K.T. Mathew v State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 30TH DAY OF MAY 2014/9TH JYAISHTA, 1936** ## **OP.No. 5391 of 2002 (P)** **------------------------** ## **PETITIONER(S):** **-----------------------** **K.T. MATHEW, GENERAL MANAGER, KERALA STATE CONSTRUCTION CORPORATION, P.B.NO.1944, CARMEL CENTRE III FLOOR, BANERJI ROAD, KOCHI-18.** **BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE. ADV. SRI.MILLU DANDAPANI.** **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY, AGRICULTURE (DAIRY) DEPARTMENT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF DAIRY DEVELOPMENT AND REGISTRAR, SOCIETIES, THIRUVANANTHAPURAM.** **3. THE KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, MILMA BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **4. THE BOARD OF DIRECTORS, KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD., REPRESENTED BY ITS CHAIRMAN, MILMA BHAVAN, PATTOM, THIRUVANANTHAPURAM.** ## **5. THE MANAGING DIRECTOR,** - **KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD., MILMA BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **R1 & R2 BY GOVT. PLEADER MR.A.J. JOSE AEDAIODI. R3 TO R5 BY ADVS. SRI.K.ANAND, SMT.LATHA KRISHNAN.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/02/2014, THE COURT ON 30/05/2014 DELIVERED THE FOLLOWING:** **rs.** **OP.No. 5391 of 2002 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE PROCEEDINGS NO.PER.21/91 DATED 18/09/1991 ISSUED BY THE 5TH RESPONDENT. EXT.P2 COPY OF THE MEMO OF CHARGES NO.PER.21/91/4119 DATED 24/10/1991 ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT. EXT.P3 COPY OF THE WRITTEN STATEMENT OF DEFENCE SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT DATED 06/12/1991. EXT.P4 COPY OF THE PROCEEDINGS NO.PER.21/91/4849 DATED 23/12/1991 OF THE 5TH RESPONDENT. EXT.P5 COPY OF THE MEMO NO,PER.21/91/3108 DATED 22/09/1992 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXT.P6 COPY OF THE ENQUIRY REPORT ANNEXED WITH EXT.P5. EXT.P7 COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT DATED 06/10/1992. EXT.P8 COPY OF THE MEMO NO.PER.21:91 DATED 30/10/1992 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXT.P9 COPY OF THE APPEAL PREFERRED BY THE PETITIONER DATED 11/11/1992 BEFORE THE 4TH RESPONDENT. EXT.P10 COPY OF THE LETTER NO.PER.21/91/600 DATED 15/11/1993 FROM THE SENIOR MANAGER (PURCHASE), KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD. TO THE PETITIONER ALONG WITH ITS ENCLOSURE. EXT.P11 COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 16/01/1996. EXT.P12 COPY OF THE PROCEEDINGS NO.H2/8630/99 DATED 09/02/2001 OF THE 2ND RESPONDENT. EXT.P13 COPY OF THE G.O.(RT) NO.1768/2001/AD DATED 05/11/2001. EXT.P14 COPY OF THE G.O.(P) 221/96/AD DATED 11/06/1996.** **EXT.P15 COPY OF THE ORDER DATED 08/03/2012 ISSUED BY THE 4TH RESPONDENT VIDE NO.PER.7/97/6743 TO THE PETITIONER.** ## **RESPONDENT'S EXHIBITS:-** **NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** **A.MUHAMED MUSTAQUE, J.** ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ **O.P.No.5391 of 2002 “C.R.”** ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ **Dated this the 30[th] day of May, 2014** ## **J U D G M E N T** The petitioner challenges disciplinary proceedings and consequential orders in this original petition. 2. The petitioner is an employee of the Kerala Co-operative Milk Marketing Federation Ltd., which is an apex co-operative body having three regional unions under it, namely, Trivandrum Regional Co-operative Milk Producers' Union Ltd., Ernakulam Regional Co-operative Milk Producers' Union Ltd. and Malabar Regional Co-operative Milk Producers' Union Ltd. The petitioner, while working as Assistant Manager at Ernakulam was put in-charge of the Assistant Manager (Projects) at the Trivandrum Union on a working arrangement. Disciplinary proceedings was initiated against him while he was working at Trivandrum. The petitioner was found guilty as per Ext.P6 proceedings. Managing director as per Ext.P8 imposed punishment of withholding two increments with cumulative effect. Appeal filed by the petitioner before the Board of Directors also failed. Petitioner also had approached the Registrar of Co-operative Societies to rescind the resolution ## **O.P.No.5391 of 2002** ## **-:2:-** of the Board of Directors imposing punishment by invoking the power of Registrar under Rule 176 of the Kerala Co-operative Societies Rules, 1969. The Registrar also did not interfere with the proceedings as evident from Ext.P12. Petitioner thereafter moved the Government challenging Ext.P12 order, by filing an appeal. Government also rejected the appeal as per Ext.P13 proceedings. Challenging Exts.P8, P10, P12 and P13, this writ petition is filed. 3. When the matter was taken up by this Court on 06/12/2011, this Court directed the fourth respondent to have a re-look into the matter and pass appropriate orders. Based on such direction, the fourth respondent issued Ext. P15 rejecting the submissions of the petitioner. The petitioner thereafter amended the original petition and included challenge to Ext.P15 as well. 4. Heard the learned Senior Counsel Smt.Sumathi Dandapani appearing for the petitioner and the learned Standing Counsel for the respondents 3 to 5. 5. Learned Senior Counsel submits that the findings in the disciplinary proceedings are perverse and arbitrary. It is also submitted that the punishment imposed on the petitioner is major penalty and it is ## **O.P.No.5391 of 2002** ## **-:3:-** exorbitant and disproportionately high. It is further submitted that the alleged finding made by the Enquiry Officer is based on an allegation of insubordination made by the Managing Director and, therefore, the punishment imposed by the same person is vitiated by principle of bias. On the other hand the learned Standing Counsel submits that jurisdiction of this Court is limited and a judicial review is unwarranted on the facts and circumstances of the case. 6. The petitioner was charge sheeted originally on four charges, viz., wilful insubordination, negligence in work, evading the responsibility and unauthorised absence. Enquiry Officer found that charge against the petitioner on allegation of insubordination alone was proved. Remaining charges were not proved. Charge against the petitioner on insubordination is as follows: “Wilful insubordination and disobedience of the personal directions given by the Chief Executive of the organisation and the orders issued by the Controlling Officer.” 7. Allegation to the above charge can be summarised as follows with sequence of events:- i. On 14.08.1991, the petitioner was asked by the Manager (Projects) to take charge of all matters being handled by one Shri ## **O.P.No.5391 of 2002** ## **-:4:-** C.K.Jayakumar, pertaining to civil, structural works, effluent treatment plant works, gardening and accounts. However, the petitioner expressed his difficulty in taking charge as above as per his letter dated 16/08/1991. It appears that he raised objections to take charge of the work as mentioned above on the ground that he being an Assistant Manager, he was expected to do only supervisory work and not the work, which is intended to be allotted to him. According to him, he is working at Trivandrum based on a working arrangement. ii. The issue, thereafter, was taken with the Managing Director and based on a direction by the Managing Director, on 31/08/1991, the Manager (Projects) issued an order directing the petitioner to take charge of the work allotted to him and to relieve Shri C.K.Jayakumar, the incumbent holding the work. The petitioner also did not comply with this order. iii. On 09/09/1991, the matter was again taken up with the Managing Director and the Managing Director directed Shri C.K.Jayakumar and K.T.Mathew (petitioner) to meet him on that day. The Managing Director expressed his dissatisfaction in not obeying the order, by the petitioner, as the work at Trivandrum has to be ## **O.P.No.5391 of 2002** ## **-:5:-** completed on a priority basis. iv. On 10/09/1991 , the Managing Director directed the petitioner to report compliance of the order dated 14/08/1991 and 31/08/1991 by 4.30 p.m. At about 11 a.m. On 10/09/1991, Shri C.K.Jayakumar reported to the Manager (Projects) that the petitioner did not report for duty. At about 2.30 p.m., Manager (Projects) got a telegram from the petitioner requesting leave for 30 days. The petitioner was on earned leave from 04/09/1991 to 07/09/1991 and reported for duty on 09/09/1991 and applied for medical leave from 09/09/1991 for 30 days. The application for leave was rejected by the Managing Director. This action of the petitioner for applying leave was construed to evade responsibility on the pretext of sickness by producing a medical certificate from an Ayuervedic Physician. The petitioner was charge sheeted for insubordination alleging that the petitioner failed to comply with the direction of the Managing Director to relieve Shri C.K.Jayakumar and to take over duty from him. 8. Reply to above charges, by the petitioner, can be summarized as follows:- ## **O.P.No.5391 of 2002** ## **-:6:-** i. The petitioner, relies on his letter dated 16/08/1991 explaining his difficulty in executing additional work. He has narrated his explanation in Ext. P3. According to the petitioner, it was difficult for him to cope up with the increased volume of work without a substitute in the place of Shri C.K.Jayakumar. He made an alternative suggestion to entrust the work carried out by Shri C.K.Jayakumar to Shri K.S.Vijayakumar. According to the petitioner no system was prevalent in the organisation for the execution of the project. ii. With regard to the direction issued by Manager (Projects) as per letter dated 31/08/1991, stand of the petitioner is that same was issued without referring to the letter dated 16/08/1991 sent by him explaining the difficulties in taking over additional charges. According to the petitioner, he received letter dated 31/08/1991 from the Manager (Projects) by 3.45 p.m. and there was hardly any time left with him to complete the formalities. It is also mentioned that he gave a reply through Special Messenger on the same day stating that in order to relieve Shri C.K.Jayakumar, a substitute may be necessary to take over charges, as pointed out by the petitioner in the earlier ## **O.P.No.5391 of 2002** ## **-:7:-** letter. Since there was no reply, he continued on duty without making any change till 03/09/1991. iii. The petitioner applied for earned leave from 04/09/1991 to 07/09/1991, 08/09/1991 being Sunday, petitioner went to the office on 09/09/1991 and while he was in office, he felt excruciating pain and, even though, felt difficulty to remain in the office, on receiving a call from the office of the Managing Director at 11 a.m. to meet the Managing Director at 3 p.m., the petitioner was constrained to remain in the office to just obey the order of the Managing Director. It is stated by the petitioner that he met the Managing Director at 3 p.m. along with Shri C.K.Jayakumar. In the meeting, the petitioner was instructed to take charge from Shri C.K.Jayakumar, as directed by the Manager (Projects) in earlier letters. Petitioner states that he was not allowed to explain the difficulty he had in the matter, including his physical incapacity due to the illness. Petitioner further explains that as advised by his physician he had applied for 30 days earned leave from 09/09/1991 onwards. However, his leave application has been rejected without verifying genuineness of his sickness as revealed from the medical certificate issued by a competent medical officer. ## **O.P.No.5391 of 2002** ## **-:8:-** 9. It is in the backdrop of the above facts, the Enquiry Officer conducted the enquiry and found that the petitioner is guilty of charges made against him on the ground of insubordination. It is seen from the records that the charge against the petitioner for the unauthorised absence was not proved. The unauthorised absence was for the period during which the petitioner had applied for earned leave, which appears to have been rejected by the Managing Director. The petitioner was charge sheeted for insubordination alleging that the petitioner failed to comply with direction of the Managing Director and the Manager (Projects) to relieve Shri C.K.Jayakumar and to take over charge from him. 10. In a departmental enquiry, the Enquiry Officer performs a quasi-judicial function. Therefore, the Enquiry Officer is expected to analyse allegations and counter allegations with the relevant evidence in the enquiry. On such analysis, he has to take into consideration all relevant facts. He cannot refuse to consider any relevant facts. Any omission to consider relevant facts will result in erroneous conclusions. While exercising power of judicial review, this Court cannot act as Appellate Authority and reappraise evidence to arrive at different conclusions. If finding of guilt is based on any evidence, this Court cannot upset such ## **O.P.No.5391 of 2002** ## **-:9:-** finding. Keeping the above parameters in mind, the power of judicial review is to be directed against the decision making process and not to the decision itself. 11. In this case, the Enquiry Officer, proceeded to conclude that the petitioner is guilty of insubordination on the premise that the petitioner, despite several directions, failed to relieve one of his subordinates Shri C.K.Jayakumar, who has been transferred to Kannur Dairy depot. This finding was arrived on analysing the fact that the petitioner refused to obey the directions issued by the Management on different occasions in this regard. On the other hand, the petitioner had explained his difficulty, in his letter dated 16/08/1991, in taking over charge from Shri C.K.Jayakumar. It is the case of petitioner that he will be loaded with increased volume of work without a substitute in the place of Shri C.K.Jayakumar. He had also made an alternative suggestion to entrust the work carried out by Shri C.K.Jayakumar to Shri K.S.Vijayakumar. The petitioner also stated in his defence that there was no framed system for execution of project work at Trivandrum. It seems that he also made a request to relieve him from Trivandrum to enable him to join in his parent union at Ernakulum in his permanent post. This appears to have led the Enquiry Officer to conclude ## **O.P.No.5391 of 2002** ## **-:10:-** that the petitioner refused to relieve Shri C.K.Jayakumar. It is relevant to note in the absence of any findings, contrary to the above, by the Enquiry Officer, it has to be assumed that there was no organised system for execution of the work related to the project. 12. In Labour Law context, “insubordination” results from refusal to obey or perform command from a superior, by an employee, which the latter, either under the contract or law, is obliged to perform. An Enquiry Officer in the disciplinary proceedings relating to insubordination is expected to enquire reasons for non-compliance of the directions of a superior by the employee. This is essential not in a perspective to adjudicate upon veracity of different versions put across by the parties, but to have finding on degree of insubordination in terms of act sought to be performed. There may be situation, which will be beyond the control of the employee to perform duties due to illegality or inefficacy of the act directed to be performed. The non-compliance of duty directed to be performed becomes insubordination in an organisational perspective criteria qua disobedience of orders of superior officer to officer of a lower rank. Therefore, in a disciplinary enquiry in public organisation, the Enquiry Officer must direct himself with organisational criteria perspective in mind. This would be ## **O.P.No.5391 of 2002** ## **-:11:-** possible only when explanation given by the employee for non performance is taken into account. In a public organisation like the third respondent herein, decisions are based on ethical principles, which are consistent with the collective will of the organisation. Duty of obedience in organisational hierarchy is not intended to be construed that one in lower rank must be slavishly submissive or obsequious in approach to his superior. If an employee expresses his dissatisfaction on an additional work being allotted to him, especially when there are no preordained system of distribution of work, such expression need not be construed as insubordination, i.e., something part of right of free expression. It has to be remembered that right to dissent is a natural right and it can only be regulated, consistent with the scheme of the activities that contemplated. The Management has no case that the petitioner had any obligation to perform the work additionally allotted to him. It is pertinent note that at no point of time the management had intimated the petitioner about their decision on objections raised by the petitioner, until a meeting held on 09/091991 at the chamber of the Managing Director. It is in such meeting, Managing Director expressed dissatisfaction, presumably, overruling the objections raised by the petitioner. No doubt when such objections are overruled, the employee ## **O.P.No.5391 of 2002** ## **-:12:-** concerned must yield to the decision of the management. Starting point of insubordination is only from such decision. However, the petitioner went on leave immediately, though, leave request was rejected and, one of the charges against the petitioner in disciplinary proceedings was unauthorized absence, which charge, seems that the management had not prosecuted to its logical conclusion. Therefore, it may be scurrilous to say that the petitioner did not comply with the decision to relieve Shri C.K.Jayakumar, when he was on leave. 13. Omission to take into consideration what constitute and what ought not consititute insubordination is a serious flaw in the disciplinary proceedings, undermining the process of finding on the charge of insubordination. In **Central Bank of India Ltd. v. Prakash Chand Jain [AIR 1969 SC 983]** , the hon'ble Supreme Court held that Industrial Tribunal can interfere with the finding given by the Enquiry Officer, if the finding is perverse. The test of perversity is that finding may not be supported by any legal evidence at all. In **Kuldeep Singh vs. The Commissioner of Police and others [AIR 1999 SC 677]** it was held that, normally the High Court and the hon'ble Supreme Court would not interfere with the findings of fact recorded in the domestic enquiry. But, if the ## **O.P.No.5391 of 2002** ## **-:13:-** finding of guilt is based on no evidence, it would be perverse finding, and would be amenable to judicial scrutiny. 14. Based on the aforenoted judgments, I am of the view, the findings rendered by the Enquiry Officer are perverse, as he failed to make distinction as to what constitutes such insubordination and what does not, in the light of the facts and circumstances of the case. It may not be proper for this Court to remit back the matter to the Authority for reconsideration after lapse of two decades, especially, in the light of the nature of allegations levelled against the petitioner. This Court, after hearing the learned counsel for the parties on 20/03/2014, directed the management to produce the file relating to domestic enquiry. The management produced photostat copies of the file relating to the enquiry. I have also gone through the file. I do not find any reason to remit back the matter. The Statutory Authorities vested with the power to correct illegality committed by the Enquiry Officer also have failed in exercise of their jurisdiction. Accordingly, this writ petition is allowed without costs quashing Exts. P8, P10, P12, P13 and P15. 15. Before parting with this judgment, this Court is of the view, lack of platform to resolve the dispute through a consensus-based process, such as mediation, in the organisation, leads to strain and drain of the parties ## **O.P.No.5391 of 2002** ## **-:14:-** involved in a dispute, by prosecuting and defending the dispute through adjudicatory mechanism. Dispute is an offspring of different thought process of the parties in a context. In labour relations, strained relations between the parties are detrimental to the interest of the organisation. Establishing institutional mechanism to prevent dispute through prevention process is the key to modern-day management strategy. The overarching purpose of dispute management is to have a co-ordinated, fair and flexible engagement of the parties concerned to avoid deteriorating relationships. The International Labour Organisation has been assisting member states, as well as workers and employers' organisation, to set up or strengthen, such system. It is essential that labour dispute resolution mechanism should have a place at enterprise level. The hon'ble Supreme Court in a recent judgment in **Vikram Bakshi and others vs. Sonia Khosla and others [ILR 2014 (2) Ker.658]** reiterated importance of resolving disputes through mediation and observed as follows:- “Mediation ensures a just solution acceptable to all the parties to dispute thereby achieving ‘win-win’ situation. It is only mediation that puts the parties in control of both their disputes and its resolution. It is mediation through which the parties can communicate in a real sense with each other, which they have ## **O.P.No.5391 of 2002** ## **-:15:-** not been able to do since the dispute started. It is mediation which makes the process voluntary and does not bind the parties against their wish. It is mediation that saves precious time, energy as well as cost which can result in lesser burden on exchequer when poor litigants are to be provided legal aid. It is mediation which focuses on long term interest and helps the parties in creating numerous options for settlement. It is mediation that restores broken relationship and focuses on improving the future not of dissecting past. It is based on an alternative set of values in which formalism is replaced by informality of procedure, fair trial procedures by direct participation of parties, consistent norm enforcement by norm creation, judicial independence by the involvement of trusted peers, and so on. This presents an alternative conceptualization of justice.” 16. Therefore, in the interest of the Public Sector Undertakings in the State of Kerala, the Government should initiate steps to formulate a mechanism for dispute resolution through mediation at enterprises level. It is also open for the Government to seek assistance of the Kerala State Mediation and Conciliation Centre, High Court of Kerala for training mediators or for availing service of trained mediators of the mediation centres located in different Districts of Kerala, if it is permitted. Registry is directed to forward a copy of this judgment to the Secretary to the Labour ## **O.P.No.5391 of 2002** **-:16:-** and Rehabilitation Department and the Secretary to the Industries and Commerce Department of the State, for necessary action. **A.MUHAMED MUSTAQUE, JUDGE** ms ## **O.P.No.5391 of 2002** ## **-:17:-** **A.MUHAMED MUSTAQUE, J.** ~~~~~~~~~~~~~~~~~~~~~~~~~ **O.P.No.5391 of 2002** ~~~~~~~~~~~~~~~~~~~~~~~~~ ## **JUDGMENT** 30[th] day of MAY, 2014