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B. Vijayakumar vs The Secretary on 28 March, 2007

Kerala High Court
B. Vijayakumar vs The Secretary on 28 March, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP No. 32348 of 2002(A)


1. B. VIJAYAKUMAR, AGED 50, S/O.
                      ...  Petitioner

                        Vs



1. THE SECRETARY, OFFICE OF THE
                       ...       Respondent

2. VIGILANCE OFFICER, KERALA STATE

3. THE CHAIRMAN, KERALA STATE HOUSING

                For Petitioner  :SRI.P.S.RAMESH KUMAR

                For Respondent  :SRI.T.R.HARIKUMAR, SC, KSHB

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :28/03/2007

 O R D E R
                            ANTONY DOMINIC, J.

                           ===============

                          O.P NO. 32348 OF 2002

                         =================


               Dated this the 28th day of March, 2007


                                J U D G M E N T

The petitioner, an employee of the Kerala State Housing

Board was proceeded against in a disciplinary proceedings and

Ext.P3 is the Memo of Charges and the Statement of Allegations.

He had submitted his written statement of defence and thereafter

an enquiry was held by the Vigilance Officer of the Board. It is

stated that the Enquiry Officer found him guilty of the charges

and submitted a report to the Disciplinary Authority. However,

the report of the Enquiry Officer is not placed on record and

therefore I am not in a position to assess the findings as

contained in the report.

2. Be that as it may, the disciplinary authority accepted

the report of the Enquiry Officer and issued Ext.P9 Show Cause

Notice, proposing to revert the petitioner to the post of Junior

Superintendent and to recover Rs.28,956/- with interest, which is

stated to have been the loss sustained by the Board. In response

to the show cause notice Ext.P9, petitioner submitted Ext.P10

OP No.32348/2002

: 2 :

reply and finally by Ext.P14 order of the first respondent,

Rs.28,956/- with 12% interest from 29/9/2001 was ordered to be

recovered from him. It was also ordered to reduce him from the

post of Accounts Officer to the post of Junior Superintendent for

two years in terms of the provisions contained in the Kerala Civil

Services (Classification, Control and Appeal) Rules, 1960.

Petitioner pursued the matter in appeal before the Appellate

Authority, the Chairman of the Board and finally by Ext.P17 order

of the Chairman, though upheld the findings of misconduct

against the petitioner, interfered with the punishment imposed by

the first respondent. Accordingly, the Chairman ordered that the

period of suspension will not be treated as duty of any kind,

during the period of his service. It was also ordered that the

reversion of the petitioner is set aside and the petitioner will have

to remit the amount as ordered by the Disciplinary Authority. It is

challenging these orders that this original petition is filed.

3. Although several contentions have been urged by the

counsel for the petitioner on the merits of the findings of the

Enquiry Officer as contained in the Enquiry Report and the order

OP No.32348/2002

: 3 :

of punishment imposed by the Disciplinary Authority as confirmed

by the Appellate Authority, in the absence of the Enquiry Report

on file, I am not in a position to deal with the contentions of the

Counsel.

4. However, one of the contentions raised by the

petitioner is that the enquiry was conducted by the Vigilance

Officer, who is not the Disciplinary Authority of the petitioner and

that, when the Enquiry Officer submitted his report to the

Disciplinary Authority, before its acceptance, the Disciplinary

Authority ought to have furnished a copy of the report of the

Enquiry Officer to the petitioner in order to enable him to

represent against the findings of the Enquiry Officer. Although this

contention has been raised in the original petition, in the counter

affidavit filed by the Board, all that they have stated in Para 6 is

that the petitioner had not orally requested for a copy of the

report and that a complaint of non furnishing of a copy of the

report has not been mentioned in Ext.P10. Reading these two

sentences in the counter affidavit which are totally evasive, I am

to conclude that the averment of the petitioner that he has not

OP No.32348/2002

: 4 :

been supplied with a copy of the report is true. If that be the

position, there is violation of the principles of natural justice and

for that reason, from that stage of proceedings, further action

taken against the petitioner will have to be invalidated.

5. For the above reason, I set aside Exts. P14 and P17

and direct the first respondent, the Disciplinary Authority to

furnish a copy of the report of enquiry to the petitioner and to

allow him an opportunity to submit his representations against

the findings in the Enquiry report. Considering the representation

so submitted by the petitioner, the Disciplinary Authority will be

free to take fresh action against the petitioner based on the report

of the Enquiry Officer and in the light of the objections of the

petitioner.

6. During the course of the arguments, it was submitted

by the counsel for the petitioner that his client will retire in two

months time. Taking note of this, it is directed that further action

as directed above shall be initiated and completed against the

petitioner within a period of six weeks. I am also told that the

amount ordered to be deposited by the petitioner pursuant to

OP No.32348/2002

: 5 :

Exhibits P14 and P17 has been deposited under protest. In view

of the order setting aside Exhibits P14 and P17, the amount

deposited by the petitioner will be appropriated based on the

conclusion of the fresh action to be initiated by the Disciplinary

Authority.

With the above observations, this original petition is

disposed of.

ANTONY DOMINIC, JUDGE.

Rp

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