N. Rajagopal Kanjirampara v Union of India and Hindustan Paper Corporation Ltd and Hindustan Newsprint Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937** **WP(C).No. 33732 of 2006 (N) ----------------------------** **PETITIONER(S): -------------** **N.RAJAGOPAL KANJIRAMPARA, THIRUVANANTHAPURAM.** **BY ADVS.SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SMT.R.BINDU SRI.T.S.ABDUL KHADER SMT.P.ANJANA SRI.P.M.UNNI NAMBOODIRI** **RESPONDENT(S):** **--------------** **1. UNION OF INDIA THE SECRETARY, DEPARTMENT OF HEAVY INDUSTRIES,, GOVERNMENT OF INDIA, NEW DELHI.** **2. HINDUSTAN PAPER CORPORATION LTD., REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR, RUBY BUILDINGS, 75-C, PARK STREET,, CALCUTTA-700 016.** **3. HINDUSTAN NEWSPRINT LTD., REP. BY MANAGING DIRECTOR, NEWS PRINT NAGAR P.O.,, KOTTAYAM DISTRICT-686 616.** **R,R2,3 BY ADV. SRI.U.K.RAMAKRISHNAN (SR.) R,R3 BY ADV. SRI.V.KRISHNA MENON R,R3 BY ADV. SMT.UMA GOPINATH R,R.2,3 BY ADV. SMT.P.VIJAYAMMA R,R1 BY ADV. SRI.U.K.RAMAKRISHNAN (SR.)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WPC NO.33732/2006** **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1: TRUE COPY OF THE MEDICAL CERTIFICATE DT 7.2.1991 ISSUED BY DR. P SANKARANKUTTY TO THE PETITIONER.** **EXT.P2: TRUE COPY OF THE LETTER NO. HNL/PER/223 DT 25.07.1994 ISSUED BY DY. GENERAL MANAGER** **EXT.P3: TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE EXECUTIVE DIRECTOR, HINDUSTAN NEWSPRINT, KOTTAYAM ON 27.10.1994** **EXT.P4: TRUE COPY OF THE PETITION FOR review TO THE 2ND RESPONDENT DT 20.11.1995** **EXT.P5: TRUE COPY OF THE REPLY OF THE 2ND RESPONDENT DT 24.8.1998 RECEIVED BY THE PETITIONER** **EXT.P6: TRUE COPY OF THE JUDGMENT DT 26.5.2006 IN OP NO. 607/99** **EXT.P7: TRUE COPY OF THE NOTICE CUM ARTICLES OF CHARGES DT 5.7.2006** **EXT.P8: TRUE COPY OF THE ENQUIRY REPORT OF K. VIMALA DT 14.1.1993** **EXT.P9: TRUE COPY OF THE ENQUIRY REPORT OF K. VIMALA DT 5.7.94** **EXT.P10: TRUE COPY OF the LETTER DT 6.7.2006 ISSUED BY 2ND RESPONDENT** **EXT.P11: TRUE COPY OF the ORDER DT 1.9.2006 IN I.A NO. 12118/2006 IN OP NO. 607/99** **EXT.P12: TRUE COPY OF THE ORDER DT 11.10.2006 IN I.A. NO. 13673/2006 IN OP NO. 607/99** **EXT.P13: TRUE COPY OF THE JUDGMENT DT 13.11.2006 IN WPC NO.29425/2006** **EXT.P14: TRUE COPY OF THE COVERING LETTER DT 28.8.2006** **EXT.P15: TRUE COPY OF THE ENQUIRY REPORT OF AN KUTTAN DT 24.8.2006** **EXT.P16: TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER TO THE DEPUTY GENERAL MANAGER (HR& ES)** **EXT.P17: TRUE COPY OF THE ORDER OF TERMINATION DT 22.09.2006 ISSUED BY THE 3RD RESPONDENT** **EXT.P18.TRUE COPY OF the APPEAL DATED 31.8.2009 BEFORE THE CHAIRMAN CUM MANAGING DIRECTOR, HINDUSTAN PAPER CORPORATION LTD** **EXT.P19: TRUE COPY OF the COMMUNICATION DT 19.10.2009** **EXT.P20: TRUE COPY OF THE COMMUNICATION DT 19.12.2011 EXT.P21: TRUE COPY OF THE COMMUNICATION DT 21.5.2012** **EXT.P22; TRUE COPY OF THE LETTER DT 27.8.2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** ## **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.A TO JUDGE** **jma** ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 33732 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of March, 2016 ## J U D G M E N T The petitioner is aggrieved with the termination order at Ext.P17. Ext.P17 is passed by the disciplinary authority after an enquiry was conducted into the misconducts alleged against the petitioner by an independent enquiry officer. The petitioner was participated in the enquiry and the petitioner does not raise any ground of any procedural infirmity or violation of principles of natural justice, insofar as the conduct of enquiry or the manner in which the disciplinary authority had passed the termination order. The petitioners contentions are two fold; one based on Ext.P6 judgment; that this Court never permitted a fresh enquiry to be conducted and the enquiry having already been conducted, the management could not ignore the same and order a fresh enquiry on the same set of facts as has been held in 2014(10) SCC 589 (Vijay Shankar Pandy v Union of India and another). The WPC.No.33732/2006 : Page numbers : petitioner also contends that the order of termination is harsh and is not proportionate to the misconduct alleged against the petitioner. 2. The background facts are to be looked into. The petitioner while working as an Executive, under the 2[nd] respondent Corporation, filed an application for leave on 06.02.1991 for two days, i.e; on the 7[th] and 8[th] . The reason cited was to accompany his aged mother to the Doctor. The petitioner did not join duty after the leave applied for and on 12.02.1991, an application for extra ordinary leave was submitted on grounds of rheumatic complaints; with a medical certificate issued by an Ayurvedic Physician who was also a Professor of the Ayurveda College. The request for leave was not sanctioned and the petitioner was asked to report for duty. Upon which, the petitioner addressed the Managing Director requesting a transfer to the Liaison Office of the Corporation at Thiruvananthapuram. Again, the petitioner was advised to report WPC.No.33732/2006 : Page numbers : for duty and was directed to present himself before the Senior Medical Officer of the Corporation. The petitioner did neither. 3. It was in that circumstance, the petitioner was proceeded with departmentally and issued show cause notice to which the petitioner submitted an explanation. Not satisfied with the same an enquiry was ordered. The Managing Director had first issued a Memo dated 19.03.1991. The petitioner reported for duty on 05.04.1991 and the Managing Director issued order dated 17.04.1991, scheduling the enquiry. The enquiry ordered was with respect to the unauthorised absence between 07.02.1991 and 05.04.1991. This was concluded with Ext.P8 report dated 14.01.1993. In the meanwhile the petitioner had again absented himself without authorisation from 07.10.1992. Considering his continuous unauthorised absence from 07.10.1992, though the enquiry, with respect to the earlier instance of un-authorised absence had concluded, finding him guilty; the respondent terminated the WPC.No.33732/2006 : Page numbers : petitioner with three months notice which was challenged before this Court in O.P No.607/99. 4. In Ext.P6 judgment this Court noticed that though there was an enquiry conducted in which the petitioner was found guilty, the company had not proceeded with the same and had terminated the employee; even without supplying the enquiry report. The subsequent unauthorised absence of the petitioner, extending over two years was noticed; which according to the Corporation was the reason for termination. Looking at the manner in which the termination was ordered, it was found that the termination was on allegation of indiscipline, against which enquiry was already held and the Corporation should have taken the proceedings to its logical conclusion. The Corporation contented before this Court that it had by way of a gracious gesture, terminated the employee with notice pay of three months, so as to avoid any black mark and adverse consequence for future WPC.No.33732/2006 : Page numbers : employment. The Court however held that the action of the Corporation was not justified; since what was apparently clear from the earlier proceedings were not relied upon and the petitioner was terminated abruptly without any consideration of the findings in the enquiry. 5. The Court hence set aside the termination order and issued the following directions. “O.P is therefore technically allowed quashing the termination order with direction to the company to serve copy of the enquiry reports on the petitioner, propose disciplinary action if any proposed against the petitioner and pass final orders within a period of three months from today. Petitioner will produce a copy of this judgment before the company, receive notices and cooperate in the enquiry and further proceedings, WPC.No.33732/2006 : Page numbers : such as filing of reply on due dates and appear for hearing if required. But if no action is proposed against the petitioner, then all the eligible benefits should be given to the petitioner, including reinstatement. Petitioner need not be reinstated until final orders are issued by the Company.” The entire contention of the petitioner is based on this operative portion of the judgment. 6. The learned counsel for the petitioner argues that what was directed in Ext.P6 judgment was only that the enquiry report be supplied and the petitioner be heard on the enquiry report and the disciplinary authority merely had to decide as to whether on the evidence adduced at the Enquiry; the guilt of the petitioner, could be brought home. There was no fresh enquiry directed; is the specific contention taken. The subsequent enquiry conducted when there was already an enquiry report on record WPC.No.33732/2006 : Page numbers : goes against the dictum in Vijay Shankar Pandey(supra), argues learned counsel. 7. This Court is unable to countenance the argument of the petitioner, looking at the directions in Ext.P6. The termination having been set aside the petitioner was directed to be served a copy of the enquiry report and it was also directed that the disciplinary action if any proposed would be continued and final orders would be passed within a period of three months from that date. The petitioner was also directed to co-operate with the enquiry and further proceedings, if required. Hence there was in effect two directions in Ext.P2; (i) to 'serve copy of the enquiry reports', which obviously is of the concluded enquiry and (ii) to 'propose disciplinary action'. The proposal specifically was directed since this Court had taken note of the fact that, pending the initial enquiry the petitioner had again absented without sanction for about two years; upon which the termination order was issued. It WPC.No.33732/2006 : Page numbers : cannot hence be contented that this Court had confined the further consideration, to the enquiry report already submitted, limited to the earlier instance of unauthorised absence. This Courts finding in Ext.P6 essentially was that the termination order was not a follow up of what actually transpired. While the Corporation could have taken the enquiry completed to its logical conclusion, the Corporation prevaricated and issued a termination order without reliance to the misconduct alleged. This was the short ground on which the termination was set aside and the same was specifically stated to be on “technical” grounds in Ext.P6 itself. 8. It was a matter of record, even when the earlier writ petition was heard, that the petitioner had re-joined the Corporation on 5.4.1991 and again remained absent from 07.10.1992 to 25.07.1994; without sanction, which constitutes a further misconduct. The respondent Corporation, earlier had decided not to proceed with a further enquiry since there was WPC.No.33732/2006 : Page numbers : decision taken to order, a termination simplicitor with three months notice pay; without casting any black mark on the petitioner. Further when the termination order is set aside, if the employee had been guilty of any other misconduct, it cannot be said that the employer could only proceed with the enquiry already concluded. The employer would be entitled to proceed against those other misconducts also. 9. What the Corporation did here was to issue a fresh show cause notice including the earlier charge, as also the further instance of unauthorised absence, between 07.10.1992 and 25.07.1994; the date of termination and two other charges. The additional charges were with respect to criminal cases filed against the petitioner under the Negotiable Instruments Act and the fraudulent act of having retrieved a title deed deposited pursuant to a mortgage. Having thus retrieved the title deed on false pretenses; the property mortgaged was also sold by the petitioner. WPC.No.33732/2006 : Page numbers : ## 10. The enquiry was proceeded with and Ext.P15 report was filed by the Enquiry officer. The charges levelled on the basis of the allegations of misconduct are specifically indicated in Ext.P15, as follows: - a. Wilful insubordination/disobedience of any lawful and reasonable order of his superiors- Rule 5 (vii) - b. Absence without leave - Rule 5 (vii) - c. Irregular attendance - Rule v (ix) and - d. Commission of any act subversive of discipline and good behaviour- Rule 5(ix) 11. It has already been held that even if Ext.P6 had only directed conclusion of the enquiry proceedings earlier initiated, the employer Corporation would not be precluded from proceeding against the petitioner for any other misconduct, following the procedure contemplated, of issuing a charge sheet and calling for his explanations. The subsequent charge sheet, WPC.No.33732/2006 : Page numbers : though admittedly issued has not been produced. The petitioner asserts that an explanation is filed, but that too is not produced. The petitioner contends that an objection was taken that fresh enquiry cannot be conducted, but there is nothing on record to substantiate that. The learned counsel for the petitioner would only refer to the objections taken in Ext.P16 which is as follows: “As the date stipulated in the judgment for taking disciplinary action if any against me if so necessary, expired on 25.08.2006 the Company now has no authority what so ever, to issue the letter dt. 28.08.2006 cited. But how ever, in order to counter the baseless allegations I am furnishing below my reply to the letter.” Even going by the objections taken, it is clear that the petitioner was also under the impression that a fresh disciplinary action was contemplated by Ext.P6 judgment and the objection only was that WPC.No.33732/2006 : Page numbers : the time granted by this Court expired on 25.08.2006. 12. Be that as it may, the fact remains that there were four allegations of misconduct which led to the charges extracted above, being levelled against the petitioner. The allegations of misconduct were, (i) the unauthorised absence between 06.02.1991 and 05.04.1991, (ii) that between 07.10.1992 and 25.07.1994, (iii) the initiation of criminal cases against the petitioner under the N.I Act and (iv) the fraudulent action of the petitioner, of retrieving the title deeds deposited as mortgage, from the respondent Corporation and selling the property so mortgaged. 13. The reliance placed by the petitioner on Vijaya Shankar Pandey (supra) would not be applicable to the facts of the present case. An enquiry ordered into allegations of misconduct, levelled against an IAS officer, based on the averments made by him in a Writ Petition, criticising the Government ended with the enquiry officer exonerating him of the charges. The Government WPC.No.33732/2006 : Page numbers : then constituted a different Enquiry Board of two members to conduct an enquiry de novo. Therein the initial enquiry had found the delinquent employee not guilty of the misconducts alleged and the disciplinary authority had then ordered a fresh enquiry. The Constitution Bench decision referred to, was also on identical facts. In the present case, a reading of the first report, Ext.P8, would indicate that the petitioner even at the first instance was found guilty. In such circumstance, there is no prejudice caused to the petitioner in ordering a fresh enquiry, which also found him guilty of the offence. 14. Pertinent also is the fact that a fresh enquiry was ordered by reason, presumably, of the allegations raised against the Corporation by the petitioner. It is revealed from the records that after the first enquiry, the petitioner had raised a contention that the Corporation was harassing the petitioner unnecessarily, which also was enquired into by the Corporation as is disclosed WPC.No.33732/2006 : Page numbers : from Ext.P9 enquiry report. It is also to be noticed that Ext.P8 enquiry was carried out by an officer of the Corporation itself. In the wake of such allegations if the Corporation thought it fit to appoint an independent enquiry officer, an Advocate, no fault could be found in such action. At any rate, even if the findings on the first instance of misconduct of unauthorised absence, in the second report, Ext.P15 is ignored, it is evident that such charges were found against the petitioner in the first report at Ext.P8. 15. As already found, the petitioner cannot on the basis of Ext.P6 contend that the termination order having been set aside, the Corporation could not level any fresh charges. The Corporation had also levelled charges against the petitioner, with respect to the unauthorised absence occasioned subsequent to the earlier misconduct, but before the first termination. The retrieving of the mortgage deed also was occasioned in pursuance to an application dated 06.10.1990 and the Corporation had been WPC.No.33732/2006 : Page numbers : repeatedly seeking for return of the said document. It is also revealed later, that the petitioner had sold the property by deed No.567/1992 dated 18.02.1992, when he was continuing on unautorised absence at the first instance. On the termination order being set aside no defect can be found in the Corporation having issued a fresh show cause notice including three additional charges. In the enquiry proceeded with through an independent enquiry officer, the petitioner was fully participated . The petitioner does not raise any allegation of procedural flaws resulting in the delinquent being not offered an adequate and reasonable opportunity to defend himself. The earlier enquiry report was served on the petitioner by Ext.P7 dated 05.07.2006. It was also produced in the new enquiry conducted. In the context of the first enquiry report and the subsequent enquiry report having been served on the petitioner, no ground can be raised of violation of principles of natural justice. WPC.No.33732/2006 : Page numbers : 17. What remains is the consideration of sustainability of the termination order on the basis of the enquiry report. As has been argued by the learned counsel for the respondent company, the scope of interference under Article 226 and 227 of the Constitution is confined and constricted insofar as examining as to whether there is any procedural irregularity, violation of principles of natural justice or whether the decision was influenced by any extraneous considerations or vitiated for reason of admissible evidence having been not looked into and last, but not the least of the decision being perverse. This court would not sit as an appellate Court and re-examine the facts and evidence adduced at the enquiry. The scope of interference under Article 226 and 227, in a disciplinary proceeding is delineated in 2015(2) SCC 610 (Union of India v. P. Gunasekaran). In such circumstance, an examination of the facts, or re-appreciation of the evidence would not be required. The petitioner has been found guilty of the WPC.No.33732/2006 : Page numbers : charges levelled against him on the basis of three allegations of misconduct and exonerated of one. Two instances of unauthorised absence and one instance of a fraud having been perpetrated against the respondent Corporation, were found against him. 18. The unauthorised absence on both the instances is admitted. The petitioner's contention is that the petitioner was sick and he had produced the medical certificates. The petitioner had at the first instance, refused to appear before the Medical Officer of the Corporation as specifically directed by them. Further the medical certificate in support of the application stated the petitioner to be suffering from rheumatic complaints. When the sanction was declined by the Corporation, the petitioner turned around and sought for a transfer to Thiruvananthapuram, which belied his claim that he could not attend to work due to his rheumatic complaints. As was noticed, the petitioner joined back and an enquiry was initiated and continued against the petitioner WPC.No.33732/2006 : Page numbers : for unauthorised absence. While such an enquiry was going on, the petitioner again went on unauthorised absence for two years. The production of medical certificate in that context would not be of any consequence. The misconduct alleged of unauthorised absence stood proved at the enquiry and there could be no interference caused to such findings. The disciplinary authority also concurred with the finding of the Enquiry Officer, rightly so. 19. The petitioner having retrieved the title deed deposited on mortgage fraudulently and the mortgaged property having been sold are also found. The learned counsel for the petitioner would argue that there can be no fraud alleged since the sale made is subject to the mortgage. Hence the sale of mortgaged property is admitted. The fraud alleged on the employer, who had granted a loan; is not only of the sale of the property. Foremost it was without information to the mortgagor or the latter's permission. The fact that the employee had, under false pretenses, retrieved the “deposited title WPC.No.33732/2006 : Page numbers : deeds” from the creditor/employer and having not returned them for long causes serious prejudice to the rights of the mortgagor. This is for the reason that the deposit made of the title deeds is necessary to evidence the mortgage and the further transactions based on the original title deed, after retrieving it from the mortgagor; puts the security interest in peril. The employee having thus retrieved the deposited title deeds on false pretenses is also shown to have sold the property thus mortgaged to the employer Corporation, to third parties. No interference is possible to the findings in the enquiry and the findings of the Disciplinary Authority; based on the evidence adduced at the enquiry. 20. As to the proportionality of the punishment the learned counsel for the petitioner relies on 2004(4) SCC 560 (Shri Bhagwan Lal Arya v. Commissioner of Police) wherein the Hon'ble Supreme Court found that the punishment of dismissal of an employee for absence of more than two months on medical WPC.No.33732/2006 : Page numbers : grounds, without sanction of leave, cannot be upheld since the same cannot be regarded as a grave misconduct. Examining the facts in the present case, two allegations of misconduct were on the ground of unauthorised absence. The petitioner admittedly took leave for two days and then, unauthorisedly absented himself till 05.04.1991. The petitioner was directed by the Corporation to appear before their senior medical officer. The petitioner did not obey the directions of the employer. The petitioner then rejoined duty on 05.04.1991 and during the course of the enquiry proceedings again absented himself from 07.10.1992. The total unauthorised absence was 636 days that too, the second instance when a proceeding for unauthorised absence was being carried out against him departmentally. 21. Yet again, very serious allegations having caused distress to the security interest of the respondent Company by retrieving a document deposited as title deed, creating a WPC.No.33732/2006 : Page numbers : mortgage, and selling the property was also alleged against the petitioner. It was found that the petitioner had later returned the document. But that would not efface the misconduct; since a sale was effected. That could have been effected only by misleading the purchaser as to no charge being subsisting, by reference to the original title deed. The contention raised that any sale would be subject to the mortgage shows the callous attitude of the employee and discounts the distress caused to the interest of the Corporation/employer who had granted loan on the strength of the said security. This is not a case where the petitioner had merely absented himself for two months on medical grounds without sanction of leave as is seen from the facts in Shri Bhagwan Lal Arya (supra). More apposite would be reference to P. Gunasekharan (supra) where the Court upheld the punishment of compulsory retirement, for the misconduct of signing the attendance register and keeping away from duty for a single day, WPC.No.33732/2006 : Page numbers : finding it to be a conduct reflecting dishonesty and lack of integrity. Considering the gravity of the offences, this Court is satisfied that the punishment of termination is in order. Writ petition would stand dismissed. No costs. Sd/- - (K. VINOD CHANDRAN, JUDGE) jma //true copy// P. A to Judge