IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 WP(C).No. 12750 of 2009(K) ----------------------------------- PETITIONER(S): ---------------------- V.K.GOPALAKRISHNAN, S/O.KUNJILAN, AGED 56 YEARS, VALUPARAMBIL THEKKEDIL, VENMONY VILLAGE, CHENGANNOOR TALUK, ALAPPUZHA DISTRICT, DEPUTY MANAGER, KFC, PATHANAMTHITTA. BY ADV. SRI.C.S.MANILAL RESPONDENT(S): ----------------------- 1. THE KERALA FINANCIAL CORPORATION, REP. BY ITS MANAGING DIRECTOR, HEAD OFFICE, VELLAYAMBALAM, THIRUVANANTHAPURAM. 2. THE MANAGING DIRECTOR, KERALA FINANCIAL CORPORATION, HEAD OFFICE, VELLAYAMBALAM, THIRUVANANTHAPURAM. ADV. SRI.S.SREEKUMAR, ADV. SRI. PRAJITH - SC,KERALA FINANCIAL CORPORATION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 12750/2009 K APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE MEMO OF CHARGES DATED 07/05/2004 BY THE RESPONDENT AGAINST THE PETITIONER. EXT.P2. COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER C.S PADMANABHAN ON 25/5/06. EXT.P3. COPY OF THE MEMO OF CHARGES DT. 4/5/07 BY THE RESPONDENT AGAINST THE PETITIONER. EXT.P4. COPY OF THE INQUIRY REPORT DT. 3/10/08 BY THE INQUIRY OFFICER G. GOPINATHAN NAIR. EXT.P5. COPY OF THE SHOW CAUSE NOTICE DT. 5/11/2008 BY THE KFC TO THE PETITIONER. EXT.P6. COPY OF THE EXPLANATION DT. 15/12/2008 BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P7. COPY OF THE PROCEEDINGS DT. 2/4/09 OF THE R2. EXT.P8. COPY OF THE LETTER DT. 25/4/2009 SEEKING EXTENSION OF TIME SUBMITTED BY THE PETITIONER. EXT.P9. COPY OF THE RELEVANT EXTRACT OF RULE 39 OF THE STAFF REGULATIONS, 1996 OF THE RESPONDENT CORPORATION. RESPONDENTS' EXHIBITS : NIL. / TRUE COPY / PA TO JUDGE. tga P.N.RAVINDRAN, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 12750 of 2009 K =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 10th day of July, 2009 JUDGMENT Heard Sri.C.S.Manilal, the learned counsel appearing for the petitioner and Sri.S.Sreekumar, the learned counsel appearing for the Kerala Financial Corporation. 2. The petitioner is an employee of the Kerala Financial Corporation, hereinafter referred to as “the Corporation”. While he was working as Assistant Manager, he was placed under suspension, pending disciplinary action. Later, Ext.P1 memo of charges dated 7-5-2004 was issued. The petitioner submitted his written statement. The Corporation thereupon appointed Sri. C.S. Padmanabhan Nair, Special Secretary, Law (Rtd.) as the Enquiry Officer to enquire into the charges levelled against the petitioner. While the disciplinary proceedings were in progress, the petitioner was reinstated in service and also promoted as Deputy Manger. The Enquiry Officer found that none of the charges levelled against the petitioner has been proved and submitted Ext.P2 report dated 25-5-2006 exonerating the petitioner of all the charges. Nearly one year later, the Financial Controller of the Corporation issued Ext.P3 memo dated 4-5-2007 W.P.(C) No. 12750/09 2 informing the petitioner that the Corporation has appointed Sri. G.Gopinathan Nair, Advocate as Enquiry Officer, since the Corporation is of the opinion that a further enquiry is warranted. Sri.G.Gopinathan Nair, the second Enquiry Officer thus appointed, conducted an enquiry and submitted Ext.P4 report holding that charges 4, 5 and 7 have been proved and the petitioner is guilty of the said charges. Thereupon, the General Manager of the Corporation issued Ext.P5 show cause notice dated 5-12- 2008 informing the petitioner that the Corporation has provisionally decided to award the punishment of reversion to the post of Assistant Manager by placing him as junior most in the category of Assistant Manager. The petitioner was also called upon to show cause why the said provisional decision should not be confirmed. On receipt of Ext.P5 show cause notice, the petitioner submitted Ext.P6 reply wherein he inter alia stated that the second enquiry is without the sanction or authority of law and that the Corporation cannot order a second enquiry without setting aside the first enquiry report after notice to the petitioner. On receipt of Ext.P6 reply, the Managing Director of the Corporation issued Ext.P7 proceedings dated 2-4- 2009 informing the petitioner that it has been provisionally decided to award the punishment of compulsory retirement. The petitioner was called upon to show cause why the said provisional decision should not be W.P.(C) No. 12750/09 3 confirmed within three days from the date of receipt of the memo. On receipt of Ext.P7, the petitioner submitted Ext.P8 representation seeking time till 25-4-2009 to submit his reply. This writ petition was thereafter filed on 23-4-2009 challenging Exts.P5 and P7 memos and seeking the following reliefs:- i) to issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exts.P5 & P7 and quash the same as illegal; ii) to issue a writ by way of declaration that the conducting of two enquiries one after the other is illegal and unconstitutional violating Article 20(2) of the Constitution of India; iii) to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents not to proceed with the Exts.P5 or P7 which being illegal and contrary to the due process of law; 3. The petitioner contends that as an enquiry into the charges was held by Sri. C.S. Padmanabhan Nair, Special Secretary, Law (Rtd.) and the petitioner was exonerated of the charges, the disciplinary authority cannot ignore the said report and order a fresh enquiry. The petitioner contends that while it is open to the disciplinary authority to differ from the findings in the enquiry report after notice to the delinquent employee, the disciplinary authority cannot wipe off the enquiry already conducted, the findings therein and order a fresh enquiry. The respondents have filed a counter W.P.(C) No. 12750/09 4 affidavit wherein they justify the second enquiry on the ground that the first enquiry conducted by Sri. C.S. Padmanabhan Nair, Special Secretary, Law (Rtd.) was conducted in a haphazard, biased, prejudicial manner and that the enquiry officer deliberately ignored relevant materials in order to protect the petitioner, sacrificing the interests of the Corporation. 4. I have considered the submissions made at the Bar by the learned counsel on either side. It is well settled by the decisions of this Court in Ali V. State of Kerala (1976 KLT 29), Namboodiri V. State (1982 KLT 512), Thankappan Unnithan V. State of Kerala (1992(1) KLT 263 and Baby V. State of Kerala 199(1) KLT 676 that the disciplinary authority cannot after wiping off the earlier proceedings order a de novo enquiry. In the instant case the Enquiry Officer appointed by the Corporation had after enquiry submitted Ext.P2 report dated 25-5-2006 exonerating the petitioner of all the charges. Nearly one year later, without issuing notice to the petitioner to show cause why the disciplinary authority should not differ from the findings of the Enquiry Officer in Ext.P2 report, the disciplinary authority ignored the report and appointed a fresh Enquiry Officer to conduct a second enquiry. In my opinion, it was not open to the disciplinary authority to appoint the second Enquiry Officer and to conduct a fresh enquiry. The only course open to the disciplinary authority was to issue notice to the W.P.(C) No. 12750/09 5 petitioner to show cause why it should not differ from the findings in Ext.P2 report and to come to its own conclusion on the evidence adduced in the enquiry. Instead, the disciplinary authority in the instant case wiped off the enquiry held by Sri. C.S. Padmanabhan Nair, Special Secretary, Law (Rtd.) and appointed another Enquiry Officer to conduct an enquiry into the very same set of charges. No provision of the regulations governing the service conditions of employees of the Corporation which empowers the Corporation to wipe off Ext.P2 enquiry report and to appoint a fresh Enquiry Officer was brought to my notice. I am therefore proceeding on the basis that the regulations governing the service conditions of the employees of the Corporation do not empower the Corporation to wipe off the enquiry which led to Ext.P2 report and order a de novo enquiry. 5. In the instant case it is not in dispute that the Enquiry Officer appointed by the Corporation had after enquiry submitted Ext.P2 report dated 25-5-2006 exonerating the petitioner of all the charges. As held by this Court in the decisions referred to above, the disciplinary authority cannot wipe off the enquiry already held by the Enquiry Officer order a de novo enquiry, merely for the reason that the findings of the Enquiry Officer are not to its liking. It is evident from Ext.P4 and the subsequent proceedings issued by the respondents that dissatisfied with the enquiry W.P.(C) No. 12750/09 6 report evidenced by Ext.P2 they have ordered a fresh enquiry. In my opinion it was not open to the respondents to order a fresh enquiry against the petitioner in respect of the very same set of charges which were enquired into by Sri. C.S. Padmanabhan Nair, Special Secretary, Law (Rtd.). I am therefore persuaded to agree with the learned counsel for the petitioner that the proceedings initiated against the petitioner as per Exts.P5 and P7 show cause notices are liable to be quashed. In the result, this writ petition is allowed and Exts. P5 and P7 are quashed. The respondents are restrained from proceeding further with Ext.P5 and P7 notices or from taking action against the petitioner based on Ext.P4 enquiry report. No costs. P.N.RAVINDRAN, JUDGE. mn.