IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 OP.No. 19236 of 2002(M) ----------------------------- PETITIONER(S): --------------- P.S.SULAIMAN, PEON-CUM-PROCESS SERVER, OFFICE OF THE WELFARE FUND INSPECTOR, KERALA TODDY WORKERS WELFARE FUND, DISTRICT OFFICE, KOLLAM. BY ADV. MR.M.V.THAMBAN RESPONDENT(S): -------------------- 1. THE CHIEF WELFARE FUND INSPECTOR, KERALA TODDY WORKERS WELFARE FUND BOARD, THIRUVANANTHAPURAM. 2. THE KERALA TODDY WELFARE FUND BOARD, REPRESENTED BY ITS CHAIRMAN, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF LABOUR AND RE-SETTLEMENT, SECRETARIAT, THIRUVANANTHAPURAM. ADV. MR.K.K.BABU MR.K.D.BABU,SC,KTWWFB(TODDY WORKERS WE FOR R1 & 2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 19236 of 2002 ORDER ON C.M.P.NO.32936 OF 2002 IN O.P.NO.19236 OF 2002 CLOSED. 31.3.2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF MEMO OF CHARGE DTD 18.6.1992 ISSUED BY THE 1ST RESPONDENT. EXT.P2: COPY OF WRITTEN STAEMENT DT 24.6.1992 SUBMITTED BY THE PETITIONER. EXT.P3: COPY OF RELEVANT PORTION OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER. EXT.P4: COPY OF THE ORDER NO.ST-A1/10750/94 DT. 27.6.94 ISSUED BY THE 1ST RESPONDENT. EXT.P5: COPY OF OOBJECTION SUBMITTED BY THE PETITIOENR. EXT.P6: COPY OF ORDER NO.ESTT./A2/10750/94 DTD 5.5.95 ISSUED BY THE 1ST RESPONDENT. EXT.P7: COPY OF APPEAL SUBMTITED BY THE PETITIOENR BEFORE THE CHAIRMAN. EXT.P8: COPY OF ORDER DATED 3.11.1996 ISSUED BY THE CHAIRMAN. EXT.P9: COPY OF REPRESENTATION DT. 30.5.1996 SUBMITTED BY THE PETITIOENR BEFORE THE HON'BLE MINISTER FOR LABOUR. EXT.P10: COPY OF G.O.(RT) NO.3690/2001/LABOUR DT.11.12.2001. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.19236 OF 2002 ---------------------------------------- Dated this the 31st day of March, 2009 JUDGMENT The petitioner while working as Peon-cum-Process Server in the office of the Welfare Fund Inspector, Kollam was proceeded against in disciplinary proceedings on two allegations of misconduct. An enquiry officer was appointed, who submitted Ext.P3 report holding that one charge is partly proved and the other charge is not proved, based on which a show cause notice for imposition of punishment was issued to the petitioner. Since the petitioner’s explanation did not find favour with the disciplinary authority, the disciplinary authority issued Ext.P6 order, whereby the punishment of barring of one increment without cumulative effect was imposed on the petitioner and the suspension period was directed to be regulated as suspension itself. The petitioner filed an appeal before the Board, which was rejected by Ext.P8 order. The petitioner filed a further petition O.P.No.19236/02 2 before the Government, which was also rejected by Ext.P10 order. The petitioner is challenging Ext.P1 memo of charges, Ext.P4 enquiry report, Ext.P6 order of punishment, Ext.P8 order in appeal and Ext.P10 order of the Government in this original petition. 2. The contention of the petitioner is that the petitioner has not been found guilty of any of the misconducts alleged in the memo of charges issued to him and therefore he cannot be punished as has been done. Two charges were framed against the petitioner. First is that he entered into a fight with another employee in the office premises in the presence of visitors, which amounted to breach of discipline. Second is that out of 12 revenue recovery certificates forwarded through the petitioner, the petitioner did not entrust three of them in the Collectorate, which amounts to dereliction of duty. According to the petitioner, the enquiry officer only found that the petitioner entered into a wordy duel with the other person and as such none of the charges levelled against the petitioner was proved in the enquiry, in so far as the allegation in the memo of charges was that he entered into a fight with another employee. Therefore, no punishment could O.P.No.19236/02 3 have been imposed on the petitioner for any misconduct, which was not charged against the petitioner. The second contention is that the punishment of barring of one increment with cumulative effect was disproportionate to the charge alleged to have been proved against the petitioner. According to the petitioner a warning would have been sufficient punishment. The petitioner also contends that Ext.P8 appellate order is a non-speaking order. 3. In answer, the learned counsel for the respondents would contend that entering into a wordy duel itself is part of a fight and without a wordy duel no fight would start. Therefore, what has been proved is an ingredient of the charge itself and therefore, the petitioner was only found guilty of part of the charge alleged against him itself. It is also contended that the punishment imposed is proportionate to the gravity of misconduct in so far as the only lesser punishment which could have been imposed is warning and the petitioner certainly deserved something more than a warning. 4. I have considered the rival contentions in detail. 5. The first charge which has been partly proved against the petitioner is as follows: O.P.No.19236/02 4 6. The finding of the enquiry officer is as follows: O.P.No.19236/02 5 7. I am of opinion that as pointed out by the learned counsel for the respondents entering into a wordy duel itself is part of a fight. A fight always starts with exchange of unpleasant words which may aggravate into a wordy duel. That being so, the finding entered by the enquiry officer is part of the charge levelled against the petitioner. Therefore, I do not find any merit in the contention of the petitioner that he has been found guilty of a charge which has not been included in the memo of charges. 8. The next contention is that the appellate order is a non-speaking order. Going by Ext.P8 it is true that no reasons have been mentioned therein. But I do not think that for that purpose the matter should be remanded to the appellate authority, in so far as I myself can consider the contention of the petitioner in that regard. The third contention also does not find favour with me. Apart from warning, there cannot be any lesser punishment than barring of one increment without cumulative effect, which only has been imposed on the petitioner. The petitioner has certainly breached discipline of the office by entering into a wordy duel with another clerk in the presence of employees, who have O.P.No.19236/02 6 come to enquiry about their welfare fund benefits, contractors, who have to obtain clearance certificates etc. That certainly is a misconduct, which calls for at least the punishment of barring of one increment without cumulative effect. Warning is not sufficient punishment for the same. In any event imposition of punishment is a managerial function and this Court cannot interfere with such punishment unless the same is shockingly disproportionate to the gravity of misconduct. I am not satisfied that the punishment imposed on the petitioner is shockingly disproportionate. Therefore, I do not find any merit in any of the contentions of the petitioner and accordingly, the original petition is dismissed. S. SIRI JAGAN, JUDGE Acd O.P.No.19236/02 7