Cochin Port Trust and Deputy Chairman v. R. Krishnamoorthy

'C.R.' # IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 2ND DAY OF JUNE 2017/12TH JYAISHTA, 1939 WA.No. 1051 of 2017 () IN WP(C).19582/2016 -------------------------------------------(AGAINST THE JUDGMENT DATED 10-04-2017 IN WP(C) NO.19582/2016.) APPELLANT(S)/RESPONDENTS 1 & 2: ----------------------------------------------------- 1. THE COCHIN PORT TRUST, REPRESENTED BY ITS SECRETARY, COCHIN PORT TRUST, ADMINISTRATIVE OFFICE, WILLINGDON ISLAND, KOCHI- 682003. 2. THE DEPUTY CHAIRMAN, COCHIN PORT TRUST, ADMINISTRATIVE OFFICE, WILLINGDON ISLAND, KOCHI-682003. ## BY ADVS.SRI.K.ANAND (SR.) SMT.LATHA ANAND SRI.M.N.RADHAKRISHNA MENON SRI.JOSEPH SEBASTIAN (PARACKAL) RESPONDENT(S)/RESPONDENT: ---------------------------------------------- R. KRISHNAMOORTHY, HOUSE NO.697/23, BHARANI, CLASSY ENCLAVE, TRIKKAKARA, COCHIN-682021. ## BY ADV.SRI.P.CHANDRASEKHAR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 'C.R.' # **NAVANITI PRASAD SINGH, C.J. & RAJA VIJAYARAGHAVAN V., J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No.1051 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of June, 2017 ## **JUDGMENT** ## Navaniti Prasad Singh, C.J. The Cochin Port Trust and its Deputy Chairman are the appellants. They are aggrieved by the judgment dated 10.04.2017 rendered by a learned single Judge of this Court in W.P.(C) No.19582 of 2016 whereby the writ petition filed by the first respondent, a Delinquent Officer, was allowed and the extreme punishment of dismissal from service was set aside. 2. We have heard Sri. K. Anand, the learned Senior Counsel, in support of the appeal and with his consent, we dispose of this appeal at this stage itself. 3. The facts are not in dispute. The first respondent was an employee of the Cochin Port Trust (CPT). A complaint was laid against him that he had physically assaulted one Jose C. Kappan, who was the Deputy Chief Engineer and Deputy Chief WA.1051/17 **-:2:-** Vigilance Officer, causing him bodily injuries. It is alleged that the injured was required to be hospitalised. Upon this, a disciplinary proceedings for major punishment was initiated against the first respondent. As facts found by the learned single Judge, which is not disputed by the learned Senior Counsel, the said person, who was assaulted, was not even produced in the domestic enquiry for his examination. Admittedly and undisputedly, there were named eye witnesses to the occurrence as disclosed by the management witnesses in the enquiry itself and those eye witnesses were not produced. It is not the case of the management that the officer assaulted or the eye witnesses were not available to be produced or that there was any difficulty in producing them. Yet, on evidence of few persons to whom the injured had at sometime disclosed that he had been assaulted by the delinquent, the Enquiry Officer found the delinquent guilty of assaulting Sri. Jose C. Kappan and he was thereafter visited with the extreme punishment of dismissal. **-:3:-** WA.1051/17 4. Let it be noted, the defence of the delinquent was that, in fact, the said officer had fallen down and sustained injury. But, because of the admitted animosity between the two, he had chosen to get the delinquent implicated and that is why, he and the so-called eye witnesses were shying and staying away from the enquiry. The learned single Judge clearly found that non-examination of the person injured and the eye witnesses, who were all available, had caused serious prejudice to the delinquent and as such, the extreme punishment of dismissal could not be sustained. It is this or the legality thereof which is under challenge in this intra court appeal. 5. Learned Senior Counsel for the appellants submits that in a domestic enquiry, strict rules of the Evidence Act does not apply. Even if there is a hearsay evidence, it is enough to sustain a charge. We, while accepting the said submission, do not agree to the extent it is being sought to be taken and applied. **-:4:-** WA.1051/17 6. This Court, while exercising powers of judicial review, does not sit in appeal over the decision, but is concerned with the decision making process. When the decision making process is found to be wrong and prejudicial to the delinquent, this Court has a duty to interfere. This is one of such cases. 7. As noted above, the defence of the delinquent was clear that the officer sustained injury by a fall not attributable to the delinquent. The officer, who was injured and available to the management in the domestic enquiry, did not come forward to substantiate the fact of assault by the delinquent. What more prejudice is required to be shown to vitiate the entire proceedings? To add insult to injury, the witnesses for the management did admit that there were eye witnesses, who were employees of the CPT. Their identities were known. Still none of the eye witnesses were produced in the course of enquiry. Is it not prejudicial to a free and fair enquiry, even if it is a domestic enquiry? Thus, though there were direct evidences available to the knowledge of the management, WA.1051/17 **-:5:-** they were all withheld. What was brought on record were completely hearsay evidences, i.e., evidence of other employees, who allege that the injured had told them that he had been assaulted by the delinquent. Thus, the result is that the domestic enquiry based its finding of guilt only on completely hearsay evidence as against primary evidence which was available, but not adduced. 8. We are not applying the strict rules of evidence as enshrined in the Evidence Act, but rules of prudence and reasonableness which are the foundation of any enquiry, including domestic enquiry. There is even at this stage no explanation why the injured officer and the eye witnesses were not produced. It would have been entirely a different case if the management had given some explanations, why it was not possible or not prudent for them to bring in the primary evidence, especially when the delinquent had alleged not only that the officer had sustained the injury as a consequence of fall not attributable to the delinquent, but also WA.1051/17 **-:6:-** animosity. 9. Let it be noted, it was the case of the management itself that there was animosity between the two persons, i.e. the injured and the delinquent. In such a situation to hold back one and hang another cannot be just and proper, much less procedurally correct. 10. In fairness, we may notice the case of **State of Haryana and Another** v. **Rattan Singh** [(1977) 2 SCC 491] as relied by the learned Senior Counsel for the appellants, which decision in general terms is based on principle that the strict rule of evidence does not apply to domestic enquiry. However, in the very said decision in paragraph (4), their Lordships held as follows: “Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. WA.1051/17 ## **-:7:-** Thus we find no merit in this appeal. This appeal is accordingly dismissed. Sd/Navaniti Prasad Singh, Chief Justice Sd/- Raja Vijayaraghavan V., Judge krj.2/6 /TRUE COPY/ P.A. TO JUDGE