Kerala High Court
Unknown vs By Advs.Sri.N.N.Sugunapalan (Sr.) on 15 September, 2015
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940
WA.No. 1186 of 2017
-------------------
AGAINST THE JUDGMENT IN WP(C) 6076/2010 DATED 15-09-2015
--------------
APPELLANT/PETITIONER
--------------------
K.BHASKARAN,
SENIOR ASSISTANT, REGIONAL OFFICE,
KERALA WATER WAREHOUSE CORPORATION,
ALUVA
BY ADVS.SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
RESPONDENT(S)/RESPONDENTS:
--------------------------
1. CHAIRMAN,
KERALA STATE WAREHOUSING CORPORATION,
PANAMPILLY NAGAR, ERNAKULAM
2. KERALA STATE WAREHOUSING CORPORATION,
REPRESENTED BY ITS MANAGING DIRECTOR,
PANAMPILLY NAGAR, ERNAKULAM
BY ADV. SRI.MAJNU KOMATH, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06-07-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.V.
17.07.2018
P.R.Ramachandra Menon &
Devan Ramachandran, JJ.
-------------------------------------------------------
W.A.No.1186 of 2017
-------------------------------------------------------
Dated this the 6th day of July, 2018
JUDGMENT
Ramachandra Menon, J.
Interference declined by the learned Single Judge in respect of the challenge raised by the writ petitioner as to the punishment imposed on culmination of the disciplinary proceedings, is under challenge in this appeal.
2. Heard Sri.S.Sujin, the learned counsel appearing for the appellant as well as Sri.Majnu Komath, learned Standing Counsel appearing for the respondents.
3. The sequence of events is as follows:
The appellant was working as a Senior Assistant in the Kerala State Warehousing Corporation and was put in charge of the Assistant Manager. While so, the first respondent - the Chairman of the Warehousing Corporation conducted a surprise inspection on 09.02.2007 when the appellant was nowhere available there. The Chairman conducted a further inspection, particularly with regard to the affairs in the WA 1186/17 2 godown, when it was revealed that serious termite attack was there and no proper measures were taken by the appellant, who was in charge of the godown, to have it prevented. This led to Exhibit P1 inspection report. The Regional Manager also conducted an enquiry, who submitted Exhibit P2 report confirming the termite attack. It was accordingly, that Exhibit P3 memo of charges was issued as to the misconduct, particularly with regard to the unauthorised absence and also for the lapses in not taking appropriate measures in preventing the termite attack. A domestic enquiry was conducted, based on which Exhibit P6 report was submitted by the Enquiry Officer arriving at a finding of guilt. After completing the procedural formalities, though a punishment of dismissal was proposed initially, the Disciplinary Authority weighed the facts and figures and imposed only a lesser punishment of 'reversion' to the post of Senior Assistant, to be effective for a period of 'five years', as per Exhibit P9 order.
4. Met with the situation, the appellant/petitioner sought to challenge the same by filing an appeal before the first respondent/Chairman. After considering the entire WA 1186/17 3 materials on record, the first respondent/Chairman (who conducted the inspection and submitted Exhibit P1 report), took a lenient view and reduced the punishment ordering that reversion shall be effective only for a period of 'two years', as per Exhibit P11 order. The appellant/ petitioner took up the matter before this Court by way of a writ petition challenging Exhibits P9 and P11 orders.
5. A thread bare analysis of the facts and figures was made by the learned Single Judge, who arrived at a finding that, absolutely no lapse was there with regard to the course pursued by the respondents, particularly in serving the memo of charges, conducting the enquiry and concluding the proceedings. The version of the appellant/petitioner, that the absence on 09.02.2007, when the inspection was conducted, was due to field search for some new godown for collecting and storing paddy, was found as not palatable or bonafide. So also, a finding was made with regard to the entry made in Exhibit P15 movement register, where it was recorded that the appellant/petitioner was leaving the place by 2 p.m., whereas he had actually left the place by 12 noon. The appellant had WA 1186/17 4 not marked his attendance in the afternoon on 09.02.2007 as well, which remains an admitted fact. Similarly, the factum of termite attack was established, particularly from Exhibit P1 report and also from Exhibit P2 submitted by the Regional Manager. The fact that there was termite attack stands conceded by the appellant as well. However, his explanation was that insecticide was not used, apprehending that it might adversely affect the food grains stored in the premises. The so called explanation was not found as palatable by the learned Single Judge, holding that the appellant had failed to take prudent measures to prevent the termite attack and had the appellant, who was in charge of the godown, taken sufficient preventive measures by spraying the permitted insecticides at appropriate places, the termites would not have been there. The version that the food grains were yet to be attacked/ affected by the termites was found as not a valid ground to mitigate the delinquency shown by the petitioner/appellant.
6. Coming to the proportionality of punishment in relation to the proven misconduct, the punishment originally awarded as per Exhibit P9 was 'reversion' for a period of five WA 1186/17 5 years, which came to be reduced by the first respondent/ Chairman on appeal by passing Exhibit P11 order, be effective only for two years. The lapse on the part of the appellant, who admittedly had not taken prudent measures to prevent the termite attack and the possible consequences which would have resulted, if the Chairman had not conducted an inspection on that day (the entire food grains might have suffered attack by the termite causing huge loss) is very serious. Fortunately, by virtue of the inspection conducted by the Chairman on 09.02.2007, the chance to have the food grains attacked by termites got rid of, which can never go to the credit of the appellant/petitioner. Despite the said serious lapse, the punishment actually awarded is only reversion by 'two years'. It is brought to the notice of this Court that, after two years, the appellant's position came to be restored to the earlier one and that he retired from service in February 2018. Therefore, we are of the firm view that the punishment awarded is never shockingly disproportionate to the gravity of the proven misconduct, so as to call for interference by this Court. More so, since the finding has been rendered by the WA 1186/17 6 learned Single Judge placing reliance on the verdict passed by the Apex Court in Union of India and Others v. P.Gunasekaran ((2015) 2 SCC 610).
In the said circumstance, no tenable ground is raised to call interference. The appeal fails and the same is dismissed accordingly.
Sd/-
P.R.Ramachandra Menon, Judge Sd/-
Devan Ramachandran, Judge tkv