Varghese Kottekorotte v. District Judge (Disciplinary Authority), Thodupuzha; Registrar, High Court of Kerala; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 18TH DAY OF AUGUST 2014/27TH SRAVANA, 1936** ## **WP(C).No. 27441 of 2005 (R)** **----------------------------** ## **PETITIONER :** **---------------------** **VARGHESE KOTTEKOROTTE, AGED 47, S/O.XAVIER KOTTEKAROTTE, DAWN AUXILIUM SCHOOL KATTAPPANA, PRESENTLY WORKING AS U.D. CLERK AT ADDITIONAL DISTRICT & SESSIONS COURT (AD HOC I) THODUPUZHA (FORMERLY BENCH CLERK/UD CLERK SUB COURT KATTAPPANA).** **BY ADVS.SRI.ANTONY KUREETHARA SRI.C.AJITH KUMAR (KALLESSERIL) SRI.C.ANILKUMAR (KALLESSERIL)** **RESPONDENT(S) :** **----------------------------** **1. THE DISTRICT JUDGE (DISCIPLINARY AUTHORITY) DISTRICT COURT, THODUPUZHA, REP. BY GOVERNMENT PLEADER** **HIGH COURT OF KERALA.** ## **2. THE REGISTRAR,** **HIGH COURT OF KERALA, ERNAKULAM.** ## **3. STATE OF KERALA,** **REP. BY SECRETARY (LAW), GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM.** **R1 & R2 BY SENIOR ADVOCATE SMT.V.P.SEEMANDINI BY ADVS. SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH** **SRI.M.R.ANISON R3 BY GOVT. PLEADER SRI. SOJAN JAMES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 27441 of 2005 (R)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF THE APPLICATION DATED 2.9.2004 FILED BEFORE THE 2ND RESPONDENT. EXT.P2 COPY OF THE RELEVANT PAGE OF THE COURT DIARY DATED 16.3.2002. EXT.P3 COPY OF THE STATEMENT DATED 19.11.2004 GIVEN BY ADV. SEBASTAIN THOMAS. EXT.P4 COPY OF THE ORDER DATED 26.7.2005 ISSUED BY THE FIRST RESPONDENT. EXT.P5 COPY OF THE REPRESENTATION DATED 29.8.2005 FILED BY PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P6 COPY OF THE REPLY DATED 5.9.2005 SEND BY 1ST RESPONDENT TO THE PETITIONER. EXT.P7 COPY OF THE ORDER DATED 7.9.2005 ISSUED BY THE IST RESPONDENT.** ## **RESPONDENT'S EXHIBITS :** **EXT.R1(a) : COPY OF RELEVANT PAGES OF THE COMMISSION ISSUE REGISTER.** **//TRUE COPY//** **P.A. TO JUDGE Mn** ## **P.D. RAJAN, J.** ------------------------------------------W.P (C) No.27441 of 2005 ---------------------------------------------Dated this the 18[th] day of August, 2014 ## **JUDGMENT** This writ petition is filed under Article 226 of the Constitution of India to declare Exts.P4 and P7 orders of the 1[st] respondent is illegal and arbitrary and hence, no binding on the petitioner. The Petitioner is now working as Junior Superintendent, Family Court, Kattappana (former U.D. Clerk, Additional Sessions Court, Thodupuzha). While he was working as Bench Clerk, Sub Court, Kattappana, a complaint was filed by one K.G. Krishnankutty against the petitioner alleging that the petitioner caused irrecoverable loss to him by misdirecting the name of the Advocate Commissioner appointed to file a report in I.A.No.178/200 in O.S.No.39/2002 of Sub Court, Kattappana. The petitioner 2 W.P.(C)No.27441/05 wrongly informed the complainant that one Advocate Mr. Benny Thomas was the Commissioner. Actually, the Court appointed Advocate Mr. Sebastian Thomas as the Advocate Commissioner. Thereafter, the petitioner served with a memo by the 1[st] respondent and the petitioner gave detailed explanation to that memo. As the explanation submitted by the petitioner was found unsatisfactory, a memo of charges was framed against the petitioner. Since the reply to that memo of charges was also unsatisfactory, formal enquiry was ordered by the 1[st] respondent. On the basis of that, an enquiry was conducted and disciplinary action was taken by the District Judge, Thodupuzha and the Munsiff Magistrate, Kattappana was appointed as the Enquiry Officer. After detailed enquiry, a report was submitted to the disciplinary authority and disagreeing with the above conclusion of the Enquiry Officer, Exts.P4 W.P.(C)No.27441/05 3 and P7 orders were passed by the District Judge, Thodupuza, the 1[st] respondent herein and directed to conduct a fresh enquiry. Hence, the petition. 2. Heard both sides. In the counter affidavit filed by respondents 1 and 2, it is stated that Advocate Mr. Sebastian Thomas was appointed as the Commissioner by order dated 16.03.2002 in I.A.No.782/2002 in O.S.No.39/2002 and As the Commission Issue per Register, the same was issued in the name of Advocate Rosamma Joseph. It is evident from the above register that a commission was ordered in IA.No.152/2002 in O.S.No.34/2000 on 13.03.2002 appointing Smt. Rosamma Joseph as Advocate Commissioner. But, warrant in that case was received by Advocate Benny Thomas on 18.03.2002. Later, the name and signature of Advocate Benny Thomas was seen struck off from the register and W.P.(C)No.27441/05 4 the warrant was received by Advocate Sebastian Thomas putting his signature in the register on 18.03.2002. In other words, the commission warrant in favour of Advocate Sebastian Thomas was never issued to him by the petitioner. Therefore, some of the relevant documents in connection with the above enquiry were not collected by the Enquiry Officer. In the circumstances, the disciplinary authority issued Exts.P4 and P7 orders. Therefore, according to the respondents, no interference is necessary in this writ petition. 3. From the above averments, it is found that the disciplinary authority appointed the Munsiff Magistrate, Kattappana as the Enquiry Officer and he submitted a report. The enquiry officer examined Pws 1 to 3 and Dws 1 to 3. Exs.P1 and D1 to D5 were also marked. On receipt of the report, the disciplinary authority issued Ext.P4 order. W.P.(C)No.27441/05 5 Later, Ext.P7 order was passed on 7.9.2005. In Ext.P7, it is stated that paragraph 3 of Ext.P4 order is modified to the extent that a further enquiry is ordered as some evidence, which would have been available, were not seen collected by the Enquiry Officer. Since the Enquiry Officer, the Munsiff Magistrate (Sri.C.S.Abdul Jabbar), Kattappana was transferred out of District, Sri. P. Madhavan, Sub Judge, Kattappan was appointed as the Enquiry Officer. There is no illegality in giving such a direction. In this context, this Court in **Kesavan Namboodiri** v. **State of Kerala** [1982 KLT 512] held as follows: “An examination of Rule 15 shows that the Disciplinary Authority cannot wipe out the inquiry already conducted and direct a de novo enquiry. Where the findings of the enquiring authority are adverse to the delinquent officer, it is open to the Disciplinary Authority to consider the material and evidence, come to a different conclusion and exonerate him from charges. If, on the other hand, the inquiring W.P.(C)No.27441/05 6 authority holds that the charges are not proved, it is open to the Disciplinary Authority to take a different view and record findings. Where the Disciplinary Authority is satisfied that some evidence which would have been available was not collected by the Inquiring Authority, it may even direct the Inquiring Authority to proceed further with the inquiry in the interests of justice. There is no provision in the rules to order a de novo inquiry after wiping out the inquiry already conducted.” This Court while observing the enquiry report, held that disciplinary authority cannot order a de novo enquiry, after getting the enquiring officer's report. Where the findings of the enquiring authority are adverse to the delinquent officer, it is open to the disciplinary authority to consider the material and evidence, come to a different conclusion and exonerate him from charges. If, on the other hand, the enquiry authority held that the charges are not proved, it is open to the disciplinary authority to take a different view and record the findings. At the same time, If the disciplinary authority is satisfied that some 7 W.P.(C)No.27441/05 evidence, which would have been available, was not collected by the Inquiring authority, it may direct the enquiry authority to proceed further with the enquiry in the interest of justice. 4. Here, the observation of the disciplinary authority was that some evidence, which would have been available, was not collected by the enquiry officer. If that be the position, I do not find any reason to interfere in Exts.P4 and P7. Since Sri. P. Madhavan, Sub Judge was also transferred, the disciplinary authority is directed to appoint a fresh Enquiry Officer with regard to the observation made in Ext.P7 and complete the enquiry, as per law, within one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. **P.D. RAJAN, JUDGE.** acd W.P.(C)No.27441/05 8 W.P.(C)No.27441/05 9