IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34691 of 2004(E)
1. K.POCKER, S/O.KUNHIKUTTY ALI HAJI,
... Petitioner
Vs
1. THE KERALA STATE FINANCIAL ENTERPRISES
... Respondent
2. THE MANAGING DIRECTOR,
3. M.K.KARTHIKEYAN,
4. SRI.P.K.RADHAKRISHNAN, ADVOCATE,
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice V.GIRI
Dated :21/10/2008
O R D E R
V.GIRI, J.
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W.P.(C).No.34691 of 2007
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Dated this the 21st day of October, 2008.
JUDGMENT
Petitioner challenges Ext.P34 order passed
by the 2nd respondent Managing Director of the
Kerala State Financial Enterprises, imposing a
punishment on him, on conclusion of disciplinary
proceedings initiated against the petitioner for a
variety of charges. Ext.P34 was challenged by the
petitioner in appeal in terms of the Standing
Orders and the same was also dismissed as per
Ext.P41 order. By Ext.P41 order, the Board of
Directors affirmed Ext.P34 order. Ext.P41 is also,
therefore, challenged in this writ petition.
2. As evidenced by Ext.P2, petitioner
(Senior Manager) was eligible for promotion to the
higher post of Regional Manager. By Ext.P3 memo
dated 4.3.1999, petitioner was suspended from
service. Ext.P4 memo of charges was issued to the
petitioner. By Ext.P5 letter dated 18.5.1999
petitioner sought for copies of various documents
specifically referred to therein. Petitioner was
told vide Ext.P6 that directions have been issued
to the Kalpetta Branch to provide him copies of the
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relevant documents. Ext.P7 request was, therefore,
made to the Branch Manager at Kalpetta reiterating
the requests made in Ext.P5. This was met with
Ext.P8 stating that certain documents were readily
available and those which are available will be
permitted to be perused. It seems that the
petitioner felt that he would not be in a position
to give a reply to the memo of charges and submit a
written statement of defence, unless he is supplied
with the documents. He, therefore, sought for
extension of time to submit a written statement.
Petitioner makes reference to the repeated requests
made by him in this regard and also refers to
Ext.P14 dated 9.7.1999 whereby he was informed that
many of the documents, copies of which he had
sought for, are not relevant in this context.
3. An Enquiry Officer was appointed. The
enquiry was proceeded with. Petitioner reiterated
his request for copies of the documents before the
Enquiry Officer.
4. The management got Exts.M1 to M28 marked
at the time of enquiry. Petitioner has a case that
even the list of documents relied on by the
management were not given to him. He again made a
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request, as evidenced by Ext.P22, that at least
copies of the documents, which are marked by the
management, should be given to him. In the
meanwhile, petitioner aspired for promotion as
Regional Manager on the strength of his seniority
as reflected in Ext.P2 and the same had reached
this court, as evidenced by Exts.P24 and P25
judgments. The petitioner’s claim, in this regard,
was directed to be considered on completion of the
enquiry. As could be seen from Ext.P26, petitioner
persisted with the claim for receipt of the
documents. On completion of the enquiry, he
submitted a detailed argument note with reference
to each charge and he repeated his complaint that
there has been violation of the principles of
natural justice, inter alia, on account of the fact
that he was not only not supplied the documents
which he had sought for in the first instance to
substantiate his defence, but was also not supplied
with the documents sought to be marked by the
management in advance. Ext.P28 Enquiry Report was
drawn up on 18.4.2001 and on receipt of a copy of
the same, petitioner submitted a detailed
representation Ext.P29 raising his objections
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regarding the findings contained in the Enquiry
Report. He had raised a contention on each one of
the findings contained in the Enquiry Report.
Ext.P30 show cause notice was issued to the
petitioner proposing a punishment of reversion.
5. Pursuant to a direction issued by this
court in O.P.No.24543/04, petitioner was afforded
an opportunity for submitting an explanation to
Ext.P30. This was done as per Ext.P31. Personal
hearing was afforded on 16.11.2001.
6. Final orders on the disciplinary action
was not passed for a long time and petitioner was
due to retire on 28.2.2003. He contends that on
21.2.2003 he was served with Ext.P34 which is a
final order passed in the disciplinary proceedings.
He was let off with a “strong warning”. An appeal
filed by the petitioner before the Board of
Directors as per the Standing Orders [Ext.P36] was
rejected as per Ext.P41 and as stated above,
petitioner challenges Exts.P34 and P41.
7. A detailed counter affidavit has been
filed by the respondents supporting the orders
impugned and a reply affidavit has been filed by
the petitioner.
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8. I heard learned counsel for the
petitioner Mr.P.B.Krishnan, and learned counsel for
the respondents Mr.Anand.
9. Mr.Krishnan, learned counsel for the
petitioner contends that the enquiry proceedings
against the petitioner was clearly vitiated by
violation of principles of natural justice. He
contends that immediately on receipt of the memo of
charges Ext.P1, petitioner made a request for
copies of various documents as per Ext.P5. He was
assured that instructions have been given to the
Kalpetta Branch to supply him with the copies of
the relevant documents. He reiterated his request
in Ext.P7 and thereafter on several occasions. He
made a request before the Enquiry Officer, as is
evidenced by Ext.P14. He also made a request to
the Enquiry Officer to summon the documents.
Petitioner was disabled from submitting his
statement of defence, because of the
omission/failure on the part of the management to
supply him those documents.
10. The management had produced certain
documents from their side at the time of enquiry.
Copies of the same were not supplied to the
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petitioner before they were produced before the
Enquiry Officer. In fact, the Enquiry Officer
should have ensured that the petitioner gets the
copies of the documents and is then given some time
to peruse the same and if necessary, call for
details which may throw light on the aspects that
are otherwise contended to be relevant by the
management with reference to those documents.
After all, as many as 18 charges were originally
formulated and each of them should be considered
only with reference to the documents in the custody
of the management. Reference was made to the
discharge of duties by the petitioner when he was
in Kalpetta Branch. That the management itself was
not very certain about the correctness of the
charges is evident from the fact that though as
many as 18 charges were originally laid against the
petitioner, the management had given up charges
Nos.1, 7, 8, 14, 15, 16 and 18. Charges 3 and 4
were partly found. Charges Nos.5, 6, 9, 10, 13 and
17 were found fully. The petitioner had, on his
own, let in evidence. Learned counsel for the
petitioner submits that there is a genuine attempt
on the part of the employee to prove in a pro-
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active manner that the charges levelled against him
were baseless. He had examined Dws.1 to 11. He
had produced documents Exts.D1 to D28.
11. Mr.Krishnan contends that there is
absolutely no reference whatsoever, worth the name
to the employee’s evidence by the Enquiry Officer.
He submits that a reference to the Enquiry Report
will show that the Enquiry Officer condescended to
refer to the employee’s evidence at two portions of
the Enquiry Report, first at page 106 dealing with
Issue No.3 and secondly at para 14 dealing with
Issue No.9. He submits that there is no reference
to the plethora of documents produced by the
delinquent employee or the testimony of the 11
witnesses examined on behalf of the employee in the
whole of the report.
12. On receipt of the report, a detailed
petition was submitted by the employee before the
disciplinary authority pinpointing every defect in
the Enquiry Report as such. Thus, the employee did
everything to defend himself in the Enquiry.
13. It is contended that a personal hearing
was conducted by the Managing Director in November,
2001 [16.11.2001] and ultimately it was 14 months’
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thereafter that the final order was passed on
19.2.2003, i.e., on the eve of his retirement on
28.2.2003. Therefore, the personal hearing was
nothing but a formality and there is lack of
application of the mind by the disciplinary
authority. This is evident by the cryptic manner in
which Ext.P34 has been passed. Though a detailed
memorandum of appeal was submitted traversing each
one of the findings in the Enquiry Report, the same
was also met with a cryptic appellate order
Ext.P41. He submits that ultimately the only
purpose achieved by the management, in initiating
disciplinary proceedings against the petitioner and
terminating him on the eve of his retirement was to
deny him the benefit of promotion to the post of
Regional Manager and in said process enable 4 of
his juniors to get promotion. Since the petitioner
retired on 28.2.2003, even if this court accepts
his contention, it could only result in the
management being required to give the petitioner
the benefit of a promotion from the date on which
his immediate juniors were promoted and it is
prayed that consequential benefits may be
reflected, at least, in his retirement benefits.
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14. Learned counsel for the respondents, on
the other hand, submits that strict rules are
obviously not applicable to the disciplinary
proceedings. There seems to have been laches on
the part of the petitioner in dragging the
disciplinary proceedings. None of the documents
sought for by him was strictly relevant and what
was relevant was supplied to him. In the ultimate
analysis, the petitioner was let off with a
warning, whereas a more severe punishment could
have been awarded. Learned counsel for the
respondents submitted that there is no reason for
interference under Article 226 of the Constitution.
15. Having heard counsel on both sides and
having perused the Enquiry Report and the other
documents placed on record and the detailed
explanation offered by the petitioner, I am of the
view that the petitioner is well founded in his
contention that there has been violation of the
principles of natural justice in the conduct of the
enquiry, which, to an extent was carried forth up
to the final stage of the disciplinary proceedings
resulting in the final order passed by the
disciplinary authority.
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16. As was noted above, the petitioner made
a request, at the earliest stage of disciplinary
proceedings, for supply of copies of the documents.
If the charges levelled against him Ext.P4 are
perused, it can be seen that the documents sought
for by him cannot be considered as unnecessary or
otherwise totally irrelevant, nor could it be
contended that the documents are otherwise not
available. The management would obviously be the
custodian of the documents and unless there is a
weighty reason for not permitting or disclosing the
same (I do not think it is possible for the
management to take up a contention in that behalf
in relation to the document sought for by the
petitioner), then the principles of natural justice
dictated that the copies of the documents may be
made available to the employee. Of course, if some
documents like voluminous registers or other books
maintained by the management in the usual course of
business are sought, then it is open to the
petitioner to note down the details, photo copies
taken and then permitted to be marked. If the
logistics prevented photo copies being taken and
supplied in the case of all the documents, then a
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suitable reply should have been given in that
regard to the petitioner. Even in such cases, where
the petitioner seeks production of some of those
documents before the Enquiry Officer, they should
have been produced. If the management was unable
to do so, then explanation should have been
offered.
17. The request made before the Enquiry
Officer for copies of the documents produced by the
management were not seriously heeded to.
Apparently, they were supplied only after the
management witnesses were examined. One should
remember that the series of charges relatable to
functions and duties discharged by the petitioner
over several number of years as a Branch Manager at
Kalpetta essentially formed the subject matter of
enquiry and it would not be reasonable to presume
that an officer would be able to give a suitable
and fitting reply against the charges levelled,
unless he is supplied with the copies of the
documents sought for by him and is then afforded a
reasonable time to go through the same and give an
explanation. Such an opportunity seems to have
been denied to the petitioner.
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18. Learned counsel for the respondents is
correct in saying that strict rules would not be
imported to disciplinary proceedings. Rules of
evidence which are otherwise afforded in courts,
say, that objections regarding document should be
heard before the same is permitted to be admitted
in evidence and that mere admission of a document
will not amount to proof of its contents is also
not a principle, which is not strictly made
applicable to disciplinary proceedings. But there
is one rule which is applied without any dilution
in all disciplinary proceedings. The delinquent
must be given a chance to defend himself properly
and if he requests for the documents, which are in
the custody to the employer, it must be supplied to
him, unless there are adequate reasons for refusing
this facility. It is not the management’s case
that any one or all the documents sought for by the
petitioner could not have been disclosed before the
Enquiry Officer.
19. I also agree with the learned counsel
for the petitioner that Ext.P34 reveals a non-
application of the mind by the disciplinary
authority. The further procedure followed by the
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disciplinary authority in affording a personal
hearing in November, 2002 and then taking a
decision thereon, after a period of 14 months, on
the eve of the petitioner’s retirement, is also
reflective of an attitude, which did not reflect an
anxiety to conform to the principles of natural
justice. It could be a case of either the
disciplinary authority considering the personal
hearing as an empty formality or a case where the
authority has already taken a decision prior to the
personal hearing and then deciding to defer the
issuance of an order till the eve of the retirement
of the petitioner. One is not able to give any
other reasonable explanation for the fact that a
personal hearing was afforded to the petitioner on
16.11.2001, but Ext.P34 came to be passed 14 months
thereafter, on the eve of the petitioner’s
retirement-on 28.2.2003. I am, therefore, in
agreement with the contention of the petitioner
that, there has been a violation of the principles
of natural justice.
20. I further take note of the contention
taken by the petitioner that there seems to have
been a pronounced selective appreciation of the
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documents by the Enquiry Officer. Exts.D1 to D28
were marked on the side of the employee. Dws.1 to
11 were examined. Except for a reference in two
places, the Enquiry Report is completely silent
regarding either the merits of the defence evidence
or the lack of it, as the case may be. In fact,
there is not even a reference to the documents or
evidence adduced by the employee, if not, for
accepting it, at least, for declaring that the same
are irrelevant. In short, the evidence adduced by
the employee seems to have been completely ignored,
which was obviously unjust.
21. In the circumstances, I am of the view
that the disciplinary proceedings which resulted in
Ext.P34 order was vitiated by the principles of
natural justice. Petitioner was not dealt with in
a fair manner by the disciplinary authority. The
serious objections raised by him against the
findings in the Enquiry Report have not merited
even a cursory consideration at the hands of the
disciplinary authority. Petitioner was denied an
opportunity to prosecute a challenge against the
order passed by the disciplinary authority, even
when he was in service and therefore, he was denied
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a reasonable chance to seek a promotion to the next
higher post of Regional Manager, which otherwise he
would have been entitled to. I am in agreement
with the contention taken up by the learned counsel
for the petitioner that essentially the petitioner
was handed a raw deal.
22. An instrumentality of the State is
expected to act in a fair and reasonable manner.
It is true that the petitioner has retired from
service on 28.2.2003. It is, therefore, necessary
for this court to mould the reliefs, which the
petitioner is entitled to. In the circumstances, I
do not think, the petitioner would be entitled to
wages of the Regional Manager from the date on
which his juniors were promoted to the said post,
till the date of his retirement. But, having said
so, I am of the view that his retirement benefits
should reflect the higher pay, which he was
entitled to, had he been promoted as Regional
Manager at the appropriate time.
In the result, the writ petition is
allowed. Exts.P34 and P41 are set aside. The 2nd
respondent is directed to pass fresh orders,
treating the petitioner as having been eligible for
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promotion to the post of Regional Manager, with
reference to the date on which his immediate
juniors were promoted as per Ext.P2 list. The last
drawn pay of the petitioner as on 28.2.2003 should,
therefore, be worked out as if the petitioner had
been promoted as the Regional Manager with effect
from the above date and the retirement benefits due
to the petitioner shall be recomputed accordingly.
The process, as outlined above, shall be completed
and the benefits due to the petitioner shall be
disbursed within a period of three months from the
date of receipt of a copy of this judgment.
Sd/-
(V.GIRI)
JUDGE
sk/
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