2012 Supreme(Ker) 333

High Court of Kerala
V. RAMKUMAR & K. HARILAL
Sebastian K. Antony Kavumbhagom
Versus
Manager, St.Albert's College, Ernakulam & Others
CRP.No.682 of 2009
Decided On : 27-04-2012

Headnote:

Constitution of india,1950 - Article 226 - Mahatma Gandhi University Act 1985 - Sections 75, 63( 9), 63(10), 63(11) and 63(12) - Service matter - Misconduct meaning of - violation of an order- Suspension - Jurisdiction in Tribunal - Whether administrative routine or an automatic ritual to suspend an employee - Enquiry officer cannot lead the evidence on behalf of management and both the prosecutor and Judge - Appointment of presenting officer - whether Charge sheeted employee has to be allowed to be represented by a person authorised under Standing Order/Rules and Regulations - Violation of natural justice - Appearance of Advocate when can be allowed - Natural Justice - When warranted - Held, Misconduct is a generic term while specific misconducts like disobedience of orders, insubordination, neglect of work, absence from duty, assault on superiors or co-workers, dishonesty, fraud, participation in illegal strike, riotous and disorderly behaviour, theft, misappropriation etc., are species thereof. The master and servant relationship at common law has been largely modified by statutory provisions. The industrial and labour laws restrict the unfettered power of the master to determine the employment of his servant. The employer has to justify the action he takes against his employee and, therefore, the first step towards this is to conduct a domestic enquiry after affording a reasonable opportunity to the delinquent employee to defend himself. Misconducts are enumerated in the Standing orders or the service Rules or Regulations of the industrial establishments/organizations - Preliminary enquiry is normally resorted to by the disciplinary authority to collect evidence and material for forming an opinion whether full-fledged disciplinary enquiry may be initiated against the delinquent employee or not. A preliminary enquiry may not result - If the charge sheeted employee raises these questions before the Enquiry officer the same shall be decided. It is settled law that the charges shall be specific and unambiguous. Clarity and precision are the essential requirements of imputation. A charge sheet should not be vague or in generalised terms. Necessary particulars should be given and specific particulars of the charges must be furnished to the delinquent - The authority also should keep in mind the public interest behind the impact of the delinquent's continuance in office while facing departmental inquiry or a trial on a criminal charge. In other words, it is to refrain him from availing further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or to impede the progress of the investigation or inquiry etc - A suspended employee has no right to represent a charge sheeted employee. The charge sheeted employee is not entitled as of a right to be represented by an advocate at the domestic enquiry. In the absence of Standing Orders providing for legal aid it cannot be asked as a matter or right at domestic enquiry. Where an offer given to be represented by a Union leader was turned down by the workman, he cannot thereafter be allowed to complain of violation of the principles of natural justice. The position may require a re-look after the enforcement of S.30 of the Advocates Act, 1961 - Where there is no right for the workman to be represented by a lawyer at the domestic enquiry there is no violation of the principles of Natural Justice. Even though the Personnel - Thus, the jurisdiction of the Tribunal is very wide and apart from factual and legal errors in the order impugned before the Tribunal it can also consider violation of principles of natural justice and whether there was want of good faith in passing the impugned order or whether there was victimization of the appellant or whether there is no material on which the order is based or whether the impugned order is perverse - A finding on a question of fact is open to attack as erroneous in law if such finding is not supported by any evidence or if it is unreasonable and perverse. If the conclusion drawn on the facts proved in the case is wrong, it gives rise to a question of law - Directions issued - Revision is allowed