M. Manikandan S/o Late Govindankutty Nair v. Guruvayur Devaswom Managing Committee

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 05TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941** **WA.No.1093 of 2017** **AGAINST THE ORDER/JUDGMENT IN WPC 24122/2015 of HIGH COURT OF KERALA DATED 17.10.2016** ## **APPELLANT/PETITIONER:** **M. MANIKANDAN S/O. LATE P.GOVINDANKUTTY NAIR, AGED 49 YEARS, MOZHAYATH HOUSE, THEKKE SAMOOHAM, GURUVAYOOR DESOM, CHAVAKKAD TALUK, POST GURUVAYUR** **BY ADVS. SRI.S.RAMESH BABU (SR.) SRI.A.DINESH RAO** ## **RESPONDENTS/RESPONDENTS:** - **1 THE GURUVAYUR DEVASWOM MANAGING COMMITTEE REPRESENTED BY ITS ADMINSTRATOR, GURUAYUR- 680 101** - **2 THE ADMINISTRATOR GURUVAYUR DEVASWOM, GURUVAYUR- 680 101** - **3 A.SURESAN ADVOCATE, BOARD MEMBER, GURUVAYUR DEVASWOM MANAGING COMMITTEE, GURUVAYUR.** WA1093/2017 -2- - **4 ENQUIRY OFFICER K.B HARIDAS, ADVOCATE, KARTHIKA, CIVIL LANE ROAD, THRISSUR- 680 004.** - **5 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEVASWOM, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1** **BY ADVS. SRI.T.K.VIPINDAS FOR R1 & R2 SRI.ANTONY MUKKATH, GOVERNMENT PLEADER FOR R5** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26.07.2019, THE COURT ON 05.08.2019 DELIVERED THE FOLLOWING:** WA1093/2017 -3- ## **J U D G M E N T** ## **[W.A.No.1093 of 2017]** ## Ashok Menon, J. The petitioner in WP(C) No.24122 of 2015 is the appellant herein, who is aggrieved by the impugned judgment of the learned single judge dated 17.10.2016 refusing to grant the following prayers sought for by the petitioner: “a. Issue a writ of certiorari or other appropriate writ, direction or order quashing Exts.P19, P20, P21, P23 and P24. b. Issue a writ of mandamus or other appropriate writ, direction or order directing the 1[st] respondent to reinstate the petitioner in service with all arrears of salary. c. Any appropriate writ, direction or order as this Hon'ble court may deem fit and proper, in the circumstances of the case.“ 2. The facts in brief are thus: The petitioner was working as UD Clerk in the WA1093/2017 -4- Guruvayur Devaswom Works Section between the period 25.2.2003 to 09.4.2007. During his tenure in service, he was in charge of distributing cheques executed by the Guruvayur Devaswom (Devaswom) in favour of different contractors towards payment of amounts due to them. Sixteen account payee cheques payable to different contractors between 3.5.2007 to 09.11.2008 drawn on the SB account maintained by the Devaswom in Andhra Bank, Guruvayur Branch were allegedly manipulated by the appellant/petitioner, in which he struck off the endorsement 'Account Payee', forged the signature of the drawer of the cheque, and interpolated the original amount shown in the cheques, and encashed the cheques. He disbursed the amounts due to the contractors directly in cash and misappropriated the added amount. 3. On the petitioner being exposed, he was WA1093/2017 -5- placed under suspension w.e.f. 15.11.2008. A preliminary enquiry was conducted by Sri.K.A.Easwaran Pillai, a member of the Committee and he found overwhelming evidence against the petitioner with regard to the misappropriation. 4. The Managing Committee decided to terminate his service and he was asked to show cause why he should not be terminated from service. To this, he sent a reply pointing out that as per the Kerala Civil Service (Classification, Control and Appeal) Rules, 1960 ('Rules' for brevity), applicable also to employees of the Devaswom, he could not be terminated without holding a formal enquiry. 5. Thereafter, the Managing Committee of the Devaswom appointed Adv.Sri.K.B.Haridas as the enquiry officer, pursuant to which a charge memo was issued to the petitioner. WA1093/2017 -6- 6. Disciplinary proceedings took time, and therefore, the petitioner was reinstated vide Ext.P9 order dated 30.4.2012 pending completion of the disciplinary proceedings and was posted at Punnathoorkotta. While so, citing the findings of the Vigilance Department holding him guilty of several offences, the petitioner was once again placed under suspension vide Ext.P11 order dated 11.10.2013. He challenged the order of suspension before this Court by filing WP(C) No.25983/2013 which is still pending, and no interim order revoking the suspension is granted. 7. The enquiry officer Adv.K.B.Haridas ultimately filed Ext.P11 enquiry report dated 24.2.2015 finding all the charges against the petitioner in the affirmative. On the basis of the Ext.P20 decision dated 17.3.2015 of the Guruvayur Devaswom Managing Committee (GDMC) accepting the WA1093/2017 -7- enquiry report, Ext.P19 notice was issued to the petitioner on 27.4.2015 to show cause why major penalty should not be imposed upon him. The petitioner sent Ext.P22 reply dated 29.5.2015 which on consideration by the GDMC was found unacceptable, and vide Ext.P24 resolution dated 30.6.2015, decided to dismiss the petitioner from service and also to realise the misappropriated amount by him. Following this decision taken by the GDMC, Guruvayur Devaswom Administrator vide Ext.P23 proceedings dated 8.7.2015, dismissed the petitioner from service. 8. Aggrieved, the petitioner filed the writ seeking the prayers referred to above. The primary grounds taken by the petitioner in challenging the impugned Exts.P23 and P24 were as follows: - (i) The refusal of petitioner's prayer to examine two bank officials of the Andhra Bank as defence witnesses, amounts to WA1093/2017 -8- important evidence being shut out. (ii) The active participation of Adv. A. Sureshan, presenting officer in the enquiry, subsequently nominated as the Member of the GDMC, in the meeting on 17.3.2015 leading to Ext.P20 resolution accepting the enquiry report and resulting in issuance of Ext.P19 show cause notice imposing major penalty, is vitiated by bias. (iii) Rule 15(11) of the Rules, which is made applicable to the Devaswom and its employees, stands infringed by the GDMC as it was obliged to record its findings on each of the charges found against the petitioner. Acceptance of Ext.P21 report without giving reasons on each charge without independent application of mind by the GDMC would render Exts.P23 and P24 invalid. (iv) Government interference in the disciplinary proceedings against the petitioner is apparent from Ext.P15 letter of the Government addressed to the WA1093/2017 -9- Guruvayur Devaswom Administrator and Ext.P28 letter of the GDMC to the Secretary to Government. It was at the instance of the Government that the punishment was imposed pursuant to the disciplinary proceedings. - (v) The bank officials could not have honoured those cheques as the signatory to the cheques exceeded the pecuniary limit of Rs.5,00,000/- which the signatory was authorised to issue. - (vi) Unreasonable delay in completing the disciplinary proceedings which by itself would vitiate the entire proceedings. 9. The learned Single Judge dealt with all these points and found them unsustainable relying upon various judgments referred to by the learned Counsel appearing for the petitioner and dismissed the writ. 10. Aggrieved by this impugned judgment of the learned Single Judge, the petitioner is before us WA1093/2017 -10- in this Writ Appeal. The learned Senior Counsel Adv.S.Ramesh Babu confined his argument mainly to the violation of Rule 15 (8) of the Rules denying the opportunity to the petitioner to secure the presence of the bank officials in support of his defence, which according to the learned Senior Counsel amounts to violation of the principles of natural justice affecting the credibility of the entire disciplinary proceedings. 11. The second point urged by the learned Senior Counsel is regarding the involvement of the third respondent Adv.A.Suresan in the decision made against the petitioner despite being the presenting officer in the disciplinary proceedings, which clearly spells out bias, and therefore the acceptance of the enquiry report and the decision to terminate the service of the petitioner is unsustainable. WA1093/2017 -11- 12. The third important point that is argued by the learned Senior Counsel in assailing the impugned judgment is regarding the violation of the mandatory requirement of Rule 15(11) which insists on findings to be recorded by the Managing Committee on each head of charges alleged against the petitioner. 13. That apart, the learned Senior Counsel also pointed out to the unreasonable six years' delay in completing the disciplinary proceedings against the petitioner as a crucial to impugning the proceedings of the Devaswom as also the impugned judgment of the learned Single Judge. 14. There is no doubt that the High Court while considering the writ petition under Article 226 is not sitting in appeal over the findings in a disciplinary proceedings and cannot therefore quash the charges and the disciplinary proceedings WA1093/2017 -12- considering the limited scope on the manner in which power of judicial reviews to be exercised. 15. The learned Senior Counsel for the appellant relies on the decision in _**Chairman, Life Insurance Corporation of India and Others** v._ _**A Masilamani [(2013) 6 SCC 530]**_ to argue for the proposition that even if the High Court quashes the disciplinary proceedings as well as the punishment on technical ground that witnesses were not examined or that opportunity was not given to examine the defence witnesses, the court cannot order reinstatement of the employee and it must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated and conclude the same, and therefore, without insisting for his prayer for reinstatement, it is requested that an opportunity be given to the petitioner to examine the Bank ## WA1093/2017 -13- officials before the disciplinary authority and to consider the evidence afresh, after taking into consideration the evidence of the Bank officials as well. 16. The allegation against the petitioner is very grave, amounting to misappropriation to the tune of lakhs of rupees. The copies of two cheques produced in this petition as Exts.P29 and P30 would indicate that the seal of “A/c. PAYEE ONLY” affixed on the cheque has been struck off and the signature of the drawer of the cheque affixed thereon, which according to the Devaswom is a forgery, and that apart, the words 'Nine lakhs' in front of the already written amount has been interpolated, which is too apparent to be ignored. The fact that the drawer of the cheque had exceeded his authorisation is also serious breach on the part of the Bank officials. It is possible that the Bank officials ## WA1093/2017 -14- may have colluded or helped the petitioner in getting the interpolated and manipulated cheques encashed. It is a pertinent fact to note that the petitioner's wife was at that point in time employed in the Andhra Bank. She is also a coaccused with the petitioner in the pending Vigilance case. The breach or default on the part of the Bank officials would not be a circumstance to mitigate the deeds of the petitioner. 17. We are not going to consider the evidence afresh to find out whether the reasoning and the logic behind the conclusion derived by the enquiry officer in Ext.P21 report is correct or not. This court is not empowered to do so. But, it has to be examined whether there was any violation of natural justice by denying the petitioner the opportunity to examine the witnesses in defence of his case. It is true that the evidence of the prosecution WA1093/2017 -15- took an unreasonably long time to conclude. The petitioner had his opportunity to submit the witness list. He was under the impression that the two Bank officials whose names figured in the witness list of the prosecution, may be examined, but they were ultimately given up, and therefore, he submitted a witness list containing their names. Rule 15(8) of the Rules reads thus: “Rule 15(8) : The Government servant may present to the Inquiring Authority a list of witnesses whom he desires to examine in his defence. The Inquiring Authority will normally request such witnesses to appear before him to give evidence and where the witness to be examined is a Government servant, the Inquiring Authority will normally try to secure the presence of the witness, unless he is of the view that the witness's evidence is irrelevant or not material to the case under inquiry. Where the witness proposed to be examined by the Government servant is a non-official, the Inquiring Authority will be under no obligation to summon and examine him unless the Government servant himself produces him for examination.” WA1093/2017 -16- 18. There is no obligation on the enquiry authority to issue summons to the witnesses for the delinquent. The petitioner had at the first instance requested for issuance of summons which, on being rightly refused, he filed another request to sent an intimation to the witnesses so that it would enable them to get leave and appear for the proceedings. The enquiry officer had given sufficient time for the petitioner to produce the witnesses, but he failed. It cannot therefore be said that prejudice was caused to the petitioner because of loss of opportunity to examine witnesses. 19. The other contention of the petitioner that the decision of the GDMC was vitiated because of the involvement of the third respondent, Adv.A.Suresan, also cannot be countenanced for the reason that the decision taken on 17.3.2015 vide ## WA1093/2017 -17- Ext.P20 was only regarding acceptance of the enquiry report and to issue show cause to the petitioner. Even subsequent to Ext.P20, on receipt of Ext.P19 show cause, there was opportunity afforded to the petitioner to impugn Ext.P21 enquiry report before the Managing Committee. Ext.P22 objection was submitted by the petitioner on 29.5.2015. Ext.P24 resolution was taken by the GDMC on 30.6.2015, after considering Ext.P22 objections of the petitioner. In that meeting, the third respondent, Adv.A.Suresan was not present. Hence, the contention of the petitioner that the third respondent had influenced the decision of the GDMC is too far fetched consequence to be accepted. The bias alleged is not sufficient to vitiate the entire disciplinary proceedings against him. 20. The objection of the petitioner referring to Rule 15(11) also is not sustainable for the WA1093/2017 -18- reasons explained in the impugned judgment of the learned Single Judge. The enquiry officer has been separately appointed in whose report each of the charges has been specifically answered. What remains to be considered by the disciplinary authority is the findings, and approve them for the reasons stated therein, in case it is acceptable. The Managing Committee has gone through the enquiry report and found it acceptable after having considered Ext.P22 objections filed by the petitioner. The mere fact that each of the reasons mentioned is not specifically stated in the resolution is no reason to discard it. 21. Regarding the delay in completing the disciplinary enquiry, the petitioner cannot claim any advantage. He is accused of misappropriation of funds of devotees donated to Lord Guruvayurappan. Being an employee of the Devaswom, he had the WA1093/2017 -19- onerous obligation to protect that money of the Lord held in trust by the Devaswom. It is settled law that the High Court should not generally set aside the departmental enquiry and quash the charges on the ground of delay in initiation or completion of the disciplinary proceedings, as such a power is dehors the limits of judicial review. The facts and circumstances of the case in question have to be examined by taking into consideration the gravity/magnitude of the charges involved therein. The essence of the matter is that the court must take into consideration all relevant facts and to balance and weigh the same, so as to determine if it is in fact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated only on the ground of delay in their conclusion. ( _**A.Maslamani** supra_ ) WA1093/2017 -20- 22. None of the objections and contentions raised by the petitioner is sustainable and learned Single Judge has rightly discarded all the objections raised by the petitioner while dismissing the writ petition. We find no reason to interfere with the findings of the learned Single Judge. In the result, the Writ Appeal is dismissed. No costs. ## **Sd/-** ## **V.CHITAMBARESH** **JUDGE** ## **Sd/-** **ASHOK MENON** **JUDGE** jg