functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money, or is engaged in financial transaction or acts in a fiduciary capacity, the **W.P.(C).No.24122 of 2015** -17- highest degree of integrity and trustworthiness is a must and unexceptionable. If, therefore, in the instant case, the disciplinary proceedings are found to be legally unassailable, then the punishment imposed on the petitioner will also have to be held legally unassailable, since the same cannot be seen as disproportionate, under the circumstances. 7. The issue that then arises for consideration is whether, in the instant case, the petitioner has made out a case with regard to illegality of the proceedings, either on account of non-compliance with the rules of natural justice, or violation of any statutory rules or guidelines. The first contention of counsel for the petitioner is with regard to the non-summoning of the two Bank Officers who, according to the petitioner, would have been instrumental in proving the innocence of the petitioner. It is the case of the petitioner that, despite seeking an opportunity for adducing evidence through these Bank Officers, the Enquiry Officer did not grant the petitioner sufficient opportunity for adducing evidence. I note from the enquiry proceedings, however, that the petitioner -18- **W.P.(C).No.24122 of 2015** had been examined as a witness on 11.09.2014. The Enquiry Officer then closed the enquiry on 11.09.2014 and posted the matter for hearing on 25.09.2014. On 25.09.2014, the petitioner filed an application for re-opening the evidence and produced a witnesses list. The Enquiry Officer then adjourned the enquiry to 09.10.2014 for enabling the petitioner to produce his witnesses for examination at the enquiry. While the petitioner did not produce the said witnesses on that date, he submitted Ext.P18 letter requesting the Enquiry Officer to send a summons to the employees of the bank to appear at the enquiry. The Enquiry Officer considered the said application, and on finding that he did not have the power to issue summons to witnesses, who were nonDevaswom employees, rejected the said application but did not prevent the petitioner from producing the witnesses independently. Even thereafter, the petitioner did not produce the witnesses when the matter was posted on 20.11.2014 for hearing. It was, therefore that the enquiry proceeded without examining the said witnesses. The decision in **Chhel Singh v. MGB Gramin Bank, Pali and Others [(2014) 13 Supreme Court Cases** **W.P.(C).No.24122 of 2015** -19- **166],** relied upon by counsel for the petitioner, is clearly distinguishable on facts. A perusal of the said judgment would indicate that, that was a case where the delinquent employee had submitted a list of seven witnesses before the Enquiry Officer, and the Enquiry Officer called only two witnesses, and refused to call the remaining five witnesses. It was in that context that the Court found that the refusal on the part of the Enquiry Officer to summon the other witnesses, whose presence was required by the delinquent employee, resulted in a violation of the rules of natural justice, and therefore, vitiated the enquiry. In the case at hand, the rules adopted by the respondent Board namely the Kerala Civil Services (CC & A) Rules at Rule 15 (8) contemplates as follows: “(8) The Government servant may present to the Inquiring Authority a list of witnesses whom he desires to examine in his defence. The Inquiring Authority will normally request such witnesses to appear before him to give evidence and where the witness to be examined is a Government servant, the Inquiring Authority will normally try to secure the presence of the witness, unless he -20- **W.P.(C).No.24122 of 2015** is of the view that the witness's evidence is irrelevant or not material to the case under inquiry. Where the witness proposed to be examined by the Government servant is a nonofficial, the Inquiring Authority will be under no obligation to summon and examine him unless the Government servant himself produces him for examination.” 8. It is apparent from a reading of the said Rules that, merely because the Enquiry Officer did not accede to the request of the petitioner for the issuance of a summons to the witnesses called by the petitioner, there was no prejudice caused to the petitioner since he was not denied an opportunity to produce those witnesses independently, for examination before the Enquiry Officer. I, therefore, find that the said contention of the learned counsel for the petitioner, suggesting that the enquiry proceedings were vitiated on the said ground, cannot be legally countenanced. 9. The 2[nd] point that is canvased before me by the learned counsel for the petitioner is with regard to the presence of the 3[rd] -21- **W.P.(C).No.24122 of 2015** respondent, in the meeting of the Managing Committee held on 17.03.2015, which decided to issue a show cause notice to the petitioner for the purposes of asking him to show cause against the acceptance of the enquiry authority, and to show cause against the proposal for imposition of a major penalty. The learned counsel for the petitioner would rely on Ext.P24, which is the minutes of a subsequent meeting of the Managing Committee, where reference is made to Ext.P20 decision of the Managing Committee to indicate that in the said meeting, the Managing Committee had effectively decided to accept the enquiry report. The said contention of the learned counsel for the petitioner does not stand to reason since, from a reading of Ext.P20 decision itself, it is apparent that the decision taken was only to issue a show cause notice to the petitioner asking him to show cause against the acceptance of the report by the Managing Committee and against the proposal for imposition of punishment. It is also not in dispute that, on receipt of the show cause notice, the petitioner had responded to the same stating reasons as to why the enquiry report should not be accepted and further, as to why the penalty proposed should not -22- **W.P.(C).No.24122 of 2015** be imposed. I, therefore, find that through the mere presence of the 3[rd] respondent, in the meeting of the Managing Committee that decided to issue the show cause notice, there was no prejudice caused to the petitioner, since the issuance of the show cause notice was the next procedural step that had to be taken in connection with the disciplinary proceedings. I also find that, the petitioner cannot allege bias merely on account of the presence of the 3[rd] respondent in the said meeting. There was no discretion exercised by the Managing Committee in the matter of issuing a show cause notice to the petitioner and hence there was no “decision” that could have been vitiated through any bias on the part of the 3[rd] respondent who was only a member of the Governing body. Even in the absence of the 3[rd] respondent, the Managing Committee that met would have had to inevitably take the decision to issue the show cause notice to the petitioner. I, therefore, find that the presence of the 3[rd] respondent in the meeting held on 17.03.2015 cannot be said to have vitiated the decision taken by the Managing Committee to issue the show cause notice to the petitioner. -23- **W.P.(C).No.24122 of 2015** 10. With regard to the contention urged on behalf of the petitioner that, in terms of Rule 15 (11) of the Kerala Civil Services (CC & A) Rules, the Managing Committee had to record its findings on each of the charges that stood proved against the petitioner in the enquiry report, I find that, the said contention cannot be accepted in the face of the express provisions of the Rule in question. Rule 15 (11) reads as follows: ## **“15. Procedure for imposing major penalties:-** (11) The Disciplinary Authority, where it is not the Government, shall if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge. Where the Disciplinary Authority is Government, it shall consider the records of the inquiry and where it is considered necessary to depart from the findings of the Inquiring Authority, record its provisional findings on each charge with reasons thereof.” It is apparent, therefore, that the question of recording separate reasons arises only in cases where the Managing Committee of the -24- **W.P.(C).No.24122 of 2015** respondent Board is not the disciplinary authority and the disciplinary authority is an inferior authority, other than the enquiring authority. In cases where the disciplinary authority is the Managing Committee of the respondent Board, the requirement of recording reasons arises only when the Managing Committee considers it necessary to depart from the findings of the enquiring authority. Since in the instant case, the Managing Committee is the disciplinary authority, the requirement of furnishing reasons, on each of the charges that stood proved against the petitioner, as indicated in the enquiry report, did not specifically arise. This finding is supported by the decision of the Supreme Court in **State Bank of Bikaner & Jaipur v. Prabhu Dayal Grover [(1995) 6 SCC 279]** wherein at paragraph 13 it is stated as follows: 13. In view of the answer so given, it has to be now seen whether under the Regulations, the authorities concerned are required to give reasons for their decisions. Regulation 68(3) lays down the procedure the disciplinary authority is required to follow after it receives the proceedings of the enquiry including the report of the Inquiry Officer. On careful -25- **W.P.(C).No.24122 of 2015** perusal thereof we find that only in those cases where the disciplinary authority considers it necessary to direct fresh or further enquiry or disagrees with the findings of the Inquiry officer, it has to record the reasons for its such directions, but there is no such obligation if its agrees with the findings of the Inquiry Officer. It can, therefore, be legitimately inferred that when express provisions have been made in the Regulations for recording reasons in only the first two of the three fact situations - and not the other - there is no implied obligation also to record the reasons in case of concurrence with the findings of the Inquiry Officer. Even if we proceed on the basis that such an obligation is implicit, still the order of the disciplinary authority cannot be held to be bad as, on perusal thereof, we find that before concurring with the findings of the Inquiry Officer it has gone through the entire proceeding and applied its mind thereto. In our considered opinion, when the disciplinary authority agrees with the findings of the Inquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to reappraise the evidence to arrive at the same findings. We are, therefore, unable to accept eh contention of Mr. Dutta that the order of punishment was liable to be struck down as it was a nonspeaking order and did not contain any reason. 11. For the same reasons, I also do not find any merit in the further contention of the petitioner that, separate reasons ought to -26- **W.P.(C).No.24122 of 2015** have been given by the Managing Committee, in Exts.P23 and P24 orders, to indicate the application of mind by the said Committee, to the findings in the enquiry report, in the face of the objections submitted by the petitioner to the show cause notice that was served on him. It is relevant to note in this connection that, in the reply to the show cause notice, the petitioner, apart from blandly stating that the Enquiry Officer had brushed aside his objections regarding the depositions in cross examination, does not pinpoint to any particular deposition that was ignored or overruled by the Enquiry Officer while drawing up the enquiry report. In the absence of any specific instance being pointed out in the reply to the show cause notice, it would be futile for the petitioner to contend that the Managing Committee, which was to go into the issue of acceptance of the enquiry report, could not accept the said report. This is so because there was nothing indicated to the Managing Committee to doubt the correctness or legality of the findings in the enquiry report. The contentions of the learned counsel for the petitioner on this ground are also hence rejected. -27- **W.P.(C).No.24122 of 2015** 12. Lastly, on the aspect of interference by Government and also on the delay that was supposedly occasioned during the course of the disciplinary proceedings, I find that, although initially, the respondent Board had, by Ext.P6 communication dated 03.03.2011, informed the petitioner that it had decided to terminate his services, on the petitioner showing cause against the said proposal, the respondent Board resiled from its earlier stand and decided to continue with the disciplinary proceedings. The said action by the the respondent Board would indicate that, far from obeying the directions in the Government communications referred to in the writ petition, the respondent Board had independently decided to proceed with the disciplinary proceedings against the petitioner, and arrive at a conclusion based on the findings in the disciplinary proceedings. The present is not a case where the respondent Board can be seen as having acted on the dictates of the Government. At any rate, there is no material on record that would unambiguously point to such conduct by the respondent Board. Further, as regards the allegation of delay, I find that inasmuch as the charge against the -28- **W.P.(C).No.24122 of 2015** petitioner was one that was grave in nature namely, that of misappropriation of substantial amounts from the respondent Board, the respondent Board cannot be accused of occasioning a delay merely because the procedure that was followed in connection with the disciplinary proceedings endured for a period of over seven years. The decision of the Supreme Court in **Life** ## **Insurance Corporation of India and Others v. A Masilamani** **[(2013) 6 Supreme Court Cases 530]** is authority for the proposition that the Court should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limits of judicial review. It is stated that, the same principle is applicable in relation to there being a delay in conclusion of the disciplinary proceedings. The facts and circumstances of a particular case have to be examined, taking into consideration the gravity/magnitude of charges involved therein, and the essence of the matter is that the Court must take into consideration all relevant facts and balance and weigh the same so as to determine if it is in fact in the interest of clean and -29- ## **W.P.(C).No.24122 of 2015** honest administration, that the judicial proceedings are allowed to be terminated solely on the ground of delay in their conclusion. In the instant case, as already noted, since the gravity of the charges that stood proved against the petitioner is severe, the time taken by the respondent Board in completing the disciplinary proceedings against the petitioner cannot be said to be unreasonable. 13. Thus, I find that the disciplinary proceedings conducted against the petitioner does not suffer from any legal infirmity and the punishment imposed on him is also not disproportionate. I, therefore, hold that Exts.P23 and P24 orders, that are impugned in the writ petition, do not call for any interference by this Court in these proceedings under Article 226 of the Constitution of India. The writ petition in its challenge against the said orders therefore fails, and is accordingly dismissed. Before parting with this case, I take note of the submission of the learned counsel for the petitioner that in Exts.P23 and P24 -30- ## **W.P.(C).No.24122 of 2015** orders, apart from the imposition of punishment, there is also a direction to recover amounts from the petitioner. It is also pointed out by the learned counsel for the petitioner that, as admitted by the respondent Board, substantial amounts have since been refunded to the Board from the amounts stated to have been misappropriated by the petitioner. Taking note of the said submissions, I make it clear that, recovery proceedings initiated against the petitioner, pursuant to Exts.P23 and P24 orders, shall only be in respect of such sums as remain outstanding, and shall be only after issuing a notice to the petitioner indicating the exact amount that is sought to be recovered from him. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/17.10.16