Prasobh G. v. Travancore Devaswom Board

W.P.(C).No.10611/22 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 2[ND] DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944** ## **WP(C) NO. 10611 OF 2022** ## **PETITIONER:** PRASOBH G. AGED 38 YEARS S/O.K.GOPINATHAN ACHARY, SIBI NIVAS, MUGHATHALA P.O., KOLLAM, PIN - 691 577. BY ADVS. R.RENJITH M.T.SURESHKUMAR SMITHA PHILIPOSE DARSAN SOMANATH MANJUSHA K SREELAKSHMI SABU ## **RESPONDENTS:** 1 TRAVANCORE DEVASWOM BOARD NANTHANCODE, KAWDIAR P.O., THIRUVANANTHAPURAM, PIN - 695 003, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR P.O., THIRUVANANTHAPURAM, PIN - 695 003. 3 THE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, DEVASWOM COMMISSIONER OFFICE, THIRUVANANTHAPURAM, PIN - 695 003. BY ADV C.K.PAVITHRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON 02.09.2022 DELIVERED THE FOLLOWING: W.P.(C).No.10611/22 2 ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = = W.P.(C).No.10611 of 2022** ## **= = = = = = = = = = = = = = = = Dated this the 2[nd] day of September, 2022** ## **JUDGMENT** - 1.This writ petition is filed seeking the following reliefs:- “i) Call for records leading to Exhibits P4, P5 and P8 and may quash the same by issuing a writ in the nature of certiorari. ii.Issue a writ in the nature of mandamus commanding the respondents to reinstate the petitioner in service with continuity in service and back wages. iii. Declare that the proceedings taken against the petitioner are bad for violation of principles of natural justice as also for the violation of mandatory provisions contained in the statutes.” 2.Heard the learned counsel for the petitioner and the learned standing counsel appearing for the Travancore Devaswom Board. 3. Challenge is raised against the orders terminating the services of the petitioner. The contention of the petitioner is that the termination was without conducting a proper enquiry complying with the principles of natural justice. It is W.P.(C).No.10611/22 3 submitted that the allegation against the petitioner was that an amount of Rs.86,495/- in Indian currency, 2 gms of gold and Rs.2678/- worth of foreign currency was misappropriated by him while the counting of bandaram at Sabarimala was in progress on 15.1.2015. It is submitted that the allegations in Exhibit P1 order of suspension and Exhibit P2 memo of charges were mutually contradictory. It is stated that a crime was also registered, which is still pending trial. When the disciplinary proceedings were not concluded, the petitioner had approached this Court by filing W.P.(C).No.34339/2017 and Exhibit P3 judgment directed the completion of the disciplinary proceedings. Even thereafter, nothing was done. Finally, Exhibit P4, enquiry report was submitted based on which Exhibit P5 order dated 8.11.2021 was passed dismissing the petitioner from service. It is submitted that though appeal was preferred by the petitioner, the same was also rejected by Exhibit P8. The enquiry report, the order of the disciplinary authority as well as the appellate order are under challenge. W.P.(C).No.10611/22 4 - 4.The main ground raised by the petitioner is that the procedure provided under the Kerala Civil Services (CC&A) Rules had not been followed while inflicting the punishment on the petitioner. It is submitted that the petitioner was not permitted to participate in the enquiry and that he was not given an opportunity to cross examine the witnesses as against him. It is submitted that though these aspects had been raised in the appeal, the same were not considered. - 5.The learned counsel for the petitioner places reliance on decisions of this Court in **Surath Chandra Chakravarty v. State of W.B** [1970(3)SCC], **G.Ravindran Nair v. State of Kerala** [ 1983 KHC 330] and **Ramani v. Karuvatt Service Cooperative Society** [1993 KHC 396] in support of the contention that vagueness or contradiction in the charges framed vitiates the enquiry. 6. The decision reported in **Kusheshwar Bubey v. Bharat Coking Coal Ltd** . [1988 KHC 695] is relied on to contend that the disciplinary proceedings should have been deferred W.P.(C).No.10611/22 5 awaiting disposal of the criminal case, since the allegations in the enquiry and in the criminal case were identical. - 7.The learned counsel also places reliance on the decisions in **Kalidas v. State of Kerala** [1988 KHC 519], **Bahaval Das v. State of Kerala** [1994 KHC 38], **Harikumar v. TDB** [2014 KHC 128], **State of Kerala v. P.Rajan** [2021 (4) KHC 619], **Pradeep S/o. Rajkumar Jain v. Manganese Ore (India) Ltd. And others** [2022 (3 )SCC 683], **State of U.P. And others v. Saroj Kumar Sinha** [2010KHC4073], **Managing Director, ECIL, Hyderabad and others v** . **Karunakar [** 1993 4 SCC 727], **Radhadevi V.R. v. District Collector, Thrissur and others** [2021 5 KHC 289] in support of the contention that prescribed procedure is liable to be followed in disciplinary proceedings. 8. A detailed counter affidavit has also been record by the 1[st] respondent. Referring to the record of the enquiry produced along with the writ petition itself, the learned counsel for the respondents would submit that all necessary opportunity had W.P.(C).No.10611/22 6 been given to the petitioner to substantiate his case, but the petitioner was unable to produce any evidence in support of his contentions. It is submitted that there is no contradiction between Exhibits P1 and P2 and the charges as framed against the petitioner stood proved in the enquiry. 9. I have considered the contentions advanced in extenso. It is contended by the petitioner that when the criminal proceedings were pending, the conclusion of the enquiry proceedings without awaiting the result of the criminal proceedings was illegal and improper. Such a contention is not available to the petitioner since the petitioner had approached this Court and had invited Exhibit P3 judgment which directed the completion of disciplinary proceedings without awaiting the conclusion of the criminal case. After having suffered Exhibit P3 judgment, the petitioner cannot be heard to contend that the final outcome of the disciplinary proceedings should have awaited the result of the criminal trial. With regard to the contention of the petitioner that Exhibits P1 and P2 are contradictory, I fail to see any such contradiction on a plain reading of Exhibits P1 and P2. W.P.(C).No.10611/22 7 10.The contention of the petitioner, specifically with regard to the conduct of the enquiry, as pleaded in the writ petition is that the petitioner had not been given an opportunity to defend the case against him. It is submitted that the petitioner was not even permitted to enter the room where the enquiry was conducted and that he was threatened with dire consequences if he attempts to enter the room. It is further contended that there was no opportunity given by the Enquiry Officer to the petitioner to cross examine the witnesses. A further contention was raised at the time of hearing that a copy of the enquiry report was not served on the petitioner before Exhibit P5 order was passed. However, the learned counsel for the respondents produced the show cause notice issued to the petitioner, wherein it is stated that a copy of the enquiry report was also duly forwarded therewith and the petitioner withdrew the said contention. 11.Having considered the contentions advanced at considerable length, I am of the opinion that the jurisdiction of this Court to consider a challenge in disciplinary proceedings is to consider whether the proper procedure has been followed W.P.(C).No.10611/22 8 while the disciplinary enquiry is conducted. In the instant case, it appears that since the enquiry officer was a lawyer, an opportunity was given to the petitioner to engage a lawyer to defend him in the disciplinary proceedings. The record of the enquiry would show that the lawyer was present during the enquiry proceedings and was permitted to participate in the enquiry to the fullest extent. A plain reading of the record of the enquiry would show that the petitioner had been given all possible opportunity to adduce evidence and to contradict the prosecution evidence as is practical in a disciplinary enquiry. In case the petitioner did not participate in the enquiry in its last stages, that cannot be a ground to contend that the enquiry proceedings stand vitiated. The other contentions raised by the petitioner are with regard to the merits of the enquiry, which cannot be considered in these proceedings. It is trite law that the standard of proof required to find a person guilty in a disciplinary proceedings is limited to a finding on preponderance of probabilities and cannot be equated to that required in a criminal trial. In the light of the facts as W.P.(C).No.10611/22 9 disclosed from the record of the enquiry, I am of the opinion that the petitioner has not succeeded in establishing that there is any procedural violation in the conduct of the enquiry. The writ petition, therefore, fails and is accordingly dismissed. **==> picture [21 x 9] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.10611/22 10 ## **APPENDIX OF WP(C) 10611/2022** PETITIONER EXHIBITS - Exhibit P1 - TRUE PHOTOSTAT COPY OF THE ORDER OF SUSPENSION NO.R.O.C.865/15/MIS DATED 17/1/2015 ISSUED BY THE 3RD RESPONDENT. - Exhibit P2 TRUE PHOTOSTAT COPY OF THE STATEMENT OF ALLEGATIONS NO.R.O.C.NO.865/15.MIS.A DATED 20/5/2015 AS WELL AS MEMO OF CHARGES. - Exhibit P3 TRUE PHOTOSTAT COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT ON 4/7/2018 IN WPC NO.34339/2017. - Exhibit P4 TRUE PHOTOSTAT COPY OF THE ENQUIRY REPORT NO.ROC 5/TDB/DEQ/RAK/2016 DATED 7/3/2019 SUBMITTED BY THE ENQUIRY OFFICER. - Exhibit P5 TRUE PHOTOSTAT COPY OF THE ORDER NO.ROC865/15/MIS. DATED 8/11/2021 PASSED BY THE 3RD RESPONDENT. - Exhibit P6 TRUE PHOTOSTAT COPY OF THE APPEAL NO.11046/2021/MIS E IN ROC 865/15/MIS. DATED 22/11/2021. - Exhibit P7 TRUE PHOTOSTAT COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT ON 7/12/2021 IN WPC NO.27882 OF 2021. - Exhibit P8 TRUE PHOTOSTAT COPY OF THE ORDER NO.ROC 10687/21/MIS 3 DATED 18/1/2022 ISSUED BY THE 2ND RESPONDENT. True copy PS to Judge