IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WP(C).No. 8705 of 2009(G) ------------------------- PETITIONER(S): --------------- P.T.JOSEPH, DRIVER, GRADE-II, KERALA STATE ROAD TRANSPORT CORPORATION, KANNUR DEPOT, KANNUR-2, RESIDING AT POOCHALIL, P.O.THATTUMMAL, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): --------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, THIRUVANANTHAPURAM. 2. CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM. 3. EXECUTIVE DIRECTOR (VIGILANCE), KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM. 4. KERALA STATE ROAD TRANSPORT CORPORATION, APPELLATE TRIBUNAL, THIRUVANANTHAPURAM. BY ADV.SRI.JOHNSON P.JOHN, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.8705 OF 2009 ------------------------------------------- Dated this the 21st day of May, 2009 JUDGMENT 1. Petitioner, employed as a driver in the first respondent, was driving an inter-state bus from Payyannur to Bangalore. After the relevant date, a complaint was made by a nun to the KSRTC, attributing grave misconduct, charging the petitioner of having showered obscene language on her. An enquiry was conducted. The victim was not examined. Witness Babu, a co- passenger, was also not examined, though he was cited by the delinquent, the petitioner. The proceedings ended by imposing the punishment of dismissal from service. The petitioner challenged that decision by filing a revision before the statutory appellate tribunal. After taking into consideration the different aspects, the tribunal reduced the punishment by converting the removal from service to be one only of barring increment for one year without cumulative effect. Dissatisfied by that, the petitioner has filed this writ petition. WPC.8705/09 Page numbers 2. Learned counsel for the petitioner states that the entire period of suspension and the period during which he remained out of service, if treated as leave without allowance in terms of Ext.P15 order of the tribunal, would be as much as depriving him of benefits of having continued in service. Learned counsel made a serious effort to attack the finding of facts. He argued that the complaint was withdrawn later and still further, that a perusal of the handwriting in the complaint and the withdrawal, more particularly the signature, would shake the confidence that anyone could have on the complaint. It is argued that the non-examination of the victim and the witness cited by the delinquent is fatal to the enquiry. 3. As noticed by this Court on 18.3.2009, the tribunal has stated in the impugned Ext.P15 order that in the revision petition, the petitioner had admitted that there was some altercations between him and the victim during the travel on 8.5.2004. The petitioner was accordingly directed by this Court to produce a copy of the revision memorandum. That is on record along with a memo by the learned counsel for the petitioner. WPC.8705/09 Page numbers Paragraph 4 of the revision memorandum produced along with memo filed on 26.3.2009 is taken on record and marked as Ext.P19 for the purpose of this case. That revision memorandum contains outright denial of the entire transaction as alleged. The findings of the enquiry officer are challenged. It is relevant to quote the following from para 4 of the revision petition. “............... If at all such a thing had happened, if not the defacto complainant, the other passengers would have definitely brought the matter to the knowledge of the Conductor. It is respectfully submitted that what actually has happened is that during a slight semi-sleep mood, the nun kept her leg behind the driver seat thereby touching her leg on his buttocks, as if in a footrest and two or three times the driver/petitioner politely told her to remove the leg from the seat. The nun might have taken it as an insult and this may be the reason infuriated her to telephone to her father after reaching Bangalore. ...............”. It is the aforesaid that, obviously, prompted the appellate tribunal to conclude against the petitioner. Immediately, I may WPC.8705/09 Page numbers also note that Ext.P19 revision petition is signed by the petitioner. The attributes made by the petitioner to the victim, as quoted above, is the plea regarding a fact. The tribunal accepted that plea as a fact that had happened, according to the petitioner. But the fact remains that there is not an iota of material worth credence to uphold that plea. If this were his rightful defence, that should have been reflected in his case before the enquiry officer. That is simply not there. Therefore, the tribunal cannot be found fault with for having concluded on facts against the petitioner. 4. Sitting in jurisdiction under Article 227 of the Constitution over the decision of a statutory tribunal or on judicial review under Article 226, I do not find any legal infirmity or jurisdictional error in the appellate tribunal's decision sustaining the finding of guilt of the delinquent. The plea of the petitioner that rules of natural justice have been violated and that he has not been given appropriate opportunity of being heard, as also that, the witness cited by him was not examined, do not, by themselves, turn in his favour, who WPC.8705/09 Page numbers admits of having had an issue with the nun who was travelling in the seat immediately near to the driver's seat. In the common course of human conduct, it may not be noted as an acceptable version that a passenger in the first seat could have reached out her legs, repeatedly, to touch the buttocks of the driver, more particularly when KSRTC buses shall have a shield between driver's cabin and the seats. 5. No case of injustice is demonstrated on the reduced penalty. The fact that the petitioner would be treated as having continued on leave without allowance during the period of suspension does not, by itself, persuade this Court to conclude on any point in favour of the petitioner, having regard to the issue involved in this case. The writ petition fails. The same is accordingly dismissed. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.22/5.