Rajeev S. Nair v. High Court of Kerala & Ors.

1 WPC 26617/23 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 WP(C) NO. 26617 OF 2023 ``` ## **`PETITIONER/S:`** ``` RAJEEV S. NAIR AGED 43 YEARS S/O K. RAJASEKHARAN NAIR, BENCH CLERK, GRADE-I, ADDITIONAL DISTRICT COURT, MAVELIKKARA [FORMERLY, JUNIOR SUPERINTENDENT, SUB COURT, MAVELIKKARA, PIN - 690101 BY ADVS. P.DEEPAK, NAZRIN BANU ``` ## **`RESPONDENT/S:`** ``` 1HIGH COURT OF KERALA REPRESENTED BY ITS REGISTRAR GENERAL, HIGH COURT OF KERALA, KOCHI, PIN - 682031 2REGISTRAR (DISTRICT JUDICIARY) HIGH COURT OF KERALA, HIGH COURT, KOCHI, PIN - 682031 3THE DISTRICT JUDGE (DISCIPLINARY AUTHORITY), ALAPPUZHA, PIN - 688013 BY ADVS. HARINDRANATH B G AMITH KRISHNAN H.(K/000666/2015) ``` ## **`OTHER PRESENT:`** ``` GP SMT.PRINCY XAVIER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 WPC 26617/23 ## **JUDGMENT** (Dated this the 10[th] January 2024) The petitioner, who was working as a Junior Superintendent in Sub Court, Mavelikkara, was issued with a notice dated 21.1.2021 calling for an explanation for unauthorised absence from duty. Based on the explanation, the petitioner was permitted to join duty subject to the result of the disciplinary proceedings. The Sub Judge, Alappuzha, conducted a preliminary inquiry and filed Ext.P4 report. In the preliminary report, it was found that the case put forward by the petitioner that he sustained a motor accident on 9.1.2021 appears to be false. Based on the preliminary report, a memo of charges was served to the petitioner. The petitioner submitted an explanation on 10.9.2021 to the memo of charges reiterating the explanation given to the first notice issued to him. Finding that the explanation submitted by the petitioner was not satisfactory, the Sub Judge, Cherthala was appointed 3 WPC 26617/23 as an Enquiry officer and after conducting an enquiry, Ext.P7 report was submitted finding guilty of the charges levelled against him. A separate show cause notice was issued calling for explanation on the enquiry report, to which the petitioner submitted Ext.P8 reply. Acting on the enquiry report, show cause notice, and the explanation, Ext.P9 proceedings were issued by the District Judge, Alappuzha, who was the disciplinary authority, proposing to impose the penalty of compulsory retirement from service and directed the petitioner to show cause why the punishment should not be imposed. On the basis of the reply given by the petitioner on 25.10.2022, Ext.P11 proceedings were issued by the disciplinary authority by imposing a punishment of reduction to the lower post for a period of 2 years as per Rule 11(v) of the Kerala Civil Services (C.C. & A.) Rules, 1960 (for short ‘the Rules 1960’). He was, thereafter, reverted as Bench Clerk Gr.I from Junior Superintendent. 4 WPC 26617/23 2. The petitioner filed an appeal under Rule 23 of the Rules, 1960, before the 1[st] respondent. After considering the appeal, Ext.P14 order was passed on 21.7.2023 dismissing the appeal. 3. This Writ Petition is filed for issuance of a writ of certiorari quashing Ext.P11 order imposing punishment to a lower post and Ext.P14 order of the 1[st] respondent confirming the same. 4. A counter affidavit is filed on behalf of the respondents. It is stated in the counter that the petitioner was formerly Junior Superintendent of Sub Court, Mavelikkara, and while so, he was issued with a show cause notice regarding unauthorized absence from 11.1.2021 onwards till 30.1.2021. Based on the preliminary enquiry report, disciplinary proceedings were initiated. The petitioner was imposed with a punishment of compulsory retirement from service earlier, which was set 5 WPC 26617/23 aside by this court. The disciplinary authority considered the matter afresh, and the petitioner was imposed with a penalty of withholding three increments with cumulative effect. There was yet another proceeding against the petitioner, which concluded in a punishment of withholding of one increment with cumulative effect for charges of misconduct and dereliction of duty. Considering the family constraints of the petitioner the penalty reduction to a lower post for two years, was awarded even though the recommendation was for compulsory retirement. In the enquiry it was specifically found by the Enquiry officer that the petitioner was absent from duty from 11.1.2021 to 30.1.2021 without availing leave and therefore, it is an unauthorised absence. The enquiry concluded as the charges levelled against the petitioner stood proved. 6 WPC 26617/23 5. The case put forward by the petitioner before the enquiry officer was that he met with a motor accident on 9.1.2021 and he was treated by Dr.Archana Devaki. In Ext.P4 preliminary report, Dr.Archana Devaki stated that she had treated the petitioner for joint pain and swelling (sandhivatha) and she clarified that she did not treat the petitioner for the injuries sustained in the accident and it was not made known to her. In the formal enquiry report submitted by the Enquiry Officer on the basis of the memo of charges, the doctor stated in Ext.A6 Medical certificate that the petitioner was suffering from joint pain and swelling. Ext.A8 series of photographs was shown to the said Doctor and she submitted that she has not found such injuries when she examined the petitioner on 9.1.2021. 6. The memo of charges issued to the petitioner is, as follows: 7 WPC 26617/23 “(1) That, you Sri Rajeev S.Nair, Sub Court, Mavelikara, while working as such in that court, were unauthorisedly absent from duty from 11.01.2021 to 30.01.2021 and you neither submitted any leave application for your absence in time and nor did contact the office to inform the fact of your absence in time. (2) That, you, concocted story that you had met with an accident and sustained injuries on 19.01.2021 and stated to be under rest in your house for some days. It is revealed from the report of the official who deputed for serving a Show Cause notice in your residential address on 19.01.2021 at 5.p.m that you were not present in your house in rest and instead you went to a hospital at Kottayam along with your father-in-law. (3) That your above mentioned act amount to serious irresponsibility, negligence, dereliction of duties, misconduct and creating of falsehood unbecoming of a Government Servant.” In the enquiry, the Enquiry Officer categorically found that he was unauthorisedly absent from duty from 11.1.2021 to 30.1.2021 and he has not submitted any leave application. The Enquiry Officer also found that in Ext.A9, the prescription issued by the Doctor at the District Hospital, Mavelikkara on 2.2.2021, there is an overwriting showing that the vehicle’s fall is 23 days back. 8 WPC 26617/23 7. Regarding the 2[nd] charge, the Enquiry Officer found that from the available evidence, the story of the delinquent that he met with an accident on 9.1.2021 is highly probable on evaluation of record. Therefore, though the second charge is not fully proved, charges Nos.1 and 3 stood proved. On the said charges, the petitioner was issued a show cause notice as to why a punishment of compulsory retirement from service should not be imposed. Considering the explanation given by the petitioner Ext.P1 and the charges proved against the petitioner, a lesser punishment of reduction to a lower post for a period of 2 years was only imposed. The 1[st] respondent has also concurred with the finding in Ext.P11 as a Junior Superintendent, who holds a responsible position in the court of Subordinate Judge, was unauthorisedly absent from 11.1.2021 to 30.1.2021 without submitting a leave application and, therefore, the appeal was dismissed. 9 WPC 26617/23 8. The counsel for the petitioner, Smt. Nazrin Banu relied on judgments reported in **Chhel Singh v. MGB Gramin Bank, Pali and others [(2014) 13 SCC 166], Krushnakant B. Parmar v. Union of India and another [(2012) 3 SCC 178]** and **T.P. Murali v. Kerala Agricultural University (2022 SCC Online Ker 4410).** 9. In **Chhel Singh** (supra), the Hon’ble Supreme Court interfered with the departmental enquiry for the reason that neither the Enquiry Officer nor the appellate authority found that the absence was wilful and he was prevented from attending duty and was not allowed to sign the attendance register. The facts of the said case do not apply to the facts of this case, as the petitioner was admittedly absent for duty without availing leave from 11.1.2021 to 30.1.2021. His only defence was that he met with an accident on 9.1.2021 and sustained injuries. The said story has been negatived by the deposition by the doctor who treated 10 WPC 26617/23 petitioner on 9.1.2021 by deposing that the treatment was for ‘Sandhivatha’. When there is a clear finding for unauthorized absence, the disciplinary authority is justified in imposing a punishment in the nature of reduction to a lower post for a period of two years, though the show cause notice was for a penalty for a compulsory retirement from service. 10. I have gone through the preliminary enquiry report, the formal enquiry report, the punishment imposed as Ext.P11 as well as the appellate order Ext.P14, I do not find any justifiable ground to interfere with the factual finding by the enquiry officer. The punishment imposed by the disciplinary authority is proportionate to the degree of dereliction of duty by unauthorised absence. Therefore, the Writ Petition stands dismissed. **Sd/- BASANT BALAJI, JUDGE** **dl/** 11 WPC 26617/23 ``` APPENDIX OF WP(C) 26617/2023 ``` ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER ON 01 /02/2021 ``` - `Exhibit P2 TRUE COPY OF THE PROCEEDINGS OF THE SUB COURT, MAVELIKKARA DATED 01.02.2021` - `Exhibit P3 A TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 02.02.2021` - `Exhibit P4 TRUE COPY OF THE PRELIMINARY ENQUIRY REPORT DATED 30.04.2021` - `Exhibit P5 TRUE COPY OF THE MEMO OF CHARGES DATED 12.08.2021 Exhibit P6 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 10.09.2021` - `Exhibit P7 TRUE COPY OF THE FORMAL ENQUIRY REPORT DATED 15.01.2022` ``` Exhibit TRUE COPY OF THE SHOW CAUSE NOTICE DATED P7(a)14.03.2022 ``` ``` Exhibit P8TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER ON 29.03.2022 ``` ``` Exhibit P9TRUE COPY OF THE PROCEEDINGS OF THE RESPONDENT DATED 26.09.2022 ``` - `Exhibit P10 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER ON 25.10.2022` - `Exhibit P11 TRUE COPY OF THE PROCEEDINGS OF THE RESPONDENT DATED 16.12.2022` ``` Exhibit P12TRUE COPY OF THE ORDER DATED 16.12.2022 (ORDER NO: S.O 84/2022/A1) ``` - `Exhibit P13 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 11 .01 .2023` - `Exhibit P14 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 21.07.2023`