OP(KAT) NO. 151 OF 2017 AGAINST THE ORDER IN OA 51/2013 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944** ## **OP(KAT) NO. 151 OF 2017** **AGAINST THE ORDER IN OA 51/2013 OF KERALA ADMINISTRATIVE TRIBUNAL,** ## **THIRUVANANTHAPURAM** ## **PETITIONERS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,TRANSPORT DEPARTMENT SECRETARIAT,THIRUVANANTHAPURAM. KERALA. 695001.** - **2 TRANSPORT COMMISSIONER TRANS TOWER, VAZHUTHACAUD,THIRUVANANTHAPURAM. KERALA. 695014.** ## **BY ADV GOVERNMENT PLEADER** ## **RESPONDENTS:** **K. T. SAJU S/O PAPPU, AGED 53 YEARS, (FORMERLY UPPER DIVISION CLERK, SUB REGIONAL TRANSPORT OFFICE, KOTHAMANGALAM) RESIDING AT KOLLAMPARAMBIL HOUSE,KUNNIL SASTHA TEMPLE ROAD, WEST KODUNGALOOR PO,ALUVA , ERNAKULAM DISTRICT. PIN. 683110, KERALA.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SMT.B.ANANJANA SRI.K.A.BALAN** OP(KAT) NO. 151 OF 2017 -2- **SRI.PETER JOSE CHRISTO SMT.N.SANTHA SRI.V.VARGHESE** ## **OTHER PRESENT:** ## **GP BEJOY CHANDRAN** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 24.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT) NO. 151 OF 2017 -3- ## **JUDGMENT** ## S.V. Bhatti, J. The respondents in Original Application No.51/2013 are the petitioners. The Original Petition is filed challenging the order dated 04.11.2015 in O.A No.51/2013 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram (for short, 'the Tribunal'). 2. The sole respondent was the applicant before the Tribunal. The parties are referred as arrayed in the Original Application. 3. The applicant in O.A No.51/2013 prayed for the following reliefs: “a) set aside Anneuxre-A6 and A8 b) reinstate the applicant in service and give him all consequential service benefits as if Annexure-A6 and A8 were never issued. And c) grant such other reliefs as this Hon’ble Court deems fit and proper in the circumstances of the case including the costs of this Original Application.” OP(KAT) NO. 151 OF 2017 -4- 4. Annexures A6 and A8 are the orders of punishment dismissing the application from service and confirmed on appeal by the appellate authority. In essence, the issue arises from the disciplinary enquiry/proceedings initiated by the respondents against the applicant. 5. This Court in MACA No.2947/08 directed the Transport Commissioner to verify the genuineness of the driving license bearing No.40/11164/2006 dated 18.10.2006 issued by the Office of the RTO, Perumbavoor. The enquiry caused by the Department disclosed that S.Asokan, Joint RTO, Perumbavoor issued the fraud licences as fresh licences by way of renewal. The preliminary enquiry further revealed that the said S.Asokan himself entered, verified and issued many driving licences through the system. The initial report further suggests that the Joint RTO did not take the assistance of anyone in the office while issuing these false/fake licences. Yet another curious fact is that the Joint RTO was transferred and relieved OP(KAT) NO. 151 OF 2017 -5- from the Office of Perumbavoor on 16.11.2006. Still, he was operating and deleted several fake licences issued from the office of Perumbavoor. In the enquiry against the Joint RTO, the applicant endorsed additional classes in his handwriting and forged the signature without an endorsement on the history sheet. The endorsements deal with the inclusion of LMV in the certifying column. From the above, it is clear that the genesis for disciplinary enquiry is traced to the order issued by this Court. The respondents served a memo of charges dated 19.01.2010 on the applicant. The charge reads as follows; “I That you, Sri. K.T. Saju while working as LD Clerk at Sub RT Office Perumbavoor had attempted to help Sri. S.Asokan , then Jt. RTO in issuing fraud Driving License to some Driving Schools. Due to this misconduct, irreparable loss caused to the Department and done for the illicit gratification of money.” 6. We are not going into the statement of allegation or the applicant’s reply. We note that the enquiry officer, through the enquiry report dated 04.08.2011 found that the charge OP(KAT) NO. 151 OF 2017 -6- against the applicant is proved. The competent authority issued the order of dismissal in Annexure-A6 and confirmed on appeal by Annexure-A8 order. 7. We note that the disciplinary enquiry was also issued against S. Asokan, Joint, RTO, since he retired from service under Rule 59(d) of Part III of KST and imposed punishment of reducing the pension by Rs.200/-. The applicant pursued the remedy of judicial review. 8. We bear in our perspective the scope of the judicial review in disciplinary proceedings and the principle laid down : by the Supreme Court in _Union of India v. Subrata Nath_[1] “12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on 1 2022 SCC Online SC 1617 OP(KAT) NO. 151 OF 2017 -7- some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goels this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued. OP(KAT) NO. 151 OF 2017 -8- 18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." 9. The charge firstly refers to the alleged attempt to help one S.Asokan, Joint RTO, in issuing fraud licences and attempted to help S.Asokan constituted misconduct, and the applicant committed the said misconduct for illicit gratification of money. 10. The Tribunal summoned the enquiry file and has recorded the following findings: “9. We are of the view that Rule 15(1) of the Kerala Civil Services (Classification, Control & OP(KAT) NO. 151 OF 2017 -9- Appeal) Rules always requires and emphasises the conduct of a proper enquiry. When we come to the relevant Rule, it can be seen that under sub-rule (6), the Disciplinary Authority if it is not the Inquiring Authority may nominate any person to present the case in support of the charges before the Inquiring Authority. The Government Servant may present his case with the assistance of any other Government servant or a Government Servant retired from the service approved by the Inquiring Authority. Then the Inquiring Authority may proceed to the next stage provided under sub-rule (7) where the Inquiring Authority shall consider such documentary evidence and take such oral evidence as may be relevant or material with regard to the charges. At this stage, the Government Servant is entitled to cross-examine the witnesses examined in support of the charges and to give evidence in person and to have such witnesses examined in his defence. The learned Government Pleader submitted that to a question put by the Enquiry Officer, while recording the statement of the applicant, he replied that he has no oral evidence to adduce and it will satisfy the condition provided under sub-rule (7). But according to the learned counsel for the applicant, the enquiry did not commence or conclude in accordance with the rules and principles of natural justice and after affording the applicant sufficient opportunity to prove his innocence. As already found, there was no examination of witnesses and no documents were legally received in evidence. The learned counsel submits that the applicant was not afforded an opportunity to adduce defence evidence. As per sub-rule (8), the Government servant may present to the inquiring Authority a list of witnesses whom he desires to examine in his defence. Then the Inquiring Authority will secure OP(KAT) NO. 151 OF 2017 -10- the presence of such witnesses and examine them. 10. The learned counsel for the applicant submitted that in the statutory appeal, AnnexureA7 filed by the applicant, all these points have been raised; the Government have not considered the points and Annexure-A8 order of the Government confirming the punishment is vitiated. 11. The cumulative result of the discussion is that the report Annexure-A4 is vitiated as the enquiry was not legally conducted. The Disciplinary Authority and the Government did not consider the contentions regarding faulty enquiry at all. Even without any finding in the enquiry report about forging of signatures, the disciplinary authority entered such a finding which also is not supportable. For the aforesaid reasons, AnnexuresA6 and A8 fall to the ground. Accordingly, Annexures-A6 and A8 are set aside. Since the dismissal order is set aside, the applicant is entitled for re-instatement with back wages. The learned Government Pleader strongly opposed payment of back wages to the applicant on the ground of gravity of the offence committed by him. We are of the view that in the interest of justice, 50% of the back wages will have to be paid to the applicant. Therefore, appropriate orders in these regards will be passed by the Government within three months from the date of receipt of a copy of this order. The period he was dismissed from service as per Annexure-A6 till the date of his reinstatement will be treated as duty for all purposes and subject to the above direction for payment of back wages at 50%.” ## 11. From the above, it is clear that the order of the OP(KAT) NO. 151 OF 2017 -11- punishment was set aside on the ground that the misconduct is not established, at least with some evidence or semblance of evidence. Let us take up the very charge, which refers to the attempted helping of the Joint RTO in issuing fake licences. The proof or establishment of misconduct alleged must primarily be demonstrated through documentary evidence. As a general proposition, we are not laying down that the proof is always through documentary evidence in disciplinary proceedings. 12. In the case on hand, if we look at the charge, the charge is framed not for an act of misconduct but for an attempted act of misconduct. This Court fails to understand whether the misconduct alleged constitutes a charge and if so, pursued with sincerity. The Tribunal, after summoning the enquiry officer’s report, recorded that the finding of guilt arrived against the applicant is illegal and without semblance of evidence. The respondents challenge the findings of the Tribunal before us. The respondents/petitioners herein must OP(KAT) NO. 151 OF 2017 -12- first point out which portion of the Tribunal’s order is illegal and warrants our interference under Article 227 of the Constitution of India. The findings of the Tribunal speak in categorical terms that the procedure followed by the enquiry officer is objectionable and has been taken up and concluded only to record the statistical purpose of completing the enquiry. Yet another circumstance against the person who is alleged to have issued fake licences on his own without the assistance of anyone, punishment of reduction of pension by Rs.200/- is ordered. In contrast, the respondents removed the applicant for charges not established against him. 13. Before parting with the case, we are compelled to observe that the Department, in matters where fraud etc., are alleged to have been involved, initiates statistical enquiry to convince the people of the State or that the action against the erring officer. 14. In the judicial review **,** the Government/respondent OP(KAT) NO. 151 OF 2017 -13- knows that the punishment is tested on the touchstone of evidence on record warranting interference of the Court. The respondents miserably failed, and it is not clear whether it was by default or design. The matters involving public safety etc., the honesty of the Department should have been reflected by conducting a thorough enquiry and also concluding the disciplinary proceedings in accordance with law. We make the above observations at least to ensure in future that the charges are considered and dealt with in accordance with law. With the above observations, OP (KAT) is dismissed. No order as to costs. **S.V.BHATTI JUDGE** **BASANT BALAJI JUDGE** JS OP(KAT) NO. 151 OF 2017 -14- ## **APPENDIX OF OP(KAT) 151/2017** ## **PETITIONER ANNEXURES** |**ANNEXURE A1**|**TRUE COPY OF MEMO OF CHARGES**| |---|---| ||**NO.GS/1340/TC/09 DATED 19/01/2010 OF THE**| ||**TRANSPORT COMMISSIONER WITH THE STATEMENT**| ||**OF ALLEGATIONS APPENDED.**| |**ANNEXURE A2**|**TRUE COPY OF EXPLANATION DATED 10/02/2010**| ||**SUBMITTED BY THE APPLICANT TO ANNEXURE A1.**| |**ANNEXURE A3**|**TRUE COPY OF SHOW CAUSE NOTICE DATED**| ||**14/03/2012.**| |**ANNEXURE A4**|**TRUE COPY OF ENQUIRY REPORT.**| |**ANNEXURE A5**|**TRUE COPY OF REPLY DATED 28/03/2012**| ||**SUBMITTED BY THE APPLICANT TO ANNEXURE A3.**| |**ANNEXURE A6**|**TRUE COPY OF ORDER NO.G5/1340/TC/2009 DATED**| ||**30/05/2012 OF THE TRANSPORT COMMISSIONER.**| |**ANNEXURE A7**|**TRUE COPY OF APPEAL SUBMITTED BY THE**| ||**APPLICANT TO GOVERNMENT.**| |**ANNEXURE A8**|**TRUE COPY OF GO(RT)NO.582/2012/TRANS. DATED**| ||**15/11/2012.**| |**EXHIBIT P1**|**PHOTOCOPY OF THE OA ALONG WITH ANNEXURES.**| |**EXHIBIT P2**|**PHOTOCOPY OF THE REPLY STATEMENT FILED BY**| ||**THE 1ST PETITIONER.**| |**EXHIBIT P3**|**PHOTOCOPY OF THE ORDER DATED 4.11.2015 IN**| ||**OA(EKM) 51/2013.**|