IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 WP(C).No. 7782 of 2006(B) ------------------------------------- PETITIONER(S): ---------------------- A.SASIDHARAN, ADDITIONAL REGISTRAR OF CO-OPERATIVE SOCIETIES(RETIRED), HAPPY HOME, EZHIKKARA.P.O, NORTH PARAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM SMT.PRINCY XAVIER RESPONDENT(S): ------------------------- STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY ADV.SRI NOBLE MATHE, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG WP(C).No. 7782 of 2006(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE SUSPENSION ORDER DATED 20.10.2003. EXT.P2 : COPY OF THE G.O.(Rt) NO.680/03/CO-OP. DATED 22.11.2003. EXT.P3 : COPY OF THE JUDGMENT IN W.A.NO.1900/2003 DATED 03.12.2003. EXT.P4 : COPY OF THE G.O.(Rt.) NO.727/03/CO-OP DATED 15.12.2003. EXT.P5 : COPY OF THE G.O (Rt.) NO.117/04/CO-OP.DATED 25.02.2004. EXT.P6 : COPY OF THE MEMO OF CHARGES NO.117/04/CO-OP DATED 02.01.2003. EXT.P7 : COPY OF THE G.O.(Rt.) NO. 130/04/CO-OP DATED 27.02.2004. EXT.P8 : COPY OF THE REQUEST DATED 15.04.2004 GIVEN TO THE REGISTRAR OF CO-OPERATIVE SOCIETIES. EXT.P9 : COPY OF THE COMMUNICATION NO.EB (3) 10030/2003 DATED 19.04.2004. EXT.P10 : COPY OF THE NOTICE NO.VI/44008/03 DATED 03.05.2004. EXT.P11 : COPY OF THE STATEMENT GIVEN BY SMT.PILLAI INDIRA.S. EXT.P12 : COPY OF THE STATEMENT GIVEN BY SMT. ANNAMMA THOMAS. EXT.P13 : COPY OF THE SHOW CAUSE NOTICE NO.11299/A1/03/CO-OP DATED 09.06.2005. EXT.P14 : COPY OF THE ENQUIRY REPORT NO.V(1) 16244/2005 DATED 08.09.2005 EXT.P15 : COPY OF THE REPLY GIVEN BY THE PETITIONER DATED 17.10.2005. EXT.P16 : COPY OF THE COMMUNICATION NO.11299/A1/2003/CO-OP DATED 19.01.2006. EXT.P17 : COPY OF THE RESOLUTION OF THE MANAGING COMMITTEE OF THE CO-OPERATIVE UNION. EXT.P18 : COPY OF THE JUDGMENT IN W.P.(C) NO.37183/2004 DATED 05.06.2006. --2-- DG -2- WP(C).No. 7782 of 2006(B) EXT.P19 : COPY OF THE G.O. (Rt.) NO.376/06/CO-OP. DATED 26.08.2006. EXT.P20 : COPY OF THE LETTER NO.1393/A1/2007/CO-OP DATED 22.03.2007. EXT.P21 : COPY OF THE LETTER NO.VI/16244/05 DATED 07.08.07. EXT.P22 : COPY OF THE LETTER DATED 30.08.2010. EXT.P23 : COPY OF THE REPLY DATED 09.09.2010 GIVEN BY THE PETITIONER. EXT.P24 : COPY OF THE ORDER NO.EB(3) 13948/09 DATED15.10.2011. EXT.P25 : COPY OF THE REQUEST DATED 19.06.2004 SUBMITTED TO ENQUIRY OFFICER. EXT.P26 : COPY OF THE ARGUMENT NOTE DATED 21.06.2004 GIVEN BY THE PETITIONER. RESPONDENT'S EXHIBITS - NIL /TRUE COPY/ P.A.TO JUDGE DG S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 7782 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 14th day of December, 2011. J U D G M E N T The petitioner was the Secretary of the Kerala State Co- operative Union for the period between 24.8.2001 to 29.3.2003. The petitioner was later transferred as Secretary of the Kerala Co-operative Employees Welfare Fund Board on 30.3.2003. While working so, the petitioner was suspended from service on 2.10.2003 by Ext.P1 suspension order on certain allegations of misconduct stated to have been committed by him while he was working as the Secretary of the Kerala State Co-operative Union. He was issued with Ext.P6 memo of charges containing 11 charges on 2.1.2003. By Ext.P5 dated 25.2.2004, an enquiry officer was appointed to conduct the enquiry. By Ext.P7 order dated 27.2.2004, the petitioner was reinstated in service, without prejudice to the disciplinary action pending. Thereafter, Ext.P10 notice dated 3.5.2004 was issued to the petitioner, wherein the petitioner was asked to appear before the Registrar of Co-operative Societies to answer the charge of misbehavior with a lady employee and harassing her mentally. Thereupon, the matter was posted for further proceedings by the enquiry officer. On 9.6.2004, two witnesses were examined, whose depositions have been produced by the petitioner as Exts. P11 and P12. On 19.6.2004, the petitioner examined one witness in his defence. Ext.P26 argument notes were submitted on 21.6.2004. Thereafter, Ext.P14 enquiry report was submitted by the enquiry officer finding the petitioner guilty of 5 out of 11 W.P(C) No. 7782 of 2006 -: 2 :- charges. In the meanwhile, the petitioner retired from service on 28.2.2004 and by Ext.P13 , the petitioner was asked to show cause why the matter should not be proceeded with under Rule 3 of Part III of K.S.R. The petitioner was again given Ext.P14 show cause notice, enclosing a copy of the enquiry report, directing the petitioner to show cause why certain amounts should not be recovered from the petitioner on the basis of the enquiry report finding the petitioner guilty of the 5 misconducts. The petitioner filed Ext.P15 reply. By Ext.P16, the reply was rejected. By Ext.P19, the Government directed recovery of an amount of Rs.64,307/- from the petitioner's retirement benefits as a punishment in the disciplinary proceedings . The petitioner is challenging the said proceedings. 2. The contention of the petitioner is that the enquiry itself was a farce. According to him, except in respect of charges 1 and 2 in Ext.P6, no evidence was adduced before the enquiry officer in respect of any of the other charges and the petitioner was not given any opportunity to defend himself in respect of the other charges. Without such an opportunity, the petitioner has been found guilty of 5 of the other misconducts based on evidence, which was never put to the petitioner and unilaterally accepted on record by the enquiry officer. Therefore, the enquiry has been conducted in violation of principles of natural justice, is the contention raised. W.P(C) No. 7782 of 2006 -: 3 :- 3. A counter affidavit has been filed by the 1st respondent justifying the action taken. According to the respondent, all the evidence relied upon for the purpose of finding the petitioner guilty are documents on record, which cannot be disputed by the petitioner. Therefore, the petitioner cannot have any grievance in marking them in evidence. Consequently, there is no violation of principles of natural justice, is the contention. 4. I have considered the rival contentions in detail. 5. In view of the enquiry report, which is produced as addendum of Ext.P14 finding the petitioner guilty of 5 charges, on the basis of evidence stated to have been recorded by the enquiry officer, I directed the learned Government Pleader to make available the enquiry file. The same has been produced. In the enquiry file, as contended by the petitioner, there are depositions of only two witnesses. The depositions of those witnesses are only in respect of charge nos. 1 and 2, which relate to harassment of the lady employee and another employee. The petitioner was not found guilty of those charges. In respect of the charges, which the petitioner was found guilty of, the enquiry officer appears to have relied on a lot of documents, which he has marked in enquiry. There is absolutely nothing in the enquiry file to show that those documents were marked through any witness or as to whether the documents were put to the petitioner at any time giving him an opportunity to controvert or explain the W.P(C) No. 7782 of 2006 -: 4 :- same. I am of opinion that, that amounts to violation of principles of natural justice insofar as the petitioner has not been given an effective opportunity to counter those evidence, which was accepted on record without his concurrence and without his knowledge. The petitioner could not have been found guilty of any misconduct based on such evidence, which was never put to the petitioner. Therefore, the entire enquiry proceedings are vitiated. Consequently, the punishment is also unsustainable. Accordingly, the impugned orders are quashed and the writ petition is allowed. Sd/- S. Siri Jagan, Judge. Tds/