High Court of KeralaSingle Judge2023-05-22Dismissed

K. Uma Devi and Narayana v. The High Court of Kerala represented by its Registrar (Subordinate Judiciary), Ernakulam, and Chief Judicial Magistrate, Kottayam

Case / Petition Number:WP(C) No. 175 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2023-05-22
Court Decision / Holding: The writ petition is devoid of any merit and is accordingly dismissed. The court held that though the enquiry report was not initially supplied by the enquiry officer, it was provided to the petitioner with the show cause notice, and the appellate proceedings complied with Rule 31. Relying on Managing Director, ECIL and Union of India v. Mohd. Ramzan Khan, the court found no sufficient grounds to intervene in the disciplinary orders, and distinguished Sudhakaran CB (Dr.) v. Cochin Educational Society on the facts.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

K. Uma Devi (Formerly Upper Division Clerk, Judicial First Class Magistrate's Court, Vaikom)
Narayana, South Gate P.O, Vaikom

Respondents

The High Court of Kerala represented by its Registrar (Subordinate, Judiciary), Ernakulam, Kochi - 682 031
Chief Judicial Magistrate, Kottayam - 686 001

Legal Representation & Advocates

Counsels for Petitioners

• S.P. Aravindakshan Pillay
• S.A. Anand
• K.A. Balan
• Peter Jose Christo
• N. Santha

Counsels for Respondents

• Sri. B. Unnikrishna Kaimal

Case Synopsis & Summary

This writ petition challenges disciplinary orders Exts. P9 and P11 by which the petitioner, then an Upper Division Clerk in charge of the Property and Records Section at the Vaikom Judicial First Class Magistrate Court, was dismissed from service following an enquiry. The facts trace a suspension under Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, after a memo dated 15.11.2006 alleging misappropriation of 34.55 grams of gold and Rs. 1,296 in CC No.186/93, and the destruction of the case file to avoid detection between 1990 and 1994. An enquiry officer conducted proceedings with seven prosecution witnesses and seventeen documents; the petitioner examined two witnesses. The enquiry report dated 25.06.2007 was supplied to the petitioner with a show cause notice, followed by personal hearing, and the punishment of dismissal was imposed. Statutory appeal under Rule 31, though filed, was dismissed (Ext. P11) on 12.11.2010. The petitioner contends that the enquiry report was not supplied by the enquiry officer and that the appellate process did not follow Rule 31; further, there is no cogent evidence of misappropriation and no handwriting expert was examined. The respondents dispute these points, arguing postings and management details. The court ultimately upholds the disciplinary orders, noting that copy of the enquiry report was provided with the show cause notice and that the appellate process complied with Rule 31, and relies on ECIL and Ramzan Khan while distinguishing Sudhakaran CB (Dr.) v. Cochin Educational Society. The petition is dismissed.

Provisions of Law Cited

Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 - Rule 10Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 - Rule 31

Submissions & Arguments

Contentions of Appellants / Petitioners

(i) Copy of the enquiry report was not supplied by the enquiry officer, contrary to the dictum in Managing Director, ECIL v. B. Karunakar and Others and to Sudhakaran CB (Dr.) v. Cochin Educational Society; (ii) the appellate authority did not follow complete Rule 31 procedure; (iii) lack of direct/cogent evidence regarding misappropriation and missing file, and no handwriting expert examined; (iv) witnesses were inconsistent and the prosecution failed to prove the charges.

Contentions of Respondents

The respondents argue that the petitioner was duly posted and responsible for the period in question, that the postings and duties were properly recorded, and that the charges were supported by an enquiry report, evidence, and proper proceedings; the appellate process was properly conducted and the evidence supports the findings.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Managing Director ECIL, Hyderabad and Others v. B. Karunakar and Others	1993 (4) SCC 727	Positive	Used to support the requirement to provide the enquiry report to an employee; cited as part of the governing principle for due process in disciplinary proceedings.
Union of India v. Mohd. Ramzan Khan	1991 (1) SCC 588	Positive	Cited to establish that a mandate to provide the enquiry report can exist even where statutory rules do not expressly provide for it.
Sudhakaran C.B. (Dr.) v. Cochin Educational Society and Another	2009 (1) KHC 685	Distinguished	Petitioner's reliance on this Division Bench decision was distinguished by the present case on the facts, particularly regarding furnishing the enquiry report with the show cause notice.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945 WP(C) NO. 175 OF 2011** ## **PETITIONER/S:** K.UMADEVI (FORMERLY UPPER DIVISION CLERK, JUDICIAL FIRST CLASS MAGISTRATE'S COURT, VAIKOM), NARAYANA, SOUTH GATE.P.O, VAIKOM. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA ## **RESPONDENT/S:** 1 THE HIGH COURT OF KERALA REPRESENTED BY ITS REGISTRAR (SUBORDINATE, JUDICIARY), ERNAKULAM, KOCHI - 682 031. 2 CHIEF JUDICIAL MAGISTRATE KOTTAYAM - 686 001. BY ADV SRI.B.UNNIKRISHNA KAIMAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 175 OF 2011** 2 ## J U D G M E N T The present writ petition is filed against the orders, Exts.P9 and P11, of the disciplinary authority as well as the appellate authority, whereby on the basis of the enquiry report, petitioner while working as Upper Division Clerk in charge of the Superintendent had been dismissed from service. 2. The facts relating to filing of the present writ petition, in brief, are that while working as Upper Division Clerk in Judicial First Class Magistrate's Court, Vaikkom, the petitioner was placed under suspension as envisaged under Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (hereinafter 'the Rules' for short) and was served with memo of charges dated 15.11.2006 on the allegation that while holding the charge of Property and Records Section and performing the additional charge of Junior Superintendent misappropriated 34.55 grams **WP(C) NO. 175 OF 2011** 3 of Gold and cash worth Rs.1,296/-, items in C.C.No.186/93 some time in 1993 and also destroyed the said case file and connected property list to avoid detection of the misdeed during the period from 1990 to 1994. 3. A detailed explanation dated 14.12.2006, Ext.P3, was submitted. Dissatisfied with the reply/explanation, Judicial First Class Magistrate, Vaikom was appointed as the enquiry officer. Before the enquiry officer, the prosecution examined seven witnesses and seventeen documents were marked, whereas the petitioner examined two witnesses, DW1 and DW2, and marked two exhibits, i.e. Exts.D1 and D2. On the preponderance of evidence, the enquiry officer filed a detailed report dated 25.6.2007. Copy of the enquiry report was supplied to the petitioner along with the show cause notice of the disciplinary authority, prima facie concurred with the findings of the enquiry officer and afforded opportunity to show cause and personal hearing. After having afforded the **WP(C) NO. 175 OF 2011** 4 opportunity of personal hearing, the punishment of dismissal had been imposed. Statutory appeal filed under Rule 31 of the Rules before the appellate authority was also dismissed by Ext.P11 order dated 12.11.2010. In these circumstances, the present writ petition has been filed. 4. Mr.Peter Jose Christo, the learned counsel appearing on behalf of the petitioner in support of the writ petition has placed the following contentions: (i) Copy of the enquiry report was not supplied to the petitioner by the enquiry officer, but for the first time given along with the show cause notice sent by the disciplinary authority, which is against the dictum laid down by the Constitution Bench of the Supreme Court in Managing Director, ECIL, Hyderabad and Others v. B.Karunakar and Others [(1993) 4 SCC 727 : AIR 1994 SC 1074] and the Division Bench of this Court in Sudhakaran C.B.(Dr.) v. Cochin Educational Society and Another [2009 (1) KHC 685] . **WP(C) NO. 175 OF 2011** 5 (ii) The appellate authority did not follow the complete procedure while dealing with an appeal as contemplated under Rule 31 of the Rules. (iii) There is no direct or cogent evidence with regard to the allegation of misappropriation and misplacement of the file and the management-prosecution did not examine any handwriting expert. (iv) The witnesses were not consistent and coherent and there were glaring ambiguities and inconsistencies. Hence, the prosecution miserably failed to prove the charges. 5. On the other hand, the learned counsel appearing on behalf of the respondents countered the arguments and submitted that the averment that the petitioner was not posted for the periods involved is wholly absurd and untenable. Detailed reply in this regard has been narrated in paragraph 16 of the counter giving date wise details with regard to posting and holding of charge of the Superintendent, which has not been countered by way 6 ## **WP(C) NO. 175 OF 2011** of any reply or rejoinder and thus the same is deemed to be admitted. 6. Petitioner failed to place on record the property of the case file in CC No.186/93, whereby the property of 34.55 grams of Gold and currency note worth Rs.1,296/- were in her custody. The petitioner was in charge of the Property Section at that time and had manipulated the documents. 7. The specific allegation was that there was interpolation in the register at the behest of the petitioner, which has not been discharged by giving direct and cogent evidence. 8. I have heard the learned counsel for the parties and appraised the paper book. 9. I am afraid that there is no force in the argument. In Managing Director, ECIL (supra), the Constitution Bench discussed the decision in Union of India v. Mohd. Ramzan Khan [1991 (1) SCC 588] , wherein it was found that even if the statutory rules did not envisage any provision for providing copy of the enquiry report, a mandate was issued to **WP(C) NO. 175 OF 2011** 7 provide enquiry report in respect of the employees in Government or non-Government or private or public sector. Here, copy of the enquiry report though was not supplied by the enquiry officer, but was given to the petitioner along with the show cause notice issued by the disciplinary authority. The petitioner is stated to have given a detailed explanation, but the said explanation was not supported by any cogent or direct material, except reiteration of the stand taken in the explanation submitted to the charge sheet. No plausible or cogent evidence had been given before the enquiry officer to form a different opinion to belie the allegation of misappropriation. There was an entry with regard to the other files sent to the Records Section, but as regards the file pertaining to CC No.186/93 concerned, there was no such entry. This caused a suspicion of misappropriation, which ultimately surfaced on the basis of the evidence recorded before the enquiry officer. This Court cannot re-appreciate the evidence of the enquiry **WP(C) NO. 175 OF 2011** 8 officer or the appellate authority, unless there is a glaring violation of the Rules. The appellate authority had also dealt with all the points raised by the petitioner in the appeal sufficing compliance of Rule 31 of the Rules. The writ petition is devoid of any merit and is accordingly dismissed. Sd/AMIT RAWAL JUDGE jg 9 ## **WP(C) NO. 175 OF 2011** ## APPENDIX ## PETITIONER'S EXHIBITS EXHIBIT P1: TRUE COPY OF THE ORDER NO.A951/2001 DATED 12.3.2001 OF THE CHIEF JUDICIAL MAGISTRATE, KOTTAYAM. EXHIBIT P2: TRUE COPY OF THE MEMO OF CHARGES NO.A.4722/04 DATED 15.11.2006 OF THE 2ND RESPONDENT WITH THE STATEMENT OF ALLEGATIONS APPENDED. EXHIBIT P3: TRUE COPY OF THE EXPLANATION DATED 14.12.2006 SUBMITTED BY THE PETITIONER TO EXT.P2. EXHIBIT P4: TRUE COPY OF THE ORDER NO.A.4722/2004 DATED 8.2.2007 OF THE 2ND RESPONDENT. EXHIBIT P5: TRUE COPY OF THE WRITTEN STATEMENT OF DEFENCE DATED 14.06.2007 SUBMITTED BY THE PETITIONER TO EXT.P4. EXHIBIT P6: TRUE COPY OF THE ENQUIRY REPORT. EXHIBIT P7: TRUE COPY OF THE SHOW CAUSE NOTICE NO. A- 4722/04 DATED 5.5.2008. EXHIBIT P8: TRUE COPY OF THE REPY DATED 16.5.2008 SUBMITTED BY THE PETITIONER TO EXT.P7. EXHIBIT P9: TRUE COPY OF THE ORDER NO.A-4722/ 2004 DATED 31.3.2010 OF THE 2ND RESPONDENT. EXHIBIT P10: TRUE COPY OF THE APPEAL DATED 7.5.2010 FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT. EXHIBIT P11: TRUE COPY OF THE ORDER NO.1-1- 37776/10 DATED 12.11.2010 OF THIS HON'BLE COURT.