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2017 DIGILAW 1187 (KER)

Prakash v. High Court of Kerala

2017-08-25

K.P.JYOTHINDRANATH, K.SURENDRA MOHAN

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JUDGMENT : K. SURENDRA MOHAN, J. 1. The appellant is before us challenging the judgment dated 12.10.2010 of the learned Single Judge in W.P.(C) No. 24333 of 2009 dismissing the writ petition filed by him. The appellant had filed the writ petition challenging the punishment of compulsory retirement imposed on him. Though the learned single Judge has found that one of the charges against the appellant was not proved, it is held that the punishment imposed was justified. 2. The appellant was an employee of the establishment of the High Court. He was working as a Private Secretary to Judge. He was initially recruited as a Shorthand Writer Grade II and was later on promoted as Private Secretary to Judge in the year 1996. While so working, he was placed under suspension on 7.4.2006 and disciplinary proceedings were initiated on the basis of two separate sets of charges. Ext.P7 is the copy of the Memo of Charges dated 3.6.2006. Ext. P1 3 is the copy of the second Memo of Charges. While the first one contains three charges, the second one contains only one charge. 3. In the first Memo of Charges Ext.P7, it was alleged that he was the accused in C.C. No. 604/2002 of the Additional Chief Judicial Magistrate’s Court, Ernakulam, charged for offences punishable under Sections 294(b) and 506(i) Indian Penal Code, that he had made false allegations through his counsel against the Addl.Chief Judicial Magistrate, Ernakulam and staff of that court where the case against him was pending, alleging that they made fraudulent entries in ‘A’ and ‘B’ Diaries and that, they along with the Sub Inspector of Police, Panangad were guilty of conspiracy, that ended in his arrest at 3.20 a.m. on 22.8.2004. It was further alleged that he had got published through his counsel Sri. Benhur Joseph Manayani, Advocate, a news item containing false accusations against the Presiding Officer and staff of the Addl. Chief Judicial Magistrate’s Court, Ernakulam damnifying and lowering their esteem and respect before the public in the Rashtra Deepika Daily on 25.8.2004. Another allegation was that he had been undertaking the typing work of Adv. Johnson Manayani, a practising advocate of the High Court, almost every day during the period from 1.2.2005 to 26.7.2005 in violation of Rule 48 of the Government Servants Conduct Rules, 1960. 4. Another allegation was that he had been undertaking the typing work of Adv. Johnson Manayani, a practising advocate of the High Court, almost every day during the period from 1.2.2005 to 26.7.2005 in violation of Rule 48 of the Government Servants Conduct Rules, 1960. 4. The first charge referred to above was with respect to two petitions filed by his counsel before the Hon’ble Chief Justice making certain accusations against the Addl. Chief Judicial Magistrate, Ernakulam and staff of the said court. Exts. P8 and P9 reflect the allegations relating to the said charge. The second charge was that he had caused the publication of the allegation against them in the Rashtra Deepika daily on 25.8.2004. The third allegation was that he was undertaking the typing work of Sri. Johnson Manayani during the period from 1.2.2005 to 26.7.2005. 5. The allegation in Ext.P13 was that, he had inflicted mental and physical torture on Smt. T.R. Rehana, Shorthand Writer Grade II, while working as the Private Secretary to Hon’ble Justice R. Basant and Hon’ble Justice K.P. Balachandran and created a hostile environment at the work place preventing her from discharging her duties effectively. She had also been posted along with him to the said Judges. 6. The charges were got separately enquired into by appointing two different Enquiry Officers. The enquiry in respect of Ext.P7 was conducted by Sri. Abraham Mathew, the then Additional Director of Kerala Judicial Academy. The enquiry in respect of Ext.P13 Memo of Charges was conducted by Sri.A. Hariprasad, the then Director of Kerala Judicial Academy. The charges were refuted by the appellant. With respect to the charges in Ext.P7 memo, his defence was that, the said complaints were filed by his Advocate without any instructions from him and that he was not aware of the said complaints. With respect to the news report also, he took the same stand. The Enquiry Officer let in evidence, both oral and documentary. PWs. 1 to 4 were examined to prove the allegations against him, while DWs.1 to 3 were examined on the side of the appellant. Exts. P1 to P9 documents were also marked. 7. The Enquiry Officer considered the evidence on record and concluded that the appellant was the only person who had a motive to raise false allegations against the Addl. Chief Judicial Magistrate and the Bench Clerk. Exts. P1 to P9 documents were also marked. 7. The Enquiry Officer considered the evidence on record and concluded that the appellant was the only person who had a motive to raise false allegations against the Addl. Chief Judicial Magistrate and the Bench Clerk. The appellant was found to have been nursing a grudge against the Addl.Chief Judicial Magistrate and the Bench Clerk in view of his arrest early in the morning on a holiday. On the above reasoning, it was found that, the appellant was responsible for filing false complaints before the Hon’ble Chief Justice. Accordingly, the charges were held to have been proved. 8. With respect to the second Memo of Charges, before the Enquiry Officer PWs 1 to 9 were examined in proof of the charges while the appellant examined DWs 1 to 28. Ext.P1, P1 (a), P2 and D1 documents were marked. The Registrar (Vigilance) of the High Court had conducted an enquiry into the complaint of Smt. T.R. Rehna, prior to the disciplinary enquiry, which found the complaint to be substantiated. The Enquiry Officer, after close of the evidence analysed the evidence on record and concluded that the appellant was guilty of the charge levelled against him. After the enquiry, the explanation of the appellant was considered and by Exts.P20 and P21, the Hon’ble Chief Justice dismissed the appellant from service with effect from 7.4.2006. 9. The aggrieved appellant challenged his dismissal before the Appellate Authority in two separate appeals, Ext.P22 and P23 respectively- The Appellate Authority considered the contentions of the appellant and by a majority modified the punishment imposed on him to that of compulsory retirement from service. Thereupon, the appellant challenged the proceedings against him in W.P.(C) No. 24333 of 2009. The learned Single Judge considered the contentions advanced by the appellant, found that the enquiry conducted as well as the punishment imposed were justified, but that the conclusion in respect of one of the charges was not substantiated. However, according to the learned Single Judge, the said infirmity was not sufficient to interfere with or modify the punishment that was imposed. Accordingly, the writ petition has been dismissed. It is aggrieved by the said judgment that, this appeal is filed. 10. According to Adv. However, according to the learned Single Judge, the said infirmity was not sufficient to interfere with or modify the punishment that was imposed. Accordingly, the writ petition has been dismissed. It is aggrieved by the said judgment that, this appeal is filed. 10. According to Adv. George Poonthottam, who appears for the appellant, in Exts.P20 and P21, the orders of the Hon’ble Chief Justice by which the punishment of dismissal from service was imposed on the appellant, what has been stated by the Registrar is that, the Hon’ble Chief Justice had ordered the said authority to impose the punishment of dismissal on the appellant. Therefore, the Registrar was in fact acting under dictation, it is contended. It is further pointed out that, in this case, there is a total non-application of mind to the charges levelled, the findings of the Enquiry Officer and the materials on record. The Disciplinary Authority ought to have referred to the Enquiry Report in greater detail and discussed each of the findings therein. On the basis of such a discussion, the orders Exts. P20 and P21 ought to have further disclosed the reasons on which the enquiry reports were accepted. Since there is no such indication in the impugned orders in this case, it is contended that there is non-application of mind. It is next contended that, there was no Presenting Officer for the establishment in this case. No chief examination of the witnesses was conducted. Instead, the statements given by the witnesses at the enquiry conducted by the Registrar (Vigilance) were read over to the respective witnesses and was treated as chief examination at the enquiry. Though it is true that the appellant was permitted to cross examine the witnesses on the basis of the said statements, it is contended that prejudice has been caused to the appellant by relying upon the said statements that were recorded behind his back. Another contention raised is that, both the Enquiry Officers had acted as Presenting Officers. They had chief examined the witnesses who had testified for the prosecution and had cross examined the defence witnesses. The said grave procedural illegality has vitiated the entire proceedings. For the above reason, it is contended that, no evidence recorded in the enquiry could be relied upon. They had chief examined the witnesses who had testified for the prosecution and had cross examined the defence witnesses. The said grave procedural illegality has vitiated the entire proceedings. For the above reason, it is contended that, no evidence recorded in the enquiry could be relied upon. Since there is no enquiry in the eye of law, it is contended that the punishment imposed on the appellant is liable to be interfered with and set aside. In spite of the above lapses, the Disciplinary Authority erred in accepting the Enquiry Report and punishing the appellant. Since the learned Single Judge has omitted to appreciate the above aspects, the judgment under appeal requires to be interfered with, it is contended. 11. According to Adv. C.S. Dias, who appears for the respondents, there are absolutely no grounds for interference with the disciplinary proceedings initiated against the appellant and the punishment imposed on him. He was given every opportunity to defend himself of the charges levelled against him. He had participated in the enquiry proceedings without any complaint and had let in evidence from his side examining witnesses in proof of his innocence. The evidence on record was analysed and appreciated by the Enquiry Officers and both of them have found the charges against the appellant to have been proved. Thereafter, the appellant was given the opportunity to object to the Enquiry Report. It was after considering his objections also that the Disciplinary Authority had imposed punishment on him. The appellant had appealed against the punishment. The Appellate Authority considered his contentions and has modified the punishment to that of compulsory retirement from service. The learned Single Judge has also gone into all the contentions advanced by the appellant who was appearing in person and has found no grounds to interfere with the action taken. It is therefore contended that, the contentions now raised are only to be rejected. According to the learned counsel, the Hon’ble Chief Justice had imposed the punishment on the appellant after considering the Enquiry Reports, on proper application of mind. The Registrar as per Exts. P20 and P21 has only communicated the decision of the Hon’ble Chief Justice to the appellant. The said communication therefore cannot be described as an instance of acting under dictation. The Registrar as per Exts. P20 and P21 has only communicated the decision of the Hon’ble Chief Justice to the appellant. The said communication therefore cannot be described as an instance of acting under dictation. In answer to the contention that there was no Presenting Officer at the enquiry, it is pointed out that, going by the dicta of the decisions on the point, absence of Presenting Officer is to the disadvantage of the management only and not to the delinquent employee. Since strict rules of evidence are not applicable to a domestic enquiry, the procedure adopted cannot be found fault with, it is contended. The only aspect to be examined in such cases is whether there has been any infraction of the rules of natural justice and whether any prejudice has been caused to the charge sheeted employee. In the present case, according to the learned counsel, rules of natural justice have been complied with and no prejudice has been caused to the appellant. The Registrar (Vigilance) had recorded the statements of the witnesses at the enquiry conducted by him. The said statements were read over to the witnesses and recorded. The statements formed the chief examination on the basis of which the appellant had cross-examined all the witnesses. He had not raised any objection to the procedure adopted, at that time. Since he was given sufficient opportunity to cross examine the witnesses, it is contended that, no prejudice has been caused to the appellant. The counsel has also relied upon various decisions to support his contentions. 12. Heard. As rightly pointed out by the counsel for the respondents, we are sitting in appeal over the judgment of the learned Single Judge dismissing the writ petition filed by the appellant. The writ petition was filed by the appellant challenging the disciplinary enquiries and consequent punishment imposed on him by the Disciplinary Authority. The scope of interference in a disciplinary enquiry is limited and has been repeated and reiterated by the Apex Court in a number of decisions. In Union of India v. P.Gunasekaran (2015) 2 SCC 610 ), Kurian Joseph, J, speaking for the Court, has summed up the scope of interference in paragraphs 12 and 13 of the judgment, as under: "12. In Union of India v. P.Gunasekaran (2015) 2 SCC 610 ), Kurian Joseph, J, speaking for the Court, has summed up the scope of interference in paragraphs 12 and 13 of the judgment, as under: "12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) The enquiry is held, by a competent authority; (b) The enquiry is held according to the procedure prescribed in that behalf; (c) There is violation of the principles of natural justice in conducting the proceedings; (d) The authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) The conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) The disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) The disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) The finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience." In the light of the above authoritative pronouncement, it is necessary to examine whether there is any scope for interference with the disciplinary proceedings in this case. 13. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience." In the light of the above authoritative pronouncement, it is necessary to examine whether there is any scope for interference with the disciplinary proceedings in this case. 13. The first contention of the counsel for the appellant is that, Exts. P20 and P21 evidences a clear case of the Registrar of this Court, acting under dictation. What has been stated in the said proceedings is, since the Hon’ble Chief Justice has ordered that the only punishment that can be imposed in a case of this nature is dismissal from service, the appellant has been dismissed. However, what requires to be noticed is that, in this case the Disciplinary Authority is the Chief Justice. It is the said authority that has considered the Enquiry Report, accepted the same and decided as to what punishment should be imposed on the appellant. What emanates from Exts. P20 and P21 is only an implementation of the said order. Therefore, we are not satisfied that the Registrar was acting under dictation, as contended by the counsel for the appellant. We also do not find any grounds to substantiate the further allegation that, there has been a total non-application of mind to the enquiry report by the Disciplinary Authority. It is not necessary for the Disciplinary Authority to take up each finding in the Enquiry Report and to record that each one of them was acceptable for reasons to be stated. It is sufficient that, the Disciplinary Authority puts on record its acceptance of the Enquiry Report. The absence of reasons as to why the Enquiry Report was accepted, cannot be taken as evidence of non-application of mind, as contended. Therefore, the said contention is rejected. 14. Another contention put forward on behalf of the appellant is that, in the absence of the Presenting Officer, the Enquiry Officers had taken the role of the Presenting Officers by chief examining the witnesses and cross examining the defence witnesses. We note that, no objection regarding the procedure adopted at either of the enquiries was taken by the appellant, during the proceedings. The appellant did not have any such contention before the Appellate Authority also. The said contention has surfaced for the first time in the writ petition. We note that, no objection regarding the procedure adopted at either of the enquiries was taken by the appellant, during the proceedings. The appellant did not have any such contention before the Appellate Authority also. The said contention has surfaced for the first time in the writ petition. It is vehemently contended that the Enquiry Officers in these cases had taken the roles of Prosecutors and Judges, at the same time. However, the said contention lacks substance and is only to be rejected for more reasons than one. In the first place, as we have already noticed, the petitioner had without any demur participated in the enquiry, accepting the procedure that was adopted. He had cross examined the witnesses, who had deposed against him and had also examined witnesses on his side. Before the Appellate Authority also, he had no complaints against the procedure adopted by the Enquiry Officers. The appellant does not have any allegation of bias against either of the Enquiry Officers. His contention is only that, the statements of the witnesses recorded by the Registrar (Vigilance) were read over to the witnesses and treated as chief examination. It is settled proposition of law that strict rules of evidence are not applicable to such disciplinary enquiries. Therefore, acceptance of the statements given by the witnesses in the vigilance enquiry cannot be termed as faulty. We remind ourselves that even before the civil courts, the accepted procedure now is to file affidavits in lieu of chief examination. Such affidavits are prepared in the office of the counsel appearing for the respective clients and are made available to the opposite counsel for conducting the cross examination. The procedure adopted at the enquiry in this case is also similar. The appellant has also not been able to show that any prejudice has been caused to him by the said procedure. On the contrary, we notice from the records that, he had proceeded to cross examine each of the witnesses on the basis of the statements made available to him. We have examined the deposition of the witnesses at the enquiry, produced before us. We do not find that the enquiry officers had cross examined the witnesses, as alleged. For the above reasons, we do not find any infirmity in the procedure adopted in recording the evidence of the witnesses, at the disciplinary enquiry. 15. We have examined the deposition of the witnesses at the enquiry, produced before us. We do not find that the enquiry officers had cross examined the witnesses, as alleged. For the above reasons, we do not find any infirmity in the procedure adopted in recording the evidence of the witnesses, at the disciplinary enquiry. 15. The learned Single Judge has placed reliance on two Single Bench decisions of this Court where absence of the Presenting Officer was not held to vitiate the enquiry proceedings in any manner. It has been held that, where no Presenting Officer is appointed, it is sufficient that the evidence of the witnesses was recorded by the Enquiry Officer and the charge sheeted employee permitted to cross examine. The Enquiry Officer could put questions to the witnesses, without a ‘biased mind’. It has also been laid down that, in such cases what is required to be examined is whether any prejudice has been caused to the charge sheeted employee. Sivarajan v. Presiding Officer 1988 (2) KLT 385 ) and High Range Estate Employees Association v. industrial Tribunal 2008 (1) KLJ 192 ) are the decisions on the point. We do not find any grounds to take a different view of the matter. 16. Another contention put forward is that, the Disciplinary Authority erred in accepting the Report of Enquiry and punishing the appellant. As already noticed, we find that the appellant had been given sufficient opportunity at the disciplinary enquiries conducted and that, he had participated therein, without raising any objection by cross examining the witnesses and by examining the witnesses on his side. He was furnished with copies of the Enquiry Reports and his explanation sought. The punishment has been imposed after considering his explanation. Therefore, we do not find any substance in the allegation that there has been violation of the principles of natural justice. On the contrary, we find that the proceedings have been conducted observing the principles of natural justice. 17. A further contention is put forward that, the punishment imposed on the appellant is disproportionate to the gravity of the charges against him. We notice that, though the Disciplinary Authority had imposed the penalty of dismissal on the appellant, the Appellate Authority has interfered with the same and converted the same to one of compulsory retirement from service. 17. A further contention is put forward that, the punishment imposed on the appellant is disproportionate to the gravity of the charges against him. We notice that, though the Disciplinary Authority had imposed the penalty of dismissal on the appellant, the Appellate Authority has interfered with the same and converted the same to one of compulsory retirement from service. We are not satisfied that the said punishment is disproportionate to the gravity of the charges against him. The counsel for the respondents has drawn our attention to the decision of the Apex Court in Chief Executive Officer, Krishna District Co-operative Central Bank Ltd. v. K. Hanumantha Rao ( (2017) 2 SCC 528 ). In paragraph 7 thereof, Dr. A.K. Sikri, J., speaking for the Court, has cautioned that a punishment is the prerogative of the Disciplinary Authority. Interference with the quantum of punishment under Article 226 of the Constitution is limited to cases where the punishment is so disproportionate as to shock the judicial conscience. Merely because the opinion of the court is that a lesser punishment would have been more appropriate, the discretion of the Disciplinary Authority cannot be interfered with in the present case, as we have already noticed, the punishment imposed on the appellant has been reduced to one of compulsory retirement. 18. We have gone through the judgment of the learned Single Judge. The learned Single Judge has considered the contentions of the appellant, exhaustively and has rejected them for valid reasons. We find no infirmity in the said judgment warranting an interference therewith in appeal. For the foregoing reasons, the writ appeal fails and is accordingly dismissed.