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2014 Supreme(Ker) 1027
IN THE HIGH COURT OF KERALA
P.D. RAJAN, J.
Mallan - Appellant
v.
Registrar, High Court of Kerala - Respondent
O.P.No.24939 of 2000
Decided On : 06-08-2014
Advocate Appeared:
For the Petitioner: A.X. Varghese & A.J. Varghese
For the Respondents: Sojan James (Sr. Government Pleader) & P.J. Elvin Peter
Headnote:
Constitution of India,1950 - Article 226 - Disciplinary proceedings - Whether miscarriage of justice committed by the disciplinary authority by ignoring material evidence - Whether appeal before the appellate authority or under Article 226 of the Constitution is valid - principles of natural justice - Held, A finding of fact recorded by the Enquiry Officer, if perverse or has been arrived at without consideration of material evidence of the witnesses examined or such finding is based on no evidence or misreading of the evidence that, if allowed, it would surely result in gross miscarriage of justice, is open for correction under Article 226 - The denial of the supply of the copy of the enquiry report to the delinquent causes a grave prejudice and injustice which cannot be cured in appeal before the appellate authority or under Article 226 of the Constitution - The supply of the report along with the final order is a mandatory duty and the failure to supply copy to the delinquent would be unfair procedure violating not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice.
1. This Original Petition has been filed under Article 226 of the Constitution of India by the petitioner challenging the dismissal order passed by the District Judge, Kalpetta, Wayanad District. The petitioner was a Part Time Sweeper in the Munsiff Magistrate Court, Mananthavady, who joined in the judicial service in the year 1987. Later, he was dismissed by the 2nd respondent.
2. The gravamen of allegation against the petitioner was that on 16.2.1995 at 4.45 p.m., the petitioner trespassed into the court premises of Munsiff Magistrate Court, Mananthavady after consuming alcohol and misbehaved towards the members of the staff, which caused inconvenience to them. Immediately he was arrested by the Mananthavady Police and after medical examination, a case u/S.51(a) of the Kerala Police Act was registered against him. On 17.2.2005, he was absent from duty and therefore, was suspended from service. An enquiry was conducted by the 3rd respondent and on the basis of enquiry report, the petitioner was dismissed from service. The appeal preferred by the petitioner against his dismissal was also dismissed by the appellate authority.
3. The petitioner contended that all allegations were cooked up by the Head Clerk Damodaran and the local police as a result of conspiracy. The Judicial First Class Magistrate directed the Mananthavady Police to arrest the petitioner, without any ground, thereafter police obtained a false drunkness certificate and foisted a false case. He was retained in the Lock up and produced before 4th respondent on 17.2.95 at about 4 p.m. and was released in the evening only. The copy of the complaint was not furnished to him and none of the witnesses supported the complainant. Drunkenness certificate produced and marked was in the name of another person. The petty case charge sheeted ended in acquittal. The finding of the enquiry officer is against law, evidence and natural justice. Moreover, the disciplinary authority had not given copy of the enquiry report to the petitioner.
4. The 1st respondent in the counter affidavit contended that the disciplinary authority found that the petitioner entered in the court premises, after consuming alcohol and under the influence of alcohol, he misbehaved towards the staff of the Court and was absent from duty on 17.2.1995, for that an enquiry was conducted according to law. Before imposing the punishment, an explanation was also obtained from the petitioner and on the basis of that punishment was imposed on him. The copy of the enquiry report was not furnished to the petitioner before imposing punishment. Therefore, non-issuance of enquiry report to the petitioner did not cause any prejudice to him, and there was no violation of principles of natural justice. Nothing has been stated in the writ petition by the petitioner about the prejudice caused to him due to non-supply of the enquiry report. In the absence of any proof, the plea of the petitioner is only to be rejected.
5. Petitioner relied on the decision in Managing Director, E.C.I.L., Hyderabad & Ors. v. B. Karunakar & Ors. (1993) 4 SCC 727). The respondents relied on the decisions in Hariyana Financial Corporation and another v. Kailash Chandra Ahuja (2008) 9 SCC 31), and Om Prakash Mann v. Director of Education (Basic) & Ors. (2006) 7 SCC 558). Considering the peculiar nature of this case, this court marks the complaint made by the Head Clerk Munsiff Magistrate Court as Ext.X1 and the Medical Certificate issued in the name of C.P Madhavan as Ext.X2.
6. The principles governing furnishing copy of the enquiry report to the delinquent employee in a disciplinary proceedings has been discussed by the Constitution Bench of the Apex Court in E.C.I.L., Hyderabad’s case (supra), in which it is held as follows:
(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis
