IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 WP(C).No. 5078 of 2005(D) ------------------------------------- PETITIONER(S): ---------------------- DR.ELIZABETH ABRAHAM, READER, DEPARTMENT OF ENGLISH, GOVERNMENT COLLEGE, TRIPUNITHURA. BY ADV. MR.ELVIN PETER P.J. RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. R1 TO R3 BY GOVERNMENT PLEADER MR.DILIP MOHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 5078/2005-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMPLAINT MADE AGAINST THE PETITIONER. EXT.P2: COPY OF THE QUESTIONAIRE ISSUED TO THE PETITIONER. EXT.P3: COPY OF THE ORDER NO.A3/46224/2003/COLL. EDN. DATED 28/06/2004 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE AFFIDAVIT SWORN TO BY ONE JOHN T.U., THE TEN PRINCIPAL OF THE MAHARAJAS COLLEGE DATED 31/07/2004. EXT.P5: COPY OF THE ORDER G.O.(RT)NO.84/05/H.EDN. DATED 17/01/2005 ISSUED BY THE FIRST RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 5078 of 2005-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2009. JUDGMENT Aggrieved by Ext.P5, whereby the Government ordered to conduct a fresh enquiry and disciplinary action against the petitioner, this writ petition has been filed. The petitioner is a Reader in the Department of English in Govt. College, Thripunithura. She was working in Maharajas College, Ernakulam from the year 2000 till December 2003, in the Department of English. She was actively involved in the affairs of the Teachers Organisation and is the Vice President of the Organisation. It appears that a complaint was raised by a rival association before the second respondent, alleging that without appearing in the Maharajas College, Ernakulam, on 3.9.2003 she went to Trivandrum and falsely marked her attendance for the said day later. By Ext.P2, she was asked to offer comments on various questions shown therein. A copy of the complaint was also forwarded. The petitioner submitted a reply. Later, by Ext.P3 the second respondent after considering her reply, and after hearing her in person, inflicted a punishment of censure. This was challenged in appeal before the Government. The petitioner is relying upon Ext.P4, an affidavit filed by the wpc 5078/2005 2 then Principal to the effect that she went to Trivandrum on 3.9.2003 to attend the funeral of one of her close friends, as per oral permission granted to her. Ext.P5 is the order passed in her appeal. 2. Learned counsel for the petitioner submitted that the direction by the Government in Ext.P5 to conduct a fresh enquiry cannot be supported. The Government has clearly found that the disciplinary proceedings are vitiated by procedural irregularities. It is pointed out that going by the well settled principles in such matters, a de novo enquiry cannot be conducted. Reliance is placed on the decision of the Apex Court in K.R. Deb v. The Collector of Central Excise, Shillong (AIR 1971 SC 1447) and that of this Court in Kesavan Namboodiri v. State of Kerala (1982 KLT 512) and Rajeswaran v. Chief Judicial Magistrate (1998 (1) KLT 64). 3. Learned Govt. Pleader submitted that when Ext.P3 order was passed, evidently a proper enquiry was not conducted and that was the reason for ordering a fresh enquiry. 4. A reading of Ext.P3 shows that the complaint was filed by the President of A.K.G.C.T. before the second respondent in regard to the allegations against the petitioner. A report was submitted by the Deputy Director of Collegiate Education dated 5.2.2004 after conducting an enquiry. It is recorded in Ext.P3 that in the report it is found that the allegations levelled against the petitioner were genuine and she was very wpc 5078/2005 3 irregular in marking the attendance. Even though the enquiry officer had asked her to be present before him and submit her defence, she did not respond. Thereafter, on receipt of the enquiry report, she was asked to submit her explanation, as per letter dated 2.4.2004 and she filed an explanation on 19.4.2004, wherein she wanted to be heard in person. She appeared in person before the Director and presented her case. It is after evaluating these aspects, the second respondent was of the view that misconduct has been proved, apart from violation of rules which warrants action against her. After taking a lenient view, the second respondent held that a warning is required and thereafter imposed a penalty of censure. 5. In this factual situation, the question is whether the Government was right in directing a fresh enquiry and disciplinary action as laid down under the Kerala Civil Services (Classification, Control and Appeal) Rules. In K.R.Deb’s case (AIR 1971 SC 1447), the issue arose for consideration under Rule 15 of the CCS (CC & A) Rules. Therein, the Apex Court in para 13 held thus: “It seems to us that Rule 15 on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. wpc 5078/2005 4 But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9.” Accordingly the entire proceedings were set aside. In Kesavan Namboodiri’s case (1982 KLT 512), the question was considered under Rule 15 of KCS (CC & A) Rules. It was held that there is no provision in the Rules to order a de novo enquiry after wiping out the enquiry already conducted. In para 2 it was held thus: “An examination of Rule 15 shows that the Disciplinary Authority cannot wipe out the inquiry already conducted and direct a de novo enquiry. Where the findings of the enquiring authority are adverse to the delinquent officer, it is open to the Disciplinary Authority to consider the material and evidence, come to a different conclusion and exonerate him from charges. If, on the other hand, the inquiring authority holds that the charges are not proved, it is open to the Disciplinary Authority to take a different view and record findings. Where the Disciplinary Authority is satisfied that some evidence which would have been available was not collected by the Inquiring Authority, it may even direct the Inquiring Authority to proceed further with the inquiry in the interests of justice. There is no provision in the rules to order a de novo inquiry after wiping out the inquiry already conducted.” In Rajeswaran’s case (1998 (1) KLT 64), following K.R.Deb’s case wpc 5078/2005 5 (supra), a Division Bench of this Court held that a second fresh enquiry cannot be ordered. It was held thus in paragraphs 8 and 9: “The rule provides only for one enquiry and that in case if in a given case, there has been no proper enquiry because of some serious defects or some important witnesses were not available and hence not examined at the time of enquiry, the disciplinary authority may ask the Inquiry Officer to record further evidence. The fact remains that the complainant namely the Honorary Special Judicial Magistrate was not examined in the enquiry Similarly two other witnesses have also not been examined. As already pointed out the settled legal position is that second fresh enquiry cannot be ordered only because the first enquiry was conducted without examining certain important witnesses. The proper and correct course would be to see that the disciplinary authority directs the Inquiring Authority, 3rd respondent herein to record further evidence and submit a fresh report.” Para 6 of the said judgment shows that the enquiry report was not accepted and the same was rejected. Thereafter, an order was passed appointing an enquiry officer under Rule 15 of the Rules into the very same allegations raised against the employee. It is in that context the legal position was examined by the Division Bench. 6. In the light of the above dictum laid down by the Apex Court and this Court, the question is whether the order Ext.P5 could be sustained. There cannot be any dispute that the disciplinary authority went into the wpc 5078/2005 6 various aspects including the enquiry report filed by the Deputy Director of Collegiate Education. A penalty of censure was also imposed. Ext.P5 order is passed in an appeal filed by the petitioner by the appellate authority. It is evident that the disciplinary authority was satisfied about the conduct of the enquiry and the report. By finding that there are procedural irregularities which vitiates the disciplinary proceedings, a fresh enquiry and disciplinary action cannot be ordered. 7. Therefore, the order Ext.P5 to the extent to which it directs conduct of a fresh enquiry and disciplinary action against the petitioner, is quashed. In the light of the finding in Ext.P5 that disciplinary proceedings is vitiated by procedural irregularities, Ext.P3 also cannot be sustained and the same is set aside The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/