IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 WA.No. 231 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.16178/2005 Dated 22/08/2008 .................... APPELLANT(S): PETITIONER ------------------------ R.RAVEENDRAN PILLAI, S/O.RAGHAVAN PILLAI, UTHRADAM, NEAR AGRO INDUSTRIES, NEDUVATHOOR, NEELESWARAM P.O., VIA. KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SMT.S.KARTHIKA RESPONDENT(S): RESPONDENTS -------------------------- 1. DEPUTY DIRECTOR (SURVEY), PATHANAMTHITTA. 2. DIRECTOR, SURVEY AND LAND RECORDS, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REP. BY THE SECRETARY TO GOVT., REVENUE (E) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. GOVT.PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2010, ALONG WITH WA NO. 2365 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. Nos.231 & 2365 of 2009 ---------------------------------------------- Dated 2nd February, 2010. J U D G M E N T Balakrishnan Nair, J. These Writ Appeals are filed against the judgment of the learned Single Judge in W.P.(C) No.16178/05, dated 22.8.2008. W.A.No.231/09 is the appeal filed by the writ petitioner, whereas W.A.No.2365/09 is filed by the respondents. W.A.No.231/2009 This Writ Appeal is treated as the main case, for the purpose of referring to the facts and exhibits. 2. The appellant joined the Department of Survey and Land Records as Surveyor Grade II, on 16.7.1970. On 1.6.1985, he applied for leave without allowances for five years, to take up employment abroad. The said application was allowed by the Government, by Ext.P1 Government Order dated 30.1.1986. It was stated in Ext.P1 that the grant of leave will be subject to the conditions laid down in G.O.(P) No.780/83/Fin. dated 16.12.1983. It was also stated that the five years' period shall be reckoned WA Nos.231 & 2365/09 2 from the date of availing of the leave by the incumbent. The appellant did not avail the leave in near future. Finally, after the lapse of six years, he went abroad on 1.9.1992 and on the said date, he submitted Ext.P2 application, for granting five years leave from 1.9.1992. 3. When the said leave application was forwarded to the Government, the Government returned it, along with a letter dated 15.3.1993, directing to take disciplinary action against the appellant, as he has left India, without obtaining leave of absence. Accordingly, a charge sheet dated 28.4.1993 was issued to the appellant, through the Superintendent of Resurvey No.II, Pathanamthitta, as the appellant was working under the said officer. Since the memo could not be served on the appellant personally, as he was abroad, the same was published in two Malayalam Dailies, Kerala Kaumudi and Deepeka, respectively, on 14.7.1993 and 10.7.1993. 4. The appellant returned from abroad and made a submission before his immediate superior, requesting to allow him to join duty, on 18.11.1995. But, he was not allowed to join duty. While so, he was served with Ext.P3 memo of charges WA Nos.231 & 2365/09 3 dated 8.9.1997, for being unauthorisedly absent from duty, from 1.9.1992. He submitted Ext.P4 reply, on 18.9.1997, denying the charge against him. Later, the appellant filed O.P.No.16983/97, praying inter alia to permit him to join duty and also to pay him salary from 18.11.1995. But, the said writ petition was disposed of by Ext.P5 judgment dated 29.9.1997, directing the Deputy Director of Survey, Pathanamthitta, to complete the disciplinary action and pass final orders, pursuant to the memo of charges dated 8.9.1997. In the meantime, the Enquiry Officer submitted the report, finding the appellant guilty. So, he was served with Ext.P6 notice dated 17.1.1998, proposing to remove him from service. The appellant submitted Ext.P7 reply and prayed for exonerating him and also to permit him to rejoin duty. But, the Director of Survey and Land Records, by Ext.P8 order dated 23.3.1998, removed him from service, with effect from 1.9.1992. Challenging Ext.P8, the appellant preferred Ext.P11 appeal before the Government, on 1.4.1998. The said appeal was finally heard and dismissed by the Government, by Ext.P12 order dated 20.1.2005. In the meantime, the appellant crossed the age of superannuation, on 31.12.2002. The writ petition was filed by WA Nos.231 & 2365/09 4 him, challenging Exts.P8 and P12 orders and also seeking consequential reliefs. 5. The writ petitioner/appellant, contended that in view of the inordinate delay in taking the disciplinary action against him, the consequential orders are liable to the quashed. The respondents filed a counter affidavit, supporting the impugned orders. The learned Single Judge, after hearing both sides, took the view that there was inordinate delay in taking the disciplinary action. It was also found that the punishment imposed is not proportionate to the gravity of the offence. Based on those findings, the learned Judge, ordered to convert the punishment into one of compulsory retirement from service, with effect from 1.9.1992. There was a consequential direction to grant the terminal benefits, in the light of the said direction. Feeling aggrieved by the said judgment, the writ petitioner preferred this Writ Appeal. As noticed earlier, challenging the directions issued in the judgment, the respondents also have filed W.A.No.2365/09. 6. The learned counsel for the appellant attacked the disciplinary proceedings against him, raising the following grounds : Before accepting the findings of the Enquiry Officer, a WA Nos.231 & 2365/09 5 copy of the enquiry report was not served on him. Not only that it was not served on him at that stage, but it was never served on him, at any point of time. So, the proceedings are vitiated, in view of the decision of the Apex Court in Managing Director, ECIL, Hyderabad and others v. B.Karunakar and others [(1993) 4 SCC 727]. Secondly, it is contended that there is inordinate delay in initiating the disciplinary proceedings. Thirdly, it is pointed out that as per Ext.P1 order, leave for five years was granted from the date of availing of the leave. Therefore, he was entitled to be on leave from 1.9.1992 to 30.8.1997. In fact, he reported back for duty, on 18.11.1995 and therefore, he had not committed any misconduct. 7. The learned Government Pleader, on the other hand, submitted that in this case, as the appellant failed to avail the leave granted as per Ext.P1 within six months, it stood cancelled, in view of Circular No.70/84/Fin. dated 8.10.1984. The said Circular says that unless the leave granted is availed of within six months, the said leave shall stand cancelled automatically. The relevant portion of the Circular reads as follows :- WA Nos.231 & 2365/09 6 “In the Government Order cited, revised guidelines have been prescribed for the grant of leave to take up employment abroad or within the country, in supersession of the earlier orders on the subject. Government are pleased to clarify that in cases when such leave is sanctioned with effect from the date of avail, without specifying the date of effect, the order granting the leave will automatically stand cancelled on expiry of six months from its date, unless the leave is availed of in the meantime, and that when leave is sanctioned from a specified date, the officer concerned should normally proceed on leave from that date.” Relying on the above Circular, the learned Government Pleader submitted that the leave already sanctioned to the appellant by Ext.P1, stood cancelled after the lapse of six months. So, his absence from 1.9.1992 was unauthorised and without sanction. In view of the said admitted position, even if the enquiry report is not furnished to the appellant, no prejudice had been caused to him. In Managing Director, ECIL, Hyderabad and others v. B.Karunakar and others (supra), at paragraph 31, the Apex Court held that the enquiry proceedings need be quashed for the non-supply of the copy of the enquiry report, if only prejudice is shown by the delinquent employee. The learned Government Pleader pointed out that Ext.P2 application itself would show that the appellant was aware that the leave granted to him no longer survived and therefore, he required fresh leave from 1.9.1992. It WA Nos.231 & 2365/09 7 was also pointed out that the facts disclosed in this case would show that there was no delay in taking the disciplinary action. In 1993 itself, the disciplinary proceedings commenced, by issuing the memo of charges. Since it could not be served on him, the same was immediately published in the news papers. The said proceedings finally culminated in passing of Ext.P8, on 23.3.1998. Therefore, the learned Government Pleader prayed for dismissing the Writ Appeal. 8. In answer, the learned counsel for the appellant submitted that replacing the Government Order of 1983, under which the leave as per Ext.P1 was granted, the Government introduced Appendix XII-A to Part I Kerala Service Rules, in 1996, with retrospective effect from 1983. So, Circular No.70/84/Fin. issued on 8.10.1984, mentioned above, did not survive, after the introduction of Appendix XII-A to the Kerala Service Rules. 9. We considered the rival submissions made at the bar and went through the pleadings and materials on record. We notice that the appellant was granted leave as per Ext.P1 Government Order dated 30.1.1986, subject to the terms of G.O. (P) No.780/83/Fin. dated 16.12.1983. At the relevant time, there WA Nos.231 & 2365/09 8 was no rule or order, which dealt with the position as to what would happen, if the leave granted was not availed within a reasonable time limit. To fill this lacuna, Circular No.70/84/Fin. was issued. Since at the relevant time, the above mentioned Government Order dated 16.12.1983 and the Circular dated 8.10.1984 were occupying the field, we have no doubt in our mind that on the expiry of six months from 30.1.1986, the leave granted to the appellant stood cancelled. In view of the above position, the absence of the appellant from 1.9.1992 to 18.11.1995 was unauthorised. There is technical violation of the principles laid down by the Apex Court that before accepting the report of the Enquiry Officer, a copy of the same should be served on the delinquent. But, as canvassed by the learned Government Pleader, the Supreme Court in Managing Director, ECIL, Hyderabad and others v. B.Karunakar and others (supra) held that unless prejudice is shown, there should not be any mechanical interference with the orders passed by the disciplinary authorities. The relevant portion of the judgment reads as follows:- “31. Hence, in all cases where the enquiry officer's WA Nos.231 & 2365/09 9 report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal set aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.” In view of the above authoritative pronouncement, the High Court WA Nos.231 & 2365/09 10 need interfere with a disciplinary proceedings on the ground of non-furnishing of the copy of the enquiry report, only if prejudice is proved. In this case, the undisputed fact is that the appellant was absent from 1.9.1992, without the leave being sanctioned by the competent authority. Therefore, his absence was unauthorised. So, the remand of the matter and hearing of the appellant are not going to improve the situation. It is going to be an empty formality and amounts to issuing a futile writ. Therefore, the contention of the appellant regarding the violation of the principles of natural justice, cannot be accepted. We also notice that there was not much delay in initiating and finalizing the disciplinary proceedings. The contention to the contrary, made by the appellant cannot be accepted. The learned Single Judge wrongly took the view that there was inordinate delay in finalizing the disciplinary proceedings. In view of the above position, we find no reason to interfere with the judgment under appeal, based on the grounds canvassed by the appellant herein. Accordingly, the Writ Appeal is dismissed. W.A.2365/09 : 10. The learned Government Pleader, who appeared WA Nos.231 & 2365/09 11 for the appellants in this Writ Appeal, submitted that the finding of the learned Single Judge that there was inordinate delay from the part of the respondents/appellants, in initiating and completing the disciplinary proceedings against the writ petitioner/respondent, is factually incorrect. Based on that incorrect finding, the reliefs have been granted. So, the judgment, to the extent appealed against, is liable to be reversed, it is submitted. 11. We heard the learned counsel for the respondent/writ petitioner, who supported the judgment under appeal. We notice that the respondent left the service, after serving 22 years. Since he had already completed 20 years of service, he could have applied for voluntary retirement and gone abroad. Since the absence in this case is unauthorised, and the same is admitted, we think, the finding of guilt against the respondent is tenable. But, having regard to the facts of the case and the long past service of the respondent, we think, he should be allowed to draw pension and other pensionary benefits. Otherwise, the action taken by the disciplinary authority will be termed as grossly disproportionate to the gravity of the offence. WA Nos.231 & 2365/09 12 Therefore, we sustain the order of the learned Single Judge, though for slightly different reasons. In the result, this Writ Appeal is also dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. tgs K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. Nos.231 & 2365 of 2009 ---------------------------------------------- J U D G M E N T Dated 2nd February, 2010.