P.N.Saji,( Former Senior Grade ... vs Kerala Public Service Commission
2025 Latest Caselaw 2997 Ker

Kerala High Court

P.N.Saji,( Former Senior Grade ... vs Kerala Public Service Commission on 29 January, 2025

Author: A.Muhamed Mustaque

Bench: A.Muhamed Mustaque

OP(KAT)No.439/2020

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                                                  2025:KER:5997

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                &

           THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

  WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946

                     OP(KAT) NO. 439 OF 2020

      AGAINST THE ORDER DATED 06.05.2020 IN TA NO.471 OF 2014

OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

PETITIONER/APPLICANT:

           P.N.SAJI,(FORMER SENIOR GRADE ASSISTANT,
           KERALA PUBLIC SERVICE COMMISSION,
           THIRUVANANTHAPURAM),PUTHENPARAMBIL HOUSE,
           MANNAMKANDAM P.O., ADIMALY-685561.

           BY ADVS.
           A.JAYASANKAR
           MANU GOVIND

RESPONDENT/RESPONDENT:
          KERALA PUBLIC SERVICE COMMISSION,
          REPRESENTED BY ITS SECRETARY, OFFICE OF THE KERALA
          PUBLIC SERVICE COMMISSION, PATTOM,
          THIRUVANANTHAPURAM-695004.


           BY ADV SHRI.P.C.SASIDHARAN, SC, KPSC
      THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR HEARING ON 13.12.2024, THE COURT ON 29.01.2025 DELIVERED
THE FOLLOWING:
 OP(KAT)No.439/2020

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                                                                 CR

                                 JUDGMENT

P.Krishna Kumar, J.

A disciplinary proceeding was initiated against

the petitioner, an Assistant Grade II, in the

service of the Kerala Public Service Commission

while he was working on deputation in the Kerala

State Beverages Corporation (KSBC). The allegation

against him was that he had misappropriated

Rs.2,26,335/- while working in a retail shop of KSBC

at Bison Valley in Idukki District by falsifying and

manipulating the sales records. After the formal

enquiry, he was found guilty and was awarded with a

punishment of dismissal from service. Against the

order of dismissal, he approached the Kerala

Administrative Tribunal, but it evoked no positive

result, hence this original petition.

2. On 24/04/2009, when an inspection was

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conducted in the retail shop of the petitioner, it

was found that the petitioner did not remit

Rs.5,000/- from the sale proceeds of 22.04.2009, and

it was reported to the parent department. The KSBC

further decided to take the stock in view of the

above disparity. When the stock was inspected by the

audit team, it was found that there were several

short remittances on various days totalling

Rs.2,26,335/-. Thereafter, on 17/07/2009, the

Managing Director of KSBC reported to the respondent

that the petitioner had misappropriated

Rs.2,26,335/- from the proceeds of sale from the

retail shop by falsifying the records. Based on the

said report, the petitioner was repatriated to the

parent department and placed under immediate

suspension. A criminal case was also registered

against him in Rajakkad police station for the

offence punishable under Sections 409, 468 and 471

of the Indian Penal Code. It is also alleged that

the petitioner had been absconding for some time,

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and later, he was arrested and remanded to prison.

These are the allegations upon which the

disciplinary action was initiated against the

petitioner.

3. On 22.06.2021, the petitioner was served

with Ext.P1 charge memo. The petitioner submitted

Ext.P2 reply to the charge memo on 8.7.2011 by

contending that he was innocent of the allegations

levelled against him and that everything was the

brainwork of the Warehouse Manager of the KSBC and

DAT staff to tarnish his reputation. A Joint

Secretary of the Kerala Public Service Commission

was appointed as the Enquiry Officer and he

conducted a formal enquiry into the charges levelled

against the petitioner. He submitted Ext.P3(a)

enquiry report on 01.08.2011, finding the petitioner

guilty of the charges. On 10/08/2011, the respondent

issued a show-cause notice to the petitioner,

calling upon him to explain why he should not be

imposed with a punishment of dismissal. The

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petitioner submitted Exts.P4 and P5 replies to the

show-cause notice on 25/08/2011 and 29/08/2011,

respectively, denying all allegations against him.

On 12/10/2011, the respondent issued Ext.P6 order

imposing the punishment of dismissal against the

petitioner, with effect from 3/8/2011. Though the

petitioner submitted an application for review of

the said order by raising various contentions, the

respondent reiterated its former decision, as per

Ext.P8 order dated 18/02/2012.

4. Heard the learned counsel appearing for the

petitioner and the learned Standing Counsel for the

respondent.

5. The petitioner challenges the disciplinary

proceedings on the following grounds:

The entire disciplinary action was vitiated for

error of law and violation of principles of natural

justice, as the charge memo and the memorandum of

allegations are vague and imprecise. The charge memo

contains only bald allegations, and the details of

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misappropriation are not mentioned either in it or

in the memorandum of allegations. The charge memo

was issued on 22/06/2011 and an enquiry officer was

appointed on 24/06/2011, even without waiting for

the explanation from the petitioner against the

charge memo. The entire enquiry proceedings were

finished in a single day by the enquiry officer and

he flouted all the mandatory procedural requirements

while proceeding with the enquiry. The petitioner

submitted an application for engaging a lawyer and

also for getting copies of the documents which might

be relied on in the enquiry, but the enquiry officer

proceeded with the enquiry without allowing the said

application. The statement of the petitioner was

recorded first and only then the Manager of the KSBC

was examined. The name and whereabouts of the

witness who was examined during the enquiry and the

particulars of the documents which were relied on in

the enquiry were not made known to the petitioner.

The Disciplinary Authority accepted the enquiry

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report without seeking any explanation from the

petitioner and then they straightaway issued Ext.P3

show-cause notice proposing the punishment. There

was no opportunity of hearing. The petitioner

further alleges that the entire inquiry process was

conducted with an ugly haste, and thereby, the

petitioner was denied a reasonable opportunity to

disprove the allegations.

6. As the enquiry proceedings are assailed by

the petitioner on account of the anomalies or lapses

pointed out above, it is necessary to analyse the

impact of such lapses or irregularities on the

validity of the enquiry and the punishment imposed

by the respondent on its basis.

7. Let us now consider the effect of non-

compliance with the provisions regulating

disciplinary enquiry in the light of settled legal

principles. After considering nearly two dozen

decisions of the Apex Court, as well as the English

law in this regard, the Honourable Supreme Court in

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State Bank of Patiala and Others v. S.K.Sharma

[(1996) 3 SCC 364] held that it would not be correct

to say that for any and every violation of a facet

of natural justice or the statutory rule governing

the disciplinary enquiry, the disciplinary

proceedings can altogether be set aside. The test to

be applied must be whether it is a case of "no

hearing" (i.e. no notice, no opportunity and no

hearing), or only one of not affording a "proper

opportunity" (i.e. absence of adequate or full

hearing). The court distinguished the effect of

violation of a procedural rule governing the

enquiry, in juxtaposition to violation of

substantive provisions. It is also held that the

complaint as to violation of such principles should

be examined on the touchstone of prejudice i.e. the

test should be whether the delinquent officer had or

did not have a fair hearing, if all things taken

together. The ratio of this decision has been

followed by the Apex Court and this court in several

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other decisions including in Union of India v. Dilip

Paul [2023 LiveLaw (SC) 959], Chairman, State Bank of

India and Another v. M. J. James [2022 (2) SCC 301]

and Radhadevi v. District Collector, Thrissur

[2021(5) KHC 289].

8. It is singularly important to understand

the factual and legal issues involved in State Bank

of Patiala and how the court answered those issues,

applying the above legal principles, as they are

significantly similar to the issues raised in the

present case.

9. The respondent in the said case was a

Manager of Patiala Bank during the relevant time and

he did not deposit a sum of Rs.10,000/- handed over

to him by one customer and on enquiry it was found

that he utilized the sum for approximately three

months for his own advantage and later he remitted

the amount in the account of the customer. On

enquiry he was found guilty and accordingly, he was

removed from service. His challenge against the

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order of removal was upheld by the civil court on

the ground that "the list of witnesses and list of

documents were not supplied along with charge sheet

and the failure to supply the same violates

Regulation 68(b)(iii) of the State Bank of Patiala

(Officers') Service Regulations, 1979" (paragraph

6). During the course of enquiry the presenting

officer filed a provisional list of

documents/witnesses and though a copy of the list

was supplied to the respondent, copies of certain

documents were not supplied. However, he was advised

to examine and take note of the said documents only

half an hour before the commencement of the enquiry

proceedings, whereas the said Rule provides that it

should be supplied at least three days before the

commencement of the enquiry. The decision of the

civil court was upheld by the appellate court as

well as by the High Court. In the said factual

background, the Supreme Court noted in paragraph 9

that "The issue boils down to this: whether the

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failure to literally comply with sub-clause (iii) of

clause (b) of Regulation 68(ii)(x) vitiates the

enquiry altogether or whether it can be held in the

circumstances that there has been a substantial

compliance with the said sub-clause and that on that

account, the enquiry and the punishment awarded

cannot be said to have been vitiated." The Apex Court

further noted that though there is no provision in

the State Bank of Patiala (Officers') Service

Regulations similar to Section 465 of the Code of

Criminal Procedure (Cr.P.C), it does not mean that

every violation of the Regulations renders the

enquiry and the punishment void and the test to be

applied in such cases should be one of 'prejudice'

which is explained in detail in the later part of

the judgment.

10. The court further considered the decision

of the Privy Council in M.Vasudevan Pillai v. City

Council of Singapore [(1968) 1 WLR 1278) wherein it

was held that unless the conditions of service are

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governed by a statute or statutory rules, the

principles of natural justice have no place in a

dispute between the master and the servant. The

Supreme Court then held that the procedural

provisions governing the disciplinary enquiries,

whether provided by rules made under the proviso to

Article 309 of the Constitution or under a statute,

are nothing but elaboration of principles of natural

justice and their several facets and, thus, it is

necessary to consider whether the violation of

rules/regulations/statutory provisions incorporating

such facets of natural justice is void or not. The

court elaborately discussed various English

decisions as well as its own decisions, and in

particular the ratio of the Constitution Bench in

Managing Director, ECIL v. B.Karunakar [(1993) (4)

SCC 727].

11. The Apex Court further opined that the

object of principles of natural justice, which are

now understood as synonymous with the obligation to

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provide a fair hearing, is to ensure that justice is

done and that there is no failure of justice.

Finally, the court further followed the decision of

the Supreme Court in Krishnan Lal v. State of J&K

[(1994) 4 SCC 422] wherein the question under

consideration was whether the dismissal of the

employee without supplying him a copy of the enquiry

report, which was mandatory as per the applicable

rules, is valid. In paragraph 28 the Court

delineated that the question of non-compliance of

principles of natural justice should be assessed

from the standpoint of applying the test of

prejudice. There may be situations where observance

of requirements of prior notice/hearing may defeat

the very proceeding, and there may be cases where

the rule of post-decisional hearing as a sufficient

compliance with natural justice, as evolved in the

case like Liberty Oil Mills v. Union of India [(1984

(3) SCC 465], the court opined. As noted above, the

court further declared that the most important test

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is to consider whether the violation is of a

procedural rule or of a substantive provision. The

court further held that the provision prescribing

competence of the authority who can impose the

punishment, etc., will be a substantive provision,

and thus, if the complaint is about the violation of

such a provision, the theory of substantial

compliance or the test of prejudice would not be

applicable, as the proceeding will be null and void.

If the violation is in respect of a procedural

character, the court should consider whether it is

of a mandatory character or not. Even if it is of a

mandatory character, violation of it will not

nullify the proceedings if the delinquent by conduct

or otherwise waived his right. If it is not of a

mandatory character, substantial compliance is

sufficient. If such a provision is violated, the

disciplinary action can be set aside only if the

violation has occasioned prejudice to the employee.

12. The Supreme Court further arrived at its

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conclusion on the question of the effect of non-

supply of copies of documents after considering the

decision in Krishnan Lal's case (supra) and concluded

that no prejudice has resulted to the delinquent

owing to the non-supply of documents. The court set

aside the findings of the High Court and restored

the punishment. The court held that setting aside

the punishment and the entire enquiry on the ground

of violation of sub-clause (iii) of the said rule

would be a negation of justice. Justice means

justice between both parties and the interests of

justice equally demand that the guilty be punished

and that technicalities and irregularities which do

not occasion failure of justice are not allowed to

defeat the ends of justice, it is held.

The court summarised the principles emerging from

the discussion made by it, in paragraph 33. The part

of it which is relevant in the present context is as

follows:

"(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/

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departmental enquiry in violation of the rules/ regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained herein before and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(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 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

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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. xxxxxxx (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.

(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting

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aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.

xx xx xx xx xx xx xx

(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."

13. Let us now decide the issues in the light

of the above principles after enumerating the

irregularities and illegalities pointed out by the

learned counsel for the petitioner, in respect of

the impugned disciplinary action. (a) The charge

memo does not contain meticulous details of the

transactions leading to the inference of malpractice

by the petitioner. (b) The enquiry officer was

appointed even before considering the explanation of

the petitioner against the charge memo. (c) The

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petitioner was not supplied with the copy of

materials relied on for framing the charge and some

of them were given only on the date of the enquiry,

when he made a specific request and was not

permitted to engage a lawyer. (d) The name of the

witness who was examined during the enquiry was

revealed to the petitioner only on the date of the

enquiry. (e) The statement of the petitioner was

recorded before examining the Manager, KSBC and the

entire evidence was recorded on a single day. (f)

After the submission of the enquiry report, the

Disciplinary Authority straight away issued a show-

cause notice of the proposed punishment of

dismissal, before considering the objection of the

petitioner on the enquiry report or giving him an

opportunity of a hearing. In view of the law laid

down by the Apex Court as above, are these

irregularities, in themselves, if actually found

existing, vitiate the entire proceedings?

14. Before answering the above, it is

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necessary to examine the relevant provisions of the

Kerala Civil Services (Classification, Control &

Appeal) Rules, 1960 ('KCS(CCA)Rules', for short)

concerning the disputes raised by the petitioner to

decide whether the abovesaid issues, if found

existing, are violative of its provisions.

15. Rule 15 of the KCS(CCA) Rules is titled as

the "procedure for imposing major penalties". Rule

15(2) provides that the Disciplinary Authority or

such other authorities empowered on this behalf is

satisfied that there is a prima facie case of taking

action against a Government servant, such authority

shall frame a definite charge or charges which shall

be communicated to the Government servant together

with a statement of the allegations on which each

charge is based and of any other circumstances which

it is proposed to take into consideration in passing

orders on the case. The accused Government servant

shall be required to submit within a reasonable time

a written statement of his defence. The Government

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servant may on his request be permitted to peruse or

take extracts from the records pertaining to the

case for the purpose of preparing his written

statement. After the written statement is received,

if the authority is satisfied that a formal inquiry

should be held into the conduct of the Government

servant, it shall forward the record of the case to

the authority or officer referred to in Clause (b)

of Rule 15(2) and order that a formal enquiry may be

conducted. Sub-Rule (b) of Rule 15(2) gives an

outline as to the officers or the authority that can

conduct a formal enquiry.

16. Sub-Rule(6) of Rule 15 provides that the

Disciplinary Authority may nominate a person to

present a case in support of the charges before the

Inquiring Authority and the Government servant may

present his case with the assistance of any other

Government servant, but he may not be permitted to

engage a legal practitioner for the purpose unless

the person nominated by the Disciplinary Authority

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as aforesaid is a legal practitioner.

17. Sub-Rule(7) of Rule 15 states that the

Inquiring Authority shall, in the course of the

Inquiry, consider such documentary evidence and take

such oral evidence as may be relevant or material in

regard to the charges and the Government servant

shall be entitled to cross-examine the witnesses

examined in support of the charges and to give

evidence in person and to examine such witnesses as

may be produced in his defence. A Note appended to

Sub-Rule(7) states that if the Inquiring Authority

proposes to rely on the oral evidence of any

witness, the authority should examine such witness

and give an opportunity to the accused Government

servant to cross-examine the witness. Sub-Rule (8)

of Rule 15 states that the Government servant may

present a list of witnesses to the Inquiring

Authority.

18. Sub-Rule (9) of Rule 15 mandates that at

the conclusion of the inquiry, a report of the

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inquiry shall be prepared after recording the

findings of the Inquiring Authority on each of the

charges, together with the reasons thereof. The

details of the matters to be incorporated in the

record of the inquiry are narrated in Sub-Rule (10).

Sub-Rule (11) states that the Disciplinary Authority

shall consider the record of the inquiry and record

its findings on each charge and it may depart from

the findings of the Inquiring Authority and record

its provisional findings on each charge with reasons

thereof. Sub-Rule(12) declares that if the

Disciplinary Authority is of the opinion that any of

the penalties specified in items (v) to (ix) of rule

11(1) should be imposed, it shall furnish the

Government servant a copy of the report of the

Inquiring Authority and submit all its findings

together with brief reasons and give him a notice

stating the action proposed to be taken in regard to

him and calling upon him to submit within a

reasonable time such representation as he may wish

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to make against the proposed action. Sub-Rule (13)

provides that 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 rule

11(1) should be imposed, it shall pass appropriate

orders in the case. Sub-Rule (14) states that the

orders passed by the Disciplinary Authority shall be

communicated to the Government servant, who shall

also be supplied with a copy of the report of the

Inquiring Authority unless they have already been

supplied to him. As per Sub-Rule 15, the procedure

referred to above shall be concluded as

expeditiously as the circumstances of the case may

permit, particularly one against an officer under

suspension.

19. Apart from the above Rules, the Government

has issued a Manual for Disciplinary Proceedings,

providing a detailed procedure to be followed by the

appropriate authority during each stage of the

proceedings against an employee. However, the

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provisions of the Manual are only general guidelines

for the officials to ensure due compliance with the

provisions of the KCS(CCA) Rules, and thus, they are

not adverted to here.

20. The discussion made in the first part of

this judgment makes it clear that an order imposing

punishment on an employee consequent upon a

disciplinary enquiry should not be set aside lightly

by finding that there are violations of rules

regulating the disciplinary proceedings. The primary

duty cast upon the Administrative Tribunal or the

Court which is called upon to address such issues is

to analyse the matter on the basis of the test of

prejudice.

21. Looking at this backdrop, the challenge

regarding the imprecise nature of the charge memo

can be considered at first. As noted above, in State

Bank of Patiala the Apex Court stated that even if a

provision similar to Section 465 of the Cr.P.C. is

not incorporated in the rules governing the

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disciplinary enquiry, it does not mean that every

violation of the rules makes the enquiry and the

punishment, void. How the judicial proceedings of a

criminal court are saved from mere error or

irregularity (except in cases where it resulted in

failure of justice or prejudice to the accused), the

disciplinary actions are also unassailable for mere

error or irregularities, unless it resulted in

prejudice/failure of justice to the delinquent.

Interestingly, Section 464 of Cr.P.C. states that no

finding, sentence or order by a court of competent

jurisdiction shall be invalid merely on the ground

that no charge was framed or on the ground of any

error, omission or irregularity in the charge unless

a failure of justice has occasioned thereby. In

other words, even in a criminal case where the trial

was conducted without framing a charge at all or

when the charge framed suffers some error, omission

or irregularity, the higher court, while considering

the validity of the finding, shall not disturb the

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finding, unless the said omission or irregularity

resulted in failure of justice. Apart from that,

Section 212 of Cr.P.C., which prescribes the details

to be contained in a charge, provides that when the

accused is charged with dishonest misappropriation

of money, it shall be sufficient to specify the

gross sum in respect of the offence and the dates

between which it was done, without specifying

particular items or exact dates.

22. In this case, the charge memo is indeed

not happily worded. The department could have

provided more details. Instead of making a general

statement that the petitioner misappropriated

Rs.2,26,335/- during the period he worked in the

said retail shop, the exact period could have been

stated. Nevertheless, the charge memo provides

reasonable details regarding the alleged

misappropriation, which are sufficient to defend the

disciplinary proceedings. It is to be remembered

that the prime allegation against the petitioner is

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that he manipulated sales registers, bank remittance

challan and stock records while he was working as

the shop-in-charge of the Beverages outlet and

thereby misappropriated Rs.2,26,335/- and that on

the basis of a complaint dated 17/07/2009 of the

Warehouse Manager, Thodupuzha in that matter,

Rajakad police has registered a criminal case

against him for the offence punishable under

Sections 408, 468 and 471 of the Indian Penal Code.

We can find all the above details in the charge

memo. Upon perusing the case records pertaining to

the disciplinary enquiry, we find that the charge

given to him is sufficient enough to defend the case

in a proper and effective manner and there occurred

no prejudice or failure of justice on account of the

insufficiency in the charge memo.

23. As per the law settled in State Bank of

Patiala, if a substantial provision of the

disciplinary rule is not complied with, the test of

prejudice need not be applied in that case.

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Nevertheless, the Apex court has clearly outlined

the circumstances in which a provision can be stated

as a substantive one; it is generally in respect of

the competency of the Disciplinary Authority. In

such cases the inquiry has to be set at naught

without considering the question whether the

delinquent suffered any prejudice owing to the

irregularity. There is no challenge in this case as

to the competency of the Disciplinary Authority and

hence what remains now is to consider whether the

irregularities pointed out in this case are coming

within the next category of eventualities adumbrated

in State Bank of Patiala viz., violation of

procedural provisions which are meant to ensure

compliance of the principles of natural justice. The

challenge raised in relation to the non-supply of

copies of materials relied on during the enquiry,

the non-disclosure of the name of the witness

examined, the inadequacy of opportunity to adduce

evidence by the petitioner and the reverse order in

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which the examination took place, etc. are related

to the procedural provisions in the KCS (CCA) Rules

ensuring the principles of natural justice and hence

it requires careful examination.

24. The enquiry file reveals that the

petitioner made a request to the enquiry officer on

26/07/2011 to supply him copies of the relevant

documents, on the basis of which charges are framed

against him, as well as the details of the

prosecution witnesses. He also sought permission to

seek the help of a lawyer to examine the prosecution

witnesses. In the enquiry report, the enquiry

officer recorded that his request for permission to

seek the assistance of a lawyer was rejected as the

rule does not permit the same. It is also stated

that the petitioner was given a copy of the letter

dated 17/07/2009 of the Managing Director of the

KSBC, on which the charge was framed. The enquiry

report further reveals that he was also intimated

that KSBC has posted Sri.A.K.Subramanian, the

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Manager of Warehouse, Chalakudy as the prosecution

witness. The petitioner has not disputed the above

facts in this original petition. Curiously, when we

examined the reply statement furnished by the

petitioner to the Secretary of the respondent on

25/08/2011 in response to the notice dated

10/08/2011 proposing punishment, it is evident that

he was given an opportunity to peruse the documents

so as to enable him to cross-examine the witness. He

stated that:

"I further submitted that though I have made a written request for serving copies of the document relied on by the department, it was not served to him in advance. I was given the opportunity to peruse the documents so as to enable me to cross-examine the witness. No witness list was given to me in advance."

(emphasis added)

From the above, it is obvious that this is not a

case where the employee was not served with copies

of the documents relied on by the department for

establishing the charge against him. The grievance

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of the employee is only that he was not supplied

with the documents in advance. In that circumstance,

as observed by the Honourable Supreme Court in State

Bank of Patiala, the question is not in respect of a

case falling under the category of "no notice/ no

opportunity/ no hearing", but whether the supply of

documents for perusal only on the date of enquiry

caused any prejudice to the petitioner in setting up

a proper defence.

25. When we examined the enquiry file, we

found that the petitioner had not made any request to

postpone the examination of the witness to another

day, for want of sufficient time to understand the

documents. It is true that in the notice issued by

the enquiry officer calling upon the petitioner to

appear before him for the enquiry on 26/07/2011 at 11

a.m., it was stated as follows:

"You are also requested to submit in any defence document or present witness from your side for defence of the charges. You can also peruse the documents marked as prosecution documents and examine the prosecution witness. No

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request for change of date will be entertained, as the time limit set for finalising the case by the Honourable High Court is fast approaching."

Referring to this, the petitioner may argue that he

did not request to postpone the examination because

of the specific interdiction engrafted in the said

notice. Nevertheless, he could have requested to

pass over the matter for a while to enable him to

take note of the records and equip himself for the

cross-examination, if it was actually necessary. It

is indeed correct that the examination of the

witness was over in one day, but at the same time,

the petitioner has neither made any effort to get it

continued to any other day nor did he raise any

complaint that he was not in a position to make his

defence properly or to adduce any evidence to

contradict the documents produced by the department.

The petitioner also did not furnish a witness list

on that day or in the following days. On the

contrary, he produced certain documents purportedly

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to prove his contention that he remitted back

Rs.5,000/- when the shortfall in the payment was

noted during the inspection on 24/04/2009. (Page No.

381 to 383 of the enquiry file). The petitioner was

also examined on that day.

26. We also perused the cross-examination made

by the petitioner in respect of the witness examined

by the department. The only aspect he raised during

cross-examination was that he was not informed in

writing as to the inspection made by the audit team

on 02/07/2009 and also that he repaid Rs.5000/- the

next day itself, which was found as a short

remittance on 24/04/2009.

27. Even when we analysed the defence raised

by him in the reply furnished against the notice

proposing punishment, which was submitted after

taking sufficient time, we could not find any

materials suggesting that the petitioner suffered

any prejudice because of the alleged irregularities

pointed out by the learned counsel for the

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petitioner. The petitioner gave a detailed reply

running to three pages, wherein he alleged that the

enquiry findings are false and incorrect. Apart from

doubting the veracity of the documents produced

during the enquiry on the ground that they are not

authenticated ones, his contention was only that the

district audit team used to visit the shop and

inspect the registers every month and hence the

enquiry officer ought to have found that there was

no chance for any malpractice. All these matters

strongly indicate that the petitioner was fairly

able to defend his case to the extent he narrated in

his reply and the closure of evidence on 26/07/2011

did not cause any prejudice to him. Thus, there is

no reason to hold that he was denied the opportunity

to adduce evidence owing to any of the

irregularities pointed out.

28. Another challenge raised was on the

ground that the petitioner was examined first and

the witness of the department was examined only

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after that. No doubt, the above procedure is

irregular and the enquiry officer ought not to have

done the same. However, here also, the test to be

applied is whether it caused any prejudice to the

petitioner. If the petitioner was permitted to give

evidence only after the examination of the witness

of the department, he could have contradicted the

evidence of the department with his own version or

documents. This is the advantage, had he been

examined later. But in this case, the enquiry

findings are entirely based on the matters revealed

during the inspection of records, and not through

the oral testimony of the witness. Apart from that,

the enquiry officer re-examined the petitioner after

the cross-examination of Sri. A.K. Subramanian, the

Manager of WareHouse, Chalakudy, the sole witness to

prove the charge. This is evident from page No.372

of the enquiry file. Then also, the petitioner did

not state anything against the statement made by the

witness. As stated above, the petitioner was asked

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by the enquiry officer to present witnesses if he

wished to examine them from his side, as per his

letter dated 15/07/2011. The petitioner did not do

so. He has no case even now that there were any

materials to discredit the matters revealed through

the enquiry. In short, none of the said

irregularities have caused any prejudice to the

petitioner in raising his contentions or defending

the enquiry properly and thus, there is no failure

of justice on account of it.

29. Similarly, when we consider the entire

situation, we find that the irregularity of

appointing the enquiry officer even before

considering the written statement of the petitioner

falls within the category of procedural

irregularity, not causing any prejudice to the

petitioner and hence that requires no elaboration.

30. However, the last one among them, i.e.,

the Disciplinary Authority straight away issued a

show-cause notice of the proposed punishment of

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dismissal, before affording him an opportunity to

contend why the findings in the enquiry report

should not be accepted by the disciplinary authority

assumes serious relevance, in the light of the law

settled by the Constitution Bench of the Hon'ble

Supreme Court in Managing Director, ECIL v.

D.Karunakar (supra).

31. When it was noticed that there was a

conflict in the two decisions of the Apex Court,

viz., Kailash Chander Asthana v. State of U. P.

[(1988) 3 SCC 600] and Union of India v. Mohd. Ramzan

Khan [(1991) 1 SCC 588], both delivered by the

Benches of three Judges, the matter was placed

before the Constitution Bench and accordingly the

said decision was passed. The basic question of law

considered by the Constitution Bench was whether the

report of the Inquiry Officer, who is appointed by

the disciplinary authority to hold an inquiry into

the charges against the delinquent employee, is

required to be furnished to the employee to enable

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him to make proper representation to the

disciplinary authority before it arrives at its own

finding with regard to the guilt of the employee and

the punishment, if any, to be awarded to him. The

court observed that the provisions of clause (2) of

Art.311 were amended by the Constitution (42nd

Amendment) Act of 1976, to add a clause that "it

shall not be necessary to give such person any

opportunity of making representation on the penalty

proposed". The court found that, a denial of the copy

of the report of the Inquiry Officer before the

disciplinary authority takes its decision on the

charges is a denial of a reasonable opportunity to

the employee to prove his innocence and is a breach

of the principles of natural justice. It was also

found that this requirement is part of the

opportunity of hearing at the first stage of the

enquiry and thus the 42nd Amendment does not affect

it. However, it was further held that the

Court/Tribunal should not mechanically set

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aside the order of punishment on the ground that the

report was not furnished at the previous stage. It

is beneficial to quote the relevant findings

hereunder:

"Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/ Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment."

The court made the above observation in a case

where the enquiry report was not at all supplied to

the delinquent. However, the ratio of the above

decision viz., if the court finds that the denial of

opportunity to challenge the findings in the enquiry

report would have made no difference to the ultimate

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findings and the punishment given, it should not

interfere with the disciplinary action, is equally

applicable in the present case. In this case, the

enquiry report was furnished to the petitioner along

with the notice dated 10.08.2011 on the proposed

punishment (Page 397 of the file). Then, the

petitioner furnished an elaborate reply raising

various challenges against the findings in the

enquiry report and pointed out why the report ought

not to have been accepted. The punishment was

imposed after considering the situation fairly. The

respondent specifically noted that the

misappropriation happened not on a single day. The

enquiry officer found that non-payment of

considerably large amounts like Rs.46,525/- on one

day and Rs. 32,900/- on another day and amounts like

Rs. 20,000/- each, on certain other days, were

proved through the sale register and bank remittance

challans. Above all, the petitioner has admitted the

non-remittance of Rs.5000/-.

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32. It is an accepted principle of law that in

a disciplinary enquiry, the standard of proof is the

preponderance of probabilities and not proof beyond

reasonable doubt, and the court should interfere

with the enquiry finding only when it is perverse or

based on no evidence at all [see Union of India v.

Dileep Paul (2023 LiveLaw (SC) 959]. After perusing

all those materials in the light of the written

explanation of the petitioner, we are not persuaded

to hold that if the petitioner had been given an

opportunity before accepting the enquiry report, it

would have made any difference to the ultimate

findings and the punishment imposed. As the

petitioner was already supplied with a copy of the

said report and the written explanation furnished by

him against it is available before this court, it is

not necessary to give the petitioner an opportunity

to show how he suffered prejudice because of the

said irregularity. Such a course is mandatory, as

observed in D.Karunakar's case (supra), if the copy

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was not supplied at all.

33. In short, after the 42nd Amendment to the

Constitution and the consequential changes

introduced to Article 311(2), it is not necessary to

give an opportunity of hearing before imposing the

punishment. Nevertheless, the delinquent is entitled

to make a representation against the enquiry report,

before the report of the enquiry officer is accepted

by the disciplinary authority. If the disciplinary

authority, rather than providing the opportunity to

respond before accepting the enquiry officer's

findings, proceeds directly to issue a show-cause

notice on the proposed punishment after serving a

copy of the inquiry report, and subsequently imposes

a punishment, the procedure is irregular. However,

the Court or Tribunal should not set aside the

punishment solely on this ground. Instead, it should

examine whether the irregular procedure actually

caused prejudice to the employee, considering the

specific facts and circumstances of the case. In

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assessing prejudice, the task of the court is

significantly eased when the employee, despite not

being heard by the disciplinary authority before

accepting the enquiry report, has nonetheless

challenged the findings in the enquiry report and

articulated reasons why the report ought not to have

been accepted, when he was called upon to show cause

about the proposed punishment. If it is evident that

providing the opportunity would not have altered the

outcome, no interference is warranted.

34. Let us now conclude. When reviewing

disciplinary actions against employees, Courts or

Tribunals should consider whether violations of

rules or regulations are substantive or procedural.

Violation of substantive provisions, such as those

related to the competency of the authority imposing

punishment, typically requires strict compliance,

and thus, the test of prejudice has no role.

Procedural violations, on the other hand, should be

examined to determine whether they prejudiced the

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employee's ability to defend himself. If prejudice

is found, the order has to be set aside. Otherwise,

no interference is necessary. Additionally, courts

must consider whether the procedural provisions are

mandatory or directory. Even if the provisions are

mandatory, if the employee has waived any

requirements of the provision by conduct, the

disciplinary action will not become null and void.

Nevertheless, an employee can waive the requirement

under a mandatory procedure only if it is aimed to

benefit him. If the procedural provision serves a

public purpose, the question of waiver is out of

place. The ultimate test is whether the employee

received a fair hearing.

35. A fair hearing necessitates that the

accused be informed of the charges and supporting

allegations, giving him a chance to deny guilt and

establish innocence. He must also be permitted to

defend himself by cross-examining opposing witnesses

and presenting his own testimony or witnesses.

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36. Furthermore, at the conclusion of the

enquiry, the disciplinary authority must provide the

delinquent employee with a copy of the enquiry

report if the authority and the inquiry officer are

not the same, before imposing punishment by

accepting the report. This enables the employee to

respond to the findings in the report. As the

disciplinary authority/employer has the discretion

to depart from the inquiry officer's opinion, this

opportunity is crucial for the employee to present

his case before the employer. If the disciplinary

authority omits this step, the procedure is

irregular, even if an opportunity was given at the

stage of imposing the punishment. However, the court

should intervene only if the irregularity caused

actual prejudice to the employee and not simply

because of the procedural lapse.

37. While disciplinary actions seriously affect

the individual rights of the employee, if undue

leniency is shown, it would compromise the essential

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discipline required in the public service and

ultimately undermine the very administrative system.

The governing principles in disciplinary actions

aim to strike a balance between two key objectives:

affording the employees a fair opportunity to defend

their innocence and ensuring that justice is served

to the employer as well for maintaining discipline

within the public service and the administrative

systems.

38. It is to be remembered that this is a case

where misappropriation of funds was detected on

stock verification by the team of Kerala State

Beverages Corporation, followed by an incident of

non-remittance of Rs.5000/- by the petitioner. The

petitioner has admitted non-remittance of

Rs.5,000/-. When the shortage was detected by the

audit team, he quickly remitted it. In disciplinary

proceedings for misappropriation of funds,

subsequent payment will not absolve the delinquent

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of the misconduct, unless he proves that the

omission was due to a bonafide mistake despite the

exercise of due care and attention. The competent

team of KSBC found a huge shortfall in the stock and

they also detected manipulations in the registers.

An officer in charge of a retail outlet, admittedly

entrusted to deal with public money, cannot shirk

his responsibility for a short remittance of

Rs.2,26,335/-, which is proved through the records

marked as Ext. PI to P-VI in the enquiry file, and

in particular Ext. P-V sale register, and the P-VI

stock register prepared by the Audit team, by

raising some defects or irregularity in the

proceedings. The Inquiring Authority and the

Disciplinary Authority arrived at the conclusion of

guilt on evaluating those records pertaining to the

actual sale on the relevant dates and the remittance

made in the bank by the petitioner on those dates

and also based on the register prepared on

verification of stock.

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39. Considering the gravity of the charges

proved against him, the punishment of dismissal is

certainly proportionate and commensurable to the

wrong done by the petitioner. In view of the above

discussion, we do not find any reason to interfere

with the impugned order and the inquiry proceedings

or the punishment imposed on the petitioner.

Therefore, the Original Petition is dismissed.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

P. KRISHNA KUMAR JUDGE sv

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APPENDIX OF OP(KAT) 439/2020

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF WRIT PETITION (TRANSFERRED APPLICATION NO.471/2014) FILED BEFORE THIS HONOURABLE COURT.

EXHIBIT P1 (TA TRUE COPY OF THE MEMO OF CHARGES NO.471/2014) NO.SSI(1)351/2009 DATED 22.06.2011.

EXHIBIT P2 (TA TRUE COPY OF THE EXPLANATION DATED NO.471/2014) 08.07.2011 SUBMITTED BY THE PETITIONER TO EXHIBIT P1.

EXHIBIT P3 (TA TRUE COPY OF THE SHOW CAUSE NOTICE NO.471/2014) NO.SSI(1) 351/09 DATED 10.08.2011.

EXHIBIT P3(A) (TA TRUE COPY OF THE ENQUIRY REPORT. NO.471/2014) EXHIBIT P4 (TA TRUE COPY OF THE REPLY DATED 25.08.2011 NO.471/2014) SUBMITTED BY THE PETITIONER TO EXHIBIT P3(A).

EXHIBIT P5 (TA TRUE COPY OF THE REPLY DATED 29.08.2011 NO.471/2014) SUBMITTED BY THE PETITIONER.

EXHIBIT P6 (TA          TRUE COPY OF THE ORDER NO.SSI(1) 351/2009
NO.471/2014)            DATED 12.10.2011.

EXHIBIT P7 (TA          TRUE COPY OF THE REVIEW PETITION DATED
NO.471/2014)            08.11.2011 SUBMITTED BY THE PETITIONER TO
                        THE COMMISSION.

EXHIBIT P8 (TA          TRUE COPY OF THE ORDER NO.SSI(1) 351/09
NO.471/2014)            DATED 18.02.2012.

EXHIBIT P2              TRUE COPY OF THE COUNTER AFFIDAVIT FILED
                        BY THE RESPONDENT.




                                                 2025:KER:5997


EXHIBIT P3           TRUE COPY OF THE ORDER DATED 06.05.2020
                     IN TA NO.471/2014 OF THE KERALA
                     ADMINISTRATIVE TRIBUNAL,
                     THIRUVANANTHAPURAM.