Siyaduddeen M. T.C. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 9TH DAY OF NOVEMBER 2016/18TH KARTHIKA, 1938** **WP(C).No. 32728 of 2007 (U) ----------------------------** **PETITIONER(S):** - **-------------** **SIYADUDDEEN.M. T.C.NO.43/424, MANACADU P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA** **PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER, EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. CHAIRMAN, GOVERNING BODY, T.K.M. COLLEGE OF ENGINEERING, KOLLAM.** **3. SMT. SUCHITHRA S.NAIR, ADVOCATE, PNA KHADIR BUILDINGS, EAST OF COURT, VANCHIYOOR, THIRUVANANTHAPURAM-35.** **4. UNIVERSITY OF KERALA, THIRUVANANTHAPURAM REPRESENTED BY ITS REGISTRAR.** **5. THE KERALA UNIVERSITY APPELLATE TRIBUNAL, THIRUVANANTHAPURAM.** **R1 BY GOVERNMENT PLEADER SRI.RAJI T. BHASKAR R2 BY ADV. SRI.GEORGE POONTHOTTAM** **R4 & R5 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, BY ADV. SRI.GEORGE POONTHOTTAM,SC, R4 BY ADV. SRI.THOMAS ABRAHAM, SC, BY M.SREEKUMAR (NO MEMO)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-10-2016,THE COURT ON 09-11-2016 DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 32728 of 2007 (U)** ## **APPENDIX** - **PETITIONER'S EXHIBITS : P1: COPY OF SHOW CAUSE NOTICE DT 16/8/2005 ISSUED TO THE PETITIONER BY THE R2.** - **P2: COPY OF REPLY TO THE SHOW CAUSE NOTICE DT 5/9/2005. P3: COPY OF THE MEMO OF CHARGES DT 14/10/2005 ISSUED TO THE PETITIONER.** - **P4: COPY OF LETTER DT 22-12-2005 FROM THE R3 ENQUIRY OFFICER TO THE PETITIONER.** - **P5: COPY OF LETTER DT 18/11/2005 FROM THE PETITIONER TO THE R3.** - **P6: COPY OF LETTER DT 12/1/2006 FROM THE PETITIONER TO THE R3.** - **P7: COPY OF LETTER DT 20/1/2006 FROM THE RE TO THE PETITIONER.** - **P8: COPY OF LETTER DT 27/1/2006 FROM THE PETITIONER TO THE R3.** - **P9: COPY OF LETTER DT 14/2/2006 FROM THE PETITIONER TO THE R2.** - **P10: COPY OF THE LETTER DT 7/3/2006 TO THE PETITIONER FROM THE R2.** - **P11: COPY OF THE ENQUIRY REPORT OF THE R3 DT 28/2/2006. P12: COPY OF THE EXPLANATION DT 24/3/2006 SUBMITTED BY THE PETITIONER TO THE R2.** - **P13: COPY OF THE OBJECTIONS DT 24/3/2006 FILED by the PETITIONER TO THE ENQUIRY REPORT.** - **P14: COPY OF THE PROCEEDINGS OF THE R2 DT 24/4/2006. P15: COPY OF THE JUDGMENT OF THE KERALA UNIVERSITY APPELLATE TRIBUNAL, THIRUVANANTHAPURAM DT 30/5/2007 ISSUED TO THE PETITIONER ON 5/9/2007.** - **P16: COPY OF THE LEAVE SANCTIONING ORDER DT 19/3/2004 ISSUED BY THE R2.** **RESPONDENT'S EXHIBITS : NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **bp** ## **ANU SIVARAMAN, J.** = = = = = = = = = = = = = = = = = = = = = = = = = = **W.P.(C).No.32728 of 2007** = = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 9[th] day of November, 2016 ## JUDGMENT 1.The petitioner challenges Exhibit P14 proceedings of the 2[nd] respondent as well as Exhibit P15 order passed by the Kerala University Appellate Tribunal. Though revision is provided from orders passed by the University Appellate Tribunal under Section 60(9) of the Kerala University Act, which is to be heard by a Division Bench, since this writ petition was preferred in the year 2007 and was admitted without any objection being raised as to its maintainability, I am considering this writ petition on merits. No contention has been taken against such course of action in the pleadings or even at the time of hearing by any of the parties to this writ petition. - 2.The petitioner was working as lecturer in the Mechanical Engineering Department of the 2[nd] respondent college. He applied for Leave Without Allowances (LWA for short) for taking up employment abroad for a period of 5 years from 31.10.1993. The said leave was extended from time to time till W.P.(C).No.32728/07 2 30.10.2004. Petitioner again applied for extension of leave for a further period of four years but the said request was rejected. Thereafter, he returned and rejoined duty on 28.03.2005. He again applied for leave for a further period of 272 days from 16.06.2005 but the leave was not granted. The petitioner, however, went abroad without awaiting orders granting leave. Exhibit P1 show cause notice dated 16.06.2005 was issued intimating that action would be taken against him. The petitioner preferred a reply. However, the reply was not found satisfactory and an enquiry officer was appointed and enquiry proceeded. Petitioner made a request for postponing enquiry to any day after 14.03.2006 enabling him to participate. The said request was rejected by the enquiry officer and ex parte enquiry was conducted. By Exhibit P10, the 2[nd] respondent forwarded the enquiry report along with a show cause notice proposing the punishment of removal from service. The petitioner preferred his reply to the show cause notice with specific reference to the enquiry report. Exhibit W.P.(C).No.32728/07 3 P14 proceedings dated 24.04.2006 removing the petitioner from service w.e.f. 16.06.2005 was issued, after considering the contentions of the petitioner as well. Though an appeal was preferred before the Appellate Tribunal, the same was dismissed by Exhibit P15. The petitioner challenges Exhibit P14 order of removal and Exhibit P15 order of the Tribunal on the ground that the copy of the enquiry report has not been served on the petitioner before the disciplinary authority took a decision to accept it and imposed the penalty of removal from service. The petitioner contends that going by the decision in **Union of India v. Mohammed Ramzan Khan** [(1991)1 SCC 588] as well as in **ECIL v. B.Karunakar** [(1993) 4 SCC 727] the petitioner was entitled to receive a copy of the enquiry report and to offer his explanations on the same before the disciplinary authority decided to accept the said report. It is contended that even in cases where the rules are silent on the aspect of the two opportunities to show cause, the judgment of the Apex Court which has general application W.P.(C).No.32728/07 4 will holds the field and the punishment imposed without first giving an opportunity to the petitioner to submit his explanations on the enquiry report was vitiated. 3. The learned counsel appearing for the 2[nd] respondent would contend that the First Statutes applicable to disciplinary proceedings against employees of private colleges specifically prescribes the manner in which enquiries against teachers and non-teaching staff are to be conducted. The procedure for imposing major penalties provides for conduct of an enquiry either by the disciplinary authority or by an enquiry officer to be appointed in that regard. The First Statutes specifically provides that the disciplinary authority on receiving a report of the enquiry shall consider the same and issue a show cause notice to the delinquent employee along with a copy of the enquiry report pointing out the penalty proposed to be imposed and requiring the employee to show cause against the same. This procedure has been followed by the disciplinary W.P.(C).No.32728/07 5 authority in the instant case also. 4.I have considered the merits of the contentions raised. It is not in dispute that a copy of the enquiry report had been forwarded to the petitioner along with a notice requiring him to show cause against the proposed punishment of removal from service. I have given anxious consideration to the precedents cited by the learned counsel for the petitioner. There is no proposition of law laid down therein that after the enquiry is concluded, the enquiry report must be forwarded to the delinquent before it is accepted and an opportunity is to be given to state his case and thereafter a show cause notice is to be issued intimating the proposed punishment. The Apex Court in **Mohammed Ramzan Khan's case (supra)** only held that even after the Constitution (Forty-second Amendment) Act, a civil servant would be entitled to a copy of the enquiry report before a decision is taken to impose a penalty where the enquiry officer is not the disciplinary W.P.(C).No.32728/07 6 authority. In **ECIL's case (supra)** it was held that the 42[nd] Amendment took away the right of the employee to show cause against the proposed punishment but the employee was still entitled to receive a copy of the enquiry report before the disciplinary authority decided to accept the same. This rule was held to be applicable to non Government establishments as well. It was further held that whether prejudice was caused to the employee or not is to be considered on the facts of each case. 5.The petitioner was a person who had availed long leave from 1993 for taking up employment abroad. After the period of sanctioned leave also, the petitioner had been seeking leave on half pay and loss of pay, since, according to him, his family was still abroad. He had gone abroad without the last spell of his leave being sanctioned. Thereafter, he was informed of the initiation of the disciplinary proceedings for unauthorised absence against him in 2005. He had submitted his reply and W.P.(C).No.32728/07 7 had also requested that the enquiry be postponed to a date after 14.03.2006 to enable him to participate, since he was abroad. The petitioner therefore admits to the position that he was not in the country when the proceedings had been initiated against him. The petitioner's request for adjournment of the proceedings was rejected. His reply was considered in detail and an enquiry report was submitted finding him guilty as charged. Copy of the enquiry report was forwarded along with a show cause notice bearing a punishment of removal was proposed by the disciplinary authority. This is specifically the procedure prescribed by the statute. - 6.In the facts and circumstances of the instant case, even if the petitioner had been given a copy of the enquiry report, he would have no better defence to offer than what has been stated in his reply to the show cause notice. The Apex Court in a long line of decision starting from **Union of India v.Tulsiram Patel** [(1985) 3 SCC 398] held that even non- W.P.(C).No.32728/07 8 supply of the enquiry report would vitiate an enquiry only in a case where prejudice can be shown to have occurred to the delinquent employee by the non-supply of such report before it is accepted. This rule as to prejudice is reiterated by the Apex Court in **Haryana Financial Corporation v. Kailash Chandra Ahuja** [(2008)9 SCC 31] and **Burdwan Central Cooperative Bank Ltd. v. Asim Chatterjee** [(2012)2 SCC 641] The opportunity to offer explanation on the basis of the enquiry report is, at the first stage itself, therefore, not a complete rule of procedure in the conduct of a disciplinary enquiry. This is more so in view of the undisputed fact that a copy of the report had been forwarded along with the show cause notice and the petitioner's objection against the report were considered. - 7.Since the petitioner admits to the position that he had gone abroad without the leave sought for by him being sanctioned, I am of the considered opinion that no prejudice has been W.P.(C).No.32728/07 9 caused to the petitioner by the non-supply of the copy of the enquiry report before the disciplinary authority decided to act on the same. The supply of such report along with the show cause notice serves the requirement of observance of principles of natural justice in the facts and circumstances of the case. - 8.All other contentions raised have been considered by the Tribunal in detail. I find no illegality or procedural irregularity in Exhibit P14 order of removal or Exhibit P15 order of the Tribunal rejecting the appeal preferred by the petitioner. In the result, the writ petition fails and the same is accordingly dismissed. sd/- **Anu Sivaraman, Judge** sj