IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 OP.No. 6723 of 2002(A) --------------------------------- PETITIONER(S): ------------------------ S.SUKUMARAN NAIR,FARM SUPERVISOR GR.II ECF UNIT,KERALA AGRICULTURAL UNIVERSITY, ALATHUR. BY ADV. SRI.K.GOPALAKRISHNA KURUP SRI.S.MANU RESPONDENT(S): --------------------------- 1. KERALA AGRICULTURAL UNIVERSITY REPRESENTED BY ITS REGISTRAR. 2. THE VICE-CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY,VELLANIKKARA,THRISSUR. 3. THE REGISTRAR, KERALA AGRICULTURAL UNIVERSITY,VELLANIKKARA,THRISSUR. 4. THE ESTASTE OFFICER AND ENQUIRY OFFICER, KERALA AGRICULTURAL UNIVERSITY,VELLANIKKARA, THRISSUR. R1 TO R4 BY ADV. SMT.P.JAYA, SC, AGRL. UNIVERSITY THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 2/- -2- O.P.NO.6723/2002 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE LETTER DATED 15/12/99 ISSUED BY THE ASSOCIATE PROFESSOR SUGARCANE RESEARCH STATION, THIRUVALLA. P2 COPY OF THE CHARGES DATED 22/12/99 ISSUED BY THE 3RD RESPONDENT. P3 COPY OF THE REPLY STATEMENT DATED 12/1/2000 P4 COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 14/4/2000. P5 COPY OF THE LETTER DATED 22/4/2000 FROM THE 4TH RESPONDENT. P6 COPY OF THE NOTICE DATED 20/9/2000 ISSUED BY THE 3RD RESPONDENT. P7 COPY OF THE ENQUIRY REPORT. P8 COPY OF THE STATEMENT OF THE PETITIONER TO EXT.P6 SHOW CAUSE NOTICE. P9 COPY OF THE ORDER DATED 18/4/2001 ISSUED BY THE 3RD RESPONDENT IMPOSING PENALTY ON THE PETITIONER. P10 COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT. P11 COPY OF THE ORDER DATED 20/6/2001 DISMISSING THE APPEAL. P12 COPY OF THE ORDER DATED 26/4/1996 PRESCRIBING THE DUTIES AND RESPONSIBILITIES OF FARM SUPERVISORS. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` O.P. No. 6723 of 2002 A ``````````````````````````````````````````````````````````` Dated this the 27th day of May, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioner was working as a Farm Supervisor Grade-II in the E.C.F. Unit of Kerala Agricultural University at Alathur. He was issued Ext.P2 memo of charges detailing various acts of misconducts. He filed Ext.P3 explanation. Subsequently, the fourth respondent issued Ext.P4 notice, stating that it is proposed to conduct a detailed enquiry and that he proposed to visit the Rice Research Station, Mancompu on 7.04.2000 and that he wanted to hear the petitioner. Subsequently, the petitioner was issued Ext.P5 notice, stating that the enquiry proposed as per Ext.P4 was postponed to 04.05.2000. Petitioner contends that, on 04.05.2000, the enquiry officer visited the farm. In the original petition, it is further stated thus:- “ It is understood that he inspected the O.P.No.6723/2002 : 2 : registers and examined six witnesses. Though the petitioner had reported before him as directed, he was not examined and no opportunity was provided to him to cross- examine the witnesses who deposed before the enquiry officer. Petitioner was not permitted even to be present before the fourth respondent at the time of examination of witnesses and also at the time of verification of the registers. No witness schedule was provided to him and he was denied the opportunity to adduce any defence evidence.” 2. Subsequently, the petitioner was issued Ext.P6 show cause notice, enclosing Ext.P7 enquiry report in which the petitioner was found guilty of the charges levelled against him. In Ext.P6, it is stated that the University had decided to accept the enquiry report and impose appropriate punishment on the petitioner. He was called upon to show cause why the appropriate punishment should not be imposed on him. The petitioner submitted Ext.P8 explanation, pointing out various infirmities in the enquiry report. However, by Ext.P9, he was O.P.No.6723/2002 : 3 : informed that his explanation has been rejected and he was imposed the punishment of recovery of an amount of `1,100/- in two instalments and two annual increments were barred without cumulative effect. He filed Ext.P10 appeal, which was rejected by Ext.P11. It is in these circumstances, the original petition was filed. 3. In so far as the enquiry conducted is concerned, in grounds B and C of the original petition, the petitioner has averred thus:- “ B. The disciplinary proceedings were conducted against the petitioner in violation of the principles of natural justice and also in violation of the relevant provisions of the University Statutes. The procedure for imposing penalties on the officers, teachers and other employees of the first respondent university is provided by SRO No.293/72 issued by the Government of Kerala under Section 63 of the Kerala Agricultural University Act. Statute 35 deals with adducing of evidence. It is specifically O.P.No.6723/2002 : 4 : provided in the said provision that the delinquent employee shall be entitled to cross-examine the witnesses examined in support of the charges and to give evidence in person and to have such witnesses, as may be produced and examined in his defence. Explanation to statute 35 provides that if the Inquiring Authority proposes to rely on the oral evidence of any witness, the authority shall examine such witness and give an opportunity to the accused university employee to cross-examine the witnesses. But in the present enquiry, though the fourth respondent had examined six witnesses in support of the charge the petitioner was not permitted to cross-examine any of the witnesses. He was not even permitted to be present at the time of examination of witnesses. No witness schedule was issued to the petitioner. Though the petitioner has submitted a written request before the fourth respondent to issue copies o the deposition of the witnesses, that request was not considered. It is evident from the enquiry O.P.No.6723/2002 : 5 : report that the conclusions are arrived at relying on the oral evidence of the witnesses. Petitioner submits that this is in violation of the above mentioned specific provisions of the University statutes. Further the enquiry authority has violated the fundamental principles of natural justice which says that nobody shall be convicted on the basis of evidence collected behind his back. The enquiry conducted by the fourth respondent is therefore illegal. C. Statute 35 issued by the Government vide SRO 293/72 provides that the delinquent employee shall be entitled to give evidence in person and to give such witnesses examined in his defence. The fourth respondent while conducting the enquiry refused to provide the petitioner any opportunity to adduce evidence in his defence. The illegal and unjust denial of opportunity to adduce defence evidence has vitiated the enquiry which culminated in Ext.P7 report. If an opportunity was provided to the petitioner adduce any defence O.P.No.6723/2002 : 6 : evidence that would have certainly changed the conclusion of the enquiry. Though the petitioner was examined, it is clear from Ext.P7 report that the fourth respondent has ignored the evidence of the petitioner without any discussion.” 4. There is no counter affidavit filed in this original petition. The enquiry report also does not indicate that the aforesaid averments made by the petitioner are incorrect. Therefore, I should proceed on the assumption that the averments of the petitioner are factually correct. If that be the case, the enquiry conducted by the fourth respondent is vitiated for violation of the principles of natural justice and cannot be sustained. 5. Apart from all that, it is settled law that, before an enquiry report is accepted by the disciplinary authority, the delinquent is entitled to be served a copy of the enquiry report and to file his representation against the findings of the enquiry officer. In this case, Ext.P6 show cause notice shows O.P.No.6723/2002 : 7 : that, on receipt of Ext.P7 enquiry report, that was accepted without affording an opportunity to the petitioner to file his representation. On the other hand, he was given a show cause notice why punishment shall not be imposed. Such a proceedings adopted by the disciplinary authority also cannot be upheld. 6. Therefore, for the aforesaid reasons, Ext.P7 enquiry report, Ext.P9 order of punishment and Ext.P11 order rejecting the petitioner's claim are liable to be interfered with. Therefore, the aforesaid proceedings will stand quashed and the original petition will stand disposed of with the aforesaid observations. It is declared that the petitioner will be entitled to all the consequential benefits. Sd/- (ANTONY DOMINIC, JUDGE) aks/30.05 // True Copy // P.A. To Judge O.P.No.6723/2002 : 8 : ANTONY DOMINIC, J. ```````````````````````````````````````` O.P. No. 6723 of 2002 A ```````````````````````````````````````` J U D G M E N T 27th day of May, 2011