IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 WA.No. 2387 of 2005 ----------------------------------- AGAINST THE JUDGEMENT IN OP.3675/1997 Dated 18/07/2005 .................... APPELLANTS: RESPONDENTS IN O.P: --------------------------------------------------- 1. ASSISTANT GENERAL MANAGER, NOW (DEPUTY GENERAL MANAGER) COCHIN SHIPYARD LIMITED, COCHIN-15. 2. CHAIRMAN AND MANAGING DIRECTOR, COCHIN SHIPYARD LIMITED, COCHIN-15. 3. ASSISTANT GENERAL MANAGER, COCHIN SHIPYARD, KOCHI-15. BY ADV. SRI.M.PATHROSE MATTHAI (SR.) SRI.RONY J.PALLATH RESPONDENT: PETITIONER IN O.P: --------------------------------------------------- P.KRISHNAN KUTTY NAIR, S/O.LATE K.PARAMESWARAN PILLAI, STENOGRAPHER, GRADE VI, COCHIN SHIPYARD LIMITED, RESIDING AT LIG 508, PANAMPILLY NAGAR, KOCHI - 36 BY ADV. SMT.REKHA VASUDEVAN (AMICUS CURAE) SRI.C.UNNIKRISHNAN (KOLLAM) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------------------------------ W.A.No.2387 of 2005 ------------------------------------------------------- Dated, this the 13th day of June, 2008 JUDGMENT H.L.Dattu, C.J. This writ appeal is directed against the orders passed by the learned Single Judge in O.P.No.3675 of 1997 dated 18-7-2005. 2. Though the respondent was served, he did not engage the services of a learned counsel. Therefore, we had requested Smt. Rekha Vasudevan to assist us as Amicus Curiae in this matter. 3. The brief facts are: The appellants herein were the respondents in O.P.No.3675 of 1997. The contesting respondent is a workman. While he was in service, the respondents had issued a charge memo dated 18th March, 1996. The charge memo reads as under: “ CHARGE SHEET Records reveal that, you were sanctioned leave during 13 Feb 96 to 19 Feb 96, with details as indicated below. Period of Leave Nature of Leave No. of days 13 Feb 96 to 14 Feb 96 Earned Leave 2 days 15 Feb 96 and 16 Feb 96 FN Sick Leave 1½ days 17 Feb 96 and 19 Feb 96 Casual Leave 2 days ____________________________________________________ But it is noted from your time card for the said period that you made your 'punch in' and 'punch out' entries on these days as indicated below: Date Punch in Punch out 13 Feb 96 08 19 hrs 16 55 hrs 14 Feb 96 08 19 hrs 16 03 hrs 15 Feb 96 08 17 hrs 17 00 hrs 16 Feb 96 08 13 hrs 16 56 hrs 17 Feb 96 08 19 hrs Nil 18 Feb 96 Nil Nil (Sunday) 19 Feb 96 Nil Nil WA.No.2387/2005 -2- 2. It has been reported that you did not attend to the duties during the said period, although your time card reveals your 'punch in' and 'punch out' entries as detailed above. However, it has been confirmed that you attended duties on 16 Feb 96 AN. 3. Further, it has been reported that you have not made any report or lodged any complaint regarding the 'punch in' and 'punch out' entries in your time card on these days while you were absent from duty as referred to above either to the staff on duty at Time office No.II or anyone else concerned in the matter. It is further alleged that you made the 'punch in' and 'punch out' entries in your time card as detailed above, with a dishonest intention to secure your attendance and to earn wages on those days you were absent from duty. 4. Your acts of making 'punch in' and 'punch out' entries in the time card, during sanctioned leave period, as referred to above constitute the following misconducts under the Standing orders applicable to you. a) Dishonesty in connection with the employer's business or property. Cl.24(5). b) Entering in Company's premises without permission while not on duty. Cl.24(28). c) Action subversive of discipline. Cl.24(12). 5. In case you have any explanation to offer in respect of the charges levelled against you, you may do so within three days of receipt of this charge sheet, failing which the matter will be proceeded with on the presumption that you have no explanation to offer. 6. Please acknowledge receipt of this charge sheet in the duplicate copy and return the same. Sd/- (P S Kurien) ASST GENERAL MANAGER (S&F)” WA.No.2387/2005 -3- 4. After receipt of the charge memo, the respondent/petitioner had filed a detailed reply, denying the allegations made in the charge memo and also explaining the circumstances which warranted him to enter the factory premises on 16th February, 1996. Further, he had made a request in the reply to drop the proposed enquiry proceedings. 5. Not being satisfied with the explanation so offered by the charge sheeted employee, the disciplinary authority of the respondent organisation had appointed one Sri.G.N.Prasad as Enquiry Officer and Sri. C.Narayanan as the Presenting Officer to enquire into the allegations made in the charge memo. 6. Before the Enquiry Officer, the appellants had examined five witnesses (Mw1 to Mw5). The charge sheeted employee had not only examined himself but also had examined one witness in support of his defence. 7. The Enquiry Officer after considering the charge memo, the reply filed by the charge sheeted workman and the evidence on record, has come to the conclusion that the charge sheeted employee is guilty of the charges alleged in the charge memo. Thereafter, the Enquiry Officer has transmitted the enquiry records to the disciplinary authority for passing appropriate orders. 8. The disciplinary authority of the respondent organisation thereafter had issued a show cause notice to the petitioner asking him to show cause, why the report of the Enquiry Officer should not be accepted WA.No.2387/2005 -4- and an order of dismissal should not be passed. Along with the said show cause notice had also enclosed a copy of the Enquiry Officer's Report. 9. After receipt of the notice and the Enquiry Officer's Report, the charge sheeted employee had filed his detailed objections, inter alia, drawing the attention of the disciplinary authority why the report of the Enquiry Officer should not be accepted and the proposed punishment need not be passed. 10. The disciplinary authority after considering the Report of the Enquiry Officer and the objection filed by the charge sheeted employee, has proceeded to impose a penalty of stoppage of 3 increments with cumulative effect by his order dated 2nd November, 1996. 11. Aggrieved by the order so passed by the disciplinary authority, the charge sheeted workman had filed an appeal before the appellate authority as provided in the service rules/regulations of the respondent organisation. The appellate authority by his order dated 4th January, 1997 has modified the orders passed by the disciplinary authority and has imposed a penalty of stoppage of increments for 2 years with cumulative effect. 12. Aggrieved by the orders passed by the disciplinary authority dated 2nd November, 1996 and the orders passed by the first appellate authority dated 4th January, 1997, the delinquent workman was before this Court in O.P.No.3675/1997. 13. The learned Single Judge by his order dated 18th July, WA.No.2387/2005 -5- 2005 has allowed the original petition. The reasons assigned by the learned Single Judge for allowing the original petition is that the disciplinary authority in the second show cause notice issued, had taken a decision to impose a punishment and the same could not have been done by the disciplinary authority. In support of the reasoning, the learned Single Judge has relied upon the observations made by a Division Bench of this Court in the case of Radhakrishnan Nair Vs. State of Kerala ( 2005 (3) KLT 1), though the respondents had relied upon the dicta laid down by the Apex Court in the case of Union of India Vs. Mohammed Ramzan Khan (AIR 1991 SC 471) and in the case of Managing Director, ECIL, Hyderabad and Ors. Vs. B.Karunakar and Ors (1993 (4) SCC 727). 14. The reasoning and the conclusions reached by the learned Single Judge is as under: “3. True the petitioner had an opportunity to make a representation. It is not in dispute that the petitioner did not get an opportunity to dispel the impressions regarding the findings on the charges. Since the disciplinary authority had already made up its mind on being convinced that the charges stood proved, any later attempt on the part of the petitioner cannot help him to dispel the impressions regarding the findings. The attempts could succeed only to the extent of reducing the penalty. That is not the situation referred to in the bench decision. The Supreme Court in B.Karunakran's case (supra) held that rules of natural justice will have to be read into the rules. Therefore, an opportunity having not been given to the petitioner to WA.No.2387/2005 -6- dispel even the prima facie impressions formed by the disciplinary authority on the basis of the report, the issue goes to the root of the question. I have no hesitation to hold that Ext.P1 order passed by the disciplinary authority on unilaterally being convinced on the findings on charges is illegal and deserves to be quashed. I do so. Consequential Ext.P2 is also quashed. 5. Ext.P6 shall be treated as a notice regarding the prima facie impressions of the disciplinary authority. It will be open to the petitioner to file a representation with regard to the findings on the enquiry. This shall be done within a period of one month from today. The disciplinary authority shall consider the matter afresh in the light of the decision in Radhakrishnan Nair's case (supra) and pass fresh orders within another three months with notice to the petitioner”. 15. Aggrieved by the reasons and the conclusions reached by the learned single Judge, the respondents in the Original Petition are before us in this appeal. 16. Sri. Pathrose Mathai, learned senior counsel appearing for the appellants would submit that the reasoning and conclusions reached by the learned Single Judge is contrary to the law laid down by the Apex Court in Union of India Vs. Mohammed Ramzan Khan (AIR 1991 SC 471) as well as in Managing Director, ECIL, Hyderabad and Ors. Vs. B.Karunakar and Ors (1993 (4) SCC 727). The learned counsel invites our attention to the observations made by Apex Court. In the said decision the Court has observed: WA.No.2387/2005 -7- “Since the Government of India Act, 1935 till the Forty-second Amendment of the Constitution, the Government servant had always the right to receive the report of the enquiry officer/authority and to represent against the findings recorded in it when the enquiry officer/authority was not the disciplinary authority. This right was, however, exercisable by him at the second stage of the disciplinary proceedings viz., when he was served with a notice to show cause against the proposed penalty. The issuance of the notice to show cause against the penalty necessarily required the furnishing of a copy of the enquiry officer's report since, as held by the courts, the right to show cause against the penalty also implied the right to represent against the findings on the charges. This was considered to be an essential part of the 'reasonable opportunity' incorporated earlier in Section 240(3) of the GOI Act and later in Article 311 (2) of the Constitution as originally enacted. The right to receive the enquiry officer's report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The two rights came to be confused with each other because as the law stood prior to the Forty-second Amendment of the Constitution, the two rights arose simultaneously only at the stage when a notice to show cause against the proposed penalty was issued. If the disciplinary authority after considering the enquiry officer's report had dropped the proceedings or had decided to impose a penalty other than that of dismissal, removal or reduction in rank, there was no occasion for issuance of the notice to show cause against the proposed penalty. The right to receive the report and to represent against the findings recorded in it was thus inextricably WA.No.2387/2005 -8- connected with the acceptance of the report by the disciplinary authority and the nature of the penalty proposed. Since the Forty-second Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took the view that the Government servant was deprived of his right to represent against the findings of guilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment.” 17. Smt. Renuka Vasudevan sought to justify the orders passed by the learned single Judge. 18. In the instant case, the learned Single Judge has taken exception to the second show cause notice issued by the disciplinary authority before imposing the punishment based on the report of the Enquiry WA.No.2387/2005 -9- Officer. According to the learned Single Judge, the disciplinary authority having already made up his mind on the findings of the enquiry officer, no purpose would be served in asking the delinquent workman to file his defence, if any, to the second show cause notice. 19. After going through the second show cause notice issued by the disciplinary authority of the respondent organisation we are of the opinion that in the said notice there was only a tentative opinion formed by the disciplinary authority. In fact, the disciplinary authority has stated in the second show cause notice why he should not accept the report of the enquiry Officer and why he should not impose the major penalty. Thd Apex Court in B. Karunakar's case (supra) has stated that while the right to represent against the findings is a part of reasonable opportunity available during the first stage of the enquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The enquiry report should be communicated to the delinquent employee and it is only thereafter pass appropriate orders, after considering the objections that may be filed by the delinquent employee. In the instant case, as we have already noticed that the disciplinary authority of the respondent organisation after issuing the second show cause notice along with the report of Enquiry Offier, had directed the WA.No.2387/2005 -10- delinquent employee to show cause why the report of the enquiry officer should not be accepted and secondly to plead for either no penalty or a lesser penalty. In the instant case the disciplinary authority had tentatively come to the conclusion with regard to report of the enquiry officer and also the penalty. It is only after considering the objections so filed by the delinquent employee, the disciplinary authority has passed the impugned order. In that view of the matter, in our opinion, the reasoning and conclusion reached by the learned Single Judge is contrary to the dicta laid down by the Apex Court. Therefore, we cannot sustain the orders passed by the learned Single Judge. Accordingly, the writ appeal requires to be allowed and it is accordingly allowed. The orders passed by the learned Single Judge is set aside. 20. We place on record our deep appreciation to the efforts made by the Amicus Curiae to sustain the orders passed by the learned Single Judge. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS/DK