K.K. Syam v State of Kerala & The Chairman, S.N. Polytechnic College, Kottayam, Kollam v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** ## **WP(C).No.2050 of 2018** ## **PETITIONER:** **K.K.SYAM AGED 54 YEARS TRADE INSTRUCTOR(RETIRED), S.N.POLYTECHNIC COLLEGE,KOTTIYAM, KOLLAM.** **BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA KUM.THULASI K. RAJ SRI.VARUN C.VIJAY** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,DEPARTMENT OF TECHNICAL EDUCATION, SECRETARIAT,THIRUVANANTHAPURAM -695001.** - **2 DIRECTOR OF TECHNICAL EDUCATION THIRUVANANTHAPURAM-695001.** - **3 THE GOVERNING BODY S.N TRUST POLYTECHNIC COLLEGE, KOTTIYAM,KOLLAM.691571, REPRESENTED BY ITS CHAIRMAN.** - **4 VELLAPALLY NATESAN CHAIRMAN, GOVERNING BODY, S.N TRUST POLYTECHNIC COLLEGE, KOTTIYAM, KOLLAM.691571.** - **5 SHENAJI C/O KOLLAM BAR ASSOCIATION, KOLLAM.691001.** - **6 THE PRINCIPAL S.N POLYTECHNIC COLLEGE, KOTTIYAM, KOLLAM-691571. BY ADVS. SRI.A.R.EASWAR LAL** W.P.(C) Nos.2050 & 7661 of 2018 2 **SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN (MVA) SRI.N.C.SUNIL NATH - G.P** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.06.2019, ALONG WITH WP(C).7661/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.2050 & 7661 of 2018 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** ## **WP(C).No.7661 of 2018** ## **PETITIONER:** **THE CHAIRMAN S.N. POLYTECHNIC COLLEGE,KOTTIYAM, KOLLAM-691371 BY ADV. SRI.A.N.RAJAN BABU** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY,HIGHER EDUCATION (L)**| ||**DEPARTMENT,GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001**| |**2**|**DIRECTOR OF TECHNICAL EDUCATION**| ||**THIRUVANANTHAPURAM-695001**| |**3**|**SENIOR ADMINISTRATIVE OFFICER**| ||**OFFICE OF DIRECTOR OF TECHNICAL**| ||**EDUCATION,THIRUVANANTHAPURAM-695001**| |**4**|**K.K.SHYAM**| ||**TRADE INDUSTRIES, S.N. POLYTECHNIC COLLEGE,**| ||**KOTTAYAM-691371**| |**5**|**JOY.S.**| ||**ENERGY OFFICER, SENIOR ADMINISTRATIVE**| ||**OFFICER,OFFICE OF DIRECTOR OF TECHNICAL**| ||**EDUCATION(CIVIL),THIRUVANANTHAPURAM-695001**| ||**BY ADVS.**| ||**SRI.N.C.SUNIL NATH - G.P**| ||**SRI.KALEESWARAM RAJ**| ||**KUM.A.ARUNA**| ||**KUM.THULASI K. RAJ**| W.P.(C) Nos.2050 & 7661 of 2018 4 **SMT.RIYA RAYMOL IYPE SRI.VARUN C.VIJAY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.06.2019, ALONG WITH WP(C).2050/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.2050 & 7661 of 2018 5 ## **JUDGMENT** ## **Arun, J** These Writ Petitions are filed challenging the Government Order (GO(Rt)No.1988/2017/H.Edn.) dated 3.11.2017. By the order impugned in these writ petitions, the Government allowed the appeal filed by the delinquent employee against the punishment of dismissal from service imposed on him, set aside the enquiry conducted by the Management and directed a fresh enquiry to be conducted. Aggrieved by the Government order, in so far as it directs de novo enquiry, the delinquent employee has filed W.P(C) No.2050 of 2018. The Management has filed WP(C) No.7661 of 2018 seeking to quash the Government Order in its entirety. 2. The essential facts leading up to the filing of the Writ Petitions are narrated hereunder. For the purpose of convenience, the parties are referred to as per their status in WP(C) No.2050 of 2018. The petitioner had entered the service of the W.P.(C) Nos.2050 & 7661 of 2018 6 S.N.Trust Polytechnic College(herein after called the College) as Tradesman in the year 1997. He was promoted to the post of Trade Instructor (Plumbing) in the year 2006. While continuing as Trade Instructor, disciplinary proceedings was initiated against the petitioner by issuing him with a statement of allegations and memo of charges dated 28.6.2013. In the memo of charges it was alleged that, on 8.1.2013, the petitioner had manhandled one D.Sajeevan, working as Trade Instructor (Civil) at the college, as a result of which Sajeevan sustained injuries and had to be hospitalized. That, based on Sajeevan's complaint, Crime No.66 of 2013 for offences under Sections 341, 294, and 323 IPC was registered against the petitioner at the Kottiyam Police Station. That on 8.1.2013, the petitioner, in an inebriated state had abused the Principal of the College inside his room and had also abused the Office Superintendent, created unruly scene outside the office and had left the College without permission by around 2.20 p.m. Not being satisfied with the written statement submitted by the petitioner in reply to the memo of charges and statement of allegations, the W.P.(C) Nos.2050 & 7661 of 2018 7 Management conducted a formal enquiry, in which the petitioner was found guilty of all the charges. Based on the findings in the enquiry report, the disciplinary authority imposed the petitioner with the punishment of dismissal from service. The petitioner challenged the order of dismissal in appeal, which ultimately resulted in the Government Order under challenge in these Writ Petitions. 3. The Government, after a detailed consideration of all relevant materials, found that the punishment imposed is disproportionate to the charges levelled against the petitioner. It was also found that there was procedural violation inasmuch as the requirement of obtaining previous sanction of the Director of Technical Education before imposing the punishment of dismissal from service, contemplated under Rule 36 of the Kerala Technical Education (Private Engineering Colleges/Polytechnics) Service Rules, 1975 (herein after called the 'Rules') was not strictly adhered to. The Government also found that the enquiry was vitiated for violation of the principles of natural justice for the reason that the Enquiry Officer was a member of the Management W.P.(C) Nos.2050 & 7661 of 2018 8 Trust to which the College belonged and for the reason that appointment of the Enquiry Officer was contrary to the procedure prescribed under Rule 37(2) of the Rules. On a consideration of the chronological order of events the Government came to the conclusion that there existed every reason to believe that the applicant had been subjected to series of hardships inflicted upon him by the Management of the College, which included delaying of declaration of probation, refusal to grant leave, nondisbursal of salary, disciplinary action and punishment of barring of increment etc. The Government found that there was no substantial evidence to prove that the employee is a habitual offender. 4. The Management has assailed the aforementioned findings of the Government on various grounds. Therefore, the sustainability of the findings have to be examined. As per Rule 37(2) of the Rules a formal enquiry has to be conducted if the disciplinary authority is satisfied, after receipt of written statement from the delinquent employee in reply to the statement of allegations, that such enquiry ought to be conducted. The W.P.(C) Nos.2050 & 7661 of 2018 9 authority conducting the formal enquiry may be (i) the Principal in the case of persons of and below the rank of Lecturer and (ii) the Manager in case of officers of and above the rank of Assistant Professor, excepting the Principal; (iii) the Director in the case of persons holding the post of Principal or (iv) any officer of the department appointed by the Director or the Government. The petitioner being an employee below the rank of Lecturer, enquiry ought to have been conducted by the Principal under normal circumstances. But as the Principal was a witness in the enquiry, it was not proper for him to conduct the enquiry. In such circumstances, it was imperative for the management to have the enquiry conducted by an officer of the Department appointed by the Director or the Government. Instead, the management appointed a person of their choice, that too a member of the Trust under which the College is functioning. Therefore, the Government was fully justified in finding that the enquiry was not conducted by a proper person. ## 5. Rule 36(6) mandate that the penalty of W.P.(C) Nos.2050 & 7661 of 2018 10 compulsory retirement, removal or dismissal from service shall be imposed by the Manager only with the previous sanction of the Director. It is pertinent to note that as against the order imposing punishment the petitioner had filed an appeal before the Director of Technical Education. The appeal was not entertained for the reason that the order removing the petitioner from service was approved by the Director under the Direct Payment Scheme. The Management has a specific contention that the punishment was imposed by order dated 25.03.2015 after obtaining the Director's sanction as per order dated 18.03.2015. Neither the Director nor the management had a case that sanction was accorded after considering all relevant materials, including the enquiry report. The requirement of obtaining prior sanction before imposition of a major penalty is an inbuilt safeguard to ensure that employees are not victimized and the proceedings, up to the decision to impose penalty, is conducted in a fair and just manner. Therefore it was imperative for the Director to have accorded sanction only after arriving at such satisfaction, on a consideration of the materials placed before him. W.P.(C) Nos.2050 & 7661 of 2018 11 Hence, it is evident that there is violation of the mandatory requirement envisaged under Rule 36(6) of the Rules. The Government is also correct in its finding that there was complete non-application of mind on the part of the Director even after imposition of the punishment, since the approval granted by the Director for the punishment of dismissal from service imposed on the petitioner, even in the Direct Payment Scheme, was without considering all relevant materials. 6. As far as the finding of the Government that no opportunity was granted to the petitioner to crossexamine MW1, the contention of the management is that in spite of the Enquiry Officer having issued a letter dated 22.2.2014, requesting the petitioner to cross-examine the management witnesses including MW1, the petitioner did not cross examine MW1. If that be the case the finding in the impugned order that the petitioner was not provided with an opportunity of cross-examination cannot be sustained. 7. The Government also found that the punishment of dismissal from service is grossly W.P.(C) Nos.2050 & 7661 of 2018 12 disproportionate to the charges levelled. This finding was arrived at, primarily for the reason that the petitioner was yet to be convicted based on the crime registered against him on the complaint of D.Sajeevan. It was also found that the petitioner had successfully demonstrated the manner in which he was being victimized by the management. From the totality of the circumstances and the reasons stated in the impugned order, the finding of the Government with respect to proportionality of punishment and illegality of the enquiry and consequential imposition of punishment cannot be faulted. 8. The only other question that remains to be considered is as to whether the Government was right in directing a fresh enquiry to be conducted. While considering this question, the fact that the petitioner attained the age of superannuation on 29.10.2017 and would have retired, in the normal course, on 31.03.2018, assumes importance. After having found that the punishment imposed on the petitioner is disproportionate, whether the petitioner should be forced to undergo the trauma of a fresh enquiry after superannuation, is the ## W.P.(C) Nos.2050 & 7661 of 2018 13 moot question. Sri.Kaleeswaram Raj, the learned counsel for the petitioner submitted that the petitioner is willing to accept any punishment other than dismissal/removal from service, including compulsory retirement. It was contended that though under normal circumstances a _de novo_ enquiry has to be conducted on the enquiry report being set aside, such course of action is not an absolute requirement. The learned counsel relied on the decision of the Supreme Court in **Bhupinder Pal Singh v Director General of Civil Aviation and others (2003)3 SCC 633)** in support of his contention. In _**Bhupinder Pal Singh**_ 's case, the appellant, a check Pilot, was proceeded against by the employer alleging negligence while landing an aircraft. Pursuant to disciplinary proceedings the appellant was removed from the position of Check Pilot. The appellant challenged the order in a writ petition on the ground that the enquiry was conducted in violation of the principles of natural justice. That writ petition was withdrawn on the basis of a statement filed by the employer that it does not intend to act upon the enquiry report under challenge. Thereafter, without notice to the W.P.(C) Nos.2050 & 7661 of 2018 14 appellant, a second order was passed disqualifying him from continuing as Check Pilot. Again the appellant approached the High Court and even though the Court found that no opportunity was given to the appellant during the second enquiry, the Writ Petition was dismissed on the assumption that the enquiry was not in the nature of _de novo_ enquiry. In appeal, the employer contended that the appellant had already superannuated and hence the appeal itself has become infructuous. This argument was countered by the appellant contending that the position of Check Pilot was a matter of prestige and status and certain monetary benefits were attached to the said position. The Hon’ble Supreme Court found that the order by which the appellant was removed from the position of Check Pilot was passed in clear violation of the principles of natural justice. Thereafter, the Apex Court proceeded to hold that though, in the normal course the Court would have set aside the order giving liberty to the respondent to hold a fresh enquiry, such course was neither appropriate nor desirable since the appellant had superannuated and much time had elapsed since initiation of the proceedings. ## W.P.(C) Nos.2050 & 7661 of 2018 15 I find considerable force in the submission of the learned counsel for the appellant in the light of the decision in _**Bhupinder Pal Singh**_ 's case and also in view of the finding already arrived at by the Government regarding disproportionality of the punishment of dismissal from service imposed on the petitioner. Considering the fact that the disciplinary proceedings had commenced on 28.6.2013 and the appellant had attained the age of superannuation on 29.10.2017 and would have retired on 31.3.2018 in the normal course, the direction to conduct a fresh enquiry is neither appropriate nor desirable. At the same time, the misconduct alleged against the appellant, if proved, warrant a major penalty. Rule 33 of the Rules prescribe the penalties that can be imposed upon the members of the staff, as under: ## i) censure ii) withholding of increments or promotion iii) (a) recovery from pay of the whole or part of any pecuniary loss caused to the Management or State Government by negligence or breach of orders ## (b) recovery from pay to the extent W.P.(C) Nos.2050 & 7661 of 2018 16 necessary of the monetary value equivalent to the amount of increment ordered to be withheld where such an order cannot be given effect to. iv) reduction to a lower rank in seniority list or to a lower grade or post or time scale ## v) compulsory retirement vi) removal from service which shall not be disqualification for future employment vii) dismissal from service which shall ordinarily be a disqualification for future employment in Government service or in Grant-in-aid institutions. 9. Having found that the punishment of dismissal from service to be disproportionate, the alternative punishment that can be imposed on the petitioner considering, the gravity of charges is compulsory retirement. The learned counsel for the petitioner submits that the petitioner is willing to suffer the punishment in order to give a quietus to the issue and also for the reason that it would enable the petitioner for retirement benefits. The learned counsel for the Management does not raise serious objection with regard to the imposition of punishment of compulsory retirement W.P.(C) Nos.2050 & 7661 of 2018 17 on the petitioner. The Government cannot have any objection against imposition of the punishment of compulsory retirement since it has already found the punishment of dismissal from service to be disproportionate. For the aforementioned reasons, WP(C) No.2050 of 2018 is allowed by setting aside the direction in Ext P10 order of the Government to conduct fresh enquiry and by modifying the punishment of dismissal from service imposed on the petitioner as compulsory retirement with effect from 25.03.2015. Consequently, WP(C) No.7661 of 2018 is dismissed. Necessary steps shall be taken to quantify and disburse eligible retirement benefits to the petitioner, expeditiously. The parties shall suffer their respective costs. **V.G.ARUN, JUDGE** cms W.P.(C) Nos.2050 & 7661 of 2018 18 ## **APPENDIX OF WP(C) 2050/2018** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY STATEMENT OF ALLEGATIONS AND MEMO OF CHARGES DATED 28.6.2013.** - **EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE ENQUIRY REPORT DATED 17.9.2014.** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 25.3.2015 DATED 17.9.2014.** - **EXHIBIT P5 TRUE COPY OF THE COVERING LETTER DATED 18.4.2015 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE APPEAL DATED 20.5.2015 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 8.6.2015 BY THE 2ND RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 4.4.2017 IN WP(C) NO.19336/2015.** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 29.11.2017 IN COC NO.1876/2017.** - **EXHIBIT P10 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE ORDER APPOINTING THE INQUIRY OFFICER.** - **EXHIBIT P12 TRUE COPY OF THE NOTICE DATED 9.1.2018,** ## **APPENDIX OF WP(C) 7661/2018** **PETITIONER'S EXHIBITS:** **EXHIBIT P1:** **TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQURIY OFFICER TO THE CHAIRMAN AND GOVERNING BODY** W.P.(C) Nos.2050 & 7661 of 2018 19 |**EXHIBIT P2:**|**TRUE COPY OF THE PROCEEDINGS OF THE**| |---|---| ||**CHAIRMAN, GOVERNING BODY, S.N.POLYTECHNIC**| ||**COLLEGE, KOTTAYAM**| |**EXHIBIT P3:**|**TRUE COPY OF THE JUDGMENT DATED 4.4.2017 IN**| ||**W.P.(C) NO.19336/2015 OF THIS HONOURABLE**| ||**COURT**| |**EXHIBIT P4:**|**TRUE COPY OF THE G.O.(RT)NO.1988/2017/HEDN**| ||**DATED 3.11.2017 ISSUED BY THE HIGHER**| ||**EDUCATION(L) DEPARTMENT**| |**EXHIBIT P5:**|**TRUE COPY OF THE ORDER NO.DP5/2145/15/DTE**| ||**DATED 16.11.2017 ISSUED BY THE DIRECTOR OF**| ||**HIGHER EDUCATION**| ||/TRUE COPY/| ||P.S.TO JUDGE| |cms||