V.K. Rama Warrier v. State of Kerala and Travancore Devaswom Board and The Assistant Commissioner, Travancore Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 13TH DAY OF SEPTEMBER 2017/22ND BHADRA, 1939** **WP(C).No. 27879 of 2009 (D)** **----------------------------** ## **PETITIONER(S):** **-------------** **V.K. RAMA WARRIER, VADAKKEDATHU WARRIAM, (SREELEKSHMI) VEEDU, VAKATHANAM P.O., MANIKANTAPURAM, KOTTAYAM.** ## **BY ADV. SRI.S.KRISHNAMOORTHY** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA REP. BY ITS SECRETARY, DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. TRAVANCORE DEVASWOM BOARD, REP. BY ITS SECRETARY, DEVASWOM HEAD OFFICE, NANTHANCODE, THIRUVANANTHAPURAM.** **3. THE ASSISTANT COMMISSIONER, TRAVANCORE DEVASWOM BOARD, THRIKARIYOOR.** **R1 BY GOVERNMENT PLEADER SMT. PRIYA SHANAVAS R2&R3 BY ADVS.SRI.P.G.PARAMESWARA PANICKER (SR.) BY SRI.P. GOPAL SC FOR TDB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 27879 of 2009 (D)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1 TRUE COPY OF COMMUNICATION DATED 2.9.1993 ISSUED BY THE 3RD RESPONDENT** - **P2 TRUE COPY OF THE MEMO OF CHARGES DATED 3.2.1994 ISSUED BY THE 3RD RESPONDENT** - **P3 TRUE COPY OF THE MEMO OF CHARGES NO.ROC NO.31/93/ENQUIRY DATED 20.07.1994 ISSUED BY THE 2ND RESPONDENT** - **P4 TRUE COPY OF THE REPRESENTATION DATED 07.02.1995 SUBMITTED BEFORE THE 2ND RESPONDENT BY THE PETITIONER** - **P5 TRUE COPY OF THE SHOW CAUSE NOTICE NO.ROC 4918/93/EST.1 DATED 21.3.95 ISSUED BY THE 2ND RESPONDENT** - **P6 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER DATED 17.4.1995** - **P7 TRUE COPY OF THE PROCEEDINGS NO.ROC 4918/93/EST-1 DATED 21.8.95 ISSUED BY THE 2ND RESPONDENT** - **P8 TRUE COPY OF THE REPRESENTATION DATED 6.10.1995 SUBMITTED BY PETITIONER BEFORE THE 2ND RESPONDENT** - **P9 TRUE COPY OF THE REPRESENTATION DATED 3.2.1996 SUBMITTED BY PETITIONER BEFORE THE 2ND RESPONDENT** - **P10 TRUE COPY OF THE REPRESENTATION DATED 1.7.1996 SUBMITTED BY PETITIONER BEFORE THE 2ND RESPONDENT** - **P11 TRUE COPY OF THE REPRESENTATION DATED 10.11.1998 SUBMITTED BEFORE THE DEVASWOM BOARD PRESIDENT** - **P12 TRUE COPY OF THE JUDGMENT DATED 3.6.2003 IN CC.2/2000 OF THE HON'BLE JUDICIAL MAGISTRATE OF THE 1ST CLASS, ETTUMANOOR** - **P13 TRUE COPY OF THE REPRESENTATION DATED 29.10.2003 SUBMITTED BEFORE THE 2ND RESPONDENT** |**WP(C).No.**|**27879 of 2009 (D)**| |---|---| |**---------------------------**|| |**P14**|**TRUE COPY OF COMMUNICATION NO.ROC**| ||**NO.4918/93/EST.1 DATED 11.12.03 ISSUED BY TH 2ND**| ||**RESPONDENT**| |**P15**|**TRUE COPY OF REPRESENTATION DATED 9.3.2004 BEFORE**| ||**THE 2ND RESPONDENT**| |**P16**|**TRUE COPY OF COMMUNICATION NO.ROC 4918/93EST.1**| ||**DATED 18.3.04 ISSUED BY THE 2ND RESPONDENT**| |**P17**|**TRUE COPY OF THE JUDGMENT IN WPC.3553/05 DATED**| ||**27.5.08 OF THIS HON'BLE COURT**| |**P18**|**TRUE COPY OF THE ORDER IN ROC NO.4918/93/ESTT**| ||**DATED 1.12.2008**| |**P19**|**TRUE COPY OF THE REPRESENTATION DATED 21.2.2009**| ||**SUBMITTED BEFORE THE 2ND RESPONDENT**| |**RESPONDENT(S)' EXHIBITS**|| |**-----------------------**|| |**R2(A)**|**TRUE COPY OF THE ENQUIRY REPORT OF THE ENQUIRY**| ||**OFFICER DATED 28.2.1995**| ## **TRUE COPY** **P.S. TO JUDGE** **EL** ## **A.MUHAMED MUSTAQUE, J.** ========================= **W.P.(C).No.27879/2009** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 13[th] day of September, 2017 ## **J U D G M E N T** The petitioner, while holding the post of Sub Group Officer under the Travancore Devaswom Board was subjected to disciplinary proceedings. Consequent upon an enquiry, the Board dismissed the petitioner from service. The Board had also lodged a criminal complaint against the petitioner. The criminal complaint was considered by the Magistrate's Court subsequent to the dismissal of the petitioner from service. The criminal court acquitted the petitioner on finding that there was no cogent evidence to prove falsification of the documents as well as misappropriation of funds. The petitioner thereupon approached the Board to review its decision which was refused by the Board. Thereafter, the petitioner approached this court. This court directed the Board to reconsider the order of dismissal. The Board again reconsidered the matter and refused to reinstate him in service. It is challenging the said order, the petitioner ``` WPC27879/2009 ``` ## **-:2:-** has approached this court with this writ petition. 2. The learned counsel for the petitioner, by relying upon the judgment of the Hon'ble Supreme Court in **Tank v. State of Gujarat [2006 (3) KLT 514 (SC)]** argued that since the criminal court had acquitted the petitioner on identical and similar set of allegations, the petitioner is bound to be reinstated in service as any findings made in the enquiry would not stand against the petitioner. Per contra, the learned Standing Counsel for the Board relying upon the judgment of the Hon'ble Supreme Court in **Deputy Inspector General of Police and another v. S.Samuthiram [(2013) 1 SCC 598]** argued that there is no provision under the service rules to reinstate an employee, consequent upon acquittal by a criminal court. It is further argued by the learned Standing Counsel that the evidence in disciplinary proceedings and the evidence in the criminal proceedings are to be viewed separately for the purpose of initiating action by an employer. It is also argued that the dismissal order was challenged earlier before this court and the petitioner gave up that challenge by seeking a direction to consider his representation for reviewing the punishment, by the Board. Therefore, at this distance of time, the ``` WPC27879/2009 ``` ## **-:3:-** petitioner cannot challenge the decision of dismissal from service. 3. The charges laid against the petitioner are six in number, vide two different memos. This court while invoking its power under Article 226 of the Constitution of India has a limited role in interfering with the matter. The finding entered by the disciplinary authority would clearly indicate that the petitioner was found guilty for the misconduct on the ground of misappropriation as well as dereliction of duties. It appears that the Board also sustained a loss of Rs.72,158. There was evidence before the enquiry officer to prove misconduct of the petitioner. The question, in this particular circumstance and in the background of acquittal by the criminal court, is whether the charges as against the petitioner regarding misappropriation would sustain or not. The judgment of the criminal court clearly indicate there there was no cogent evidence before the criminal court to prove misappropriation or falsification of the documents. Both the offences as above require _mens rea_ to be demonstrated against the delinquent employee, the petitioner. It may be true that in the light of the findings in the discussions of the enquiry report, there are irregularities and dereliction of duty on the ``` WPC27879/2009 ``` ## **-:4:-** part of the petitioner; this court cannot overlook those findings, in the light of the evidence before the enquiry officer. But that cannot be relied upon to find misappropriation by the petitioner, in as much as the criminal court had found contrarily. Therefore, the misconduct proved against the petitioner cannot be said to have overtone of criminal offence though it may qualify in all other respects to hold misconduct, to take action against him under the service rules. In such circumstances, the only question that is left open before this court is whether the punishment imposed as dismissal of the petitioner from the service is warranted or not. 4. Having found as above that the alleged misconduct as against the petitioner does not have overtone of the criminal offence, this court is of the view that the punishment of dismissal is disproportionate to the misconduct proved against the petitioner. The petitioner has put more than 17 years of service with the Board. In such circumstances, this court is of the view that the punishment can be converted as compulsory retirement from service. The petitioner's prayer to reinstate him in service will have to be rejected in the light of the findings in the enquiry report. This court cannot say that such ``` WPC27879/2009 ``` ## **-:5:-** finding is without any evidence. This court can hold now only to say that, that evidence can be relied upon only to conclude misconduct other than misappropriation on the part of the petitioner. In the absence of any misconduct having overtone of criminal offence or that of involving of moral turpitude, punishment of dismissal is unwarranted. Therefore, this court is of the view that, to that extent, the powers under Article 226 can be invoked in the matter. Accordingly, setting aside the punishment of dismissal, by substituting it by compulsory retirement, the writ petition is disposed of. Certainly, if the petitioner is entitled for any consequential benefits under law, that shall be given to the petitioner within three months. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** ms