Kerala High Court
T.A. Abdul Azeez vs Union Of India on 5 October, 2018
Equivalent citations: AIRONLINE 2018 KER 832
Author: P.V.Asha
Bench: P.V.Asha
W.P(c).No.3288/2017 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY ,THE 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940
WP(C).No. 3288 of 2017
PETITIONER/S:
T.A. ABDUL AZEEZ
AGED 48 YEARS
STAFF NO.7676, (REMOVED FROM SERVICE),ASSISTANT
(ELE), ELECTRICAL DIVISION,MECHANICAL ENGINEERING
DEPARTMENT, COCHIN PORT TRUST, RESIDING AT REVATHY
COURT,FLAT NO.C3, KOLLAMPARAMBIL ROAD, NEAR CIRCLE
MANOR, KALOOR - 682017.
BY ADV. SRI.VIJAI MATHEWS
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,MINISTRY
OF SHIPPING, GOVERNMENT OF INDIA,NEW DELHI.
2 DEPUTY CHAIRMAN APPELLATE AUTHORITY
COCHIN PORT TRUST, COCHIN-9.
3 CHIEF MECHANICAL ENGINEERING DISCIPLINARY AUTHORITY
OFFICE OF THE CHIEF MECHANICAL ENGINEER,COCHIN PORT
TRUST, COCHIN-9.
BY ADVS.
SRI.K.ANAND (SR.)
SMT.LATHA ANAND SC COCHIN PORT TRUST
OTHER PRESENT:
FOR R1 - ASGI,SRI.N.NAGARESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.09.2018, THE COURT ON 05.10.2018 DELIVERED THE
FOLLOWING:
W.P(c).No.3288/2017 2
P.V.ASHA, J.
--------------------------
W.P(C) No.3288 of 2017-I
-------------------------------------------
Dated this the 5th day of October, 2018
JUDGMENT
The petitioner, who was working as Assistant (Ele.) in Electrical Division in Mechanical Engineering Department of the Cochin Port Trust is aggrieved by the order removing him from service.
2. The case of the petitioner is that on 5.1.2015 the dock master directed him to meet him in connection with his application for non- refundable advance from his General Provident Fund (GPF) account; accordingly he went there when he was harassed and humiliated by the dock master refusing to forward his application for GPF advance; the dock master asked him to bring his wife in order to sanction the advance, saying that the wives of other staff used to meet him; on account of the harassment and humiliation, he warned the dock master that he would make a complaint against him and thereupon the dock master shouted at him and openly declared that he would teach him a lesson, calling him a drunkard and drug addict. Immediately after the said incident on 05.01.2015, the dock master forwarded Ext.P2 note to the Deputy Conservator, Cochin Port Trust W.P(c).No.3288/2017 3 requesting to initiate disciplinary action against the petitioner stating that the petitioner came to his cabin at about 11 a.m; shouted at him using abusive language for the reason that his application for withdrawal of Provident Fund amount was not accepted by the office; the application did not comply with the required regulations. He requested to initiate disciplinary action against the petitioner pointing out that disciplinary action was taken against him in 2011 under Regulation 3(1A) and (1C) of Cochin Port Employees [CPE] (Conduct) Rules, 1946. Based on that note, the petitioner was placed under suspension as per Ext.P3 order issued on 07.01.2015. The suspension was revoked thereafter as per Ext.P4 order issued on 13.01.2015. As per Ext.P5 order dated 23.01.2015, the petitioner was transferred and posted in the Deputy C.M.E (Ele.) Division. Articles of charges along with statement of imputation was issued thereafter as per Ext.P6 memorandum dated 29.01.2015 along with the list of documents and list of witnesses informing the petitioner the proposal to hold an enquiry against him under Regulation 12 of the CPE (Classification, Control & Appeal) Regulations, 1964. The petitioner was asked to submit his written statement of defence and also to inform whether he desired to be heard in person. The charge alleged against him was that he, while working at Dock Master's Division, Marine Department of the Cochin Port Trust, had shown W.P(c).No.3288/2017 4 serious insubordination to the superior officer Sri P.A.Abdul Azeez while on duty on 05.01.2015 at about 11 a.m by trespassing into dock master's cabin and misbehaved to the Dock Master shouting, using abusive language and openly threatening. It was stated that the dock master had as per note dated 05.01.2015 requested to take necessary disciplinary action against the petitioner. It was further stated that the petitioner had submitted an application for GPF Non Refundable Advance (NRA) of an amount of Rs.9,000/- on 31.12.2014 when the balance at his credit in his account on the date of application was only Rs.12,150/-. It was stated that since the petitioner was one among the employees in the habit of taking GPF NRA without sufficient amount at credit and processing of such applications caused dislocation to the office, he was asked to meet the dock master; when he met the dock master within 2 days, he was informed about the inability to grant his request as it did not comply with the required regulations and he was advised to meet the manager of the section who dealt with the application; however on 5.1.2015 the petitioner without any provocation trespassed into the dock master's cabin and misbehaved to the Dock Master and has shown serious insubordination to the superior officer in a manner unbecoming of an employee of the Board and caused dislocation of work in the dock master's office. It was alleged that the W.P(c).No.3288/2017 5 petitioner has thus contravened sub regulations 1(A)(ii) and (iii) and (IC) (d) of Regulation 3 of Cochin Port Employees (Classification, Control & Appeal) Regulations, 1964.
3. The petitioner thereupon as per his letter dated 04.02.2015 requested the Chief Mechanical Engineer (CME) to furnish the Malayalam version of the memo of charges along with all the documents as he is not well versed in English language. As the Malayalam version was not furnished, he submitted Ext.P8 reply on 13.02.2015, stating that since the Malayalam translation was not provided to him he was compelled to submit the reply, based on the understanding he was given to, about the memo of charges. He stated that the copies of the documents were not made available to him for inspection on 11.2.2014 despite his request for the copies of the said documents. Denying the allegations against him, he stated that it was the dock master who insulted and shouted at him; he asked him to submit application when the amount in his GPF comes to Rs.5 lakhs; he was humiliated saying that he was withdrawing amounts from GPF very often; the petitioner stated that he had submitted the application in connection with the marriage of his sister's daughter and when he explained the same the dock master asked him to bring his wife and thereafter he will pass the application; the dock master openly declared that the petitioner would be W.P(c).No.3288/2017 6 taught a lesson and that disciplinary action was initiated against him in that background. The petitioner again requested for the Malayalam translation of the memo of charges. As per Ext.P9 letter dated 22.2.2015 the C.M.E rejected his request for Malayalam translation stating that the entire correspondence with the petitioner and the respondents was in English ever since his entry in service; his application dated 06.05.1998 requesting to include the names of his wife and son in the service documents, his undertaking dated 17.04.2014 with respect to the promotional avenues, his application for GPF advance submitted on 11.12.2014 and all other communications in the service career of the petitioner right from his appointment were done in English. Ext.P9 contains the application of the petitioner for a sum of Rs.9,000/- as advance from P.F account.
4. Pointing out that the petitioner was drawing pay at the rate of Rs.24,590/- per month and that the balance in his credit in the PF Account was Rs.12,150/-, the petitioner submits that he was eligible for the withdrawal as requested for. The petitioner stated that he did not have any source of income other than the salary.
5. In Ext.P9 application, the purpose of withdrawal was shown as self treatment; the petitioner's date of entry was shown as 18.9.1990 and date of retirement was shown as 31.5.2028.
W.P(c).No.3288/2017 7
6. The CME further issued Ext.P10 letter dated 8.4.2015 to the petitioner, calling for the written statement. Thereupon the petitioner submitted Ext.P11 series of representations before the Secretary of the Port Trust, its Welfare Officer and even the Chairman, explaining the circumstances which arose subsequent to the submission of his application for advance from GPF and about the denial of Malayalam translation of the charges. It was also pointed out that the direction of the CME to submit further explanation, that too, without furnishing the Malayalam translation, makes it clear that CME was predetermined to take action against him; he requested to intervene in the matter apprehending that a proper enquiry would not be conducted. Thereafter, as per Ext.P12 order dated 24.04.2015 the CME appointed one Sri V.A.Sajeev, Executive Engineer (M), CME's office as inquiry officer and one Rajesh Pillai, Asst.Engineer(M) as presenting officer. However, immediately thereafter another enquiry officer- Sri K.G.George, Executive Engineer- was appointed and he conducted the enquiry.
7. The enquiry began with the examination of the petitioner on 30.06.2016, by the Presenting Officer. Sri Rajesh Velayudhan, Chief Engineer was examined as prosecution witness. As per Ext.P18 letter dt.27.7.16 enquiry officer forwarded a copy of the argument note submitted W.P(c).No.3288/2017 8 by the presenting officer and requested the petitioner to submit his reply on it . The enquiry officer submitted his report dated 03.09.2016 and a copy of the same was forwarded to the petitioner as per Ext.P19 letter dated 21.09.2016 directing him to submit representation if any against the findings therein.
8. The petitioner thereupon submitted Ext.P20 representation stating that the presenting officer had produced only one witness and according to his version the dock master was standing outside the cabin and one person was shouting and pointing his forefinger to the Dock Master and threatening using derogatory words; but he did not remember the words used. He pointed out that the finding of the enquiry officer was contrary to the evidence on record. The petitioner further pointed out that the finding of the enquiry officer referring to Ext.R3(c) letter of the petitioner that the petitioner tendered unconditional apology and that he confessed about the incident is totally incorrect and that the said letter addressed to the CME was obtained by him under threat saying that unless he signed such a statement, it would affect his career and since the petitioner was placed under suspension and the only source of livelihood for the entire family was his salary, he signed such a letter under coercion. He requested to exonerate him from the charges. However Ext.P21 order was issued on 12.12.2016 W.P(c).No.3288/2017 9 rejecting the contentions of the petitioner and accepting the findings in the enquiry report. A penalty of removal from service was imposed with immediate effect, which shall not be a disqualification for future employment.
9. Aggrieved by Ext.P21 order, the petitioner submitted Ext.P22 appeal before the Dy.Chairman, pointing out the discrepancies in the findings of the enquiry officer, absence of evidence as well as denial of Malayalam translation of the charges and documents. He pointed out that he was residing with his family in a rented house and he does not have any other source of income and requested to set aside the punishment. He pointed out that there was no evidence on record which attracted a major penalty of his removal from service and also pointed out that there was procedural violation in examining the witnesses in the entire enquiry. It was also stated that the finding based on the letter submitted by him on the ground that he admitted the charges was totally incorrect. However, the appellate authority rejected the appeal stating that the petitioner's representation dt.8.1.2015-Ext.R3(c)-requesting for his reinstatement contained admission of his remorse on the act meted out to dock master and found that the enquiry was conducted in accordance with the provisions in Regulation 12 . The petitioner challenges the orders Exts.P21 and 23. W.P(c).No.3288/2017 10
10. On the other hand, the respondents filed counter affidavit refuting the contentions and stating that the enquiry was conducted in accordance with the procedure prescribed. It is stated that there was no question of harassment or humiliation and that sanctioning of GPF is not the discretion of the dock master but it is in accordance with the specific rules. It is also stated that the petitioner has not made any complaint against the Dock Master in the event of any harassment meted out to him. On the other hand, the behaviour of the petitioner caused dislocation of work in the Dock Master's office. Producing Ext.R3(b) depositions including that of Sri Anil Kumar, Signaller cum VHF Operator, it is stated that the prosecution witnesses cited in the charge sheet were examined though the name of one witness was wrongly shown as Sunil Kumar in the place of Anil kumar. The respondents stated that the normal practice in the organisation is to issue charge sheet in English only as employees are appointed from different parts of the country and there is no practice of giving in Malayalam. The respondents stated that the petitioner has submitted his reply after understanding the contents of the memorandum. According to the respondents, the deposition of the 2 witnesses was sufficient to prove the guilt of the petitioner. The enquiry officer had granted sufficient opportunity to the petitioner and even on receipt of the argument note of the W.P(c).No.3288/2017 11 presenting officer, the petitioner was requested to give his reply on it. According to the respondents, the petitioner had submitted Ext.R2(c) letter dated 08.01.2015 and the same was put to him in the enquiry held on 30.06.2015. Pointing out the correspondences made during his service career, it is stated that the petitioner is well versed in English. It is also stated that no prejudice is caused to the petitioner because of the medium of language pointing out that the enquiry was conducted in Malayalam. It is stated that the principles of natural justice were observed while conducting the enquiry. According to the respondents, the petitioner tendered unconditional apology and confession was made out of his own free will. According to the respondents abusing, physically assaulting or intimidating a superior officer in a work place are grave misconducts which warrant highest level of punishment.
11. The learned counsel for the petitioner argued that the entire proceedings in the enquiry are vitiated for non-compliance of the principles of natural justice and procedural irregularities in conducting the enquiry. He relied on the judgments in State of U.P v. C.S.Sharma: AIR 1968 SC 158, State of Punjab v. Dewan Chuni Lal: (1970) 1 SCC 479 , judgment of the Apex Court in Roop Singh Negi v. Punjab National Bank & Ors: (2009) 2 SCC 570 : 2009 KHC 4143, Subramania Pillai K. v. Senior Divisional W.P(c).No.3288/2017 12 Manager, LIC & Ors.:2009 (3) KHC 787, Selvaraj P. v. M.D., Kattabomman Transport Corp. & Ors: 1999( 1 )LLJ 1186 of the Madras High Court, judgment of the Andhra Pradesh High Court in Thotapalli Radhakrishna Murthy v. The Divisional Manager, United India Insurance Co. [1982 LAB. I.C. 1745], Division Bench judgment of the Delhi High Court in S.K.Jasra v. Union of India: 2015 Lab. I.C.2897, State of U.P & Ors. v. Saroj Kumar Sinha [2010 (2) SCC 772, A.L.Kalra v. Project and Equipment Corporation of India Ltd. [(1984) 3 SCC 316], Anant R.Kulkarni v. Y.P.Education Society [(2013) 6 SCC 515, Bodu Tarmamad v. Dt.Supdt. Of Police, Jamnagar & anr: 1988 (II) LLJ 171, an unreported judgment of the Apex Court dt.1.5.2013 in Civil Appeal No.4472/13, etc. in support of the contention that the enquiry was conducted in violation of the procedure prescribed in the regulations and in violation of the principles of natural justice, charges were vague and without any clear allegation which constituted a misconduct; it is also argued that the punishment awarded to him is shockingly disproportionate; without specifying the actual words used in the memo of charge or even in the evidence, without examining the complainant at whose instance the proceedings were initiated/before whom the alleged incident occurred.
12. On the other hand, the learned Standing Counsel relied on the W.P(c).No.3288/2017 13 judgments in Union of India v. P.Gunasekaran [(2015) 2 SCC 610] wherein the Apex Court has laid down the circumstances under which Article 226 can and cannot be invoked in disciplinary matters. Relying on the judgment in Vice-Chairman, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav [(2004) 6 SCC 325], it was argued that admitted facts need not be proved. Relying on the judgment in Mahindra and Mahindra Ltd. v. N.B.Narawade [(2005) 3 SCC 134] it was argued that the punishment of dismissal awarded for using abusive language cannot be held to be disproportionate. The judgment in New Shorrock Mills v. Maheshbhai T.Rao [(1996) 6 SCC 590] where it was held that threatening the superior officer of murder amounted to a misconduct and punishment of discharge from service was not disproportionate, was also relied on. The judgment in State of Haryana v. Rattan Singh [AIR 1977 SCC 1512] was relied on in respect of sufficiency of evidence in departmental enquiry.
13. Having considered the contentions raised by both sides, it is seen that the enquiry is not conducted in accordance with rules. A perusal of Ext.R3(b) makes it clear that the enquiry started with the examination of the delinquent by the presenting officer. His examination by the Defence Assistant is shown as cross examination. However, the petitioner has stated that Ext.R3(c) letter was given requesting to revoke the suspension, though W.P(c).No.3288/2017 14 the suspension was ordered not on account of any fault committed by him. He stated that he was staying in a rented house; in order to see that his family is not deprived of the livelihood. He requested to condone the lapses if any occurred from his part, despite the fact that he had not committed any wrongful act. The respondents have awarded punishment of removal, relying on Ext.R3(c) letter of the petitioner. Ext.R3(c) only says that he regrets over the talk with the Dock master and requests to condone the lapse on his part and to re-instate him saying that it occurred due to his desperate mental condition. By that letter there is no admission that he used abusive words, apart from the fact that there was no exchange of words. He explained that out of his extreme necessity and poverty he wanted to get re- instated and therefore he tendered his apology. Based on Ext.R3(C) letter it cannot be said that the charge is proved.
14. It is seen from Ext.R3(b) that the examination of prosecution witness by the prosecution is not conducted in the presence of the delinquent or his defence assistant. It is seen that Sri.Rajesh Velayudhan was examined by the presenting officer, by putting every answer to his mouth, which is not expected in departmental enquiries also. It has to commence with the examination of prosecution witnesses. The enquiry officer has come to the finding that the petitioner is guilty of the charges mainly on the basis of W.P(c).No.3288/2017 15 Ext.R3(c) letter in which the petitioner only submits that he regrets about the incident occurred with Dock Master. This letter was on 12.1.2015, well before the memorandum was issued to the petitioner on 22.2.2015. That cannot be taken as an admission that the petitioner used either abusive words or that he shouted. It is also seen that only one witness was examined in the presence of the petitioner. The other witness is not seen examined in his presence or in presence of his defence assistant. Nothing is stated regarding the absence of the petitioner or information if any furnished to the petitioner or his defence assistant regarding the examination. It is seen that the entire proceedings started on the basis of Ext.P2 note submitted by the Dock Master on 5.1.2015 in which he requested to initiate disciplinary proceedings stating that the petitioner shouted using abusive language and threatened him. In the memo of charge it is also stated that dislocation was caused to Dock master by the conduct of the petitioner shouting and abusing the Dock master and his office on account of recurrent applications of the petitioner in the absence of sufficient funds in his account. The author of the note was not examined and none of the witnesses have deposed as to what was stated by the petitioner. The non-examination of the dock master has seriously and prejudicially affected the petitioner. At any rate, it is seen that the version of the petitioner is that he was directed to meet the dock master W.P(c).No.3288/2017 16 in connection with his application for non refundable advance. It is also his version that the dock master wanted him to bring his wife. At any rate, there is no eye witness to the alleged shouting and use of abusive words against the Dock Master. As pointed out by the learned Counsel for the petitioner, the examination of the prosecution witness was in such a manner that the alleged incident in the statement of allegation itself was put to the mouth of the witnesses so that witness need say only yes or no. Though Sri. Rajesh Velayudhan, one of the witnesses deposed that he saw someone going down the staircase shouting while the Dock master was standing outside his cabin, he did not say that it was the petitioner who was shouting. He did not also say the abusive words. At any rate, the punishment of removal from service awarded to the petitioner from 12.12.2016 onwards is, in such circumstances, shockingly disproportionate. Going by the regulation relating to provident fund also it cannot be said that submission of an application for advance from provident fund can be said to be a misconduct. When the petitioner out of his poverty submitted an application, the respondents cannot deny even his livelihood by initiating such proceedings and conducting the proceedings in violation of the principles of natural justice.
15. Now I will examine the judgments relied on by both sides. As W.P(c).No.3288/2017 17 pointed out by the learned Counsel for the respondents, the area of interference in matters relating to disciplinary action, by this Court under Article 226 of the Constitution of India is very limited. Except where there is procedural violation in conducting the enquiry, absence of legal evidence on record, incompetency in imposing penalty or in a case where the punishment awarded is grossly disproportionate shocking the conscience of the courts, there is no scope for a judicial review.
16. In the judgment Selvaraj P. v. M.D., Kattabomman Transport Corp. & Ors.: 1999( 1 )LLJ 1186 of the Madras High Court, relied on by the Counsel for the petitioner, the enquiry officer started the inquiry with cross examination of the delinquent employee in the beginning. No witness was examined in chief in presence of the delinquent, in order to establish the charges. The delinquent employee was asked to cross examine them, even in the absence of any statement by them in any preliminary inquiry. The management as well as the enquiry officer took the stand that the delinquent employee had admitted the guilt. It was held that the stand adopted by the enquiry officer and others, picking up one sentence, without considering the statement as a whole was improper and the finding that the delinquent was guilty based on such examination in violation of the procedure and the manner in which the examination was conducted in violation of established W.P(c).No.3288/2017 18 norms are erroneous and contrary to the principles of natural justice. In the present case reliance was placed on Ext.R3(c) letter treating as admission of guilt, without looking into the actual statement made by the petitioner. At any rate, it does not indicate whether there was any use of abusive words. It does not also lead to the conclusion that the petitioner committed any of the misconducts alleged against him.
17. In Subramania Pillai 's case (supra), [2009 (3) KHC 787], the authors of the complaint/report based on which a Development Officer of LIC was found guilty of the charges on the basis of a report without examining the author of the report-the Marketing Manager of LIC, who furnished a report regarding the financial position of the deceased policy holder. It was held that the non-examination has caused serious prejudice to the delinquent and therefore the enquiry was held in violation of the principles of natural justice. In the present case the Dock master, who forwarded Ext.P2 note based on which the petitioner was placed under suspension and disciplinary proceedings were initiated, is not examined, which has definitely caused prejudice to the petitioner. The charge is of insubordination by shouting and abusing the Dock master and causing dislocation to his office. The best witness who was to be examined was the dock master himself, especially in view of the explanations submitted by the W.P(c).No.3288/2017 19 petitioner. In the judgment in Dewan Chuni Lal 's case (supra) also, the Apex Court held that the non-examination of the officers who made adverse remarks in the confidential reports has put the delinquent officer to serious prejudice and hence the enquiry was not conducted after giving reasonable opportunity to the delinquent to defend.
18. The enquiry officer as well as the disciplinary and appellate authorities relied on Ext.R3(c) letter of the petitioner, even when there is nothing to indicate how he shouted or abused the Dock master. The respondents including the enquiry officer misinterpreted the letter and awarded the punishment of removal to the petitioner without having any regard to the fact that the petitioner had rendered 24 years of service by that time. He has been stating all along that the application for NRA from PF was submitted out of his necessity when he does not have any other source of income and is staying in a rented house.
19. The manner in which the entire inquiry is conducted starting with the examination of the delinquent, the examination of witnesses by the presenting officer in the absence of the delinquent employee or the defence assistant, conducting cross examination before chief examination, etc. would reveal that the entire proceedings leading to the inquiry report were conducted in violation of the principles of natural justice. W.P(c).No.3288/2017 20
20. The disciplinary authority as well as appellate authority accepted the finding that the petitioner had shouted at the Dock Master using abusive words etc., which was arrived at mainly on the basis of Ext.R3(c) letter; whereas the petitioner had never made any confession or admission of charges before anybody. Therefore, the contention advanced on behalf of the petitioner that the appreciation of evidence by the enquiry officer was faulty, is to be accepted.
21. In the absence of an enquiry conducted as held in the judgment in C.S.Sharma's case (supra), relied on by the learned Counsel for the petitioner, the findings arrived at in such an enquiry and punishment awarded based on that are all vitiated by irregularities. In that case the Apex Court, was considering the contentions with respect to the compliance of the provisions contained in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, held that what is contemplated under the rules is a full-fledged enquiry which is the counter part of a regular trial in which the witnesses have to be examined in support of the allegations, opportunity has to be given to the delinquent officer to cross examine them and to lead evidence in his defence.
22. In this enquiry it is seen that the enquiry started with the examination of the petitioner which is contrary to the procedure W.P(c).No.3288/2017 21 contemplated. It is for the prosecution to establish the charges alleged against the employee, for which they have to examine their witnesses and thereafter afford opportunity to the delinquent to cross examine. It is only after the examination of prosecution witnesses that the witnesses of delinquent to be examined- in chief by delinquent or his defence assistant and thereafter allow the prosecution witness side to cross examine them.
23. It is the duty of the prosecution to start with examination of their witnesses in order to substantiate the charges alleged against the delinquent. It is only thereafter, that too, if the delinquent wants himself to be examined, that he need be examined by the defence side and the prosecution is supposed to cross examine him.
24. The learned counsel for the petitioner relied on an unreported judgment of the Apex Court dt.1.5.2013 in Civil Appeal No.4472/13 in support of his contention that the memo of charges and the correspondences should be in the language in which the delinquent is conversant and that non conduct of the enquiry proceedings in the language desired by the delinquent to facilitate his effective participation in the proceedings amounted to gross violation of the principles of natural justice. However in this case the enquiry was held in Malayalam and the petitioner had submitted his explanation to the memo of charges from which it is clear that he had W.P(c).No.3288/2017 22 understood the charges levelled against him, though it was not correct on the part of the respondents to arrive at the conclusion that the petitioner is well versed in English on account of the application or the undertakings furnished by him during the course of service career. It is quite possible that employees give such undertakings with the help of others; that does not mean that an employee for whom pass in SSLC or below, which is the requisite qualification for the post he is holding, or an employee holding the post of Assistant (Ele.) is well versed in English. At any rate, as the enquiry was held in Malayalam and the petitioner has furnished his explanations cannot be said that he was put to any prejudice for non-supply of Malayalam version of memo of charge. Therefore that contention of the petitioner is unsustainable.
25. In the judgment of the Andhra Pradesh High Court in Thotapalli Radhakrishna Murthy's case (supra) it was held that non production of material witness amounts to denial of effective opportunity to the delinquent and amounts to violation of principles of natural justice. In that case when the charge against the delinquent was based on medical certificate in support of the expenses incurred for medical treatment and it was based on an endorsement of the doctor on the medical bill, it was found that the only proper and appropriate person to speak on the circumstances W.P(c).No.3288/2017 23 would be the doctor and in case the doctor was examined as a witness the delinquent would have got an opportunity to cross examine and to elicit the facts and circumstances to belie the version of the Doctor. In the very same judgment it was also observed that though one's own admission is the better evidence, it cannot be acted upon when it is alleged to have been extracted by coercion.
26. In the judgment in State of Punjab v. Dewan Chuni Lal [1970 (1) SCC 479 : 1970 KHC 412] the Apex Court held that the dismissal of a Police Sub Inspector on charges of inefficiency reported in his confidential report was illegal, as the officers who made the remarks were not examined. It was found that the enquiry officer had not summoned even the witnesses who were available and who could have thrown some light on the adverse remarks made by them and therefore merely because witnesses were examined or procedure was followed would not serve the purpose and therefore the enquiry amounted to denial of reasonable opportunity of showing cause against the action.
27. In the judgment in Subramania Pillai K. v. Senior Divisional Manager, LIC & Ors. [2009 (3) KHC 787], the Division Bench, while dealing with the punishment awarded to a Development Officer on the W.P(c).No.3288/2017 24 charge that he submitted a confidential report without proper enquiry and thereby committed breach of regulation of LIC of India, found that the only material before the enquiry officer was the result of discrete enquiry and those reports without examining the persons who submitted such reports amounted to violation of principles of natural justice. This Court found that there was no evidence leading to the punishment. The makers of the statements which were relied on in the enquiry report had retracted the reports and therefore those reports could not be relied on. Certain other documents were relied on without making available the authors of those documents for cross examining the delinquent. Following the judgment in Roop Singh Negi v. Punjab National Bank & Ors. [2009 (2) SCC 570 :
2009 KHC 4143], this Court found that the principles of natural justice were violated and therefore, the enquiry officer has not conducted the enquiry in accordance with law.
28. In the judgment in State of U.P & Ors. v. Saroj Kumar Sinha [2010 (2) SCC 772: 2010 KHC 4073 the Apex Court observed that it is the duty of the department to establish the charges producing necessary evidence before the enquiry officer and that of the enquiry officer to examine the evidence presented by the department to see whether any unrebutted evidence is sufficient to hold the charges proved even in the W.P(c).No.3288/2017 25 absence of the delinquent.
29. In Roop Singh Negi v. Punjab National Bank & Ors. [2009 (2) SCC 570 : 2009 KHC 4143], it was held that the contents of the document have to be proved by examining witnesses in the enquiry and a letter which is not admitted during the course of the enquiry cannot be relied upon. It was also held that the enquiry officer has a duty to see that the enquiry is conducted by performing a quasi judicial function analysing the documents and appreciating the evidence, both oral and documentary, in accordance with law. The Apex Court held that even though provisions of the Evidence Act are not applicable to a departmental proceeding, the principles of natural justice should be adhered to. The enquiry officer has to submit the report with the support of evidence and not based on suspicion and suspicion is not a substitute for legal proof. The enquiry officer as well as the disciplinary and appellate authorities relied on Ext.R3(c) statement as an admission of guilt, despite the fact that the petitioner has explained the circumstances behind it in the inquiry. Even if the statement itself is taken as such, irrespective of his explanation before the inquiry officer, that cannot be termed as an admission of the charges alleged. Therefore, the judgment in Girdharilal's case, relied on by the learned Standing counsel in support of his contention that the admission of facts do not require any further proof, W.P(c).No.3288/2017 26 would not apply in this case.
30. Though the learned Counsel for the petitioner relied on the Division Bench judgment of the Delhi High Court in S.K.Jasra's case and the judgment of the Gujarat High Court in Bodu Tarmamad v. Dt.Supdt. Of Police, Jamnagar & anr. [1988 (11) LLJ 171] in support of the contention that the initiation of disciplinary action in respect of an incident which does not have any connection with the duties to be performed by the petitioner is illegal, pointing out that the disciplinary proceedings were initiated in connection with his application for advance from GPF, I am unable to accept the contention. Insubordination, shouting, using abusive words, etc. against superiors officers need not be in connection with incidents relating to performance of their duty itself. However, the burden to prove it, in accordance with law, is on the respondents.
31. As rightly contended by the learned Counsel appearing for the respondents, it is settled law that interference with the departmental proceedings by way of judicial review is very limited. In the judgment in Union of India V P.Gunasekharan: (2015)2 SCC 610, the Apex Court summarised the circumstances where High Court shall and shall not interfere in such matters. Thus as held in para.13 of the judgment, the High Court shall not re-appreciate the evidence; go into the adequacy or reliability W.P(c).No.3288/2017 27 of the evidence; correct the error of fact; interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law and go into the proportionality of punishment unless it shocks its conscience. Therefore, interference is warranted when the enquiry is found to be conducted contrary to the procedure as also when the punishment awarded is shocking to the conscience of the court. In Kendriya Vidyalaya Sangthan v. J. Hussain : (2013) 10 SCC 106, while considering the scope of judicial review over the punishment of dismissal awarded to a non-teaching staff who reported before the Principal in an inebriated condition, the Apex Court held that the court can, in exercise of power of judicial review, interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic and that merely because in the opinion of the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities. In Chandra Kumar Chopra v. Union of India: (2012) 6 SCC 369, it was held that the test to be applied while dealing with the question is whether a reasonable employer would have imposed such punishment in like circumstances and whether the punishment imposed is really arbitrary or an outrageous defiance of logic so as to be called irrational and perverse warranting interference in exercise of the power of judicial review. As held W.P(c).No.3288/2017 28 in Om Kumar v. Union of India: (2001) 2 SCC 386, when an administrative decision relating to punishment in disciplinary cases is questioned as arbitrary under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. Though the learned Standing Counsel relied on the judgments in Narawade's case (supra) and L.K.Verma's case (supra) to support the punishment awarded, in the factual circumstances of this case when I have already found that the enquiry itself is not conducted in accordance with law, those judgments cannot apply.
32. As held in the judgment in Anant R.Kulkarni v. Y.P.Education Society [(2013) 6 SCC 515] an enquiry should be held not only with a view to establish charges but to establish truth of the matter. The manner in which the enquiry was conducted as well as the refusal to examine the complainant -the Dock Master, has caused serious prejudice to the petitioner. The findings of guilt based on such an enquiry and the orders passed based on that are therefore arbitrary and unreasonable. Going by Gunasekharan's W.P(c).No.3288/2017 29 case (supra), in the circumstances of the case, this Court has every authority to interfere with the order of punishment of removal awarded to the petitioner who rendered 24 years of service, that too, based on an application he submitted for withdrawal of Non-refundable advance from his Provident Fund Account, on account of dire necessity, as it is shocking to conscience of this Court.
33. In the above circumstances I set aside the orders Exts.P21 and P23 and direct the respondents to consider the matter afresh and pass fresh orders on the question of punishment, within a period of one month from the date of receipt of a copy of the judgment.
The writ petition is disposed of accordingly.
Sd/-
(P.V.ASHA, JUDGE) rtr/ W.P(c).No.3288/2017 30 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT-P1: TRUE COPY OF THE APPLICATION FOR GPF
ADVANCE SUBMITTED BY THE PETITIONER.
EXHIBIT-P2: TRUE COPY OF THE LETTER DATED 5.1.2015
FORWARDED TO THE DY.CONSERVATOR BY THE
DOCK MASTER REQUESTING DISCIPLINARY
ACTIOIN AGAINST THE PETITIONER.
EXHIBIT-P3: TRUE COPY OF THE ORDER OF SUSPENSION
DATED 07.01.2015.
EXHIBIT-P4: TRUE COPY OF THE ORDER REVOKING
SUSPENSION, DATED 13.01.2015.
EXHIBIT-P5: TRUE COPY OF THE TRANSFER ORDER DATED
23.01.2015.
EXHIBIT-P6: TRUE COPY OF THE MRMORANDUM DATED
29.01.2015 ALONG WITH ANNEXURE-I TO
ANNEXURE-IV.
EXHIBIT-P7: TRUE COPY OF THE REPRESENTATION DATED
04.02.2015.
EXHIBIT-P8: TRUE COPY OF THE REPLY DATED 13.2.2015.
EXHIBIT-P9: TRUE COPY OF THE MEMORANDUM DATED
22.02.2015 ALONG WITH THE DOCUMENTS
ENCLOSED WITH IT.
EXHIBIT-P10: TRUE COPY OF THE SAID MEMORANDUM DATED
08.04.2015.
EXHIBIT-P11: TRUE COPY OF THE WRITTEN STATEMENT
DATED 23.04.2015.
EXHIBIT-P12: TRUE COPY OF THE ORDER APPOINTING
SRI.V.A.SAJEEV AS INQUIRY OFFICER
SRI.RAJESH PILLAI, AS PRESIDING OFFICER
24.04.2015.
EXHIBIT-P13: TRUE COPY OF THE SAID LETTER DATED
29.12.2015 ISSUED BY INQUIRY OFFICER
MR.K.G.GEORGE, STATING THAT HE HAS BEEN
APPOINTED AS INQUIRTY OFFICER.
W.P(c).No.3288/2017 31
EXHIBIT-P14: TRUE COPY OF THE LETTER DATED 19.1.2016 ISSUED BY THE INQUIRY OFFICER SRI.K.G.GEORGE.
EXHIBIT-P15: TRUE COPY OF THE LETTER DATED 23.6.2016 ISSUED BY THE INQUIRY OFFICER SRI.K.G.GEORGE.
EXHIBIT-P16: TRUE COPY OF DEPOSITION OF THE PETITIONER IN THE INQUIRY PROCEEDINGS, DATED 30.6.2016.
EXHIBIT-P17: TRUE COPY OF THE DEPOSITION OF SRI.RAJESH VELAYUDHAN CHIEF ENGINEER, HARBOUR MASTER'S DIVISION, MARINE DEPARTMENT, COCHIN PORT TRUST, DATED 30.6.2016.
EXHIBIT-P18: TRUE COPY OF THE LETTER DATED 27.07.2016 COMMUNICATED TO THE PETITIONER ENCLOSED WITH FACTS AND FINDINGS FURNISHED BY THE PRESENTING OFFICER DATED 18.7.2016.
EXHIBIT-P19: TRUE COPY OF THE MEMORANDUM DATED 21.9.2016 ALONG WITH INQUIRTY REPORT DATED 3.9.2016.
EXHIBIT-P20: TRUE COPY OF THE REPRESENTATION DATED 4.10.2016.
EXHIBIT-P21: TRUE COPY OF THE ORDER DATED 12.12.2016 PASSED BY THE CHIEF MECHANICAL ENGINEER IMPOSING MAJOR PENALTY OF REMOVAL FROM SERVICE.
EXHIBIT-P22: TRUE COPY OF THE APPEAL DATED 5.1.2017.
EXHIBIT-P23: TRUE COPY OF THE ORDER DATED 16.1.2017 PASSED BY THE APPELLATE AUTHORITY.
W.P(c).No.3288/2017 32RESPONDENTS' EXHIBITS EXT.R3(a) TRUE COPY OF THE ORDER DT.7.1.2011.
EXT.R3(b) TRUE COPY OF THE RELEVANT PAGES OF THE PROCEEDINGS OF THE INQUIRY.
EXT.R3(c) TRUE COPY OF LETTER DT.8.1.2015.
EXT.R3(d) TRUE COPY OF LETTER DT.5.1.2016 SENT BY THE PETITIONER.