N.V. Pappachan v. Plantation Corporation of Kerala Limited and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 21ST DAY OF FEBRUARY 2013/2ND PHALGUNA 1934** ## **WP(C).No. 22723 of 2010 (M) ---------------------------** **PETITIONER:** **-----------** **N.V.PAPPACHAN,FIELD WORKER (UNDER ORDERS OF DISMISSAL), PF.NO.7734, DIVISION 'D' KALLALA ESTATE, PLANTATION CORPORATION OF KERALA LTD. RESIDING AT NETTIKADAN VEEDU, MANJAPPRA P.O., ANAMALI ERNAKULAM DISTRICT.** **BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN** **SRI.GEORGE MATHEW** **SRI.DIPU JAMES** **RESPONDENTS:** - **-----------** **1. THE PLANTATION CORPORATION OF KERALA LIMITED, REP. BY ITS MANAGING DIRECTOR KOTTAYAM-686 004.** **2. THE MANAGER, KALLALA ESTATE,** - **PLANTATION CORPORATION OF KERALA LTD.** **KALADY PLANTATION, KALADY, ERNAKULAM DISTRICT.** **3. C.D.AUGUSTHY, FIELD EXECUTIVE I/C,** **KALLALA ESTATE, PLANTATION CORPORATION OF KERALA, LTD. KALADY PLANTATION-ENQUIRY OFFICER.** **BY ADVS.SRI.V.ABRAHAM MARKOS** **SRI.MATHEWS K.UTHUPPACHAN SRI.BINU MATHEW SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH SRI.TOM THOMAS (KAKKUZHIYIL) SRI.RAJU SEBASTIAN VADAKKEKARA, SC, PLANTATION CORPORATION SRI.JOSEPH KODIANTHARA, SC, PLAN.CORPN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** ## **WP(C).No. 22723 of 2010 (M)** ## **---------------------------** ## **APPENDIX -------** ## **PETITIONER'S EXHIBITS** **---------------------** **EXT.P1. COPY OF THE NOTICE DATED 17.11.2004.** **EXT.P2. COPY OF MEMO OF CHARGES NO.KLA/LAB/4/3062 DATED 24.02.2005.** **EXT.P3. COPY OF EXPLANATION DATED 11.3.2005 SUBMITTED BY THE PETITIONER.** **EXT.P4. COPY OF ORDER DATED KLA/LAB/4/3180 DATED 16.03.2005 ISSUED BY 2ND RESPONDENT.** **EXT.P5. COPY OF THE LETTER NO.KLA/LAB/4/393 DATED 24.03.2006.** **EXT.P6. COPY OF THE ENQUIRY REPORT 13.2.2006.** **EXT.P7. COPY OF THE OBJECTIONS DATED 25.03.2006** **EXT.P8. COPY OF THE ORDER NO.KLA/LAB/4/860 DATED 18.05.2006.** **EXT.P9. COPY OF JUDGMENT IN WPC NO.14298 OF 2006 DATED 02.01.2007.** **EXT.P10. COPY OF NOTICE NO.KLA/LAB/4/293 DATED 26.02.2007 ISSUED BY 2ND RESPONDENT.** **EXT.P11. COPY OF APPEAL FILED BY THE PETITIONER DTD. 10.03.2007.** **EXT.P12. COPY OF THE JUDGMENT DTD. 12.07.2007 IN WPC NO.19879 OF 2007.** **EXT.P13. COPY OF THE HEARING NOTE DATED 12.08.2007.** **EXT.P14. COPY OF THE JUJDGMENT DTD. 27.02.2010 IN C.C. NO.217 OF 2005 OF JFCM COURT, PERUMBAVOOR.** **EXT.P15. COPY OF THE REPRESENTATION DTD. 19.03.2010 SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT.** **EXT.P16. COPY OF REQUEST MADE BY THE PETITIONER.** **EXT.P17. COPY OF THE LETTER NO.PCK/LEGAL 892 DTD. 17.05.2010.** **RESPONDENT'S EXHIBITS : NIL** **----------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **T.R.RAMACHANDRAN NAIR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 22723 of 2010** **- - - - - - - - - - - - - - - - - - - - - - - - - - DATED THIS THE 21[st] DAY OF FEBRUARY, 2013** ## **JUDGMENT** The petitioner who was a field worker under the first respondent Corporation, is aggrieved by the order dismissing him from service which is confirmed in appeal. 2. Learned counsel for the petitioner mainly submitted that a reading of the enquiry report will show that the misconduct has not been proved by any evidence. Even though he was arrayed as an accused in a criminal case, the criminal court, after evaluation of the evidence, has found him not guilty and accordingly acquitted. It is therefore submitted that there is no legal evidence against the petitioner to support the allegation of misconduct and therefore the entire action leading to the dismissal and the rejection of the appeal cannot be supported. 3. Learned counsel for the Management submitted that in the enquiry report there is a finding about the commission of misconduct by the petitioner and therefore the disciplinary action is perfectly justified. It is also submitted that even if the same allegation was there in a criminal case, the judgment of acquittal cannot have a bearing on the dismissal w.p.c.no.22723/2010 -2- order. 4. The facts of the case show that the petitioner was employed as a field worker under the Plantation Corporation of Kerala. The allegation is one of theft of aluminium cables having length of 192 metres. A crime was registered against him under Section 379 I.P.C. He was suspended as per Ext.P1 order. Thereafter, a charge memo was issued as per Ext.P2 and Ext.P3 is the explanation submitted by the petitioner who denied the entire allegations. An enquiry officer was appointed as per Ext.P4 and a Senior Field Assistant was appointed as Presenting Officer. It is the contention of the petitioner that none of the Management witnesses supported the alleged charge of theft committed by the petitioner and without even an iota of evidence to prove the misconduct, the enquiry officer found him guilty of the charges. 5. Ext.P6 is the copy of the enquiry report. A reading of the said report will show that the witnesses cited by the Management did not depose that the petitioner has committed the theft. The witnesses were cross examined by the petitioner. The conclusions of the enquiry officer are clear from internal page 24 of the writ petition. The gist of the same is that even though it is clear that aluminium cables have been stolen, as evident from w.p.c.no.22723/2010 -3- the deposition of the witnesses, the witnesses Shri Benny and Shri Sivadasan have not seen that the same have been taken away by the petitioner. 6. In the next paragraph of the report, mention is made about the arrest of the petitioner on 16.11.2004 and the issuance of the suspension order. Therefore, it is stated that there is a doubt about his complicity. In the final paragraph also it is stated that nobody has seen that the petitioner has taken away the aluminium cables, but it is mentioned that since the Police has arrested him and there is a recovery from the shop in the presence of the petitioner, the disciplinary actions were taken and therefore it is clear that the misconduct has been proved. 7. Learned counsel for the petitioner is right in submitting that none of the witnesses supported the charge that the petitioner has stolen the aluminium cables. The finding of the enquiry officer is only based on the recovery made by the Police from a shop. Therefore, there is no legal evidence in support of the charges, as is clear from the report. 8. Then, we will have to examine whether the finding rendered that the misconduct has been proved in the light of the Police case, can be supported. Ext.P14 is the judgment of the criminal court. A reading of the w.p.c.no.22723/2010 -4- judgment will show that P.Ws.1 to 9 were examined. P.W.2 is the Supervisor and P.Ws.3 and 4 are the scrap iron merchants from whom it is alleged that the Police have recovered the stolen articles. In para 7 of the judgment, it is recorded as follows: “P.Ws.3 and 4 are the scrap iron merchants from whom the police is said to have recovered the sold property on the basis of the confession alleged to have given by the accused. These persons did not identify the said accused standing in the dock and would say that they did not remember who had sold these things to the said shop. The witness to the recovery is P.W.5 who also failed to identify the accused and would say that he did not know what is written in the said mahazar. The said witness, P.W.5 did not support the prosecution case. P.W.7 is an employee of the Kallala estate also would say that he did not know any of the allegations levelled against the accused. So, he also remained hostile.” In para 8 of the judgment, the learned Magistrate has discussed the prosecution case and the evidence. With regard to the alleged confession made by the accused, the finding is the following: “The confession said to have recorded by the investigating officer will not have the necessary ingredients because authorship of the person who is said to have committed the theft w.p.c.no.22723/2010 -5- and handed over the property to the shops is not seen revealed in the said confession. Moreover the shop owners from whom the alleged recovery was effected and the witness to the said recovery are not supporting the prosecution case.” In the latter part of the same paragraph, with regard to the charge framed against the petitioner, the finding is the following: “The further case of the prosecution is that the accused had taken the aluminium wire from the said place and using a stone it was broken the aluminium wires in the day light in the estate itself. But none of the witnesses are supporting the said case.” It is clear from a reading of para 9 of the judgment that there is no evidence to show that the property recovered was as per the version given by the accused and the court was of the view that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. 9. Learned counsel for the Management submitted that the same is not an honourable acquittal and the petitioner will not be entitled to rely upon the said judgment. 10. Of course it is true that in a domestic enquiry the Management will be able to adduce independent evidence even though a criminal case was also registered. Learned counsel for the petitioner relied upon a w.p.c.no.22723/2010 -6- decision of the Apex Court in **G.M. Tank v. State of Gujarat & another** (AIR 2006 SC 2129) in that context. The issue considered therein is with regard to the initiation of simultaneous disciplinary proceedings when there is a criminal case pending. Para 6 of the judgment shows that there was an honourable acquittal and while considering the principles, the Apex Court held as follows in paragraphs 31 and 32: “31, The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. IN the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr.V.B. Raval and other departmental witnesses were the only witnesses examined by the w.p.c.no.22723/2010 -7- Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 32. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when here was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in _Paul Anthony's case_ (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” w.p.c.no.22723/2010 -8- Therefore, the principle is that when, on the same set of facts there is a departmental enquiry and a criminal proceedings, the effect of acquittal will have to be considered. In fact, in the present case the court has acquitted the petitioner as there was no proof beyond reasonable doubt. As rightly pointed out by the learned counsel for the petitioner, it is not a case of acquittal which was granted on benefit of doubt. The prosecution could not really prove that the accused is guilty. There is total lack of evidence regarding the complicity of the petitioner. It is an acquittal after finding that there is no evidence to connect the accused. 11. Therefore, the petitioner will be justified in relying upon the said judgment. Apart from that, a reading of Ext.P6 enquiry report will show that the none of the witnesses supported the charge that the accused alone is responsible for the theft. Only based on the recovery made by the Police and that of the arrest made of the accused, the enquiry officer found that he is guilty. Now that the evidence by way of recovery has been found against by the criminal court which has become final, the said part of the finding by the enquiry officer cannot also be supported. Merely because he is arrayed as an accused, in the absence of other independent evidence, it cannot be said that the misconduct has been proved. A person, even if arrayed as an w.p.c.no.22723/2010 -9- accused, that will not lead to a presumption of guilty as, until the criminal case is over, he is to be treated as innocent. This principle also will apply in this case. Except the registration of Police case, the enquiry officer had no evidence worth before him. Hence, Ext.P14 judgment of the Criminal Court squarely applies. Therefore, I am of the view that there is no legal evidence in support of the misconduct. The enquiry officer has gone wrong in entering a finding against the petitioner. This is a case of no evidence against the petitioner, as none of the witnesses supported the allegation of misconduct. What is proved is only, going by the report as well as the judgment of the criminal court, is that aluminimum cables have been stolen. But nothing has been brought out to connect the petitioner either in the departmental enquiry or with the criminal case. Therefore, the petitioner is entitled to succeed in the writ petition. Exts.P10 and P17 are therefore quashed. 12. It is seen that the petitioner has already attained the age of superannuation. Therefore, there cannot be an order for reinstatement. The learned counsel prayed for grant of entire backwages till the date of attainment of superannuation, which was opposed by the counsel for the respondents. I am of the view that in the interest of justice, the petitioner w.p.c.no.22723/2010 -10- should be paid the monetary benefits. There will be a direction to pay 50% of the backwages, which will be reckoned from the date of the order of suspension. He will also be entitled for all retiral benefits as per rules. But it is made clear that he will not be entitled for any revision of pay, if any, granted to similarly placed employees during this period. The benefits will be sanctioned to him after reckoning the emoluments as on the date of suspension. The subsistence allowance, if any, paid will be deducted. Appropriate steps will be taken to quantify the same and release the same to the petitioner within a period of three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **kav/**