IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WP(C).No. 189 of 2009(V) ------------------------ PETITIONER(S): --------------- S.SUKUMARAN NAIR INSPECTOR GRADE-11, KSRTC, ERNAKULAM. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): --------------- 1. CHAIRMAN AND MANAGING DIRECTOR, KSRTC CHIEF OFFICE, THIRUVANANTHAPURAM. 2. EXECUTIVE DIRECTOR(VIGILANCE), KSRTC, THIRUVANANTHAPURAM. 3. DISTRICT TRANSPORT OFFICER, ERNAKULAM. ADV. SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC FOR R1-5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 189 of 2009 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF CHARGESHEET DATED 13.12.06 WITH STATEMENT OF ALLEGATION EXT.P2- TRUE COPY OF REPLY SUBMITTED BY PETITIONER DATED 26.12.06 TO EXT.P1 EXT.P3- TRUE COPY OF SHOW CAUSE NOTICE DATED 15.11.07 ISSUED TO THE PETITIONER EXT.P4- TRUE COPY OF ENQUIRY REPORT EXT.P5- TRUE COPY OF THE REPLY TO THE SHOW CAUSE NOTICE DATED 6.12.07 EXT.P6- TRUE COPY OF ORDER DATED 27.5.08 PASSED BY THE 2ND RESPONDENT EXT.P7- TRUE COPY OF APPEAL PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXT.P8- TRUE COPY OF SHOW CAUSE NOTICE DATED 18.10.08, ISSUED BY THE 1ST RESPONDENT EXT.P9- TRUE COPY OF EXPLANATION DATED 10.11.08 BEFORE THE 1ST RESPONDENT EXT.P10- TRUE COPY OF ORDER DATED 26.12.08 (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C).189/2009 -------------------- Dated this the 13th day of January, 2010 JUDGMENT 1. The prayer sought in this writ petition is to quash Ext.P10 and direct the respondents to reinstate the petitioner in service and retain him as Inspector Grade-II. 2. Petitioner was working as Conductor at the Vaikom station of the 1st respondent. While so, he was issued Ext.P1 charge sheet and statement of allegations. The misconduct alleged was gross misconduct and dereliction of duty in as much as the petitioner issued tickets with incorrect marking of fare stage and possessed dead tickets. 3. Statement of allegations will show that on 30.11.2006 the petitioner was working as conductor in Bus No.TS 128 and Way Bill No.063060, in the route Moothedathkave – Vaikom. The Inspector of the KSRTC boarded the bus for inspection before Thottuvakkom and detected that the petitioner had issued to the passengers tickets with irregular fare stage marking. It was found that he had not made point W.P.(C).189/2009 2 entries of those tickets in the journey. It is alleged that on verification of cash bag, the Inspector had also found that the petitioner had kept several dead tickets in the bag which were issued by him in the previous trip and collected back the same with the intention to re-issue it to the passengers. 4. On receipt of Ext.P1 memo of charges, petitioner submitted Ext.P2 explanation. Insofar as the allegations of wrong marking of fare stage is concerned, he sought to justify the same mainly contending that it was a genuine mistake which had happened on account of the heavy rush in the bus. He countered the allegation of possession of dead tickets, contending that dead tickets were picked up from the rack box which were left after balance amounts were paid to the passengers and that certain tickets which were sold on the previous day were also traced out from the Bus and included in the charges. It is also stated that he had no malafide motives and that he had not misappropriated any amount due to the Corporation. On this basis, petitioner prayed for dropping further proceedings in the matter. W.P.(C).189/2009 3 5. Explanation submitted by him was not found satisfactory and therefore an Enquiry Officer was appointed. Enquiry was conducted and a witness was examined on the side of the Management. Petitioner did not adduce any evidence to prove his defence. Finally Ext.P4 enquiry report was submitted with the following findings. “On scrutiny of the entire file of the case in the light of the arguments of the conductor, Sri.S.Sukumaran Nair and the depositions of the Inspector, Sri.K.M.Muraleedharan, the only prosecution witness, it is evident that the conductor had issued tickets under denomination of Rs.3/50 by marking at FS 22 and outside the columns of fare stage instead of marking in the exact fare stage of FS.21, while he was operating Moothedathkavu and Vaikom service with way bill No.063060 in bus No.TP 128 on 30.11.2006. It is also found that point entries of the tickets issued by him were not made by him in the journey records. The possession of dead tickets issued by him for previous journeys intact in rubber band and kept in the cash bag shall not be with good W.P.(C).189/2009 4 intention and it has to be presumed that those tickets would have been collected by him to re-issue and to pocket Corporation revenue. 6. Enclosing a copy of Ext.P4 report, Ext.P3 show cause notice was issued by the 2nd respondent proposing to remove the petitioner from service. Petitioner submitted Ext.P5 reply again pleading innocence and seeking to be exonerated from the charges. However, by Ext.P6 order passed by the 2nd respondent, taking a lenient view, proposed punishment was reduced and one increment of the petitioner was barred for three years with cumulative effect. He filed Ext.P7 appeal to the 1st respondent. 1st respondent considered the appeal and on going through the appeal, the 1st respondent was of the view that the punishment needs to be enhanced, having regard to the gravity of the misconduct and also the previous punishments suffered by the petitioner. In that view of the matter, 1st respondent issued Ext.P8 show cause notice taking the view that the punishment imposed was insufficient for the grave and repeated misconduct committed by the petitioner and it was proposed to enhance the same by removing him W.P.(C).189/2009 5 from service. On receipt of Ext.P8 show cause notice, petitioner submitted Ext.P9 explanation. 1st respondent considered the explanation and issued Ext.P10 order imposing a punishment of compulsory retirement on the petitioner with immediate effect. It is challenging Ext.P10, this writ petition is filed. 7. Learned counsel for the petitioner contends that the findings in the enquiry report are erroneous, that he had not misappropriated any amount nor issued the dead tickets to any passengers. It is stated that it was despite all this, that he has been found guilty and punished. It is also contended that the appellate authority was not justified in enhancing the punishment and that in any view of the matter, the punishment imposed is far too disproportionate to the gravity of the misconduct proved against him. 8. As against this, learned counsel for the respondents pointed out that the very fact of issuance of tickets with wrong fare stage marking and possession of dead tickets, indicate the motive of the petitioner to misappropriate the W.P.(C).189/2009 6 funds of the Corporation. It is stated that considering the fact that the employees like the petitioner are handling the daily collection, any misappropriation is a grave misconduct resulting in loss of confidence in the employees. In such circumstances, there is no justification in retaining the delinquent in service any longer. Learned counsel also submits that the punishment imposed by the disciplinary authority was far too inadequate to the gravity of the misconduct. Besides this, the petitioner has a history of having suffered 12 previous punishments out of which 9 are in relation to ticket irregularities itself. It is submitted that on all those occasions, leniency was shown and despite the leniency, he has not reformed himself. It is on this basis, learned counsel for the respondents sought to sustain Ext.P10 order. 9. In a writ petition filed challenging an order of punishment, the scope of interference is very limited. Interference is called for if the delinquent satisfies this Court that the findings are not based on any evidence in as much as the finding is perverse. Interference is also permissible if W.P.(C).189/2009 7 there is violation of principles of natural justice or wherein the conduct of enquiry or imposition of punishment rules have been violated by the disciplinary authority or the appellate authority. It is also permissible for this Court to interfere with the punishment in cases where it is demonstrated that the punishment is too disproportionate to the gravity of the misconduct. It is bearing in mind the aforesaid limitations alone, that this Court can appreciate the contentions of the petitioner. 10. The facts show that on detection of misconduct against the petitioner, Ext.P1 Statement of Allegations was issued and the petitioner filed his reply. Reply was not satisfactory to the disciplinary authority and it was accordingly that an Enquiry Officer was appointed. Enquiry was conducted and Ext.P4 is the report of the enquiry. Ext.P4 shows that on behalf of the Management, the Inspector who detected the misconduct, was examined as a witness. He supported the allegations in the memo of charges. Although the petitioner that the petitioner has given his own version in Ext.P2 reply, he did not adduce any evidence to prove his case. It is on this basis W.P.(C).189/2009 8 that the Enquiry Officer has arrived at the conclusions in Ext.P4. These facts show that the enquiry report cannot be said to be one based on no evidence to call the findings in the report perverse warranting interference at the hands of this Court. There is no case that any principle of natural justice was violated by the Enquiry Officer. Once an enquiry is properly held and misconduct is proved, the disciplinary authority is entitled to impose punishment. In this case the disciplinary authority has shown leniency and as against the proposal to remove the petitioner from service, the punishment imposed was one of barring of one increment with cumulative effect. It was this punishment which was enhanced by the appellate authority. 11. The appellate authority has rejected the contention that he had no desire to enhance punishment relying on Rule 31(2) (c)(i) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. Therefore, the appellate authority was perfectly justified in proposing to enhance the punishment. Then the question is whether the appellate authority was justified in enhancing the punishment. A reading of Ext.P6 W.P.(C).189/2009 9 order of the Disciplinary authority imposing punishment shows that the Disciplinary authority did not consider the fact that the petitioner is a person who had already suffered 12 punishments. The disciplinary authority also did not advert to the gravity of the misconduct. It is on account of these facts that the appellate authority decided to enhance the punishment. On these facts, it cannot be said that the action of the Corporation was irrational warranting interference of this Court in a proceedings under Article 226 of the Constitution of India. I am not satisfied that there is any justification in holding that the punishment imposed is disproportionate. As already seen, this is the 13th punishment suffered by the petitioner. If after imposing 12 punishments, the petitioner has not reformed so far, this court will not be justified in requiring the Corporation to reinstate the petitioner in service and asking them to tolerate him any longer. 12. Learned counsel for the petitioner has raised a contention that there was no consultation with the Commission before imposing punishment. This contention is W.P.(C).189/2009 10 answered in paragraph 14 of the counter affidavit where reliance is placed on the Government Order No.145341/SD- 2/84/GAD dated 7.1.85 clarifying that no such consultation is necessary. 13. In the light of the above, I am not satisfied that the petitioner has made out a case warranting interference by this Court. The writ petition is accordingly dismissed. ANTONY DOMINIC, Judge mrcs