Richard S. Austin v. Kerala State Civil Supplies Corporation and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE EASWARAN S.`** ``` MONDAY, THE 15[TH] DAY OF JULY 2024 / 24TH ASHADHA, 1946 ``` ## **`WP(C) NO. 17924 OF 2013`** ## **`PETITIONER/S:`** ``` RICHARD S.AUSTIN FORMERLY ASSISTANT SALESMAN, KERALA STATE CIVIL SUPPLIES CORPORATION, RESIDING AT ANUGRAHA, KOMALAMKUNNU, PUNALUR. ``` ``` BY ADVS. SRI.K.JAJU BABU SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SMT.M.U.VIJAYALAKSHMI ``` ## **`RESPONDENT/S:`** - **`1 KERALA STATE CIVIL SUPPLIES CORPORATION MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, COCHIN-682 020, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.`** - **`2 THE CHAIRMAN AND MANAGING DIRECTOR KERALA STATE CIVIL SUPPLIES CORPORATION, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, COCHIN-682 020.`** - **`3 THE REGIONAL MANAGER SUPPLYCO REGIONAL OFFICE, T.C.NO.24/469, PRS ROAD,THYCAUD, TRIVANDRUM 695 014.`** ``` 4THE DEPOT MANAGER KERALA STATE CIVIL SUPPLIES CORPORATION DEPOT, PUNALUR 691 306. 5STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, FOOD AND CIVIL SUPPLIES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001. ``` W.P.(C ) No.17924 of 2013 2 ``` BY ADV SMT.MOLLY JACOB,SC,SUPPLYCO ``` ## **`SR GP SRI T K VIPINDAS`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C ) No.17924 of 2013 3 ## **EASWARAN S. , J.** ## **-------------------------** ## **W.P.(C) No.17924 of 2013** ## **----------------------------------Dated this the 15th day of July 2024** ## **JUDGMENT** The petitioner being visited with a departmental enquiry is still at dark, as to the reason why the disciplinary authority decided to accept the enquiry report, because the copy of the same was not furnished to him. However, at the appellate stage, the same was furnished to him and this Court is required to consider as to whether the action of the respondents in supplying the copy of the enquiry report at the appellate stage is sufficient compliance of Principles of Natural Justice. 2. The petitioner was visited with a disciplinary proceedings as per Ext.P8 memo of charges. On 30.6.2009, the petitioner was suspended. After the issuance of the memo of charges, on 17.5.2010, the 3rd respondent appointed an enquiry officer and the W.P.(C ) No.17924 of 2013 4 enquiry was proceeded with. On 17.7.2010, the petitioner was summoned and accordingly, the statement of the petitioner was taken. On 10.5.2011, a show cause notice was issued to the petitioner stating that the enquiry officer had submitted a report on 13.10.2010. The petitioner was not admittedly served a copy of the enquiry report but still the petitioner submitted an objection to Ext.P9 notice to show cause. By Ext.P11 dated 12.7.2011, the petitioner was fastened with a liability of Rs.15,90,000/- towards the loss caused by him because of the misconduct charged against him. Thereafter, the petitioner was imposed with a punishment of dismissal from service by order dated 11.6.2012. The petitioner preferred Ext.P13 statutory appeal on 19.7.2012. Thereafter the petitioner was served with a notice proposing revenue recovery action against him as Ext.P14. The petitioner immediately W.P.(C ) No.17924 of 2013 5 approached this Court by filing W.P.(C) No.20932 of 2012 and the same was disposed of by Ext.P15 judgment dated 11.9.2012 ordering that during the pendency of the petitioner's appeal, the coercive proceedings against him shall not be pursued by the respondents. Thereafter, the petitioner was personally heard by the Managing Director. While so, the petitioner was served with a copy of the enquiry report on 15.2.2013. By order dated 16.4.2013, the 1st respondent rejected the appeal. Challenging Exts.P7, P8, P9, P11, P12, P14, P17 and P21 that the petitioner has approached this Court by filing the present Writ Petition under Article 226 of the Constitution of India. 3. A counter affidavit has been filed on behalf of the 1st respondent. The 1st respondent has taken a definite stand that the copy of the enquiry report was not served on the petitioner but, W.P.(C ) No.17924 of 2013 6 however maintains that it was not obliged to serve the copy of the enquiry report and it was for the petitioner to have demanded a copy of the report. It is only during the pendency of the appeal that a copy of the report was sought for, accordingly, the same was granted and hence the proceedings against the petitioner are sought to be justified. 4. I have heard Sri. Brijesh Mohan, the learned counsel appearing for the petitioner and Smt. Molly Jacob, the learned counsel appearing for the respondents. I have considered the rival submissions raised across the Bar. 5. The compliance of Principles of Natural Justice is one of the basic tenets of law. In so far as service jurisprudence is concerned, the Principles of Natural Justice forms the basic structure of the proceedings. More particularly in the realm of the disciplinary W.P.(C ) No.17924 of 2013 7 proceedings, adherence to the Principles of Natural Justice is considered to be of paramount importance. 6. The requirement of law as expounded by various judgments of the High Courts as well as the Honourable the Supreme Court mandate that as soon as the disciplinary proceedings are culminated the delinquent employee is served with a copy of the enquiry report and the disciplinary authority solicits an explanation from the delinquent employee as to why the findings of the enquiry officer shall not be accepted by the disciplinary authority. This requirement is absolute in so far as every establishment is concerned, be it the Central or State Government or its instrumentality or private institution. That being so, this Court has to consider the question in the light of the categoric assertion of the respondents in their counter affidavit that the copy of the enquiry report need not be W.P.(C ) No.17924 of 2013 8 served on the petitioner and it is for him to seek for such copy. 7. The law being succinctly stated above, it is worthwhile to note few of the judicial pronouncements on the point. On coming into force the 42nd amendment to Article 311(2) of the Constitution of India doing away with the second stage of show cause notice to a delinquent employee, the Hon’ble Supreme Court considered the issue as to whether the copy of the enquiry report has to be served on the delinquent irrespective of the right of hearing against the proposed punishment being taken away. In **Union of India Vs Mohammed Ramzan Khan [(1991) 1 SCC 588],** the Apex Court was called upon to answer the issue. In paragraph 15 of the Judgment, the Apex Court held as follows. “ 15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the W.P.(C ) No.17924 of 2013 9 second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.” ## 8. Later in **Manager Director ECIL Vs B Karunakar [(1993)** **4 SCC 727],** the Apex Court was called upon to decide whether the W.P.(C ) No.17924 of 2013 10 copy of the enquiry report is required to be furnished mandatorily to the delinquent even without asking for it. Para 7 and 9 of the aforesaid Judgment is extracted herein below: What are the duties of the enquiry officer appointed by the disciplinary authority to conduct the inquiry, is the next question and this Court in A. N. D'Silva v. Union of India (1962) Supp 1 SCR 968 ,977: (AIR 1962 SC 1130 at p. 1134) has in terms held that the question of imposing punishment can only arise after inquiry is made and the report of the enquiry officer is received. It is for the punishing authority to propose the punishment and not for the inquiring authority to do so. The latter has, when so required, to appraise the evidence, to record its conclusion and if it thinks proper to suggest the appropriate punishment. But neither the conclusion on the evidence nor the punishment which the inquiring authority may regard as appropriate is binding upon the punishing authority. In that case, the charge served upon the delinquent officer by the enquiry Officer itself incorporated the proposed punishment. Hence it was also observed that in the communication addressed by the enquiry officer the punishment proposed to be imposed upon the appellant if he was found guilty of the charges, could not properly be set out. Two things, therefore, emerge from this decision, viz., that it is not the function of the enquiry officer to propose any punishment even after he records findings of guilt against the delinquent W.P.(C ) No.17924 of 2013 11 employee. Much less can the Inquiry Officer do so at the stage of serving the charges on the employee. Secondly, it is for the disciplinary authority to propose the punishment after receipt of the report of the Inquiry Officer which suggests that before the authority proposes the punishment, it must have applied its mind to the evidence and the findings recorded by the enquiry Officer. Xxx 9. In Avtar Singh, Police Constable v. Inspector General of Police, Punjab, 1968 SLR 131 (SC) admittedly the findings of the enquiry officer were not communicated to the delinquent employee and he was only orally told that it was proposed to dismiss him. The Court in this context held that every public servant is entitled to have the whole of the matter brought to his notice before he was asked to show cause why particular punishment should not be meted out to him. The Court has explained what it meant by "the whole of the matter" by stating that it is the findings on the charges against him which should be made known to him. 9. On a cumulative reading of the above Judgments, the points that emerge are, i) the delinquent is entitled for a copy of the enquiry report before the disciplinary authority decides on the question as to whether the report is to be accepted or not. ii) the W.P.(C ) No.17924 of 2013 12 delinquent is entitled to copy of the report irrespective as to whether he has sought for the copy of the same or not. iii) non furnishing of the same violates Article 14 of the Constitution of India and certainly infringes the Principle of Natural Justice. 10. The requirement of issuance of show cause notice before the imposition of the punishment does not mean that the delinquent is not entitled to the copy of the enquiry report. Therefore this Court has no hesitation to hold that the respondent miserably failed to adhere to the Principles of Natural Justice. The argument of the respondents that the copy of the enquiry report was furnished at the appellate stage and hence there is no prejudice caused to the petitioner is not only fallacious but also preposterous for the reason that once the violation of the Principles of Natural Justice has occasioned, the same cannot be attempted to be cured at the W.P.(C ) No.17924 of 2013 13 appellate stage. Therefore this Court has to necessarily reject the above contention. 11. However, having held so, this Court is also mindful of the fact that the petitioner has to establish prejudice in not having access to the copy of the enquiry report. The finding on this point would decide the further course of relief to which the petitioner is entitled. 12. On a perusal of the reply to the show cause notice to the proposed punishment against the petitioner, it is evident that the petitioner has raised certain pertinent points regarding the decision to proceed against him for the alleged recovery. However, while considering the same and issuing the order of imposition of penalty, the disciplinary authority had relied on other documents as well. On receipt of the enquiry report, the petitioner found that apart from W.P.(C ) No.17924 of 2013 14 certain questions put to him, the enquiry officer has relied on various other evidence which were taken behind the back of the petitioner. Such an exercise certainly infringes the right of the delinquent and prejudice is certainly established by the petitioner. 13. Having thus found that there is serious violation of the Principles of Natural Justice in so far as the proceedings against the petitioner are concerned, and that prejudice being established, what should be the next course of action to be taken in this regard? Should this Court interfere with the proceedings and leave the parties as such or should this Court issue further directions. Normally, the violation of Principles of Natural Justice should entail the entire proceedings be set aside. However, it now settled law that the proceedings have to commence from where the violation of Principles of Natural Justice occurred. Here, in this case, since the W.P.(C ) No.17924 of 2013 15 copy of the enquiry report was not served and the disciplinary authority did not issue notice to show cause as to why the findings of the enquiry officer should not be accepted, the proceedings has to restart from that point of time. 14. In view of the aforesaid discussion, the petitioner is entitled to succeed. Orders impugned in the Writ Petition cannot be sustained. Accordingly, Exts.P9, P11, P12, P14 and P21 are quashed. The petitioner is liable to be afforded an opportunity to show cause against Ext.P17 report of enquiry. Hence the following directions are issued. 1.Now that the petitioner has been served with the copy of the enquiry report, he shall be afforded an opportunity to show cause against the same by filing his objection/reply. W.P.(C ) No.17924 of 2013 16 - 2.Petitioner shall file his objection/reply to the enquiry report within a period of one month from the date of receipt of a copy of this judgment. - 3.On receipt of the objection/reply from the petitioner, the 3rd respondent shall consider the same and take a decision taking note of the contention raised by the petitioner that he was not given an opportunity to cross examine the witnesses. The petitioner shall be afforded an opportunity of hearing also by the 3rd respondent. - 4.On consideration of the objection filed by the petitioner, if the 3rd respondent finds that there W.P.(C ) No.17924 of 2013 17 are grounds which exist to proceed further, he may proceed in accordance with law. 5.Orders in this regard shall be passed by the 3rd respondent within a period of three months from the date of receipt of the objection filed by the petitioner as directed above. Writ Petition is Allowed as above. No orders as to costs. Sd/- **EASWARAN S. JUDGE** NS W.P.(C ) No.17924 of 2013 18 ## **`APPENDIX OF WP(C) 17924/2013`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE APPOINTMENT OF THE PETITIONER VIDE NO.D6-15000/88 DATED 23.6.1989 ISSUED BY THE 1ST RESPONDENT. ``` - **`EXHIBIT P2 TRUE COPY OF THE LIST OF THE QUALIFIED CANDIDATES ISSUED BY THE 1ST RESPONDENT.`** - **`EXHIBIT P3 TRUE COPY OF THE CIRCULAR (HELPERS SERVICE RULES 1978) ISSUED BY THE 1ST RESPONDENT.`** - **`EXHIBIT P4 TRUE COPY OF THE KERALA STATE CIVIL SUPPLIES CORPORATION HELPER RULES 1978 ISSUED BY THE 1ST RESPONDENT.`** - **`EXHIBIT P5 TRUE COPY OF THE ORDER VIDE NO.B1/6875/03 (1) DATED 7.07.2006 ISSUED BY THE 3RD RESPONDENT.`** - **`EXHIBIT P6 TRUE COPY OF THE CIRCULAR NO.95/2002 DATED 07.11.2002 ISSUED BY THE 1ST RESPONDENT.`** - **`EXHIBIT P7 TRUE COPY OF THE ORDER NO.T3-2756/09 DATED 30.06.2009 ISSUED BY THE 3RD RESPONDENT.`** - **`EXHIBIT P8 TRUE COPY OF THE MEMO OF CHARGES VIDE NO.T3-2756/09 DATED 9.3.2010 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.`** - **`EXHIBIT P9 TRUE COPY OF THE SHOW CAUSE NOTICE VIDE NO.T32756/09 DATED 10.5.2011 ISSUED BY THE 3RD RESPONDENT.`** - **`EXHIBIT P10 TRUE COPY OF THE EXPLANATION DATED 3.8.2011 IN SHOW CAUSE NOTICE NO.T3-2756/09 DATED 10.5.2011 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.`** - **`EXHIBIT P11 TRUE COPY OF THE DEMAND NOTICE DATED 12.07.2011 VIDE NO.T3-2756-09 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.`** - **`EXHIBIT P12 TRUE COPY OF THE ORDER NO.T3-2756/09 DATED 11.06.2012 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.`** - **`EXHIBIT P13 TRUE COPY OF THE APPEAL MEMORANDUM DATED 19.7.2012 SUBMITTED BY THE PETITIONER BEFORE THE BOARD OF DIRECTOR OF THE 1ST RESPONDENT CORPORATION.`** - **`EXHIBIT P14 TRUE COPY OF THE REVENUE RECOVERY NOTICE NO.A4590/08 DATED 17.8.2012 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.`** ``` EXHIBIT P15TRUE COPY OF THE JUDGMENT DATED 11.09.2012 IN W.P(C) NO.20932/2012 OF THIS HON'BLE COURT. ``` W.P.(C ) No.17924 of 2013 19 ``` EXHIBIT P16TRUE COPY OF ARGUMENT NOTE IN NOTICE NO.D 21.10705/09 DATED 9.1.2013 SUBMITTED BY THE PETITIONER ON 16.01.2013 BEFORE THE BOARD OF DIRECTOR OF THE 1ST RESPONDENT CORPORATION. EXHIBIT P17TRUE COPY OF THE COMMUNICATION NO.D 21.10705/09 DATED 15.2.2013 ALONG WITH ENQUIRY REPORT ISSUED BY THE 3RD RESPONDENT. EXHIBIT P18TRUE COPY OF THE WRITTEN SUBMISSION SUBMITTED BY THE PETITIONER ON 15.04.2013 IN NOTICE NO. D 21.10705/09 DATED 09.01.2013 AND 28.2.2013 BEFORE THE BOARD OF DIRECTORS OF THE 1ST RESPONDENT CORPORATION. ``` ``` EXHIBIT P19TRUE COPY OF THE WRITTEN SUBMISSION IN MALAYALAM SUBMITTED BY THE PETITIONER ON 15.04.2013 IN BEFORE THE BOARD OF DIRECTORS OF THE 1ST RESPONDENT CORPORATION. ``` ``` EXHIBIT P20TRUE COPY OF THE AFFIDAVIT AND I.A.NO.1608/2013 IN W.P.(C) NO.20932/2013 FILED BY THE CORPORATION DATED JANUARY, 2013 BEFORE THIS HON'BLE COURT. EXHIBIT P21TRUE COPY ORDER NO. D21.10705/09 DATED 16.04.2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P22TRUE COPY OF THE JUDGMENT DATED 06.11.2002 IN W.A.NO.2678/2002 OF THIS HON'BLE COURT. EXHIBIT P23TRUE COPY OF THE ORDER NO.D21-15426/13 (2) DATED 06.06.2013 ISSUED BY THE 2ND RESPONDENT. ``` ## **`RESPONDENT EXHIBITS`** ``` EXHIBIT R1TRUE COPY OF LETTER DATED 8/3/2007 OF PETITIONER ADDRESSED TO THE ASSISTANT MANAGER, TALUK OFFICE, PUNALUR. EXHIBIT R1TRUE COPY OF CIRCULAR NO.73/06 DT. 16.8.2006 ISSUED BY MANAGER(AUDIT) ```