N.T. Davis v. Cochin Port Trust and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY ,THE 18TH DAY OF SEPTEMBER 2018 / 27TH BHADRA, 1940** ## **WP(C).No. 23257 of 2013** ## **PETITIONER/S:** **N.T.DAVIS** **S/O LATE N.J. THOMAS, AGED 54, NELLIKULAM HOUSE, BALAN MENON ROAD, KALOOR P.O, KOCHI 682017** **BY ADVS. SRI.P.MARTIN JOSE SRI. ELDHO CHERIAN SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENT/S:** **1 COCHIN PORT TRUST REPRESENTED BY THE SECRETARY, ADMINISTRATIVE OFFICE, KOCHI 682009** - **2 THE CHIEF ENGINEER (CE&A) COCHIN FISHERIES HARBOUR, THOPPUMPADY, COCHIN 682005** - **3 THE CHIEF ENGINEER COCHIN PORT TRUST, COCHIN 682009** **4 THE DEPUTY CHAIRMAN COCHIN POST TRUST, KOCHI 682009** - **5 THE CHAIRMAN THE COCHIN PORT TRUST, KOCHI 682009** **BY ADVS. SRI.K.ANAND (SR.) SMT.LATHA ANAND OTHER PRESENT: SC.SMT,LATHA ANAND** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **P.V.ASHA, J. ---------------------------W.P.(C) No.23257 of 2013 ---------------------------Dated this the 18[th] day of September, 2018** ## **JUDGMENT** **The petitioner, who is working as Assistant Engineer in Cochin Fisheries Harbour (CFH) under the Cochin Port Trust, is aggrieved by Ext.P20 order, by which a penalty of barring of increments for two years and recovery of a sum of Rs.70,570/- are imposed on him. He is also aggrieved by Ext.P22 order, by which his appeal was rejected.** **2. Ext.P13 memo of charge was issued to the petitioner on 03.05.2012 proposing disciplinary action under regulation 12 of Cochin Port Employees (Classification, Control and Appeal) Regulations, 1964, in connection with installation of a water meter. In the statement of article of charge attached to the same, it was alleged that petitioner committed gross misconduct inasmuch as he under his direct supervision/proposal, procured a 200 mm dia Water Meter and 'T' Strainer from M/s.Goodwill Enterprises, Cochin-** W.P.(C) No.23257/13 :3: **35 at a cost of Rs.44,487/- for providing at the Kerala Water Authority's supply point for CFH in order to replace the old and defective water meter; got the new Flanged Water Meter tested for accuracy at the Fluid Control Research Institute, Palghat at a cost of Rs.11,030/- and despite the water meter failing the accuracy test as per their report, installed it at the waterline by engaging M/s.St.Mary's Water Meter Repairing Centre, Kochi-7 at a cost of Rs.15,000/which led to faulty readings and excessive water charges and eventually disconnection of the waterline itself and thus he caused serious dislocation to the Department and inconvenience to the Port Users as also a pecuniary loss to the Port amounting to Rs.70,517/-. It was alleged that the petitioner exhibited lack of integrity and devotion to duty and conduct unbecoming of an employee of the Board and thereby he contravened sub-regulations (1A) and (1C) of Regulation 3 of the Cochin Port Employees (Classification, Control & appeal) Regulations, 1964. The petitioner submitted** W.P.(C) No.23257/13 :4: **Ext.P14 explanation. An enquiry was conducted. The management did not examine any witness. The petitioner examined three witnesses. In the enquiry report Ext.P19 the charges levelled against the petitioner were found proved. The enquiry officer found that on the basis of the documentary evidence dated 18.03.2001 the 200 mm dia water meter and 'T' Strainer were procured from M/s.Goodwill Enterprises, Cochin at a cost of Rs.44,487/; from Annexure-III, certificate of testing issued by the Fluid Control Research Institute, Palakkad, it was found that the petitioner had witnessed the tests on 29.3.2011; as per the test results the meter failed in metering accuracy tests in the flow rates of 7.5 m[3] /hr, 100 m[3] /hr, 125 m[3] /hr, 250 m[3] /hr and 500 m[3] /hr which means the meter has failed in five parameters of testing; a sum of Rs.11,030/- was paid to the FCRI towards accuracy testing of water meter 200mm and Rs.10/- was paid to the Kerala Water Authority; apart from that a sum of Rs.15,000/- was paid to St.Mary's Water Meter Repairing Centre,** W.P.(C) No.23257/13 :5: **Mundamveli, Kochi; supply of water to the consumers of CFH was affected from 6.7.2011 till completion of works. The enquiry officer stated that the petitioner had personally witnessed and verified the test results and water meter which was purchased only about one month back; being a responsible officer, he could have returned the failed water meter to the suppliers, M/s.Goodwill Enterprises, Cochin and recovered the losses caused to the department or could have got a new water meter which pass the test conducted at FCRI, Palghat; he failed to take due care and to exercise proper control of the assigned works and thereby caused serious dislocation to the department and inconvenience to the Port Users and above all caused a pecuniary loss of Rs.70,517/- to the Port. Accordingly the enquiry officer found all the charges proved against the petitioner. Ext.P20 order was passed thereafter, after hearing the petitioner, accepting the findings in the enquiry report awarding the punishment of withholding of increments for a period of two years without** W.P.(C) No.23257/13 :6: **cumulative effect and ordering recovery of the pecuniary loss caused to the Cochin Port Trust amounting to Rs.70,517/-. The petitioner thereupon submitted Ext.P21 appeal before the Chairman pointing out the circumstances under which the Water Meter was procured, tested and installed and the subsequent events. However, the Chairman rejected the appeal as per Ext.P22 order stating that the charges were found proved in the enquiry and as the disciplinary proceedings were conducted in accordance with Regulation 12 of the Cochin Port Employees (Classification, Control and Appeal) Regulations, 1964 after affording reasonable opportunity to defend, it was not necessary to intervene. The petitioner is aggrieved by the appellate order also.** **3. The 1[st] respondent has filed a counter affidavit in justification of the orders impugned.** **4. According to the petitioner, he is not responsible for any loss by procuring and installing the water meter. He has not also caused any dislocation** W.P.(C) No.23257/13 :7: **or inconvenience to the department or the Port users. Petitioner pointed out that the Kerala Water Authority had as per Ext.P1 letter issued on 18.11.2010 directed the Cochin Fisheries Harbor to replace the water meter, failing which it was threatened that disconnection would be effected. Thereafter as per Ext.P3 letter dated 18.03.2011 the 2[nd] respondent addressed M/s.Goodwill Enterprises requesting to supply flanged water meter- Dasmesh make 200mm size for a total cost including all taxes of Rs.44,487/- to the petitioner and that payment would be made by cheque. Accordingly the petitioner purchased the water meter from M/s.Goodwill Enterprises. As per Ext.P4 letter dated 05.04.2011 the 2[nd] respondent accorded sanction to incur an expenditure of Rs.44,487/- towards the cost of water meter. Thereafter 2[nd] respondent as per Ext.P5 order dated 24.03.2011 deputed the petitioner for testing the water meter at Fluid Control Research Institute, Kanjikode West, Palghat on 29.3.2011. It was thereafter that the 2[nd] respondent, as per Ext.P9 letter dated** W.P.(C) No.23257/13 :8: **27.6.2011 informed the Assistant Executive Engineer that water charge bill for the CFH issued by the Kerala Water Authority from its office at Karuvelipady office was more than ten times of actual consumption of water and requested to take action to disconnect the supply of water in order to check the pipeline and water meter. On 29.6.2011, the Asst.Executive Engineer was again addressed as per Ext.P10 letter requesting to give a new 100mm water connection to the CFH from the Water Authority's supply line instead of pumping line. It was much thereafter that the 3[rd] respondent issued a note on 16.11.2011 directing the petitioner to furnish his explanation as to why the proposed disciplinary action should not be taken against him alleging that during the period from March to July 2011 he had procured a water meter and tested its accuracy when he was in charge of the civil maintenance of Cochin Fisheries Harbour Division. It was alleged that Vigilance Department had observed that despite the water meter failing the accuracy test as** W.P.(C) No.23257/13 :9: **per FCRI's test report, the new meter was installed in the water line, leading to faulty readings and excessive water charges, which ultimately lead to disconnection of the waterline on account of the negligence of the Port officials and lack of responsibility. The petitioner was found responsible for the pecuniary loss caused to the Port in connection with the installation and disconnection of the defective water meter of Cochin Fisheries Harbour alleging irresponsibility and lack of devotion to duty.** **5. Even though petitioner explained the circumstances leading to the installation of new water meter in Ext.P12 explanation, he received Ext.P13 memorandum of charges. Producing the deposition of defence witnesses Exts.P16, P17 and P18 the learned counsel for the petitioner points out that there is no evidence against the petitioner to conclude that he had committed any misconduct as alleged in the memorandum of charges.** **6. I heard the learned counsel for the petitioner** W.P.(C) No.23257/13 :10: ## **and the learned Standing Counsel.** **7. This is a case where the prosecution did not examine any witness or marked any documents in the enquiry. The Chief Engineer and Executive Engineer who were examined as defence witnesses were not even cross examined. The 2[nd] respondent-the Chief Engineer was examined as a defence witness and he deposed that it was on the basis of his instructions that the petitioner procured the water meter and got the test results from FCRI and thereafter from the Kerala Water Authority. From the evidence adduced it is seen that the Kerala Water Authority is the authority competent to approve the water meter. Despite the failure results in 5 tests from the FCRI the Water Authority had approved the water meter and it was installed on the basis of such approval. The entire expenditure for the same was sanctioned by the 2[nd] respondent. Therefore even though expenses are incurred and water supply had to be disconnected, there is no evidence to show that the irresponsibility or lack of devotion to duty of** W.P.(C) No.23257/13 :11: **petitioner was the reason for it or that the petitioner had acted in an irresponsible manner. The 2[nd] respondent** **has admitted that the entire proceedings for installation was on his authorisation. No evidence could be brought out in the enquiry, against the petitioner. He had deposed that the meter reading and charges for April 2011 was lesser compared to the charges for previous months. He deposed that he himself had reported to 2[nd] respondent that the new water meter did not bring about any result. Producing D1 to D40 petitioner deposed that the respondents were getting exorbitant bills based on higher readings even before the purchase of meter reading. At the most he proved that the installation of the new water meter and the consequential steps could ultimately put an end to the payment of exorbitant charges towards water which was being made since the year 2000, at his instance with the support of the Chief Engine-the 2[nd] respondent and others.** **8. The 2[nd] respondent who was examined as DW2** W.P.(C) No.23257/13 :12: **deposed that the matter relating to the faulty readings, consumption of water, etc were discussed with the Superintending Engineer who was his class mate, who was very close to him. He also deposed that petitioner himself had reported that no purpose could be served even after changing the water meter. He had also deposed that no loss was caused by placing the faulty water meter. The 2[nd] respondent deposed that the new water meter was installed after discussion with the SE, KWA. In answer to the question whether loss was sustained by installing new water meter, the 2[nd] respondent deposed that the earlier bills came to Rs.1.65 lakhs and it has been reduced to Rs.35,000/-. The Executive Engineer also deposed that the test result from FCRL were taken to the KWA the competent authority. The CE as well as the petitioner deposed that the problem was not with the meter and it could be found out only later. It was on direction from KWA under threat of recovering 100% penalty that the new water meter was purchased. The Junior Engineer who** W.P.(C) No.23257/13 :13: **installed the water meter also corroborated the version of the other witnesses. He deposed that the new water meter continue to be in use in a different line. From 2000 onwards the respondents were paying huge bills at the rate of Rs.1,65,000/- and the correct problem could be found out only after the new water meter was installed and corrective measures were taken thereafter by the petitioner. The problem was solved when connection was taken from the supply line, when the technical defect could be detected. The testimony of the petitioner that no loss was caused to the respondents on account of the installation of water meter remained unrebutted; it was only corroborated. The petitioner had pointed out the defects in the water meter after it was installed and it was after several trial and errors finally the problems were resolved. The prosecution did not even mark the documents which were shown annexed to memorandum of charges, based on which the charges were alleged against him. Nobody adduced any evidence to prove that any dislocation or** W.P.(C) No.23257/13 :14: **inconvenience was caused either to the Port Trust or the user under it. There cannot be any valid finding without the support of legal evidence on record. Despite all this the inquiry officer simply reiterated the allegations in the memo of charges, referring to the documents sanctioning amounts towards purchase, testing and installation of the water meter and concluded that petitioner could have returned the water meter and collected refund, even in the absence of any such allegation or even an attempt to prove the same from the part of the prosecution. It is accepting such findings of guilt rendered by the enquiry officer without the backing of any legal evidence on record that the disciplinary authority awarded punishment and the appellate authority confirmed it.** **It is well settled that this Court under Article 226, is not supposed to re-appreciate the evidence and that scope of interference in departmental proceedings are very limited. However as held in** _**Union of India v. P. Gunasekaran, (2015) 2 SCC 610**_ **, when the respondents** W.P.(C) No.23257/13 **==> picture [18 x 8] intentionally omitted <==** **have arrived at their conclusions on considerations extraneous to the evidence and merits of the case or in a case where there is no evidence this Court can definitely interfere. Accordingly, the findings in the enquiry report Ext.P19, order Ext.P20 as well as the order Ext.P22 are set aside.** **The writ petition is allowed accordingly.** **Sd/-** **P.V.ASHA** **JUDGE** rkc W.P.(C) No.23257/13 :16: ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXHIBIT P1 TRUE COPY OF THE REPORT/ ORDER DATED 18-11-2010 SUBMITTED BY THE ASST. EXECUTIVE ENGINEER, KERALA WATER AUTHORITY TO THE 2ND RESPONDENT** - **EXHIBIT P2 EXHIBIT P2 TRUE COPY OF THE INVOICE DATED 03-03-2011 SUBMITTED BEFORE THE 2ND RESPONDENT** **EXHIBIT P3 EXHIBIT P3 TRUE COPY OF THE LETTER DATED 18-03-2011 OF THE 2ND RESPONDENT** - **EXHIBIT P4 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 05-04-2011 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P5 EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS DATED 24-03-2011 OF THE 2ND RESPONDENT** - **EXHIBIT P6 EXHIBIT P6 TRUE COPY OF THE TEST REPORT DATED 29-03-2011** - **EXHIBIT P7 EXHIBIT P7 TRUE COPY OF THE APPLICATION FOR METER TESTING DATED 01-04-2011 SUBMITTED BY THE 2ND RESPONDENT** - **EXHIBIT P8 EXHIBIT P8 TRUE COPY OF THE SANCTION ORDER OF THE 2ND RESPONDENT DATED 0804-2011** - **EXHIBIT P9 EXHIBIT P9 TRUE COPY OF THE REQUEST OF THE 2ND RESPONDENT TO THE ASST. EXECUTIVE ENGINEER, KWA DATED 27-06-2011** **EXHIBIT P10 EXHIBIT P10 TRUE COPY OF THE LETTER DATED 29-06-2011 OF THE 2ND RESPONDENT TO THE ASST. EXECUTIVE ENGINEER,** W.P.(C) No.23257/13 :17: **EXHIBIT P11 EXHIBIT P11 TRUE COPY OF THE LETTER DATED 16-11-2011 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER EXHIBIT P12 EXHIBIT P12 TRUE COPY OF THE REPLY DATED 23-11-2011 OF THE PETITIONER EXHIBIT P13 EXHIBIT P13 TRUE COPY OF THE MEMORANDUM OF CHARGES AND ARTICLES OF THE CHARGES BY THE 4TH RESPONDENT DATED 03-05-2012 EXHIBIT P14 EXHIBIT P14 TRUE COPY OF THE EXPLANATION DATED 17-05-2012 SUBMITTED BY THE PETITIONER TO THE EXT P13 EXHIBIT P15 EXHIBIT P15 TRUE COPY OF THE DEPOSITION OF PETITIONER EXHIBIT P16 EXHIBIT P16 TRUE COPY OF THE DEPOSITION OF K.J. WILSON EXHIBIT P17 EXHIBIT P17 TRUE COPY OF THE DEPOSITION OF SHAMSUDHIN EXHIBIT P18 EXHIBIT P18 TRUE COPY OF THE DEPOSITION OF A.G. SATHYAN EXHIBIT P19 EXHIBIT P19 TRUE COPY OF THE REPORT DATED 16-11-2012 OF THE ENQUIRY OFFICER EXHIBIT P20 EXHIBIT P20 TRUE COPY OF THE ORDER DATED 03-04-2013 OF THE 4TH RESPONDENT EXHIBIT P21 EXHIBIT P21 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER TO THE 5TH RESPONDENT EXHIBIT P22 EXHIBIT P22 TRUE COPY OF THE ORDER OF THE 5TH RESPONDENT DATED 23-08-2013 RESPONDENTS' EXHIBITS : NIL**