Cochin Port Trust & others v. A.V.Poulose

**“C.R.”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** ## **WA.No.209 OF 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 22092/2017(J) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 5:** - **1 COCHIN PORT TRUST, REPRESENTED BY ITS CHAIRMAN, COCHIN PORT TRUST, KOCHI- 682009, KERALA.** - **2 DEPUTY CHAIRMAN, COCHIN PORT TRUST, KOCHI- 682009, KERALA.** - **3 CHIEF MECHANICAL ENGINEER, OFFICE OF THE CHIEF MECHANICAL ENGINEER, COCHIN PORT TRUST, KOCHI- 682009, KERALA.** - **4 SUPERINTENDING ENGINEER (ENQUIRY OFFICER), OFFICE OF CHIEF MECHANICAL ENGINEER, COCHIN PORT TRUST, KOCHI- 682009, KERALA.** **5 T.N.JAYANTHI, SECTION MANAGER, MEDICAL ESTABLISHMENT DEPARTMENT, COCHIN PORT TRUST, KOCHI- 682009, KERALA.** **BY ADVS. SRI.E.K.NANDAKUMAR (SR.) SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM** _W.A.Nos.209,883,1112 & 1617 of 2019_ 2 ## **RESPONDENT/PETITIONER:** **A.V.POULOSE, AGED 54 YEARSM S/O.A.O.VARGHESE, ALACKAPILLY HOUSE, THRIKKAKARA P.O., UNICHIRA, KOCHI- 682021.** ## **BY ADV.SMT.MARY BENJAMIN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2019, ALONG WITH WA.1112/2019, WA.1617/2019, WA.883/2019, THE COURT ON 13-08-2019 DELIVERED THE FOLLOWING:** _W.A.Nos.209,883,1112 & 1617 of 2019_ 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941** ## **WA.No.883 OF 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 22092/2017(J) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **A.V.POULOSE AGED 54 YEARS, S/O.A.O.VARGHESE, ALACKAPILLY HOUSE,THRIKKAKARA.P.O, UNICHIRA,KOCHI-682021.** **BY ADV. SMT.MARY BENJEMIN** ## **RESPONDENTS/RESPONDENTS:** - **1 COCHIN PORT TRUST REPRESENTED BY ITS CHAIRMAN, COCHIN PORT TRUST,KOCHI-682009.** - **2 THE DEPUTY CHAIRMAN, COCHIN PORT TRUST,KOCHI-682009.** - **3 CHIEF MECHANICAL ENGINEER, OFFICE OF THE CHIEF MECHANICAL ENGINEER, COCHIN PORT TRUST,COCHIN-682009.** - **4 THE SUPERINTENDING ENGINEER(M) (ENQUIRY OFFICER), OFFICE OF THE CHIEF MECHANICAL ENGINEER,COCHIN PORT TRUST, COCHIN-682009.** _W.A.Nos.209,883,1112 & 1617 of 2019_ 4 **5 T.N.JAYANTHI, SECTION MANAGER,MEDICAL ESTABILSHMENT DEPARTMENT, COCHIN PORT TRUST, COCHIN-682009.** **BY ADVS. SRI.E.K.NANDAKUMAR (SR.) SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.JAI MOHAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2019, ALONG WITH WA.1112/2019, WA.1617/2019, WA.209/2019, THE COURT ON 13-08-2019 DELIVERED THE FOLLOWING:** _W.A.Nos.209,883,1112 & 1617 of 2019_ 5 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941** ## **WA.No.1112 OF 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 25148/2017(P) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS:** |**1**|**COCHIN PORT TRUST,**| |---|---| ||**PB NO.3705, NORTH END, KOCHI - 682 009,**| ||**KERALA, REPRESENTED BY ITS CHAIRMAN.**| |**2**|**DEPUTY CHAIRMAN,**| ||**COCHIN PORT TRUST, PB NO.3705, NORTH END,**| ||**KOCHI - 682 009, KERALA.**| |**3**|**CHIEF MEDICAL OFFICER,**| ||**MEDICAL DEPARTMENT, PORT TRUST BUILDING,**| ||**ERNAKULAM - 682 009, KERALA.**| ||**BY ADVS.**| ||**SRI.E.K.NANDAKUMAR (SR.)**| ||**SRI.M.GOPIKRISHNAN NAMBIAR**| ||**SRI.K.JOHN MATHAI**| ||**SRI.JOSON MANAVALAN**| ||**SRI.KURYAN THOMAS**| ||**SRI.PAULOSE C. ABRAHAM**| ||**SRI.JAI MOHAN**| _W.A.Nos.209,883,1112 & 1617 of 2019_ 6 ## **RESPONDENT/PETITIONER:** **RASHEEDA BEEVI, AGED 49 YEARS, LOWER DIVISION CLERK, COCHIN PORT TRUST, RESIDING AT THARAPARAMBIL HOUSE, THAMALLACKAL P.O., HARIPPAD, ALAPPUZHA - 690 548.** **BY ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2019, ALONG WITH WA.1617/2019, WA.209/2019, WA.883/2019, THE COURT ON 13-08-2019 DELIVERED THE FOLLOWING:** _W.A.Nos.209,883,1112 & 1617 of 2019_ 7 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941** ## **WA.No.1617 OF 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 25148/2017(P) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **RASHEEDA BEEVI, AGED 51 YEARS, LOWER DIVISION CLERK (UNDER DISMISSAL), COCHIN PORT TRUST, NOW RESIDING AT THARAPARAMBIL HOUSE, THAMALLACKAL P.O., HARIPPAD, ALAPPUZHA.** **BY ADV. SRI.R.SUNIL KUMAR** ## **RESPONDENTS/RESPONDENTS:** - **1 COCHIN PORT TRUST, P.B.NO.3705, NORTH END, COCHIN-682 009, REPRESENTED BY CHAIRMAN.** - **2 DEPUTY CHAIRMAN, P.B.NO.3705, NORTH END, COCHIN-682 009, PORT TRUST BUILDING, ERNAKULAM.** - **3 THE CHIEF MEDICAL OFFICER,** **MEDICAL DEPARTMENT, ADMINISTRATIVE BUILDING, PORT TRUST BUILDING, ERNAKULAM-682 011.** ## **SRI.E.K.NANDAKUMAR (SR.)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2019, ALONG WITH WA.1112/2019, WA.209/2019, WA.883/2019, THE COURT ON 13-08-2019 DELIVERED THE FOLLOWING:** _W.A.Nos.209,883,1112 & 1617 of 2019_ 8 ## **JUDGMENT** **[WA.209/2019, WA.883/2019, WA.1112/2019, WA.1617/2019]** ## Ashok Menon, J. A.V.Poulose, the petitioner in W.P.(C) No.22092/2017, was employed in the Cochin Port Trust (CPT) as a Driver, while, Rasheeda Beevi, the petitioner in W.P.(C) No.25148/2017, was employed as an L.D.Clerk in the same organisation. Both of them were dismissed following separate disciplinary proceedings, and they filed the aforesaid two writs challenging their dismissal and questioning the disciplinary proceedings. 2. W.P.(C) No.22092/2017 was allowed by the learned Single Judge vide impugned judgment dated 26.10.2018 in which the learned Judge set aside the orders of punishment by the disciplinary authority, which was confirmed by the appellate authority at Exts.P9 and P11 and directed the respondents-CPT to reconsider the case of the petitioner A.V.Poulose from the stage of enquiry report based on the evidence _W.A.Nos.209,883,1112 & 1617 of 2019_ 9 already adduced, and pass orders within a period of two months from the date of receipt of a copy of the judgment. Challenging the judgment, both the CPT as also the delinquent employee preferred appeals as W.A.Nos.209/2019 and 883/2019 respectively. 3. Relying on the judgment in W.P.(C) No.22092/2017, another learned Single Judge vide order dated 22.01.2019 in W.P.(C) No.25148/2017 filed by Rasheeda Beevi, set aside the impugned order imposing the penalty of dismissal and directed the CPT to reconsider the matter with regard to the penalty in the light of the directions in the judgment in W.P.(C) No.22092/2017. That judgment is also challenged by both the CPT and the delinquent Rasheeda Beevi by filing W.A.Nos. 1112/2019 and 1617/2019 respectively. Since both these matters are interconnected, we heard the appeals, which are disposed by this common judgment. 4. The facts in brief are thus: In the case of A.V.Poulose, the allegation against him is that while he was working as Driver, after having _W.A.Nos.209,883,1112 & 1617 of 2019_ 10 been on half and full day leaves on several days, he in connivance with Rasheeda Beevi, who was the office Clerk, unauthorisedly availed full day attendance after punching the 'entry' and 'exit' in the swiping machines installed at the office of the CPT, after the office hours, to create evidence that he had been working the whole day. Yet another allegation against Poulose is that he had unauthorisedly used the swiping card of Rasheeda Beevi by proxy on a date she had availed of half day casual leave and punched the exit machine in the evening, so as to make evidence regarding her having worked the whole in the office. It is also alleged that the leave applications, which were submitted, were destroyed by these two persons. 5. The disciplinary enquiry initiated against Poulose and Rasheeda Beevi separately resulted in finding them guilty of the accusations made. Major penalty of dismissal was imposed on both the delinquents. Appeals filed by them too failed. Thus, the two Writ Petitions were filed challenging the orders of the CPT. _W.A.Nos.209,883,1112 & 1617 of 2019_ 11 6. The delinquents are aggrieved because, after having found that the dismissal was not sustainable, the learned Single Judge directed continuance of the proceedings from the stage of enquiry report based on the evidence already adduced. The contention of the delinquents is that after having found that the evidence against them was grossly inadequate to enter a positive finding against them on the charges framed, they should have been exonerated altogether while the Writ Petitions were allowed. 7. We heard Senior Counsel Shri E.K.Nandakumar appearing for the CPT and Advocates Smt.Mary Benjamin and Shri R.Sunil Kumar for the delinquents respectively. 8. The CPT challenges the finding of the learned Single Judge on the ground that the scope of interfering with the findings in a disciplinary proceedings by the High Court exercising jurisdiction under Article 226 of the Constitution of India is very limited, and therefore, the evidence should not have been reappraised to enter a finding that material _W.A.Nos.209,883,1112 & 1617 of 2019_ 12 against the delinquents is highly inadequate. Only in case it is found that there is total lack of evidence, could the Court interfere, is the argument of the learned Senior Counsel for the CPT. 9. Our attention is drawn to the various decisions regarding the jurisdiction of the High Court to interfere with the disciplinary proceedings. In _**State**_ ## _**Bank of Bikanre & Jaipur v. Nemi Chand Nalwaya, 2011**_ _**AIR SCW 2583**_ , the Honourable Supreme Court held thus: _“6. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will, however, interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.”_ ## 10. In _**Registrar General, Patna High Court v.**_ ## _**Pandey Gajendra Prasad & others, JT 2012 (5) SC 457**_ , the Honourable Supreme Court considering the scope of interference in the decision of the departmental _W.A.Nos.209,883,1112 & 1617 of 2019_ 13 ## authorities observed thus: _“The scope of judicial review under Article 226 of the Constitution, of an order of punishment passed in disciplinary proceedings, is extremely limited. While exercising such jurisdiction, interference with the decision of the departmental authorities is permitted, if such authority has held the proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by consideration extraneous to the evidence on the merits of the case, or if the conclusion reached by the authority, on the face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above.”_ ## 11. In _**S.R.Tewari**_ **v. Union of India & another, JT** **2013 (9) SC 31** , the Honourable Supreme Court has held that the court can exercise the power of judicial review if there is a manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous. Such exercise of power would stand vitiated. It is also observed that the court does not have the expertise to correct the administrative decision. Therefore the court itself may be fallible and interfering with the order of the authority may impose heavy administrative burden on the State or may lead to unbudgeted expenditure. It has been observed that the court must _W.A.Nos.209,883,1112 & 1617 of 2019_ 14 keep in mind that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. Thus, the court is devoid of the power to reappraise the evidence on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its own independent finding. (vide _**High Court of Judicature at Bombay through its Registrar v. Udayasingh, S/o Ganpatrao Naik Nimbalkar & others, AIR 1997 SC 2286; Government of Andhra Pradesh & others v. Mohd. Nasrullah Khan, AIR 2006 SC 1214**_ ; and _**Union of India & others v. Manab Kumar Guha, (2011) 11 SCC 535**_ . 12. In _**Union of India & others v. P.Gunasekaran,**_ _**JT 2014 (13) SC 499**_ , the Honourable Supreme Court enumerated the functions of the writ courts thus: - _“13. xx xx 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:_ - _a. the enquiry is held by a competent authority;_ - _b. the enquiry is held according to the procedure prescribed in that behalf;_ - _c. there is violation of the principles of natural justice in conducting the proceedings;_ _W.A.Nos.209,883,1112 & 1617 of 2019_ 15 _d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. 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; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence; 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; - (vii)go into the proportionality of punishment unless it shocks its conscience.” ## 13. In _**G.M.(Operations) S.B.I. & another v.**_ ## _**R.Periyasamy, JT 2014 (13) SC, 556**_ , it is held thus: _“9. xx xx The learned Single Judge committed an error in approaching the issue by asking whether the findings have been arrived on acceptable evidence or not and coming to the conclusion that there was no acceptable evidence, and that in any case the evidence was not sufficient. In doing so, the learned Single Judge lost sight of the fact that the permissible_ _W.A.Nos.209,883,1112 & 1617 of 2019_ 16 _enquiry was whether there is no evidence on which the enquiry officer could have arrived at the findings or whether there was any perversity in the findings. Whether the evidence was acceptable or not, was a wrong question, unless it raised a question of admissibility. Also, the learned Single Judge was not entitled to go into the question of the adequacy of evidence and come to the conclusion that the evidence was not sufficient to hold the respondent guilty.”_ ## 14. _Per contra_ , the learned Counsel appearing for the delinquents would argue that while exercising powers of judicial review, Writ Court 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 to the delinquent, the writ Court can interfere. ( _**Cochin Port Trust &**_ ## _**another v. R.Krishnamoorthy, 2017 (3) KHC 443 (DB)**_ relied on). 15. From the overwhelming decisions on the point referred to above, it is adequately clear that the standard of proof that must be employed in domestic enquiries is in fact that of preponderance of probabilities. The Honourable Supreme Court has in ## _**Union of India v. Sardar Bahadur, (1972) 4 SCC 618**_ , held that disciplinary proceedings is not a criminal trial and thus, the standard proof required is that of _W.A.Nos.209,883,1112 & 1617 of 2019_ 17 preponderance of probability and not proof beyond reasonable doubt. This view has been upheld by the Honourable Supreme Court in several decisions subsequently. A writ court cannot sit on appeal for re-appreciation of the evidence is the upshot. 16. It has been pointed by the learned Counsel appearing for the delinquents that there is total lack of evidence in the instant case. We do not agree with such a contention, because the allegation against the writ petitioners have been adequately proved by the examination of witnesses and the available documents. The fact that more witnesses were not examined and that the evidence was not corroborated by documents is no reason to set aside the enquiry proceedings. Poulose has been a constant defaulter by absenting himself on duty, while punching his attendance with ulterior motive. He has also reciprocated the assistance rendered to him by Rasheeda Beevi, who was working in the office, by punching her card in her absence by way of proxy. The security personnel examined by the enquiry officer has testified regarding this. We do _W.A.Nos.209,883,1112 & 1617 of 2019_ 18 not think that more evidence, than what was adduced, is necessary to prove the complicity of the delinquents. 17. Coming to the penalty of dismissal from service, we do agree with the learned Single Judges that it is disproportionate. They are only responsible for wrongly entering their attendance so as to save leave and probably they have gone to the extent of destroying the records of leave applications so as to facilitate gain attendance. That to our estimation is not a default to attract the punishment of dismissal from service. Both the delinquents have put in fairly long service and do not deserve to be thrown out so unceremoniously. 18. Hence, while upholding the findings in the disciplinary enquiries initiated against the delinquents, we set aside the punishment of dismissal imposed upon them. The CPT is therefore directed to reconsider the punishments awarded to Poulose and Rasheeda Beevi anew. Imposition of even a minor penalty would suffice in our estimation. _W.A.Nos.209,883,1112 & 1617 of 2019_ 19 The Writ Appeals are disposed of as above. No order as to costs. _dkr_ **Sd/V.CHITAMBARESH JUDGE Sd/ASHOK MENON JUDGE**