S. Murugeswari v. Surveyor General of India & Others (OP (CAT) No. 234 of 2016 (Z))

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 30TH DAY OF AUGUST 2016/8TH BHADRA, 1938 **OP (CAT).No. 234 of 2016 (Z) -----------------------------** AGAINST THE ORDER IN OA 640/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 07.04.2016 PETITIONER/APPLICANT: ------------- S. MURUGESWARI OFICER SURVEYOR (GROUP 'B' GAZETTED), K & L GDC, CGO COMPLEX, POONKULAM, VELLAYANI PO, THIRUVANANTHAPURAM 695523, (NOW WORKING AS OFFICER (GROUP 'B' GAZETTED) KARNATAKA GEO SPATIAL DATA CENTRE (KGDC), SARJAPUR ROAD, KORAMANGALA, IIND BLOCK, BANGALURU 560034) BY ADVS.SRI.P.RAMAKRISHNAN SMT.PREETHI KESAVAN SRI.T.C.KRISHNA SRI.C.ANIL KUMAR SMT.ASHA K.SHENOY SRI.PRATAP ABRAHAM VARGHESE RESPONDENT(S): -------------- 1. SURVEYOR GENERAL OF INDIA APPOINTING & DISCIPLINARY AUTHORITY, SURVEYOR GENERAL'S OFFICE, PO BOX NO. 37, DEHRADUN 248001, UTTARANCHAL STATE 2. THE SECRETARY TO GOVERNMENT OF INDIA CUM APPELLATE AUTHORITY, DEPARTMENT OF SCIENCE & TECHNOLOGY, TECHNOLOGY BHAVAN, NEW MEHRUAULI ROAD, NEW DELHI 110016 3. J.B.PRADHAN SUPERINTENDING SURVEYOR (RTD), ENQUIRY OFFICER, KARNATAKA GEO SPATIAL DATA CENTRE, KORAMANGALA II BLOCK, BANGALORE 560034 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 30-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 234 of 2016 (Z) ----------------------------- ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ----------------------EXHIBIT P1 TRUE COPY OF OA.NO. 180/00640/2013 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM, BENCH WITH ANNEXURES EXHIBIT P2 TRUE COPY OF COMMUNICATION NO. 23/JBP DATED 12.02.2011 EXHIBIT P3 TRUE COPY OF REPLY DATED 22.02.2011 SUBMITTED BY THE PETITIONER EXHIBIT P4 TRUE COPY OF REPLY STATEMENT FILED BY THE RESPONDENTS IN OA.NO. 180/00640/2013 EXHIBIT P5 TRUE COPY OF REJOINDER FILED BY THE PETITIONER IN OA.NO. 180/00640/2013 EXHIBIT P6 TRUE COPY OF ORDER DATED 07.04.2016 IN OA.NO. 180/00640/2013 RESPONDENT(S)' EXHIBITS NIL ----------------------- ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. **O.P.(CAT)234 OF 2016** ......................................................................... **Dated this the 30[th] August, , 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Grievance is in respect of the verdict passed by the CAT, in O.A.No.640 of 2013, whereby the domestic enquiry ordered against the petitioner (which ultimately led to the finding of guilt in respect of '6' out of '8' charges, leading to the punishment), has been intercepted , at the same time, directing the Employer to continue the enquiry from the stage of 'cross examination' and to take it to the logical conclusion, based on the evidence. According to the petitioner, the entire proceedings ought to have been set aside by the Tribunal. Hence the challenge in this O.P. 2. Heard the learned counsel for the petitioner at length, who submits that there was procedural lapse right from the beginning, in total violation of principles of natural justice and the relevant provisions of law. It is also pointed out that the course pursued by the respondents was nothing but an abuse of process, **2** ## **O.P.(CAT)234 OF 2016** adding that the petitioner was proceeded against merely on victimisation. It is stated that the petitioner is totally innocent in all respects and that the charges levelled against are rather flimsy because of hatred and ill-will maintained by the person concerned, which was pointed out then and there in the course of proceedings. 3. Going by the contents of the O.P., it is seen that the department initiated disciplinary action against the petitioner in respect of some alleged misconduct . It was accordingly, that a charge memo was issued raising as many as 8 charges. The petitioner submitted detailed explanation stating that she was innocent in all respects. Since the explanation was not satisfactory, the department decided to conduct a domestic enquiry. It is the case of the petitioner, that she had made an application to obtain copies of some documents which were quite relevant, according to her. But the same was not served upon her. It is also pointed out that after completing the chief examination, the petitioner was never permitted to cross examine the concerned witnesses effectively and the enquiry **O.P.(CAT)234 OF 2016** **3** was finalised by the Enquiry Officer in a pre-determined manner, ultimately finding the petitioner guilty of '6' charges, out of '8' charges. Based on the finding in the enquiry, the disciplinary authority imposed the punishment of barring three increments with cumulative effect. Being aggrieved of the said order, the matter was proceeded further by filing appeal before the appellate authority. After considering the materials on record, the appellate authority reduced the punishment by making it without cumulative effect. This was sought to be challenged by filing O.A.No.640 of 2013 before the Tribunal. During the course of hearing violation of principles of natural justice was substantiated by the petitioner . The Tribunal set aside the finding in the enquiry, the orders passed by the disciplinary authority and also the appellate authority. However, the department was permitted to proceed with further steps from the stage of cross examination, virtually reviving the entire proceedings , compelling the petitioner to face the ordeal, which allegedly has caused much loss and hardship to the petitioner and hence the challenge . **4** ## **O.P.(CAT)234 OF 2016** 4. The learned counsel submits that the appellate authority itself ought to have interfered with the punishment and set the petitioner free; whereas he has mechanically reduced the punishment, changing the reduction of three increments ' **with'** cumulative effect to reduction of three increments **' ' without** cumulative effect. On challenging the said order, especially on establishing violation of principles of natural justice, the Tribunal ought to have granted the reliefs in toto, where it has gone wrong and hence seeks for indulgence of this Court to intercept the order. 5. By virtue of the order passed by the Tribunal, the adverse finding in the enquiry and the orders passed by the disciplinary authority and appellate authority are no more and that the matter has to be considered afresh. The question is whether the department should be permitted to continue the proceedings. It is relevant to note that there is insinuation against the petitioner as per Annexure A17, where '8' different charges have been given. It is the burden of the Department to substantiate the charges by adducing evidence. This being the **O.P.(CAT)234 OF 2016** **5** position, it cannot now be said- whether the petitioner is innocent or not, which depends upon the outcome of the enquiry to be conducted in accordance with the relevant norms. The only point to be considered is whether the Tribunal should have quashed the entire proceedings for violation of the principles of natural justice. 6. It is true that a specific contention was raised by the petitioner in the O.A., especially in Ground 'F' and elsewhere that the petitioner was never permitted to cross examine the witnesses effectively, which vitiated the enquiry and in turn the orders passed in furtherance thereto. This aspect has been considered by the Tribunal and held that there was some force in the said submission and it was accordingly, that the contention of the petitioner was accepted, finding that an opportunity had to be given to the petitioner to cross examine the concerned witnesses; thus intercepting the enquiry report and the consequential orders. Law is well settled that, if there is any infringement of principles of natural justice in conducting domestic enquiry, that by itself will not vitiate the enquiry. The **6** ## **O.P.(CAT)234 OF 2016** prejudice has to be established by the party concerned and on establishing the prejudice, the enquiry has to be commenced and continued from the stage where the violation has occurred. This is the law declared by the Supreme Court in **AIR 1994 SC 1074 (Managing Director, ECIL vs. B. Karunakar).** 7. In the said circumstance, we find that there is nothing wrong on the part of the Tribunal in having passed the order under challenge. The contention raised by the petitioner in this regard is thoroughly wrong and misconceived. Accordingly, interference is declined and the Original Petition is dismissed. 8. We make it clear that the application, if any, preferred by the petitioner for supply of copies of the documents, shall be considered in the course of enquiry and the petitioner shall be given copies of the same, if any such document is sought to be relied on by the Department in the enquiry. The law declared by the Supreme Court in this regard is to the effect that copies of the documents required to be served to the delinquent employee, are only those documents, which are sought to be relied on by the Management.(See **(2006)3 SCC 150 (** _**Syndicate Bank and**_ **7** ## **O.P.(CAT)234 OF 2016** ## _**others vs. Venkatesh Gururao Kurati**_ **)** . With the above observations, the Original Petition stands dismissed. **P.R. RAMACHANDRA MENON, JUDGE** **ANIL K. NARENDRAN, JUDGE** lk