High Court of KeralaSingle Judge2012-07-27Writ petition disposed of; Exts.P17, P23 and P2...

O.T.Venu v. Brigadier, Deputy Director General, NCC, NCC Directorate, Thiruvananthapuram-10; Colonel Commander and Chairman, URC, NCC Group Headquarters, Mutttamabalam P.O., Kanjikuzhi, Kottayam; The Director General, National Cadet Corps, Ministry of Defence, West Block IV, R.K. Puram, New Delhi

Case / Petition Number:WP(C).No. 2164 of 2009 (G)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan
Judgment Date: 2012-07-27
Court Decision / Holding: The court quashes Ext.P17, Ext.P23 and Ext.P25 due to the failure to furnish the petitioner with a copy of the enquiry report and to provide him an opportunity to represent against the enquiry and its findings. It directs the respondents to furnish a copy of the enquiry report to the petitioner and to allow him to make representations, including the challenge that witnesses were not cross-examined, and to pass fresh orders after considering those representations, within three months from receipt of the judgment.
Final Disposition: Writ petition disposed of; Exts.P17, P23 and P25 quashed; respondents directed to furnish a copy of the enquiry report and give the petitioner an opportunity to show cause/represent against the enquiry proceedings and findings; fresh orders to be passed within three months from the date of receipt of this judgment.

Parties to the Case

Appellants / Petitioners

O.T.Venu

Respondents

Brigadier, Deputy Director General, NCC, NCC Directorate, Thiruvananthapuram-10
Colonel Commander and Chairman, URC, NCC Group Headquarters, Mutttamabalam P.O., Kanjikuzhi, Kottayam
The Director General, National Cadet Corps, Ministry of Defence, West Block IV, R.K. Puram, New Delhi

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Elvin Peter P.J.
• Sri. Praveen K. Joy

Counsels for Respondents

• Sri. P. Parameswaran Nair, Asst.Solicitor
• Sri. T.R. Rajesh, CGC

Case Synopsis & Summary

O.T.Venu, who was appointed as an Upper Division Clerk in the Unit Run Canteen (URC) of the NCC Headquarters at Kottayam, faced disciplinary proceedings on allegations of misconduct. An Enquiry Officer conducted an inquiry following a show-cause notice. The petitioner was dismissed by order Ext.P17, and his appeal was rejected by Ext.P25. He challenged these orders in WP(C) No. 2164 of 2009 (G), arguing two main points: first, that the enquiry violated natural justice because witnesses were not examined in his presence and he was not given an opportunity to cross-examine; second, that he was not supplied with a copy of the enquiry report to enable him to make representations against the enquiry proceedings and its findings. The respondents contended that Unit Run Canteen employees are not government employees, making the petition not maintainable, and that the petitioner had voluntarily opted not to attend witness examination, and could peruse the records. The Kerala High Court held that, though the maintainability argument is debatable, the mandatory requirement under the applicable Ext.P14 rules is to furnish a copy of the enquiry report to the delinquent employee and provide an opportunity to represent. As the copy was not furnished, Ext.P17, Ext.P23, and Ext.P25 were quashed. The court directed furnishing of the report and a fresh opportunity to respond, with fresh orders to be issued within three months after considering representations.

Provisions of Law Cited

Ext.P14: Rules regulating the terms and conditions of service of civilian employees of Unit Run Canteen issued by the Army Headquarters.

Legal Doctrines & Maxims

Principles of natural justice

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the enquiry proceedings violated natural justice as witnesses were not examined in his presence and he was not given an opportunity to cross-examine. He also argues that he was not furnished with a copy of the enquiry report, depriving him of a meaningful opportunity to represent against the enquiry proceedings and the findings. He seeks certiorari to quash the offending orders and mandamus to reinstate him with back wages, or, at least, to direct fresh, fair proceedings after providing a copy of the enquiry report.

Contentions of Respondents

The respondents contend that Unit Run Canteens staff are not government employees, rendering the petition non-maintainable. They rely on the petitioner’s written assent to not be present for witness examination and to refrain from cross-examination. They argue the petitioner could peruse the records. They also refer to Ext.P14 rules governing service terms in the Army HQ and maintain that the technical arguments are not applicable. They contend the petition should fail on maintainability and on the procedures followed in the enquiry.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
R.R. Pillai (Dead) Through LRs. v. Commanding Officer, Headquarters Southern Air Command (U) and Others	(2009) 13 SCC 311	Distinguished	The respondents relied on this Supreme Court decision to argue non-government-employee status of unit canteen staff. The Kerala High Court distinguished this proposition as not applicable to the present case and relied on Ext.P14 rules and due process requirements for enquiry reports.
W.P.(C) No. 30997/2005	WPC No. 30997/2005	Mentioned Only	Cited as EXT.P18; a judgment of this Court, referenced as an exhibit rather than used as a direct legal precedent in the reasoning.
W.P.(C) No. 26229/2007	WPC No. 26229/2007	Mentioned Only	Cited as EXT.P22; a judgment of this Court, referenced as an exhibit with no direct doctrinal application in the decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **FRIDAY, THE 27TH DAY OF JULY 2012/5TH SRAVANA 1934** ## **WP(C).No. 2164 of 2009 (G) --------------------------** **PETITIONER:** ## **-----------** **O.T.VENU, OTHALAPARAMBIL HOUSE, KUMARAKAM NORTH P.O., KOTTAYAM.** **(U.D.CLARK IN THE UNIT CANTEEN OF THE NCC)** **BY ADVS.SRI.ELVIN PETER P.J.** **SRI.PRAVEEN K. JOY** **RESPONDENT(S):** - **--------------** **1. BRIGADIER, DEPUTY DIRECTOR GENERAL,** **NCC, NCC DIRECTORATE, THIRUVANANTHAPURAM -10.** **2. COLONEL COMMANDER AND CHAIRMAN, URC, NCC GROUP HEAD QUARTERS, MUTTAMABALAM P.O., KANJIKUZHI, KOTTAYAM.** **3. THE DIRECTOR GENERAL, NATIONAL CADET CORPS, MINISTRY OF DEFENCE, WEST BLOCK IV, R.K.PURAM, NEW DELHI.** **BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR BY ADV. SHRI.T.R.RAJESH, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **WP(C).No. 2164 of 2009 (G)** ## **APPENDIX** |**PETITIONER'S EXHIBITS:**|**PETITIONER'S EXHIBITS:**| |---|---| |**EXT.P1:**|**COPY OF THE ORDER DATED 17/8/2005 ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**EXT.P2:**|**COPY OF THE ORDER DATED 17/8/2005 ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**EXT.P3:**|**COPY OF THE SHOW CAUSE NOTICE DATED 20/9/2005 ISSUED BY THE**| ||**2ND RESPONDENT.**| |**EXT.P4:**|**COPY OF THE MEMO OF CHARGES DATED 20/9/2005 ISSUED BY THE**| ||**2ND RESPONDENT.**| |**EXT.P5:**|**COPY OF THE ORDER DATED 5/10/2005 ISSUED BY THE ENQUIRY**| ||**OFFICER.**| |**EXT.P6:**|**COPY OF THE REPLY DATED 22/9/2005 SUBMITTED BY THE**| ||**PETITIONER TO EXT.P4 MEMO OF CHARGES.**| |**EXT.P7:**|**COPY OF THE COMPLAINT FILED BY EX. HAVILDAR RAJAPPAN NAIR TO**| ||**THE CHIEF OF ARMY STAFF.**| |**EXT.P8:**|**COPY OF THE STATEMENT DATED 24/10/2005 FILED BY SRIMATHEW**| ||**OMMEN.**| |**EXT.P9:**|**COPY OF THE STATEMENT DATED 24/10/2005 FILED BY SRI.BOBBY**| ||**VARGHESE.**| |**EXT.P10:**|**COPY OF THE STATEMENT DATED 18/8/2005 FILED BY**| ||**SRI.C.K.REGINOLD.**| |**EXT.P11:**|**COPY OF THE STATEMENT DATED 26/10/2005 FILED BY THE**| ||**PETITIONER BEFORE THE ENQUIRY OFFICER.**| |**EXT.P12:**|**COPY OF THE REPRESENTATION DATED 15/10/2005 SUBMITTED BY THE**| ||**DEFENCE CANTEEN CIVIL STAFF EMPLOYEES UNION BEFORE THE**| ||**ENQUIRY OFFICER.**| |**EXT.P13:**|**COPY OF THE STATEMENT DATED 15/10/2005 FILED BY THE**| ||**PETITIONER BEFORE THE ENQUIRY OFFICER.**| |**EXT.P14:**|**COPY OF THE RULES REGULATING THE TERMS AND CONDITIONS OF**| ||**SERVICE OF CIVILIAN EMPLOYEES OF UNIT RUN CANTEEN ISSUED BY**| ||**THE ARMY HEADQUARTERS.**| |**EXT.P15:**|**COPY OF THE SHOW CAUSE NOTICE DATED 30/11/2005 ISSUED BY THE**| ||**2ND RESPONDENT TO THE PETITIONER.**| **CONT...** ## **WP(C).No. 2164 of 2009 (G)** **EXT.P16: COPY OF THE REPLY DATED 2/12/2005 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P17: COPY OF THE ORDER DATED 17/4/2006 ISSUED BY THE 2ND RESPONDENT. EXT.P18: COPY OF THE JUDGMENT DATED 29/11/2006 IN WPC.NO.30997/2005 OF THIS HONOURABLE COURT. EXT.P19: COPY OF THE APPEAL DATED 3/5/2006 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P20: COPY OF THE ORDER DATED 16/3/2007 ISSUED BY THE 1ST RESPONDENT. EXT.P21: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN C.C.(C)NO.412/2007 BEFORE THIS HONOURABLE COURT. EXT.P22: COPY OF THE JUDGMENT DATED 4/10/2007 IN WPC.NO.26229/2007 OF THIS HONOURABLE COURT.** **EXT.P23: COPY OF THE ORDER DATED 17/7/2008 ISSUED BY THE 3RD RESPONDENT.** **EXT.P24: COPY OF THE REVIEW PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT TO REVIEW EXT.P20 ORDER. EXT.P25: COPY OF THE ORDER DATED 18/12/2008 ISSUED BY THE 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** **P.A.TO JUDGE** **AS** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No. 2164 of 2009 ---------------------------------------------Dated this the 27[th] day of July, 2012 ## **JUDGMENT** The petitioner was appointed as an Upper Division Clerk in the Unit Run Canteen of the URC/NCC Headquarters, Kottayam, which is under the administrative control of the respondents in 1999. On certain allegations of misconduct, disciplinary proceedings were initiated against the petitioner. An Enquiry Officer was appointed, who conducted an enquiry. The petitioner was given a show cause notice directing him to show cause why his services should not be terminated as a punishment for the misconducts. Despite reply to the same, by Ext.P17 order, the petitioner was imposed with the punishment of dismissal from service of the Unit Run Canteen. The petitioner's appeal also did not meet with success, since the same was dismissed by Ext.P25 order. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Exts.P4, P15, P17, P20, P23 and P25 and quashing the same. W.P.(C)No.2164/09 2 ii) issue a writ of mandamus or any other appropriate writ, direction or order directing the Respondents to reinstate the petitioner as U.D. Clerk with effect from 178-2005 and grant him all consequential benefits including arrears of salary and backwages. iii) issue a writ of mandamus or any other appropriate writ, direction or order declaring that Exts.P4, P15, P17, P20. P23 and P25 Orders are void and non-est.” The petitioner raises two contentions. The first is that the enquiry is vitiated for violation of principles of natural justice, insofar as no witnesses were examined in the presence of the petitioner and the petitioner was not given an opportunity to cross examine the witnesses. The second is that, as required under law, the petitioner was not furnished with a copy of the enquiry report giving him an opportunity to represent against the enquiry proceedings and the findings in the enquiry report, which also amounts to violation of principles of natural justice. 2. A statement has been filed on behalf of the 2[nd] respondent seeking to controvert the contentions of the petitioner. The learned Central Government Counsel appearing for the respondents takes a preliminary contention that employees working in Unit Run Canteens are not Government W.P.(C)No.2164/09 3 employees and therefore, the writ petition itself is not maintainable. The learned Central Government Counsel relies on the decision of the Supreme Court in _**R.R. PILLAI (DEAD) THROUGH LRS.**_ v. _**COMMANDING OFFICER, HEADQUARTERS SOUTHERN AIR COMMAND (U) AND OTHERS**_ [(2009) 13 SCC 311], in support of that contention. 3. As regards the contention of the petitioner that the witnesses examined in the enquiry were not examined in the petitioner's presence and the petitioner was not allowed to cross examine the witnesses examined in the enquiry, the learned Central Government Counsel points out that, as is clear from Ext.P13, the petitioner himself had in writing stated that he does not wish to be present, when witnesses are examined and he also does not want to cross examine any witnesses. With regard the 2[nd] contention, the Central Government Counsel submits that although there is no specific averment anywhere that copy of the enquiry report was given to the petitioner, the petitioner was free to peruse the same at any time which was available in the records. 4. I have considered the rival contentions in detail. W.P.(C)No.2164/09 4 5. As far as the technical contention raised by the Central Government Counsel is concerned, I do not think that the same would be applicable to this case. Admittedly, at the relevant time, what was in force is Ext.P14 rules framed by the Naval Command. It is also not disputed before me that the petitioner was appointed by the respondents and he was also dismissed by the respondents. Only the appointing and disciplinary authorities of the petitioner can appoint the petitioner and dismiss him from service. The very fact that the respondents themselves appointed the petitioner and dismissed him, after conducting an enquiry, would show that, at the relevant time, the respondents themselves accepted the petitioner as an employee of the respondents and therefore, the respondents cannot now, based on a later Supreme Court decision, take the stand that the petitioner is not a government employee. 6. As far as the claim of the petitioner regarding the violation of principles of natural justice in the matter of examination of witnesses is concerned, I am not considering the same in this writ petition, in view of the nature of the order W.P.(C)No.2164/09 5 I propose to pass in this writ petition. 7. The respondents were not able to effectively controvert the contention of the petitioner that the petitioner was not furnished with a copy of the enquiry report before punishment was imposed on him. Going by the law laid down by the Supreme Court on the subject, it is mandatory for the disciplinary authority to serve a copy of the enquiry report on the delinquent employee giving him an opportunity to make his representation against the enquiry proceedings and the findings in the enquiry report. Since that procedure has not been followed, for that reason, Ext.P17, P23 and P25 orders are quashed. The respondents are directed to furnish the petitioner with a copy of the enquiry report of the enquiry officer and give him an opportunity to show cause against the acceptance of the enquiry report on the basis of all contentions including the contention now raised before me that the petitioner was not given an opportunity to cross examine the witnesses examined in the enquiry. Fresh orders shall be passed, after considering the representation of the petitioner against the enquiry proceedings and the enquiry report, after 6 W.P.(C)No.2164/09 giving the petitioner a copy of the enquiry report, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.2164/09 7