KUNJAPPI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is a driver attached to 2 Kerala Girls' Battalion N.C.C., Quilon. He was suspended on 29-12-1972 pending enquiry into a charge of misappropriation of petrol. The enquiry was conducted on 6-2-1973, although the petitioner was absent on the occasion. The enquiry officer found that the petitioner was guilty of the charge. He was accordingly removed from service with effect from 3-4-1973 by order of the Director of N.C.C. (the 2nd respondent). The petitioner filed an appeal on 7-5-1973 before the 1st respondent, the Government of Kerala. The petitioner contended that he had no notice of the enquiry and the finding arrived at without hearing him was therefore invalid. This contention was finally accepted by the Appellate Authority, but as late as 26-5-1975. The petitioner was subsequently reinstated as from 4-2-1976. The complaint of the petitioner is that notwithstanding his reinstatement, the period of his absence from duty between 29-12-1972 when he was suspended and 4-2-1976 when he was reinstated has not been treated as period spent on duty, but only as eligible leave, as stated in Ext. P6.

(2.) In the counter affidavit filed on behalf of the 1st respondent it is stated that the enquiry was originally notified to commence on 29-1-1973 at 10.30 a.m. Due notice was issued to the petitioner by registered post with acknowledgment due as well as by hand. That notice was received by the petitioner on 25-1-1973. Nevertheless he did not turn up for the enquiry on 29-1-1973. Consequently the enquiry had to be postponed to 6-2-1973 and a notice was duly sent to the petitioner by registered post, but without acknowledgment due. When the petitioner did not turn up for the second time the enquiry was conducted in his absence.

(3.) The Appellate Authority, however, accepted the petitioner's contention that, for the enquiry which took place on 6-2-1973, he did not receive the notice, which was sent to him by registered post, until 7-2-1973. Consequently the Appellate Authority by Ext. P1 order dated 26-5-1975 set aside the order of removal dated 3-4-1973. Ext. P1 further stated that the appellate order was not a bar against fresh enquiry. However, no fresh enquiry was conducted. Nor was the petitioner immediately " reinstated. He had to wait for more than eight months. He was reinstated by the 2nd respondent as late as 4-2-1976