Kerala High Court
Paul C.Paulose vs Cochin Shipyard Ltd on 16 August, 2012
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
MONDAY, THE 3RD DAY OF SEPTEMBER 2012/12TH BHADRA 1934
WP(C).No. 20289 of 2012 (I)
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PETITIONER(S):
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PAUL C.PAULOSE, AGED 60 YEARS
S/O.C.K.PAULOSE, CODE NO.0948
ASSISTANT SYSTEM OFFICER (SENIOR)
INFORMATION SYSTEMS DEPARTMENT, COCHIN SHIPYARD
RESIDING AT CHEMBAKASSERIL, ST.MARTIN ROAD
PALARIVATTOM, COCHIN-682 025.
BY ADVS.SRI.SHAJI P.CHALY
SRI.R.SANJITH
RESPONDENT(S):
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1. COCHIN SHIPYARD LTD
PERUMANOOR.P.O., COCHIN-682 015
REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR.
2. THE DEPUTY GENERAL MANAGER (FINANCE)
COCHIN SHIPYARD LTD., KOCHI-682 015.
BY SR.ADV. SRI.M.PATHROSE MATTHAI
BY ADVS. SRI.SAJI VARGHESE
BY SMT.MARIAM MATHAI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03-09-2012 ALONG WITH WPC NO. 20290/2012, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
jm
WPC NO. 20289 OF 2012
APPENDIX
PETITIONER'S EXHIBITS:
P1- TRUE COPY OF THE ORDER BEARING NO.PERL/DA-9/0948/2012 DATED
16.08.2012.
P2- TRUE COPY OF THE MEMO ISSUED TO THE PETITIONER.
P2(A) TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER.
P3- TRUE COPY OF COMPLAINT DATED 20.09.2010.
P4- TRUE COPY OF THE F.I.R. NO.1546/2010.
P5- TRUE COPY OF THE ORDER GRANTING ANTICIPATORY BAIL.
P6- TRUE COPY OF THE SAID ORDER IN C.M.P.2364/2011.
P7- TRUE COPY OF THE SAID RODER IN M.A.NO.4143/2011 IN
B.A.NO.7038/2010 DATED 07.07.2011.
P8- TRUE COPY OF THE LETTER DATED 01.10.09.
P9- TRUE COPY OF THE REPLY ISSUED BY K.P.VARGHESE.
P10- TRUE COPY OF THE REPRESENTATION ISSUED BY THE PETITIONER.
P11- TRUE COPY OF THE CSL CONDUCT DISCIPLINE & APPEAL RULES.
P12- TRUE COPY OF THE PUBLIC NOTICE PUBLISHED IN MALAYALA MANORAMA
DATED 10.07.2012.
RESPONDENTS' EXHIBITS : NIL
\\ TRUE COPY \\
PA TO JUDGE
jm
P.R.RAMACHANDRA MENON, J.
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W.P.(C) NO. 20289 of 2012 (I)
&
W.P.(C) NO. 20290 of 2012 (I)
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Dated this the 3rd day of September, 2012
JUDGMENT
The suspension of the petitioners ordered by the respondent Management as per Ext.P1 in W.P.(C) No.20289/12 and Exts.P1 to P5 in the other petitions are under challenge.
2. The common case projected by the petitioners is that, they happened to be the office bearers of the society run under the name and style as 'Cochin Shipyard Staff Co-Operative House Construction Society Limited', of which, the employees working in the respondent 'Cochin Shipyard Limited' including the petitioners are the members. In connection with the affairs of the society, there were some complaints from some corners, pursuant to which, a crime was registered by the Police as Crime No.1546/2010, which came to the notice of the Management. The Management wanted to have an explanation from the concerned employees and issued a notice/memo, which was readily responded to, by the petitioners, pointing out that there W.P.(C) NO. 20289 of 2012 (I) & W.P.(C) NO. 20290 of 2012 (I) 2 was absolutely no basis in the allegations and that further proceedings might be dropped. This was in the year 2010. Now, the Management has issued the impugned orders dated 16.08.2012 referring to the above incident and culmination of the investigation by the Police, who has filed a charge sheet before the Court, in respect of various offences; simultaneously adding that the petitioners, despite the directions given to them to inform the developments as to the F.I.R No.1546/2010 dated 23.09.2010; they had failed to discharge the said burden/obligation. It is stated that the charges levelled against them are grievous in nature, warranting disciplinary proceedings and the petitioners stand suspended from service, which forms the subject matter of challenge.
3. The learned counsel for the petitioners submits, that the course pursued by the Management is absolutely without any rhyme or reason and without proper application of mind. It is contended, with reference to the relevant provisions of the Constitution and also such other provisions of the Conduct Rules, that the petitioners have not committed any 'misconduct' in W.P.(C) NO. 20289 of 2012 (I) & W.P.(C) NO. 20290 of 2012 (I) 3 relation to the affairs of the first respondent Management and that the proceedings referred to by the Management are in respect of the affairs of the society; with regard to which there is no connection for the first respondent Management. Reliance is sought to be placed on Ext.P17 public notice issued by the Management on 09.07.2012; alerting the general public that the Management ('CSL') does not have any connection whatsoever with the society and that the Company will not be responsible in any manner in the matter of dealings entered into by the society.
4. The learned counsel further submits that, the alleged default/charge referred to in Para 4 of the suspension order is that the petitioner had not informed the developments pertaining to the F.I.R No.1546/2010, to the Management, despite the specific direction. It is contended that there is absolutely no obligation whatsoever for the petitioners to inform such proceedings to the Management and the failure, if at all any, cannot lead to any disciplinary proceedings. It is also submitted that the 'merits' of the case registered against the petitioners in respect of the various offences under the IPC, have not been W.P.(C) NO. 20289 of 2012 (I) & W.P.(C) NO. 20290 of 2012 (I) 4 adverted to by the Management, so as to have made up a mind as to the scope of proceeding with further steps. The learned counsel also submits, that the petitioners are still to be served with a copy of the 'charge sheet' and that they have not received any summons from any Court and as such, there is no violation of any direction from their side as well.
5. On going through the pleadings and proceedings, it is seen that the factum of registration of crime against the petitioners in respect of the offences under Section 406, 409 and 420 r/w 34 IPC has not been rebutted. There is also no averment as to the finalisation of the investigation, as referred to in the orders placing the petitioners under suspension, leading to filing the charge sheet before the concerned Magistrate Court under Section 173 of the Cr.P.C. Petitioner in W.P.(C) No.20289/2012 has produced a copy of the relevant Conduct Rules issued by the first respondent Management as Ext.P11, while a copy of the Certified Standing Orders has been produced in the other case as Ext.P16.
6. Before proceeding with the merits of the case, W.P.(C) NO. 20289 of 2012 (I) & W.P.(C) NO. 20290 of 2012 (I) 5 particularly as to the challenge raised against the impugned orders of suspension, it has to be mentioned that the petitioner in W.P. (C) No.20289/2012 has retired from the service on 30.08.2012 and as such, the challenge raised by the petitioner against Ext.P1 order of suspension cannot be of any consequence or relevance, except for the limited purpose, as to the continuance of the disciplinary proceedings.
7. Considering the larger issues raised in both the writ petitions, particularly as to the non-compliance of the direction to inform the developments of the F.I.R, this Court finds that there is considerable force in the submissions made from the part of the learned counsel for the petitioners, that there cannot be any obligation on the part of the petitioners/employees to adduce any evidence or bring out the incriminating materials, if any, to the notice of the Management, so as to give a handle to punish them. This is more so, by virtue of the mandate under Article 20(3) of the Constitution of India. The issue to be considered is, whether the impugned orders of suspension have been issued, merely referring to such obligation and non-fulfillment of the same by the W.P.(C) NO. 20289 of 2012 (I) & W.P.(C) NO. 20290 of 2012 (I) 6 petitioners. To have a detailed analysis, it is necessary to extract the contents of the orders, placing the petitioners under suspension which is almost similar in all the cases and hence extracted below, as given in Ext.P1 produced in W.P.(C) No.20289/12 :
"1. Please refer Memo No. PF/0948 dated 07 Oct 2010 issued to you and your explanation dated 14 Oct 2010 submitted in reply there to.
2. It has been reported that, you were elected as an Office bearer of the Cochin Shipyard Staff Co-operative Houses Construction Society Limited, E-346 by virtue of your employment in Cochin Shipyard Limited.
3. The Ernakulam Town South Police Station registered a case against you along with other former Office bearers and filed an FIR (First Information Report) No. 1546 dated 23 Sep 2010 before the Additional Chief Judicial Magistrate Court (Economic Offences) Ernakulam. After detailed investigations, the Sub Inspector, Ernakulam Town South Police Station has now filed Charge Sheet in Crime No. 1546/2010 under Sections 406, 409, 420 and 34 of Indian Penal Code before the Additional Chief Judicial Magistrate Court, Ernakulam on 17 July 2012. It is noted that you are Accused No. 3(Three) in the said Charge Sheet and you have already taken bail from the Court.
4. Although you were specifically directed to inform the developments in the FIR No. 1546 dated 23 Sep 2010 registered W.P.(C) NO. 20289 of 2012 (I) & W.P.(C) NO. 20290 of 2012 (I) 7 against you, you did not submit any information till date and thus disobeyed to the reasonable instructions of the Superior.
5. Since the charges leveled against you are grave and serious, disciplinary proceedings are contemplated against you. On appreciation of the fact and circumstances of the case, I am satisfied that you should be placed under suspension pending enquiry. Accordingly you are placed under suspension pending enquiry with immediate effect as per the provisions under the CSL CDA Rules applicable to you.
6. You are directed to surrender the gate entry pass (Access Control Card) issued to you immediately.
7. Please acknowledge receipt of the Suspension Order in the duplicate copy sent herewith."
8. Paragraph 3 of the suspension order refers to the subsequent developments, after registration of the crime, resulting in the finalisation of the investigation, leading to filing of charge sheet by the Police, in respect of the offences under Section 406, 409 and 420 r/w 34. Paragraph 5 of the suspension order says that, the charges levelled against the petitioners are grave and serious and hence disciplinary proceedings are warranted. It is in the said circumstance that the petitioners have been placed under suspension and paragraph 4 of Ext.P4 cannot be read in isolation.
W.P.(C) NO. 20289 of 2012 (I) & W.P.(C) NO. 20290 of 2012 (I) 8
9. Coming to the case projected by the petitioners, that they have not committed any act liable to be construed as a 'misconduct' within the premises of the first respondent Company or as to the affairs of the Company, it is relevant to refer to clause 4 and 5 of Ext.P11 Conduct Rules. Clause 4 refers to the 'general conduct' which stipulates under sub clause 1 that every employee of the Company shall at all times:-
(i) maintain absolute integrity;
(ii) maintain devotion to duty and
(iii) do nothing which is unbecoming of a public servant.
Clause 5, dealing with the term 'Misconduct' starts with the words that it is without prejudice to the generality of the term 'misconduct' that the given acts of omissions and commissions (enlisted there under) shall be treated as misconduct. This shows that the various incidents of misconduct, arrayed as item Nos.1 to 30 under Clause 5, are not exhaustive and are rather supplementary to the generality of the term 'misconduct', which very much takes in the duty of the employee to abstain from doing anything which is unbecoming of a public servant, as W.P.(C) NO. 20289 of 2012 (I) & W.P.(C) NO. 20290 of 2012 (I) 9 mentioned in clause 4(1)(iii). The fact that a criminal case has been registered against the petitioners by the police, the investigation of which has been completed, leading to filing of charge sheet, stands unrebutted. Whether the petitioners have actually committed the misconduct or not, is a matter to be adjudicated by way of appropriate proceedings, based on the evidence to be let in, which does not come within the realm of jurisdiction of this Court. The only question to be considered is, whether the order of suspension has been passed by the respondent Management, 'misusing' the powers or with any 'malafide intent' and whether the requirements to place an employee under suspension have been satisfied or not.
10. Viewed in the above circumstance, reference to 'clause 20(i)' of Ext.P11 in W.P.(C).No.20289/2012 dealing with the "suspension" is relevant which reads as follows :
20. Suspension
(i) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Management by general or special order may place an employee under suspension.
W.P.(C) NO. 20289 of 2012 (I) & W.P.(C) NO. 20290 of 2012 (I) 10
(a) Where a disciplinary proceedings against him is contemplated or is pending; or
(b) Where a case against him in respect of any criminal offence is under investigation or trial.
Almost similar wordings are there in the Certified Standing Orders, wherein, it is dealt with under clause 26(a). Ext.P16 produced in W.P.(C) No.20290/2012 contains the same, which reads as follows :
26. Suspension Pending Enquiry
(a) Where a disciplinary proceeding against a workman is contemplated or is pending or where criminal proceedings against him in respect of any offence are under investigation or trial and the employer is satisfied that it is necessary or desirable to place the workman under suspension he may, by order in writing, suspend him with effect from such date as may be specified in the Order. A statement setting out in detail the reasons for such suspension shall be supplied to the workman within a week from the date of suspension.
From the above, it is seen that, if a disciplinary proceeding is either pending or even contemplated, the Management is justified in placing an employee under suspension. Same is the position with regard to a criminal case, where the offence is under investigation or under trial. Coming to the case in hand, both the W.P.(C) NO. 20289 of 2012 (I) & W.P.(C) NO. 20290 of 2012 (I) 11 above ingredients stand satisfied, in the case of the petitioners, in so far as a criminal case has been registered and a charge sheet has been submitted in respect of the offences under section 406, 409, 420 and 34 of IPC as mentioned in Ext.P1 order of suspension. The very same order refers to the grave nature of the charges and the necessity to initiate disciplinary proceedings.
11. In the course of arguments, the learned counsel for the petitioners brought to the notice of this Court, that a Division Bench of this Court, as per decision in Vikraman Nair Vs. State of Kerala [2008 (4) KLT SN 63] has observed that 'suspension' cannot be there, as part of a routine affair or shall not be automatic in all cases. There is no dispute with regard to the said proposition, more so, in view of the law declared by the Apex Court on the point as discernible from State of Orissa through its Principal Secretary, Home Dept. Vs. Bimal Kumar Mohanty [1994 (4) SCC 126]. The Apex Court has observed that the alternate remedy is not a bar and it is open for the Court to examine the facts and figures, for the limited purpose of ascertaining among other things, whether the authority concerned W.P.(C) NO. 20289 of 2012 (I) & W.P.(C) NO. 20290 of 2012 (I) 12 has taken an unreasonable decision or has abused its powers. In the instant case, it is seen that the Management had an occasion to issue a memo to the petitioners nearly two years ago, when the registration of the F.I.R was done by the Police, in respect of the offences alleged against the petitioners. The Management did not place the petitioners under suspension, considering the reply submitted by them, pointing out that there was absolutely no basis for registration of the crime. But things took a different turn, when the Police completed the investigation and filed the charge sheet before the concerned Court and it was in the said circumstance, that the Management found it necessary to proceed with the steps to conduct the disciplinary proceedings, thus issuing the impugned orders, placing the petitioners under suspension, pending enquiry.
12. In view of the disciplinary proceedings contemplated and also in view of the filing of the charge sheet by the Police, the suspension comes in conformity with clause 20(i) of the Conduct Rules and the case cited by the learned counsel for the petitioners W.P.(C) NO. 20289 of 2012 (I) & W.P.(C) NO. 20290 of 2012 (I) 13 does not come to the rescue of the petitioners. This Court finds that, there is absolutely no merit in these writ petitions. The proceedings have to be taken to a logical conclusion by the Management. In the said circumstance, interference is declined and both these writ petitions are dismissed. It is made clear that, this Court has not expressed anything with regard to the 'merits involved'; particularly as to the offences alleged against the petitioners, by the Police.
sd/-
P.R.RAMACHANDRA MENON, JUDGE AMV