IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE11H DAY OF OCTOBER201319TH ASWINA, 1935 WP(C).No. 13462 of 2012 (G) ---------------------------- PETITIONER: ----------- RAJAN DAVID AGED45YEARS FORMER BASKETBALL COACH, KERALA SPORTS COUNCIL NOW RESIDING AT RAJ BHAVAN, RESIDENCY ROAD, KOLLAM. BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.S.SHYAM PRASANTH SRI.T.R.SADEESAN RESPONDENTS: ----------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT SPORTS AND YOUTH AFFAIRS DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. KERALA SPORTS COUNCIL THIRUVANANTHAPURAM-695 001 REPRESENTED BY ITS SECRETARY. R2 BY ADV.SMT.P.K.RADHIKA,SC,STATE SPORTS COUNCIL BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON1110- 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX TO W.P.C.NO.13462 OF2012PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE MEMO OF CHARGES ISSUES BY THE2D RESPONDENT TO THE PETITIONER ON1301/2010. EXT.P2: TRUE COPY OF THE
ORDERDATED295/2010 ISSUED BY THE2D RESPONDENT. EXT.P3: TRUE COPY OF THE MEMO OF CHARGES ISSUED BY THE2D RESPONDENT TO THE PETITIONER ON0706/2010. EXT.P4: TRUE COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE2D RESPONDENT. EXT.P5: TRUE COPY OF THE
ORDERNO.KSSC/B1/520/2009 DATED1011/2010 ISSUED BY THE2D RESPONDENT. EXT.P6: TRUE COPY OF THE ENQUIRY REPORT DATED0905/2011 SUBMITTED BY THE ENQUIRY OFFICER BEFORE THE2D RESPONDENT. EXT.P7: TRUE COPY OF THE SHOW CAUSE NOTICE NO.KSSC/B1/520/10 DATED175/2011 ISSUED BY THE2D RESPONDENT. EXT.P8: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE2D RESPONDENT ON305/2011. EXT.P9: TRUE COPY OF THE MINUTES OF THE SPORTS COUNCIL MEETING HELD ON108/2011. EXT.P10: TRUE COPY OF THE
ORDERNO.KSSC/B1/520/2009 DATED29/11 ISSUED BY THE2D RESPONDENT. EXT.P11: TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE1T RESPONDENT ON1510/2011. EXT.P12: TRUE COPY OF THE WRITTEN ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE1T RESPONDENT ON2802/2012. EXT.P13: TRUE COPY OF THE G.O.(Rt)NO.46/12/S&YA DATED53/12 ISSUED BY THE1T RESPONDENT. EXT.P14: ORIGINAL AFFIDAVIT OF SMT.ANJALI DATED7H DAY OF APRIL, 2012. EXT.P15: ORIGINAL AFFIDAVIT OF SMT.GEETHA DATED7H DAY OF APRIL, 2012. RESPONDENT'S EXHIBITS: NIL // True Copy// PA toJudge A.M.SHAFFIQUE, J * * * * * * * * * * * * * W.P.C.No.13462 of 2012 ---------------------------------------- Dated this the 11th day of October 2013
JUDGMENT
Petitioner challenges the order passed by the 2nd respondent dismissing him from service which was confirmed by the 1st respondent in the revision filed by the petitioner.
2. The facts as disclosed would reveal that the petitioner joined Kerala Sports Council as a Basket Ball Coach in 1994. He was served with Ext.P1 memo of charges alleging certain misconducts. Initially, a member of Sports Council was appointed as enquiry officer. Later the enquiry was entrusted to Sri.P.Babu, retired Joint Labour commissioner. Ext.P6 is the report of enquiry. It was found that the charges 1, 2 and 4 against the petitioner were proved. Petitioner was served with Ext.P6 notice to show cause why action should not be taken against him pursuant to the findings in the enquiry report. Ext.P7 is the said show W.P.C.No.13462/12 2 cause notice. Petitioner submitted a detailed explanation as Ext.P8. However, the Sports Council in its meeting held on 10/08/2011 directed termination of service of the petitioner with effect from 02/09/2011. Ext.P9 is the minutes of the Sports Council Meeting and Ext.P10 is the order issued to the petitioner. Petitioner preferred revision before the Government to cancel the resolution under section 8(4) of the Kerala Sports Act, which was rejected as per Ext.P13 order. Petitioner therefore challenges Exts.P9, P10 and P13. Petitioner also seeks for a declaration that the enquiry report at Ext.P6 is illegal and unsustainable and seeks for a further direction to reinstate him in service.
3. The petitioner raises the following contentions: i) That the memo of charges had been issued by the 2nd respondent pursuant to the personal grudge of Sri.M.M.Abdul Rehman the member of the Finance and Administrative Committee of the Sports Council. He had recommended disciplinary action against the petitioner and W.P.C.No.13462/12 3 he was a member of the Committee which took the decision to terminate his services. ii) Though a member of the Sports Council was appointed as Enquiry Officer initially, thereafter another person Sri.P.Babu who is a retired Joint Labour Commissioner was appointed as Enquiry Officer. The appointment of an outsider as Enquiry Officer is contrary to Rule 15(2)(b) of the Kerala Civil Services (Classification, Control and Appeal) Rules 1960 (hereinafter referred to as the 'CC & A Rules'). Iii) That the enquiry report was accepted by the 2nd respondent even before the same was forwarded to the petitioner and before seeking an explanation regarding the same. iv) The findings in the enquiry is without any basis and there are no materials to come to a conclusion that the petitioner was involved in the alleged misconduct. v) That a similar complaint raised by Mr.M.M.Abdul Rehman against another Coach Sri.Biju Viswappan was W.P.C.No.13462/12 4 withdrawn by the Government. vi) That Ext.P14 and P15 affidavits sworn by Smt.Anjali and her mother Smt.Geetha would prove that a false case was foisted against the petitioner.
4. Counter affidavit is filed by the 2nd respondent supporting their stand taken in the matter and confirming that they have complied with all procedural formalities.
5. The learned counsel for the petitioner Sri.Jaju Babu inter alia contends that there is procedural infirmity in the matter relating to the conduct of disciplinary proceedings and also contends that the enquiry report was totally baseless and the whole disciplinary action was taken at the instance of Sri.Abdul Rehman. He also relied upon the judgment of the Constitution Bench of the Supreme Court in Managing Director ECIL Hyderabad and Others v. B.Karunakar and Others [1993(4) SCC727 to contend that acceptance of the enquiry report before seeking explanation of the delinquent employee amounts to violation W.P.C.No.13462/12 5 of principles of natural justice and hence the whole proceedings is liable to be set aside. Reference is also made to the judgment of this Court in W.A.No.2678 of 2002 wherein a Division Bench of this Court held that the findings of the enquiry officer should have been forwarded to the delinquent officer before accepting the report of the enquiry officer and only after getting his comments the disciplinary authority ought to have accepted the enquiry report.
6. On the other hand, Smt.P.K.Radhika appearing for the State Sports Council would submit that the petitioner is involved in sexual abuse which has been proved during enquiry. There is no specific bar under the C.C &A rules in appointing a third person as enquiry officer and there is no mandate that only authorities mentioned in the Rule 15(2) (b) of CC & A Rules alone shall conduct enquiry. That apart, it is contended that the petitioner did not raise any such issue during the enquiry, which amounts to waiver and acquiescence. The copy of the enquiry report was forwarded W.P.C.No.13462/12 6 to the delinquent and thereafter the disciplinary authority has considered his explanation and decided to impose punishment of termination of service. It is also pointed out that Sri.Abdul Rehman is not a party to the proceedings and that apart there is no material to indicate that he had exercised any bias in the decision making process. It is therefore contended that severe action had to be taken against the petitioner on account of the serious allegations of misconduct as reflected in the memo of charges which has been proved, as found by the Enquiry Officer.
7. Having regard to the aforesaid submissions, the question to be considered is regarding the validity of the disciplinary proceedings taken against the petitioner. Petitioner has made certain allegations against Mr.M.M.Abdul Rehman. He had conducted an initial enquiry and thereafter the matter was placed for a detailed enquiry. Thereafter an enquiry officer was appointed by the Sports Council. Petitioner has a case that Mr.M.M.Abdul Rehman W.P.C.No.13462/12 7 was also part of the Committee which had taken Ext.P9 decision. I do not think that the aforesaid allegations would constitute a bias against the petitioner. No material has been produced by the petitioner to substantiate bias other than contending that Sri.Abdul Rehman has preferred complaints against other coaches and that being the member of the Finance and Administrative Committee he had conducted an initial enquiry and directed a detailed enquiry to be conducted. Apparently, Sri.Abdul Rehman is an office bearer of the Council and that he had conducted a preliminary enquiry by itself would not indicate that he has bias against the petitioner. He had only acted in his capacity as an office bearer of the Council, which forms part of his official duties and such actions of officers cannot be termed as creating a bias against the petitioner. That apart the final decision was taken by an eight member Standing Committee as evident from Ext.P9. The learned counsel for 2nd respondent relied upon Lalit Kumar Modi v. Board of W.P.C.No.13462/12 8 Control for Cricket in India and others (2011 KHC4888 wherein the Supreme Court held as under: "32. We have noted the submissions of the petitioner with respect to his apprehensions. However, as far as the propositions of law are concerned, we cannot take a different view in the present case from the law laid down in the judgment of the Constitution Bench of this Court in M.P. Special Police Establishment (supra), and the judgment of four Judges in T.P. Daver Vs. Lodge Victoria (supra). As held in M.P. Special Police Establishment, a mere apprehension of bias cannot be a ground for interference. There must exist a real danger of bias. And, following T.P. Daver v. Lodge Victoria, though such domestic inquiries have undoubtedly to be fair, a member of a society cannot stretch the principle of fairness to the extent of demanding a tribunal consisting of outsiders, on the basis that the society members are biased against him. As we have noted, the petitioner has, in clear terms stated that he was not making any personal allegations against two members of the W.P.C.No.13462/12 9 Disciplinary Committee, viz. Shri Jaitely and Shri Scindia. Even the grievance against the third member Shri Amin cannot be said to be well founded. The petitioner was alleging institutional bias against the members of the Committee, which was only on the basis of their participation in the meetings of the first respondent society. In this way, institutional bias can be alleged against every member of the Governing Council of IPL and the General Body of the first respondent which cannot be accepted. The petitioner may have an apprehension, but it is not possible to say from the material on record that he was facing a real danger of bias." Having regard to the aforesaid findings I am of the view that the petitioner has failed to substantiate the contention of bias.
8. Next question to be considered is regarding the appointment of the enquiry officer. The Service Rules applicable to State Government employees is made applicable to the Officers and Staff of Kerala State Sports W.P.C.No.13462/12 10 Council, as per Rule 22(4) of the Kerala Sports Rules, 2008. As per Rule 15(2)(b) the formal enquiry may be conducted by, (i) the Government; (ii) the appointing authority; (iii) the disciplinary authority; (iv) the head of the department or any officer of the department empowered by the appointing authority or the Head of the Department; or (v) a special officer or Tribunal appointed by the Government for the purpose or a Tribunal generally appointed for making enquiries into the conduct of Government service. The argument is that when conducting of a formal enquiry is mandatory, the 2nd respondent should have conducted an enquiry only through agencies specified under Rule 15(2)(b). The latter part of Section 15(2)(a) indicates that after the written statement is received and if the disciplinary authority is satisfied that a formal enquiry 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) and order that a formal enquiry may be W.P.C.No.13462/12 11 conducted. In the case on hand, the enquiry is not conducted by a person or authority specified under clause (b) whereas an independent person, a retired Deputy Labour Commissioner is appointed as an Enquiry Officer. The question is whether the Rules excludes conducting an enquiry through any other person other than the person/authority mentioned above. The mandate of the Rules is to conduct a formal enquiry and the Rules also specify the specific person/authority who has to conduct the enquiry. If the intention of the Legislature was to permit a disciplinary authority to engage any other person to conduct the enquiry definitely the Rules would have clearly indicated so. However in the case on hand, the enquiry was completed by the enquiry officer. The question would be whether failure to adhere to the above rule would vitiate the enquiry and whether the petitioner has waived his right to object to such an enquiry. There is no material on record to suggest that the petitioner has objected to the appointment W.P.C.No.13462/12 12 of enquiry officer at the earliest opportunity either at the time of appointing the enquiry officer as per Ext.P5 or during enquiry. Whereas he has participated in the enquiry and completed the proceedings. When Ext.P7 show cause notice was issued he had sent a reply as Ext.P8, wherein also no such contention is taken. Only when a revision is filed, for the first time such a contention is taken. In the writ petition an attempt is made to contend that he had orally objected. If that was the case definitely he would have put it in writing or would have at least mentioned the same in Ext.P8 reply. Hence the contention that the petitioner had orally objected to the enquiry is unbelievable. The Supreme Court had occasion to consider a somewhat similar issue in H.V. Nirmala v. Karnataka State Financial Corpn., (2008) 7 SCC639. One of the issues involved was whether the enquiry was conducted by the proper officer as per rules and the Supreme Court held as under: W.P.C.No.13462/12 13 "10. The appellant did not raise any objection in regard to the appointment of the enquiry officer. She participated in the enquiry proceeding without any demur whatsoever. A large number of witnesses were examined before the enquiry officer. They were cross-examined. The appellant examined witnesses on her own behalf. The learned Single Judge as also the Division Bench of the High Court opined that the appellant has failed to establish that any prejudice has been caused to her by reason of appointment of a legal advisor as an enquiry officer and as the appellant has participated in the enquiry proceeding, she could not be permitted to raise the said contention." "19. In Central Bank of India also this Court held that an enquiry officer need not be an officer of the Bank as even a third party can be appointed an enquiry officer to enquire into the conduct of an employee. What was, however, emphasised was that a non-official cannot act as a disciplinary authority and pass an order of punishment against the delinquent employee. It is in that view of the matter that it was held that a retired employee could not act as a disciplinary authority. W.P.C.No.13462/12 14 20. We may, however, notice that in a case of this nature where appointment of the enquiry officer may have something to do only for carrying out the procedural aspect of the matter, strict adherence to the rules may not be insisted upon. Superior courts in a case of this nature may not permit such a question to be raised for the first time. (See Sohan Singh v. Ordnance Factory.)" 9. In that view of the matter, I am of the view that though the formal enquiry is to be conducted through the authorities/persons specified under Rule 15(2)(b) of the CC & A Rules, as no prejudice is shown to have caused to the petitioner and he had not objected to the enquiry being conducted through an outsider at the earliest occasion he cannot contend that the enquiry is invalid on that ground. As held by the Supreme Court non compliance of a procedural requirement does not make the enquiry report a nullity in the eye of law. It is further held in H.V. Nirmala (supra) that, W.P.C.No.13462/12 15 "A jurisdictional issue should be raised at the earliest possible opportunity. A disciplinary proceeding is not a judicial proceeding. It is a domestic tribunal. There exists a distinction between a domestic tribunal and a court. The appellant does not contend that any procedure in holding the enquiry has been violated or that there was no compliance with principles of natural justice." Hence I am of the view that enquiry report cannot be rejected on account of the aforesaid contention.
10. The petitioner has a case that a decision has been taken by the disciplinary authority accepting the enquiry report even before giving a copy of the report to the delinquent officer. Rule 15(11) of CC&A Rules indicates that the on receiving the enquiry report the disciplinary authority shall consider the report of the enquiry and record its findings on each charge. Rule 15(12)(i) further indicates that if the disciplinary authority having regard to the findings of the charges is of the opinion that any of the penalties W.P.C.No.13462/12 16 specified in items (v) to (ix) of Rule 11(1) should be imposed it shall furnish to the Government servant a copy of the report of the enquiring authority and a statement of its findings together with brief reasons for disagreement if any, with the findings of the enquiring authority and give him notice stating the actions proposed to be taken in regard to him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed action. In the case on hand on receipt of the enquiry report, the Sports Council by Ext.P7 show cause notice dated 17/05/2011 informed the petitioner regarding the receipt of the enquiry report, forwarded a copy of the report to him and informed him that as per the enquiry report the Council is satisfied that the petitioner is guilty. Hence he was called upon to give an explanation within seven days as to why disciplinary action should not be taken against him. This notice apparently is based on Rule 15(11) and (12) of the CC & A Rules. The argument of the learned W.P.C.No.13462/12 17 counsel for the petitioner is that the Constitution Bench in ECIL's case (supra) had held that the delinquent employee has a right to receive copy of the enquiry officer's report before the disciplinary authority arrives at his conclusions with regard to the guilt or innocence of the employee in regard to the charges levelled against him. It is further held that denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges amounts to denial of a reasonable opportunity to the employee to prove his innocence, which amounts to breach of principles of natural justice. Therefore, the contention is that a copy of the report has to be furnished to the delinquent having regard to the law laid down by the Supreme Court, to enable the delinquent to explain as to why such an enquiry report should not be accepted, before the disciplinary authority accepts the said report or comes to the conclusion to take decision on the charges. A Division Bench of this Court in W.A.No.2678 of 2002 has also relied W.P.C.No.13462/12 18 upon ECIL 's case (supra) and other judgments to form such an opinion. It is therefore the contention that Ext.P7 to the extent which states that the Council had accepted the charges is clearly illegal.
11. Now let me consider the applicability of ECIL's case to the facts of the present case. In ECIL's case (supra) the Supreme court was considering the scope and effect of Article 311(2) of the Constitution as available before and after the 42nd amendment. Therefore the judgment apparently applies only in respect employees holding civil post in the Union or the State. Hence it has to be verified whether the petitioner's employment is in a civil post of the State.
12. Admittedly petitioner is employed by the Kerala Sports Council (for short 'Council') as a Basketball Coach. The Council is constituted by virtue of section 3 of the Kerala Sports Act, 2000, as a body corporate having perpetual succession. Section 3(2) reads as under: W.P.C.No.13462/12 19 "3. Constitution and composition of the Kerala State State Sports Council.- (2) The State Sports Council shall be a body corporate by the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act and the rules made thereunder, to acquire hold and dispose of property, both movable and immovable and to enter into contract and shall by the said name sue and be sued." 13. The funds for the functioning of the Council shall be in terms with section 34 and 35 which reads as under; "34. Grants by the State Government- The Government of Kerala shall, after due appropriation made by the State Legislature bye- law in this behalf, pay to the State Sports Council, by way of grants, such sum of money as it may think fit for carrying out the purposes of this Act.
35. State Sports Council Fund.- (1) The State Sports Council, shall establish a fund to be called the "State Sports Council Fund" and the following shall be credited thereto:- W.P.C.No.13462/12 20 (i) all sums of money given by the State Government under section 34; (j) any grants or donations made to the State Sports Council, by any other person for the purposes of this Act; (k) any amount received by the State Sports Council, from any other source. (2) The State Sports Council Fund shall be applied for meeting.- (a) the expenses in connection with the functioning of the State Sports Council; and (b) any other expenses which are required to be met by the State Sports Council." 14. Chapter IX deals with appointment of Officers and Staff, which reads as under: "44. Appointment of Officers and Staff.- (1) Subject to the provisions of sub-section (2) the Secretary of the State Sports Council may in constitution with Public Service Commission, and in the manner which is helpful for exercising the powers, duties and functions of all courts under this Act, appoint such officers and staff for the councils with the prior approval of W.P.C.No.13462/12 21 Government, as may be required against posts duly sanctioned by it: Provided that in all appointments to be made directly, such percentage of posts as may be prescribed shall be reserved for sportsmen. (2) The State Sports Council may, with the previous approval of the Government appoint on deputation an employee of the State Government or Central Government as an employee of the State Sports Council or the District Sports Council on such terms and conditions as it thinks fit. (3) Except as provided in this section, the appointment and conditions of service of the officers and employees of the State Sports Council and the District Sports Council shall be such as may be prescribed." 15. Section 45 is the rule making power of the Government. Section 45(1) and 45(2)(f) reads as under: "45. Power to make rules.- (1) The Government may, make rules either prospectively or retrospectively, to carry out the purpose of this Act. W.P.C.No.13462/12 22 45(2)(f) conditions of service of the Officers and staff of the State Sports Council and the District Sports Council" 16. The Kerala Sports Rules, 2008 is framed with reference to the appointment and conditions of service of officers and staff. Rule 22 reads as under: "22. Appointment and conditions of service of officers and staff of the Sports Councils.- (1) In all cases of direct recruitment, the Rules and Regulations adopted by the Standing Committee from time to time shall be followed subject to approval of the said Rules and Regulations by Government. (2) In all appointments by direct recruitment, 50 percentage of posts shall be reserved for sports persons who have made remarkable achievements at International, National or State level. (3) Selection of candidates for appointment to selection categories or grades in the service shall be made by Departmental Promotion W.P.C.No.13462/12 23 Committee constituted by the State Sports Council. (4) All the service conditions of the officers and staff of the Kerala State Sports Council and the District Sports Councils, including the age of appointment, probation, pay and allowances, benefits and entitlements, disciplinary actions and age of retirement shall be governed by the Service Rules applicable to the State Government Employees." 17. In State of Assam v. Kanak Chandra Dutta, (1967) 1 SCR679 the Constitution Bench of the Supreme Court held as under: "10. In the context of Articles 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds "office" during the pleasure of the Governor of the State, except as expressly provided by the Constitution. See Article 310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the W.P.C.No.13462/12 24 holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post.
18. In S.L. Agarwal (Dr) v. GM, Hindustan Steel Ltd., (1970) 1 SCC177 the Constitution Bench of the Supreme Court held as under: "We must, therefore, hold that the corporation which is Hindustan Steel Limited in this case is not a department of the Government nor are the servants of it holding posts under the State. It has its independent existence and by law relating to Corporations it is distinct even from its members. W.P.C.No.13462/12 25 In these circumstances, the appellant, who was an employee of Hindustan Steel Limited, does not answer the description of a holder of "a civil post under the Union" as stated in the Article. The appellant was not entitled to the protection of Article 311." 19. In Gurjeewan Garewal (Dr.) v. Sumitra Dash (Dr.), (2004) 5 SCC263 the Supreme Court held as under: "14. Reverting back to the case in hand, Section 4 of the Post Graduate Institute of Medical Education and Research, Chandigarh Act, 1966 (PGIMER Act) says that PGIMER is a "body corporate which is having a perpetual succession and a common seal with power". This clearly provides that PGIMER is a separate entity in itself. Admittedly, the employees of any authority which is a legal entity separate from the State, cannot claim to be holders of civil posts under the State in order to attract the protection of Article 311. There is also no master and servant relationship between the State and an employee of PGIMER, W.P.C.No.13462/12 26 which is a separate legal entity in itself. It is a settled position that a person cannot be said to have the status of holding a "civil post" under the State merely because his salary is paid from the State fund or that the State exercises a certain amount of control over the post. The PGIMER Act might have provided for some control over the institution but this doesn't mean that the same is a State for the purpose of Article 311. Therefore the employees of PGIMER cannot avail the protection of Article 311 since the same can be claimed only by the members of a civil service of the Union or of all-India service or of a civil service of a State or by persons who hold a civil post under the Union or a State. PGIMER cannot be treated as a "State" for the purpose of Article 311 and the employees therein are not holding any "civil post". In result, the 1st respondent is not holding a "civil post" and she cannot claim the guard of Article 311." 20. In Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC764 the Supreme Court held as under: W.P.C.No.13462/12 27 "12. As far as the status of the appellant is concerned, it must be stated that Mr Rao, Senior Advocate fairly conceded at the hearing of the appeal and the writ petition that the appellant is not governed by Article 311 of the Constitution since he cannot be said to be "civil servant". In this connection, it will be profitable to refer to a decision of the Constitution Bench of this Court in S.L. Agarwal (Dr.) v. G.M., Hindustan Steel Ltd. (Hindustan Steel Ltd. I). In that case, A was appointed as Assistant Surgeon by the Board of Directors of the Corporation for one year. After completion of the probation period, he was employed on contract basis and his services were terminated in accordance with the terms of the contract. He filed a writ petition in the High Court contending that his services were wrongly terminated which was violative of Article 311 of the Constitution. The Corporation contended that Article 311 was not applicable to him as he was employed by the Corporation and he neither belonged to civil service of the Union nor held a civil post under the Union.
13. Upholding the objection and considering the W.P.C.No.13462/12 28 ambit and scope of Article 311, this Court held that an employee of a Corporation cannot be said to have held a "civil post" and, therefore, not entitled to protection of Article 311. According to the Court, the Corporation could not be said to be a "department of the Government" and employees of such Corporation were not employees under the Union. The Corporation has an independent existence and the appellant was not entitled to invoke Article 311." 21. Having regard to the aforesaid statutory provisions in the Act and the Rules and the law laid down by the Supreme Court as stated above, I am of the view that in so far as the employees of Sports Council are appointed by the Standing Committee and that disciplinary proceedings are taken by the Standing Committee itself, there is no master and servant relationship between the petitioner and the State. Hence I am of the view that the petitioner is not holding a "civil post" in the State. However in ECIL's case the Supreme Court held that providing a copy of the enquiry W.P.C.No.13462/12 29 report is an integral part of the opportunity of defence against the charges and to deny that right would be a breach of principles of natural justice and hence it is only appropriate that the law laid down in Union of India v. Mohammed Ramzan Khan [(1991) 1 SCC588 should apply to employees in all establishments whether Government or non-Government, public or private. But in ECIL's case the Constitution Bench further held as under: "31. Hence, in all cases where the enquiry 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 W.P.C.No.13462/12 30 punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment."xxxxx Having regard to the aforesaid finding, the question to be looked into is whether the petitioner has been prejudiced in any manner as admittedly the enquiry report had been furnished to him as per the Rules. The petitioner was unable to point out any specific instance in order to indicate that W.P.C.No.13462/12 31 prejudice had been caused to him by not supplying with a copy of the enquiry report before the report was accepted by the Sports Council. As held by the Supreme Court, even in a case where the enquiry report is not furnished, it is open for the Court to direct a copy to be furnished to the aggrieved employee and to state his case as to what prejudice had been caused to him for non-supply of the report prior to acceptance of the report by the employer.
22. It is evident from Ext.P7 that a copy of the enquiry report had been forwarded to the petitioner and he had submitted his objection also. The same was considered by the Standing Committee and the order of dismissal was passed. In that view of the matter, I do not think that there is any illegality in the impugned orders at Exts.P9 and P10.
23. The next contention is with reference to the finding of fact by the Enquiry Officer. The learned counsel for the 2nd respondent relied upon the judgment of the Supreme Court in Apparal Export Promotion Council v. A.K.Chopra [AIR W.P.C.No.13462/12 32 1999 SC625 with reference to the scope of judicial review. It is held at paragraph 17 as under: "17. Judicial Review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court while exercising the power of Judicial Review must remain conscious of the fact that if the decision has been arrived at by the Administrative Authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the Administrative Authority on a matter which fell squarely within the sphere of jurisdiction of that authority." 24. Having regard to the aforesaid limited scope of interference, on a perusal of the enquiry report at Ext.P6, I am of the view that the petitioner had been granted sufficient opportunity to contest the matter and there is no violation of principles of natural justice. The petitioner is not in a position to point out any specific reason to indicate that W.P.C.No.13462/12 33 there is any perversity in the enquiry report. The allegation against the petitioner was that he misbehaved with a female player during a competition at Amaravati, that he sexually assaulted a Plus Two student while she was undergoing practice in the Sports Council Hostel at Kollam and that he has failed to comply with the general condition that when he is taking the team of women players to far off places for competition, the team should be accompanied by one lady. These are very serious allegations and when the Enquiry Officer on evidence have come to a finding that the charges are proved, I do not think that it would be proper for this Court to exercise the power of judicial review to set aside the findings of the Enquiry Officer and the consequent disciplinary action taken against the petitioner. Apparal's case (supra) was also a case of sexual harassment and the Supreme Court found that cases of sexual abuse are also involving violation of human rights and the Courts must ever remain alive with the international instruments and W.P.C.No.13462/12 34 conventions and apply the same to the given case. It is also held that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, requests for sexual favours and other verbal or physical conduct of sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment for the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her. The above observation of the Supreme Court squarely applies to the facts on hand. Having regard to the aforesaid findings, I am of the view that the petitioner is not entitled for any relief in the writ petition. Accordingly, this writ petition is dismissed. (sd/-) (A.M.SHAFFIQUE, JUDGE) jsr W.P.C.No.13462/12 35