Kerala High Court
Ajayakumar vs Sub Group Officer on 3 July, 2009
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27850 of 2006(M)
1. AJAYAKUMAR, S/O.APPUKUTTAN NAIR,
... Petitioner
Vs
1. SUB GROUP OFFICER, ARANGAL SRI MAHADEVA
... Respondent
2. DEPUTY DEVASWOM COMMISSIONER,
3. ASSISTANT DEVASWOM COMMISSIONER,
4. THE COMMISSIONER, TRAVANCORE DEVASWOM
5. TRAVANCORE DEVASWOM BOARD,
6. SREEKUMAR, WATCHER,
7. ENQUIRY COMMISSIONER,
For Petitioner :SRI.J.S.AJITHKUMAR
For Respondent :SRI.C.VIJAYAN, SC, TDB
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :03/07/2009
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C)No.27850 of 2006
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Dated 3rd July, 2009
JUDGMENT
Heard Sri.J.S.Ajithkumar, the learned counsel appearing for the petitioner and Sri.P.Gopal, learned standing counsel appearing for the Travancore Devaswom Board.
2. The petitioner, a Panchavadyam Artist was placed under suspension by Ext.P1 order dated 22.7.2000 pending enquiry. A memo of charges evidenced by Ext.P2 was thereafter served on him. The petitioner submitted his written statement. A detailed enquiry was held and thereafter the punishment of compulsory retirement from service was imposed on the petitioner as per Ext.P9 order dated 16.10.2003. Aggrieved thereby, the petitioner filed Ext.P10 appeal before the Travancore Devaswom Board. On that appeal, the Board directed the Devaswom Commissioner, the seventh respondent in this writ petition to conduct a fresh enquiry. The seventh respondent accordingly conducted a fresh enquiry and submitted a report to the Travancore Devaswom Board. The Board thereupon issued Ext.P11 memo of charges to which the petitioner submitted Ext.P12 reply. The Board thereafter authorized the Devaswom Commissioner, the fourth respondent herein to pass orders. The Devaswom Commissioner WP(C).No.27850/2006 2 accordingly passed Ext.P13 order dated 15.5.2006, confirming the order passed earlier by him compulsorily retiring the petitioner from service. Exts.P9 and P13 are under challenge in this writ petition wherein the petitioner prays for a writ in the nature of mandamus commanding the respondents to reinstate him in service with consequential benefits.
3. From the pleadings it appears that when the petitioner filed Ext.P10 appeal challenging Ext.P9 order passed by the Devaswom Commissioner imposing the punishment of compulsory retirement from service, the Board directed the seventh respondent to conduct an enquiry and based on the report furnished by him issued a fresh memo of charges and delegated the power to pass orders to the fourth respondent who passed Ext.P13 order. In my opinion, it was not open to the Board, the appellate authority to wipe out the enquiry held by the disciplinary authority on an appeal filed from the order imposing penalty and direct another officer to issue revised orders in the matter. It is settled law that while disciplinary authority has the freedom to differ from the findings of the enquiry authority with notice to the employee and come to its own conclusion, it cannot wipe the slate clean and start fresh proceedings. In the instant case, the appellate authority, instead of deciding the appeal directed the seventh respondent to conduct a fresh enquiry into the memo of charges and WP(C).No.27850/2006 3 after receipt of the enquiry report, issued a fresh memo of charges and directed the disciplinary authority to pass a fresh order. In my opinion, the procedure adopted by the appellate authority is patently illegal. The appellate authority ought to have in my opinion considered the appeal filed by the petitioner and passed orders thereon after affording him a reasonable opportunity of being heard.
In the result, this writ petition is allowed, Exts.P9 and P13 are quashed and the appellate authority (the Travancore Devaswom Board or the Chief Commissioner, as the case may be) is directed to pass orders on Ext.10 appeal, ignoring Ext.R1(e) report, after notice to and affording the petitioner a reasonable opportunity of being heard. The appellate authority shall pass an order giving reasons in support of its conclusions and shall communicate a copy thereof to the petitioner as soon as orders are passed. Final orders on Ext.P10 appeal shall be passed within four months from the date of receipt of a certified copy of this judgment. The contentions of the petitioner on the merits are kept open.
P.N.RAVINDRAN Judge TKS