P. JAYAPRAKASH v FOAM MATTINGS (INDIA) LTD. & SAIFUDEEN A.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938** ## **WP(C).No. 20022 of 2003 (H)** **----------------------------** **PETITIONER(S): -----------------------** **P. JAYAPRAKASH, 'SAYUJYA', CIVIL STATION WARD, NEAR MOHAMMEDANS GIRLS H.S., ALAPPUZHA-1, PLANT ENGINEER FOAM MATTINGS (INDIA) LTD.- UNDER DISMISSAL.** ## **BY ADVS.SRI.K.ANAND, SMT.LATHA KRISHNAN.** **RESPONDENT(S):** - **-------------------------** **1. FOAM MATTINGS (INDIA) LTD., ALAPPUZHA-682 012, REPRESENTED BY MANAGING DIRECTOR.** - **ADDL. R2 IMPLEADED** **2. SAIFUDEEN A.S., PLANT ENGINEER, FOAM MATTINGS (INDIA) LIMITED, ALAPPUZHA-686 012.** - **IS IMPLEADED AS ADDL. R2 AS PER ORDER DATED 03/07/2006 IN I.A. NO.8865/2006.** - **R1 BY SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE. ADV. SRI.SAJI VARGHESE ADDL. R2 BY ADV. SRI.P.RAMAKRISHNAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2016, ALONG WITH WP(C).NO.20887 of 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 20022 of 2003 (H)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXT.P1 COPY OF THE APPOINTMENT ORDER DATED 16/05/1995.** - **EXT.P2 COPY OF THE SUSPENSION DATED 16/10/2001.** - **EXT.P3 COPY OF THE MEMO OF CHARGES DATED 13/11/2001.** - **EXT.P4 COPY OF THE PETITION DATED 18/11/2001 SUBMITTED BY THE PETITIONER TO THE RESPONDENT.** - **EXT.P5 COPY OF THE MEMO DATED 20/11/2001 ISSUED BY THE RESPONDENT TO THE PETITIONER.** - **EXT.P6 COPY OF THE EXPLANATION DATED 26/11/2001 SUBMITTED BY THE PETITIONER.** - **EXT.P7 COPY OF THE MEMO DATED 29/11/2001 ISSUED BY THE RESPONDENT.** - **EXT.P8 COPY OF THE ENQUIRY REPORT.** - **EXT.P9 COPY OF THE SHOWCAUSE NOTICE DATED 24/09/2002.** - **EXT.P10 COPY OF THE EXPLANATION DATED 11/10/2002 SUBMITTED BY THE PETITIONER.** - **EXT.P11 COPY OF THE ORDER OF DISCHARGE FROM SERVICE DATED 21/03/2003.** - **EXT.P12 COPY OF THE LETTER DATED 20/12/2002 ADOPTION OF KERALA GOVT. SERVANTS RULES-BOARD DECISION.** - **EXT.P13 COPY OF THE LETTER PRODUCED BY PRESENTING OFFICER BEFORE ENQUIRY OFFICER DATED 03/05/2002.** - **EXT.P14 COPY OF THE PETITION DATED 01/05/2002 BY THE PETITIONER BEFORE THE ENQUIRY OFFICER.** **EXT.P15, P16 & P17: MEMOS DATED 16/05/2001, 21/08/2001 AND 30/10/2001.** **RESPONDENT'S EXHIBITS:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## A.MUHAMED MUSTAQUE, J. ================== W.P.(C).No. 20022 of 2003 & W.P.(C).No. 20887 of 2007 ================== Dated this the 30[th] day of May, 2016 ## J U D G M E N T A worker along with an officer has been dismissed and discharged from the service of Foam Mattings (India) Ltd., a public sector undertaking on the ground of misconduct. The officer filed the writ petition challenging the discharge and the workman filed the writ petition challenging the award of the Labour Court. 2. The issue in this writ petition relates to an insinuation and complaint raised by both the petitioners in a press conference held outside the premises of the Company. In the press conference the petitioners have raised a complaint as against the Manging Director and higher officials of the Company involving corrupt practices. 3. The Company finding that the petitioners have raised false and untenable allegations against the Managing Director W.P.(C).No. 20022 of 2003 & W.P.(C).No. 20887 of 2007 - : 2 :- and higher officers, issued a single charge memo to the petitioners alleging three charges. The enquiry officer found that the petitioners are guilty of charges leveled against them in charge No.1 and part of charge No.3. 4. The question in this writ petition arises out of the finding of misconduct by the enquiry officer in the charge memos. 5. The High Court exercising power under Article 226 of the Constitution of India normally would be circumspect in interfering with the finding of fact. In this writ petition, essentially the question arises as to the appraisal of the finding of fact by the enquiry authority on the alleged misconduct. 6. The Court can interfere with enquiry report, if the enquiry officer for the purpose of finding misconduct misdirected himself to arrive at such conclusion. The legal relevance of defining misconduct may arise in the context of a case depending upon the construction of misconduct either under the service regulation or otherwise. In this case no doubt the allegations as against the Manging Director and the higher W.P.(C).No. 20022 of 2003 & W.P.(C).No. 20887 of 2007 - : 3 :- officers if stands unproved or unsubstantiated it would certainly attract any type of misconduct as defined either under the service rules or otherwise. The allegations levelled against the Managing Director and higher officials are that of an involvement in corruption. 7. Therefore two questions arise; First, whether holding a press conference raising a complaint or insinuation would amount to misconduct. Secondly, whether the alleged complaint or insinuation against the Managing Director and higher officers could be treated as misconduct or not. 8. The holding of press conference by an employee cannot be construed as a misconduct unless he is prevented from holding such press conference by the regulations of the Company. Raising a dissenting voice or a cry for action normally has to be understood as a democratic voice raised in an organization to seek action against wrong doers. In the absence of any prohibitory regulations, any dissent of voice through a medium of press conference, need not be construed as a misconduct. W.P.(C).No. 20022 of 2003 & W.P.(C).No. 20887 of 2007 - : 4 :- 9 In Fr.Augustine Mathew v. Devamatha College [2002 ## (3) KLT 509], this Court observed as follows: “So an employee cannot be punished on the basis of the subjective concept in the mind of the disciplinary authority regarding what is misconduct. A priest turning an apostate and getting married is revolting to many, but for a few, it may be a natural thing. It is said, “freedom of speech means freedom to speak ideas we hate”. Likewise, freedom of conscience means freedom to embrace a faith which we detest. Safe and conservative faiths do not require the protection of the Constitution. Heretics and heresies require it. The protection of fundamental freedom like the freedom of speech and freedom of conscience guaranteed by the Constitution is most needed for unpopular minorities.” 10. Therefore, this Court is of the view that employees have the right to held press conference unless it is regulated in the service rules. 11. The 2[nd] question is whether the allegations or complaint or insinuation as against the Manging Director or higher officials would amount to misconduct or not. As has been noted above, the allegations are so grievous, if they remain unproved or unsubstantiated certainly would attract the meaning of misconduct. The learned counsel for the petitioner also relied on the judgment of the Hon'ble Supreme Court in M.H Devendrappa vs. Karnataka State Small Industries Development Corporation [1998 (3) SCC 732] wherein in para W.P.(C).No. 20022 of 2003 & W.P.(C).No. 20887 of 2007 - : 5 :- 19 it was held that any direct public attack on the head of the organization and allegations against various officers of the Corporation are detrimental to the proper functioning of the organization. It was also observed that a public statement against the head of the organization on a political issue also amounts to lowering the prestige of the organization. Therefore, the question is whether those allegations have lowered the prestige of the organization among the general public. If the corrupt allegations raised against the Head of the organization or higher officials have some substance or semblance of truth certainly, the petitioners should not be punished for bringing notice of such corrupt practices before the general public. However, if there is no truth in the allegations and the allegations are malafides, certainly it can be held that the petitioners misconducted themselves in holding the press conference. 12. The learned counsel for the writ petitioner in W.P.(C) No. 20887/2007 referred to the charge sheet of the company officials in Vigilance case. Ext.P7 is the reply W.P.(C).No. 20022 of 2003 & W.P.(C).No. 20887 of 2007 - : 6 :- received under the Right to Information Act regarding the details of the company officials charged with Vigilance case, pending against the officers as VC4/05/ALP on the file of the DySP. VACB, Alapuzha. In the above writ petition, the petitioner also refers to the order passed by the Lok Ayukta. Ext.P6 is the order of the Lok Ayukta, directing to conduct an enquiry. In such circumstances, this Court is of the view that without verifying the substance of the allegations and materials collected by the investigation officer, it is not safe to hold that the petitioners have raised allegations without any substance. It is only when the petitioners raise allegations or complaint without any substance, they can be held liable for the misconduct. Therefore, there should be a proper appreciation of the alleged misconduct on the part of the petitioners on the facts and circumstances of the case. 13. In this case the Labour Court as well as the enquiry officer had not referred to the Vigilance Investigation or enquiry ordered by the Lok Ayukta. In these circumstances, this Court is of the view that the matter requires reconsideration in the light W.P.(C).No. 20022 of 2003 & W.P.(C).No. 20887 of 2007 - : 7 :- of vigilance case and order of Lok Ayukta. The scope and enquiry to be conducted by the enquiry officer, as to the substance of allegations raised by the petitioners, should be with reference to the vigilance case as well as the order of the Lok Ayukta. The purpose of enquiry is to find whether the allegations of the petitioners in press conference have some semblance of truth or substance against the officers to justify public outcry in a press conference. It is not necessary that the accused should be punished for the offence charge sheeted against them. 14. Therefore, both the writ petitions are allowed. The matter is remitted back to the enquiry officer to hold a de nova enquiry in the light of subsequent fact of vigilance case as well as the directions of Lok Ayukta. It is admitted that the petitioners are out of service. It is made clear that any claim of the petitioners for reinstatement would depend upon the outcome of the enquiry. At this stage, the petitioners cannot claim right of reinstatement or reemployment. Sd/- sab A.MUHAMED MUSTAQUE, JUDGE W.P.(C).No. 20022 of 2003 & W.P.(C).No. 20887 of 2007 - : 8 :-