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2006 DIGILAW 95 (KER)

Kerala Agricultural University v. S. Vasundhara

2006-02-15

J.B.KOSHY, V.RAMKUMAR

body2006
Judgment :- Koshy, J. The respondent in this Appeal who filed the Writ Petition while working as Section Officer, Fair Copy & Despatch (FC & D), in the officer of the Collage of Agriculture, Vellayani run by the appellant was placed under suspension pending enquiry with effect from March 12, 1998. She was charge sheeted for the following misconducts:- “1. That you, Smt. S. Vasundara, Office superintendent (Higher Grade) (under suspension), College of Agriculture, Vellayani not only failed to discharge your official duties properly but when verbally instructed you misbehaved with the Dean in charge by using abusive language against him. Hence the following charges are leveled against you. 1. Coming to office late and leaving early on a regular basis. 2. Official misconduct and use of abusive language against the dean in charge on 6-3-1998. 3. Insubordination”. 2. Ext.P6 explanation was filed by her denying the allegations. After considering her explanation it was decided to conduct an enquiry. The enquiry officer conducted a detailed enquiry and several persons including senior officers were examined as witnesses and their statements were taken. She was also examined and her statements were recorded. Copies of statements were given to her. At the end of the enquiry she was asked whether she has got anything else to say and she answered in the negative. She did not raise any objection regarding the procedure of the enquiry. After the completion of the enquiry, enquiry report was submitted. Memo of charges, statements taken from the officers and the statement of the petitioner on 26-8-1998 & 7-12-1998 etc. are produced as (Ext.R1 (a) to (m). Annexure R1 (n) is the enquiry report. In the enquiry report charge Nos.2 and 3 were found to be proved by the enquiry officer. It was found by the enquiry officer as follows: “1. Coming to the office late and leaving the office early on a regular basis. This charge could not be proved as evidenced through the enquiry. There were no instances on record to prove any action taken by the authorities against this charge. 2. Official misconduct and use of abusive language against the Dean I/C on 6-3-1998. The above said charges stand proved by the enquiry. This charge could not be proved as evidenced through the enquiry. There were no instances on record to prove any action taken by the authorities against this charge. 2. Official misconduct and use of abusive language against the Dean I/C on 6-3-1998. The above said charges stand proved by the enquiry. On 6-3-1998 Smt. Vasundhra rushed in to Dean’s room and questioned the Dean i/c in an angry and loud voice for scoring the attendance column for 4-3-1998 A/N and 5.3.1998 F/N. This amounts to misconduct by the officer. She used filthy and abusive language against the Dean i/c at that time. This also amounts to grave misconduct by the officer. 3. Insubordination This charge also stands proved. Smt. Vasundhara left the office on 4-3-1998 without signing the attendance column for the A/N of that day. She absented herself on 5-3-1998 without prior sanction. She removed official records from the office unauthorisedly and produced photocopies of those records before the court of law. All the above facts amount to insubordination by the officer. SUGGESTIONS The charges of official misconduct and insubordination on the part of the officer are to be viewed seriously as it will affect the normal functioning of the office, secrecy of official business and morale of persons. Disciplinary action that may deem fit against the officer may be initiated so as stop further spread of such events in future”. 3. Considering the charge proved in the enquiry report instead of imposing major penalty a lenient view was taken and, she was awarded with the punishment of ‘censure’ by Ext.P10 proceedings. It was also stated that the suspension period will be regularized by granting eligible leave. This order was challenged before a learned Single Judge of this Court. The learned Single Judge found that natural justice was violated in the enquiry conducted and the punishment was so harsh especially she was placed under suspension for a long period. Therefore, Ext.P10 was set aside. The university was directed to treat her period of suspension as duty for all purposes and the entire service benefits available to the petitioner shall be computed and directed to be disbursed to the petitioner. It is against the said judgment, the University filed this Writ Appeal. 4. We have perused the enquiry proceedings. Therefore, Ext.P10 was set aside. The university was directed to treat her period of suspension as duty for all purposes and the entire service benefits available to the petitioner shall be computed and directed to be disbursed to the petitioner. It is against the said judgment, the University filed this Writ Appeal. 4. We have perused the enquiry proceedings. Even though the procedures as is being done in a criminal trial were not complied with, the enquiry proceedings would show that no prejudice has been caused to the petitioner by the procedure adopted by the enquiry officer and the enquiry officer considered all the points raised by the petitioner. What is imposed is only a minor punishment for which no formal enquiry need be conducted. Statute 41 & 44 read as follows: 41. Imposition of minor penalty – If the Disciplinary authority. Having regard to its findings is of the opinion that any of the penalties specified in items (i) to (iv) of Statute 23 shall be imposed, it shall pass appropriate orders in the case. XXXXX XXXXX XXXXX XXXXX XXXXX XXXX 44. Inquiry – No order imposing any of the penalties specified in items (i) to (iv) of Statute 23 shall be passed except after; (A) The university employee is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be take and given an opportunity to make any representation he may wish to make against the proposal; (b) Such representation, if any, made by him is taken into consideration by the disciplinary Authority”. She did not make any complaint regarding the procedure adopted in the enquiry pending order of suspension. It is true that a full fledged inquiry like examination of witnesses in the presence of the employee with cross-examination etc, was not conducted. A formal enquiry as contemplated by statute 29 to 39 is required only when a major penalty is imposed. Statute 29 reads as follows: “29. Inquiry – Without prejudice to the provisions of the Kerala Public Servants (Inquiries) Act, 1963 (31 of 1963) no order imposing on a University employees any of the penalties specified in items (v) to (viii) of Statute 23 shall be passed except after an inquiry held as far as may be, in the manner hereinafter provided”. 5. Inquiry – Without prejudice to the provisions of the Kerala Public Servants (Inquiries) Act, 1963 (31 of 1963) no order imposing on a University employees any of the penalties specified in items (v) to (viii) of Statute 23 shall be passed except after an inquiry held as far as may be, in the manner hereinafter provided”. 5. In this case, before the enquiry a charge sheet was issued detailing the allegations. She submitted here explanation. It was not satisfactory. Minor penalty could have been imposed at that stage. Disciplinary Authority, for satisfying himself before imposing minor penalty, conducted an informal enquiry by a competent professor of the College. There is no allegation of bias against the enquiry officer. Proceedings would show that several adjournments were asked by her. Enquiry Officer took statements from her. Thereafter statement of witnesses were taken. Then all the copies of the statements were given to her and statement was taken from her. She finally stated that she had nothing further to state and she did not produce defence witnesses also. Thereafter report was made by the enquiry officer. It was considered by the disciplinary authority and minor penalty was imposed. Merely because further enquiry was conducted after getting the explanation to satisfy the disciplinary authority before imposing minor penalty in excess of the requirement, the proceedings cannot be said to be invalid. No prejudice is caused to her. The power of this court to interfere in disciplinary proceedings under Art.226 of the constitution of India is very limited. In enforcing discipline in an establishment it is for the disciplinary authority to decide the matter. Only if grave injustice is caused an interference by this Court is required. The learned Single Judge also has stated that discipline is most essential in any institution and there cannot be any compromise on that. Hence it is a college run by University where discipline by the staff is an utmost necessity. Apex Court in L.K. Verma v. HMT Ltd. & Anr. – 2006 (1) Supreme 575 held that verbal abuse of an employee to his superior officer can be held to be sufficient for imposing the punishment of dismissal. Here abusive words were used against the Dean in the presence of senior officers. Same view was taken by the Apex Court in Mahindra and Mahindra Ltd. v. N.B. Naravade – 2005 (3) SCC 134. Here abusive words were used against the Dean in the presence of senior officers. Same view was taken by the Apex Court in Mahindra and Mahindra Ltd. v. N.B. Naravade – 2005 (3) SCC 134. Coming to the evidence in the enquiry also the statement of the witnesses etc. We are of the opinion that the University has taken a very lenient view and only imposed a minor punishment of ‘censure’ and that punishment cannot be interfered in a petition under Art.226 of the Constitution. Power of this Court for judicial review in disciplinary matters is very limited. In B.C. Chaturvedi v. Union of India and Others – (1995) 6 SCC 749 it was held that the disciplinary authority has exclusive power to consider the evidence to impart discipline. It is for the disciplinary authority to award appropriate punishment keeping in view of the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising its powers of judicial review, cannot normally interfere with penalty and impose some other penalty unless punishment imposed shock the conscience of the Court as held by Apex Court in Canara Bank v. U.K. Aswathy – 2005 AIR SCW 2005. Here the punishment imposed only censure and no interference is required by this court. 6. It cannot be said that disciplinary proceedings and period of suspension pending enquiry prolonged by management. File will show that the employee requested for time several times. With regard to the punishment of suspension pending enquiry, if the worker is found innocent, he is entitled to full salary but he is found guilty, he will not be entitled to salary, but only entitled to subsistence allowance. But in this case to enable her to get full salary employer allowed her to adjust it along with eligible leave. We are of the opinion that the must be given an option either to adjust the suspension pending inquiry period as eligible leave or the period without salary. If the petitioner opts that the period should not be adjusted against eligible leave, she may inform the employer within two months from today, so that employer shall not adjust her eligible leave. In this case delinquent employee was found guilty in the enquiry. If the petitioner opts that the period should not be adjusted against eligible leave, she may inform the employer within two months from today, so that employer shall not adjust her eligible leave. In this case delinquent employee was found guilty in the enquiry. Therefore, if she opts that the period need not be adjusted with eligible leave, he is not entitled to salary for the period of suspension pending enquiry but she is entitled to subsistence allowance. But during suspension pending enquiry period relationship of employer-employee is not coming to an end. Therefore the period will be taken as duty for the purpose of calculation of retiring benefits and other benefits excepts except that she will not be entitled to salary during the period but only allowance for subsistence. If no option is given within two months the present order to adjust period with eligible leave will become final. In the light of the above, the appeal is allowed and the judgment of the learned single judge is set aside.