N. Ravi 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 22ND DAY OF NOVEMBER 2013/1ST AGRAHAYANA, 1935** ## **WP(C).No. 20545 of 2010 (P)** **---------------------------------------** ## **PETITIONER:** - **-------------------** ## **N.RAVI, NEDUMPURAM HOUSE, VATTAKKATTUPADI, PERUMBAVOOR-683 542.** **BY ADVS.SRI.S.EASWARAN, SRI.P.MURALEEDHARAN (IRIMPANAM), SRI.M.A.AUGUSTINE.** **RESPONDENTS:** **-----------------------** **1. THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695 023, REPRESENTED BY THECHAIRMAN & MANGING DIRECTOR.** **2. THE CHAIRMAN & MANAGING DIRECTOR, K.S.R.T.C, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM- 695 023.** **3. THE EXECUTIVE OFFICER (VIGILANCE), K.S.R.T.C, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM- 695 023.** **4. SHRI.M.P.PRATHAPAN,ENQUIRY OFFICER, INSPECTOR-IN-CHARGE, SURPRISE SQUAD NO.13, K.S.R.T.C. PERUMBAVOOR.** **R1 TO R3 BY SRI.BABU JOSEPH KURUVATHAZHA,S.C.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.20545/2010-P:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P.1: COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DTD. 20/11/2006 ISSUED BY THE R.3.** **EXT.P.2: COPY OF THE SHOW CAUSE NOTICE DTD. 24/11/2007 ISSUED BY THE R.3.** - **EXT.P.3: COPY OF THE REPORT OF CONFIDENTIAL ENQUIRY DTD. 15/09/2007 SUBMITTED BY THE R.4.** |**EXT.P.4:**|**COPY OF THE ORDER DTD. 13/05/2008 ISSUED BY THE R.3.**| |---|---| |**EXT.P.5:**|**COPY OF THE APPEAL PETITION DTD. 20/09/2008 SUBMITTED BY THE**| ||**PETITIONER BEFORE THE R.2.**| **EXT.P.6: COPY OF THE ORDER DTD. 02/11/2009 ISSUED BY THE R.2. EXT.P.7: COPY OF THE ORDER DTD. 24/04/2010 ISSUED BY THE OFFICE OF THE R.2.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** C.K. ABDUL REHIM, J. ------------------------------W.P.(C) NO. 20545/2010 -------------------------------------Dated, this the 22[nd] day of November, 2013. ## J U D G M E N T While working as a Driver in the 1[st] respondent Corporation, the petitioner was issued with Ext. P1 Memo of Charges alleging that, he had unauthorisedly absented from duty intermittently without submitting leave application and without getting permission from the higher authorities. It was alleged that, a perusal of his attendance details had revealed that he was present for duty only for 4 days in 04/2006, 17 days in 05/2006, 11 days in 06/2006 and 2 days in 09/2006 and that there was no duty during 07/2006, 08/2006 and 10/2006. In the Memo of Charges it is alleged that, the Corporation was not getting service of the petitioner and was compelled to cancel schedules and sustained diminution of income. The petitioner was alleged to have committed dereliction of duty and misconduct. Being not satisfied with the explanations submitted by the petitioner, a domestic enquiry was conducted. In Ext. P2 show cause notice by the 3[rd] respondent, punishment of W.P.(C) NO. 20545/2010 : 2 : compulsory retirement and to treat the period of absence as Leave Without Allowance (LWA) not qualifying for any service benefits and pensionary benefits, was proposed. Eventhough the petitioner submitted explanations to the show cause notice, the punishment as proposed was confirmed through Ext. P4. Appeal filed before the 2[nd] respondent was also dismissed through Ext. P6 proceedings. In the meanwhile, the petitioner attained superannuation on 31.03.2010. Since the petitioner had no minimum qualifying service making him eligible for pension, he had applied for ex-gratia pension, which was also rejected through Ext. P7. It is aggrieved by Exts. P4, P6 and P7, this Writ Petition is filed. 2. Petitioner is assailing the order of punishment mainly on two grounds. One is that, there occurred a serious irregularity in not furnishing a copy of the report of domestic enquiry along with Ext. P2 show cause notice. Secondly, the punishment was imposed mainly relying on a confidential enquiry conducted behind back of the W.P.(C) NO. 20545/2010 : 3 : petitioner, apart from the domestic enquiry already conducted. 3. From Ext. P2 it is evident that a disciplinary action as contemplated under Rule 15 of the Kerala Civil Service (Classification, Control and Appeal) Rules, 1960 was initiated against the petitioner. It is evident that an enquiry officer was appointed and an enquiry was conducted. According to the 3[rd] respondent the enquiry officer found that the petitioner guilty of the charges alleged. But in the show cause notice it is further mentioned that, a confidential enquiry was conducted further through the Inspector of Special Squad 16, in which it was revealed that the petitioner was not attending duties because he was driving a Lorry in the name of his wife. The 3[rd] respondent further observed that, he is concurring with the conclusions of the enquiry report and it is convinced that the petitioner is not interested in working in the Corporation. Therefore the punishment was proposed. 4. Specific contention of the petitioner is that, along W.P.(C) NO. 20545/2010 : 4 : with Ext. P2 notice the report of the confidential enquiry alone was furnished to him. Ext. P3 is the copy of the report of the confidential enquiry. Learned counsel for the petitioner contended that, since the report of the domestic enquiry was not furnished to the petitioner, reply to the show cause notice was submitted only based on the findings contained in the report of the confidential enquiry. The non furnishing of the enquiry report ofthe domestic enquiry conducted under Rule 15, will totally vitiate the disciplinary action, is the contention. 5. In support of the above contention, learned counsel for the petitioner had placed heavy reliance on a decision of the Hon'ble Supreme Court in Managing Director ECIL v. B. Karunakar [AIR 1994 SC 1074]. He also placed reliance on an earlier decision of the apex Court in Union of India and others v. Muhammad Ramzan Khan [(1991) 1 SCC 588]. The dictum contained in both the decisions are that, non furnishing of the report to the delinquent would be violative of Principles of natural justice, which will render the final W.P.(C) NO. 20545/2010 : 5 : order invalid. It is specifically held that, despite 42[nd] amendment of the Constitution in Article 311(2), there cannot be dispute that the disciplinary proceedings is quasi-judicial in nature and all principles of natural justice has to be complied. The report is an adverse material, if the enquiry officer records finding of guilt, sofar as the delinquent is concerned. If the delinquent is deprived of knowledge of any material put against him through the same being not supplied rules of natural justice will be affected. It is held in ECIL's case (supra) that the delinquent employee has a right to receive copy of the enquiry officers' report, before the disciplinary authority arrives at conclusion with regard to guilt or innocence of the employee. The denial of the enquiry officers' report is a denial of reasonable opportunity afforded to the employee to prove his innocence and is a breach of principles of natural justice. The decision further goes to the extent of observing that, since it is the right of the employee to have the report to defend himself and since he would not know in advance whether the report W.P.(C) NO. 20545/2010 : 6 : is in his favour or against him, it would not be proper to construe his failure to ask for the report as a vagour of his right. Therefore, whether the employee asks for the report or not, the report has to be furnished to him. 6. In the case at hand, there arose a dispute on the factum of service of copy of the report of domestic enquiry to the petitioner. Learned standing counsel appearing for the respondents pointed out that, Ext. P2 notice contains an endorsement that copy of the enquiry report was enclosed along with the said notice. But specific contention of the petitioner is that what was enclosed is only Ext. P3 report, and not the report of domestic enquiry. Inorder to resolve the controversy this Court ordered production of the files concerned. But even on a perusal of the records it is not discernible as to whether both the reports were enclosed along with the notice. However, the explanation submitted by the petitioner to the show cause notice, which is available on the records indicated that the explanations submitted are mainly based on the conclusions contained in Ext. P3 report. W.P.(C) NO. 20545/2010 : 7 : On the other hand, learned standing counsel contended that the petitioner had never raised any complaint about non receipt of the copy of the enquiry report. Therefore ground raised in this Writ Petition can only be by way of an after thought. 7. Even though, this Court is not in a position to arrive at any conclusion regarding correctness of the allegations with respect to non furnishing of copy of the domestic enquiry report a more crucial aspect which need be considered is whether any prejudice was caused to the petitioner due to non-furnishing of the report. In the decision in S.K Singh v. Central Bank of India and others [(1996) 6 SCC 415], the Hon'ble Supreme Court observed that the non supply of enquiry report is inconsequential if no prejudice is caused. In such circumstances refusal to interfere with the order of removal was held as not illegal. The same view has been followed in a later decisions of the Hon'ble Supreme Court in Haryana Financial Corporation and another v. Kailash Chnadra Ahuja [(2008) 9 SCC 31]. W.P.(C) NO. 20545/2010 : 8 : Referring to ECIL's case (cited supra) and other cases on the subject, it is held that the charged employee must show that prejudice has been caused to him due to non furnishing of the report. If no proof is there with respect to any prejudice caused, non furnishing of the report by itself will not render the punishment invalid. The said decision also held that, in the absence of any proof, the Court could not presume that prejudice was writ large. 8. In a recent decision of the Hon'ble Apex Court in Punjab National Bank and others v. K.K. Verma [(2010) 13 SCC 494] it is held that, the dictum laid in ECIL's case, S.K. Sing's case, and Hariana Financial Corporations case to the extent that it is inconsequential when the employee does show as to how he is prejudiced, has to be accepted. But it is held that in a situation where the finding of the enquiry officer has been reversed by the disciplinary authority non furnishing of the report will amount to denial of opportunity and the delinquent employee will be prejudiced. Learned counsel for the petitioner contended that furnishing of copy W.P.(C) NO. 20545/2010 : 9 : of the report of enquiry is a mandatory requirement under Rule 15 (12)(i)(a) of Kerala Civil Service (CC&A) Rules. Since it is a case of imposition of major penalty, it was mandatory to comply all the procedure enumerated under Section 15. In this regard, reliance was placed on the decision of this Court in Radhakrishnan Nair v. State of Kerala [2005 (3) KLT 1] and K.S.R.T.C v. Abdul Latheef [2005 (3) KLT 955]. Per contra, learned Standing Counsel had placed reliance on a latest decision of this Court in Damodaran Pillai v. State of Kerala [2010 (4) KLT 769], wherein it is held that, judicial review should be restrained merely on the technical contention that a copy of the enquiry report was not served, even in cases were what is ultimately imposed is a major penalty. It is held that there would not be interference in judicial review, except in cases where prejudice is demonstrated. 9. In the case at hand, it is to be noticed that the petitioner had never raised any complaint with respect to non furnishing of the copy of the report of domestic enquiry, W.P.(C) NO. 20545/2010 : 10 : till filing of this Writ Petition. It is evident that he had participated in the domestic enquiry conducted. Neither in the explanations to the show cause notice nor in the appeal filed before the 2[nd] respondent no contention was raised to this effect. Therefore, even assuming that a copy of the report of domestic enquiry was not furnished a judicial review on the sustainability of the punishment imposed, which is confirmed in appeal, is not warranted, considering the settled legal precedents. 10. But the further question as to whether the punishment imposed based on materials collected in a confidential enquiry can be sustained, assumes importance. It is evident from Ext. P2 that the disciplinary authority had relied upon findings contained in the report of the confidential enquiry, inorder to arrive at a conclusion that the petitioner is guilty of the charges alleged. So also it is reflected in Ext. P4 order imposing punishment that the 3[rd] respondent had placed reliance on the report of the confidential enquiry inorder to conclude that the petitioner W.P.(C) NO. 20545/2010 : 11 : is guilty of the charges and also for deciding the extent of punishment to be imposed. When a disciplinary action is initiated for imposition of a major penalty contemplated under Rule 15, enquiry has to be conducted by complying all procedural formalities. Mandatory procedures to be followed at every stage is enumerated under Rule 15. Those statutory provisions are intended to ensure that the delinquent employee is afforded with ample opportunity to prove his innocence. The enquiry has to be conducted with full opportunity afforded to the petitioner to adduce evidence to prove his innocence or to prove that the charges levelled are baseless and not sustainable. If any confidential enquiry is conducted before imposing punishment and if any materials elucidated out of such enquiry is made use of for imposing punishment, the same will amount to a deviation from the mandatory procedure prescribed. Further, the respondents have no case that the petitioner was given notice of any such enquiry or that he was given any opportunity to participate in such an enquiry. It is evident W.P.(C) NO. 20545/2010 : 12 : from Ext. P3 report that the Officer who had conducted the confidential enquiry has recorded statement of third parties. The petitioner was not even provided with opportunity to dispute the veracity of such statements or he was not given opportunity to discard the veracity of such evidence. Under such circumstances, this Court is of the considered opinion that the confidential enquiry conducted after completion of the domestic enquiry and the reliance placed on the report of the confidential enquriy, are illegal and irregular. Any punishment imposed partly or wholly depending upon materials collected and conclusions arrived in such an enquiry is to be held as vitiated. Under the above context, argument raised by the petitioner regarding proportionality of the quantum of punishment imposed based on conclusions contained in the report of the domestic enquiry, also assumes importance. 11. Under the above mentioned circumstances, this Court is of the considered opinion that the matter requires reconsideration at the hands of the 3[rd] respondent, the W.P.(C) NO. 20545/2010 : 13 : disciplinary authority. A fresh decision shall be taken by the 3[rd] respondent on the basis of the report of domestic enquiry, conducted after issuing fresh show cause notice and after furnishing copy of the said report to the petitioner. Needless to observe that the disciplinary authority cannot rely on the report of the confidential enquiry in finalizing the matter. 12. A fresh proceedings finalizing the disciplinary action shall be issued by the 3[rd] responded, after affording opportunity to the petitioner as directed above, at the earliest possible at any rate, within a period of 3 months from the date of receipt of copy of this judgment. Needless to observe that entitlement of the petitioner for pension and other retirement benefits will depend upon outcome of the fresh decision which will be taken by the 3[rd] respondent. Sd/C.K. ABDUL REHIM, JUDGE. SB