M.S. Raveendranathan v. Indian Oil Corporation Ltd and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` THURSDAY, THE 8[TH] DAY OF JUNE 2023 / 18TH JYAISHTA, 1945 ``` ## **`WP(C) NO. 26473 OF 2012`** ## **`PETITIONER:`** ``` M.S. RAVEENDRANATHAN S/O.P.N.SUKUMARAN, UDAYAVIHAR, BARCLAY VILAS, KAKKANAD, ERNAKULAM, (EARLIER WORKING AS ASSISTANT MANAGER, INDIAN OIL CORPORATION, KOCHI). ``` ``` BY ADVS. SRI.A.JAYASANKAR SRI.ASHWIN SETHUMADHAVAN SRI.MANU GOVIND SMT.B.MEERA SRI.S.SABARINADH ``` ## **`RESPONDENTS:`** - `1 THE INDIAN OIL CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, BANDRA (EAST), MUMBAI, PIN - 400 051.` - `2 THE DIRECTOR MARKETING INDIAN OIL CORPORATION LIMITED, MARKETING DIVISION, HEAD OFFICE, BANDRA (EAST), MUMBAI, PIN - 400 051.` - `3 THE EXECUTIVE DIRECTOR OPERATIONS INDIAN OIL CORPORATION LIMITED, INDIAN OIL BHAVAN, BANDRA (EAST), MUMBAI, PIN - 400 051.` - `4 THE GENERAL MANAGER INDIAN OIL CORPORATION LIMITED, OFFICE AT PANAMPILLYNAGAR, KOCHI, PIN - 682 036.` ``` BY ADVS. SRI.PRAMOD.R SRI.P.BENNY THOMAS SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 26473 OF 2012 -2- ``` ## **`JUDGMENT`** 1. The present writ petition at the instance of a dismissed employee while working as Assistant Manager in the Indian Oil Corporation Ltd is directed against the enquiry report, imposition of the disciplinary proceedings and dismissal of the statutory appeal. 2. The facts leading to filing of the writ petition, in brief, are that on 29.08.2009 the petitioner was on second shift duty at the truck load filling bays to supervise the filling operations and release of filled Tank Trucks at TLF Block - (Bay Nos.5 to 12). A tank truck bearing registration No.KL 8/R 2242 was loaded with four kilo liters motor spirit (hereinafter called MS) and also few kiloliters of High Speed Diesel meant for M/s Shiju Fuels Kilimanoor. The Chief Terminal Manager (hereinafter called CTM) intersected the aforementioned truck at around 20.45 hours and found that it had an extra 163 liters of MS and 161 liters of HSD. 3. Petitioner was placed under suspension and ``` WP(C) NO. 26473 OF 2012 -3- ``` was served with the charge sheet on 05.10.2009 imposing the following acts of misconduct and an explanation, was sought, to be submitted within seven(7) days: - (1) Dishonesty in connection with the business or property of the corporation; - (2) Acting in a manner prejudicial to the interest of the corporation; - (3) Commission of any act subversive of discipline or of good behaviour. (4) Failed to maintain absolute integrity and devotion to duty as per sub-clause (a) & (b) of Clause 1 of Rule 6 of Conduct, Discipline & Appeal Rules, 1980 as amended from time to time. 4. An explanation was submitted vide Ext.P2. Dissatisfied with the explanation Enquiry Officer was appointed. Before the Enquiry Officer Management examined two witnesses PW1 Chief Operations Manager and PW2 Chief Terminal Manager, Cochin Marketing ``` WP(C) NO. 26473 OF 2012 -4- ``` Terminal and brought on records Exts.P1 to P17. On the other hand petitioner - Charge Sheeted Employee - examined DW1 one Mr.Biju, former Driver of Tank Truck No.KL 07 R 2242 and brought on record one document Ext.D1 i.e., O.P 70 sheets and Batch Container Unit (BCU) summary sheet dated 29.08.2009 (21 pages). On analysis of the aforementioned documentary and oral evidence, Enquiry Officer found that the charges levelled against the petitioner stood proved. 5. Disciplinary authority on receipt of the enquiry report issued a show cause notice on the petitioner and sought explanation. The explanation submitted by the petitioner was not accepted. It resulted into imposition of punishment of dismissal from service. A statutory appeal was preferred which also resulted into dismissal. 6. Learned counsel appearing on behalf of the petitioner submitted that imposition of punishment of dismissal is not only stigmatic but disproportionate to the charges as noticed above. At the best petitioner could ``` WP(C) NO. 26473 OF 2012 -5- ``` have been imposed though major penalty like stoppage of the few increments with cumulative effect or at the best given an option of compulsory retirement as at the relevant point of time he was aged fifty two (52) years. 7. On perusal of the enquiry report, it is found that management failed to prove on record the losses suffered by the Indian Oil Corporation despite extensive and detailed evidence, both oral and documentary. No effective and proper opportunity was given to cross examine the witnesses and therefore there was a defiance to the principles of natural justice. Recipient of the filling station has also not been examined to establish that petitioner had been indulging into this practice as it was only an isolated instance on account of the fact that automation unit at the filling station of the truck lorry was under fault. 8. On the other hand Mr.Nandakumar, learned Senior Counsel countered the arguments of the learned counsel appearing on behalf of the petitioner that the ``` WP(C) NO. 26473 OF 2012 -6- ``` scope of interference under Article 226 of the Constitution of India is very limited. Even if prima facie it is found that the punishment is disproportionate but for warranting interference there has to be a material to point out that the punishment was ‘strikingly’ disproportionate. In support of the aforementioned contention reliance has been laid to the judgment of honourable Supreme Court in **Union of India and Others Vs. Constable Sunil Kumar (2023) 3 SCC 622** . 9. It was next contended that once the Enquiry Officer after appreciation of the evidence holds the delinquent guilty, the said findings cannot be tinkered with as the scope of judicial view under Article 226 of the Constitution of India is also limited on said count. It is not the case that there was no evidence as far the losses are concerned, Presenting Officer (PO) could not place on record the material but the loose sheets of the OP No. 70 would reveal that the alleged attempt to supply extra ``` WP(C) NO. 26473 OF 2012 -7- ``` fuel was made three and four times in July and August 2009. In support of the contention judgment of honourable Supreme Court in **State of Karnataka and another Vs. N.Gangaraj** AIR 2020 SC 1878 was relied on. 10. It was next contended that two ends of spectrum have to be noticed while exercising the judicial review in disciplinary matters. 1) It embodies the rule of restraint. - 2) The Court has jurisdiction to interfere when a finding in the enquiry are based on no evidence. The present case is not such case which would fall within the second spectrum as there was umpteen number of evidence to hold the delinquent guilty and urged this Court for dismissal of the writ petition. 11. I have heard learned counsel for the parties and appraised the paper book and of the view that there is no force on merit. ``` WP(C) NO. 26473 OF 2012 -8- ``` 12. The scope of interference under Article 226 of the Constitution of India in a disciplinary matter until unless the punishment of dismissal is found to be strikingly disproportionate the punishment cannot be interfered. I rely my findings in paragraph No.11 of the judgment in **Union of India and Others** (supra) which reads thus: “11. Even otherwise, the Division Bench of the High Court has materially erred in interfering with the order of penalty of dismissal passed on proved charges and misconduct of indiscipline and insubordination and giving threats to the superior of dire consequences on the ground that the same is disproportionate to the gravity of the wrong. In Surinder Kumar while considering the power of judicial review of the High Court in interfering with the punishment of dismissal, it is observed and held by this Court after considering the earlier decision in Union of India v. R.K. Sharma that in exercise of powers of judicial review interfering with the punishment of dismissal on the ground that it was disproportionate, the punishment should not be merely disproportionate but should be strikingly disproportionate. As observed and held that only in an extreme case, ``` WP(C) NO. 26473 OF 2012 -9- ``` where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227 or under Article 32 of the Constitution.” 13. This Court as well as the Supreme Court is flooded with the spate of litigation pertaining to imposition of major punishment like dismissal, the matter is being pondered time and again. Lately in 2020 while noticing the scope of interference under Article 226, it was found that the courts while dealing with such matters should be circumspect in exercising jurisdiction, until and unless the disciplinary proceedings are actuated out of no evidence. 14. Paragraph No.33 of the judgment in **State of Rajasthan and others Vs. Heem Singh** (AIR 2020 SC 5455) reads as under: “33. In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid ``` WP(C) NO. 26473 OF 2012 -10- ``` reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy - deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse ``` WP(C) NO. 26473 OF 2012 -11- ``` determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges’ craft is in vain.” 15. In the present case, Enquiry Officer noticed that the petitioner tampered the record three times in July, ``` WP(C) NO. 26473 OF 2012 -12- ``` 2009 and four times in August 2009. Though monitory loss has not been placed on record on account of dereliction on behalf of the Presiding Officer, but the cumulative effect of the findings of the Enquiry Officer reveals that petitioner, as evident from the enquiry report, admitted his guilt of extra fuel loaded in truck bearing Registration No. KL 7 R 2242. All these factors read cumulatively would not lead this Court to differ from the findings of the disciplinary as well as the appellate authority warranting interference under Article 226 of the Constitution of India. Writ petition is devoid of merit, accordingly dismissed. ``` Sd/- AMIT RAWAL JUDGE ``` ``` vv ``` ``` WP(C) NO. 26473 OF 2012 -13- ``` ## **`APPENDIX OF WP(C) 26473/2012`** ## **`PETITIONER EXHIBITS`** - `EXHIBIT P1 TRUE COPY OF THE MEMO OF CHARGES DATED 05.10.2009 ISSUED TO THE PETITIONER` - `EXHIBIT P2 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 09.10.2009` - `EXHIBIT P3 TRUE COPY OF THE ENQUIRY REPORT DATED 14.05.2010` - `EXHIBIT P4 TRUE COPY OF THE ORDER DATED 02.11.2010 ISSUED BY THE GENERAL MANAGER, INDIAN OIL CORPORATION` - `EXHIBIT P5 TRUE COPY OF THE ORDER/COMMUNICATION DATED 23.05.2011 ISSUED BY THE THIRD RESPONDENT` - `EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 11.06.2012 IN WPC NO.12989/2012 OF THIS HONOURABLE COURT` - `EXHIBIT P7 TRUE COPY OF THE ORDER DATED 24.08.2012 ISSUED BY THE 2ND RESPONDENT` - `EXHIBIT P8 COPY OF THE LETTER NO-KESO/LPG/272(A)/43/RTI/2644, DATED 7.5.2018 ISSUED BY THE CENTRAL PUBLIC INFORMATION OFFICER,PARTLY REJECTING THE RTI APPLICATION PREFERRED BY THE PETITIONER.` - `EXHIBIT P9 COPY OF THE 1ST APPEAL DATED 22.5.2018 PREFERRED BY THE PETITIONER BEFORE THE CHIEF GENERAL MANAGER AND THE 1ST APPELLATE AUTHORITY.` - `EXHIBIT P9 A COPY OF THE ORDER DATED 26.6.2018 ISSUED BY THE 1ST APPELLATE AUTHORITY UPHOLDING THE FINDINGS CONTAINED IN` ``` WP(C) NO. 26473 OF 2012 -14- ``` ## `EXHIBIT P9` ``` EXHIBIT P10 ``` ``` COPY COMMUNICATION DATED 6-9-2018 ISSUED BY THE STATE CHIEF INFORMATION COMMISSIONER,KERALA STATE INFORMATION COMMISSION TO THE PETITIONER ALONG WITH RETYPED COPY ``` ## **`RESPONDENTS EXHIBITS`** ``` EXHIBIT R1(A) ``` ``` TRUE COPY OF THE NOTICE DATED 27.08.2010 ISSUED BY THE COMPETENT DISCIPLINARYAUTHORITYWITHOUT ANNEXURES ``` ``` EXHIBIT R1(B)TRUE COPY OF THE REPRESENTATION DATED 08.09.2010 SUBMITTED BY THE PETITIONER ```