IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 WP(C).No. 26179 of 2004(N) -------------------------- PETITIONER: ------------ K.V. CHERIYAN, DEPUTY CHEIF ENGINEER (MECHANICAL/THERMAL) (DISMISSED) FACT ELOOR, UDYOGAMANDAL, KOCHI, NOW RESIDING A TKOOLIYATT-PANIKULAM HOUSE, 2/190, TOG PASS ROAD, KALAMASSERY-683 104. BY ADV. SRI.MATHEWS K.PHILIP SMT.AJI S.MENON RESPONDENTS: ------------- 1. FACT, PETRO CHEMICAL DIVISION, UDYOGAMANDAL, ELOOR, KOCHI-683 501, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, FACT, PETRO CHEMICAL DIVISION. 2. CHAIRMAN & MANAGING DIRECTOR, FACT ELOOR, UDYOGAMANDAL. 3. GENERAL MANAGER (PERSONAL) FACT CORPORATE OFFICE, ELOOR, UDYOGAMANDAL. 4. DEPUTY GENERAL MANAGER, FACT PETRO CHEMICAL DIVISION, ELOOR, UDYOGAMANDAL. BY SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C)No.26179/2004 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF THE CIRCULAR DATED 2-3-2004 ISSUED BY THE GENERAL MANAGER, FACT, UDYOGAMANDAL. EXT.P2. TRUE COPY OFO SHOW CAUSE NOTICE DATED 2-3-2004 ISSUED BY THE DEPUTY GENERAL MANAGER, FACT, UDYOGAMANDAL. EXT.P3. TRUE COPY OF THE LETTER DATED 4-3-2004 ISSUED BY THE PETITIONER TO THE DEPUTY GENERAL MANAGER. EXT.P4. TRUE COPY OF THE LETTER DATED 5-3-2004 ISSUED BY THE DEPUTY GENERAL MANAGER TO THE PETITIONER. EXT.P5. TRUE COPY OF THE EXPLANATION DATED 15-3-2004 SUBMITTED BY THE PETITIONER. EXT.P6. TRUE COPY OF THE ORDER NO.DGM/PD/13/330 DATED 13-3-2004 ISSUED BY THE DEPUTY GENERAL MANAGER, FACT, ELOOR. EXT.P7. TRUE COPY OF THE APPEAL MEMORANDUM SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXT.P8. TRUE COPY OF THE LETTER DATED 2-8-2004 ISSUED BY THE GENERAL MANAGER. RESPONDENTS' EXHIBITS: EXT.R1(a). TRUE COPY OF THE LETTER DATED 27TH FEBRUARY 2004 FROM SRI.C.VENUGOPAL TO THE SECRETARY, MINISTRY OF CHEMICALS & FERTILIZERS, NEW DELHI AND 4 OTHERS BY REGD. WITH AD. EXT.R1(b). TRUE COPY OF THE JUDGMENT DATED 10-3-2003 IN CRIMINAL APPEAL NO.46 OF 2002 PASSED BY THE COURT OF THE ADDITIONAL SESSIONS JUDGE, THIRUVANNAMALAI. / TRUE COPY / P.S.TO JUDGE KURIAN JOSEPH, J. ----------------------------------------- W.P(C) No.26179 of 2004 ----------------------------------------- Dated this the 4th day of April, 2008 JUDGMENT Ext.P6 order passed by the first respondent is under challenge. As per the said order the petitioner has been dismissed from service on the ground that he was convicted on a criminal charge. Ext.R1(b) is the appellate order in Crl.Appeal No.46/2002. It is seen that the conviction is under Section 138 of the Negotiable Instruments Act. Petitioner submits that the matter has since been settled between the parties. At any rate it is submitted that it is not an offence involving moral turpitude so as to impose a major penalty of dismissal. The learned Standing Counsel for the respondents submits that the action is justified under Rule 31 of the FACT Ltd. Employees (Conduct, Discipline and Appeal) Rules, 1977. The Rule, to the extent relevant, reads as follows:- “31. SPECIAL PROCEDURE IN CERTAIN CASES: Notwithstanding anything contained in Rule 26 or 27 or 28, the Disciplinary Authority may impose any of the penalties specified in Rule 24 in any of the following circumstances:- i) the employee has been convicted on a criminal charge, or on the strength of facts or conclusions arrived at by a judicial trial.” It is fairly clear from the enabling provision that the dismissal does not W.P(C).No.26179/2004 -:2:- follow automatically the conviction on a criminal charge. In the matter of penalty the discretion is always with the disciplinary authority and the disciplinary authority has to exercise the discretion in the light of the facts and circumstances of each case. The disciplinary authority is not expected to mechanically apply the Rule and impose a punishment. He has to apply his mind as to whether in the facts and circumstances of each case, be it a conviction on a criminal charge, the maximum punishment is to be imposed. The impugned order does not reflect any such consideration. 2. Learned counsel for the petitioner, inviting reference to two decisions of this court in K.S.R.T.C. v. Abdul Latheef, 2005(3) KLT 955 and Ibrahim Kannu v. State of Kerala, 2005 (4) KLT 1034, submits that it is now settled law that a conviction under Section 138 of the Negotiable Instruments Act does not deserve to be dealt with so harshly in view of the fact that the offence is not one involving moral turpitude. After all, a person is convicted for an offence under Section 138 normally only on account of his penury, unless there are attendant circumstances whereby the elements of Section 420 IPC are also involved. There is no such case for the disciplinary authority that this is a fit case with such circumstances where the disciplinary authority should impose the maximum punishment. The word used is only “may”. It is only an enabling provision. Therefore, the disciplinary W.P(C).No.26179/2004 -:3:- authority has to exercise its discretion, apply his mind to the facts and circumstances of the case and take a decision as to whether it is a case warranting imposition of maximum penalty or ends of justice would be met by imposing a lesser punishment. 3. I quash Ext.P6 and the consequential orders. There will be a direction to the 4th respondent to consider the matter afresh with notice to the petitioner, advert to the contentions taken by the petitioner and take a decision afresh in the light of the observations made in this judgment. This shall be done within a period of four months from the date of production of a copy of this judgment. The writ petition is disposed of as above. (KURIAN JOSEPH, JUDGE) ahg. KURIAN JOSEPH, J. ----------------------------------- W.P(C).No.26179 of 2004 ----------------------------------- JUDGMENT 4th April, 2008