JAILAVUDEEN Vs. STATE OF KERALA

JUDGEMENT

(1.) In spite of three postings, after service of notice on them, respondents 3 to 5 have not appeared.

(2.) The petitioner, while the Secretary of the 5th respondent, was suspended and was later dismissed from service following disciplinary proceedings. X, an advocate, was the Enquiry officer. The petitioner sought that three resolutions in relation to disciplinary proceedings be rescinded. Whatever be the effect of Section 69 of the Kerala Co-operative Societies Act, 1969, the "Act", for short, one glaring illegality that appears on the face of the record is that X, the Enquiry officer, appeared on behalf of the employer to support the findings and the decisions which were impugned by the petitioner before the Deputy Director. Loosing his case before the Deputy Director, the petitioner filed an appeal before the Government. X appeared for the employer even before the Government.

(3.) The Enquiry Officer in a domestic enquiry as part of disciplinary proceedings, could be even one who belongs to the establishment of the employer. But what is important is that, the enquiry officer has to be fair, impartial and unbiased. Fair play calls not only for a sense of fairness. That should demonstrably appear on record and in the proceedings. That the enquiry officer had been fair in conducting the proceedings, is the soundest of the prime guarantees to a delinquent. Justice shall not only be done, but it shall also be seen to have been done. When a person from inside or outside the establishment, is appointed to conduct an enquiry, that person is expected to conduct the enquiry in a completely impartial manner. It is this impartiality, expected of an enquiry officer, that instills confidence, not only in the employer or employee, regarding the proceedings, but also in authorities who review those proceedings, on administrative, quasi-judicial or judicial processes. If the maker of a decision, including an enquiry officer or other subordinate authority tries to justify the reasons or views leading to decisions with adverse civil consequences, when questioned before a superior authority, that by itself is sufficient to disclose bias on the subject matter involved in the lis before a quasi-judicial or judicial authority, questioning such subordinate decision. This principle clearly applies even to cases of domestic enquiries where any anxiety shown by the Enquiry officer to sustain the findings arrived at by him in the enquiry, is sufficient enough to demonstrate that he did not have an impartial or unbiased approach in conducting the enquiry. For any support in this regard are the decisions of Syed Yakoob V. Radhakrishnan, 1964 5 SCR 64 and District Executive Officer V. State Of Kerala,1991 (1) KerLT 390. Once this has been clearly demonstrated by the appearance of the Enquiry Officer as the counsel for the establishment before the statutory authority hearing the application under Rule 176 of the Kerala Co-operative Societies Rules and in the statutory appeal before the Government, this Court need not labour much to go into the merits or demerits of the charges or the quality of the findings to arrive at the conclusion that the enquiry itself has to be struck down and there has to be a de novo enquiry proceedings. This is what emanates from the basics of justice.