IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 WP(C).No. 37071 of 2003(L) -------------------------- PETITIONER(S): --------------- K.C.VISWAMABHARAN, FIREMAN NO.3114, FIRE AND RESCUE SERVICE STATION, MOOVATTUPUZHA. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): --------------- 1. THE COMMANDANT GENERAL, OFFICE OF HOME GUARDS, CIVIL DEFENCE FIRE AND RESCUE SERVICES THIRUVANANTHAPURAM. 2. THE FIRE FORCE DIVISIONAL OFFICER, (CENTRAL ZONE) DIVISIONAL OFFICE, FIRE AND RESCUE SERVICES, ERNAKULAM. 3. THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, ERNAKULAM. 4. THE STATION OFFICER, FIRE STATION, KOTHAMANGALAM. MR.ANTONY MUKKATH, GOVERNMENT PLEADER FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.37071/2003 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF ORDER OF SUSPENSION NO.617/2000/A2 DATED 15/01/2001 ISSUED BY R2. P2 : COPY OF CHARGE MEMO NO.B1/617/2000 DATED 13/07/2001 ISSUED TO THE PETITIONER. P2(a) : COPY OF STATEMENT OF ALLEGATIONS DATED 13/07/2001 ISSUED TO THE PETITIONER. P3 : COPY OF ACKNOWLEDGMENT CARD RECEIVED BY R4. P4 : COPY OF ENQUIRY REPORT OF R2. P5 : COPY OF SHOW CAUSE NOTICE DATED 14/09/2001. P6 : COPY OF ORDER NO.617/00/B1 DATED 13/11/2001 ISSUED BY R2. P7 : COPY OF APPEAL FILED BY THE PETITIONER BEFORE R1. P8 : COPY OF ORDER DATED 02/08/2002 BY R1. P9 : COPY OF REPRESENTATION DATED 15/10/2002 FILED BY THE PETITIONER TO THE 1ST RESPONDENT. P10 : COPY OF REPRESENTATION FILED BY THE PETITIONER BEFORE R1. P11 : COPY OF ORDER NO.A 3739/02 DATED 20/05/2003 FILED BY R1. P12 : COPY OF LETTER DATED 17/07/2003 ISSUED BY R2. // TRUE COPY // PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.37071 of 2003 (L) --------------------------------- Dated, this the 17th day of December, 2009 J U D G M E N T The prayer sought in this writ petition is to quash Exts.P8, P11 & P12 and to direct the respondents to treat the service of the petitioner from 29/09/1998 to 11/08/2002 as duty for all purposes. 2. The petitioner was working as a leading Fireman at Fire and Rescue Station, Kothamangalam. According to him, he was on medical leave for the period from 29/09/1998 to 31/03/2000. Even thereafter he remained absent without applying for leave or producing medical certificate. 3. On the ground of unauthorised absence for the period from 01/04/2000 to 14/01/2001, Ext.P1 order was issued placing the petitioner under suspension. This was followed by Ext.P2 memo of charges and Ext.P2 (a) statement of allegations. On its receipt the petitioner did not submit any written statement of defence. In the meanwhile, the petitioner submits that he sent medical WP(C) No.37071/2003 -2- certificate for the period subsequent to 01/04/2000 and that the same was received by the 4th respondent on 23/01/2001. 4. In pursuance to Exts.P2 and P2(a), enquiry was conducted. Ext.P4 is the enquiry report finding the petitioner guilty. Acting upon the report, Ext.P5 show cause notice was issued proposing to impose punishment of removal from service. Even on receipt of Ext.P5, the petitioner did not submit any explanation. The disciplinary authority thereafter issued Ext.P6 order dated 13/11/2001 removing the petitioner from the service. 5. He filed Ext.P7 appeal before the 1st respondent and the appeal was disposed of by Ext.P8 order reducing the punishment to reduction in grade by one year and reinstating him into service. Accordingly, the petitioner was reinstated and thereafter the petitioner filed Exts.P9 & P10 requesting for regularisation of his suspension period. The requests so made were considered and by Ext.P11 order dated 20/05/2003, it was ordered to treat the suspension period as eligible leave. Pursuant to Ext.P11, by Ext.P12, the petitioner was called upon to apply for the same, and that at that stage, this writ petition was filed challenging Exts.P8, WP(C) No.37071/2003 -3- P11 & P12. 6. In so far as Ext.P8 is concerned, admittedly, enquiry was conducted, misconduct was proved and the petitioner was liable to be imposed punishment. Although, he was initially ordered to be removed from service, the appellate authority reduced the punishment to reduction in grade by one year. By no stretch of imagination can this Court say that the punishment so imposed is disproportionate warranting interference in a proceedings under Article 226 of the Constitution of India. 7. In so far as Exts.P11 & P12 are concerned, here again the authorities have shown leniency to the petitioner and ordered that the period of suspension of the petitioner will be treated as eligible leave. Accordingly that by Exts.P11 & P12, he was called upon to apply for regularisation of the period of his suspension. Therefore, I do not find any irregularity in these orders. 8. The learned counsel for the petitioner then contended that the enquiry and order of punishment was imposed by the disciplinary authority himself and that such a procedure was illegal. 9. Disciplinary action is entirely within the powers of the WP(C) No.37071/2003 -4- disciplinary authority, and if the disciplinary authority so feels then only an enquiry officer is appointed as his delegate to collect evidence and make a factual report. That does not mean that it is not open to the disciplinary authority to conduct the enquiry by himself, and if the disciplinary authority conducts enquiry, the authority is at liberty to impose punishment as well. Rule 15 of the CCA Rules also recognises this position. Therefore there is no substance in the grievance of the petitioner that the disciplinary authority has both conducted the enquiry and imposed punishment on him. In the circumstances, since the findings of guilt as contained in the report has become final, punishment imposed cannot be said to be disproportionate warranting interference. In view of the proved misconduct committed by the petitioner, the petitioner cannot ask more than the leniency that has already been shown. I do not find any merit in the writ petition, and it is accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg