Kerala High Court
P.D.Manoj vs State Of Kerala on 20 September, 2016
Author: Anil K. Narendran
Bench: C.T.Ravikumar, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 28TH DAY OF MARCH 2017/7TH CHAITHRA, 1939
OP(KAT).No. 77 of 2017 (Z)
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AGAINST THE ORDER IN OA 2351/2012 of KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM DATED 20-09-2016
PETITIONER/APPLICANT:
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P.D.MANOJ,
LIBRARIAN GRADE-IV, GOVERNMENT ENGINEERING COLLEGE,
PAINAVU, IDUKKI DISTRICT
BY ADVS.DR.K.P.SATHEESAN (SR.)
SRI.P.MOHANDAS (ERNAKULAM)
SRI.S.VIBHEESHANAN
SRI.K.SUDHINKUMAR
SRI.ADHITHYAN S.K.
RESPONDENTS/RESPONDENTS:
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1. STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001
2. THE SECRETARY,
KERALA PUBLIC SERVICE COMMISSION, P.S.C.OFFICE,
PATTAOM,
THIRUVANANTHAPURAM-695004
3. THE PRINCIPAL,
GOVERNMENT ENGINEERING COLLEGE, PAINAVU,
IDUKKI-685603
R1 & R3 BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM
VAKKANAL
R2 BY SRI.P.C.SASIDHARAN, SC, KPSC
THIS O.P. KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 28-03-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT).No. 77 of 2017 (Z)
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APPENDIX
PETITIONER'S EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY
OFFICER DATED 22.3.2011
EXHIBIT P2: TRUE COPY OF THE ORDER G.O.(RT)NO.545/2011/H.EDN. DATED
31.3.2011
EXHIBIT P3: TRUE COPY OF THE O.A.NO.2351/2012
EXHIBIT P4: TRUE COPY OF THE REPLY STATEMENT FILED BY THE FIRST
RESPONDENT IN O.A.NO.2351/2012
EXHIBIT P5: TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT IN
O.A.NO.2351/2012
EXHIBIT P6: TRUE COPY OF THE ORDER DATED 20.9.2016 IN O.A.NO.2351/2012.
RESPONDENTS' EXHIBITS: NIL
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// TRUE COPY //
TKS
P.S. TO JUDGE
C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.
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O.P.(KAT)No.77 of 2017
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Dated this the 28th day of March, 2017
JUDGMENT
Anil K. Narendran, J.
This original petition arises out of Ext.P6 order of the Kerala Administrative Tribunal, Thiruvananthapuram Bench dated 20.09.2016 in O.A.No.2351 of 2012. The petitioner, who is working as Librarian Grade IV in the Government Engineering College, Painavu in Idukki District has filed the said O.A. seeking an order to set aside Annexure A8 order dated 06.08.2012 of the first respondent and to direct respondents 1 to 3 to disburse his salary with eligible increments.
2. The reliefs sought for in the O.A. were opposed by the respondents by filing Ext.P4 reply statement. The petitioner has also filed Ext.P5 rejoinder.
3. After considering the rival contentions, the Tribunal by Ext.P6 order dated 20.09.2016 dismissed the O.A. holding that, the punishment that is imposed on the petitioner/applicant, though a major punishment, is only withholding of two annual increments with cumulative effect, which was proportionate to the gravity of the offence that was proved against him. Accordingly, the challenge made against Annexure A8 order was repelled. Feeling aggrieved by Ext.P6 order O.P(KAT)No.77/2017 2 passed by the Tribunal, the petitioner/applicant is before this Court in this original petition.
4. We heard arguments of learned Senior Counsel for the petitioner/applicant and also learned Government Pleader for the respondents.
5. The pleadings and materials on record would show that, while working as Librarian Grade IV at the District Institute of Education and Training (for brevity, 'DIET'), Kottarakkara the applicant was transferred to Government Engineering College, Painavu by Annexure A1 transfer order dated 12.07.2010, in public interest, which was an offshoot of a complaint made by Dr.V.G.Maniyamma who was the Principal of DIET, Kottarakkara alleging misconduct on the part of the applicant. Annexure A1 transfer order was followed by Annexure A2 charge memo and statement of allegations dated 26.07.2010.
6. The charges levelled against the applicant were that, on 31.03.2010, he disrupted the farewell meeting of the Principal; he used abusive language on account of delayed payment of his salary for the month of March; he abused his colleagues and attempted to manhandle them when they tried to dissuade him; he travelled without permission, in the exposure trip meant for DIET Faculty members, and created annoyance during their journey and also at the place of stay; he travelled outside the State without the permission of the higher O.P(KAT)No.77/2017 3 authorities; he often kept the library building locked up and permitted outsiders to enter the library when it was kept open; he used to misbehave with the TTC girl students, who used the library; and he used to behave rudely towards the formal Principals and also the teachers.
7. On receipt of Annexure A2 charge memo, the applicant submitted Annexure A3 written statement dated 07.08.2010. Stating that the explanation offered by the applicant in Annexure A3 written statement was not satisfactory, the Government decided to continue with the disciplinary proceedings under Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (for brevity, 'the CCA Rules') and accordingly, by Annexure A4 order dated 04.11.2010, an Enquiry Officer was appointed. The applicant was afforded with an opportunity to peruse the documents and thereafter the enquiry was held.
8. On completion of the enquiry, Ext.P1 enquiry report dated 22.03.2011 was forwarded to the applicant along with Annexure A6 show cause notice dated 04.06.2011, proposing a punishment of barring of two annual increments with cumulative effect. The applicant submitted Annexure A7 explanation dated 01.07.2011 to Annexure A6 show cause notice. After considering the said explanation, the Government issued Annexure A8 order dated 06.08.2012 imposing the O.P(KAT)No.77/2017 4 punishment of barring of two annual increments with cumulative effect, under Rule 15 of the CCA Rules, after consulting the Kerala Public Service Commission and obtaining necessary advice. Annexure A8 order states that, the transfer effected vide Annexure A1 order has not been interfered with. Feeling aggrieved by Annexure A8 order, the applicant approached the Tribunal in O.A.No.2351 of 2012.
9. The first respondent filed Ext.P4 reply statement justifying the punishment imposed on the applicant vide Annexure A8 order. According to the first respondent, a complaint was received from Dr.V.G.Maniyamma, who was the Principal of DIET, Kottarakkara with regard to the conduct of the applicant at the farewell meeting held on 31.03.2010 and that he has been behaving defiantly with the superior officers. The Principal-in-charge submitted a report, based on which the applicant was transferred to Government Engineering College, Painavu in public interest, by Annexure A1 order. Against the order of transfer, the applicant filed W.P.(C)No.22907 of 2010 and pursuant to the direction contained in the judgment of this Court in that Writ Petition, the Government conducted a personal hearing with reference to the complaint made by Dr.V.G.Maniamma dated 31.03.2010. Thereafter, by Government Order dated 01.10.2010, it was decided to sustain Annexure A1 transfer order made in public interest.
10. The applicant was issued with Annexure A2 memo of O.P(KAT)No.77/2017 5 charges and after considering Annexure A3 written statement, the Government appointed an Enquiry Officer, vide Annexure A4 order, and the Enquiry Officer after conducting an enquiry, submitted Ext.P1 enquiry report. In the said enquiry, the main three charges levelled against the applicant were found proved. Considering the nature of misconduct proved, Annexure A6 show cause notice was issued proposing a punishment of barring of two annual increments with cumulative effect and it was also decided not to interfere with Annexure A1 order of transfer. After considering Annexure A7 explanation offered by the applicant, the Government issued Annexure A8 order imposing the punishment proposed in Annexure A6 show cause notice, after due consultation with the Kerala Public Service Commission.
11. In Para.3 of Ext.P4 reply statement filed in O.A.No.2351 of 2012, the first respondent has stated that, the complaint received from Dr.V.G.Maniamma dated 31.03.2010 and the report dated 16.04.2010 of the Principal-in-charge forms part of Government file No.13256/A3/10/H.Edn. and that, the applicant was given an opportunity to peruse those documents. In Para.4 of the said reply statement, it has been stated that the applicant was given an opportunity to peruse the records, however, he did not make use of that opportunity. The first respondent contended further that, the applicant was transferred from DIET, Kottarakkara to Government O.P(KAT)No.77/2017 6 Engineering College, Painavu in public interest, which cannot be considered as a punishment. After complying with the formalities under Rule 15 of the CCA Rules, the applicant was imposed with the punishment, vide Annexure A8 order, which is perfectly legal.
12. The applicant submitted Ext.P5 rejoinder reiterating the contentions in the Original Application.
13. Before the Tribunal, Annexure A8 order was challenged mainly on three grounds, i.e., (i) the complaint preferred by Dr.V.G.Maniamma and the report of the Principal-in-charge were not available in the office files; (ii) the punishment of barring of two annual increments with cumulative effect imposed on the applicant is vitiated by the principles of double jeopardy inasmuch as the applicant has already been imposed with a punitive transfer; and (iii) the punishment imposed is disproportionate to the gravity of the misconduct proved.
14. In Para.6 of Ext.P6 order, the Tribunal observed that, though the applicant has raised several other contentions with regard to the conduct of the enquiry, no relief as such is sought for to set aside either the charge memo, the enquiry proceedings or the enquiry report. The applicant has not even produced a copy of the enquiry report along with the Original Application and the said report is produced for the first time as Ext.P1 along this Original Petition.
15. The Tribunal, after considering the rival contentions with O.P(KAT)No.77/2017 7 reference to the pleadings and materials on record, found that what is alleged by the applicant is that copy of the complaints made by Dr.V.G.Maniamma and the Principal-in-charge are not retained in the official records at DIET, Kottarakkara. The applicant has not disputed the fact that he was permitted to peruse those records by the Government. Such an opportunity given to the applicant is evident from Annexure A4 order Government order dated 04.11.2010 and also from the specific stand taken by the 1st respondent in Ext.P4 reply statement.
16. Since the applicant has not chosen to challenge the enquiry proceedings, the Tribunal held in Ext.P6 order that he cannot be permitted to impugn the final orders on the basis of any alleged shortcomings in the enquiry proceedings. The Tribunal has also found that Annexure A1 transfer order issued in public interest cannot be termed as a punishment inasmuch as transfer is not a penalty contemplated under Rule 11 of the CCA Rules.
17. In State of U.P. v. Madhav Prasad Sharma [(2011) 2 SCC 212] the Apex Court held that, doctrine of double jeopardy enshrined in Article 20(2) of the Constitution of India has no application in the event of there being only one punishment awarded to the employee under the Rules on charges being proved during the course of disciplinary enquiry.
O.P(KAT)No.77/2017 8
18. Since transfer is not a penalty contemplated under Rule 11 of CCA Rules, the punishment of barring of two annual increments with cumulative effect imposed on the applicant vide Annexure A8 order, without interfering with the transfer effected vide Annexure A1 order, would not be vitiated by the doctrine of double jeopardy. In Ext.P6 order, the Tribunal has made it clear that Annexure A1 transfer order issued in public interest could not form part of the punishment and as such the applicant will have to be considered for general transfer if he makes an application for the same.
19. As held by the Apex Court in Mahalingam R. v. Chairman, TNPSC [(2013) 14 SCC 379] the scope of judicial review in matters involving challenge to the disciplinary action taken by the employer is very limited. The Courts are primarily concerned with the question whether the enquiry has been held by the competent authority in accordance with the prescribed procedure and whether the rules of natural justice have been followed. The Court can also consider whether there was some tangible evidence for proving the charge against the delinquent and such evidence reasonably supports the conclusions recorded by the competent authority. If the Court comes to the conclusion that the enquiry was held in consonance with the prescribed procedure and the rules of natural justice and the conclusion recorded by the disciplinary authority is supported by some tangible evidence, O.P(KAT)No.77/2017 9 then there is no scope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment, except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the conscience of the Court.
20. In Union of India v. P.Gunasekaran [(2015) 2 SCC 610] the Apex Court reiterated that, in disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: (i) the enquiry is held by a competent authority; (ii) the enquiry is held according to the procedure prescribed in that behalf; (iii) there is violation of the principles of natural justice in conducting the proceedings; (iv) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(v) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (vi) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (vii) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (viii) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; or (ix) the finding of O.P(KAT)No.77/2017 10 fact is based on no evidence.
21. In the decision in Gunasekaran's case (supra), the Apex Court reiterated the settled law that, under Article 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based; (vi) correct the error of fact however grave it may appear to be; or (vii) go into the proportionality of punishment unless it shocks its conscience.
22. In the instant case, the punishment imposed on the applicant, though a major punishment, is only withholding of two annual increments with cumulative effect. Since the applicant has not chosen to challenge the enquiry proceedings before the Tribunal seeking appropriate reliefs, he cannot be permitted to impugn Annexure A8 order on the ground of any alleged shortcomings in the disciplinary proceedings. Similarly, in this Original Petition filed under Article 227 of the Constitution of India, the applicant cannot challenge for the first time, Ext.P2 Government order dated 31.03.2014 by which the Government decided to modify the recommendation of the Enquiry Officer in Ext.P1 enquiry report, in order to impose a punishment of O.P(KAT)No.77/2017 11 barring of two annual increments with cumulative effect on the applicant. Considering the gravity of the misconduct proved against the applicant, the penalty imposed by Annexure A8 order cannot be said to be wholly disproportionate to the misconduct found proved against him or that it shocks the conscience of this Court. In such circumstances, the Tribunal cannot be found fault with in declining interference on Annexure A8 order.
23. In such circumstances, we find absolutely no valid reason to interfere with Ext.P6 order of the Tribunal in dismissing O.A.No.2351 of 2012.
In the result, this Original Petition fails and the same is accordingly dismissed. No order as to costs.
Sd/-
C.T. RAVIKUMAR Judge Sd/-
ANIL K. NARENDRAN Judge TKS