IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 WP(C).No. 1161 of 2005(L) ------------------------------------ PETITIONER: -------------------- T.K.BALAN (EX-ASSISTANT, RUBBER BOARD COMPULSORILY RETIRED),MUDAVANAL HOUSE, ELAVANTHITTA P.O., PATHANAMTHITTA-689 625. BY ADV. SRI.K.P.DANDAPANI (SR.) RESPONDENTS: ------------------------ 1. UNION OF INDIA, REP. BY THE SECRETARY TO THE GOVERNMENT, MINISTRY OF COMMERCE & INDUSTRIES, DEPARTMENT OF COMMERCE, UDYOG BHAVAN, NEW DELHI-11 2. JOINT SECRETARY TO THE GOVT.OF INDIA, MINISTRY OF COMMERCE AND INDUSTRY, -DO- -DO-. 3. RUBBER BOARD, REP. BY ITS CHAIRMAN, P.B.NO.1122, SUB JAIL ROAD, KOTTAYAM-686 002. BY ADV. SRI.JOSEPH KODIANTHARA SRI.MITHUN MARKOS FOR R1 & R2BY ADV. SRI.MOHAN IDICULLA ABRAHAM, ADDL.CGSC R3 BY ADV. SRI .TENY V.JAMES SRI. TERRY V.JAMES THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.1161/2005 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE MEMO OF CHARGES DT. 25.11.86 WITH STATEMENT OF IMPUTATION ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P2:- COPY OF THE LETTER DT. 30.11.07 SUBMITTED BY THE PETITIONER SEEKING FOR THE RECORDS OF THE ENQUIRY. EXT.P2(a):- -DO- DT. 5.1.88. EXT.P2(b):- -DO- DT. 6.1.88. EXT.P3:- COPY OF THE MEMO DT. 22.2.08 ISSUED BY THE 3RD RESPONDENT/ DISCIPLINARY AUTHORITY FORWARDING COPY OF THE ENQUIRY REPORT AND SEEKING EXPLANATION ON THE PROPOSED PUNISHMENT. EXT.P4:- COPY OF THE PUNISHMENT ORDER DT. 2.5.88 ISSUED BY THE 3RD RESPONDENT. EXT.P5:- COPY OF THE ORDER DT. 19.4.89 PASSED BY THE 2ND RESPONDENT/ APPELLATE AUTHORITY. EXT.P6:- COPY OF THE JUDGMENT DT. 7.3.04 PASSED BY THIS HONOURABLE COURT IN OP. 9179/89 SETTING ASIDE EXT.P5. EXT.P7:- COPY OF THE FRESH ORDER DT. 4.1.95 PASSED BY THE 2ND RESPONDENT/ APPELLATE AUTHORITY. EXT.P8:- COPY OF THE REVIEW PETITION DT. 5.4.04 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXT.P9:- COPY OF THE REQUEST DT. 18.6.04 SUBMITTED BEFORE THE IST RESPONDENT SEEKING FOR OPPORTUNITY OF PERSONAL HEARING. EXT.P10:- COPY OF THE ORDER DT. 18.10. 04 ISSUED BY THE IST RESPONDENT DISMISSING THE REVIEW PETITION. EXT.P11:- COPY OF THE ORDER NO. 06.01.99/PLANT © DT. 19.6.01 ISSUED BY THE 2ND RESPONDENT REINSTATING THE ENQUIRY OFFICER WHO WAS DISMISSED FROM THE SERVICE FOR MORE SERIOUS MISCONDUCTS AWARDING LESSER PUNISHMENT. EXT.P12:- COPY OF THE PAY FIXATION STATEMENT ON PROMOTION OF THE PETITIONER AS ASSISTANT, ISSUED BY THE FINANCIAL ADVISOR OF THE 3RD RESPONDENT. EXT.P13:- COPY OF THE REPRESENTATION DT. 17.7.92 PREFERRED BY THE PETITIONER BEFORE THE CHAIRMAN OF THE RUBBER BOARD (BY REGISTERED POST), POINTING OUT THE MISTAKES / LAPSES IN THE PAY FIXATION. W.P.(C0 NO.1161/2005 EXT.P14:- COPY OF THE REPRESENTATION DT. 25.9.96 PREFERRED BY THE PETITIONER BEFORE THE DEPUTY SECRETARY (P&A) OF THE 3RD RESPONDENT FOR EFFECTING THE CORRECT PAY FIXATION ON PROMOTION AS ASSISTANT (BY REGISTERED POST.). EXT.P14(a):- COPY OF THE POSTAL ACKNOWLEDGEMENT CARD RETURNED FROM THE DEPUTY SECRETARY (P&A). EXT.P15:- RELEVANT EXTRACT OF ENQUIRY REPORT ISSUED IN FAVOUR OF THE PETITIONER. RESPONDENT'S EXHIBITS EXT.R3(a):- COPY OF THE LETTER DT. 1.1.88 OF THE ENQUIRY OFFICER TO THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE tss K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.1161 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of February, 2008 JUDGMENT Disciplinary proceedings were taken against the petitioner while he was employed as an Assistant in the third respondent Rubber Board. The charge against the petitioner would appear to be essentially lack of devotion to duty in so far as the petitioner was found devoting more time in connection with the affairs of his business and the charge was also that petitioner often absented without leave. A domestic inquiry followed and a report was made on 5.12.1988. On the basis of the same, disciplinary action came to be finalised by the disciplinary authority by imposing cumpulsory retirement. The petitioner had approached this court earlier and this court vide Ext.P6 judgment found that the appellate authority, which had earlier dismissed the appeal of the petitioner, had not considered the contentions of the petitioner in a proper perspective, and directed to reconsider the matter. Thereafter Ext.P7 order came to be passed in the year 1995. The petitioner thereupon filed Ext.P8 petition seeking review in the year 2004, after nine years. That came to be rejected vide Ext.P10. Accordingly the petitioner calls in question Exts.P7 and P10. WPC. 1161/2005. 2 2. I heard learned counsel for the petitioner and the respondents. 3. Learned counsel for the petitioner would contend that this is a case where the charges were cryptic and vague. He would further submit that it was pre-meditated, there was bias and there was lack of bonafides. It is further contended that P.W.2, whose evidence is relied on, was inimical towards the petitioner and therefore there is bias. It is further contended that though the petitioner had sought certain vital documents vide Exts.P2, P2(a) and P2(b), they were rejected. He would further contend that penalty is disproportionate. He would lastly contend that this court vide Ext.P6 judgment directed the appellate authority to consider the matter in particular as to whether the statutory provisions have been complied with. The laconic order that has been passed would not satisfy the requirements under Ext.P6 judgment, he contends. He further contended that the enquiry report was served along with the notice proposing penalty and the petitioner was put to prejudice. 4. Learned counsel for the respondents justifies it. Learned counsel appearing for the third respondent would also point out that Ext.P7 is passed in the year 1995. Petitioner came to file the review only in 2004 and it was in 2005 that the writ petition was filed challenging Ext.P7 order. WPC. 1161/2005. 3 He would further point out that the requirements of the rules were complied with and he would also justify the proceedings and punishment. Support is drawn from Ext.R3(a) dated 1.1.1988. 5. Learned counsel for the petitioner would contend that having regard to the principle laid down by the Supreme Court in the decision reported in Government of Andhra Pradesh v. A. Venkata Raidu ((2007) 1 SCC 338) the charges cannot be vague. He took me through the charges and contended that the exact days on which the petitioner was absent were not brought out. This is countered by learned counsel for the third respondent that all the dates are given with specificity and the time is mentioned as is evident from the statement of allegations accompanying the charge. The further contention which was specifically pressed by the learned counsel for the petitioner was that the documents were not forthcoming even though the petitioner made a request. It is to be noted that it is not in dispute that the enquiry proceedings were completed on 30.11.1987. The applications filed by the petitioner seeking documents were all filed after the conclusion of the enquiry. It is no doubt true that in Ext.P7 there is no pointed reference to these aspects even though there was a direction by this court earlier. I may have directed reconsideration of the WPC. 1161/2005. 4 matter. But I do not think it necessary. In the first place Ext.P7 is in the year 1995. Even though petitioner suffered an adverse order in the year 1995, he choose to file a review petition after nine years and Ext.P10 order is passed thereon. Therefore there appears to be a huge delay. That apart, it is to be noticed that the petitioner did not admittedly filed any application during the continuance of the inquiry proceedings seeking documents. Further, a perusal of Ext.R3(a) would show that the documents sought for by the petitioner was made available according to the third respondent. But the petitioner took the stand that those documents did not relate to the petitioner and ultimately it is stated that Inquiry Officer proposed to him to establish the custody of personal registers other than the registers produced for inspection with the Regional Office, while cross-examining the custodian of such records and the defence agreed to the proposal of the Inquiry Officer. It is further stated in Ext.R3(a) that the proceedings were closed on 30.11.1987 and the defence did not cross-examine the prosecution evidence to prove the existence of personal registers other than the registers given to him at the time of enquiry. At any rate the fact remains that the application seeking production of documents were filed only after the conclusion of the inquiry. Apparently the attempt of the petitioner was to cause the production of visitors register to disprove the case that there were WPC. 1161/2005. 5 visitors in the office where petitioner was working in connection with the business of the petitioner. There is evidence to show that there were lot of visitors and the attention of the petitioner was deflected. There is no case set up in the writ petition that evidence of P.W.2 would show that he was inimical towards the petitioner. Regarding the contention based on the non- supply of inquiry report, the case canvassed before me was that the petitioner was served with the inquiry report only along with the notice proposing punishment. It is settled law that mere non-service of the inquiry report would not be sufficient to hold that the inquiry is bad. In this case it is admitted position that petitioner was served with the inquiry report along with the notice proposing penalty. Petitioner has not been successful in establishing that the petitioner has in any way been prejudiced by the non- supply of the inquiry report earlier. Learned counsel for the petitioner did not even attempt to show that any prejudice is caused to the petitioner by the non-service of the inquiry report. Apart from the contention that there is bias and lack of bonafides, there is no evidence to show that there is bias and lack of bonafides in the matter. It is for these reasons that I would think that no purpose as such will be served by a reconsideration after 13 years of the passing of the order. Having regard to the nature of the charges and the allegations against the petitioner, I do not think that there is any basis for WPC. 1161/2005. 6 interfering with the punishment on the basis that it was disproportionate. It is settled law that punishment cannot be interfered with unless it is shockingly disproportionate. In the nature of the charges, which is proved against the petitioner, it cannot be said that the punishment is shockingly disproportionate. Learned counsel for the petitioner fairly submits that the petitioner has been sanctioned pension. I see no merit in the writ petition. Accordingly it is dismissed. (K.M. JOSEPH, JUDGE) sb