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.
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O.P NO. 32348 OF 2002
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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
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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
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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
