Joseph John v. The Managing Director, Kerala State Ware Housing Corporation

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 WA.No. 390 of 2008 -------------------------AGAINST THE JUDGEMENT IN WPC.5430/2005 DATED 11/01/2008 .................... APPELLANT/PETITIONER IN WP(C): -------------------------------------------------- JOSEPH JOHN, KODIYATHE VEEDU, KAVUMGAGOM, THIRUVALLA-2, PATHANAMTHITTA DISTRICT. BY ADV. SRI.THAMPAN THOMAS ## RESPONDENTS/RESPONDENTS IN WP(C): ------------------------------------------------------------- 1. THE MANAGING DIRECTOR, KERALA STATE WARE HOUSING CORPORATION, HEAD OFFICE, ERNAKULAM, KOCHI-682016. 2. THE LABOUR COURT, QUILON. R1 BY ADV. SRI.MAJNU KOMATH, SC, K.S.W.C. R2 BY SR.GOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **H.L.DATTU, C.J. & K.M.JOSEPH, J.** ------------------------------------------ **W.A.No.390 of 2008** -----------------------------------------Dated, this the 15[th] day of February, 2008 ## **JUDGMENT** ## **H.L.Dattu, C.J.** Being aggrieved by the orders passed by the learned Single Judge in W.P.(C) No.5430 of 2005 dated 11[th] January, 2008, the petitioner in the writ petition is before us in this appeal. 2. For the purpose of disposal of this writ appeal, we will be referring to the parties in this proceedings as arrayed in the writ petition. 3. Petitioner at the relevant point of time was working as Superintendent of the State Warehouse at Chengannur. While in service he was issued with a charge memo, inter alia, alleging that he had misappropriated 625 bags of cement, 145.7 Kgs. of palmolein oil and 48.282 M.Ts. of rice which was entrusted with him and thereby has caused a pecuniary loss to the Corporation in a sum of Rs.2,18,130.40. The disciplinary authority after accepting the report of the enquiry officer has proceeded to pass an order dated 27.6.1988, dismissing the petitioner from the service of the Corporation. 4. Aggrieved by the order of dismissal so passed, the petitioner had raised an industrial dispute. The Labour Court after registering the claim made by the petitioner had directed notice to the employer. The employer has filed its counter claim. 5. Based on the pleadings, the Labour Court had framed three issues for its consideration and decision. Firstly, whether the enquiry that was conducted by the disciplinary authority of the Corporation is fair and proper, secondly, whether the order of dismissal passed by the disciplinary authority of the respondent Corporation is justified, and lastly, what is the relief that can be W.A.No.390 of 2008 2 granted to the dismissed workman. The Labour Court after holding that the enquiry that was conducted by the disciplinary authority was fair and proper has proceeded to give its findings on the merits of the case and has found that the Corporation was justified in dismissing the petitioner from the service of the Corporation, who was working as Superintendent of the State Warehouse at Chengannur. In its findings, the Labour Court has also taken note of the fact that the petitioner for the reasons best known did not participate in the enquiry though he was given sufficient opportunity by the employer. 6. In view of the aforesaid finding, the Labour Court has passed Ext.P6 award. 7. Aggrieved by the said award passed by the Labour Court, the petitioner was before this Court in the writ petition. 8. In the writ petition it was contended that criminal prosecution has been launched against the petitioner on the very same set of facts and the learned Magistrate has acquitted the petitioner not on the benefit of doubt but after entering a clear finding that the petitioner was not guilty of any of the charges, and therefore, the Labour Court was not justified in sustaining the order passed by the disciplinary authority. 9. The learned Single Judge after noticing the contentions canvassed and also referring to the observations made by the apex Court on which reliance was placed by the learned counsel for the petitioner, has come to the conclusion that the order of acquittal that was passed by the learned Magistrate was only on the benefit of doubt and the petitioner was not acquitted honourably. Further, the learned Judge has noted that the prosecution has failed to prove its case. The learned Judge has further observed that the W.A.No.390 of 2008 3 order passed by the disciplinary authority was of the year 1988 and the judgment of the criminal court was only in the year 1992 and therefore, there was no reason for the disciplinary authority after the orders were passed by the criminal court to modify its earlier order. The learned Judge has also relied upon several decisions of the apex Court to arrive at the conclusion that merely because the criminal court has acquitted the petitioner, he is not entitled to review of the orders passed by the disciplinary authority. 10. Aggrieved by the findings and conclusions reached by the learned Single Judge, the petitioner is before us in this writ appeal. 11. Sri.Thampan Thomas, learned senior counsel appearing for the petitioner, would submit that the facts situation of the present case is identical with the case that was considered by the apex Court in the case of _Capt.M.Paul Anthony_ v. _Bharat Gold Mines Ltd. and another_ (AIR 1999 SC 1416) and therefore the learned Single Judge is not justified in rejecting the writ petition. 12. Before the apex Court, the primary issue that came up for consideration was, whether departmental proceedings and proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously. While answering the aforesaid issue, the Apex Court has observed: _“Proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many such as enforcement of a discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the_ W.A.No.390 of 2008 4 _charges have to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.”_ ## The Court has further observed: _“The conclusions which are deducible from various decisions of the Supreme Court are: (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed the departmental proceedings even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.”_ 13. In our view, the decision on which reliance was placed will not assist the petitioner in any manner whatsoever. 14. In the instant case, the charge against the petitioner is that he has misappropriated the funds of the Corporation which would amount to misconduct. It is on the basis of an enquiry that was held against the petitioner, the enquiry officer had found the petitioner guilty of the charges W.A.No.390 of 2008 5 alleged in the charge memo. The proceedings of the disciplinary authority were again the subject matter before the Labour Court. After hearing the parties concerned, the Labour Court has also come to the conclusion that the disciplinary authority of the respondent Corporation was justified in imposing the major penalty of dismissal of the petitioner from the service of the Corporation for the proved misconduct, namely misappropriation of the funds of the Corporation. 15. Before the Magistrate's Court, the offences that were alleged against the delinquent officer were under Section 409 read with Section 34 of the Indian Penal Code and also under Section 5(2) read with Section 5(1)(c) and (d) of the Prevention of Corruption Act, 1947. The learned Magistrate after completion of the proceedings has exonerated the accused by giving him the benefit of doubt. Further, the learned Magistrate has observed that though the accused has been acquitted, the concerned department should look into the question whether the accused is liable to be proceeded against departmentally for dereliction of duty. 16. In our opinion, the decision of the apex Court cannot be applied in the present case for the reason that the allegations in the charge memo against the petitioner/delinquent officer was misconduct by way of misappropriation of the funds of the Corporation, or in the alternative, for causing pecuniary loss to the Corporation. The charges for which the delinquent officer was tried before the criminal court were for offences under Section 409 read with Section 34 of the Indian Penal Code and also under Section 5(2) read with Section 5(1)(c) and (d) of the Prevention of Corruption Act. The allegations in the charge memo and the allegations made before the criminal court were totally different. W.A.No.390 of 2008 6 Secondly, as we have already noticed, the Supreme Court came to the rescue of the delinquent officer only because an ex parte enquiry was held by the employer without paying the subsistence allowance to the delinquent officer. In fact, the Supreme Court in the said decision in too many places has stated that in the peculiar facts and circumstances of that case, the order passed by the criminal court should have been taken note of by the disciplinary authority of the respondent organisation to grant some benefit to the delinquent officer. 17. In the instant case, the disciplinary authority had issued a charge memo, inter alia, alleging that the petitioner has committed an act of misconduct by misappropriating the funds of the Corporation. The enquiry officer who was appointed to enquire into those charges has found that the petitioner is guilty of the charges alleged in the charge memo and thereby has given a report that the charges alleged against him are proved. Accepting the report of the enquiry officer, the disciplinary authority taking into consideration that the charges alleged against the petitioner are serious in nature, has proceeded to impose the major penalty of dismissal of the petitioner from the service of the Corporation. The Labour Court, at the instance of the delinquent officer, after going through the entire evidence on record has come to the conclusion that, the disciplinary authority was justified in passing an order dismissing the petitioner from the service of the Corporation. Having noticed all these contentions, the learned Single Judge has come to the conclusion that the petitioner is not entitled to any of the reliefs sought in the writ petition. 18. After going through the orders passed by the learned Single Judge and the award passed by the Labour Court, we are of the opinion, that the petitioner is not entitled to the relief sought for in this writ appeal. Accordingly 7 W.A.No.390 of 2008 the writ appeal requires to be rejected and it is rejected. However, in the peculiar facts and circumstances of the case, the parties are directed to bear their own costs. Ordered accordingly. ( **H.L.DATTU) CHIEF JUSTICE** **(K.M.JOSEPH) JUDGE** vns/DK