V. N. Kumarji Tharathveli v. Kerala State Road Transport Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934** **WA.No. 942 of 2012 () IN WPC/32161/2010 ---------------------------------------AGAINST THE ORDER/JUDGMENT IN WPC.32161/2010 DATED 25-01-2012** **APPELLANT(S)/APPELLANT:** **----------------------** **V.N.KUMARJI THARATHVELI, THUMPOLI, ALAPPUZHA (ASST.TRANSPORT OFFICER, K.S.R.T.C ALUVA COMPULSORILY RETIRED FROM SERVICE).** **BY ADVS.SRI.P.K.IBRAHIM** **SMT.A.A.SHIBI** ## **RESPONDENT(S):** ## **--------------** **1. KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-23.** **2. THE CHAIRMAN & MANAGING DIRECTOR TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-23.** **3. THE ENQUIRY OFFICER K.S.R.T.C TRANSPORT BHAVAN, FORT P.O. THIRUVANANTHAPURAM-23.** **BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC BY SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MANJULA CHELLUR, Ag.C.J & A.M.SHAFFIQUE, J.** ## **----------------------------------------------** ## **W.A.No. 942 of 2012** ## **----------------------------------------------** ## **Dated this the 6[th] day of July, 2012 JUDGMENT** ## **Manjula Chellur, Ag.C.J.** Heard learned counsel for the appellant as well as learned Standing Counsel for the respondent-Corporation. 2. The appellant herein was working as Assistant Transport Officer as on the date of the incident in question in the year 2010. According to the articles of charge issued to the appellant, when Vigilance Officer met the appellant on the intervening night on 12.2.2010 and 13.2.2010 in a surprise visit to the operating centre of KSRTC, the Vigilance Officer found alcoholic smell emanating from the appellant and therefore, in the morning on 13.2.2012, he was subjected to Breath Analyser Test. Pursuant to such test, quantity of alcohol found in his blood was 114 mg/100 ml. He was placed under suspension and disciplinary proceedings were initiated in accordance with the provisions contemplated under the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. During the course of enquiry, it was found that the 2 _**WA.942/12**_ appellant was under the influence of alcohol while he was discharging duties of an important post as Assistant Transport Officer at the time of Sivarathri Festival at Aluva. A show cause notice came to be issued with the proposal of punishment along with the enquiry report. According to the management, no reply giving explanation came to be made, which is categorically denied by the appellant. Ultimately, he was imposed with the punishment of compulsory retirement from service, in addition to 10% reduction in pension by the disciplinary authority. This was the subject matter of challenge before the learned Single Judge. 3. The learned Single Judge, after referring to the fact that the petitioner/appellant did not reply to the enquiry report and the proposed punishment, proceeded to hold that there was no justification in any of the defences placed by the appellant and dismissed the Writ Petition. Aggrieved by the same, the appellant is before us. 4. According to learned counsel for the appellant, the Breath Analyser Report made is absolutely not a fool proof test and that too, after 24 hours, there is no justification to arrive at a conclusion that while on duty, he was under the influence of 3 _**WA.942/12**_ alcohol. According to leaned counsel for the appellant, when the livelihood of the appellant is deprived of in the departmental proceedings without proper enquiry, as important witnesses were not allowed to be examined as requested by him, it would only indicate that there is violation of principles of natural justice. According to learned counsel for the appellant, the appellant completed the work of Assistant Transport Officer for 24 hours, even after the visit of the Vigilance Officer with the accusation of finding the appellant under the influence of alcohol. Therefore, there is no truth in the allegation made against the appellant that he was under the influence of alcohol. No proper medical test came to be done by the management in order to conclude that he was under the influence of alcohol at the relevant point of time. 5. According to the appellant's counsel, the appellant was actually taking heavy homoeopathic medicine at the relevant point of time for his ailment and therefore, the question of consuming alcohol while on duty would not arise at all. 6. We have gone through the material placed before us. We have also gone through the letter at Exhibit P3 dated 9.3.2010 addressed by the appellant himself to the Managing Director, 4 _**WA.942/12**_ Transport Bhavan, KSRTC, Trivandrum. As per the said letter, the appellant admits that on 13.2.2010 at about 02.00 hours, the Vigilance DTO called him, who was on the river bank in connection with the operation of Sivarathri Special and asked him to blow the Breath Analyser. Then he was informed about the presence of alcohol and took statement from him. According to him, on account of political intentions and prejudice, he was accused of being under influence of alcohol and he was wrongly suspended from service from 17.2.2010 itself. As per the submission and admission of the appellant himself, it was at 02.00 hours, i.e., 2 am on 13.2.2010, the Vigilance Officer saw him and called him and subjected him to Breath Analyser Test. Therefore, the argument of learned counsel for the appellant is that he worked for 24 hours and the Breath Analyser Test was not done immediately, cannot be taken into consideration. There is nothing to show that the Breath Analyser Test is not a proper test and it is not a fool proof test. 7. In that view of the matter, in the absence of any particular reason for the Vigilance Officer to subject the appellant for such test at that hour, we cannot suspect the bona fides in the action 5 _**WA.942/12**_ of the Vigilance Officer. As a matter of fact, Exhibit P2 says, the Alco-Quant meter had shown the count of 114 mg. This presupposes the fact that there was admittedly Breath Analyser Test on the appellant as contended by the management on 13.2.2010. According to him, he happened to consume high potency homoeo medicine for increased cholesterol and sugar as seen in the test results. It may be a fact that there was indication of high sugar and cholesterol, but there is nothing on record to show that the homoeopathic medicine consumed by the appellant did contain high alcohol quantity or percentage. In that view of the matter, one cannot come to a conclusion that just because he was under homoeopathic medicine, he could not have consumed alcohol. It is possible that he had taken homoeopathic medicine, but had consumed alcohol, otherwise, the Breath Analyser Test would not have reflected alcohol count of 114 mg. as against 100 ml in his blood. In that view of the matter, we are of the opinion, so far as conducting of the Breath Analyser Test by the Vigilance Officer indicating presence of alcohol in the blood of the appellant cannot be doubted at all. 8. Then coming to the defence of not permitting him to 6 _**WA.942/12**_ examine two important witnesses. There is nothing on record to show that he had made such a request to the enquiry officer during the departmental proceedings. On the other hand, the learned counsel now submits that it was an oral one. In the absence of any such claim by filing a list of witnesses before the enquiry officer, the contention now raised cannot be taken into consideration. As already stated above, there is no material indicating that Breath Analyser Test is not a proper test for assessing the alcohol contained in the blood of the consumer of alcohol or the person, who is subjected to such test. In that view of the matter, the evidence placed on record would indicate that immediately after the visit of the Vigilance Officer, such test was conducted, which revealed presence of alcohol as per the Breath Analyser Test. To deny such test, the admission of the appellant itself is placed on record. Therefore, his contention that it was homoeopathic medicine that alone was consumed by him at the relevant point of time, cannot be accepted. The day being 'Sivarathri Day' and he was posted for special duty to man operations of the buses as Assistant Transport Officer, during the wee hours on 12.2.2010, he was found under the influence of 7 _**WA.942/12**_ alcohol, which is unbecoming of an officer of a cadre of Assistant Transport Officer. In that view of the matter, we are of the opinion, the imposition of punishment of compulsory retirement from service with 10% reduction in pension is justified. If an Assistant Transport Officer, who has to regulate the transport services by commanding the drivers and conductors at the relevant point of time, is under the influence of alcohol, one cannot expect him to properly regulate the transport services, when he was posted for a special duty. As a matter of fact, he would not be in a position to give commands to the drivers and conductors. If he is under the influence of alcohol, the drivers and conductors would take their own decision and then he will not be in a position to mann the duties he was supposed to do. In all probability, some information must have reached the Vigilance Officer about the condition of the appellant, therefore, the Vigilance Officer must have visited. Even otherwise, there is no impediment for the Vigilance Officer to make a surprise visit. The visit and other consequential action are admitted by the appellant. In that view of the matter, we are of the opinion, the enquiry was conducted properly. So far as coming to the 8 _**WA.942/12**_ opportunity for explanation being given to the appellant, initially fifteen days time was granted to the appellant to submit his explanation. Again, it was extended by one month. Thereafter, he was supposed to send his explanation on or before 10.8.2010. Unfortunately, the acknowledgement card produced by the appellant today, indicates that he had sent it subsequent to 10.8.2010 and it reached the officer on 13.8.2010, which was entered in the inward register on 16.8.2010, as 14[th] and 15[th] of August, 2010 were holidays. Having regard to the very nature of misconduct committed by the appellant, unless the punishment imposed is shockingly disproportionate to the proved misconduct, we should not interfere with the imposition of punishment. 9. We have gone through the judgment of the Apex Court relied upon by learned counsel for the appellant in _**Ranjit Singh v. Union of India & Others**_ (2006 KHC 519). We are of the opinion, the facts of the said case are not at all applicable to the facts of the present case. Therefore, the said decision is of no assistance to the appellant. Even otherwise, having regard to the facts and circumstances of the present case, we are of the opinion, there is justification in the quantum of punishment 9 _**WA.942/12**_ imposed against the appellant and the learned Single Judge has appreciated the entire materials on record in proper perspective and we find no good ground for interference. Accordingly, the Writ Appeal is dismissed. **MANJULA CHELLUR, ACTING CHIEF JUSTICE** **A.M.SHAFFIQUE, JUDGE** **vgs07.07**