IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 WP(C).No. 37215 of 2007(E) --------------------------------------- PETITIONER(S): ---------------------- P.THANKAMANI AMMA, RETIRED JUNIOR SUPERINTENDENT, KERALA TODDY WORKERS WELFARE FUND BOARD, DISTRICT OFFICE, KOLLAM, RESIDING AT 35/417, ANJU VILLA, JANATHA ROAD, PALARIVATTOM, ERNAKULAM. BY MR.KRB.KAIMAL, SENIOR ADVOCATE BY ADVS.MR.ANIL K.NAIR MR.B.UNNIKRISHNA KAIMAL MR.V.MADHUSUDHANAN MR.PRAMJI PAUL VAZHAPPILLY RESPONDENT(S): -------------------------- 1. THE KERALA TODDY WORKERS WELFARE FUND BOARD, REPRESENTED BY ITS CHAIRMAN, THIRUVANANTHAPURAM. 2. THE CHAIRMAN, KERALA TODDY WORKERS WELFARE FUND BOARD, THIRUVANANTHAPURAM. 3. THE CHIEF WELFARE FUND INSPECTOR, KERALA TODDY WORKERS WELFARE FUND BOARD, THIRUVANANTHAPURAM. ADV. MR.K.D.BABU,SC,KTWWFB(TODDY WORKERS WE FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON 27/02/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.37215/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE KERALA TODY WORKERS WELFARE FUND BOARD STAFF (APPOINTMENT AND CONDITINS OF SERVICE) REGULATIONS. P2:- COPY OF THE MEMORANDUM OF CHARGES NO.ESTT/A2/11437/05 DT. 4.10.05 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P3:- COPY OF THE WRITTEN STATEMENT DT. 29.10.05 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P4:- COPY OF THE MEMORANDUM OF CHARGES NO.ESTT/A2/11437/05/23 DT. NIL 12-05 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P5:- COPY OF THE LETTER DT. 20.2.06 AND EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P6:- COPY OF THE AFFIDAVIT DT. 19.6.06 SUBMITTED BY THE PRESENTING OFFICER BEFORE THE ENQUIRY OFFICER TOGETHER WITH ITS ENCLOSURE. P7:- COPY OF THE REPLY DT. 26.6.06 OF THE PETITIONER ADDRESSED TO THE 2ND RESPONDENT. P8:- COPY OF THE SHOW CAUSE NOTICE NO.ESTT. A2/11437/05 DT. 10.10.06 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P9:- COPY OF THE ENQUIRY REPORT ISSUED WITH EXT.P8 TO THE PETITIONER. P10:- COPY OF THE OBJECTION DT. 30.10.06 SUBMITTED BY THE PETITIOENR BEFORE THE 2ND RESPONDENT. P11:- COPY OF THE ORDER NO.ESTT/A2/11437/05 DT. 11.1.07 ISSUED BY THE 2ND RESPONDENT. P12:- COPY OF THE APPEAL DT. 5.3.07 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P13:- COPY OF THE JUDGMENT DT. 7.8.07 OF THIS HONOURABLE COURT IN WPC. NO.23125/07. P14:- COPY OF THE ORDER NO.ESTT.A2/11437/07 DT. 24.8.07 ISSUED BY THE 3RD RESPONDENT. P15:- COPY OF THE ORDER NO.ESTT/A2/11437/07 DT. 6.10.07 ISSUED BY THE 3RD RESPONDENT. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 37215 of 2007-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of February, 2009. JUDGMENT The challenge in this writ petition is against the order of punishment, Ext.P11 which is confirmed in Ext.P15 order passed in appeal by the Appellate Authority. 2. The petitioner was working as Junior Superintendent under the first respondent Board at the time when the disciplinary action was finalized. She retired from service on 31.5.2006 from the office of the Board at Kollam. She had earlier worked in the Office of the Welfare Fund Inspector at Thodupuzha during the period from 19.6.2004 to 7.7.2005. Ext.P1 is the relevant regulation concerning appointment and other service conditions including disciplinary matters relating to the employees of the Board. 3. Ext.P2 is the memo of charges issued by the third respondent who was empowered to impose only minor penalties, going by Ext.P1 regulations. Ext.P3 is the written statement of defence submitted by the petitioner. A further memo of charges was issued as per Ext.P4 to which the petitioner submitted Ext.P5 explanation. An Advocate was appointed WPC 37215/2007 2 as Enquiry Officer on 7.4.2006. The enquiry was started on 15.5.2006. The management was represented by a Presenting Officer. The matter was posted to 19.6.2006 for examining the witnesses and for production of documentary evidence on behalf of the disciplinary authority. On that day, the Presenting Officer, instead of examining the witnesses in support of the charge, submitted an affidavit together with enclosures as per Ext.P6. No witnesses have been examined by the disciplinary authority. Even though the petitioner prepared a reply dated 26.6.2006 to the above affidavit, that was not received by the Enquiry Officer. Ext.P7 is the written reply prepared by the petitioner. 4. The entire gamut of the allegations raised against the petitioner is that she has helped one Sasidharan, who was working as Welfare Fund Inspector, Thodupuzha to commit series of irregularities. The allegations in a nutshell are that Shri Sasidharan retired from service on 30.4.2005. He had taken various files in respect of large number of toddy shops and contractors even after his retirement to pass assessment orders/determination orders. He had sanctioned loans, medical benefits, etc. to various members much in excess of their eligibility. He had also issued No Objection Certificates to some toddy shop contractors, as if they are not in default in payment of contribution. The allegation against the petitioner WPC 37215/2007 3 is that she was not performing her duties properly and that she was helping and assisting the Welfare Fund Inspector to pass orders even after such retirement. 5. As per Ext.P11, the disciplinary authority has imposed the punishment of denial of entire pension and forfeiture of the gratuity under Clause 38(i)(iv) of the Kerala Toddy Workers Welfare Fund Board Staff (Appointment and conditions of Service) Regulations (for short 'the Regulations'). The petitioner filed an appeal, Ext.P12 and approached this court in Writ Petition No.23125/2007 for various reliefs. This court by Ext.P13 judgment, directed the Appellate Authority to pass orders on Ext.P12 within one month from the date of receipt of a copy of the judgment. Initially, Ext.P14 reply was given stating that the Board as per its decision on 27.6.2007 decided to consider the appeal only after completion of the proceedings against Shri K.K. Sasidharan. Later, by Ext.P15 she was informed that the Appellate Authority has decided to confirm the order of punishment, Ext.P11. 6. Learned Senior Counsel appearing for the petitioner submitted that the entire exercise is in violation of the principles of natural justice and in violation of the legal principles applicable for the conduct of disciplinary proceedings. It is stated that the enquiry officer has acted wrongly in WPC 37215/2007 4 accepting the affidavit filed by the Presenting Officer as he is not competent to be a witness for the disciplinary authority. Except the affidavit, there is no evidence on the part of the Disciplinary Authority. He was not allowed to be cross-examined also. Therefore, the entire evidence has to be eschewed and the report submitted by the enquiry officer is thus without any legal effect. It is further contended that the report was not communicated before the disciplinary authority decided to accept the findings therein and only a show cause notice proposing punishment was served along with the copy of the report. Therefore, it is contended that the same is in violation of the well accepted principles of natural justice as held by this court and the Apex Court. It is further pointed out that no disciplinary action has been taken against Shri Sasidharan, the Welfare Fund Inspector who retired from service on 30.4.2005 who is alleged to have committed various irregularities. Therefore, it is submitted that the petitioner is arrayed only as a scapegoat in the matter. The Appellate Authority has not considered the appeal on merits and has just decided to confirm the punishment without considering anything on the merits of the matter and therefore Ext.P15 also stands vitiated. 7. Referring to the punishment imposed in the proceedings, learned Senior counsel for the petitioner, Shri K.R.B. Kaimal submitted that at the WPC 37215/2007 5 time of imposition of the punishment, the petitioner has retired from service, severing the master and servant relationship. Therefore, no kind of punishment as per the regulations could have been imposed. Secondly, the punishment that can be imposed under Clause 38(i)(iv) of the Regulations is recovery from salary when an employee is reverted from a time scale to the lower grade. The said clause further provides that if the said employee retires before the said recovery is effected, that can be realised from the pension or DCRG. Therefore, it is submitted that no punishment by way of denial of pension and forfeiture of entire gratuity can be imposed which is beyond scope of the punishment specified in Clause 38(i)(iv) of the Regulations. Learned counsel for the petitioner relied upon the principles stated by the Apex Court in Managing Director, ECLI v. Karunakar {(1993 (4) SCC 727) and that of a judgment of a Division Bench of this court in W.A.No.949/2001 to contend for the position that before the disciplinary authority decided to accept the findings in the enquiry report, the same should have been forwarded to the employee and only after obtaining the comments from the employee, disciplinary authority could have accepted or rejected the findings of the enquiry officer. 8. The first question is whether the enquiry itself is vitiated, since the only evidence is by way of an affidavit filed by the Presenting Officer. The WPC 37215/2007 6 said affidavit is marked as Ext.P6 herein. A reading of Ext.P6 shows that it only an affidavit filed by the Presenting Officer. The charges are reiterated and several documents (M1 to M19) have been appended to it. The functions of a Presenting Officer are well known. As far as the disciplinary proceedings are concerned, the Presenting Officer cannot act as a witness for the management. His duty is to conduct the proceedings for the management, in support of the charge. His role is akin to that of a Prosecutor who cannot act as a witness. The entire proceedings will thus be hit by the principles of bias. He cannot act as a witness at all. A witness to prove the charges could be one examined by the management in support of the charges. No witnesses have been examined in support of the charges and the documents have been produced in bulk by the Presenting Officer along with the affidavit. One more glaring illegality has also been committed. After closing the evidence on 26.6.2006, the Enquiry Officer issued notices suo-motu to one Sasidharan and Mohan Das by registered post. Mohandas appeared, and his deposition is stated to have been recorded. This is clear from internal page 9 of the Enquiry Report, Ext.P9. It is clearly not in the presence of the petitioner. Therefore, the entire procedure in accepting the affidavit and marking the documents is clearly illegal. Learned Standing Counsel appearing for the respondents, Shri K.D. WPC 37215/2007 7 Babu submitted that there is no illegality in the procedure as all these documents are part of the records of the first respondent Board and the petitioner has no worthwhile contention against the contends of these documents. The question is whether the affidavit of the Presenting Officer will form “evidence in the disciplinary proceedings.” This was submitted in lieu of Chief Examination. The same cannot be accepted as evidence and therefore the production of documents along with the affidavit cannot be termed as documents marked in support of the charges. In that view of the matter, the enquiry officer has acted wrongly in accepting the affidavit and the documents produced along with the affidavit. Therefore, the justification sought for in the counter affidavit that the charges stand proved, cannot be accepted. The report itself, therefore, cannot stand scrutiny. 9. In view of the fact that the enquiry report itself stands nullified, it may not be necessary to consider the other issues. But to complete the discussion, I venture to consider the other points raised by the learned Senior counsel for the petitioner. Herein, admittedly the report was not forwarded for the comments/objections of the petitioner, before the disciplinary authority decided to accept the findings therein. The same was forwarded only along with the show cause notice, Ext.P8. It is stated in the WPC 37215/2007 8 said proceedings that the Chairman was satisfied from the report that the petitioner is guilty of the charges. Accordingly, it is stated that a punishment as provided in Clause 38(i)(iv) is proposed for which a reply is sought for. Going by the dictum laid down in ECIL's case ({(1993 (4) SCC 727), if the enquiry is conducted by an authority other than the disciplinary authority, before accepting the findings by the disciplinary authority, the enquiry report should be forwarded to the employee. The disciplinary authority can accept or reject the findings. In that view of the matter, the show cause notice Ext.P8 and the consequential order of punishment Ext.P11 cannot stand. Going by the dictum laid down by the Constitution Bench, the entire disciplinary proceedings need not be set aside on the ground of lethargy and the proceedings could be proceeded from the stage of communication of enquiry report. But, herein that procedure cannot be resorted to in the light of the fact that the enquiry report itself is without any legal foundation, as the management has chosen to adduce evidence through the Presenting Officer. Secondly, the petitioner has already retired from service on 31.5.2006 and no disciplinary action could be proceeded against a person who had retired from service. Though it is submitted by the learned counsel for the respondents that one another witness has been examined by the management in support of the charges by WPC 37215/2007 9 the Enquiry Officer suo motu, the irregularity attached to the filing of the affidavit by the Presenting Officer looms large in the proceedings and if, Exts.M1 and M21 produced by the management is thus eschewed, there is no other evidence in support of the charge. The lone witness was examined suo-motu by the Enquiry Officer, as noted already. He is examined only to show that charge was handed over to him. Further, the Enquiry Officer has no power to summon witnesses, as held by this court in Padmanabhan v. Kerala State Handloom Development Corporation Ltd. (1992 (2) KLT 649). 10. Similarly, the punishment imposed is also not in accordance with Clause 38(i)(iv) of the Regulations. There is no provision to deny pension and to order forfeiture of gratuity under the Regulations. The scope of Clause 38(i)(iv) is only to the effect that if recovery from salary could not be made in certain circumstances prior to the retirement, they can be recovered from the pension and gratuity. That does not mean that there can be a punishment by way of denial of pension and forfeiture of gratuity. Therefore, on that ground, the order of punishment, Ext.P11 cannot be sustained. The order Ext.P15 passed in the appeal is not a reasoned one. There, the lone reason for rejection is that the Board has decided to WPC 37215/2007 10 confirm the punishment. In that view of the matter, Ext.P15 also cannot be sustained. 11. One more aspect to be noticed herein is that the loss, if any, has not been quantified by the respondents. This is clear from Ext.P8 show cause notice also, as no particular amount is shown as loss to which the petitioner is made liable. It is clear from the counter affidavit filed by the third respondent that the loss has not been quantified. Therefore, as to how the punishment of denial of pension and forfeiture of gratuity could be ordered, is also a moot question. In that view of the matter also, Ext.P11 cannot be sustained. Therefore, the petitioner cannot be denied pension and gratuity at all. As the enquiry itself is vitiated by various irregularities and illegalities noted above, the report itself cannot survive, and it could not have been accepted. Therefore, the charges are not proved against the petitioner, as there is no legal evidence. Hence, Exts.P11 and P15 are quashed. 12. In the result, the writ petition is allowed, quashing Exts.P8, P11, P14 and P15. There will be a direction to sanction and disburse the pension, Commuted Pension, D.C.R.G. and other benefits due to the WPC 37215/2007 11 petitioner, within a period of three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/