IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 WP(C).No. 25006 of 2008(B) ----------------------------------------- PETITIONER(S): ------------------------ A.C.JAILAVUDEEN, MANCHIRA HOUSE, ANAMARI.P.O, KALLAMKODE, PALAKKAD, PIN:678 506. BY ADV.MR.N.RAGHURAJ, SMT.K.AMMINIKUTTY. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, AGRICULTURE (DIARY DEPARTMENT), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF DIARY DEPARTMENT, O/O. THE DEPUTY DIRECTOR OF DIARY DEVELOPMENT, CIVIL STATION, PALAKKAD. 3. M.RADHAKRISHNAN, CONVENER, DISCIPLINARY SUB COMMITTEE, MUTHALAMADA (WEST) KSHEERA VYAVASAYA SAHAKARANA SANGAM LTD,NO.P3(D), NANDANKIZHAYA, ANAMARI POST, KOLLENGODE-678 506. 4. PRESIDENT, MUTHALAMADA (WEST) KSHEERA VYAVASAYA SAHAKARANA SANGAM LTD, NO.P3(D), NANDANKIZHAYA, ANAMARI POST, KOLLENGODE-678 506. 5. MUTHALAMADA (WEST)KSHEERA VYAVASAYA SAHAKARANA SANGAM LTD, NO.P3 (D), NANDANKIZHAYA, ANAMARI POST, KOLLENGODE-678 506,REPRESENTED BY ITS SECRETARY-IN-CHARGE. R1 & R2 BY GOVERNMENT PLEADER MR. K.C.SANTHOSHKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.25006 of 2008-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of November, 2008. JUDGMENT “CR” 1.In spite of three postings, after service of notice on them, respondents 3 to 5 have not appeared. 2.The petitioner, while the Secretary of the 5th respondent, was suspended and was later dismissed from service following disciplinary proceedings. X, an advocate, was the Enquiry Officer. The petitioner sought that three resolutions in relation to disciplinary proceedings be rescinded. Whatever be the effect of Section 69 of the Kerala Co-operative Societies Act, 1969, the “Act”, for short, one glaring illegality that appears on the face of the record is that X, the Enquiry Officer, appeared on behalf of the WP(C)25006/08 -: 2 :- employer to support the findings and the decisions which were impugned by the petitioner before the Deputy Director. Loosing his case before the Deputy Director, the petitioner filed an appeal before the Government. X appeared for the employer even before the Government. 3.The Enquiry Officer in a domestic enquiry as part of disciplinary proceedings, could be even one who belongs to the establishment of the employer. But what is important is that, the enquiry officer has to be fair, impartial and unbiased. Fair play calls not only for a sense of fairness. That should demonstrably appear on record and in the proceedings. That the enquiry officer had been fair in conducting the proceedings, is the soundest of the prime guarantees to a delinquent. Justice shall not only be done, but it shall also be seen to have been done. When a person from inside or outside the establishment, is appointed to conduct an enquiry, that person is expected to conduct the enquiry in a completely impartial manner. It is WP(C)25006/08 -: 3 :- this impartiality, expected of an enquiry officer, that instills confidence, not only in the employer or employee, regarding the proceedings, but also in authorities who review those proceedings, on administrative, quasi-judicial or judicial processes. If the maker of a decision, including an enquiry officer or other subordinate authority tries to justify the reasons or views leading to decisions with adverse civil consequences, when questioned before a superior authority, that by itself is sufficient to disclose bias on the subject matter involved in the lis before a quasi- judicial or judicial authority, questioning such subordinate decision. This principle clearly applies even to cases of domestic enquiries where any anxiety shown by the Enquiry Officer to sustain the findings arrived at by him in the enquiry, is sufficient enough to demonstrate that he did not have an impartial or unbiased approach in conducting the enquiry. For any support in this regard are the decisions of Syed Yakoob v. Radhakrishnan (AIR 1964 SC 477) and District WP(C)25006/08 -: 4 :- Executive Officer v. State of Kerala [1991(1)KLT 390]. Once this has been clearly demonstrated by the appearance of the Enquiry Officer as the counsel for the establishment before the statutory authority hearing the application under Rule 176 of the Kerala Co-operative Societies Rules and in the statutory appeal before the Government, this Court need not labour much to go into the merits or demerits of the charges or the quality of the findings to arrive at the conclusion that the enquiry itself has to be struck down and there has to be a de novo enquiry proceedings. This is what emanates from the basics of justice. For the foregoing reasons, this writ petition is allowed quashing Exts.P4 and P6 and the entire enquiry proceedings and directing respondents 4 and 5 to have the enquiry against the petitioner conducted de novo through any person other than the enquiry officer who had conducted the impugned enquiry and to conclude the proceedings within three months from the date of receipt of a copy of WP(C)25006/08 -: 5 :- this judgment. All other issues, on merits, are left open. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/201108