Cyril C. George v. Union of India, Central Vigilance Commission and Cochin Port Trust

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA,** ## **1945** **WP(C) NO. 21500 OF 2021** **PETITIONER:** **CYRIL C. GEORGE, AGED 60 YEARS, DEPUTY CHAIRMAN (RETIRED), COCHIN PORT TRUST, RESIDING AT 50GOLDEN NEW VILLAS, VENNALA, COCHIN - 682028.** **BY ADVS.K.JAJU BABU (SR.) BRIJESH MOHAN SACHIN RAMESHAR, ARAVIND T RAMESH, M.U.VIJAYALAKSHMI** ## **RESPONDENTS:** - **1 UNION OF INDIA, REPRESENTED SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF PORTS, SHIPPING AND WATERS WAYS, TRANSPORT BHAWAN - I, PARLIAMENT STREET, NEW DELHI - 110001.** - **2 THE CENTRAL VIGILANCE COMMISSION, SATARKTA BHAWAN, GPO COMPLEX, BLOCK A, INA, NEW DELHI - 110023, REPRESENTED BY ITS DIRECTOR.** - **3 COCHIN PORT TRUST WILLINGTON ISLAND, COCHIN - 682009, REPRESENTED BY ITS CHAIRMAN, BY ADVS.SRI.SUVIN R.MENON, CGCM. GOPIKRISHNAN NAMBIAR, K.JOHN MATHAI, JOSON MANAVALAN, KURYAN THOMAS, PAULOSE C. ABRAHAM, RAJA KANNAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 21500 OF 2021** **2** ## **JUDGMENT** The petitioner says that he served as the Deputy Chairperson of the 3[rd] respondent - Cochin Port Trust ('CPT' for short) and that he attained the age of superannuation, on 31.07.2021. He alleges that, however, four days prior to the afore date, he was served with Ext.P21 Memorandum of Charges dated 26.07.2021, imputing various counts of misconduct and misfeasance against him; and asserts that this exercise has been initiated solely to victimize him and guided by vendetta, since he refused to abide by certain unfair demands made on. 2. Sri.Jaju Babu, learned senior counsel, instructed by Smt. Anuja Thomas - learned counsel for the petitioner, vehemently argued that the charges in Ext.P21 and the Statement of Imputations accompanying it, are untenable, perverse and edificed on irrelevant and baseless facts. The learned senior counsel argued that, as it is evident from Ext.P21, the gravamen of the accusations against his client is that he had not imposed the “Minimum Guaranteed Throughput” (MGT) against the lessee mentioned in Ext.P13 **WP(C) NO. 21500 OF 2021** **3** agreement, and that this has caused huge loss to the 'CPT'; with an adscititious allegation that he had committed default in ensuring that said agreement was entered into between the parties within time. 3. The learned senior counsel explained that the agreement in question had its genesis in the year 2000, which is discernible from Ext.P2 notification inviting tenders; but that his client took charge as the Secretary of 'CPT' only in the year 2003. He submitted that controversy arose because, in the agreement in question, there was a conflicting clause incorporated, though which the Lessee therein was not obligated to abide by the 'MGT'; though its various other clauses speak to the contrary. He vehemently asserted that it is his client who had brought this inconsistency to the notice of the Board of 'CPT', leading to the afore discordant position in the agreement being rectified with effect from the year 2014. He added that his client had, in fact, recommended that this correction be made with effect from 2011, but that, as evident from Ext.P18, it was brought to effect only from the year 2014; and therefore, that the allegations now made against him are wholly mischievous and malafide _._ He, thus argued that the charges against the petitioner cannot be **WP(C) NO. 21500 OF 2021** **4** allowed to be acted upon by the 'CPT' and that they are liable to be quashed for the reason that the allegations made against him relate to a period where he was not in service and encompasses over two decades of time, which renders the proposed action against him impermissible and proscribed in law. 4. The learned senior counsel then relied upon the judgments of this Court in **Xavier v. KSEB [1979 KHC 24]** and **Jayarajan v. State of Kerala [2001 (3) KLT 929],** in support of his argument that it is only if the charges are tenable and not perverse, can an enquiry be proceeded; further juxtaposed by the decision in **Bhaskaran Pillai v.** **Devaswom Commissioner [1997 KHC 82],** to assert that, after his client had retired from service, the master - servant relationship had terminated, rending further enquiry or imposition of punishment impossible, in the absence of any specific enabling provision being available in the statutory scheme applicable to the 'CPT'. 5. After arguing as afore, Sri.Jaju Babu proceeded to predicate that the pleadings on record would establish that same set of charges, now impelled against his client through Ext.P21, had been earlier enquired into and closed; but that it **WP(C) NO. 21500 OF 2021** **5** is solely because of Ext.P20 recommendations of the Central Vigilance Commission (CVC) made thereafter, that Central Government has now issued the said Charge Memo. He pointed out that, in Ext.P20 recommendations, the 'CVC' has exonerated every other person, but has chosen to reiterate the recommendation for disciplinary action against his client alone and argued that this has been done in colourable exercise of power. He thus reiteratingly prayed that this writ petition may be dismissed. 6. Pertinently, even this Court pointedly asked the learned Senior Counsel whether is client has impelled any cause against the competence of the first respondent in having issued the impugned Memo of Charges and Statement of Imputations, his unequivocal response was to the negative and conceded that no such ground is projected. 7. Sri.K.N.Nataraj, learned Additional Solicitor General of India, instructed by learned Counsel, stoutly refuted the afore submissions of Sri.Jaju Babu, impelling a preliminary objection against the maintainability of this Writ Petition. He relied upon the judgments of the Hon'ble Supreme Court in **Special Director and Another v. Mohd.Ghulam Ghouse and Another [(2004) 3 SCC 440] and Union of India and** **WP(C) NO. 21500 OF 2021** **6** ## **Another v. Kunisetty Satyanarayana [(2006) 12 SCC** **28]** to argue that Courts would be loathe to interfere with or interdict Memos of Charges on its merits. He read to me paragraphs 13 to 16 in **Kunisetty Satyanarayana** (supra), as also paragraph 5 of **Mohd.Ghulam Ghouse** (supra), to drive home his contention that, unless it is able to be established by the petitioner that the Memo of Charges and Statement of Allegations were issued by an incompetent Authority, or that it is non est in the eyes of law for absolute want of jurisdiction or such other deleterious factors, a plea for quashing it at the inception, is not tenable. 8. Sri.K.N.Nataraj, learned Additional Solicitor General of India, thereafter, proceeded to impress upon this Court that this is not a case where Ext.P21 Memo of Charges had been issued without thought. He pointed out that the petitioner's case was reviewed several times by the Central Vigilance Commission; and that they have now issued Ext.P20 recommendations, reiterating their earlier advice of initiating “major penalty proceedings” against the petitioner. He conceded that, even though Ext.P20 is not absolutely binding on the 1[st] respondent, it certainly carries great amount of force, which must have persuaded them to take a decision to **WP(C) NO. 21500 OF 2021** **7** initiate enquiry; but added that, by itself, this would cause no prejudice to the petitioner because, even in Ext.P21, he has been told that he has an opportunity of representing against it and that he can be heard, if he so desires. He concluded his submissions saying that, when the safeguards are so inbuilt into the impugned order itself, there was absolutely no requirement for the petitioner to have approached this Court since as has been declared by the Hon'ble Supreme Court in **Kunisetty Satyanarayana** _(_ supra), it is always possible that after considering the reply to the show cause notice, the Competent Authority may decide to drop proceedings, or to find that the charges are not established; but that attempt of the petitioner in this case is to even pre-empt such. He thus prayed that this writ petition be dismissed. 9. Sri.Suvin R. Menon, learned Central Government Counsel appearing for respondents 1 and 2, submitted that the assertions of Sri.Jaju Babu, learned Senior Counsel, are wholly without basis because the impugned Charge Memo and Statement of Imputations have been issued after assessing all relevant aspects very carefully. He argued that the Central Vigilance Commission has made its recommendations, on the basis of a thorough investigation done, not once but multiple **WP(C) NO. 21500 OF 2021** **8** times; and hence that first respondent was obligated to consider it in its proper perspective and take an apposite decision. He added that the first respondent did so, after the enquiry and files revealed that there was sufficient cause for an enquiry to be completed against the petitioner. 10. Sri.Suvin R. Menon then adopted the submissions of Sri.Nataraj, learned Additional Solicitor General of India, to predicate that petitioner need not harbour any apprehension that his objections against the Memo of Charges will not be considered. He concluded his submissions arguing that, as long as the petitioner does not have a whispering case against the competence of the first respondent in issuing the impugned Charge Memo and Statement of Allegations, going by the declarations of the Hon'ble Supreme Court in **Kunisetty Satyanarayana** (supra), this writ petition is not maintainable and he cannot invoke the extraordinary jurisdiction of this Court. 11. I have considered the afore rival submissions, on the touchstone of various materials available on record. 12. It is indubitable that the attempt of Sri.Jaju Babu, learned senior counsel for the petitioner, is to establish that the charges impelled against his client are either perverse or **WP(C) NO. 21500 OF 2021** **9** presents a scenario of impossibility for him to even reply to it. The specific argument projected by him is that the imputation in the impugned orders relate to a period when he had no responsibility for ensuring that the Lessee in Ext.P13 Agreement was subject to the 'MGT'; and that it was, in fact, he who acted virtually as a whistleblower, to ensure that such obligations were brought in on them, at least in the year 2014, though he had made a recommendation to do so even in the year 2011. The learned senior counsel, as I have already recorded above, also then projects a contention that, every charge now proposed against the petitioner was considered earlier and dropped; and therefore, that the present action amounts to double jeopardy. 13. I must say upfront that I do not propose to go into the merits of the contentions relating to the contents of Ext.P21 at this stage. This is because, as has been luculently declared by the Hon'ble Supreme Court in **Kunisetty Satyanarayana** _(_ supra) it is only in the most exceptional cases will a Court be persuaded to answer allegations against the charge sheet on its merits. The well settled caution expressed by the Hon'ble Supreme Court - that a Writ Petition should not be entertained against a mere show cause notice, **WP(C) NO. 21500 OF 2021** **10** because it does not amount to an adverse order which effects the rights of the petitioner, it being quite possible that the Disciplinary Authority itself may choose, after considering his objections, to drop the proceedings or to hold that the charges are not established - is certainly one that guides consideration of this Court in this case. 14. It is without contest - being undisputed also - that Ext.P21 is only a Memo of Charges, accompanied by the Statement of Imputations and that petitioner fully obtains opportunity of showing cause against it. In fact, it is pertinent that petitioner has already done so through Ext.P25, in which, an objection in the nature of a preliminary one, has been raised on the question of initiation of disciplinary action against him. 15. Obviously, therefore, even going by Ext.P21, once the petitioner has shown cause against the charges and the imputations against him, it is now incumbent upon the competent Disciplinary Authority to consider it in its proper perspective; and should the petitioner seek an opportunity to be heard, then to offer the same also to him before taking a final decision as to if an enquiry is required to be conducted and completed. **WP(C) NO. 21500 OF 2021** **11** 16. In such scenario, one fails to fathom what prejudice would be caused to the petitioner merely on account of issuance of Ext.P21 Memo of Charges and the accompanying Statement of Allegations, particularly when, as I have already said above, the Disciplinary Authority appears to have acted in terms of the recommendations of Ext.P20 issued by the 'CVC'. As rightly argued by Sri.Nataraj – learned Additional Solicitor General of India and Sri.Suvin R.Menon, the learned Central Government Counsel, the recommendations of the 'CVC' ought to be afforded due consideration, particularly when same was made after several rounds of deliberations, as perspicuous from Ext.P20 itself. One cannot hence, find the actions of the Disciplinary Authority, in having issued Ext.P21 Memo of Charges, to be in error, especially when there is no challenge to the jurisdictional competence of the said Authority in doing so. 17. As matters now stand, the charges against him have been answered by the petitioner vide Ext.P25, but there has been no opportunity for the Disciplinary Authority to consider it on account of the interim orders issued by this Court. It will be imprudent for this Court to presume that Ext.P25 objections would not be considered by the Authority **WP(C) NO. 21500 OF 2021** **12** in its proper perspective, when the opportunity to make such and to be heard, has been reserved statutorily to the petitioner, in Ext.P21 itself. 18. For the reasons above, I am without doubt that it will be infelicitous for this Court to enter into the merits of Ext.P21 Memo of Charges or the Statement of Imputations against the petitioner at this stage, however, with the Disciplinary Authority being ordered to consider Ext.P25 in its proper perspective, after hearing the petitioner also. As I have already indited above, there is absolutely no reason, as of now, for this Court to suspect that said Authority will not consider the preliminary objections raised by the petitioner, if it has been included in Ext.P25. In the afore circumstances, I dispose of this Writ Petition; with a direction to the Competent Disciplinary Authority to hear the petitioner, based on Ext.P25 objections and take a decision in terms of the applicable Regulations, before embarking upon an enquiry as has been notified to the petitioner through Ext.P21. The afore exercise shall be completed by the Competent Authority as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. **WP(C) NO. 21500 OF 2021** **13** I reiteratedly clarify that I have not entered into the merits of any of the rival contentions and that all of them are left open to be impelled by the petitioner, if it becomes so warranted in future. **Sd/- DEVAN RAMACHANDRAN, JUDGE** lsn **WP(C) NO. 21500 OF 2021** **14** ## **APPENDIX OF WP(C) 21500/2021** ## **PETITIONER EXHIBITS** - **Exhibit P1** **TRUE COPY OF THE ORDER NO. A4/ESTATE/93-S DATED 15.03.1993 OF THE COCHIN PORT TRUST.** - **Exhibit P2 TRUE COPY OF THE RELEVANT EXTRACT OF THE ORIGINAL TENDER NOTICE NO. T7/T1097/2000-C DATED 31.07.2000 ALONG WITH ANNEXURE -1.** - **Exhibit P3 TRUE COPY OF THE ALLOTMENT ORDER NO. EM2/L/63/SR/2001 DATED 20.03.2001 ISSUED BY THE COCHIN PORT TRUST.** - **Exhibit P4 TRUE COPY OF THE ORDER DATED 20.11.2001 IN CIVIL APPEAL NO.79067907 OF 2001 PASSED BYT HE HON'BLE SUPREME COURT.** - **Exhibit P5 TRUE COPY OF THE APPOINTMENT ORDER VIDE NO.A-12023/1/2002-PE-I DATED 25.11.2003 ISSUED TO THE PETITIONER TO THE POST OF SECRETARY.** - **Exhibit P5(A) TRUE COPY OF THE RETIREMENT CERTIFICATE VIDE F.NO. A- 12022/10/2015-PE-1 DATED 03.09.2021 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **Exhibit P6 TRUE COPY OF THE AGENDA ITEM NO.C4 FOR THE BOARD OF TRUSTEES MEETING FOR THE YEAR 2008-09 SCHEDULED ON 06.02.2009.** - **Exhibit P7 TRUE COPY OF THE NOTE OF AGENDA DATED 06.02.2009 ITEM NO.D3 FOR THE BOARD OF TRUSTEES MEETING FOR THE YEAR 2008-09 PREPARED BY THE CHAIRMAN,** - **Exhibit P8 TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE PROCEEDINGS OF THE MEETING NO.6 OF 2008-09 HELD ON 06.02.2009.** - **Exhibit P9 TRUE COPY OF THE ORDER NO.EM2/L/66/W.P(C) 14317/2008 DATED 16.02.2009 OF THE COCHIN PORT TRUST.** - **Exhibit P10 TRUE COPY OF THE ORDER NO.EM2/41/871/2009 DATED 11.03.2009 PASSED BY THE COCHIN PORT TRUST.** ## **Exhibit P11** - **TRUE COPY OF THE AGENDA ITEM NO.D1** **WP(C) NO. 21500 OF 2021** **15** **BASED ON THE BOARD OF TRUSTEE MEETING FOR THE YEAR 2009-10 HELD ON 31.03.2010.** - **Exhibit P12 TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE BOARD MEETING FOR THE YEAR 2009-10 SCHEDULED ON 31.03.2010 REGARDING AGENDA ITEM NO.D1.** - **Exhibit P13 TRUE COPY OF THE DEED OF LEASE DATED 29.11.2010 EXECUTED BETWEEN THE COCHIN PORT TRUST AND THE UNTRA TECH CEMENT LTD.** - **Exhibit P14 TRUE COPY OF THE RELEVANT PAGE OF NOTE SIGNED BY THE PETITIONER ON 02.02.2011 AND BY THE CHAIRMAN ON 04.02.2011.** - **Exhibit P15 TRUE COPY OF THE RELEVANT PAGE OF FILE NOTE GRANTING EXTENSION ON THE SPECIFIC CONDITION REGARDING PAYMENT OF ADDITIONAL LICENSE FEE AND PAYMENT OF MGT WITH EFFECT FROM 01.10.2011.** - **Exhibit P16 TRUE COPY OF THE RELEVANT PAGES OF THE PROPOSAL DATED 18.09.2014 AS AGENDA ITEM NO. D10 FOR THE BOARD MEETING ON 29.09.2014.** **Exhibit P17 TRUE COPY OF THE RELEVANT EXTRACT OF THE BOARD RESOLUTION HELD ON 29.09.2014 WITH REGARD TO AGENDA ITEM NO.D10.** - **Exhibit P18 TRUE COPY OF THE DEED OF RECTIFICATION OF LEASE DATED 24.02.2016 EXECUTED BETWEEN THE BOARD OF TRUSTEES AND THE UNTRA TECH CEMENT LTD.** - **Exhibit P19 TRUE COPY OF THE INFORMATION VIDE NO.GAD/RTI CELL/JT/1052/2018-S DATED 17.05.2018 AND 15.05.2018 OBTAINED UNDER THE RIGHT TO INFORMATION ACT.** - **Exhibit P20 TRUE COPY OF THE OFFICE MEMORANDUM VIDE NO. 450420/2021/VIGILANCE DATED 14.07.2021 OF THE 2ND RESPONDENT.** - **Exhibit P21 TRUE COPY OF THE MEMO OF CHARGES F.NO.C 13019/40/2016/VIG DATED 26.07.2021 ISSUED BY THE 1ST RESPONDENT.** **Exhibit P22 TRUE COPY OF THE RELEVANT EXTRACT OF** **WP(C) NO. 21500 OF 2021** **16** **THE VIGILANCE MANUAL 2017 PUBLISHED BY THE CENTRAL VIGILANCE COMMISSION,** **Exhibit P23 TRUE COPY OF THE CIRCULAR NO. 10/06/21 DATED 23.06.2021 ISSUED BY THE 3RD RESPONDENT.** - **Exhibit P24 TRUE COPY OF THE CIRCULAR/OFFICE ORDER VIDE NO.13/10/20 DATED 01.10.2020 PUBLISHED BY THE 2ND RESPONDENT.** - **Exhibit P25 TRUE COPY OF THE WRITTEN REPLY TO EXT.P21 SUBMITTED BY THE PETITIONER ON 05.08.2021 BEFORE THE COMPETENT AUTHORITY REQUESTING TO WITHDRAW/DROP THE ACTION.** - **Exhibit P26 TRUE COPY OF THE MEMO VIDE NO. EM-2ULTRA TECH.CVO REPORT/2016 DATED 28.10.2016 ISSUED BY THE PORT TRUST TO THE PETITIONER.** - **Exhibit P27 TRUE COPY OF THE LETTER DATED 24.11.2016 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY OF THE PORT TRUST.** **Exhibit P28 TRUE COPY OF THE ORDER VIDE NO RC 07(A)/2020/CBI/ACB/COCHIN DATED 4.2.2022 OF THE SPL. JUDGE (SPE/CBI)-1 ERNAKULAM** - **Exhibit P29 TRUE COPY OF THE LAND RESTORATION ORDER/LETTER NO. EM2/1/66/L&T/2001 DATED 18/02/2009 ISSUED BY THE SECRETARY TO THE UTRA TECH CEMENT LTD.** - **Exhibit P30 TRUE COPY OF THE LIST OF DEFAULTERS** - **Exhibit P31 TRUE COPY OF THE PROCEEDINGS OF THE COCHIN PORT TRUST OF HEARING CONDUCTED ON 29/07/2021** - **Exhibit P32 TRUE COPY OF THE ANNUAL ACCOUNTS AND AUDIT REPORT THEREON FOR 2020-2021 WITH SCHEDULE ALONG WITH ACTION TAKEN NOTES ON AUDIT OBJECTIONS/OBSERVATIONS CONTAINED IN THE REPORT FOR THE YEAR 2020-2021 WITH ANNEXURES** **Exhibit P33** **TRUE COPY OF THE DIRECTION ISSUED ON 20.01.2023 BY THE CONTROLLING AUTHORITY TO THE PORT TRUST UNDER SECTION 7 OF THE PAYMENT OF GRATUITY ACT 1972** **WP(C) NO. 21500 OF 2021** **17** ## **RESPONDENTS ANNEXURES:** **ANNEXURE R1(a)** **TRUE COPY OF THE NOTICE DATED 23.03.2022 ISSUED BY THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972 TO THE 3RD RESPONDENT.** **Exhibit R3(a)** - **True copy of letter dated 18.04.2008 issued by Secretary, Cochin Port Trust** **Exhibit R3(b) True copy of relevant extract of the note sheets in the file respecting M/s. Ultra Tech Ltd** **Exhibit R3(c) True copy of letter dated 09.05.2005 issued by Secretary, Cochin Port Trust** **Exhibit R3(d)** - **True copy of Letter dated 19.12.2005 issued by Secretary, Cochin Port Trust** **Exhibit R3(e) True copy of Letter dated 14.03.2006 issued by Secretary, Cochin Port Trust** - **Exhibit R3(f) True copy of Letter No. EM2 L 66 L and T 2001 dated 06.10.2007 issued to M/s. L and T Ltd** **Exhibit R3(g) True extract of Note sheets wherein petitioner has put up the proposal** **Exhibit R3(h) True copy of the handing over/taking over statement dated 04.05.2001 Exhibit R3(i) A true copy of note sheet indicating placing proposal for extension before the Board** **Exhibit R3(j) A true copy of Board Resolution No. 135 dated 23.12.2011** **Exhibit R3(k) True copy of the P14 entire note** **Exhibit R3(l)** **A true copy of the Counter Affidavit dated 07.06.2008, signed by the petitioner and filed on behalf of the Cochin Port Trust, in W.P(C) No. 14137 of 2008** **TRUE COPY** **P.A TO JUDGE** **LSN**