IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 WP(C).No. 35067 of 2008(Y) -------------------------- PETITIONER(S): --------------- SMT.T.J.MARY MATILDA, ADDITIONAL GENERAL MANAGER, (UNDER SUSPENSION)KERALA STATE CIVIL SUPPLIES CORPORATION LTD, H.O.GANDHI NAGAR, KOCHI-20. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL RESPONDENT(S): --------------- 1. KERALA STATE CIVIL SUPPLIES CORPORATION LTD.REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE CIVIL SUPPLIES CORPORATION LTD, H.O., GANDHI NAGAR, KOCHI-20. 2. SRI.YOGESH GUPTA I.P.S, CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE CIVIL SUPPLIES CORPORATION LTD H.O, GANDHI NAGAR, KOCHI-20. 3. SRI.DR.JACOB THOMAS I.P.S, FORMER CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE CIVIL SUPPLIES CORPORATION LTD H.O, GANDHI NAGAR, KOCHI-20. 4. STATE OF KERALA, REPRESENTED BY SECRETARY, TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM. 5. INSPECTOR GENERAL OF POLICE, (CRIME BRANCH),THIRUVANANTHAPURAM. 6. SUPERINTENDENT OF POLICE, C.B.C.I.D, ERNAKULAM. 7. CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY THE DIRECTOR, C.B.I, NEW DELHI. 8. SECRETARY TO GOVERNMENT, DEPARTMENT OF FOOD & CIVIL SUPPLIES, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R7 SRI.MILLU DANDAPANI FOR R1,2 GOVERNMENT PLEADER SHRI.M.V.MANU SHRI N.D.PREMACHANDRAN,SC,SUPPLYCO FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 35067/2008. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE MINUTES OF THE BOARD MEETING DTD.6.7.07. P2. COPY OF THE RELEVANT PAGES OF PURCHASE MANUAL. P3. COPY OF THE CLAUSE 12 OF THE PURCHASE MANUAL. P4. COPY OF THE MINUTES OF THE MANAGEMENT COMMITTEE DTD.6.8.07. P5. COPY OF THE RELEVANT PAGES OF THE MINUTES DTD.7.9.07. P6. COPY OF THE EXTRACT OF THE MINUTES DTD.22.9.07. P7. COPY OF THE JUDGMENT IN W.P.(C).No. 29330/07. P8. COPY OF THE CHARGE MEMO DTD.12.10.07. P9. COPY OF THE ORDER OF SUSPENSION DTD.26.12.07. P10. COPY OF THE REPLY DTD.22.11.07. P11. COPY OF THE ENQUIRY REPORT. P12. COPY OF THE CHARGE MEMO DTD.21.2.08 P13. COPY OF THE CHARGE MEMO DTD.27.5.08. P14. COPY OF THE CHARGE MEMO DTD.27.5.08. P15. COPY OF THE CHARGE MEMO DTD.9.6.08. P16. COPY OF THE SHOW CAUSE NOTICE DTD.29.8.08. P17. COPY OF THE SHOW CAUSE NOTICE DTD.5.11.08. P18. COPY OF THE REPLY DTD.25.9.08. P19. COPY OF THE REPLY DTD.15.10.08. P20. COPY OF THE FINDINGS OF COMMISSION. P21. COPY OF THE RELEVANT PAGES OF THE CALCULATION REFERRED TO IN THE ENQUIRY REPORT. P22. COPY OF THE PETITION DTD 5.7.08. P23. COPY OF THE PETITION DTD.1.8.08. P24. COPY OF THE ORDER DTD.5.8.08. P25. COPY OF THE GOVT. LETTER DTD.8.5.06. P26. COPY OF THE ARGUMENT NOTE. P27. COPY OF THE RELEVANT PAGES OF CIRCULAR 20/2005. P28. COPY OF THE REPLY DTD.21.11.08. P29. COPY OF THE ORDER DTD.24.4.09. P30. COPY OF THE HEARING NOTE DTD.8.1.2009. P31. COPY OF THE INFORMATION GIVEN BY CBI DTD.13.5.09. P32. COPY OF THE CHARGE MEMO DTD.18.3.2009. P33. COPY OF THE STATEMENT DTD.5.8.09 BY SRI.DARVIN K.J., INSPECTOR OF POLICE, CBI, COCHIN IN W.P.(C).No. 19980/09. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 35067 of 2008 ================== Dated this the 21st day of February, 2011 J U D G M E N T The petitioner was an Additional General Manager of the Kerala Civil Supplies Corporation. By Ext.P8, the petitioner was served with a memo of charges containing eight charges. The petitioner filed Ext.P10 explanation. By Ext.P9 dated 26.12.2007, the petitioner was suspended from service pending disciplinary proceedings. An enquiry officer was appointed and Ext.P11 report was submitted by the enquiry officer, in which, charges 1 to 7 were stated to be proved. By Ext.P17 show cause notice, the Board of Directors of the Civil Supplies Corporation directed the petitioner to show-cause why the punishment of dismissal from service should not be imposed on the petitioner. Along with the said show cause notice, a copy of the enquiry report was furnished to the petitioner and the petitioner furnished Ext.P28 reply dated 21.11.2008. On 9.1.2009, the petitioner was heard by the Board of Directors. Four Board members, out of seven, were present during the hearing. On 18.4.2009, the Board decided to impose on the petitioner the punishment of dismissal from service. By Ext.P29 dated 24.4.2009, the punishment of dismissal from service was imposed on the petitioner. The petitioner challenges the said enquiry proceedings and the order of punishment primarily on two grounds for the present. w.p.c.35067/08 2 2. The first is that the petitioner was not given an opportunity to show cause against the enquiry proceedings and the findings of the enquiry officer before the Board of Directors accepted the findings of the enquiry officer. Instead, the Board of Directors first took a decision to accept the findings of the enquiry officer without giving an opportunity to the petitioner to show cause against the same and the petitioner was directed to show cause why the petitioner should not be imposed with the punishment of dismissal from service, which, according to the petitioner, is against the law laid down by various decisions of this Court and the Supreme Court. The second contention is that the petitioner was heard in a Board meeting comprised of four members, viz., Chairman and Managing Director, Sri.K.R.Jyothilal, Sri.Manoj Kumar and Sri.Minhaz Alam. But the decision to dismiss the petitioner was taken by the Board of Directors in its meeting, which was attended by the Chairman and Managing Director, Sri.Minhaz Alam and Smt.Remani. According to the petitioner, this was a deliberate malafide action of the Chairman and Managing Director, insofar as during the hearing on 9.1.2009, Sri.Jyothilal and Sri.Manoj Kumar made some observations, which tended to support the case of the petitioner. Therefore, the Chairman and Managing Director convened another meeting while Sri.K.R.Jyothilal and Sri.Manoj Kumar were out of State in connection election duties. According to the w.p.c.35067/08 3 petitioner, the proceedings are, therefore, vitiated by malafides of the Chairman and Managing Director. 3. A counter affidavit and an additional counter affidavit have been filed supporting the respondents' action. 4. I have considered the rival contentions in detail. 5. Ext.P17 dated 5.11.2008 is the first show cause notice issued to the petitioner after the enquiry. In the same, it is stated thus: “On perusal of enquiry report, deposition of witnesses, relied upon documents and other available records of enquiry and facts as discussed above Board came to the conclusion that charge 1 to 7 are fully proved against the delinquent. It is observed that the enquiry has been conducted in consonance with the rules of disciplinary proceedings by observing all principles of natural justice and all the reasonable opportunities has been afforded to the delinquent officer to defend herself in the enquiry. Board noted that the charges alleged against her are very serious in nature, and shows that the delinquent resorted to corrupt practices and financial irregularities in a malafide and ulterior manner while working as Addl. General Manager (P) and Addl. General Manager (M) which caused huge financial loss to the Corporation and an attempt was made by her to sabotate the systems in place. Therefore, as provided in Rules 69(f) of KSCSC Service Rule 1975, the Board has tentatively decided to dismiss you from the service. In the circumstances you are hereby directed to Show Cause if any in writing within 10 days from the date of receipt of this notice as to why the proposed penalty should not be confirmed. If your explanation is not received within the stipulated time the decision will be confirmed and order passed on the presumption that you have nothing more to offer in the matter. If you desire to be heard in person you are requested to appear before Chairman and Managing Director on 18.11.2008, at 11.00 Hrs at Maveli Bhavan, Gandhi Nagar, Kochi-20.” (underlining supplied) From the same, it is evident that the show cause notice was issued by w.p.c.35067/08 4 the Board after first taking the decision to accept the findings of the enquiry officer. In fact the copy of the enquiry report was furnished to the petitioner only alongwith Ext.P17. It is settled law that a delinquent officer is entitled to have an opportunity to show cause against the enquiry proceedings and the findings of the enquiry officer before the disciplinary authority and the disciplinary authority is to decide as to whether the disciplinary authority should accept the enquiry and the findings of the enquiry officer after considering the objections of the delinquent officer as well. This legal proposition is well settled by the decision of the Supreme Court in Managing Director, ECIL, Hyderabad and Ors v. B.Karunakar & Ors. [JT 1993 (6) SC page 1]. The judgment of the Division Bench of this Court in W.A.No.1231/2001 is also a case on point. 6. Of course, the learned standing counsel for the Corporation made a ralient attempt to make out that Ext.P17 is a show cause notice for accepting the findings of the enquiry officer also. But the extract from Ext.P17 quoted above very well proves that that was not the case and the petitioner was asked to show cause not on the acceptance of the report of the enquiry officer but only on the proposed punishment of dismissal from service. He further contends that the rights of the petitioner in disciplinary proceedings are covered by statutory rules, which do not provide for an opportunity as claimed w.p.c.35067/08 5 by the petitioner and, therefore, as of right, the petitioner is not entitled to such an opportunity. He further points out that in Ext.P29 all the contentions of the petitioner have been elaborately dealt with and, therefore, there cannot be any grievance for the petitioner in that regard. The opportunity to show cause against the enquiry proceedings and the findings in the enquiry, before the disciplinary authority, when the disciplinary authority is the enquiring authority is an essential ingredient of principles of natural justice. If the rules do not provide for the same, the same should be read into the rules, which is the settled law. The failure to give that opportunity has certainly prejudiced the petitioner insofar as she could not bring to the attention of the disciplinary authority, her contentions against the enquiry and the findings of the enquiry officer. In view of the legal position noted above, the proceedings from Ext.P17 onwards against the petitioner are in violation of the principles of natural justice. Accordingly, the proceedings from the point of issue of Ext.P17 onwards including Ext.P29 are quashed. The Board of Directors of the Civil Supplies Corporation is directed to hear the petitioner on the question of acceptance of the findings of the enquiry officer and take further proceedings after such hearing. It would be open to the Board of Directors to see that the very same members who hear the petitioner take a final decision also so as to avoid any objections on the basis of w.p.c.35067/08 6 the contention that the persons who heard the petitioner did not pass orders also. Proceedings as directed above shall be completed, as expeditiously as possible, at any rate, within four months from the date of receipt of a certified copy of this judgment. For further proceedings as directed above, the petitioner shall be deemed to be continuing under suspension. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge