K.C. Suresh v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941** ## **WP(C).No.11834 of 2016** ## **PETITIONER/S:** **K.C.SURESH AGED 61 YEARS (STAFF NO.3158), S/O. K.N. CHATHUNNY, HYDROGRAPHIC SURVEYOR, MARINE DEPARTMENT, (IN WORKING ARRANGEMENT WITH CIVIL ENGINEERING DEPARTMENT), COCHIN PORT TRUST, COCHIN - 9, NOW RESIDING AT TC-42/94, 'JEEVA' KOTTIYATTIL HOUSE, NEAR SARANGI, KOORKENCHERY (P.O.), THRISSUR PIN - 680007. BY ADV. SRI.K.RAVI (PARIYARATH)** ## **RESPONDENT/S:** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY SECRETARY, MINISTRY OF**| ||**SHIPPING/SURFACE TRANSPORT,**| ||**TRANSPORT BHAVAN, NEW DELHI - 110001.**| |**2**|**THE DEPUTY SECRETARY,**| ||**MINISTRY OF SHIPPING, PARIVAHAN, BHAVAN - I,**| ||**PARLIAMENT STREET, NEW DELHI - 110001.**| |**3**|**THE CHAIRMAN,**| ||**COCHIN PORT TRUST, COCHIN - 682009.**| ||**BY ADVS.**| ||**SRI.B.RAMACHANDRAN, CGC**| ||**SMT.LATHA ANAND**| ||**SRI.B.RAMACHANDRAN CGC**| ||**SRI.K.ANAND (SR.)**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.11834 of 2016 2** ## **JUDGMENT** This writ petition is filed challenging Ext.P9 order of dismissal from service served on the petitioner as also Ext.P11 order passed by the Central Government in appeal. The petitioner, who was working as Hydrographic Surveyor in the Cochin Port Trust, had been kept under suspension by Ext.P1 dated 07.02.2013. It is stated in Ext.P1 order of suspension that disciplinary proceedings are contemplated against the petitioner in terms of the Cochin Port Employees (Classification, Control and Appeal) Regulations, 1964. 2. The learned counsel for the petitioner would contend that Ext.P2 complaint submitted by an employee against whom the petitioner is alleged to have committed an act of assault on 05.02.2013 is the basis for disciplinary action against the petitioner. It is stated that Ext.P2 complaint refers to an assault committed by the petitioner on a complainant Sri. T.A. Kunjumohammed at 14:15 hours on 05.02.2013. It is stated that the incident took place in the toilet attached to the Hydrographic Survey Sub Division, under the Marine Department of the Cochin Port Trust. The learned counsel for the petitioner submits that the allegation in Ext.P2 is to the effect that the petitioner had come into the toilet where the complainant was washing his face and locked the door and ## **WP(C).No.11834 of 2016 3** assaulted him by fisting him in the face and later kicking him on his chest and abdomen. It is stated that the complainant cried out and one worker namely, M.K.Vasudevan intervened and defended the complainant. It is further stated in Ext.P2 that other employees named in the complaint had also come to the site and the complainant was moved to the Port Trust Hospital. The learned counsel for the petitioner submits that after treatment as evidenced by Ext.P3, the complainant did not take up the matter any further and no police complaint was filed. Thereafter, Ext.P4 Memorandum of Charges dated 13.3.2013 along with statement of allegation had been issued to the petitioner. The petitioner submitted Ext.P5 reply stating that the complainant Sri. T.A.Kunjumohammed had assaulted the petitioner in the toilet and the petitioner was only trying to defend himself. Thereafter, an enquiry was conducted. Ext.P6 is the report of the presenting officer in the enquiry. The petitioner contends that the version given by the witnesses was different from the one as projected in Ext.P2 complaint. It is stated that thereafter, Ext.P7 notice dated 04.01.2014 was issued to the petitioner enclosing a copy of the enquiry report and stating that the disciplinary authority agrees with the findings of the report. The petitioner was required to make representation/submission on ## **WP(C).No.11834 of 2016 4** the report. The learned counsel for the petitioner would contend that this procedure itself was irregular, since the petitioner was entitled to an opportunity to submit his objections before the enquiry report was accepted by the disciplinary authority. It is stated that the findings in the enquiry report were erroneous in the sense that hearsay evidence had been taken into account to find the petitioner guilty. The petitioner submitted Ext.P8 representation stating that he had been denied an opportunity to place his objections to the enquiry report before the disciplinary authority decided to accept the same. It is stated that there were malafide intentions behind the complaint as well as the enquiry against the petitioner. It is also stated that since enquiry report had already been accepted by the disciplinary authority there would be no point in the petitioner attempting to controvert the findings. 3. The matter was considered thereafter by the disciplinary authority and the petitioner was heard in person. Ext.P9 is the order issued. After considering the contentions raised by the petitioner with regard to the receipt of the report of the enquiry, the disciplinary authority found that copy of the report had been duly forwarded to the petitioner on 04.01.2014. Referring to the provisions in Cochin Port Employees (Classification, Control and ## **WP(C).No.11834 of 2016 5** Appeal) Regulations, 1964, it was found that the tentative agreement with the findings of the enquiry is in consonance with the specific provisions of the Regulations and that the contention that the petitioner had been denied an opportunity was completely unjustified. The contention of the petitioner as against the procedural errors in the conduct of the enquiry as also as to the acceptance of the evidence adduced has been considered in detail in Ext.P9. After considering the contentions advanced, disciplinary authority found that the misconduct charged against the petitioner stood proved. It was found that the physical assault committed by him was totally unbecoming of the officer in his capacity as a responsible officer of the Board and the penalty of dismissal from service, which shall be a disqualification for future employment, was decided to be imposed on the petitioner. 4. The petitioner submitted Ext.P10, which is a statutory appeal in terms of the Regulations. Apart from the question of non supply of the enquiry report before the findings were accepted by the disciplinary authority and the acceptance of hearsay evidence by the enquiry officer, the petitioner had specifically raised the issue of proportionality of the punishment. In Ext.P10 appeal, the petitioner had specifically stated that in the absence of evidence of ## **WP(C).No.11834 of 2016 6** any delinquency, the imposition of penalty of dismissal was not justified and that the penalty awarded is highly disproportionate. The appeal was considered by the Central Government and Ext.P11 order was passed. The issue of irregularity in not having served a copy of the enquiry report before the disciplinary authority accepted the findings thereon was specifically dealt with by the appellate authority. The issue of adequacy of evidence in the enquiry to find the petitioner guilty was also dealt with in Ext.P11. So also the allegation of malafides raised by the petitioner was also considered and found against him. However, the question of proportionality raised by the petitioner has not been considered in Ext.P11. 5. The learned counsel for the petitioner would submit that the petitioner was entitled to a copy of the enquiry report before the findings therein were accepted by the disciplinary authority. The learned counsel for the petitioner place reliance on the decision of the Apex Court in **Managing Director, ECIL, Hyderabad and Others v. B.Karunakar and Others [(1993) 4 SCC 727]** to contend that the initial complaint preferred by the complainant as evident from Ext.P2 is different from what is sought to be proved against the petitioner in the enquiry. It is further contended that in ## **WP(C).No.11834 of 2016 7** view of the fact that the petitioner was a person who had rendered long years of service in the establishment with absolutely no record of any delinquency, the question whether the ultimate penalty of dismissal should have been imposed on the petitioner ought to have been considered in appeal by the Central Government. It is stated that since such a ground was specifically raised by the petitioner, the omission on the part of the statutory appellate authority to consider the same is vitiated in Ext.P11 order. 6. The learned counsel appearing for the Cochin Port Trust would contend that the petitioner has suffered no prejudice whatsoever by the fact that a copy of the enquiry report had been served on him only after tentatively accepting the findings of the enquiry. It is contended that the Cochin Port Employees (Classification, Control and Appeal) Regulations, 1964 specifically provides that on receipt of an enquiry report, the enquiry officer has to consider the same and enter a finding as to the acceptability or not of the same before further steps are taken and the delinquent employee is to be put on notice as to the penalty proposed as against him. It is stated that in view of the decision of the Apex Court in **Managing Director, ECIL, Hyderabad and Others v. B.Karunakar and Others [(1993) 4 SCC 727]** and ## **WP(C).No.11834 of 2016 8** later decisions in **Sarv U.P. Gramin Bank v. Manoj Kumar Sinha [AIR 2010 SC 2491** ] and **Uttarakhand Transport Corporation and Ors. V. Sukhveer Singh [AIR 2017 SC 5686],** the petitioner would have to plea and prove the prejudice caused to him by the non supply of enquiry report before a tentative finding is entered. It is stated that a reading of Ext.P9 would make it clear that the contentions raised by the petitioner as against the conduct of the enquiry as well as the findings in the enquiry have been considered specifically, in detail, and as such, no prejudice of whatever nature has been caused to the petitioner. 7. With regard to the issue as to whether the misconduct alleged has to be proved beyond a pale of doubt, the learned Standing Counsel would place reliance on the decisions of this Court in **State of Haryana v. Rattan Singh [AIR 1977 SC 1512** ] and **J.D. Jain v. Management of State Bank of India and another [1982 I L.L.J.54]** . It is contended that departmental proceedings are not in the nature of criminal trial and the principle with regard to proving the commission of offence without any pale of doubt is not practically possible to be followed in the case of such proceedings. It is stated that guilt need not be established even beyond reasonable doubt and proof of misconduct would be ## **WP(C).No.11834 of 2016 9** sufficient. It is stated that in the facts and circumstances of each case, the misconduct need be proved only by preponderance of probabilities and hearsay evidence would also be acceptable in such cases. It is contended that in the light of the misconduct proved against the petitioner, the penalty imposed cannot be said to be disproportionate. 8. The learned Central Government Counsel appearing for the respondents placed a statement on record contending that the contentions raised by the petitioner in Ext.P10 appeal have been considered while passing Ext.P11 order. 9. I have considered the contentions advanced. The initial contention of the petitioner is with regard to the discrepancy in Ext.P2 and the charges alleged against him. It appears from the materials placed on record that the incident complained of occurred on 05.02.2013. The petitioner was placed under suspension on 7.02.2013. Ext.P2 appears to be a complaint preferred by the complainant on 9.02.2013. The petitioner had been subjected to an enquiry on the basis of Ext.P4 Memo of Charges dated 13.03.2013. The charges against the petitioner are with regard to misconduct and misbehavior. The statement of allegations states that the petitioner had committed assault on Sri. Kunjumohammed, Senior ## **WP(C).No.11834 of 2016 10** Marine Surveyor, Hydrographic Survey Sub division in the toilet attached to the Hydrographic Survey Sub Division office of the Marine Department of the Port Trust. On the said memo of charges and statement of allegations, the petitioner's reply was considered and an enquiry was conducted. The petitioner appears to have been given all opportunity to controvert the allegations made against him. An examination of Ext.P7 would show that the petitioner had been given an opportunity to cross examine the witnesses, who were examined to prove the allegations. The contentions raised by the petitioner that the enquiry was vitiated does not appear to substantiated, in as much as the procedure followed in the conduct of disciplinary enquiry appears to have been followed in the instant case as well. 10. The further contentions of the petitioner that he had been denied an effective opportunity of raising his contentions as against the findings of enquiry before the said findings were accepted by the disciplinary authority also would not hold good in view of the decision of the Apex Court in **ECIL's case (Supra)** and later decisions which have been relied on by the respondents. It appears from Ext.P9 order that the contentions raised by the petitioner as against the findings in the enquiry as also the manner of conduct of ## **WP(C).No.11834 of 2016 11** enquiry and the standard of proof have been considered in detail in Ext.P9. The further allegations as to malafide also stand unsubstantiated and as such cannot vitiate the findings as contained in Ext.P9. 11. However, with regard to Ext.P11 appellate order, I find that the legal issues raised by the petitioner in his appeal have been dealt with in the appellate order except one. The petitioner has clearly raised the issue of proportionality of punishment. This issue does not seem to have been considered by the Central Government while passing Ext.P11 order. The petitioner contends that he had no history of any delinquency of any nature before the alleged incident. The petitioner has also attained the age of superannuation subsequent to his dismissal from service. Since the petitioner specifically raised a ground as to the nature and proportionality of the penalty imposed on him and since what is being considered was a statutory appeal in terms of Cochin Port Employees (Classification, Control and Appeal) Regulations, 1964, applicable to him, I am of the opinion that the said issue ought to have been specifically considered by the Central Government. The refusal to consider such contentions raised by the petitioner vitiates the appellate order to that extent. In the result, I am of the **WP(C).No.11834 of 2016 12** opinion that the issue of proportionality of the petitioner has to be reconsidered by the respondents with notice to all concerned. The appropriate officer of the 1[st] respondent shall consider the contention of the petitioner that the penalty imposed on the petitioner was highly disproportionate and shall render a finding on that issue. Orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. It is made clear that Exts.P9 and P11 are upheld in all other respects. The writ petition is ordered accordingly. **Sd/-** **ANU SIVARAMAN** **JUDGE** rmm **WP(C).No.11834 of 2016 13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER OF SUSPENSION ISSUED TO THE PETITIONER AT THE INSTANCE OF 3RD RESPONDENT, DATED 07.02.2013. EXHIBIT P2 TRUE COPY OF THE COMPLAINT PREFERRED AT THE INSTANCE OF SRI.T.A.KUNJUMOHAMMED AGAINST THE PETITIONER, DATED 09.02.2013.** **EXHIBIT P3 TRUE COPY OF THE O.P.BOOK, RAISED IN RESPECT OF SHRI.T.A. KUNJUMOHAMMED, BY THE COCHIN PORT TRUST HOSPITAL, DATED 11.02.2013.** **EXHIBIT P4 TRUE COPY OF THE MEMORANDUM OF CHARGES, ISSUED AT THE INSTANCE OF THE 3RD RESPONDENT TO THE PETITIONER DATED 13.03.2013.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER AGAINST THE MEMORANDUM OF CHARGES DATED 21.03.2013. EXHIBIT P6 TRUE COPY OF THE BRIEF REPORT SUBMITTED BY THE PRESENTING OFFICER BEFORE THE ENQUIRY OFFICER, DATED 29.07.2013.** **EXHIBIT P7 TRUE COPY OF THE ENQUIRY REPORT SUBMITTED AT THE INSTANCE OF THE ENQUIRY OFFICER DATED 27.12.2013. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER AGAINST THE ENQUIRY REPORT, DATED 15.01.2014.** **EXHIBIT P9 TRUE COPY OF THE FINAL ORDER PASSED AT THE INSTANCE OF 3RD RESPONDENT, DISMISSING THE PETITIONER FROM THE SERVICE, DATED 03.02.2014.** **EXHIBIT P10 TRUE COPY OF THE MEMORANDUM OF STATUTORY APPEAL PREFERRED AT THE INSTANCE OF THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 07.04.2014.** **WP(C).No.11834 of 2016 14** **EXHIBIT P11 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT CONFIRMING THE ORDER OF DISMISSAL PASSED BY THE 3RD RESPONDENT, DATED 08.02.2016. RESPONDENTS EXHIBITS NIL** ## **// TRUE COPY //** **PA. TO JUDGE**