IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 27662 of 2006(R) PETITIONER: ------------------ VARGHESE ISSAC, MARACHERIL HOUSE, PAZHANGANAD, KIZHAKKAMBALAM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, COMMISSIONER OF EXCISE, PUBLIC OFFICE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, SOUTH ZONE, PUBLIC OFFICE, THIRUVANANTHAPURAM. 4. THE ENQUIRY OFFICER & DEPUTY COMMISSIONER OF EXCISE, PUBLIC OFFICE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER FOR R1TO R4 SRI.ARAVINDA KUMAR BABU.T.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (WP(C) No. 27662 OF 2006) PETITIONER'S EXHIBITS: Ext.P1: Copy of Memo of charges dtd.4.7.03 issued to the petitioner. Ext.P2: Copy of the written statement submitted by the petitioner to Ext.P1 Memo of charges. Ext.P3: Copy of the letter dtd.21.5.2004 issued by R4 to the petitioner. Ext.P4: Copy of letter dtd.7.6.2004 issued by the petitioner to R4. Ext.P5: Copy of the Enquiry Report submitted by R4. Ext.P6: Copy of the Order dated 16.8.2004 issued by R2 in favour of the petitioner. Ext.P6(a): Copy of letter dtd.15.10.2004 issued by the petitioner. Ext.P7: Copy of the appeal preferred by the petitioner to first respondent. Ext.P8: Copy of the order dtd.29.4.2005 issued by the first respondent. Ext.P9: Copy of the order dated 27.9.2005 issued by the Government. Ext.P10: Copy of letter dtd.22.5.2006 of Superintendent of Police, Special Cell, Ernakulam. Ext.P11: Copy of statement dated 16.4.2004 given before the Enquiry Officer by Rangit. Ext.P12: Copy of the statement dated 12.3.2003 given before the Enquiry Officer by the Circle Inspector, Harish Kumar. RESPONDENTS' EXHIBITS: Ext.R1(a): Copy of G.O(Rt) No.115/03/Vig. dtd.8.5.03. Ext.R1(b): Copy of the deposition. WP(C) 27662 OF 2006 :-2-: Ext.R1(c): Copy of show cause notice dtd. 24.6.2004. Ext.R1(d): Copy of the letter dtd.12.7.2004 from the petitioner. Ext.R1(e): Copy of the letter from the Asst.Excise Commissioner, Idukki dtd.15.7.2004. Ext.R1(f): Copy of the Government Order dtd.13.5.2005. -True Copy- P.A.to Judge. V.K.MOHANAN, J. --------------------------------------------- W.P(C).No. 27662 of 2006 --------------------------------------------- Dated this the 7th day of August, 2009 J U D G M E N T The petitioner, while working as Circle Inspector of Excise, was subjected to disciplinary proceedings and ultimately, as per Ext.P6 order, he was dismissed from service. Though he had preferred an appeal as Ext.P7 against Ext.P6, the same was dismissed. Thereafter, he filed review petition which was also dismissed as per Ext.P9 order. Thus, the petitioner in this writ petition challenges Exts.P5,P6,P8 and P9, and seeks an order quashing the same by issuing a writ of certiorari. It is also prayed to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to reinstate the petitioner in service with all backwages. 2. The allegation against the petitioner is that he had committed serious mis-conduct by openly WP(C) NO.27662 of 2006 :-2-: associating with known suspects of Abkari crimes and he acted hand in glove and he travelled in the same car with two notorious suspects and were caught by the Police, while acting as a member of the suspects team in a pursuit against police party. It is also the allegation that the petitioner restrained the Assistant Commissioner of Police, Shanghumugham and other Police Officers and created obstruction in the discharge of their official duty. On the basis of memo of charges contained in Ext.P1, an enquiry was ordered. Against Ext.P1 charges, the delinquent filed Ext.P2 reply denying all the allegations. As the explanation offered by the delinquent was not satisfactory, the disciplinary authority has decided to proceed further and accordingly, the Deputy Commissioner of Excise, South Zone, Trivandrum was appointed as the Enquiry Officer. The Enquiry Officer, after an WP(C) NO.27662 of 2006 :-3-: elaborate enquiry, submitted his report, Ext.P5. As the disciplinary authority has decided to impose penalty, issued show cause notice dated 24.6.2004. According to the petitioner, no such notice was received. Thereafter, the Disciplinary Authority issued Ext.P6 order of dismissal dated 16.8.2004. As per Ext.P6, according to the disciplinary authority, the charge, that the association of the petitioner with notorious crime suspects, is proved and therefore, the disciplinary authority is of the opinion that nothing less than the most deterrent punishment is required to award against such wrong-doer and accordingly, the punishment of dismissal has been imposed. Against Ext.P6, the petitioner had preferred Ext.P7 appeal before the Government, being the appellate authority. But, the Government, confirming the punishment awarded by the Disciplinary Authority, dismissed the appeal WP(C) NO.27662 of 2006 :-4-: by Ext.P8 order. Though the delinquent-the petitioner again approached the Government by filing a review petition, the same was also dismissed as per Ext.P9 order. It is, thus, the petitioner approached this Court by preferring this writ petition. 3. A counter affidavit is filed on behalf of respondents 1 to 4. Along with the counter affidavit, Exts.R1(a) to R1(f) are also produced. The sum and substance of the contention taken in the counter affidavit is to the effect that the petitioner- delinquent, being the part of disciplined force viz., the Excise Department should not have alliance with abkari offenders and therefore, on the basis of the proved charges, he deserved the only punishment of dismissal and the same was done in accordance with the principles of natural justice and therefore, no interference is called for either with respect to the WP(C) NO.27662 of 2006 :-5-: enquiry proceedings or with respect to the penalty imposed against the petitioner. 4. I have heard Sri.K.P.Dandapani, Senior Counsel appearing for the petitioner as well as the learned Government Pleader. 5. At the outset, learned Senior Counsel for the petitioner invited my attention to the judgment dated 7.12.2007 of the Judicial First Class Magistrate Court-III, Thiruvananthapuram in C.C.No.892/2003, by which the petitioner and other accused were acquitted of all the charges levelled against them including under Sections 341 and 353 read with Section 34 of I.P.C. According to the learned counsel, the Enquiry Officer has also found that such allegations are not proved during the enquiry as such. Learned counsel for the petitioner submits that the entire disciplinary proceedings were conducted in total violation of principles of WP(C) NO.27662 of 2006 :-6-: natural justice. It is pointed out that though the petitioner was served with Ext.P3 notice to appear before the Enquiry Officer, the Enquiry Officer conducted the examination of all witnesses in his absence and no opportunity was given to cross- examine those witnesses. Therefore, aggrieved by the above procedure adopted by the Enquiry Officer, the petitioner had preferred Ext.P4 representation before the Excise Commissioner. But, the grievance raised by the petitioner as per Ext.P4 was not considered before taking further steps in the matter. It is also the case of learned counsel that when the Enquiry Officer concluded his enquiry and furnished the report, no opportunity was given to the delinquent to offer his defence against the enquiry itself. It is also contended that no show cause notice was issued by the disciplinary authority before imposing the penalty. In support of WP(C) NO.27662 of 2006 :-7-: the above contentions, the learned counsel very much placed reliance upon the decisions reported in Managing Director, ECIL, Hyderabad v. B.Karunakaran and Others [(1993)4 SCC 727] and Union of India and Others v. Mohd.Ramzan Khan [(1991)1 SCC 588]. It is also the case of learned counsel that even if the allegation, which is claimed to have proved, is taken as true, the punishment imposed against the petitioner is disproportionate to the allegation. Therefore, on the strength of the decision reported in Zunjarrao Bhikaji Nagarkar v. Union of India and Others [(1999)7 SCC 409], learned counsel submits that interference of this Court is warranted at least with respect to the punishment awarded against the petitioner. 6. On the other hand, learned Government Pleader submits that as evidenced by Ext.P5 report, WP(C) NO.27662 of 2006 :-8-: though opportunity was given to the petitioner to cross-examine the witnesses, he did not avail that opportunity under the pretext that the same will weaken his defence in the criminal case which was pending at that time. It is further submitted by the learned Government Pleader that before awarding the punishment, a show cause notice Ext.R1(c) was served on the petitioner, but he refused to accept the same, as evidenced by Exts.R1(d) and (e). Thus, the learned Government Pleader submits that after having refused to accept the show cause notice, he cannot raise the plea that no opportunity was given before imposing the penalty. It is also the case of the learned Government pleader that in the enquiry, it is proved his presence along with an abkari offender, being a Circle Inspector in the Excise Department, he was expected to maintain absolute integrity and therefore, his alliance with abkari WP(C) NO.27662 of 2006 :-9-: offenders cannot be forgiven even for a moment. Hence, the disciplinary authority has awarded the penalty of dismissal, considering the above grave mis-conduct from the part of the delinquent employee and no interference of this Court is warranted. In support of his submission, learned Government Pleader placed reliance upon the decision of this Court reported in Pushkaran v. State of Kerala [2005(3) KLT 657] (para 5). 7. Mr.K.P.Dandapani, learned Senior Counsel emphatically submitted and pointed out that the petitioner was not given opportunity to cross-examine witnesses relied on by the Department. It is also pointed out that no opportunity was given initially at the time of furnishing the enquiry report and subsequently before awarding the punishment. On the strength of the decisions of the Apex Court in Managing WP(C) NO.27662 of 2006 :-10-: Director, ECIL, Hyderabad v. B.Karunakaran and Others [(1993)4 SCC 727] and Union of India and Others v. Mohd.Ramzan Khan [(1991)1 SCC 588], the learned counsel submits that the departmental authorities violated the principles of natural justice. I have perused the materials on record especially Ext.P5 Enquiry Report. The Enquiry Officer in his report, especially in clause VI (3) (Opportunity given for defense), stated as follows:- “3. He informed that he is not cross- examining any of the witnesses as it will weaken the criminal cases instituted by the Police against him in the Hon'ble Judicial 1st Class Magistrate Court, Thiruvananthapuram.” From the above, it is clear that the petitioner had got opportunity to cross-examine the witnesses, but he did not avail that opportunity on the ground that the answer in the cross-examination is likely to affect adversely his defence in the criminal case WP(C) NO.27662 of 2006 :-11-: pending before the trial court at that time. Such approach cannot be treated as he had voluntarily relinquished his right to cross-examine the witnesses, especially for the reason stated by him. In the light of the above fact and in view of the defence version, the Enquiry Officer ought to have adjourned the enquiry. But, in the present case, I cannot find fault with the stand taken by the Enquiry Officer since the delinquent employee/the petitioner did not ask him for the adjournment of the enquiry and for the postponement of the examination of the witnesses till the trial of the criminal case is over. If that be so, the petitioner cannot now find fault with the Enquiry Officer, especially the delinquent employee had given up his right to cross-examine the witnesses and no request was made in this regard. It was also pointed out in the writ petition that the witnesses were examined WP(C) NO.27662 of 2006 :-12-: before the petitioner reached the Enquiry Officer. According to the learned counsel, it was under the above circumstances, he filed Ext.P4 representation before the commissioner. In the light of the fact that the petitioner was not prepared to cross- examine the witnesses, Ext.P4 is absolutely irrelevant. 8. Another point argued by the counsel is that no opportunity was given to the petitioner before awarding the punishment as per Ext.P6. It is also the contention of learned counsel that when the Enquiry Officer furnished Ext.P5 report, no opportunity was given for the petitioner to raise his objection against the acceptance of the report. The learned counsel heavily relied on the decision of the Apex Court in (1993) 4 SCC 727. In the above decision, the Apex Court has held that where the Enquiry Officer is other than the disciplinary WP(C) NO.27662 of 2006 :-13-: authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, the Enquiry Officer's Report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. According to the said decision, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority had considered the findings in the report and has come to the conclusion with regard to the guilty of the employee and proposes to award penalty on the basis of its conclusion. In the light of the facts and circumstances involved in the present case, I am of the view that the omission to WP(C) NO.27662 of 2006 :-14-: give opportunity to the petitioner on receiving the enquiry report is not fatal or against the interest of the delinquent employee since even according to the report, the Enquiry Officer has found that the serious allegations are not proved and the only observation of the Enquiry Officer is to the effect that the delinquent employee ought not have gone with the company of the abkari criminals/offenders. In this juncture, it is relevant to note that petitioner has also admitted that on the alleged day, he had gone along with the said Babuji in his car as his friend and therefore, in the enquiry report, even if there is no evidence and found against the petitioner, under that count of the charges, the petitioner is in no way affected. So, in the given facts and circumstances of the case, the first notice as observed in the above decision is not warranted. WP(C) NO.27662 of 2006 :-15-: 9. Regarding the notice at the second stage, it is the specific case of the petitioner that he was not given opportunity to make his explanation or show cause against the proposed punishment. But the respondents, in their counter affidavit, produced Ext.R1(c) show cause notice and Ext.R1(d) letter of the delinquent employee, addressing the Assistant Excise Commissioner, Idukki. According to the respondents, Ext.R1(c) show cause notice was attempted to serve on the petitioner, but he refused to receive the same as evidenced by Ext.R1(d) letter. If that be so, it cannot be heard from the petitioner that no opportunity was given to him before imposing penalty. Therefore, the contention raised by the learned counsel for the petitioner that the entire disciplinary proceedings were conducted in violation of the principles of natural justice, as a result of which the petitioner is prejudiced, fails. WP(C) NO.27662 of 2006 :-16-: 10. The other contention raised by the senior counsel regarding the punishment, deserves elaborate consideration. According to the learned counsel, as evidenced by Ext.P5 report, the only observation of the Enquiry Officer is that being a member of the Excise Preventive Force, the delinquent should have devoted his full time to the departmental service alone, he should have maintained absolute integrity and shown proper regard and good order of the force to upkeep the honor and respectability of the Department and he should not have divulged in an act of making company with an Abkari offender. It is also observed that he should not have received the gratification by way of free lift offered by such an offender. According to the Enquiry Officer, he is answerable for the misconduct he committed in his private life. So, the learned counsel submits that in WP(C) NO.27662 of 2006 :-17-: spite of the above observation, even in the absence of any finding of guilt, the Department has imposed a major penalty, which is not at all warranted in the case and therefore, pressed for the intervention of this Court with respect to the penalty imposed against the petitioner. 11. Admittedly. four charges were levelled against the petitioner which are as follows:- (1) committed serious misconduct by openly associating with known suspects of Abkari crimes. (2) travelled in the same car with two such notorious suspects, called “China Sunil” and “Babuji” and were caught by the police while acting as a member of the suspects team. (3)openly associated and acted hand in glove with notorious /abkari crime suspects, in an act of wild pursuit against a police party in civilian dress, which was out to gather evidence against these very suspects. (4) wrongfully restrained Asst. Commissioner of Police, Shanghumugham and other Police Officers and created obstruction in WP(C) NO.27662 of 2006 :-18-: the discharge of their official duty. On the basis of the above allegation,the disciplinary proceedings were initiated and an Enquiry Officer was appointed. The Enquiry Officer appointed is none other than the Deputy Commissioner of Excise (South Zone), Thiruvananthapuram. Under clause (VII), with the caption 'Findings and Observations' as seen in Ext.P5 report, the Enquiry Officer has stated his findings and observations. According to the Enquiry Officer, the petitioner has friendship with Sri.Babji and this friendship prompted him to be in the company of Sri.Babuji during the chase and encounter. But, it was not intentional and not pre-planned and after arriving the spot, he was a passive viewer rather than an active participant in the obstruction. Thus, the Enquiry Officer found that it cannot be treated that he acted hand in glove with the Abkari crime suspects. The Enquiry Officer WP(C) NO.27662 of 2006 :-19-: has categorically found that there is no proof to evidentiate that he had prior knowledge that the said two persons were criminals and he had also prior knowledge that the occupants in the Maruti car were Police Officers and they were out to gather evidence against the very suspects. Thus, the Enquiry Officer finally concluded that the charge under III-8(3) and (4) are not proved. Charge Nos. (3) and (4) are the most serious charges when compare with the other charges. At the same time, it was also found that charge Nos.1 and 2 are not fully proved. It was, on the basis of the above finding, the Enquiry Officer concluded the report in the manner indicated earlier. 12. The allegations raised against the petitioner, no doubt, are serious in nature, but in the present case, the Officer of the Department himself, who holds higher rank, reported that the WP(C) NO.27662 of 2006 :-20-: charges were not proved. But, at the same time, the Enquiry Officer had held that the petitioner ought not have been seen in the company of the accused or abkari offenders. In this juncture, it is relevant to note that the petitioner himself admitted that Babuji is one of his friends and also proved that he got in the car of the said Babuji when the petitioner was returning after attending the Human Rights Commission. After analysing the evidence on record, the Enquiry Officer himself found that the friendship had prompted the petitioner to be in the company of the Babuji during the chase and encounter. But, it was not intentional and not pre- planned and he was only a passive viewer. In this juncture, it is also relevant to note that the Enquiry Officer has also found that the petitioner had no prior knowledge that the occupants in the Maruti car were Police Officers and they were out to gather WP(C) NO.27662 of 2006 :-21-: evidence against the very same suspects. In the absence of any materials or evidence to show that the petitioner had accompanied Babuji with intention or with knowledge that the car, which was chased, was travelled by the Police Officers, the Enquiry Officer has held that none of the allegations against the petitioner would sustain. It was, under the above circumstances, the Enquiry Officer suggested that the petitioner deserves a lenient view. Actually, he made such suggestion, considering the facts and circumstances of the case as revealed in the enquiry, as there was no malafide intention on the part of the petitioner to cause obstruction to the Police. It is, from the above finding and suggestion, the Disciplinary Authorities took a different view and imposed the penalty of dismissal. 13. Of course, the disciplinary authority is not WP(C) NO.27662 of 2006 :-22-: bound by the conclusion and finding in the report of the Enquiry Officer and can take different view and arrive into its own finding. In the present case, the only finding of the Enquiry Officer is that the delinquent-petitioner was found in the company of one of the accused and all other allegations are found as not proved. In order to arrive into a different conclusion, the disciplinary authority has found that the other accused are known to everybody and hence, the version of the delinquent is not acceptable. The above approach of the disciplinary authorities are more clear from Ext.R1 (c) show cause notice of which the relevant portion reads as “.... Though the Inquiry Officer has found that the third charge not proved, and has said that there is “no proof to evidentiate that he had prior knowledge that Sri.China Sunil and Sri.Babji were criminals”, I do not agree with this finding. It is almost everybody's knowledge in the WP(C) NO.27662 of 2006 :-23-: Excise Department that these two are notorious characters and therefore, the charged officer cannot be believed to have been unaware of their criminal background . ” (emphasis supplied) From the very words used in the underlined portion, it can be seen that such a finding is only on the basis of surmises and conjectures and unsupported by any materials or evidence. In this case, it is relevant to note that the Enquiry Officer, after having detailed analysis and appreciation of the evidence adduced by the Department, came into a conclusion that the delinquent employee has no pre-meditation with regard to the incident that had taken place after his accepting the offer of lift given by Mr.Babuji. The above finding of the Enquiry Officer assumes importance, especially in the background of fact that the delinquent employee/the petitioner has explained that he had accepted the offer for lift made by the said Babuji when the WP(C) NO.27662 of 2006 :-24-: delinquent/employee comes after attending the Human Rights Commission. Annexure-XXVIII marked in the Enquiry Report, is the copy of the notice of hearing issued by the Human Rights Commission, which is produced by the defence. The above fact itself is sufficient to hold that there was no pre-meditation or prior knowledge regarding the subsequent incident taken place. It is also a proved fact that the delinquent employee was not having the knowledge that it was the Police Personnel in the Maruti car. Admittedly, Babuji is the friend of the delinquent Officer. In the absence of any concrete and reliable evidence that the delinquent officer was aware and it is within his personal knowledge at the time of his entry into the car, that the said Babuji is an accused or he was chasing the Police Party, nobody can condemn the delinquent employee for having accepted the lift offered by the WP(C) NO.27662 of 2006 :-25-: said Babuji, a friend of the petitioner and getting into the car. Nobody can anticipate such adverse situation and this may happen to anybody. So seeing in the company of a friend of the petitioner during his private life and in the absence of materials or evidence as indicated above, the delinquent officer cannot be found fault so as to subject him to severe punishment. The Enquiry Officer, who is none other than the Deputy Commissioner of the Excise Department and who had got the privilege and occasion to