As stated above, Annexure – A8 enquiry report and PR
minutes were given to the applicant only along with Annexure – A7 show cause notice after the Government accepted the findings in the enquiry report and provisionally decided to impose a penalty. It is pertinent to note that the enquiry officer and the disciplinary authority in the instant case were not one and the same. This is in violation of the principles of natural justice and the same cannot be condoned at all, as held in B. Karunakar's Case (supra)
“The findings or recommended punishment by the
enquiry officer are likely to affect the mind of the
disciplinary authority in his concluding the guilt or
penalty to be imposed. The delinquent is, therefore,
entitled to meet the reasoning, controvert the
conclusions reached by the enquiry officer or is entitled
to explain the effect of the evidence recorded. Unless
the copy of the report is supplied to him, he would be in
dark to know the findings, the reasons in support
thereof or nature of the recommendation on penalty. He
would point out all the factual or legal errors committed
by the enquiry officer. He may also persuade the
disciplinary authority that the finding is based on no
evidence or the relevant material evidence was not
considered or overlooked by the enquiry officer in
coming to the conclusions, with a view to persuade the
disciplinary authority to disagree with the enquiry
officer and to consider his innocence of the charge, or
even that the guilt as to the misconduct has not been
established on the evidence on records or disabuse the
initial impression formed in the minds of the
disciplinary authority on consideration of the enquiry
report. Even if the disciplinary authority comes to the
conclusion that charge or charges is/are proved, the case
may not warrant imposition of any, penalty. He may
plead mitigating or extenuating circumstances to impose
no punishment or a lesser punishment. For this purpose
the delinquent needs reasonable opportunity or fair play
in action. The supply of the copy of the report is neither
an empty formality, nor a ritual, but aims to digress the
direction of the disciplinary authority from his
derivative conclusions from the report to the palliative
path of fair consideration. The denial of the supply of
the copy, therefore, causes to the delinquent a grave
prejudice and avoidable injustice which cannot be cured
or mitigated in appeal or at a challenge under Art. 226
of the Constitution or S.19 of the Tribunal Act or other
relevant provisions. Ex post facto opportunity does not
efface the past impression formed by the disciplinary
authority against the delinquent, however, professedly
to be fair to the delinquent. The lurking suspicion
always lingers in the mind of the delinquent that the
disciplinary authority was not objective and he was
treated unfairly. To alleviate such an impression and to
prevent injustice or miscarriage of justice at the
threshold, the disciplinary authority should supply the
copy of the report, consider objectively the records, the
evidence, the report and the explanation offered by the
delinquent and make up his mind on proof of the charge
or the nature of the penalty. The supply of the copy of
the report is thus, a sine qua non for a valid, fair, just
and proper procedure to defend the delinquent himself
effectively and efficaciously. The denial thereof is
offending not only Art.311(2) but also violates Arts. 14
and 21 of the Constitution. {Para 7}
8. The argument on the side of the Government before the
Tribunal that there is no specific rule in the Kerala Police
Departmental Inquiries, Punishment and Appeal Rules to give enquiry report at the stage of drawing up of the same to the delinquent cannot be accepted at all. The right to receive the report is considered as the essential part of reasonable opportunity to be extended to the person affected by the report and a refusal to furnish the report amounts to denial of the right to defend himself and to prove his innocence in the disciplinary proceedings. Even if such right is not explicitly stated in the regulations or statute, that right being a fundamental and essential part of the natural justice, must be read into every regulation or rules. There is nothing in the rules aforesaid
which excludes the operation of the principle of natural justice
entitling the delinquent to be served with a copy of the enquiry
report before accepting the report or proposing a punishment. It is trite that the principles of natural justice must be read into the
unoccupied interstices of the statute/rules or regulations unless there is a clear mandate to the contrary.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP (KAT) No. 130 of 2022
JAYACHANDRAN V Vs STATE OF KERALA
PRESENT
MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
MR.JUSTICE MOHAMMED NIAS C.P.
Author: Mohammed Nias.C.P., J.
Dated: 16th day of June, 2022
The petitioner is the applicant in O.A.(EKM) 1842 of 2020
questioning the dismissal of his Original Application filed challenging
Annexure-A8 enquiry report/PR Minutes, Annexures -A10 and A12 to
the extent the applicant was given the penalty of barring of three
increments with cumulative effect in the departmental enquiry initiated
as per Annexure – A1 memo of charges. Departmental enquiry was
initiated against the petitioner on the allegation that he while
working as Inspector of Police, Museum Police Station,
Thiruvananthapuram City, manhandled one K.G. Suresh Babu at 10.
30 p.m on 3-1-2014 and also registered a false case against him. The
petitioner denied the charges stating that the car belonging to K.G.
Suresh Babu was parked very near to Raj Bhavan on 3-1-2014
when the Hon'ble Prime Minister of India was camping in the Raj
Bhavan. Since Sri. Suresh Babu did not bother to answer on being
asked as to why the car is being parked there, the petitioner had to
arrest and take him to the police station. It is alleged that the
Enquiry Officer was biased and had submitted Annexure-A10 report
which was accepted by the disciplinary authority who issued Annexure-
A7 show cause notice proposing the penalty of reversion of the
petitioner to a lower category of Sub Inspector for a period of five
years. By Annexure A-10, disciplinary proceedings were finalised by
awarding him the penalty of barring of three increments with
cumulative effect. Petitioner filed Annexure-A11 statutory review
petition before the Government which was rejected by Annexure-A12
order.
2. The Tribunal dismissed the Original Application by
rejecting the contention of the petitioner that copy of the enquiry
report was not furnished to him soon after it was drawn up and the
same was given only after a provisional decision was taken to impose a
penalty of reduction of rank for a period of five years, by relying on
Rule 17 (i) (b) of the Kerala Police Departmental Inquiries,
Punishment and Appeal Rules, (KPDIP) & A Rules.
3. The contention of the Government that only after the
disciplinary authority takes a decision, the copy of the report need to
be given to the delinquent employee, together with the findings of
the disciplinary authority on the enquiry report, was accepted and
accordingly holding that there were no grounds to interfere with the
orders impugned, the Original Application was dismissed.
4. Before us, it is the specific contention of the learned
counsel for the petitioner that there was no legally reliable evidence
against the petitioner and that the disciplinary authority accepted the
enquiry report and decided to punish the petitioner before giving a
copy of the enquiry report to the delinquent or obtaining his remarks
which deprived the petitioner of his right to point out the vitiating
factors of the enquiry report and also for avoiding punishment on the
basis of such a report. The enquiry officer and the disciplinary
authority not being one and the same, a copy of the report ought to
have been given to the delinquent before the disciplinary authority
decided on the further course of action to be taken on the report. The
learned counsel also argues that Annexure-A13, which was the
Government letter dated 21-1-2016 by which the request of Sri. K.G.
Suresh Babu for sanction to prosecute the petitioner was rejected was
not considered at all.
5. This Court by order dated 24-5-2022 directed the
Government Pleader to get instructions on the primary contention of
the petitioner regarding the failure to furnish enquiry report which was
against the the dictum laid down by the Constitution Bench of the
Apex Court in Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC
727] and as to whether the matter could be remitted to be done
afresh from that stage and in adherence to the dictum laid down in B.
Karunakar's Case (supra).
6. We notice that on going through Annexure-A7 show
cause notice dated 28-09-2016, that a decision was taken to revert
the petitioner as Sub Inspector for a period of five years provisionally
and an explanation was sought as if the enquiry report is being
accepted in full and the concurring with the findings of the guilt
rendered in the enquiry report/punishment, and the opportunity was
given only to show cause as to why provisional decision regarding
the proposed imposition of penalty of reversion to a lower post shall
not be finally passed. It is crystal clear that the enquiry report was
not served on the appellant before or an opportunity to plead why
the findings in the enquiry report should not be accepted by the
disciplinary authority or on the quantum of punishment was offered to
the petitioner. This action flies in the face of the dictum laid down by
the Constitution Bench in B. Karunakar's Case (supra).
7. As stated above, Annexure – A8 enquiry report and PR
minutes were given to the applicant only along with Annexure – A7
show cause notice after the Government accepted the findings in the
enquiry report and provisionally decided to impose a penalty. It is
pertinent to note that the enquiry officer and the disciplinary authority
in the instant case were not one and the same. This is in violation of the principles of natural justice and the same cannot be condoned at all, as held in B. Karunakar's Case (supra)
“The findings or recommended punishment by the
enquiry officer are likely to affect the mind of the
disciplinary authority in his concluding the guilt or
penalty to be imposed. The delinquent is, therefore,
entitled to meet the reasoning, controvert the
conclusions reached by the enquiry officer or is entitled
to explain the effect of the evidence recorded. Unless
the copy of the report is supplied to him, he would be in
dark to know the findings, the reasons in support
thereof or nature of the recommendation on penalty. He
would point out all the factual or legal errors committed
by the enquiry officer. He may also persuade the
disciplinary authority that the finding is based on no
evidence or the relevant material evidence was not
considered or overlooked by the enquiry officer in
coming to the conclusions, with a view to persuade the
disciplinary authority to disagree with the enquiry
officer and to consider his innocence of the charge, or
even that the guilt as to the misconduct has not been
established on the evidence on records or disabuse the
initial impression formed in the minds of the
disciplinary authority on consideration of the enquiry
report. Even if the disciplinary authority comes to the
conclusion that charge or charges is/are proved, the case
may not warrant imposition of any, penalty. He may
plead mitigating or extenuating circumstances to impose
no punishment or a lesser punishment. For this purpose
the delinquent needs reasonable opportunity or fair play
in action. The supply of the copy of the report is neither
an empty formality, nor a ritual, but aims to digress the
direction of the disciplinary authority from his
derivative conclusions from the report to the palliative
path of fair consideration. The denial of the supply of
the copy, therefore, causes to the delinquent a grave
prejudice and avoidable injustice which cannot be cured
or mitigated in appeal or at a challenge under Art. 226
of the Constitution or S.19 of the Tribunal Act or other
relevant provisions. Ex post facto opportunity does not
efface the past impression formed by the disciplinary
authority against the delinquent, however, professedly
to be fair to the delinquent. The lurking suspicion
always lingers in the mind of the delinquent that the
disciplinary authority was not objective and he was
treated unfairly. To alleviate such an impression and to
prevent injustice or miscarriage of justice at the
threshold, the disciplinary authority should supply the
copy of the report, consider objectively the records, the
evidence, the report and the explanation offered by the
delinquent and make up his mind on proof of the charge
or the nature of the penalty. The supply of the copy of
the report is thus, a sine qua non for a valid, fair, just
and proper procedure to defend the delinquent himself
effectively and efficaciously. The denial thereof is
offending not only Art.311(2) but also violates Arts. 14
and 21 of the Constitution.
8. The argument on the side of the Government before the
Tribunal that there is no specific rule in the Kerala Police
Departmental Inquiries, Punishment and Appeal Rules to give enquiry
report at the stage of drawing up of the same to the delinquent cannot
be accepted at all. The right to receive the report is considered as the
essential part of reasonable opportunity to be extended to the
person affected by the report and a refusal to furnish the report
amounts to denial of the right to defend himself and to prove his
innocence in the disciplinary proceedings. Even if such right is not
explicitly stated in the regulations or statute, that right being a
fundamental and essential part of the natural justice, must be read
into every regulation or rules. There is nothing in the rules aforesaid
which excludes the operation of the principle of natural justice
entitling the delinquent to be served with a copy of the enquiry
report before accepting the report or proposing a punishment. It is
trite that the principles of natural justice must be read into the
unoccupied interstices of the statute/rules or regulations unless there
is a clear mandate to the contrary.
9. Under these circumstances, we have no option but to set
aside the order dated 9th March 2022 of the Kerala Administrative
Tribunal in OA 1842 of 2020 and to allow this Original Petition.
10. We direct that the enquiry proceedings will have to start
afresh from the stage of drawing up of the enquiry report and by giving
a copy of the said report to the delinquent to offer his explanation on
the findings in the enquiry report and as to why the enquiry report
cannot be accepted. The delinquent should also be given an
opportunity to show cause against the proposed punishment. The
disciplinary authority may decide as to the necessity of separate
notices for the above or a composite notice.
The proceedings will commence as aforesaid and will be
proceeded on the basis of the rules keeping in mind the dictum of law
laid down in B. Karunakar's Case (supra). The proceedings as directed
above will be completed within a period of six months from the date of
receipt of a copy of this judgment.
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