IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 WP(C).No. 23169 of 2005(G) --------------------------------------- PETITIONER: ------------------- S.RAJENDRASEKHARAN PILLAI, LINEMAN, PHONES, B.S.N.L. MUKHATHALA EXCHANGE, KOLLAM. BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL, SRI.S.VISHNU. RESPONDENTS: ------------------------ 1. THE SUB DIVISIONAL ENGINEER (GROUPS), KOTTIYAM, BSNL, KOLLAM DISTRICT. 2. THE DIVISIONAL ENGINEER, PHONES, (URBAN) BSNL, KOLLAM. 3. THE CHIEF GENERAL MANAGER, BSNL, KERALA CIRCLE, THIRUVANANTHAPURAM. BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL, SRI.NAGARAJ NARAYANAN, SRI.SAIJO HASSAN, SRI.A.S.SABU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23169/2005-G: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE ENQUIRY REPORT DTD. 22/04/2003 ISSUED BY THE ENQUIRY OFFICER. EXT.P.2: COPY OF THE MEMO NO. Q-2016/DISC/RP DTD. 11/07/2003 ISSUED BY THE R.1. EXT.P.3: COPY OF THE REPLY DTD. 20/07/2003 TO THE R.1. EXT.P.4: COPY OF THE ORDER NO. Q 2016/DISC/RP DTD. 19/08/2003 ISSUED BY THE R.1. EXT.P.5: COPY OF THE APPEAL DTD. 01/09/2003 TO THE R.2. EXT.P.6: COPY OF THE APPELLATE ORDER NO. X1/02-03/5 DTD. 05/06/2004 ISSUED BY THE R.2. EXT.P.7: COPY OF THE REVISION PETITION DTD. 29/06/2004 TO THE R.3. EXT.P.8: COPY OF THE ORDER NO. STB/P-177/03 DTD. 06/10/2005 ISSUED BY THE R.3. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.23169 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of January, 2008 JUDGMENT The petitioner, while working as Lineman - phones was issued with a charge sheet under Rule 14 of the CCS (CCA) Rules, 1965. There were two charges. Original charge was related to the imposition of minor penalty. Later charges were drawn up for imposition of major penalty. In the inquiry conducted, it was found that the petitioner was guilty. Punishment imposed was one stage reduction in pay. Even though the matter was carried in appeal it was unsuccessful. But in revision the punishment was interfered with and denovo inquiry was ordered with a new inquiry officer. Accordingly the new inquiry officer was appointed and he proceeded to conduct inquiry and he found that petitioner is not guilty of the charges levelled against him and exonerated him. However, disciplinary authority did not accept the inquiry report and after issuing notice to the petitioner and calling for his explanation, by Ext.P4 the disciplinary authority proceeded to impose punishing of barring one increment for two years without cumulative effect. Though the petitioner carried the matter in appeal and further in revision, the proceedings were unsuccessful and the petitioner seeks to impugn the decision of the disciplinary authority as WPC. 23169/2005. 2 confirmed by the appellate authority and revisional authority. 2. Heard counsel for the petitioner and the respondents. 3. Learned counsel for the petitioner would contend that this is a case where there were procedural irregularities vitiating the inquiry. He submits that petitioner has sought to examine himself as witness, but that was sought to be denied. Under Rule 14(80) of the Rules petitioner was legally entitled to examine himself as the witness. Likewise, he points out that he filed application to examine two witnesses to prove his innocence, even that was declined by the Inquiry Officer. He further points out that the view taken by the disciplinary authority is perverse. He would further contend that there is inordinate delay. He pointed out that the proceedings commenced in the year 1994 and the penalty was imposed by the impugned order in 2003. He would point out that as a result of the proceedings, promotional avenues of the petitioner were affected. He would submit that actually the petitioner is not the person who is guilty and to cover up the latches in not disconnecting the telephone, which should have been done by the JTO that the entire thing has happened. He would then further contend that he had also filed application for production of of the attendance register to show that he was on leave on certain days to advance his contentions. Despite the non-production, the authority has found against him by giving WPC. 23169/2005. 3 reasons, which cannot be supported. 4. Per contra, learned Standing Counsel would contend that the order does not merit any interference at all having regard to the charges, the witnesses and the materials before the authority as also the nature of the punishment that is imposed. 5. It is settled law that interference under Article 226 with disciplinary proceedings is to be on very limited grounds. In judicial review, the court does not sit as an appellate authority and re-appreciate the evidence. It is in fact concerned essentially with the decision making process. It is no doubt true that if the findings of fact are perverse, interference may be permissible. A finding is perverse if there are no materials to support the finding. It is also equally perverse when on the materials on record the view taken by the authority is a view which no reasonable person could arrive at. 6. The disciplinary authority has by a fairly elaborate order came to the conclusion that the second charge can be said to be proved. Learned counsel for the petitioner does not dispute the fact that the matter regarding readings in respect of the telephone number 2140 is in his hand writing. Learned counsel would point out that actually the meter readings are taken by the JTO. He would point out that the evidence on record WPC. 23169/2005. 4 establish this position. Evidence also shows that he took down the meter readings as per the direction of the JTO. Petitioner has raised this contention before the disciplinary authority. But I find that this contention has been considered and rejected. The finding this regard reads as follows: “D.W. 1 has stated that he used to take meter readings only JTO ordered hi, to do so. This would suggest that the JTO did not ask the Technician to take meter readings from 15.11.1993 to 24.9.1994. During the said period the readings on 30.5.94 has been recorded by P.W.3. There is no proof to show that these readings were recorded as dictated by SPS as alleged by the PO. On 30.5.94 P.W.3 has recorded the meter reading of NPA 2140 as 3311. Under the circumstances the meter reading on 30.5.94 in respect of NPA 2140 is to be treated as '3311'.” I cannot brush aside this finding only as a perverse one. It is a view which is possible. It may be true that another view is possible. Any other view would be essentially evolved by re-appreciating the evidence, which is generally not permissible. The case of the petitioner is that the machine itself was not functioning, that is why he wanted to examine the witnesses. In regard to the contention that two witnesses were not permitted to be examined by the Inquiry Officer, I find that a perusal of Ext.P4 at page 24 would show that the Inquiry Officer has given reasons for non-examination WPC. 23169/2005. 5 of the witnesses. It cannot be said that in such circumstances, the mere non- examination of the witnesses is sufficient to impugn the findings of the disciplinary authority. Likewise, in respect of non-examination of petitioner's witnesses, I find that it may be true that the petitioner has a right to examine himself. But it is to noted as to what happened. The Inquiry Officer has noted that the petitioner had absented himself from the proposed proceedings to examine the last witness. That apart, more importantly he has found that the petitioner can explain his views against the circumstances appearing against him. I find that the petitioner agreed to the said course and he made a request that the questions may be asked in the regional language, which request was accepted and it appears that he was put questions in the regional language. 7. Regarding the question of inordinate delay, I find that the delay came about apparently for the reason that there were proceedings and there was another round necessitated out of the order passed by the revisional authority allowing the petitioner's revision directing the appointment of another Inquiry Officer. Therefore, I find that he cannot pursue that ground. It is no doubt true that the petitioner sought certain documents, which are as follows: 1) the documents to show that the calls originated from the number in question and 2) attendance register. As WPC. 23169/2005. 6 regards the documents to show that calls originated from the number in question, the case was that there are other materials to show that the calls were originated from the said exchange. With regard to the attendance register, it was not produced, because it is not traceable. In regard to the non-production of attendance register, I find that the authority has found that the the log book, which was written almost on a daily basis, the meter reading register etc., were valid records to prove that petitioner was in the exchange during the commission of the alleged misconduct. The handwriting of the petitioner is also taken note of. I cannot also shut my eyes to the vital fact that admittedly the hand writing in the meter reading is that of the petitioner. It is pointed out that authorities have proceeded on the basis that the petitioner is the custodian of the key. Petitioner points out that he is only a line man. Between a line man and a JTO there are other posts and he submits it is incredible to suggest that the petitioner is the officer in charge. But as contended by respondents the petitioner is residing very nearby and that has been taken note of by the authorities. Having regard to the totality of facts and in particular the nature of the punishment imposed, namely, barring of one increment for two years without cumulative effect. I would think that the petitioner has made out a case for interference. If the petitioner has any grievance regarding the denial of WPC. 23169/2005. 7 service benefits, it is for him to represent the matter before the competent authority and seek redressal. Subject to the same, the Original Petition fails and it is dismissed. (K.M. JOSEPH, JUDGE) sb