Chairman vs K.J.Ruby on 4 February, 2025

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Kerala High Court

Chairman vs K.J.Ruby on 4 February, 2025

The short point involved in this case is as to whether in the enquiry proceedings being faced by the respondent on the charges of attacking the superior/insubordination, sending the summons at the wrong address to witnesses who are not mentioned in the list of witnesses by the Enquiry Officer and changing of the venue, can be a ground for setting aside the entire enquiry. To answer the aforementioned question, certain facts relevant for adjudication of the dispute are required to be enumerated.

2. Respondent/writ petitioner while working as Clerk Grade-II in Mangalore, owing to the incident occurred, was placed under suspension with effect from 07.08.2008 and was served with a memo of charges on 20.10.2008. Dissatisfied with the reply, Enquiry Officer was appointed. In the list of witnesses, there were five(5) witnesses. However, the respondent/writ WA NO. 1496 OF 2019 -4- 2025:KER:13339 petitioner had also examined one defence witness. On the basis of the statement of the defence witness, the Enquiry Officer found that the statement of two more persons namely Sri.Sasidharan, Security Guard and Sri.Sumit, Electrician were also required, accordingly summoned via speed post dated 10.09.2009, by giving the addresses in the aforementioned summons. However, those witnesses neither appeared nor deposed. The Enquiry Officer, on the basis of the evidence, found that the charges against the respondent were proved. Disciplinary authority before imposition of the punishment, complied with the principle of natural justice and imposed the punishment of compulsory retirement. The aforementioned action was assailed by way of writ petition.

2. The writ court, in paragraph No.9 to 12 of the judgment observed as under and consequently quashed the punishment imposed upon respondent/writ petitioner with a direction to commence the enquiry from the stage when the witnesses aforementioned were WA NO. 1496 OF 2019 -5- 2025:KER:13339 summoned.

"........9. Having heard the contentions on both sides, I find that the manner in which the summons/notices were issued to defence witnesses - the Security Guard M/s Sasidharan and Sumeet, itself is sufficient to conclude that the inquiry conducted was not proper. Though the learned CGC vehemently argued that those witnesses were summoned at the instance of presenting officer and not defence witnesses, there is no justification in sending summons or notice to any of the witnesses, in such a manner. A mere glance on the address in which the summons was sent in Exts.P4 and P5 would reveal the deliberate intention on the part of the respondents to see that witnesses should never appear for the enquiry. That itself evidences the denial of reasonable opportunity to the petitioner to defend. Further the change of venue for examination of those witnesses alone to Bangalore, can only be seen as one with ulterior motive to cause inconvenience to the witnesses. However, when the address of witnesses itself was given in such an irresponsible manner, it is not necessary to go into that question and to again conclude that the respondents did not want to see the defence witnesses examined.

10. Even assuming that the witnesses sought to be examined were not defence WA NO. 1496 OF 2019 -6- 2025:KER:13339 witnesses and that they were only additional witnesses sought to be examined by the prosecution as stated in the counter affidavit, once the respondents chose to examine the witnesses, on whichever side they may be, the notices to them ought to have been issued in proper address. It is also relevant to note that the respondents did not have a case either in Ext.P1 order or in Ext.P2 appellate order that they were not defence witnesses.

11. The appellate authority, when brushed aside the contention of the petitioner in Ext.P2 order, stating that disciplinary authority had decided to conduct the examination on another day, at Kochi, he failed to look into the fact whether another date was actually fixed; whether fresh notices were issued to the witnesses in the correct address accordingly and whether any enquiry was held as stated in the alleged order sheet referred to by the appellate authority, at Kochi. The respondents have not answered the specific plea of the petitioner that there was no such order sheet and there was no enquiry conducted at Kochi.

12. Therefore, it is clear that the petitioner was denied reasonable opportunity to defend his case, by shutting out witnesses by issuing the summons without any proper address on it. Therefore, the major penalty of compulsory retirement imposed on the petitioner, after WA NO. 1496 OF 2019 -7- 2025:KER:13339 conducting proceedings in such a manner is liable to be set aside. The appellate authority passed the order, without considering the relevant factors. The disciplinary authority as well as the appellate authority have taken into account only the version of a Deputy Director as against a Clerk. The orders issued without conducting an inquiry conistent with the principles of natural justice and affording opportunity to examine all the witnesses including additional or defence witnesses, taking proper steps to ensure their presence at the time of enquiry, are therefore illegal."

3. The entire findings of the Single Bench is based upon a figment of imagination as no where it has come on record that the aforementioned two witnesses summoned by the enquiry officer were ever examined. Therefore no prejudice has been caused to the delinquent employee even if there was a change of the venue as the change of venue was only for the purpose of recording the testimony of the summoned witnesses. It was the sole ground weighed in the mind of the Single Bench for setting aside the enquiry. In the absence of WA NO. 1496 OF 2019 -8- 2025:KER:13339 the deposition of the said witnesses, respondent/writ petitioner has not been able to place on record any material to substantiate the allegation regarding the enquiry being vitiated in law. Non examination of the aforementioned summoned witnesses has also been not denied during the course of the argument.

4. In this view of the matter, we are of the view that the findings aforementioned was only a farcical exercise when the aforementioned witnesses were not summoned as it has not seriously prejudice his case. We accordingly, set aside the judgment of the Single Bench and dismiss the writ petition.

Writ appeal stands allowed.

Sd/-

AMIT RAWAL JUDGE Sd/-

K. V. JAYAKUMAR JUDGE vv

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