IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 WP(C).No. 19602 of 2004(H) PETITIONER(S): --------------- P.SUGATHAN, EX-CONDUCTOR (KSRTC), PANAKKAL HOUSE, THENKARA P.O., MANNARKKAD. BY ADV. SRI.K.A.ABRAHAM SRI.S.S.NAIR SRI.BIJU MARTIN SMT.P.R.REENA RESPONDENT(S): --------------- 1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM. 2. THE EXECUTIVE DIRECTOR (VIGILANCE), KERALA STATE ROAD TRANSPORT CORPORATION, FORT, THIRUVANANTHAPURAM. 3. EXECUTIVE DIRECTOR (A) AND SECRETARY, KERALA STATE ROAD TRANSPORT CORPORATION, FORT, THIRUVANANTHAPURAM. 4. THE KERALA STATE ROAD TRANSPORT CORPORATION APPELLATE TRIBUNAL, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM. 5. THE INDUSTRIAL RELATIONS MANAGER (VIGILANCE), OFFICE OF THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 19602/2004. -------------------------------------------------------------------- EXT.P1 COPY OF CHARGE MEMO DT. 11-3-2002. EXT.P2 ENQUIRY REPORT DT. 10-7-2002. EXT.P3 SHOW CAUSE NOTICE DT. 3-9-2002 EXT.P4 COPY OF PRO.VLD 3/001254/02 DT. 1-3-2003. EXT,P5 APPEAL DT. 12-3-2003. EXT.P6 PROCEEDINGS DT. 24-5-2003. EXT.P7 ORDER DT. 31-1-2004. EXT.P8 FRESH MEMO OF CHARGES DT. 1-4-2004. EXT.P9 SHOW CAUSE NOTICE DT. 11-10-2004. EXT.P10 REPLY TO SHOW CAUSE NOTICE. EXT.P11 ORDER DT. 6-11-2004. EXT.P12 APPEAL DT. 22-11-2004. EXT.P13 PROCEEDINGS DT. 5-4-2005. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 19602 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 20th October, 2008. J U D G M E N T On certain allegations of misconduct, Ext. P.1 memo of charges was issued to the petitioner. Despite his reply, an enquiry was conducted and the Enquiry Officer filed Ext. P. 2 report. On the basis of that report, the petitioner was imposed with the punishment of removal from service. The Appellate Authority confirmed the same. The petitioner challenged the orders of the disciplinary authority and the appellate authority before the Kerala State Road Transport Corporation Appellate Tribunal. The Tribunal found that the enquiry was not conducted in accordance with the manual of disciplinary proceedings and therefore the enquiry was vitiated. The Appellate Tribunal also found that the disciplinary authority and the appellate authority relied on previous punishments without including the same in the charge sheet issued to the petitioner. The Tribunal further found that the charges have not been properly discussed and appreciated by the lower authorities. On the above said findings, the Tribunal set aside the orders of the disciplinary authority and the appellate authority and remanded the matter back to the disciplinary authority for conducting a fresh enquiry with fresh charges with the previous punishment with opportunity to cross-examine the witnesses with reference to all the documents and with reference to the previous punishments. The petitioner is challenging Ext. P. 7 order of the Tribunal to the extent it directs a totally de novo enquiry. 2. The petitioner submits that the rules do not contemplate such a de novo enquiry. The petitioner relies on the decisions of Kesavan Namboodiry v. State of Kerala, 1982 KLT 512, Thankappan Unnithan v. State of Kerala, 1992 (1) KLT 263 and Baby v. State of Kerala, 1999 (1) KLT 676. The petitioner would contend that the rules do not postulate a second enquiry and W.P.C. No. 19602/2004 -: 2 :- therefore the Tribunal could not have remanded the matter for a de novo enquiry. 3. I have considered the contentions of the petitioner as well as the contentions of the Kerala State Road Transport Corporation in the matter. 4. The question as to whether after setting aside enquiry the appellate authority can order a proper enquiry was considered by the Supreme Court in K.R. Deb v. Collector, Central Excise, Shillong, AIR 1971 SC 1447, which case is referred to in Kesavan Namboodiry's case (supra), extracting paragraph 13 of the Supreme Court decision. I shall extract the same here also: “13. 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. 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.” A mere reading of that paragraph shows that there is nothing wrong in directing a proper enquiry when there is a serious defect in the enquiry conducted against a delinquent employee. Therefore, what has to be looked into in this case is as to whether there was any defect in the enquiry warranting a direction to conduct a proper enquiry. 5. The finding in Ext. P. 7 is that the enquiry was not conducted in accordance with the manual of disciplinary proceedings. The manual of disciplinary proceedings stipulate certain procedure to be followed in conducting an enquiry. It was specifically stated in the manual that certain documents have to be marked in the enquiry which has not been marked in the enquiry. Further, it was found that the disciplinary authority and the appellate authority have not W.P.C. No. 19602/2004 -: 3 :- discussed the charges in detail. On a consideration of Ext. P.7. I am of opinion that this is a case where the situation contemplated by the Supreme Court in the above quoted decision warranting a direction to conduct a proper enquiry in so far as the Tribunal has found that the enquiry was not conducted in the manual of disciplinary proceedings. But, for that purpose, the Tribunal could not have directed issue of a fresh charge sheet. Proper enquiry can only be on the basis of the charge sheet already issued. In any event, the previous punishments would be relevant only for the purpose of deciding the quantum of punishment and not the guilt of the delinquent in the enquiry. Therefore, I am also satisfied that it was not proper on the part of the Appellate Tribunal to direct the inclusion of previous punishment also in the fresh charge sheet to be issued. Accordingly, Ext. P. 7 order is modified to the following extent: The direction in Ext. P7 to issue a fresh charge sheet with previous punishments is vacated. The enquiry to be conducted as per Ext. P. 7 shall be on the same charge sheet which has already been issued to the petitioner. Previous punishments can be mentioned in the show cause notice for punishment and can be considered for deciding the quantum of punishment only. All other direction in Ext.P7 are upheld. The writ petition is disposed of as above. S. Siri Jagan, Judge. Tds/