IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 OP.No. 9757 of 2003(J) --------------------------------- PETITIONER(S): ------------------------ SRI.G. THANU PIALLAI, ASSISTANT ENGINEER, WATER SUPPLY SECTION NO.1, KERALA WATER AUTHORITY, SASTHAMKOTTA, KOLLAM DISTRICT. BY ADV. SRI.M.C.GOPI RESPONDENT(S): -------------------------- 1. THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-33. 2. THE CHIEF ENGINEER (PS AND G4) KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-33. R1 & R2 BY ADV. SRI.J.KRISHNA KUMAR, SC, KWA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 9757/2003-J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE MEMO OF CHARGES DATED 30/05/2000. EXT.P2: COPY OF THE STATEMENT OF ALLEGATIONS DATED 30/05/2000. EXT.P3: COPY OF THE REPLY DATED 09/06/2000 BY THE PETITIONER. EXT.P4: COPY OF THE OFFICE MEMORANDUM DATED 13/12/2001 ISSUED BY 2ND RESPONDENT. EXT.P5: COPY OF THE ORDER DATED 02/02/2002 BY THE 2ND RESPONDENT. EXT.P6: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 10/06/2002. EXT.P7: COPY OF THE ORDER DATED 21/11/2002 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. T.R.RAMACHANDRAN NAIR,J. ------------------------------------- O.P.No.9757 of 2003 --------------------------------- DATED THIS THE 1ST DAY OF JUNE, 2010 JUDGMENT The challenge is against the orders passed, viz, Exhibits P5 to P7 in a disciplinary proceedings initiated against the petitioner. 2. As per the impugned order, a punishment of censure was imposed on the petitioner and an appeal filed by him was also dismissed. Finally by regularising the period of suspension, it has been ordered that the period of suspension shall be regularised limiting the pay and allowances to 80% , less subsistence allowanced. 3. The petitioner at the time of filing of the Original Petition was working as Assistant Engineer in the Kerala Water Authority. He was posted as Assistant Engineer in the Quality Control District Laboratory at Kollam on 11.10.1999. During this period, the water samples taken from the tap and Kavanadu overhead tank as well as the sumps in Sasthamcotta plant were tested in the District Laboratory, Kollam under the control of the petitioner on 11.2.2000. The water analysis result given by the o.p.No.9757/03 -2- Chemist to the petitioner on 14.2.2000 showed that the water which was being supplied to the public was very bad in quality. The petitioner immediately wrote a confidential letter to the District Collector, Kollam, with copy of the result of the Analyst. According to the petitioner this was a bona fide action taken by him to inform the District Collector, who is having supervisory control over all statutory authorities. The letter was handed over directly to the Office of the District Collector by the petitioner himself on 14.2.2000. On 29.1.2000 also, he had written a letter to the District Collector regarding the quality of water supplied to the District Hospital, Kollam. 4. The matter was widely reported in the news papers on 19.2.2000 and 20.2.2000. Later, the petitioner was suspended from service for certain alleged misconduct. Exhibit P1 is the copy of the memo of charges and Exhibit P2 is the copy of the statement of allegations. The petitioner submitted Exhibit P3 reply. According to the petitioner, he had taken only a bona fide action and the test results would also vindicate his stand. 5. The petitioner had challenged the order of suspension o.p.No.9757/03 -3- in O.P.No.1843/2000 wherein respondents were directed to expedite the enquiry. The matter was taken up in appeal as W.A.No.1512/2000 wherein this Court observed that there is no necessity to continue the suspension and accordingly the order of suspension was withdrawn and enquiry was proceeded with. 6. Exhibit P5 is the order passed by the Chief Engineer (PS&GL) imposing the punishment of 'censure' finding that the petitioner had committed dereliction of duty and violated all rules and procedures. Exhibit P6 is the order whereby the period of suspension from 14.4.2000 to 13.9.2000 was treated as duty and pay and allowances was permitted to be limited as 80% and less subsistence allowance already paid. These orders have been upheld in appeal as per Exhibit P7. 7. It is contended by the learned counsel for the petitioner that the imposition of the punishment and the order passed limiting the pay and allowances to 80% are illegal. It is argued that the action of the petitioner cannot be termed as a misconduct at all warranting disciplinary action. Reliance is placed on the decision of the Apex Court in State of Punjab o.p.No.9757/03 -4- and others v. Ram Singh Ex-Constable (1992 (4) SCC 54). Therein the Apex Court held as follows with regard to the meaning of the term “misconduct”. Para.6. ..................... the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and o.p.No.9757/03 -5- the public purpose it seeks to serve.” It is submitted by the learned counsel for the petitioner that the action taken by the petitioner cannot be termed as 'wilful', there is no misconduct at all. 8. It is contended by the learned Standing Counsel for the Kerala Water Authority that there is clear violation of the Manual of Office Procedure, viz. Rule 104A, which reads as follows: “Only Heads of Departments should address the Government direct. Regional Officers and District Officers should address Government only through the Head of Department concerned”. 9. It is therefore contended that as there is a violation of the Manual of Office Procedure, the punishment cannot be said to be irrational or illegal. Going by the decision of the Apex Court quoted above, a transgression of an established and definite rule of action, will amount to “misconduct”. Therefore, the contention that only if the misconduct alleged is one committed wilfully alone, action is attracted cannot be accepted. o.p.No.9757/03 -6- 10. The memo of charges shows that what is alleged is violation of the Manual of Office Procedure as well as the lapse occurred on his part in not having reported the matter for urgent consideration by the officials of the water authority. It is found in Exhibit P5 that the explanation given by the petitioner is unsatisfactory and initially a punishment of barring of the annual increment without cumulative effect for one year was proposed. After taking a lenient view, it was decided to inflict the punishment of censure. It is mentioned in Exhibit P5 that the petitioner has admitted that addressing the District Collector personally is a fault and sought to pardon him. The view taken by the authority is that even that will not result in an order exonerating him totally from the memo of charges, in the light of the evidence in the matter and the charges found against him. It was found by the Appellate Authority also that he ought to have sought ratification from higher authorities even if the circumstances wanted addressing the District Collector, directly. Since there is failure even to do so, he has violated the ruleS and procedure. It cannot be said that the reasoning above is totally o.p.No.9757/03 -7- perverse. 11. The question is whether this Court can sit in appeal over the finding of the disciplinary authority unless it is shown that it is so perverse warranting intervention. The principles settled by various decisions of this Court and the Apex Court point to the essential distinction that this Court cannot sit in appeal over the findings of the disciplinary authority. Therefore, the area wherein this Court can interfere is very limited. Unless it is shown that the conclusion is so perverse; that irrelevant materials have been considered; that relevant materials were not considered and the findings cannot be supported on the basis of the evidence adduced in the disciplinary enquiry and the punishment is so disproportionate shocking the conscience of the Court, no intervention is possible. Judged in the light of the above principles, even though the petitioner had only forwarded the test report to the District Collector, the failure to comply with the Manual of Office Procedure cannot really absolve him from the charges as found by the disciplinary authority. Even if two views are possible, this Court will be slow to upset the order of o.p.No.9757/03 -8- the disciplinary authority in the absence of any vitiating circumstances. In that view of the matter, I find that the order Exhibit P5 cannot be said to be so harsh or illegal and that the punishment is so disproportionate to the charges. 12. Therefore, the appellate order also does not require any interference. 13. What was argued by the learned counsel for the petitioner is that in the light of the fact that only a censure was imposed as a punishment it was not necessary to suspend the petitioner from service and the order passed by the authority in terms of Rule 56(b) Part.I KSR is dependent on the final order passed in the disciplinary proceedings. Therein also a lenient view has been taken and the period of suspension has been regularised as duty limiting the pay and allowances to 80% less subsistence allowance already granted. 14. The Division Bench in Writ Appeal No.1512/2000 has not held that the suspension is wholly illegal. What was observed is as follows:- “In the facts and circumstances of the case we o.p.No.9757/03 -9- feel that in order to facilitate proper enquiry, it is not necessary to continue the order of suspension of the petitioner and the respondents will withdraw the order of suspension forthwith.” There was a direction to expedite the enquiry also. 15. Therefore, it cannot be said that the authority was wrong in passing the impugned order under the relevant Rules with regard to the regularisation of period of suspension. 16. For all these reasons, I find no reason to interfere with the orders impugned. The Original Petition is dismissed. No Costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn