KPSC Vs. PREMPRAKASH

JUDGEMENT

(1.) THIS Second Appeal is by defendant No.2 in O. S. 910 of 1992 on the file of the Subordinate Judge's Court of Thiruvananthapuram. Defendant No.2 is the Kerala Public Service Commission. Defendant No.l in the suit was the State of Kerala. Defendant No.l has been impleaded as respondent No.2 in this Second Appeal.

(2.) RESPONDENT No. 1 herein, hereinafter described as the plaintiff filed the suit O. S. 910 of 1992 for a declaration that disciplinary proceedings initiated against him, the order of dismissal passed against him and the order in appeal therefrom were vitiated by irregularities and illegalities and are therefore illegal and void and to declare that the plaintiff continues to remain in service as Deputy Secretary of Kerala Public Service Commission and entitled to full pay and allowances. The suit was resisted by the defendants contending that the suit was not maintainable, that nothing vitiated the enquiry proceedings, that the plaintiff was not entitled to any relief from the Civil Court, and that the reliefs sought for are not capable of being granted by the Civil Court on the facts and in the circumstances of the case. The Trial Court granted a decree to the plaintiff by granting a declaration that the disciplinary proceedings, the order of dismissal and the order in appeal were vitiated by irregularities and illegalities and hence are illegal and void and that the plaintiff continues to remain in service as Deputy Secretary in Kerala Public Service Commission. This decree was affirmed by the lower appellate court though the lower appellate court did not fully agree with the contentions raised by the plaintiff in the suit. It is this concurrent declaration that is challenged in this Second Appeal by the Public Service Commission by raising the substantial questions of law whether the courts below were right in law in holding that the suit was maintainable, whether the courts below were in error in granting the declaratory relief without examining whether the alleged irregularities vitiated the enquiry held against the plaintiff, whether the courts below were in error in not enquiring into the question whether there was substantial compliance with the requirements of the Rules and of natural justice in completing the proceedings against the plaintiff and whether on the pleadings and the evidence in the case an illegality had not been committed in simply granting a declaration as sought for even without making it clear that the Public Service Commission was entitled to hold a proper enquiry and take suitable action against the plain tiff if the same was warranted by a fresh enquiry. This court admitted the Second Appeal on these questions.

(3.) THE grounds urged in the plaint in support of the prayers in the plaint were that the reliance placed by the Enquiry Officer on the statements made by witnesses before the Investigating Officers during the preliminary enquiries was against the terms of the proviso to Art.311(2) of the Constitution of India since the penalty can be imposed only on the basis of the evidence adduced during the enquiry and that such statements could not be made use of at all. It was also contended that even assuming that the statements made before the Investigating Officers could be admitted, the statements had to be read out to the witnesses at the time of enquiry and the Officer who made the enquiry in the present case only showed the statements to the witnesses and got replies to the effect that the statements were in fact made by them and this was not sufficient. The other grounds related to the acceptability or otherwise of the evidence available at the enquiry. The order in appeal by the Governor was challenged on the ground that it was not a speaking order. In its written statement, the Public Service Commission met these contentions by pointing out that the Enquiry Officer had conducted the enquiry in conformity with the rules and regulations and that the enquiry was conducted in conformity with the rules of natural justice. It was also pleaded that the statements of witnesses considered by the Enquiry Officer were read out to the witnesses in the enquiry and the witnesses also confirmed the genuineness of the statements. The Enquiry Officer had not relied on any of the statements obtained behind the back of the plaintiff. As regards the order of the Appellate Authority, it was contended that the Appellate Authority, the Governor had examined all the relevant records and had come to the conclusion independently that the appeal petition filed by the plaintiff did not merit consideration and only thereafter had dismissed the appeal. In addition to marking the enquiry report as Ext. A1, the Memorandum of Appeal as Ext. A3 and the relevant orders, the plaintiff examined himself as P.W. 1 in support of his challenge to the proceeding. The Trial Court found on a perusal of Ext. B7 file relating to the proceedings of the enquiry that the previous statements were read over to the witnesses and were marked and the plaintiff was given the opportunity to cross examine. The acknowledgment of the plaintiff was also taken to the effect that the statements' were recorded in his presence. The court also found that if the statements were not read over to the witnesses as contended by the plaintiff, he could have and he should have objected to their being marked in evidence then and there. Thus the court found that the case of the plaintiff that the previous statements were not read over to the witness at the enquiry was not established and could not be accepted. That court also found that the plea of the plaintiff that the statements could not be used for any purpose was also devoid of merit. The Trial Court found that there was omission to give copies of the previous statements of the witnesses to the plaintiff and this Was against the principles of natural justice. Solely on the basis of a finding that the copies of the documents, especially all previous statements of the witnesses, have not been given to the plaintiff, the Trial Court held that the Enquiry Officer had violated the principles of natural justice. The court also stated that the Appellate Authority must be taken to have not applied its mind when it rejected the appeal by Ext. A4 order and in view of this position, the plaintiff was entitled to relief. The lower appellate court found that the file relating to the proceeding at the enquiry showed that the copies of the statements were read out to the witnesses at the enquiry and hence the plaintiff could not be heard to say that the previous statements of the witnesses were not read over to the witnesses at the enquiry and their acknowledgments taken for the earlier statements made. The appellate court, found that the plaintiff had been given permission to peruse all the records and to make notes and an effective opportunity to cross examine the witnesses at the enquiry. Stating that there was nothing to show that copies of previous statements of the witnesses made before the Vigilance Officer were made available to the plaintiff and this violated the rules of natural justice, the lower appellate court confirmed the decree of the Trial Court. Relying on the Kerala Civil Services (CC and A) Rules, the appellate court also stated that the Appellate Authority had not passed an order in terms of R.31(2) of the Rules and hence the appellate order must also be considered to be invalid. It was thus that the appellate court confirmed the decree of the Trial Court. It is seen that ultimately the only point on which the decision is rested by the courts below is that the copies of the previous statements of the witnesses read over to those witnesses at the enquiry with opportunity to the plaintiff to cross examine the witnesses were not actually given to the plaintiff and that single fact would vitiate the enquiry. The question is howfar this view adopted by the courts below is correct in law.