IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 34691 of 2004(E) --------------------------------------- PETITIONER(S): ----------------------- K.POCKER, S/O.KUNHIKUTTY ALI HAJI, AGED 59, SENIOR MANAGR, (HIGHER GRADE), (RETIRED), KERALA STATE FINANCIAL ENTERPRISES LTD., NOW RESIDING AT KALLANGODAN HOUSE, KALPETTA, WYNAD DISTRICT. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.), SRI.K.JAYAKUMAR, SRI.P.B.KRISHNAN, SRI.HARISH R. MENON. RESPONDENT(S): ------------------------- 1. THE KERALA STATE FINANCIAL ENTERPRISES LIMITED, REP. BY ITS MANAGING DIRECTOR, REGD. OFFICE "BHADRATHA", MUSEUM ROAD, THRISSUR-680 020 2. THE MANAGING DIRECTOR, THE KERALA STATE FINANCIAL ENTERPRISES LTD., REGD. OFFICE: "BHADRATHA", MUSEUM ROAD, THRISSUR-680 020. 3. M.K.KARTHIKEYAN, MANAGING DIRECTOR (FORMER), THE KERALA STATE FINANCIAL ENTERPRISES LTD., REGD. OFFICE: "BHADRATHA", MUSEUM ROAD, THRISSUR-680 020. 4. SRI.P.K.RADHAKRISHNAN, ADVOCATE, (ENQUIRY OFFICER, K.S.F.E. LTD.), NEAR TOWN HALL, VADAKARA, KOZHIKODE DISTRICT. R1 & R2 BY ADV. SRI.E.K.NANDAKUMAR, ADV. SRI.A.K.JAYASANKAR NAMBIAR, ADV. SMT.PRIYA MAHESH, ADV. SMT.PRIYA MANJOORAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON 21/10/2008 DELIVERED THE FOLLOWING: W.P.(C). NO.34691/2004-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER OF COMMENDATION DTD. 26/12/1998 ISSUED TO THE PETITIONER. EXT.P.2: COPY OF THE SENIORITY LIST BEARING NO. 4105/S DTD. 15/05/1999 EVIDENCING THE SENIORITY OF THE PETITIONER. EXT.P.3: COPY OF THE MEMO DTD. 04/01/1999 ISSUED TO THE PETITIONER. EXT.P.4: COPY OF THE CHARGE MEMO BEARING NO. 4847 DTD. 03/05/1999 ISSUED TO THE PETITIONER. EXT.P.5: COPY OF THE LETTER DTD. 18/05/1999 FROM THE PETITIONER TO R.2. REQUESTING TO MAKE AVAILABLE THE COPIES OF DOCUMENTS. EXT.P.6: COPY OF THE LETTER BEARING NO. 4847 DTD. 25/05/1999 ISSUED TO THE PETITIONER. EXT.P.7: COPY OF THE LETTER FROM PETITIONER ADDRESSED TO BRANCH MANAGER, KSFE, KALPETTA DTD. 31/05/1999. EXT.P.8: COPY OF THE LETTER FROM BRANCH MANAGE, KSFE, KALPETTA, ADDRESSED TO THE PETITIONER DTD. 01/06/1999. EXT.P.9: COPY OF THE LETTER FROM BRANCH MANAGER, KSFE, KALPETTA, ADDRESSED TO THE PETITIONER DTD. 02/06/1999. EXT.P.10: COPY OF THE LETTER FROM PETITIONER ADDRESSED TO R.1. DTD. 02/06/1999. EXT.P.11: COPY OF THE LETTER FROM PETITIONER ADDRESSED TO BRANCH MANAGER, KSFE, KALPETTA, DTD. 07/06/1999. EXT.P.12: COPY OF THE LETTER FROM BRANCH MANAGER, KSFE, KALPETTA, ADDRESSED TO THE PETITIONER DTD. 16/06/1999. EXT.P.13: COPY OF THE LETTER FROM PETITIONER ADDRESSED TO R.1. DTD. 23/06/1999. EXT.P.14: COPY OF THE LETTER FROM KSFE ADDRESSED TO THE PETITIONER DTD. 09/07/1999. EXT.P.15: COPY OF THE WRITTEN EXPLANATION FROM PETITIONER FILED BEFORE R.1. DTD. 21/07/1999. EXT.P.16: COPY OF THE MEMO DTD. 07/10/1999 ISSUED TO THE PETITIONER. EXT.P.17: COPY OF THE COMMUNICATION DTD. 21/10/1999 REINSTATING THE PETITIONER TO SERVICE SINCE DELAY INVOLVED IN THE DISCIPLINARY PROCEEDINGS. EXT.P.18: COPY OF THE LETTER DTD. 01/02/2000 FROM PETITIONER FILED BEFORE R.4. AT THE FIRST SITTING OF THE ENQUIRY. W.P.(C). NO.34691/2004-E: EXT.P.19: COPY OF THE LETTER DTD. 27/03/2000 FROM PETITIONER FILED BEFORE R.4. EXT.P.20: COPY OF THE LIST OF WITNESSES DTD. 28/03/2000 FILED BY THE RESPONDENTS. EXT.P.21: COPY OF THE LETTER FROM THE MANAGEMENT REPRESENTATIVE TO R.4. SUBMITTED ON 28/03/2000. EXT.P.22: COPY OF THE LETTER DTD. 31/03/2000 FROM PETITIONER FILED BEFORE R.4. COMPLAINING OF NON-RECEIPT OF COPIES OF DOCUMENTS MENTIONED IN CHARGE MEMO. EXT.P.23: COPY OF THE LETTER DTD. 20/05/2000 FROM PETITIONER TO R.4. EXT.P.24: COPY OF THE JUDGEMENT OF THIS HONOURABLE COURT DTD. 16/01/2001 IN O.P0. 35293/2000-B. EXT.P.25: COPY OF THE JUDGEMENT OF THIS HONOURABLE COURT DTD. 03/02/2001 IN W.A. 628/2001. EXT.P.26: COPY OF THE LETTER DTD. 06/02/2001 FROM PETITIONER TO R.4. EXT.P.27: COPY OF THE LETTER DTD. 17/03/2001 FROM PETITIONER TO R.4. EXT.P.28: COPY OF THE LETTER FROM KSFE TO THE PETITIONER DTD. 25/05/2001 FORWARDING A COPY OF ENQUIRY REPORT DTD. 18/04/01 SEEKING HIS REMARKS. EXT.P.29: COPY OF THE LETTER DTD. 12/06/2001 FROM PETITIONER TO K.S.F.E. SETTING OUT CASE AGAINST THE ENTIRE DISCIPLINARY PROCEEDINGS, ENQUIRY AND ENQUIRY REPORT. EXT.P.30: COPY OF THE SHOW CAUSE MEMO DTD. 25/07/2001 ISSUED TO THE PETITIONER. EXT.P.31: COPY OF THE LETTER DTD. 28/08/2001 FROM PETITIONER TO R.2. GIVING EXPLANATION. EXT.P.32: COPY OF THE LETTER DTD. 11/09/2001 FROM PETITIONER TO R.2. REQUESTING FOR PERSONAL HEARING. EXT.P.33: COPY OF THE ARGUMENT NOTE DTD. 16/11/2001 FROM PETITIONER TO BOARD OF DIRECTORS OF K.S.F.E. IN SUPPORT OF HIS APPEAL. EXT.P.34: COPY OF THE MEMO DTD. 19/02/03 ISSUED TO THE PETITIONER IMPOSING STRONG WARNING. EXT.P.35: COPY OF THE REPRESENTATION DTD. 24/02/2003 FROM PETITIONER TO R.1. SEEKING PROMOTION TO THE POST OF REGIONAL MANAGER W.E.F. 31/12/2000. EXT.P.36: COPY OF THE MEMORANDUM OF APPEAL DTD. 27/02/2003 FILED BY PETITIONER BEFORE R.1. EXT.P.37: COPY OF THE LETTER DTD. 21/03/2003 ISSUED TO THE PETITIONER, REJECTING EXT.P.35 REPRESENTATION. EXT.P.38: COPY OF THE LETTER DTD. 24/03/2003 ISSUED TO THE PETITIONER, GIVING HIM PROMOTION W.E.F. 04/01/2003. W.P.(C). NO.34691/2004-E: EXT.P.39: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DTD. 24/03/2004 IN O.P. NO. 24543/2001. EXT.P.40: COPY OF THE ARGUMENT NOTE DTD. 28/07/2004 SUBMITTED BY THE PETITIONER TO BOARD OF DIRECTORS AT PERSONAL HEARING. EXT.P.41: COPY OF THE ORDER DTD. 25/08/2004 DISPOSING OF THE APPEAL FILED BY THE PETITIONER. EXT.P.42: COPY OF THE REPRESENTATION MADE BY THE PETITIONER BEFORE THE R.2. DTD. 12/11/2004. EXT.P.43: COPY OF THE REMINDER LETTER SENT BY THE PETITIONER TO THE R.2. DTD. 13/06/2005. //TRUE COPY// P.S. TO JUDGE. prv. V.GIRI, J. ------------------------- W.P.(C).No.34691 of 2004 ------------------------- Dated this the 21st day of October, 2008. JUDGMENT Petitioner challenges Ext.P34 order passed by the 2nd respondent Managing Director of the Kerala State Financial Enterprises, imposing a punishment on him, on conclusion of disciplinary proceedings initiated against the petitioner for a variety of charges. Ext.P34 was challenged by the petitioner in appeal in terms of the Standing Orders and the same was also dismissed as per Ext.P41 order. By Ext.P41 order, the Board of Directors affirmed Ext.P34 order. Ext.P41 is also, therefore, challenged in this writ petition. 2. As evidenced by Ext.P2, petitioner (Senior Manager) was eligible for promotion to the higher post of Regional Manager. By Ext.P3 memo dated 4.3.1999, petitioner was suspended from service. Ext.P4 memo of charges was issued to the petitioner. By Ext.P5 letter dated 18.5.1999 petitioner sought for copies of various documents specifically referred to therein. Petitioner was told vide Ext.P6 that directions have been issued to the Kalpetta Branch to provide him copies of the W.P.(C).NO.34691/04 :: 2 :: relevant documents. Ext.P7 request was, therefore, made to the Branch Manager at Kalpetta reiterating the requests made in Ext.P5. This was met with Ext.P8 stating that certain documents were readily available and those which are available will be permitted to be perused. It seems that the petitioner felt that he would not be in a position to give a reply to the memo of charges and submit a written statement of defence, unless he is supplied with the documents. He, therefore, sought for extension of time to submit a written statement. Petitioner makes reference to the repeated requests made by him in this regard and also refers to Ext.P14 dated 9.7.1999 whereby he was informed that many of the documents, copies of which he had sought for, are not relevant in this context. 3. An Enquiry Officer was appointed. The enquiry was proceeded with. Petitioner reiterated his request for copies of the documents before the Enquiry Officer. 4. The management got Exts.M1 to M28 marked at the time of enquiry. Petitioner has a case that even the list of documents relied on by the management were not given to him. He again made a W.P.(C).NO.34691/04 :: 3 :: request, as evidenced by Ext.P22, that at least copies of the documents, which are marked by the management, should be given to him. In the meanwhile, petitioner aspired for promotion as Regional Manager on the strength of his seniority as reflected in Ext.P2 and the same had reached this court, as evidenced by Exts.P24 and P25 judgments. The petitioner's claim, in this regard, was directed to be considered on completion of the enquiry. As could be seen from Ext.P26, petitioner persisted with the claim for receipt of the documents. On completion of the enquiry, he submitted a detailed argument note with reference to each charge and he repeated his complaint that there has been violation of the principles of natural justice, inter alia, on account of the fact that he was not only not supplied the documents which he had sought for in the first instance to substantiate his defence, but was also not supplied with the documents sought to be marked by the management in advance. Ext.P28 Enquiry Report was drawn up on 18.4.2001 and on receipt of a copy of the same, petitioner submitted a detailed representation Ext.P29 raising his objections W.P.(C).NO.34691/04 :: 4 :: regarding the findings contained in the Enquiry Report. He had raised a contention on each one of the findings contained in the Enquiry Report. Ext.P30 show cause notice was issued to the petitioner proposing a punishment of reversion. 5. Pursuant to a direction issued by this court in O.P.No.24543/04, petitioner was afforded an opportunity for submitting an explanation to Ext.P30. This was done as per Ext.P31. Personal hearing was afforded on 16.11.2001. 6. Final orders on the disciplinary action was not passed for a long time and petitioner was due to retire on 28.2.2003. He contends that on 21.2.2003 he was served with Ext.P34 which is a final order passed in the disciplinary proceedings. He was let off with a “strong warning”. An appeal filed by the petitioner before the Board of Directors as per the Standing Orders [Ext.P36] was rejected as per Ext.P41 and as stated above, petitioner challenges Exts.P34 and P41. 7. A detailed counter affidavit has been filed by the respondents supporting the orders impugned and a reply affidavit has been filed by the petitioner. W.P.(C).NO.34691/04 :: 5 :: 8. I heard learned counsel for the petitioner Mr.P.B.Krishnan, and learned counsel for the respondents Mr.Anand. 9. Mr.Krishnan, learned counsel for the petitioner contends that the enquiry proceedings against the petitioner was clearly vitiated by violation of principles of natural justice. He contends that immediately on receipt of the memo of charges Ext.P1, petitioner made a request for copies of various documents as per Ext.P5. He was assured that instructions have been given to the Kalpetta Branch to supply him with the copies of the relevant documents. He reiterated his request in Ext.P7 and thereafter on several occasions. He made a request before the Enquiry Officer, as is evidenced by Ext.P14. He also made a request to the Enquiry Officer to summon the documents. Petitioner was disabled from submitting his statement of defence, because of the omission/failure on the part of the management to supply him those documents. 10. The management had produced certain documents from their side at the time of enquiry. Copies of the same were not supplied to the W.P.(C).NO.34691/04 :: 6 :: petitioner before they were produced before the Enquiry Officer. In fact, the Enquiry Officer should have ensured that the petitioner gets the copies of the documents and is then given some time to peruse the same and if necessary, call for details which may throw light on the aspects that are otherwise contended to be relevant by the management with reference to those documents. After all, as many as 18 charges were originally formulated and each of them should be considered only with reference to the documents in the custody of the management. Reference was made to the discharge of duties by the petitioner when he was in Kalpetta Branch. That the management itself was not very certain about the correctness of the charges is evident from the fact that though as many as 18 charges were originally laid against the petitioner, the management had given up charges Nos.1, 7, 8, 14, 15, 16 and 18. Charges 3 and 4 were partly found. Charges Nos.5, 6, 9, 10, 13 and 17 were found fully. The petitioner had, on his own, let in evidence. Learned counsel for the petitioner submits that there is a genuine attempt on the part of the employee to prove in a pro- W.P.(C).NO.34691/04 :: 7 :: active manner that the charges levelled against him were baseless. He had examined Dws.1 to 11. He had produced documents Exts.D1 to D28. 11. Mr.Krishnan contends that there is absolutely no reference whatsoever, worth the name to the employee's evidence by the Enquiry Officer. He submits that a reference to the Enquiry Report will show that the Enquiry Officer condescended to refer to the employee's evidence at two portions of the Enquiry Report, first at page 106 dealing with Issue No.3 and secondly at para 14 dealing with Issue No.9. He submits that there is no reference to the plethora of documents produced by the delinquent employee or the testimony of the 11 witnesses examined on behalf of the employee in the whole of the report. 12. On receipt of the report, a detailed petition was submitted by the employee before the disciplinary authority pinpointing every defect in the Enquiry Report as such. Thus, the employee did everything to defend himself in the Enquiry. 13. It is contended that a personal hearing was conducted by the Managing Director in November, 2001 [16.11.2001] and ultimately it was 14 months' W.P.(C).NO.34691/04 :: 8 :: thereafter that the final order was passed on 19.2.2003, i.e., on the eve of his retirement on 28.2.2003. Therefore, the personal hearing was nothing but a formality and there is lack of application of the mind by the disciplinary authority. This is evident by the cryptic manner in which Ext.P34 has been passed. Though a detailed memorandum of appeal was submitted traversing each one of the findings in the Enquiry Report, the same was also met with a cryptic appellate order Ext.P41. He submits that ultimately the only purpose achieved by the management, in initiating disciplinary proceedings against the petitioner and terminating him on the eve of his retirement was to deny him the benefit of promotion to the post of Regional Manager and in said process enable 4 of his juniors to get promotion. Since the petitioner retired on 28.2.2003, even if this court accepts his contention, it could only result in the management being required to give the petitioner the benefit of a promotion from the date on which his immediate juniors were promoted and it is prayed that consequential benefits may be reflected, at least, in his retirement benefits. W.P.(C).NO.34691/04 :: 9 :: 14. Learned counsel for the respondents, on the other hand, submits that strict rules are obviously not applicable to the disciplinary proceedings. There seems to have been laches on the part of the petitioner in dragging the disciplinary proceedings. None of the documents sought for by him was strictly relevant and what was relevant was supplied to him. In the ultimate analysis, the petitioner was let off with a warning, whereas a more severe punishment could have been awarded. Learned counsel for the respondents submitted that there is no reason for interference under Article 226 of the Constitution. 15. Having heard counsel on both sides and having perused the Enquiry Report and the other documents placed on record and the detailed explanation offered by the petitioner, I am of the view that the petitioner is well founded in his contention that there has been violation of the principles of natural justice in the conduct of the enquiry, which, to an extent was carried forth up to the final stage of the disciplinary proceedings resulting in the final order passed by the disciplinary authority. W.P.(C).NO.34691/04 :: 10 :: 16. As was noted above, the petitioner made a request, at the earliest stage of disciplinary proceedings, for supply of copies of the documents. If the charges levelled against him Ext.P4 are perused, it can be seen that the documents sought for by him cannot be considered as unnecessary or otherwise totally irrelevant, nor could it be contended that the documents are otherwise not available. The management would obviously be the custodian of the documents and unless there is a weighty reason for not permitting or disclosing the same (I do not think it is possible for the management to take up a contention in that behalf in relation to the document sought for by the petitioner), then the principles of natural justice dictated that the copies of the documents may be made available to the employee. Of course, if some documents like voluminous registers or other books maintained by the management in the usual course of business are sought, then it is open to the petitioner to note down the details, photo copies taken and then permitted to be marked. If the logistics prevented photo copies being taken and supplied in the case of all the documents, then a W.P.(C).NO.34691/04 :: 11 :: suitable reply should have been given in that regard to the petitioner. Even in such cases, where the petitioner seeks production of some of those documents before the Enquiry Officer, they should have been produced. If the management was unable to do so, then explanation should have been offered. 17. The request made before the Enquiry Officer for copies of the documents produced by the management were not seriously heeded to. Apparently, they were supplied only after the management witnesses were examined. One should remember that the series of charges relatable to functions and duties discharged by the petitioner over several number of years as a Branch Manager at Kalpetta essentially formed the subject matter of enquiry and it would not be reasonable to presume that an officer would be able to give a suitable and fitting reply against the charges levelled, unless he is supplied with the copies of the documents sought for by him and is then afforded a reasonable time to go through the same and give an explanation. Such an opportunity seems to have been denied to the petitioner. W.P.(C).NO.34691/04 :: 12 :: 18. Learned counsel for the respondents is correct in saying that strict rules would not be imported to disciplinary proceedings. Rules of evidence which are otherwise afforded in courts, say, that objections regarding document should be heard before the same is permitted to be admitted in evidence and that mere admission of a document will not amount to proof of its contents is also not a principle, which is not strictly made applicable to disciplinary proceedings. But there is one rule which is applied without any dilution in all disciplinary proceedings. The delinquent must be given a chance to defend himself properly and if he requests for the documents, which are in the custody to the employer, it must be supplied to him, unless there are adequate reasons for refusing this facility. It is not the management's case that any one or all the documents sought for by the petitioner could not have been disclosed before the Enquiry Officer. 19. I also agree with the learned counsel for the petitioner that Ext.P34 reveals a non- application of the mind by the disciplinary authority. The further procedure followed by the W.P.(C).NO.34691/04 :: 13 :: disciplinary authority in affording a personal hearing in November, 2002 and then taking a decision thereon, after a period of 14 months, on the eve of the petitioner's retirement, is also reflective of an attitude, which did not reflect an anxiety to conform to the principles of natural justice. It could be a case of either the disciplinary authority considering the personal hearing as an empty formality or a case where the authority has already taken a decision prior to the personal hearing and then deciding to defer the issuance of an order till the eve of the retirement of the petitioner. One is not able to give any other reasonable explanation for the fact that a personal hearing was afforded to the petitioner on 16.11.2001, but Ext.P34 came to be passed 14 months thereafter, on the eve of the petitioner's retirement-on 28.2.2003. I am, therefore, in agreement with the contention of the petitioner that, there has been a violation of the principles of natural justice. 20. I further take note of the contention taken by the petitioner that there seems to have been a pronounced selective appreciation of the W.P.(C).NO.34691/04 :: 14 :: documents by the Enquiry Officer. Exts.D1 to D28 were marked on the side of the employee. Dws.1 to 11 were examined. Except for a reference in two places, the Enquiry Report is completely silent regarding either the merits of the defence evidence or the lack of it, as the case may be. In fact, there is not even a reference to the documents or evidence adduced by the employee, if not, for accepting it, at least, for declaring that the same are irrelevant. In short, the evidence adduced by the employee seems to have been completely ignored, which was obviously unjust. 21. In the circumstances, I am of the view that the disciplinary proceedings which resulted in Ext.P34 order was vitiated by the principles of natural justice. Petitioner was not dealt with in a fair manner by the disciplinary authority. The serious objections raised by him against the findings in the Enquiry Report have not merited even a cursory consideration at the hands of the disciplinary authority. Petitioner was denied an opportunity to prosecute a challenge against the order passed by the disciplinary authority, even when he was in service and therefore, he was denied W.P.(C).NO.34691/04 :: 15 :: a reasonable chance to seek a promotion to the next higher post of Regional Manager, which otherwise he would have been entitled to. I am in agreement with the contention taken up by the learned counsel for the petitioner that essentially the petitioner was handed a raw deal. 22. An instrumentality of the State is expected to act in a fair and reasonable manner. It is true that the petitioner has retired from service on 28.2.2003. It is, therefore, necessary for this court to mould the reliefs, which the petitioner is entitled to. In the circumstances, I do not think, the petitioner would be entitled to wages of the Regional Manager from the date on which his juniors were promoted to the said post, till the date of his retirement. But, having said so, I am of the view that his retirement benefits should reflect the higher pay, which he was entitled to, had he been promoted as Regional Manager at the appropriate time. In the result, the writ petition is allowed. Exts.P34 and P41 are set aside. The 2nd respondent is directed to pass fresh orders, treating the petitioner as having been eligible for W.P.(C).NO.34691/04 :: 16 :: promotion to the post of Regional Manager, with reference to the date on which his immediate juniors were promoted as per Ext.P2 list. The last drawn pay of the petitioner as on 28.2.2003 should, therefore, be worked out as if the petitioner had been promoted as the Regional Manager with effect from the above date and the retirement benefits due to the petitioner shall be recomputed accordingly. The process, as outlined above, shall be completed and the benefits due to the petitioner shall be disbursed within a period of three months from the date of receipt of a copy of this judgment. Sd/- (V.GIRI) JUDGE sk/ //true copy//