V.R.RADHADEVI v. District Collector, Thrissur & Others

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 8[TH] DAY OF JULY 2021 / 17TH ASHADHA, 1943** **WP(C) NO. 20725 OF 2011** ## **PETITIONER:** **V.R.RADHADEVI** **YEARS, ACCOUNTS ASSISTANT, NIRMITHI KENDRA,, THRISSUR (SERVICE TERMINATED AS PER ORDER, DATED 30.04.2011), RESIDING AT PANDARAPARAMBIL,, P.O.VELLAPPAYA, THRISSUR-680596.** ## **BY ADV SRI.R.SREERAJ** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR THRISSUR, PIN-680001.** **2 THE REVENUE DIVISIONAL OFFICER SECRETARY, NIRMITHI KENDRA, THRISSUR-680001.** **3 THE PROJECT MANAGER NIRMITHI KENDRA THRISSUR-683001.** ## **OTHER PRESENT:** **SRI. SUNIL KUMAR KURIAKOSE - GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 20725 OF 2011** **2** **CR** ## **J U D G M E N T** This is not the first case where disciplinary proceedings have been assailed for the reason that it has been concluded unmindful of the imperative statutory or legal procedure and this may, perhaps, be the last either. 2. However, what renders the allegations in this writ — petition a little different is that the respondents appear as is — virtually conceded to have conducted and concluded a disciplinary enquiry in absolute ignorance of all established procedure; thus compelling this Court to sit up and notice it. 3. A wood cut of the facts, to begin:- The petitioner, while working as the Accounts Assistant in “Nirmithi Kendra”, Thrissur, was terminated from service through Ext.P12 order dated 30.04.2011, finding that certain charges of grievous misconduct have been proved against her in disciplinary enquiry. 4. The petitioner's specific case, as argued by her learned — counsel Sri.R.Sreeraj, is that the enquiry stated to have been **WP(C) NO. 20725 OF 2011** **3** conducted against her was only “a camouflage, a smoke screen, just to authenticate the illegal, unjust, arbitrary, unreasonable and irrational decision taken by the Executive Committee to terminate the services of the petitioner”.(Sic) 5. Sri.R.Sreeraj, thereafter, submitted that the enquiry proceedings in its entirety is vitiated and contrary to every tenet of Administrative Law, because his client was not given any opportunity of cross-examining the witnesses, whose statements/testimonies have been relied upon by the Enquiry Officer; nor were the copies of such depositions even given to her. He further alleged that his client was not favoured with the copies of the records or the files relied upon against her in the enquiry; and that, to further exacerbate the situation, she was not even given an opportunity to adduce evidence on her own behalf. 6. Sri.R.Sreeraj, therefore, relied upon the judgment of the Hon'ble Supreme Court in **State Bank of Patiala & others v. S.K.Sharma [1996 (3) SCC 364],** to argue that the aforementioned opportunities are so vital and fundamental in its nature that it cannot be even waived at the option of the delinquent; thus rendering the impugned proceedings untenable and without legs to stand on in the eyes of law. He, therefore, **WP(C) NO. 20725 OF 2011** **4** prayed that Ext.P12 be set aside and his client be directed to be reinstated with full benefits. 7. The afore contentions of Sri.Sreeraj were vehemently refuted by the learned Government Pleader - Sri.Sunil Kumar Kuriakose, by inviting my attention to certain documents produced on record by him, along with his memo dated 24.06.2021. He tried to impress upon me that a report of the inspection conducted into the affairs of the “Nirmithi Kendra”, by the District Finance Inspection Squad, Thrissur, has brought to light certain shocking instances of misdemeanour from its employees, including the petitioner. He showed me that said report indicates large scale squandering and misappropriation of the finances of the “Nirmithi Kendra”; and thus contended that the enquiry proceedings against the petitioner is irreproachable. 8. Sri.Sunil Kumar Kuriakose, thereafter, took me through the statements of the witnesses, particularly that of certain Smt.Anitha Francis, who was the then Associate Project Engineer, wherein, she has itemized the various instances of misappropriation of money by the petitioner. He submitted that misconduct of the petitioner was so dire that no reasonable man or Authority could have imposed a punishment lesser than **WP(C) NO. 20725 OF 2011** **5** termination. He says that this is exactly what the enquiry officer has recommended through Ext.P10 report and that the same was accepted by the disciplinary Authority, thus leading to Ext.P12 order removing her from service. The learned Government Pleader, therefore, prayed that this writ petition be dismissed. 9. The afore contentions of the rival parties being so recorded, I now proceed to examine the materials and documents available on record. 10. The most vital of the documents relied upon by the “ respondents is Ext.P10, which is styled a അന��ഷണ ”. റ�ന��ർട� When one examines this, it becomes rather difficult to contest that it is not in the nature of an enquiry report, as is warranted under the provisions of the applicable Regulations or the canons of the Administrative Law, but an investigative one. 11. I am persuaded to say so because, in Ext.P10, the Enquiry Officer certainly refers to the statements of various persons whom he refers to as witnesses, as also various documents; but it is conspicuously absent therein as to whether these documents were marked in evidence or whether the witnesses were examined by the Presenting Officer and allowed to **WP(C) NO. 20725 OF 2011** **6** be cross-examined by the petitioner. To make things worse, the report does not even mention about the presence of a Presenting Officer or a list of witnesses or document; but the Enquiry Officer then goes on to conclude that the petitioner is guilty of the all charges against her, thus recommending her removal from service. 12. I do not need to say it specifically, but an enquiry against the petitioner could have been conducted only as per the provisions of the applicable Regulations or as per the General Administrative Law, which attracts its purlieus in the case of all such proceedings. It was necessary that petitioner was given a proper opportunity of going through the documents; of contesting them; of examining and cross-examining the witnesses; and also to produce the documents in her defence, if she had any. This would have required the Enquiry Officer to first ask the parties to file their list of witnesses and documents and then to have proceeded to mark the documents and to record the deposition/statement of witnesses, offering the petitioner an opportunity of crossexamination and to lead evidence on her side **.** 13. Shockingly, however, Ext.P10 demonstrates that nothing of this kind was done and that the Enquiry Officer **WP(C) NO. 20725 OF 2011** **7** proceeded to conduct an investigation of his own, as if he was an — Investigating Officer; and then concluded based on certain materials, statements, documents and decisions of the Executive Committee — which he himself compiled — that all charges have been proved against the petitioner. 14. It does not, therefore, require any further expatiation that Ext.P10 order can never subscribe itself to the definition of an Enquiry Report; and consequently, the entire proceedings against the petitioner will have to be found unlawful and illegal. 15. That said, the allegations against the petitioner are, as correctly stated by the learned Government Pleader, very serious and grievous. This is not to mean for a moment that I have concluded that she is guilty, but am certain that she cannot be ordered to be reinstated or exonerated without a proper enquiry being conducted into the same. This is more so because, the petitioner is alleged to have misappropriated public money; and hence, merely because the Enquiry Officer and other Authorities did not know how to conduct and conclude a proper disciplinary action against her, she cannot be allowed to walk free with the umbra of imputations still following her. 16. Presumably discerning the mind of this Court, Sri.Sunil **WP(C) NO. 20725 OF 2011** **8** Kumar Kuriakose, the learned Government Pleader, submitted that if this Court is not inclined to approve Exts.P10 and P12, then an opportunity may be given to the competent Authority to conduct a de novo enquiry against the petitioner, based on the charges impelled against her earlier. He submitted that this enquiry can be conducted within the shortest possible time, especially because the matter has been awaiting final adjudication before this Court for the last ten years. 17. On hearing the learned Government Pleader as afore and understanding the mind of this Court as above, the learned counsel for the petitioner, Sri.R.Sreeraj, agreed that his client will face a fresh enquiry; but prayed that same be directed to be completed in not more than four months time. Taking note of totality of the circumstances above, I allow this writ petition and set aside Exts.P10 and P12 report and order respectively; with a consequential direction to the competent Authority to conduct a de novo enquiry, based on the charges originally made against the petitioner and to complete the same, after affording all necessary opportunities to the petitioner as per law, without any avoidable delay but not later than four months from the date of receipt of a copy of this judgment. **WP(C) NO. 20725 OF 2011** **9** Even though I have set aside Ext.P12, I make it clear that the petitioner will not be entitled for immediate reinstatement in service and that status quo with respect to her position will continue until such time as the de novo enquiry is completed; however, clarifying that if it is not concluded within the time frame granted herein, she will be entitled to seek reinstatement after its expiry. It is needless to say that petitioner shall co-operate fully with the de novo enquiry and should she be found wanting in her cooperation, the respondent will be at liberty to complete the same, recording it appositely in the resultant proceedings. This writ petition is thus ordered. Sd/- **DEVAN RAMACHANDRAN JUDGE** rp **WP(C) NO. 20725 OF 2011** **10** ## **APPENDIX OF WP(C) 20725/2011** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE MEMO NO.A1/NOTICE/2007(5) DATED**| |---|---| ||**12.2.2008 ISSUED BY THE 3RD RESPONDENT**| |**EXHIBIT P2**|**TRUE COPY OF THE EXPLANATION DATED 18.2.2008 SUBMITTED**| ||**BY THE PETITIONER IN RESPONSE TO EXHIBIT p-1 MEMO**| |**EXHIBIT P3**|**TRUE COPY OF THE ORDER NO. ADM-12/ENQUIRY/2008 DATED**| ||**1.3.2008 ISSUED BY THE 2ND RESPONDENT**| |**EXHIBIT P4**|**TRUE COPY OF THE MERCY PETITION DATED 9.7.09 SUBMITTED**| ||**BY THE PETITIONER TO THE 1ST RESPONDENT**| |**EXHIBIT P5**|**TRUE COPY OF THE REPORT SUBMITTED BY THE 3RD**| ||**RESPONDENT TO THE 1ST RESPONDENT**| |**EXHIBIT P6**|**TRUE COPY OF THE MEMO OF CHARGES NO.-ADM-**| ||**12/ENQUIRY/2008 DATED 8.5.2009 AND SIGNED BY THE 2ND**| ||**RESPONDENT ON 23.7.2009**| |**EXHIBIT P7**|**True copy of the written statement of defense**| ||**submitted by the petitioner to the 2nd respondent on**| ||**18.8.2009.**| |**EXHIBIT P8**|**TRUE COPY OF THE LETTER NO:C2-34583/09/L. DIS DATED**| ||**7.10.09 ISSUED BY THE 1ST RESPONDENT.**| |**EXHIBIT P9**|**TRUE COPY OF THE JUDGMENT DATED 08.12.2010 IN W.P.(C)**| ||**34154/2010 ON THE FILE OF THIS HON'BLE COURT.**| |**EXHIBIT P10**|**TRUE COPY OF THE ENQUIRY REPORT DATED 25.04.2011**| ||**SUBMITTED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT**| ||**AND RECEIVED BY THE PETITIONER ON AN APPLICATION UNDER**| ||**THE RIGHT TO INFORMATION ACT**| |**EXHIBIT P11**|**TRUE COPY OF THE MINUTES OF THE EXECUTIVE COMMITTEE**| ||**MEETING OF NIRMITHI KENDRA THRISSUR HELD ON**| ||**28.04.2011.**| |**EXHIBIT P12**|**TRUE COPY OF THE ORDER DATED 30.04.2011 ISSUED BY THE**| ||**2ND RESPONDENT.**|