IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 OP.No. 35526 of 2000(D) --------------------------------- PETITIONER(S): ---------------------------- A.R.RAMACHANDRAN, ALLADATHUPARAMBIL HOUSE, P.O.OORAKAM, THRISSUR. BY ADV. SRI.M.SASINDRAN SRI.K.MANOJ CHANDRAN SRI.K.P.HARISH RESPONDENT(S): ------------------------- 1. THE SUB COMMITTEE (APPEAL) PHARMACEUTICAL CORPORATION (I.M) KERALA LTD., P.O. BOX NO.174, THRISSUR 680 001. 2. THE PHARMACEUTICAL CORPORATION (I.M.) KERALA LTD., P.O. BOX NO.174, TRICHUR 680 001, REP.BY ITS MANAGING DIRECTOR. 3. THE ENAUIRY OFFICER, PHARMACEUTICAL CORPORATION (I.M.) KERALA LTD., P.O. BOX NO.174, THRICHUR 680 001. 4. CHANDRIKA, STOREKEEPER, PHARMACEUTICAL CORPORATION (I.M.) KERALA LTD., P.O. BOX NO.174, THRICHUR 680 001. R2 BY SRI.U.K.RAMAKRISHNAN, SENIOR ADVOCATE R2 BY ADV. SMT.P.VIJAYAMMA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.35526/2000 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE MEMO SUSPENDING THE PETITIONER FROM SERICE DTD. 3.9.1999. P2:- COPY OF THE MEMO OF CHAGE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DTD. 16.9.1999. P3:- COPY OF THE REPLY FILED BY THE PETITIONER DTD. 22.9.1999. P4:- COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DTD. 3.12.1999. P5:- COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P6:- COPY OF THE DISMISSAL ORDER OF THE 2ND RESPONDENT DT. 26.5.2000. P7:- COPY OF THE APPEAL PETITION DTD. 3.6.2000. P8:- COPY OF THE ORDER OF THE IST RESPONDENT DTD. 9.9.2000. P9:- COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DTD. 6.6.2000. P10:- COPY OF THE ENQUIRY REPORT. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE FAIR COPY REGISTER OF THE 2ND RESPONDENT CONTINING THE STAMP RECEIPT DTD. 6.1.2003 OF THE PETITIONER FOR ACCEPTING GRATUITY. R2(b):- COPY OF THE STAMPED RECEIPT FOR AN AMOUNT OF RS.9,000/- WITH HELD AS LEGAL EXPENSES WAS RELEASED TO THE PETITIONER ON 8.5.2004. TRUE COPY P.A. TO JUDGE tss P.N.RAVINDRAN, J. ---------------------------- O.P.No.35526 of 2000 ---------------------------- Dated 2nd June, 2010 JUDGMENT The petitioner was an employee of the second respondent Corporation. On being found in possession of two bottles of `Sahacharathi Thailam' which the petitioner could not account for, he was placed under suspension by Ext.P1 order dated 3.9.1999. Thereafter, Ext.P2 memo of charges dated 16.9.1999 was served on him. He submitted Ext.P3 written statement of defence dated 22.9.1999. An Enquiry Officer was appointed. The petitioner participated in the enquiry. The Enquiry Officer thereafter submitted Ext.P10 report dated 2.5.2000 finding the petitioner guilty of charges 1, 2 and 5. Along with letter dated 4.5.2000 a copy of the enquiry report was furnished to the petitioner. By the said letter he was called upon to submit his objections if any to the findings therein within seven days from the date of receipt of the enquiry report. The petitioner received the enquiry report on 8.5.2000. He did not submit a reply within time. Instead he sent a letter dated 16.5.2000 seeking one week's further time to submit a reply. Even within the said period of one week the petitioner did not submit his objections O.P.No.35526/2000 2 to the enquiry report. The disciplinary authority thereupon issued Ext.P6 order dated 26.5.2000 dismissing the petitioner from service with effect from that date. Aggrieved by Ext.P6 the petitioner filed Ext.P7 appeal before the Board of Directors. The Board of Directors considered the said appeal on 7.7.2000 and passed Ext.P8 resolution rejecting the appeal. In the meanwhile, the petitioner had submitted Ext.P5 objections dated 27.5.2000 to the enquiry report. The same was rejected in view of Ext.P6 order and the decision communicated to the petitioner by Ext.P9 letter dated 6.6.2000. Hence this original petition challenging Exts.P6, P8 and P9 orders. The petitioner also seeks a direction to the respondents to reinstate him in service with all attendant and consequential benefits. 2. The respondents have filed a counter affidavit justifying the action taken by them. They also contend that after this original petition was filed, the petitioner received gratuity, terminal leave benefits and Employees' Provident Fund benefits. Reference is made to the decision taken by the Board of Directors on 13.9.2002 to pay gratuity to the petitioner. It is stated that after adjusting the sum of Rs.1,846/- representing the value of the stolen articles, the petitioner accepted a cheque for the sum of Rs.1,16,749/- as gratuity on 6.1.2003 and that he was also paid the sum of O.P.No.35526/2000 3 Rs.9,000/= withheld as legal expenses by the Corporation for contesting this original petition. It is contended that in view of the conduct of the petitioner in having received the terminal benefits, he cannot continue to prosecute this original petition any further. 3. I heard Sri.M.Sasindran, learned counsel for the petitioner and Smt.P.Vijayamma, learned counsel appearing for the respondents. I have also gone through the pleadings and the materials on record. The enquiry against the petitioner was held by a lawyer. In the enquiry, the petitioner was also given the assistance of a lawyer. The Enquiry officer found the petitioner guilty of charges 1, 2 and 5. Upon the receipt of the enquiry report, a copy thereof was forwarded by the management to the petitioner along with their letter dated 4.5.2000. By the said letter, the petitioner was called upon to submit his objections if any to the findings in the enquiry report within one week. The petitioner received the said letter on 8.5.2000. He did not however object to the findings in the enquiry report. Instead he sent a letter dated 16.5.2000 seeking one week's further time to submit his objections. Even thereafter he did not submit any objection. Therefore, the management issued Ext.P6 order dated 26.5.2000 dismissing him from service. It was only on the next day that the petitioner sent Ext.P5 objections to the findings O.P.No.35526/2000 4 and observations in the enquiry report. Aggrieved by Ext.P6 order the petitioner filed Ext.P7 appeal before the Board of Directors. The Board of Directors considered the said appeal on 7.7.2000 and rejected it. In the meanwhile, by Ext.P9 the petitioner was also informed that there is no merit in the objections raised by him to the enquiry report. A reference to Ext.P10 enquiry report indicates that the enquiry officer had analysed the evidence available in this case and come to the conclusion that charges 1, 2 and 5 have been proved against the petitioner. Even if as contended by the petitioner there was no evidence to find him guilty of the fifth charge, in view of the finding that the petitioner was in the habit of stealing medicinal preparations, it cannot be said that the finding of guilt arrived at by the enquiry officer did not warrant the punishment of dismissal from service. It is settled law that in disciplinary proceedings strict rules of evidence do not apply. It is also settled law that this Court cannot interfere with the finding of guilt entered by the enquiry officer unless the finding is entered without affording a reasonable opportunity to the delinquent employee to participate in the enquiry or it is based on no evidence. This Court exercising jurisdiction under Article 226 of the Constitution of India cannot re- appreciate the evidence and come to a different conclusion even if another view is possible. O.P.No.35526/2000 5 4. In the instant case, in the enquiry the petitioner was assisted by a lawyer of his choice. He was also afforded adequate opportunity to adduce defence evidence and to cross examine the witnesses on the side of the management. No material has been placed on record to establish the petitioner's grievance that he was not afforded an opportunity to cross examine the management witnesses. I am therefore not persuaded to agree with the petitioner that a fair opportunity was not afforded to him by the enquiry officer. Further, the charge proved against the petitioner is that he is guilty of stealing medicinal preparations. In such circumstances, if the employer thought it fit that it is not in the best interests of the institution to retain the petitioner in service, it cannot be said that the said decision is in any way perverse. On the proved facts, it cannot also be said that the punishment of dismissal from service is grossly disproportionate to the gravity of the charges. Further, the petitioner has admittedly received the terminal benefits after paying the value of the stolen articles. The conduct of the petitioner in having received the terminal benefits in full, pursuant to a decision taken in that regard by the Board of Directors, after this original petition was filed, also disentitles him from seeking any relief in this original petition. Ordinarily as a dismissed employee, the petitioner O.P.No.35526/2000 6 would have been eligible to receive only the amount standing to his credit in the Provident Fund Account. But, in the instant case, he was paid gratuity also reckoning the service up to the date of suspension. For the reasons stated above, I hold that there is no merit in the original petition. The original petition fails and is accordingly dismissed. No costs. P.N.RAVINDRAN Judge TKS