K.N. Sukumaran v Union of India and Cochin Port Trust and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941** ## **WP(C).No. 20254 of 2015** ## **PETITIONER/S:** **K.N.SUKUMARAN AGED 56 YEARS S/O.NEELAKANDAN, STAFF NO.5484, CARPENTER HSK, ERNAKULAM WHARF SUB-DIVISION, CIVIL ENGINEERING DEPARTMENT, COCHIN PORT TRUST, COCHIN.** **BY ADV. SRI.VARGHESE C.KURIAKOSE** ## **RESPONDENT/S:** - **1 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF SHIPPING, SOUTH BLOCK, NEW DELHI-110001.** - **2 COCHIN PORT TRUST COCHIN, REPRESENTED BY SECRETARY, COCHIN PORT TRUST, COCHIN-682009.** **3 CHAIRMAN COCHIN PORT TRUST, COCHIN-682009.** - **4 CHIEF ENGINEER COCHIN PORT TRUST, COCHIN-682009.** **BY ADVS. SRI.B.GOPALAKRISHNAN, CGC SRI.K.ANAND (SR.) SMT.LATHA KRISHNAN, SC, COCHIN PORT TRUST SRI.B.GOPALAKRISHNAN CGC SRI.K.ANAND (SR.) SRI.T.V.VINU CGC** ## **OTHER PRESENT:** **SMT.LATHA KRISHNAN, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 20254 of 2015 2** ## **JUDGMENT** This writ petition is filed challenging Exts.P5 and P6 orders of the respondents directing the conduct of a de novo enquiry as against the petitioner. The petitioner, who was a carpenter in the Port Trust had been placed under suspension by Ext.P1 proceedings dated 7.05.2014, on the allegation that he had been detained in custody for a period exceeding 48 hours from 3.5.2014. Ext.P2 Memorandum of Charges was later issued to the petitioner on 12.06.2014. The charges against the petitioner were that while functioning as carpenter, on 03.05.2014, he had been found in possession of some properties belonging to the Port Trust in his vehicle and had been apprehended by the CISF at the toll Gate on Bristow Road. The matter was reported to the Harbour Police Station and a crime had been registered against him and he had been detained in custody and thereafter, released on bail. On these allegations, domestic enquiry had been conducted against the petitioner. It is stated that penalty of compulsory retirement had been imposed on the petitioner pursuant to the enquiry. 2. The petitioner had preferred Ext.P4 appeal alleging that the enquiry was not properly conducted, in as such as, none of the ## **WP(C).No. 20254 of 2015 3** documents were marked in evidence and that the witnesses cited in Ext.P2 had not been examined. The appeal was considered by Ext.P5. It was found that there were various discrepancies in the disciplinary proceedings against the petitioner and the enquiry report and the order passed were therefore set aside. However, the inquiring authority was directed to enquire into the charges afresh, complying with the prescribed procedure and after affording adequate opportunity of defence to the employee. The petitioner was reinstated in service but he was held not entitled to back wages from 12.2.2015 till the date of rejoining duty. Ext.P6 order was thereafter issued by the Chief Engineer reinstating the petitioner in service but directed the enquiry officer to hold the enquiry, de novo, on the existing charges. The petitioner has approached this Court challenging the de novo enquiry ordered against him. 3. It is contended that after Exts.P5 and P6 communications had been issued, the petitioner had been exonerated by the Court of Judicial First Class Magistrate, Kochi of the self same charges as in Ext.P2 by Ext.P8 judgment. It is stated that all the witnesses including witnesses in the domestic enquiry had been examined before the criminal court and the finding of not guilty was entered as against the petitioner. It is stated that Ext.P8 judgment contains a finding that ## **WP(C).No. 20254 of 2015 4** the witnesses and the documents were insufficient even to prove that the properties found in the vehicle belonged to the Cochin Port Trust. It was also found that the witnesses could not identify the petitioner as the person in possession of the alleged articles. It is therefore contended that the acquittal of the petitioner was an honourable acquittal for want of any evidence to prove his complicity in the offence alleged and that as such there is no requirement for conducting the de novo enquiry as against the petitioner, who is due to retire from service soon. It is stated that taking note of the fact the petitioner is only a carpenter, the issue is liable to be reconsidered taking note of the findings in Ext.P8 judgment also. 4. The petitioner had submitted Ext.P11 representation before the Deputy Chairman, Cochin Port Trust seeking a re-consideration of the issue as to the necessity to conduct a de novo enquiry taking note of the fact that the petitioner is honourably acquitted in the criminal case pertaining to the very same charges. However, Ext.P12 dated 04.05.2017 had been rendered rejecting the request of the petitioner. Ext.P12 only narrates the facts as set out. It is stated that the request of the petitioner to revoke/cancel the de novo enquiry would amount to review of the order dated 30.04.2015 passed by the Chairman exercising the powers as the Appellate Authority as per Regulation 26 ## **WP(C).No. 20254 of 2015 5** of the Cochin Port Employees (Classification, Control and Appeal) Regulation, 1964. It is stated that such power can be exercised only by the Central Government. It is also stated that the issue of revoking or canceling the de novo enquiry cannot be "acceded to at this juncture." 5. The learned counsel for the petitioner would contend that the honourable acquittal of the petitioner on the very same set of charges was a factor which ought to have been examined by the competent authority in the Port Trust. In view of the fact that the petitioner had been found not guilty of the very same offences, it is contended that Ext.P8 should have been considered and an informed decision ought to have been taken whether there was any purpose in continuing the disciplinary proceedings against the employee. It is contended that this is also in view of the fact that the petitioner is only a carpenter and that he is due to retire from service on 30.4.2019. It is contended that the honourable acquittal in a criminal case on the very same set of facts and allegations, though not conclusive in a disciplinary proceedings, the question whether such a proceedings are to be conducted de novo should have been considered by the competent authority in accordance with law. The learned counsel would also rely on a decision of the Apex Court in **Divisional** ## **WP(C).No. 20254 of 2015 6** **Controller KSRTC v. M.G.Vittal Rao [2011 KHC 5047]** in support of the contention that the facts, charges and nature of evidence involved in an individual case would determine as to whether the decision of acquittal would have any bearing on the findings recorded in the domestic enquiry. It is contended that each case has to be considered on merits and an appropriate decision taken in individual cases. 6. The learned counsel appearing for the respondents would contend that the acquittal in a criminal proceedings, even if it is on the very same set of facts and circumstances, cannot lead to an automatic exoneration in a disciplinary proceedings. It is also contended that on the appellate authority finding that the disciplinary proceedings had been vitiated by want of following proper prescribed procedure, the only option available to the appellate authority was to direct conduct of a de novo enquiry in accordance with law and consideration of the matter on the merits by the disciplinary authority. 7. The decisions of the Apex Court in **Deputy Inspector General of Police & Anr. v. S. Samuthiram [(2013) 1 SCC 598], Chairman, LIC of India & Ors. v. A. Masilamani [(2013) 6 SCC 530]** and **Nelson Motis v. Union of India and another [(1992) 4 SCC 711]** are relied on to contend that the findings in a criminal trial ## **WP(C).No. 20254 of 2015 7** are not conclusive as far as pending disciplinary proceedings are concerned and a decision in accordance with law has to be taken by the appropriate disciplinary authority after considering the facts of each case. 8. I have considered the contentions advanced. In the instant case, the petitioner had been kept under suspension on 7.5.2014 in connection with an occurrence on 3.05.2014. The petitioner had been detained in Judicial custody from 03.05.2014 to 05.05.2014. Ext.P2 memo of charges had been issued stating that the petitioner had been found in possession of the Port Trust properties on 03.05.2014. It is the very same allegations that have been considered by the Criminal Court in Ext.P8. It is evident that by Ext.P3 order, the decision to impose the penalty of compulsory retirement had been taken against the petitioner on the basis of Ext.P7 enquiry report. The petitioner preferred Ext.P4 appeal and by Ext.P5 order dated 30.4.2015, the appellate authority found that the enquiry proceedings were vitiated in as much as the documents relied on were not properly considered and the witnesses were not examined in the presence of the petitioner giving him a chance to cross examination. It is on these findings that the petitioner was directed to be reinstated in service and de novo enquiry was ordered against him. The petitioner apparently was ## **WP(C).No. 20254 of 2015 8** reinstated. It is submitted by the learned counsel for the petitioner that the fact of Ext.P8 judgment acquitting the petitioner from the criminal proceedings as well as the evidence of the two witnesses before the criminal court had been brought to the notice of the respondents in preferring Ext.P11 representation. However, on the ground that a re-examination of the matter would amount to a review of the orders passed in Ext.P5, respondents have not considered the request of the petitioner for dropping the proceedings against him in its proper perspective. 9. Having considered the contentions advanced and in view of the fact that the disciplinary proceedings have been vitiated on the very same set of facts and circumstances which have led to acquittal in Ext.P8 judgment and also in view of the fact that the petitioner is only a carpenter and is due to retire from service shortly, I am of the opinion that the impact of Ext.P8 judgment and the necessity to continue the disciplinary proceedings as against the petitioner by conducting de novo enquiry ought to have gained the attention of the respondents without insisting on the technical aspect of the matter. 10. I am of the opinion that the Chairman of the Port Trust should re-consider Ext.P5 in the light of Ext.P8. The facts pointed out by the petitioner in Ext.P11 representation shall be taken note of and **WP(C).No. 20254 of 2015 9** the findings in Ex.P8 shall be considered in toto in arriving at a conclusion whether there is any purpose in continuing disciplinary proceedings as against the petitioner. Appropriate orders in this regard shall be passed by the Chairman after considering the factual aspects of the matter, within a period of two months from the date of receipt of copy of this judgment. Further proceedings, if any, pursuant to Ext.P5 shall be kept in abeyance till an informed decision is taken by the Chairman of the Port Trust as directed above. The writ petition is ordered accordingly. **Sd/-** **ANU SIVARAMAN** rmm **JUDGE** **WP(C).No. 20254 of 2015 10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 COPY OF THE ORDER NO.PA/29/KNS/2014-C DATED 7TH MAY, 2014.** - **EXHIBIT P2 COPY OF THE MEMORANDUM ISSUED BY THE 4TH RESPONDENT BEARING NUMBER PA/29/KNS/DS./2014-C DATED 12TH JUNE, 2014.** - **EXHIBIT P3 COPY OF THE ORDER NO.PA/29/KNS/DS./2014-C DATED 12TH FEBRUARY, 2014.** - **EXHIBIT P4 COPY OF THE APPEAL SUBMITTED BEFORE THE 3RD RESPONDENT DATED 25TH MARCH, 2015.** - **EXHIBIT P5 COPY OF ORDER NO.PA/29/DIS/KNS/2014-S DATED 30.04.2015** - **EXHIBIT P6 COPY OF THE ORDER NO.PA/29/DIS./KNS/2014-C DATED 10TH JUNE, 2015.** - **EXHIBIT P7 TRUE COPY OF THE INQUIRY REPORT ISSUED BY THE INQUIRY OFFICER DATED 18TH AUGUST, 2014 OF THE COCHIN PORT TRUST** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN CC NO.1205 OF 2015 DATED 9TH JANUARY, 2017 IN THE FILES OF HON'BLE COURT OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I** **EXHIBIT P9 TRUE COPY OF THE DEPOSITION OF SHRI ANIL KUMAR C.P. DATED 20TH JULY 2016 EXAMINED BEFORE LEARNED MAGISTRATE IN CC NO.1205 OF 2015 IN THE HON'BLE COURT OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I. EXHIBIT P10 TRUE COPY OF THE DEPOSITION OF SHRI. M.J SOLENKI DATED 20TH JULY, 2016 EXAMINED BEFORE LEARNED MAGISTRATE IN CC NO. 1205 OF 2015 IN THE HON'BLE COURT OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I EXHIBIT P11 TRUE COPY OF THE REPRESENTATION DATED 3RD MARCH 2017.** **WP(C).No. 20254 of 2015 11** **EXHIBIT P12 TRUE COPY OF THE MEMORANDUM ISSUED BY THE SECRETARY , COCHIN PORT TRUST VIDE NO. C5/DIS/KNS/2014-C DATED 4TH MAY, 2017.** **RESPONDENTS EXHIBITS NIL** **// TRUE COPY //** **P.A. TO JUDGE**