Central Administrative Tribunal - Ernakulam
T P Renilkumar vs Central Marine Fisheries Research ... on 1 March, 2024
O.A No.406/2016 1
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00406/2016
Friday, this the 1st day of March, 2024.
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mr. K.V.EAPEN, ADMINISTRATIVE MEMBER
Sri. T.P. Renilkumar, S/o.late Raman, aged 56 years, residing at
Sharonin, Door No.3/162 A, (P.O.) Nadakkavu, Kozhikkode,
now working as Skilled Support Staff, Regional Centre of Central
Marine Fisheries Research Institute, Kochi, Karwar.
- Applicant
[By Advocates: Mr.P.K.Madhusoodanan, Mr.Binoy Krishna P.M.]
Versus
1. The Chief Administrative Officer, Central Marine Fisheries
Research Institute, Post Box No.1603, Ernakulam North (P.O.),
Kochi - 682 018.
2. The Director, Central Marine Fisheries Research Institute
Post Box No.1603, Ernakulam North (P.O.), Kochi-682 018.
3. Indian Council of Agricultural Research, represented by its
Secretary, Krishi Bhavan, New Delhi-110001.
- Respondents
[By Advocate: Mr. P.Santhosh Kumar]
The application having been heard on 23.11.2023, the Tribunal on
01.03.2024 delivered the following:
O.A No.406/2016 2
ORDER
Justice K.Haripal Applicant, at the time of filing the Original Application, was working as Skilled Support Staff in the Regional Centre of the Central Marine Fisheries Research Institute, CMFRI for short, Karwar. He claims that he had commenced service as Support Staff Grade-I in CMFRI, Kochi on 16.04.1985, he was promoted as Senior Support Staff Grade-II on 22.11.1996 and again promoted as Skilled Support Staff on 01.04.2004. The causes of action for initiating disciplinary proceedings had occurred on 20.02.2013 while he was working as Senior Support Staff in CMFRI, Regional Office, Kozhikode. Later, he was placed under suspension and disciplinary proceeding was initiated. Ultimately, by Annexure-A10 order of the disciplinary authority, on proving the charges alleged against him, his pay was reduced by one stage from Rs.10340+Grade Pay of Rs.2000 to Rs.9630+Grade Pay of Rs.2000 in the time scale of pay band-I of Rs.5200- 20200 + Grade Pay of Rs.2000 for a period of two years with effect from 01.12.2014. It was further directed that Sri.T.P.Renil Kumar will not earn increments of pay during the period of reduction and on the expiry of O.A No.406/2016 3 this period, the reduction will have the effect of postponing his future increments of pay.
2. Aggrieved by the order, he filed an appeal, which was rejected by Annexure-A12 order dated 06.06.2015. Thus he has approached this Tribunal for quashing Annexure-A8 report of the Enquiry Officer, Annexures-A10 order imposing penalty and A12 appellate order and to issue necessary directions to the respondents to conduct enquiry, if any, in accordance with law, affording the applicant an effective opportunity to cross examine prosecution witnesses, adduce evidence and defend the case; issue necessary directions to re-fix his pay, grant and pay his salary untrammelled by the penalty order and the appellate order with all attendant monetary arrears as if there is no orders against the applicant reducing his pay.
3. The short allegations which paved way for initiation of proceedings under Rule 14 of the CCS(CCA) Rules can be stated thus:
"Shri T. P. Renil Kumar, while working as Skilled Support Staff at Calicut RC of CMFRI, Calicut started an argument with Dr. P. Kaladharan, Principal Scientist-in-charge, Calicut RC of CMFRI, Calicut at around 07.00 p.m. on 20.02.2013 and angrily O.A No.406/2016 4 shouted/abused Dr.Kaladharan. Sri.Renil Kumar hit on Dr.Kaladharan's lower jaw with his fist and due to this cut occurred on his upper lip (right side) and the area became swollen. Dr.Kaladharan's spectacles also got damaged.
Later in the night at around 8.30 pm on the same day, Shri T.P. Renil Kumar hid behind a lorry near Bhat Road Junction, Calicut and attacked Dr. Kaladharan with a sharp object while the latter was walking towards his house from office and due to this Dr.Kaladharan injured very seriously and admitted to hospital.
The above acts of Sri.T.P.Renil Kumar is unbecoming of a Government servant and in violation of Rule 3 (1)(iii) of CCS(Conduct) Rules, 1964 as extended to ICR employees."
4. An enquiry officer was appointed along with a presenting officer to conduct enquiry. Numerous witnesses were examined, but none of them was cross examined by the applicant and ultimately Annexure-A8 report was submitted by the enquiry officer, following which a show cause notice was issued to the applicant. Forwarding a copy of the report the applicant was called upon to submit, if he so desires, his written representation/submission. 15 days time was granted to him. Pursuant to the same he gave Annexure-A9 detailed representation; but according to the applicant, the contentions taken by O.A No.406/2016 5 him were not considered and thus Annexures-A10 order was passed by the disciplinary authority imposing the punishment as aforestated. Thereafter, the applicant gave Annexure-A11 appeal as provided under Rule 23(ii) of the CCS(CCA) Rules 1965. Ultimately, the Director, Appellate Authority dismissed the appeal. Aggrieved by the same, the applicant has approached this Tribunal for quashing the report of enquiry, the order imposing punishment as well as the appellate order.
5. As indicated earlier, the short allegation against the applicant is that he had assaulted and caused serious injuries to the Scientist-in- charge of the Regional Centre of CMFRI, Calicut on 20.11.2013. It was a harthal day. At that time, both of them were working in Calicut. It was pointed out that the incident had happened in two phases. The initial episode was at 7 pm inside the Recreation Club of the CMFRI, Calicut unit, where the applicant as well as Dr.Kaladharan were playing rummy. At that time, the applicant had manhandled him by hitting on the lower jaw of the said Kaladharan and caused him injuries. Later, when Kaladharan was proceeding to his house, at 8.30 pm, near the Bhat Junction, the applicant had hid himself behind a lorry which was parked O.A No.406/2016 6 on the side of the road and assaulted him with a sharp edged weapon and caused him serious injuries, He was immediately rushed to the Beach Hospital, then to the Medical College hospital and then to Baby Memorial Hospital, where he underwent inpatient treatment for many days.
6. From the sequents of events revealed it can be stated that it was a national harthal day. The proceedings were started when the said Kaladharan had given Annexure-A1 complaint to the Director, CMFRI, the 2nd respondent, stating that he was assaulted and injured by the applicant near the Bhat Junction. It is important to say that Annexure-A1 is silent about the initial part of the assault that had taken place within the Recreation Club. Following Annexure-A2 the 2 nd respondent constituted a committee consisting of Dr.P.U.Zacharia, Head, DFD, Dr.A.P.Dineshbabu SIC, Mangalore RC and Sri.Rakeshkumar, Chief Administrative Officer, CMFRI, Kochi to look into the complaint. They collected materials, interrogated various witnesses including Kaladharan and gathered preliminary evidence. They also questioned the applicant and then gave Annexure-A2 report making certain recommendations O.A No.406/2016 7 including for initiation of disciplinary proceedings, transfer of the applicant and also somewhat blaming the said Dr.Kaladharan also alleging supervisory lapses on his part. It is alleged that he had given undue freedom to employees in the centre. Whatever it may be, following Annexure-A2 report, the applicant was placed under suspension. After some time, his suspension was revoked. But the 2 nd respondent decided to initiate proceedings under Rule 14 of the CCS(CCA) Rules and Dr.K.K.Vijayan was appointed as the enquiry officer. A presenting officer was also nominated. After examining numerous witnesses, precisely eight witnesses, the report was filed, but none of the witnesses was cross examined by the applicant.
7. Annexure-A5 series are the copies of the memoranda of evidence of the witnesses recorded by the enquiry officer, which indicate that the statements were recorded in the narrative form signed by the enquiry officer, presenting officer, the witness; but the charged officer refused to sign it. The applicant was allowed to defend with the help of a defence assistant, one Ganapathi. But at the time of examination of the 1st witness, Dr.P.K.Ashokan itself the said Ganapathi left the enquiry O.A No.406/2016 8 proceedings stating that he was not allowed to put relevant questions by the enquiry officer. Then it is shown that the said Ganapathi had left the scene after instructing the applicant to remain silent without putting any question. Annexure-A5 series clearly indicate that even though the applicant was present throughout the day when statements of witnesses were recorded, he had refused to cross examine the witness or sign the depositions. On that basis, prosecution evidence was closed. From the report it seems that, later the applicant was directed to give his written brief, which he did.
8. Thereafter, as stated above, after serving the copy of Annexure-A8 the applicant was directed to give his submission/representation. That was how, he gave Annexure-A9, following which Annexure-A10 order was passed imposing punishment.
9. The applicant has raised all possible contentions challenging Annexures-A8, A10 and A12 proceedings. However, mainly four contentions have been raised stating that there are very serious violations which vitiate the proceedings so that the report as well as the orders imposing punishment and rejecting the appeal are illegal and O.A No.406/2016 9 violative of the provisions of the Article 311 of the Constitution as well as the CCS(CCA) Rules. So, the applicant wanted the entire proceedings quashed and his service benefits restored as though no such punishment was imposed on him. The first violation, according to the applicant, is regarding Rule 14(3) of the CCS(CCA) Rules. It was pointed out that even though Annexure-A2 preliminary report was submitted by a committee appointed by the 2nd respondent, the said report or the statements recorded by the committee were not furnished to the applicant before the commencement of the proceedings or when the copy of the charge sheet was served on him. Secondly, it was pointed out that the statements of witnesses were recorded in the narrative, the applicant was not afforded opportunity to cross examine the witnesses. The enquiry officer had taken a very strange stand when the 1 st witness was examined so that his defence assistant could not cross examine Dr.Ashokan; thus he left the scene. Thereafter, he was not afforded opportunity to cross examine the remaining witnesses. Thus Rule 14(4) of the CCS(CCA) Rules was also violated.
10. Thirdly, it is pointed out that after the completion of O.A No.406/2016 10 prosecution evidence, Rule 14(18) was not complied, he was not questioned as provided under the Rules. Fourthly, it was submitted that non-supply of material documents which he had demanded, that is the copy of medical records of Kaladharan etc. In this connection, the counsel also relied on decision in S.B.Ramesh v. Ministry of Finance, Government of India and another [1994 (6) SLR 183] of the Hyderabad Bench of this Tribunal. He has also placed reliance on the decision in Union of India and others v. S.K.Kapoor [(2011) 4 SCC 589]. The learned counsel also submitted a copy of the judgment of the Judicial First Class Magistrate-IV, Kozhikode, whereunder the applicant was acquitted of the charges levelled against him alleging offence under Section 324 of the Indian Penal Code, proving that he was acquitted under Section 248(1) of Cr.P.C. by the judgment dated 07.11.2016 in C.C.419 of 2013.
11. Learned counsel for the applicant also submitted that even though very elaborate statement was given by him, Annexure-A9, pursuant to the communication forwarding a copy of the Annexure-A8 report, when Annexure-A10 was passed, none of the relevant material contentions were touched by the 2nd respondent in his order imposing O.A No.406/2016 11 punishment. So, according to him, the disciplinary authority did not consider material facts, there is total absence of application of mind while the punishment was imposed. The very same allegations are raised against the appellate authority as well when Annexure-A12 was passed. Thus he said that none of these documents stand scrutiny. Therefore, he sought for allowing the Original Application.
12. The respondents disputed all the contentions and justified the impugned proceedings. According to them, everything was done after affording opportunity to the applicant; witnesses were examined in his presence. It was his decision not to cross examine the witnesses of the prosecution or to give any independent evidence.
13. The learned Standing Counsel supported Annexures-A8, A10 and A12 and contended that the disciplinary proceedings were conducted in a proper manner. The enquiry officer had examined witnesses in the presence of the applicant. Initially, his defence assistant was also there. But when he started asking unnecessary questions to Dr.P.K.Ashokan, the 1st witness, the enquiry officer intervened and discouraged him and asked him to confine to matters of fact and subject O.A No.406/2016 12 matter of the allegations raised against the applicant. But aggrieved by the same, the said defence assistant refused to cross examine the witnesses and left the scene. Thereafter, even though the applicant was present throughout the proceedings, he did not examine the witnesses, also declined to sign the deposition statements. Later, he was allowed to state his arguments in brief, which he did and thus sufficient opportunity was afforded to the applicant to disprove the allegations and prove his innocence. The statement of witnesses and documents relied on by the prosecution clearly indicate that the applicant had assaulted the said Kaladharan and caused grievous injuries, which is clearly an act of misconduct for which sufficient punishment was imposed.
14. The learned Standing Counsel also argued that at this point, the role of the Tribunal is very limited. The question is whether principles of natural justice were followed. From the documents made available by the applicants itself, it is clear that the witnesses were examined in the presence of the applicant, his defence assistant was refusing to cross examine the 1st witness, thereafter he left the scene. Other witnesses were also examined by the prosecution in the presence O.A No.406/2016 13 of the applicant. Still, they were not cross examined. Now there is no point in submitting that he was not afforded opportunity to cross examine. Similarly, he could adduce evidence, which opportunity he did not make use of. Therefore, learned Standing Counsel argued that there is absolutely nothing to interfere with the disciplinary proceedings.
15. Before proceeding to consider the rival contentions, it appears very important to mention the stand taken by the respondents. In paragraph 8 of the reply it is stated that the applicant, charged employee could not prove his innocence before the enquiry committee and therefore the charge levelled against the applicant stands proved. Firstly, there was no enquiry committee at all. There was only a one man enquiry officer, Dr.Vijayan who was appointed by the 2nd respondent, who was enquiring into the allegations with the help of a presenting officer one Sathianandan. Secondly, it is a totally unwholesome stand that the charged employee could not prove the innocence before the enquiry officer. It appears that such a stand was taken by the presenting officer also before the enquiry officer, which has been made mention in Annexure-A6 written brief filed by the applicant before the enquiry O.A No.406/2016 14 officer. It is to be understood that even if it is a disciplinary proceedings, intending to probe the correctness of the allegations of misconduct raised against public servant, after denial of the allegations by the delinquent officer, the initial burden is on the prosecution, that is the disciplinary authority to say that the allegations are proved. There is absolutely no burden, atleast at the beginning to disprove the allegation. Such a concept does not exist anywhere. The initial burden is always on the disciplinary authority, the prosecution, to prove that the allegations are made out. Unless their initial burden is discharged, there is no burden on the delinquent officer to disprove the allegations.
16. Here, the enquiry officer had examined eight witnesses on the side of the prosecution. Everything was done after duly alerting the applicant, in his presence. After going through Annexure-A5, statement of Dr.P.K.Ashokan, it cannot be understood as to why the defence assistant had given up and left the scene. When unnecessary questions were put regarding the qualification of a Principal Scientist, there is justification in the enquiry officer intervening and disallowing such questions. Thus on the fall of a hat he abandoned the proceedings after O.A No.406/2016 15 instructing the applicant to remain dormant.
17. Whatever it may be, it is very evident that the prosecution evidence was closed after affording opportunity to the applicant to cross examine the witnesses and participate in the proceedings.
18. It is also appropriate to state that this Tribunal can only take an overview of the disciplinary proceedings and oversee whether principles of natural justice were followed. In the decision in State of Andhra Pradesh and others v. S.Sree Rama Rao [AIR 1963 SC 1723] a Full Bench of the Supreme Court held thus:
"(7) There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public O.A No.406/2016 16 servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is O.A No.406/2016 17 not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."
19. Similarly, in B.C.Chaturvedi v. Union of India and others [(1995) 6 SCC 749] the Apex Court held thus:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power O.A No.406/2016 18 of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718] this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."O.A No.406/2016 19
20. The consistent stand of the Courts is that it is not within the realm of the Court or Tribunal to go into the niceties of the disciplinary proceedings or to act as an appellate forum over the disciplinaries/statutory authorities. This Tribunal is not a Court of appeal over the decision taken by the authorities. The only look out is whether the enquiry was held by the authorities competent in that behalf following the procedure prescribed by the Rules, whether principles of natural justice are violated. In State of Andhra Pradesh and others v. Chitra Venkata Rao [(1975) 2 SCC 557] it is held that where there is some evidence which the authorities entrusted the duty to hold the enquiry have accepted which evidence reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court or Tribunal to review the evidence and arrive at an independent finding.
21. Now we may consider the contentions of the applicant. The first contention of the applicant is that he was not served with Annexure- A2 enquiry report. Such an enquiry was conducted by a committee on the basis of Annexure-A1 complaint filed by Dr.Kaladharan before the 2 nd O.A No.406/2016 20 respondent. Then a committee was appointed to enquire into the prima facies and the committee consisting of three top officials recorded the testimony of numerous witnesses and came to the conclusion that there is prima facie materials, then made certain recommendations including initiation of disciplinary proceedings; on the basis of the recommendations of the committee the applicant was transferred from Calicut to Karwar. He had challenged the transfer order before the Tribunal but ultimately he failed and moved this Tribunal while working in Karwar. Whatever it may be, the question is whether the preliminary report was served on him before the commencement of enquiring into the allegations. In ground E, he said that he was not served with copy of the statements and the enquiry report. But that has been rebutted in the reply. In the reply it has clearly been stated that the report and copy of statements of witnesses which were relied on by the committee were served on him. Even though the applicant filed a rejoinder, he has not touched that aspect in the reply. We are not expected to take evidence on disputed questions and therefore, it has to be assumed that Annexure-A2 report, along with copy of statements, was served on the O.A No.406/2016 21 applicant. It is important to note that he did not make any such submission before the enquiry authority also and therefore it has to be concluded that Annexure-A2 along with copy of statements was served on the applicant.
22. The second contention is regarding the mode of recording statements of witnesses by the enquiry authority. According to the learned counsel for the applicant, while recording the statement, Rule 14(14) of CCS (CCA) Rules was not complied with. Rule 14(14) reads thus:
"(14). On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-
examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to reexamine the witnesses on any points on which they have been cross- examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit."
Of course it is ideal to conduct examination in chief and record the statement of witnesses in first person and enable the charged officer to O.A No.406/2016 22 cross examine him or permit the defence assistant to cross examine him and then proceed to re-examination etc. But the purpose of any such disciplinary proceedings is whether the charge is established on the touchstone of preponderance of probability. Departmental enquiry is held to reach a conclusion on whether the allegations against the charged officer are proved. The status of departmental proceedings is a quasi judicial one and enquiry officer performs the functions of a quasi judicial officer. The charges levelled against the delinquent officer must be found to have been proved or not. The Enquiry officer has a duty to arrive at a finding taking into consideration the materials brought on record by the parties. It is always ideal that the proceedings as in a Court are followed, that is conducting examination in chief, cross examination and re-examination. At the same time, there is no prohibition in recording the statement of witnesses in the narrative. The moot question is whether the witness has stated in clear terms as what had happened. Here, it is not necessary to detail Annexure-A5, which is a short paragraph, where it is stated that the presenting officer had introduced the witness Dr.P.K.Ashokan and he had submitted that he stands by the O.A No.406/2016 23 information already provided. In cross examination the defence assistant questioned the identity of Dr.P.K.Ashokan and started asking about his qualification etc., which was intervened by the enquiry officer and asked him to confine to the charge. Offended by this stand, the said Ganapathy gave up and walked out after instructing the delinquent officer to remain silent throughout the enquiry. When other witnesses were also examined, in the absence of the defence assistant the applicant remained dormant without cross examining the witnesses. All the same, we have to see that the witnesses were asked about the previous statements that were given to the preliminary enquiry committee. As mentioned earlier, those statements, along with the report of the committee, were already served to the applicant and he had no case before the enquiry officer that he was not served with such records.
23. From the statement of witnesses it is clear that many of them were asked about the previous statement and they answered with reference to the same. But here the learned counsel was harping on the way in which the statements of witnesses were recorded, which was not recorded in first person but in third person, only as a narrative. For O.A No.406/2016 24 instance, the statement of the defacto complainant Dr.P.Kaladharan has been recorded like this:
"The committee called Dr.P.Kaladharan, PS and the presenting officer introduced the matter related to the enquiry. Dr.P. Kaladharan, said that he stands by his statement given to the SIC CMFRI, Calicut and to the fact finding committee and gave copies of the same. He further added that on the day of the incident he played cards with Reni kumar and others (Renil kumar, M.M. Bhaskaran, K.T. Mohanan and himself). In the course of play Renil kumar hit him and injured his lips, after exchange of words on the activities of the canteen and his spectacles has fallen down and got damaged in the tussle. He also mentioned that Renil Kumar was a good personal friend and he was taken aback by his attack and was feeling ashamed of the incident. He then went out and proceeded home at Poozhiyil road. He was again brutally attacked on the way by Renil with some kind of a sharp object fixed on his fist causing severe injuries on his upper lip, nose and eyes. He has undergone maxillo-facial surgery. The attack by Renil was life threatening and even after one year he experiences pain in the area with problems in his speech. He said "even now I cannot comprehend why Mr. Renil Kumar has attacked me, other than my official actions on matters related to his TA bill, medical bill and wearing of uniform"
Mr.Renilkumar, SSS accused was present during the examination O.A No.406/2016 25 of the witness Dr.P.Kaladharan."
This is the narrative, which was signed by presenting officer, enquiry officer and the witness. Against the charged officer, who was present, it is shown that he had declined to sign the statement. Similar statements can be seen with regard to witnesses M.M.Bhaskaran, P.V.Gopalan, Dr.P.P. Manoj Kumar - Principal Scientist, K.T.Mohanan, Sameeranan and A Sivadasan. In all these cases, the presenting officer, the enquiry officer and the witness signed and the charged officer who was present had declined to sign. All these witnesses were examined before the enquiry authority on 28.02.2014. Thereafter Annexure-A6 was given on 09.06.2014, before the presentation of the Annexure-A8 enquiry report by the enquiry officer.
24. Now the material question is whether any substantial difference can be inferred in the nature of the enquiry, that is instead of recording the statement of witnesses in first person, the enquiry officer recorded the statement in third person as a narrative. These are not sworn statements. In other words, there is no obligation of taking oath before the examination of witnesses. The enquiry officer only wants to O.A No.406/2016 26 find out whether the charge is established or not. What he gathered from witnesses have been recorded. Whether recorded in first person or third person, the important aspect is whether the witness has given any statement, either for or against the prosecution. Applicant has no case that such statements were not given. In our assessment, no prejudice has been caused to the applicant in recording the statement in the narrative, in third person.
25. The statement of Kaladharan clearly indicates that he was attacked and injured by the applicant in the Recreation Club, in the presence of others. Similarly, the second part of the attack was unleashed when he was moving alone on the public road; there are reasons to think that he had identified the assailant. The said Gopalan had also stated that Dr.Kaladharan and Renil Kumar were found playing cards in the Recreation Club and then both of them were found lying on the same table, and then hearing a sound he reached near the table and separated them physically. Witnesses Bhaskaran and Mohanan also stood by earlier statements. That means, there are materials to show that the applicant had physically assaulted Dr.Kaladharan at the O.A No.406/2016 27 Recreation Club, which proves the first part of the allegation. The sole testimony of Dr.Kaladharan proves the latter part also. These statements stand unrebutted before the enquiry officer.
26. As stated earlier, there is no such particular form in which statement has to be recorded. It can either be in first person, which is the ideal position, but it not being a sworn statement, the enquiry officer has not committed any fault in recording the statement in the narrative, which was signed by all the necessary parties including the witness. Such statements were recorded in the presence of the applicant, which is not disputed. Therefore, the fact that it was recorded in narrative does not cause any prejudice to the applicant. Thus the second contention also falls to the ground.
27. The third ground urged by the applicant is that sub-rule 18 of Rule 14 was not complied with by the enquiry authority. Sub-rule 18 reads:
"(18) The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in O.A No.406/2016 28 the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him."
28. Ordinarily, it is necessary that on conclusion of prosecution evidence, as being done in a criminal trial under Section 313 of Cr.P.C. the incriminating materials should be brought to the notice of the charged officer. Here that was not done. The immediate question is whether that should be taken as a material fault on the part of the enquiry officer vitiating the entire proceedings.
29. In this connection, the Hon'ble Supreme Court in the oft quoted decision in State Bank of Patiala v. S.K.Sharma [AIR1996 SC1669] has summorised the principles of natural justice should be followed in a disciplinary proceedings. For our purpose, the following are relevant.
"32(3). In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held O.A No.406/2016 29 or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such In cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory in provisions, if one is so inclined. The O.A No.406/2016 30 principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee............"
30. The above quoted sub-rule pertains to the procedure to be followed. It has come out that the enquiry officer did not question him regarding the incriminating aspects. But for two reasons we are of the opinion that that has not caused any prejudice to the applicant. Firstly, throughout the proceedings the applicant was present. Secondly, as required by the enquiry officer the applicant submitted a written brief, Annexure-A6 on 09.06.2014 stating inter alia as follows:
"12. No admissible evidence has been adduced by the PO to sustain the Article of charges. So the Delinquent did not violate the Rule 3(1)(iii) of the Conduct Rules. "
That means, there is substantial compliance of Rule 14(18) which would serve the purpose. In our view, this argument also cannot sustain. O.A No.406/2016 31
31. The fourth ground is the non-supply of medical records, copy of FIR etc. in respect of Dr.Kaladharan. The learned counsel for the applicant also invited our attention to Annexure-A13 wound certificate produced by them. It is stated that he was taken to the Government hospital, Kozhikode at 9.50 pm on 20.02.2013 with injuries on his body with the alleged assault by Renil Kumar at Bhat Road. It seems that this document has been produced specifically to say that smell of alcohol was present when Dr.Kaladharan was taken to the hospital. It has come out that there was unhealthy practice of employees taking alcohol inside the Recreation Club. It is unfortunate that Dr.Kaladharan was also privy to such an illegal practice. He was the Scientist in charge of the Centre and was associating himself with the subordinates in taking alcohol inside the office premises which is a very bad tendency. Whatever it may be, non- supply of such documents cannot affect the conduct of the proceedings by the applicant. Those were documents available to all and sundry; it is available in public domain; he himself could have produced it before the enquiry authority. There was no obligation on the part of the disciplinary authority to supply such documents to the applicant. They need to give O.A No.406/2016 32 copy of documents which they were placing reliance. Such documents were not relied on by the disciplinary authority. Therefore, the non- supply of medical records etc. cannot have any impact in the enquiry proceedings or on the outcome thereon.
32. To sum up, we are of the definite opinion that the applicant could not make out any overwhelming circumstance to interfere with the finding of the enquiry officer. We feel that it was ideal for the disciplinary authority as well as the appellate authority to be more elaborate when their decisions were rendered. But after taking an overall view, we find that the Annexure-A8 report was submitted after affording sufficient opportunity to the applicant. Provisions of law and procedures have been substantially complied with. It was the choice of the applicant to remain dormant and not to cross examine material witnesses or to shake their evidence. He did not want any evidence to be adduced. He chose to remain silent contending that the prosecution failed to make out the case. But the witnesses supported the charge and thus Annexure-A8 was filed finding him guilty.
33. Turning to the punishment also, when compared to the O.A No.406/2016 33 gravity of the allegations, we feel that it is on the lower side.
The Original Application is bereft of merits. Dismissed. No costs.
(Dated, this the 1st March, 2024)
K.V.EAPEN JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ds
O.A No.406/2016 34
List of Annexures
Annexure-A12 True copy of the Order F.No.3-1/2013 - Vig. (Vol.II),
dated 6/6/2015 of the 2nd Respondent.
Annexure-A10 True copy of the Order No.3-1/2013 - Vig., dated
10/12/2014 of the 1st Respondent.
Annexure-A8 True copy of the Report of the Inquiry Officer dated
23/6/2014.
Annexure-A1 True copy of the complaint dtd. 22/2/2013 by
Dr.P.Kaladharan.
Annexure-A2 True copy of the report dtd. 16/5/2013, submitted by
the committee to the 2nd respondent.
Annexure-A3 True copy of the Memorandum & Article of Charge,
dated 26/6/2013, along with imputations of
misconduct.
Annexure-A4 True copy of the written statement of defence dated
05/7/2013, submitted by the Applicant, to the 1st
respondent.
Annexure-A5 True copy of the statement of the 1st witness.
Annexure-A5(a) True copy of the statement of the 2nd witness. Annexure-A5(b) True copy of the statement of the 3rd witness. Annexure-A5(c) True copy of the statement of the 4"" witness. Annexure-A5(d) True copy of the statement of the 5th witness. O.A No.406/2016 35 Annexure-A5(e) True copy of the statement of the 6th witness. Annexure-A5(f) True copy of the statement of the 7th witness. Annexure-A5(a) True copy of the statement of the 8th witness. Annexure-A6 True copy of the written brief dated 9/6/2014 submitted by the applicant, in obedience to the request of the Inquiry Authority of CMFRI.
Annexure-A7 True copy of the Memorandum dated 3/7/2014, of the 1st respondent.
Annexure-A9 True copy of the written submission dated 23/7/14, submitted by the applicant.
Annexure-A11 True copy of the appeal dated 20/1/2015, submitted by the applicant, before the 2nd respondent.
Annexure-A13 True copy of the accident register-cum-wound certificate, dated 20-2-2013.
Annexure-R2(a) True copy of the Order No.3- 1/2013-Vig., dated 23.02.2013 Annexure- R2(b) True copy of the Order dated 21.08.2013 revoking the suspension of the Applicant.
Annexure- R2(c) True copy of the Office Order No.3-1/2013-Vig., dated 22.08.2013, transferring the Applicant.
Annexure- R2(d) True copy of the fax message dated 21.02.2013.
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