P. Mohammed Koya v Union of India and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 23044 of 2009(S) -------------------------OA.746/2006 & R..A. 34/2009 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONER: --------------- P. MOHAMMED KOYA, S/O. LATE RI. T.P. ALI AGED 54 YEARS, PUBLICITY OFFICER, DEPARTMENT OF INFORMATION PUBLICITY & TOURISM, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI-55, RESIDING AT BAITHUAL AMEEN, SHANTHIPUTH, KAVARATTI ISLAND, LAKSHADWEEP. BY ADV. SRI.M.R.HARIRAJ SRI.SURAJ.S SRI.P.A.KUMARAN SMT.VINEETHA B. RESPONDENTS: --------------- 1. UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE ADMINISTRATOR, UNION TERRITORY OF LAKSHDWEEP, KAVARATTI. 3. THE SECRETARY, INFORMATION PUBLICITY - & TOURISM, UNION TERRITORY OF LAKSHDWEEP, KAVARATTI. ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN FOR R2 & 3 SRI.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR FOR R1 SRI. P. PARAMESWARAN NAIR, ASST. SOLICITOR GENERAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 115.7.2011, THE COURT ON 13.10.2011, DELIVERED THE FOLLOWING: ## **W.P.(C) 23044/2009** ## _**APPENDIX**_ ## _**PETITIONER'S EXHIBITS:**_ EXT.P1 TRUE COPY OF FINAL ORDER DATED 1.5.2009 IN O.A. NO. 746/2006 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH. EXT.P2 TRUE COPY OF FINAL ORDER DATED 8.7.2009 IN R.A. NO. 34/09 IN O.A. NO. 746/2006 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P3 TRUE COPY OF THE ORIGINAL APPLICATION NO. 746/06 DATED 30.10.2006 ALONG WITH ITS ANNEXURES. EXT.P4 TRUE COPY OF THE REPLY STATEMENT DATED 28.11.2007 ALONG WITH ITS ANNEXURES FILED BY THE RESPONDENTS 2 & 3 IN O.A. 746/2006. EXT.P5 TRUE COPY OF THE ORDER DATED 17.7.2008 IN O.A. 746/2006 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P6 TRUE COPY OF ADDITIONAL REPLY STATEMENT DATED 15.10.2008 FILED BY THE RESPONDENTS 2 AND 3 IN O.A. 746/2006. EXT.P7 TRUE COPY OF THE REJOINDER DATED 30.11.2008 ALONG WITH ITS ANNEXURES FILED BY THE PETITIONER BEFORE THE C.A.T. IN O.A. NO. 746/2006. EXT.P8 TRUE COPY OF REVIEW APPLICATION NO. 34/2009 DATED 4.6.2009 WITHOUT ANNEXURES FILED BY THE PETITIONER BEFORE THE C.A.T. IN O.A. 746/2006. ## RESPONDENTS' EXHIBITS: NIL. // TRUE COPY // P.S. TO JUDGE. KNC/- _“CR”_ ## C.N. RAMACHANDRAN NAIR, Ag. C.J. & P.S. GOPINATHAN, J. = = = = = = = = = = = = = = = = = W.P.(C) No. 23044 OF 2009 = = = = = = = = = = = = DATED THIS, THE 13th DAY OF OCTOBER, 2011. ## _**J U D G M E N T**_ ## _**Gopinathan, J.**_ Petitioner in this petition under Article 226 of the Constitution of India, is the applicant in O.A. 746 of 2006 on the file of the Central Administrative Tribunal, Ernakulam Bench, the order of which is produced as Ext.P1. Petitioner was working as Publicity Officer in the Department of Information, Publicity and Tourism in the Union Territory of Lakshadweep, of which the second respondent is the Administrator. The second respondent initiated disciplinary proceedings against the petitioner for imposing major penalty on allegation of misconduct in preferring travel claims as well as regarding the purchase of a photocopier during the period 1999-2000. An enquiry officer was appointed to enquire into the charges. The petitioner denied the charges. The enquiry officer, after due enquiry, arrived at a finding of guilt by his report dated 6.8.2002. Subsequent to the initiation of the disciplinary proceedings, the powers of the second respondent as disciplinary authority were transferred to the third respondent **W.P.(C) 23044/2009** 2 with effect from 12.4.2005. The third respondent, on receipt of the report of the enquiry officer, issued notice to the petitioner and having heard, concurred with the enquiry officer. By Annexure A1 order dated 31.1.2006 report of enquiry was accepted and a major penalty of reduction of pay by four stages for four years with cumulative effect was imposed against the petitioner. Being aggrieved, he preferred an appeal before the second respondent. Simultaneously, he moved the Tribunal below by filing an application as O.A. 373/2006. The Tribunal, while disposing that application, directed the second respondent to dispose of the appeal at the earliest. The second respondent, on evaluation and after hearing the petitioner, concurred with the third respondent by Annexure A10 order dated 4.10.2006. Assailing Annexure A10 order, petitioner again moved the Tribunal below. The Tribunal, by Ext.P1 order, dismissed the application. Thereupon, the petitioner filed a review application as R.A. 44/2009. That was also dismissed by Ext.P2 order dated 8.7.2009. Assailing Exts.P1 and P2, this petition was preferred. 2. We have heard Sri. M.R. Hariraj, the learned counsel appearing for the petitioner as well as Sri. S. Radhakrishnan, the learned standing counsel **W.P.(C) 23044/2009** 3 for the respondents. We also perused the documents, including the report of the enquiry officer and the order of the appellate authority. 3. The following are the charges alleged against the petitioner, as per Annexure A2 charge sheet dated 20.1.2001. ## ARTICLE-1 That the said Shri. P. Mohammedkoya, Publicity Officer in the Department of Information Publicity & Tourism (Now working as Officer on Special Duty, Lakshadweep Development Corporation Ltd., on work arrangement basis) while functioning as Information Assistant cum Photographer, Photo Unit, Kavaratti during 1989-90 preferred a false TA claim of helicopter charges for the journey from Kavaratti to Agatti on 4.5.1989 and from Agatti to Kavaratti on 14.5.89 without actually performing the journey by helicopter. By his above said act, Shri. Mohammedkoya failed to maintain absolute integrity and devotion to duty and conducted in a manner unbecoming of a Government Servant and thereby violated provisions of Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964. ## ARTICLE-II That the said Shri. P. Mohammedkoya, Publicity Officer while working as aforesaid during the aforesaid period a false TA/DA claim in connection with his alleged tour to Kalpeni for the period from 17th to 26th May, 1989. By his above said act, Shri. Mohammedkoya **W.P.(C) 23044/2009** 4 failed to maintain absolute integrity and devotion to duty and conducted in a manner unbecoming of a Government Servant and thereby violated provisions of Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) rules, 1964. ## ARTICLE -III That the said Shri. P. Mohammedkoya, Publicity Officer while functioning as aforesaid during the aforesaid initially presented a TA/DA claim for official tour stating that he travelled from Kavaratti on 15.6.89, and reached Amini on 15.6.89 by helicopter and subsequently represented vide his application dated 30.3.90 for sanction of helicopter charges from Kavaratti to Amini for journey on 14.06.89 and obtained approval of the Ministry of Home Affairs for travel by helicopter on 14.06.89 by hiding real facts before the authorities. By his above said act, Shri. Mohammedkoya failed to maintain absolute integrity and devotion to duty and conducted in a manner unbecoming of a Government Servant and thereby violated provisions of Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) rules, 1964. ## ARTICLE IV That the said Shri. P. Mohammedkoya, Publicity Officer while functioning as aforesaid during the aforesaid period made a false TA claim on tour for reimbursement of helicopter fare from Minicoy to Kavaratti on 02.08.89 vide his application dated 30.3.1990 without actually performing the journey by helicopter on 02.08.89 from Minicoy to Kavaratti. **W.P.(C) 23044/2009** 5 By his above said act, Shri. Mohammedkoya failed to maintain absolute integrity and devotion to duty and conducted in a manner unbecoming of a Government Servant and thereby violated provisions of Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964. ## ARTICLE-V That the said Shri. P. Mohammedkoya, Publicity Officer as aforesaid during the aforesaid period by misguiding the higher authorities and furnishing false information got ex-postfacto approval for journey by air on official duty, from the Ministry of Home Affairs vide their letter No. U. 14046/46/89-ANL dated 27.10.90. By his above said act, Shri. Mohammedkoya failed to maintain absolute integrity and devotion to duty and conducted in a manner unbecoming of a Government Servant and thereby violated provisions of rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964. ## ARTICLE-VI. That the said Shri. P. Mohammedkoya, Publicity Officer while functioning as aforesaid during 1992-93 misguided higher authorities in note file and corrected draft message relating to purchase of one number of photo maker and its accessories for direct purchase from M/s. Trade Links Enterprises, Kochi violating the order of Administrator for purchasing photo maker after observing purchase formalities and after ensuring DGS&D rates. Thereby the Administration sustained **W.P.(C) 23044/2009** 6 financial loss and attracted audit objection of Accountant General, Kerala. By his above said act, Shri. Mohammedkoya failed to maintain absolute integrity and devotion to duty and conducted in a manner unbecoming of a Government Servant and thereby violated provisions of Rule 3(1)(i) (ii) and (iii) of CCS (Conduct) Rules, 1964." 4. The enquiry officer, on evaluation of the evidence, arrived at the following finding: " ............... It has been established that Shri. P. Mohammed Koya had submitted false TA claims for air journey from Kavaratti to Agatti on 04.05.1989, from Agatti to Kavaratti on 14.05.1989, from Kalpeni to Kavaratti on 25.5.1989, from Kavaratti to Amini on 14.6.1989, and from Minicoy to Kavaratti on 02.08.1989. It has also been proved that Sh.P. Mohammed Koya furnished false information, and had misguided & misled the Administration into submitting a proposal to the Ministry of Home Affairs, Government of India and got ex post facto sanction for the same. It has also been clearly established that Sh.P. Mohammed Koya manipulated the official records, violated the orders of the Administrator and caused a loss of Rs. 18,190 to the Department in the procurement of a Photomaker through M/s. Trade Links Enterprises, Kochi during 1992-93. The charges that stand proved are quite grave and serious in nature and therefore penalty to be awarded has to be commensurate with the gravity of the charges. Since the **W.P.(C) 23044/2009** 7 misconduct of Sh.P. Mohammed Koya has been proved the following major penalty is hereby imposed under rule 15(4) of CCS (CCA) Rules, 1965: - Reduction of pay by four stages, from Rs. 8300 to Rs. 7700 (including two stagnation increments) for a period of four years with immediate effect. He will not earn increments during the period of reduction and it shall have the effect of postponing his future increments." The Tribunal below, after meticulous analysis of the pleadings and evidence on record, arrived at a finding that the disciplinary proceedings was conducted in a proper way with due notice to the petitioner and that there was no violation of principles of natural justice, no prejudice was caused to the petitioner and further found that the conclusion of the enquiry officer is based upon sufficient materials. As regards the penalty imposed, the Tribunal found that though the petitioner was liable to be removed or dismissed from service for the charges alleged, only reduction of pay by four stages was imposed against the petitioner and there is no good reason to interfere with the penalty imposed. 5. It is not disputed that neither the Administrative Tribunal, nor this Court while exercising jurisdiction either under Article 226 or 227 of the Constitution of India, can sit in appeal over the finding of the enquiry officer, disciplinary or appellate authority. What can be looked into by the **W.P.(C) 23044/2009** 8 Tribunal or this court is that whether there was proper enquiry, whether the delinquent was given due opportunity, whether the enquiry was conducted in strict compliance to the principles of natural justice, whether the findings are based on evidence or whether the finding is perverse, arbitrary, capricious, mala fide or based upon extraneous considerations. If the answer is that the enquiry or finding is no way vitiated, the Tribunal or this Court can no way interfere with the finding of the disciplinary authority. As regards the appreciation of evidence by the enquiry officer or disciplinary authority, even if an alternate conclusion is possible, the Tribunal cannot interfere with. Referring to various decisions, the Apex Court in state Bank of Bikaner & Jaipur vs. Nemi Chand Nalwaya (2011 (4) SCC 584) at para 7 held as follows: “It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings **W.P.(C) 23044/2009** 9 are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. “ The above dictum is squarely applicable to the case on hand. 6. The finding of the enquiry officer as well as the disciplinary authority would show that the evidence collected during the enquiry was considered with due diligence, prudence and in an objective manner. Learned counsel for the petitioner vehemently argued that there was much delay in initiating the proceedings and that because of the delay, the petitioner was prejudiced. Going by the documents on record, it appears that the malpractice was disclosed to the authorities only at a later stage. The finding of the enquiry officer would show that the enquiry officer had duly considered the documents submitted by the petitioner. Though the petitioner would allege that he could not produce documents of defence because of the delay, it is not at all specified as to what documents he could not produce and how it happened. Therefore, we find that the delay in **W.P.(C) 23044/2009** 10 initiating proceedings has not caused any prejudice and the disciplinary proceedings can no way interfered with. Therefore, infact, the petitioner has no good ground to assail the order of the Tribunal below. The order, as regards the finding of guilty, is not at all vitiated by any error, illegality or any failure to exercise jurisdiction. But, regarding the penalty, we find that the penalty imposed is a little bit excessive and that with-holding of increments for three years with cumulative effect would meet the ends of justice. In the result, the writ petition is allowed in part. While confirming the finding of guilt, the penalty imposed is reduced to with-holding of increments for three years with cumulative effect. Impugned order would stand modified as above. No costs. Sd/- C.N. RAMACHANDRAN NAIR, (Ag. CHIEF JUSTICE). Sd/P.S. GOPINATHAN, (JUDGE) knc/-