IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 OP.No. 15030 of 2002(L) ---------------------------------- PETITIONER(S): ---------------------- K.M. GEORGE, VELIYATHIL VEEDU, SRENARAYANAPURAM, VADAKKEVILA P.O., KOLLAM-691 010 BY ADV. MR.P.B.SURESH KUMAR MR.LEO GEORGE RESPONDENT(S): ------------------------- 1. KERALA STATE CASHEW DEVELOPMENT CORPORATION LIMITED,REPRESENTED BY ITS MANAGING DIRECTOR,CASHEW HOUSE,P.B.NO.13,KOLLAM 2. THE CHAIRMAN, KERALA STATE CASHEW DEVELOPMENT CORPORATION LTD.,CASHEW HOUSE, P.B.NO.13, KOLLAM. 3. THE MANAGING DIRECTOR, KERALA STATE CASHEW DEVELOPMENT CORPORATION LTD., CASHEW HOUSE, P.B.NO.13, KOLLAM. R1 TO R3 BY ADV. MR.M.K.CHANDRA MOHANDAS THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 15030/2002-L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS OF THE MANAGING DIRECTOR OF THE CORPORATION DATED 21/08/1991. EXT.P2: COPY OF THE MEMO ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER DATED 13/01/2000. EXT.P3: COPY OF THE REPLY SENT BY THE PETITIONER TO THE THIRD RESPONDENT DATED 18/01/2000. EXT.P4: COPY OF THE REPORT OF THE ENQUIRY CONDUCTED AGAINST THE PETITIONER DATED 08/06/2000. EXT.P5: COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER DATED 23/08/2000. EXT.P6: COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO EXHIBIT P5 NOTICE DATED 11/09/2000. EXT.P7: COPY OF THE AFFIDAVIT OF SRI.C. SAHAJAN FORWARDED TO THE THIRD RESPONDENT BY THE PETITIONER ALONG WITH EXHIBIT P6 DATED 08/09/2000. EXT.P8: COPY OF THE RELEVANT PORTION OF THE MEMORANDUM SETTLEMENT NO.K2-25457/1997 ENTERED INTO BETWEEN THE CORPORATION AND ITS EMPLOYEES DATED NIL. EXT.P9: COPY OF THE RELEVANT PORTION OF THE STAFF RULES OF THE CORPORATION DATED NIL. EXT.P10: COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT DATED 31/10/2000. EXT.P11: COPY OF THE APPEAL PREFERRED BY THE PETITIONER AGAINST EXHIBIT P10 ORDER BEFORE THE SECOND RESPONDENT DATED 29/01/2001. EXT.P12: COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT ON EXHIBIT P11 APPEAL DATED 18/05/2001. EXT.P13: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE BOARD OF DIRECTORS OF THE CORPORATION DATED 02/11/2001. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 15030 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 11th November, 2009. J U D G M E N T The petitioner is an employee of the Kerala State Cashew Development Corporation Ltd., the 1st respondent herein. He is challenging disciplinary proceedings against him, which culminated in imposition of punishment of reduction to the lower post of Senior Typist. The circumstances which led to the imposition of punishment is as follows: 2. While the petitioner was working as the Personal Assistant to the Managing Director, on 1-1-2000, the then Finance Manager of the Corporation and his wife died in an accident. The Managing Director directed the petitioner to buy four wreaths to be placed on the bodies of the deceased. The petitioner purchased four wreaths allegedly costing Rs. 250/- each from a flower mart owned by M/s. Sahajan and Sons for a total sum of Rs. 1000/-. Thereafter, allegedly on the basis of an anonymous complaint by some trade union leaders, who were inimical towards the petitioner, stating that the wreaths costed only Rs. 600/- and the balance money was misappropriated by the petitioner, Ext. P2 memo of charges dated 13-1-2000 was issued to the petitioner. Despite Ext. P3 reply filed by the petitioner, a domestic enquiry was conducted against the petitioner on the basis of Ext. P2 memo of charges. According to the petitioner, the management appointed one Reghunathan Pillai, who is a law graduate as the presenting officer of the Corporation. Since the presenting officer of the Corporation was a person trained in law, the petitioner sought permission to engage a lawyer to conduct his case in the enquiry, which request was turned down by the enquiry officer. Thereafter, in the enquiry, on behalf of the management, some trade union leaders gave evidence that on the very same day, from the very same flower mart, they purchased similar wreaths for Rs. 100/- each O.P. No. 15030/02 -: 2 :- and therefore the wreaths would not have costed more than Rs. 150/- each purchased by him. According to the petitioner, the petitioner examined Sri. C. Sahajan, the flower mart owner, as a witness, who deposed before the enquiry officer that he received Rs. 1000/- from the petitioner for the four wreaths. However, by Ext. P4 enquiry report, the enquiry officer found the petitioner guilty of the misconduct. The petitioner would allege that in the enquiry report, the enquiry officer failed to mention that Sri. C. Sahajan was examined as a witness on behalf of the petitioner and the evidence of Sri. Sahajan was totally excluded. On the basis of the enquiry report, Ext. P5 show cause notice was issued to the petitioner. The petitioner filed Ext. P6 explanation to the same. The petitioner also submitted Ext. P7 affidavit of Sri. Sahajan in the matter, which, according to the petitioner, would show that he was examined as a witness and he had deposed that he had received Rs. 1000/- towards the cost of the four wreaths. The petitioner would contend that going by Ext. P8 memorandum of settlement, the post lower to the post of Personnel Assistant to the Managing Director is the post of Junior Officer and the proposal to impose the punishment of reduction to the post of Senior Typist is not permissible in law. He also relies on Ext. P9 staff rules. However, by Ext. P10 order dated 31-10-2000, the petitioner was imposed with the punishment of reduction to the post of Senior Typist. Against Ext. P10, the petitioner filed Ext. P11 appeal before the Chairman of the Kerala State Cashew Development Corporation Ltd, the 2nd respondent herein. The petitioner would allege that without affording an opportunity of being heard to the petitioner, by Ext. P12 order dated 18-5-2001, the 2nd respondent rejected the appeal. The petitioner filed Ext. P13 revision before the Board of Directors, in respect of which the petitioner has not been communicated with any order. During the 2nd week of May, 2002, the petitioner understood that the Board of Directors had decided not to O.P. No. 15030/02 -: 3 :- consider Ext. P13. The petitioner challenges Exts.P10 and P12 orders of the original and appellate authorities in this original petition. 3. The petitioner raises three contentions. First is that the enquiry is violative of principles of natural justice for refusal to the petitioner to take the assistance of a lawyer. According to the petitioner, when the management appointed a law graduate trained in law as the presenting officer, the petitioner was entitled to be assisted by a lawyer. He would secondly contend that the enquiry officer misdirected himself in eschewing the evidence of the witness examined by him, which evidence would categorically show that the petitioner was not guilty of any misconduct. Thirdly, he would contend that the post of Senior Typist is not a post below that of the Personnel Assistant to the Managing Director in hierarchy and therefore the petitioner could not have been imposed with the punishment of reduction to the post of Senior Typist. He would contend that in view of the affidavit of Sri. Sahajan, he has conclusively disproved the allegation against him and therefore he should be exonerated from the charges. 4. The respondents would seek to controvert the contentions of the petitioner with the help of a counter affidavit. According to them, the Rules applicable for disciplinary proceedings against the employees of the Corporation do not contemplate granting of assistance of an advocate for a delinquent in a disciplinary enquiry. He is only eligible to avail of the assistance of a co-worker. Therefore, the petitioner cannot as of right claim that he should be given the assistance of an advocate, is the contention raised. As far as the alleged deposition of Sri. Sahajan is concerned, they would contend that the petitioner has only examined Sri. Sahajan as a witness. It is pointed out that even in Ext. P7 affidavit of Sri. Sahajan , he does not state that he was examined as a witness before the enquiry officer. It is also submitted that since Sri. Sahajan has an O.P. No. 15030/02 -: 4 :- accomplice to the petitioner in the matter, his evidence cannot be believed. Regarding the contention that the petitioner could not have been reverted as Senior Typist, the contention is that the original appointment of the petitioner was only as a Typist and therefore there is nothing wrong in reverting him as a Senior Typist. 5. I have considered the rival contentions in detail. 6. The first question that arises for consideration is as to whether the enquiry conducted against the petitioner is violative of principles of natural justice. In this regard, the first contention raised by the petitioner is that he was denied the assistance of a lawyer. In the original petition, he has specifically stated that the presenting officer appointed by the management, one Sri. Raghunathan Pillai, was a law graduate, who was trained in law. Therefore, according to the petitioner, denial of permission to engage a lawyer for the petitioner is violation of principles of natural justice. I note that in the counter affidavit, there is no denial of the specific averment of the petitioner that the presenting officer was a law graduate trained in law. The only contention raised in the counter affidavit is that the Rules do not permit assistance of an advocate for a delinquent. I am of opinion that notwithstanding the Rules, when the management is represented by an advocate as presenting officer in the enquiry, the delinquent cannot be denied the assistance of a lawyer, which is the settled law. The fact that Sri. Raghunathan Pillai was appointed as the presenting officer is very clear from Ext. P4 enquiry report. When the respondents have not chosen to deny the specific averment of the petitioner that Sri. Raghunathan Pillai was a law graduate trained in law, I have no option but to accept the same as true. If that be so, the refusal to grant permission to the petitioner to engage a lawyer to assist him is clearly violative of principles of natural justice. The impugned orders are liable to be quashed on that ground alone insofar as those orders have been passed on the basis of an O.P. No. 15030/02 -: 5 :- enquiry conducted in violation of principles of natural justice. I also find that in Ext. P10, the Managing Director also relies on a preliminary enquiry report by the Assistant Personnel Manager Sri. Appukuttan Pillai, who has on enquiry with the flour mart reported that the allegations are true. But, that preliminary enquiry report was not included as evidence in the enquiry proceedings nor was Sri. Appukuttan Pillai who submitted the report examined as a witness. Therefore, reliance on that report by the Managing Director in support of Ext. P10 order is also clearly violative of principles of natural justice. 7. Secondly, the petitioner has stated in the original petition that while he was a Senior Typist in the service of the Corporation, he was appointed to the post of Personnel Assistant to the Managing Director by direct recruitment. He also points out that the post shown immediately below the post of Personnel Assistant to the Managing Director, in the Rules, is that of Junior Officer. It is settled law that if a person is directly recruited to a post, he cannot be reverted to a lower post insofar as he has not worked in any lower post in the hierarchy and therefore the punishment of reduction to a lower post cannot be imposed on the petitioner. 8. As regards the contentions on merits, in view of my above findings, which are sufficient to set aside the impugned orders, I am not going into the same. Accordingly, the impugned orders are set aside. The original petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/