K. J. Joseph v. Kerala State Warehousing Corporation and G. Mohandas

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 20TH DAY OF JANUARY 2016/30TH POUSHA, 1937 ## W.P.(C).No.28739 of 2005 (U) --------------------------------------------------- PETITIONER(S):- -------------------------- K.J.JOSEPH (FORMER REGIONAL MANAGER, KERALA STATE WAREHOUSSING CORPORATION), 10/491, KADAVIPARAMBIL, AMARAVATHI, KOCHI-682001. BY ADV. SRI.S.RADHAKRISHNAN. RESPONDENT(S):- ---------------------------- 1. KERALA STATE WAREHOUSING CORPORATION, REPRESENTED BY THE MANAGING DIRECTOR, KERALA STATE WAREHOUSING CORPORATION, KOCHI-16. ## 2. G.MOHANDAS, MANAGING DIRECTOR, KERALA STATE WAREHOUSSING CORPORATION, KOCHI-16. R1 BY ADVS. SRI.E.K.NANDAKUMAR [SENIOR ADVOCATE], SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH R1 BY ADV. SRI.N.D.PREMACHANDRAN, SC, KSWC. R1 BY ADV. SRI.MAJNU KOMATH, SC, K.S.W.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ## **W.P.(C) NO.28739 OF 2005-U** ## **APPENDIX** PETITIONER'S EXHIBITS:- ------------------------------------- EXT.P1 TRUE COPY OF THE LETTER DT.31.10.1980. EXT.P2 TRUE COPY OF THE EXTRACT OF THE BOARD RESOLUTION NO.2038 DATED 03.07.1995. EXT.P3 TRUE COPY OF THE MEMO NO.EST/KJJ/PF/1999-2000 DT.10.11.99. EXT.P4 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DT.27.12.1999. EXT.P5 TRUE COPY OF THE MEMO NO.KSWC/ADMN/DA 88/K.J./99-2000 DATED 19.02.2000. - EXT.P6 TRUE COPY OF THE DEFENSE VERSION SUBMITTED BY THE PETITIONER DATED 18.03.2000. - EXT.P7 TRUE COPY OF THE ENQUIRY REPORT. - EXT.P8 TRUE COPY OF THE ORDER NO.KSWC/ADMN/DA88/KJ/2002-03 DATED 09.09.2002. - EXT.P9 TRUE COPY OF THE ENGLISH VERSION OF THE MEMORANDUM OF APPEAL SUBMITTED BY THE PETITIONER ON 06.11.2002. - EXT.P10 TRUE COPY OF THE ORDER NO.KSWC/.ADMN/DA 88/KJ/2005-06 DATED 18.07.2005. - EXT.P11 TRUE COPY OF THE DETAILED CHART EXPLAINING BRIEFLY THE CHARGES, THE FINDING OF THE ENQUIRY OFFICER, FINDING OF THE DISCIPLINARY AUTHORITY AND THE CONCLUSIONS OF THE APPELLATE AUTHORITY. - EXT.P12 RTRUE COPY OF THE CIRCULAR NO.KSWC/ADMN/CIRCULAR/ 2001-02 DATED 29.10.2001. - EXT.P13 TRUE COPY OF THE LETTER DT.23.07.1999. EXT.P14 ORDER NO.KSWC/ADMN/T&P/2000-2001 DT.12.12.2000. EXT.P15 TRUE COPY OF THE 3 PAGES LETTER ORIGINALLY SENT BY THE PETITIONER DT.22.07.05. - EXT.P16 & 17 TRUE COPIES OF THE SIGNED ACQUITTANCE ROLE FOR PAYMENT PF CONTRIBUTION AND GSLIS. **- 2 -** **W.P.(C) NO.28739 OF 2005-U** - EXT.P18 TRUE COPY OF THE AGENDA NOTE. - EXT.P19 TRUE COPY OF THE MEMO NO.F/VIG./TA/2000-2001 DT.16.12.2000. ## RESPONDENT'S EXHIBITS:- --------------------------------------- - EXT.R1(A) TRUE COPY OF THE REQUEST OF THE PETITIONER DT.22.7.05 TO PAY HIS BENEFITS TOWARDS DA ARREARS, PROVIDENT FUND IN HIS CREDIT, GSLIS CONTRIBUTIONS ETC. - EXT.R1(B) TRUE COPY OF THE INTIMATION THESETTLEMENT HIS PF SENT BY THE 1ST RESPONDENT TO THE PETITIONER. - EXT.R1(C) TRUE COPY OF THE INTIMATION THE SETTLED HIS GSLIS SENT BY THE 1ST RESPONDENT TO THE PETITIONER. - EXT.R1(D) TRUE COPY OF THE MEMO OF CHARGES NO.EST.KJJ/PF/1999-2000 DT.10.11.99 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. - EXT.R1(E) TRUE COPY OF THE INFORMED TO THE PETITIONER VIDE LETTER DT.20.12.1999 THAT THE DATE SHOWN IN THE MEMO MAY BE READ AS 10.12.1999 ISTEAD OF 10.11.1999 SINCE IT IS A TYPING ERROR. - EXT.R1(F) TRUE COPY OF THE RELEVANT PORTION OF ENQUIRY REPORT (PAGE 39). - EXT.R1(G) TRUE COPY OF THE RELEVANT PAGES IN ENQUIRY REPORT IN PAGE NO.7 TO 12. - EXT.R1(H) TRUE COPY OF THE EXTRACT COPY OF THE BOARD RESOLUTION NO.2500, DT.20.07.2005. - EXT.R1(I) TRUE COPY OF THE FINDINGS OF THE APPELLATE AUTHORITY ON EACH CHARGES. - EXT.R1(J) TRUE COPY OF THE RULES OF CONDUCT FOR THE EMPLOYEES IN CHAPTER I RULE 20(5) OF THE 1ST RESPONDENT. - EXT.R1(K) TRUE COPY OF THE RULE 21(1) OF THE KERALA STATE WAREHOUSING CORPORATION GENERAL AND STAFF REGULATIONS 1963. vku/- [ true copy ] ## K. Vinod Chandran, J --------------------------------------- ## W.P.(C).No.28739 of 2005-U --------------------------------------Dated this the 20[th] day of January, 2016 ## **JUDGMENT** The petitioner, a Regional Manager in the respondent-Corporation, was dismissed from service, pursuant to disciplinary proceedings held on allegations of misconduct, of having left the headquarters without prior permission of the controlling authority. The petitioner contends that his work was much appreciated, as is evident from Exhibits P1 and P2; but the attitude of the superior officers became inimical, when he started appearing as an assisting officer/defense representative to aid and help defend the delinquent employees proceeded against, by the Corporation. 2. The petitioner was issued with a memo, alleging unauthorized absence from duty, as is evidenced at Exhibit P3. The dates of absence were detailed and it is seen that all these absences were, as seen from the remarks in the register maintained at the petitioner's headquarter; for attending inquires. It was alleged that the Managing Director, who issued the notice, WP(C) No.28739 of 2005 - 2 - had not summoned the petitioner to appear for any inquiry on the dates noticed therein and the absence without permission and without leave was alleged to be unauthorized. There was also an allegation of having marked attendance on two dates when there was also a noting of “Casual Leave” in the attendance register. The further allegation was with respect to two of his subordinates having applied for leave; but the applications not being considered at all; which were merely placed in the attendance register without rejecting or approving the leave. These subordinates were also seen to have marked attendance for the ½ day leave applied for by them on two separate dates. One of these subordinates had not marked attendance in the register for certain dates noticed in the memo; nor the petitioner, being the superior officer, marked her absence in the register. The further allegation is that when the Managing Director inspected the office on 24.11.1999, the petitioner was not present and also had not left any explanation for his absence. The breach of rules of conduct of the employees, enumerated in the Kerala State Warehousing Corporation Staff Regulations, 1963 [for brevity “Regulation”] was alleged; in addition - 3 - WP(C) No.28739 of 2005 to breach of declaration of fidelity and secrecy and violation of the terms of the agreement of appointment. 3. The petitioner gave a detailed explanation at Exhibit P4, wherein it was specifically contended that he had been posted as a defense representative in three departmental inquiries, against the employees of the Corporation. The Managing Director himself had given assent to such nomination and it was contended that the day-to-day inquiry proceedings of the Inquiry Officer in the respective inquiries would reveal that the petitioner was present and as defense representative, had been actively participating in the inquiry. The Managing Director having appointed an Inquiry Officer, Presenting Officer and Defense Representative, would not issue any further summons; and it is for the Inquiry Officer to summon the persons required to be participated in the inquiry. 4. The allegation with respect to the attendance register indicating “C.L.” on two days and also his presence; the petitioner contended that he had applied for Casual Leave and in anticipation of sanction, the same was marked in the register. However, before availing the leave the petitioner is said to have canceled the leave - 4 - WP(C) No.28739 of 2005 by way of a telegram and hence he was present on the said dates. The cancellation is said to have been indicated in the register, by an asterisk. Like explanation was given for the presence of the casual leave application of the two subordinate officers, of ½ day each. It was contended that the leave was not utilized by the said persons and hence, there was no need of either rejection or sanction. The leave applications merely happened to be in the register, since they were submitted but not availed, was the explanation. The blank space for several days in the attendance register with respect to one of the subordinate officers was stated to be so, since the Commuted Leave application for five days made by the said employee was pending sanction from the Head Office. The absence of the petitioner for one day when the Managing Director visited the premises was also explained as, by reason of the petitioner falling sick and being advised rest by the Doctor. 5. Unsatisfied with the explanation, the petitioner was issued with Exhibit P5 memo of charges, alleging unauthorized absence and various acts of indiscipline being violation of the numerous clauses in the Regulations on that count and having - 5 - WP(C) No.28739 of 2005 allowed the subordinate staff to act with total indiscipline and disregard of the Regulations applicable to the employees of the Corporation. The statement of allegations was issued along with the charge-sheet; to which explanation was given. The inquiry report is placed at Exhibit P7 of the records. The charges being numerous as enumerated from (a) to (m), need not be specifically referred to now, since all these were on the aforesaid allegations of unauthorized absence and failure to curb the indiscipline of the subordinate staff. The Inquiry Officer found that the falsification of documents at charge (e) and the violation of fidelity and secrecy made by the petitioner in the declaration as required by Section 36 of the Warehousing Corporation Act, 1962 at charge (m) were not proved. The Managing Director issued Exhibit P8 order of dismissal on the basis of the Inquiry Report and the decision taken by the Executive Committee at its 159[th] meeting. What is understood from Exhibit P8 is that the Executive committee is the disciplinary authority and the decision taken by the Executive Committee to dismiss the petitioner from service has been communicated by the Managing Director by way of Exhibit P8. WP(C) No.28739 of 2005 - 6 - 6. Pausing here for a moment, it has to be noticed that the jurisdiction of this Court, exercising judicial review under Article 226 of the Constitution while examining the sustainability of a punishment imposed by a disciplinary authority in inquiry proceedings, is circumscribed insofar as looking at the procedural irregularities in disciplinary proceedings and if found to have been carried out in absolute compliance with the principles of natural justice; the scope of interference is minimal and confined to considering whether the penalty imposed is so gross which tantamounts to being shockingly disproportionate. Definitely this Court could interfere also when the evidence adduced is totally insufficient to arrive at the conclusion of guilt and when extraneous considerations regulate the decision. But such an exercise cannot be to the extent of re-appreciating the evidence. Errors of law or procedural irregularities would definitely warrant interference but the jurisdiction is not an appellate one. 7. A reading of Exhibit P8 order issued by the Managing Director would indicate that there has been gross violation of principles of natural justice. At the outset, it has to be noticed that - 7 - WP(C) No.28739 of 2005 the inquiry report was considered by the Executive Committee and the decision to dismiss the delinquent officer was also taken by the Executive Committee. Exhibit P8 issued by the Managing Director can only be deemed to be the intimation of the decision of the Executive Committee and not the decision of the Managing Director. Exhibit P8 indicates that after the Inquiry Officer submitted his report and the Executive Committee, at its 159[th] meeting held on 26.07.2002, discussed the inquiry report in detail and accepted the report in toto. The Executive Committee also took a decision that the delinquent employee deserves severe punishment, for reason of he being a “habitual offender of office discipline and the Executive Committee decided to issue show cause notice for his dismissal from service” ( _sic_ ). Hence, the petitioner was not granted any opportunity to submit his explanation to the findings in the inquiry report. This is a violation of the principles of natural justice, as has been laid down in _**Managing Director, ECIL v. B. Karunakar**_ **[(1993) 4 SCC 727].** 8. The opportunity to represent against the findings in a disciplinary inquiry is a valuable right available to the delinquent - 8 - WP(C) No.28739 of 2005 officer, which cannot be ignored or arbitrarily bypassed. The aforesaid decision, relying on an earlier decision in _**Union of India v. Mohd. Ramzan Khan**_ **[(1991) 1 SCC 588]** considering the 42[nd] amendment to Article 311 of the Constitution of India, found that the amendment merely took away the opportunity to represent against the punishment imposed. Earlier while there were two opportunities to represent against the findings in the inquiry report and then against the proposed punishment, the latter was taken away while preserving the former. It was also noticed that even earlier these opportunities were fused into one and a delinquent employee was permitted to make objections against the findings and also the proposed punishment by one show cause notice itself. It was also noticed that even before the amendment,as a practice the disciplinary authorities accept tentatively the findings in an inquiry report and proposes a punishment and the delinquent employee was given one opportunity to represent against both. Even after the 42[nd] amendment, the valuable right to represent against the findings in the inquiry report and to object to the same by way of challenging the evidence, which forms the foundation of the finding, WP(C) No.28739 of 2005 - 9 - cannot be easily taken away. 9. Here, the Executive Committee accepted the inquiry report and decided to impose the punishment of dismissal and allowed an opportunity to represent only against the punishment. There was no opportunity afforded before the findings in the inquiry was examined, which is a violation of the principles of natural justice as laid down in the aforecited decisions. Further, it is also to be noticed that the personal hearing given to the delinquent employee even on the show cause notice, with respect to the punishment proposed, was afforded by the Managing Director while the decision itself was taken by the Executive Committee. Personal hearing is said to have been given on two days and the same was placed before the Executive Committee by the Managing Director. The reply is said to have been considered and found to be not satisfactory, in a cursory manner and resolved to confirm the punishment of dismissal. The order does not speak of any grounds raised by the petitioner against the inquiry report. This further indicates that the show cause notice was only in respect of the punishment proposed. WP(C) No.28739 of 2005 - 10 - 10. In addition, it has to be noticed that the Managing Director was specifically directed to abstain from participating in the meeting of the Board of Directors, which considered the appeal of the petitioner; by an order of this Court. Such an order is evident from Exhibit P10 itself. It was specifically recorded therein that the Managing Director did not take part in the deliberations. The petitioner was also given an opportunity to present his case before the Board in person and the Board has also examined the inquiry report. But, however, Exhibit P10 has been issued by the Managing Director. It is surprising that the Managing Director not having participated in the appeal proceedings, had issued the order in the appeal. Further the original order is also issued by the Managing Director. Hence, the appeal itself is rendered nugatory for the dual reason of both the proceedings at the initial stage and the appellate stage having been issued by the very same officer and the officer who issued the order in appeal being prohibited from participating in the appeal proceedings. 11. It is trite that when procedural irregularity is disclosed in inquiry proceedings, the Court’s hands would be tied in - 11 - WP(C) No.28739 of 2005 proceeding further and the matter would have to be remanded to the disciplinary authority for resumption of proceedings from the stage at which the defect occurred and direct resumption of proceedings. This Court would have done the same; but for the fact that the writ petition itself had been pending for ten years and the officer who was 53 years in the year 2005, would have normally retired at the age of 60 when he reached the age of superannuation, i.e., in 2012. Four years after the retirement no resumption of proceedings can be directed and one has also to notice that the mere pendency of the case for long ten years cannot prejudice either the delinquent employee or the employer. The employer herein is the Warehousing Corporation and it is a public body dealing with public money. This Court has a duty to ensure that there be caused no unnecessary loss of public exchequer for reason only of the procedural irregularities occasioned by the ignorance and callous indifference of superior officers entrusted with the task of managing the affairs of a public Company. Yet again the delinquent employee too had not taken up this ground at any earlier stage or even in this writ petition, that the - 12 - WP(C) No.28739 of 2005 ## procedure followed caused prejudice to him. 12. On such reasoning, this Court cannot but look into the proceedings of the inquiry, since the same has to be examined with respect to the charges leveled. Since there is no scope for re-appreciation of evidence, one has to merely look how the appellate authority, the Board, had understood the proceedings despite there being a procedural irregularity insofar as the Managing Director having issued the order. Each of the charges were listed out in Exhibit P10 appellate order. Charges (a), (d), (f), (g), (h) (k) and (l) were found to have been proved. The other charges were found to be not proved. 13. Charge (b) with respect to receipt of salary and allowances for the days on which the petitioner was unauthorizedly absent causing pecuniary loss, was found to be not proved. The charge, of the petitioner a Regional Manager, having not reported to the Head Office his absence and the absence of the subordinate staff alleged as (c), was found to be only a _bona fide_ omission. Falsification of official documents, leveled as charge (e) was found to be not proved even in the inquiry and the Board accepted such WP(C) No.28739 of 2005 - 13 - finding. Charge (i), of dereliction of duty, on the ground of absence of prior permission keep away from the headquarter, was found to be not proved on the reasoning that the petitioner was away on official duties. Clause (j) alleging failure to conduct periodical inspection was also found to have been not proved. The violation of fidelity and secrecy, alleged as clause (m), was found to have been not accepted even by the Inquiry Officer. 14. Charge (a) was found to be proved since the petitioner had not informed the controlling authority of his absence from headquarter; particularly since he was the Regional Manager. The allegation of abetment of indiscipline, alleged as charge (b) was found to be proved only to the extent that the petitioner ought to have ensured that there is no breach of discipline by the subordinates. Charge (f) with respect to violation of Clauses 20(2) and (5) of the Regulations, being the obligation to serve the Corporation faithfully and not to absent from duty without prior permission of the Managing Director, were found to have been proved. Violation of Clause (2) of the agreement, again leaving the headquarters without prior permission of the Managing Director, - 14 - WP(C) No.28739 of 2005 was found to be proved. Charge (h), being charge of negligence and indolence, also for not having prior permission, was found to be proved. Charges (k) and (l), being non-submission of tour programme and insubordination, on the very same issue of unauthorized absence, were found to have been proved. 15. What arises from the above discussion is that what has been found by the appellate authority is that the petitioner had attended the domestic inquiry as a defense representative, which was not intimated at the proper time to the Managing Director and obtained prior consent for such absence. There is no allegation raised as to the Managing Director having not sanctioned his appointment as a defense representative. There is also no attempt in the inquiry proceedings to produce the proceedings of the other inquiries, wherein the petitioner was a defense representative, to show that the petitioner had not been present on any particular day as defense representative in the other three inquiries. The allegations which stood proved, as found by the Board, are only with respect to his having not informed the Controlling Officer, when he was so absenting from the headquarters for reason of his having - 15 - WP(C) No.28739 of 2005 been appointed as a defense representative. 16. The appointment of a defense representative is also an obligation of the employer when the Regulations sanction such assistance to any delinquent employee. This is to ensure a fair procedure and afford any employee of the Corporation to have assistance of a person in whom he has confidence and who is a co-worker, who has knowledge of the working of the Corporation, the Rules and Regulations and the nature of duties to be carried on by each and all. The allegation with respect to having connived with the subordinate officers has also been sufficiently explained by the petitioner and these were found by the Board to be _bona fide_ omissions. 17. In such circumstance, one has to look at the law as to how the disciplinary authority has to exercise its discretion in imposing punishment against a delinquent employee and how the conflicting factors have to be borne in mind with due reference to the gravity of the offense, so as to ensure that an employee is imposed with a penalty which would act as a deterrent and ensure that no further dereliction on his part is caused, prejudicing the WP(C) No.28739 of 2005 - 16 - employer; the reigning consideration of which is the proportionality of the penalty imposed. 18. On the question of interference to be caused to the punishment imposed, the learned counsel for the petitioner has placed reliance on the following decisions: _**Bhagat Ram v. State of H.P.**_ **[AIR 1983 SC 454],** _**Director General, RPF v. Sai Babu**_ **[(2003) 4 SCC 331],** _**Dev Singh v. Punjab Tourism Development Corpn. Ltd.**_ **[(2003) 8 SCC 9]** and _**State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya**_ **[(2011) 4 SCC 584].** 19. _**Bhagat Ram**_ ( _supra_ ) was a case in which the Hon'ble Supreme Court found that there is clear violation of the principles of natural justice. The delinquent employee therein, being a Forest Guard, was not specifically told of his right to have a defense representative; an officer of the Department itself. It was considering the status of the delinquent employee, a Class-IV Government servant not having much educational qualification, that it was held that he was not afforded a proper opportunity to defend his case. However, the matter was not remanded back to the disciplinary authority for fresh consideration, since the Hon'ble WP(C) No.28739 of 2005 - 17 - Supreme Court found that the charges were only with respect to very minor infraction of duty, resulting in a trivial charge of negligence in performance of duty which also had not caused any loss to the Government. Hence, a punishment of withholding of two increments with future effect was made by the Hon'ble Supreme Court itself. 20. In _**Sai Babu**_ ( _supra_ ), the principle that a punishment imposed by the disciplinary authority should normally be not disturbed by a High Court or a Tribunal was reiterated; however, with the exception that the same is possible if the punishment is grossly or shockingly disproportionate. The factors which would govern such a consideration, being the nature of the charges proved, past conduct, penalty imposed earlier, nature of duties, etc. was also specifically noticed. In that case the High Court’s order interfering with the punishment was set aside only since relevant factors were not looked into. The matter was remanded to the High Court for fresh consideration. _**Dev Singh**_ ( _supra_ ) also specifically dealt with the proportionality of punishment and the scope of judicial review in causing interference to the order of the - 18 - WP(C) No.28739 of 2005 disciplinary authority. It was held that if the punishment imposed shocks the judicial conscience, then the Court could mould the relief. 21. _**Nemi Chand Nalwaya**_ ( _supra_ ) is a case in which a Bank employee was dismissed from service. It was held that, when considering whether the punishment of termination from service imposed upon a Bank employee is shockingly excessive or disproportionate to the gravity of proved misconduct, loss of confidence in employee is an important and relevant factor. The interference caused to the punishment by the High Court was set aside, since the High Court had not found that the guilt established in the inquiry was erroneous. 22. The learned counsel for the respondents would rely on a judgment dated 15.09.2015 in W.P.(C) No.6076 of 2010, wherein this Court (myself) has upheld the punishment imposed allegedly in a similar situation. The aforesaid case was also one in which one of the allegation was unauthorised absence, on a day in which the Chairman of the Corporation visited the Warehouse. The petitioner was an Assistant Manager having charge of the - 19 - WP(C) No.28739 of 2005 Warehouse. There was also an additional charge of the Warehouse having been infected with termites, which was alleged as a laxity on the part of the Assistant Manager in taking appropriate anti-termite measure. Therein, in the enquiry, it was found that the delinquent employee was absent when the Chairman visited the premises and had not obtained the permission of the controlling officer and had not noticed the reason for such absence in the movement register. The enquiry also revealved that there was tampering of records by the delinquent employee. It was in such circumstance that this Court refused to interfere with the punishment. The punishment imposed by the disciplinary authority was reversion for a period of five years, which was interfered with by the appellate authority by reducing the term to two years. It is to be noticed that the charges of misconduct alleged therein stood proved and the same was not of a technical nature. It involved unauthorised absence for no valid reason and laxity in carrying out the duties assigned. The punishment too was only reversion for two years. Herein, on a finding of bona fide omission, that too the reason for the absence being participation in a domestic enquiry against another employee, WP(C) No.28739 of 2005 - 20 - the punishment imposed was dismissal. 23. In the present case, though there were charges alleging loss caused to the Corporation, the same were found to have been not proved. Going by the appellate order, as discussed above, what stood proved against the employee was only the absence on certain days when he was attending an inquiry against another employee of the respondent-Corporation, as sanctioned by the Managing Director. The regulations of the Corporation definitely indicated that a Regional Manager when absent from his office, ought to inform the controlling authority about his absence. In this context, it is pertinent that the petitioner had a contention that there was no such practise, since in the particular instance of assisting a delinquent employee there was prior sanction from the Managing Director and it is only on the summons issued by the Inquiry Officer that the defense representative attends such inquiry. The petitioner also has produced Exhibit P12 Circular dated 29.10.2001, which directed that the officers in the rank of Deputy Managers and above should not act as Defense Assistants, since they are supposed to enforce discipline among the subordinate employees. While so WP(C) No.28739 of 2005 - 21 - ordering, it was also ordered that if appearance is sanctioned as a Defense Assistant and the same is necessitated, then the officer so appointed shall avail leave for the days of absence in addition to obtaining permission from the Managing Director. The absence alleged on the petitioner, as is indicated at Exhibit P3 memo dated 10.11.1999, were all prior to the said Circular. The Circular issued, probably, took into account the conduct of the petitioner also. The Circular lends credence to the contention of the petitioner that there was no practise of seeking prior permission or availing leave on the days on which an officer of the Corporation attends an inquiry against another employee as a defense representative. Further, in a similar circumstance in Exhibit P14 when a Regional Manager was found to be absenting from the office, she was transferred and posted to the Head Office of the Corporation with immediate effect. 24. Taking all the circumstances into consideration and the specific findings of the appellate authority, this Court can only find an omission on the part of the petitioner to inform the absence of the petitioner to the controlling officer. The said offense, cannot be said to be one warranting dismissal of the petitioner from WP(C) No.28739 of 2005 - 22 - service. Here, it is to be specifically noticed that there is no allegation made that on the days of absence of the petitioner there was no inquiry or that the petitioner did not participate as a defense representative. There is also no finding that any loss has been caused to the Corporation. The finding of the appellate authority too discloses only minor infractions, which were not of a serious nature and relating to omissions which did not have much bearing on the working of the Corporation, and did not also occasion any loss to the Corporation. In such circumstance, the punishment of dismissal; is found to be shockingly disproportionate to the gravity of the offense proved at the inquiry. 25. The penalty that could be imposed on a delinquent employee is evident from Exhibit R1(K). The punishment of dismissal has already been found to be disproportionate. Sub-clause (d) of clause 21 prescribes a penalty of reduction to a lower post in his permanent class or to a lower stage in his increment scale. The petitioner, during the alleged period, was working as a Regional Manager. The petitioner, as Regional Manager, has jurisdiction over the entire region and the - 23 - WP(C) No.28739 of 2005 responsibility conferred on the petitioner is definitely one warranting punishment for the charges proved at the inquiry as found by the appellate authority. Hence, the petitioner would be reduced to the next lower post in his permanent class and deemed to have continued till his retirement at the age of 60 years. The petitioner would be paid the entire pay and allowances due to him on the lower post, as if he had not been terminated. The petitioner's retirement benefits would also be computed on the basis of the last pay drawn and the same also paid to him. The writ petition stands allowed, modifying the punishment as above and directing payment of the afore-mentioned benefits within a period of four months from the date of receipt of a certified copy of this judgment. Parties are left to suffer their respective costs. ## **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]