Rajeev S Nair vs High Court Of Kerala
2022 Latest Caselaw 8700 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
        THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944

                       WP(C) NO. 21717 OF 2022


PETITIONER:

          RAJEEV S NAIR
          AGED 41 YEARS
          S/O. K. RAJASEKHARAN NAIR,
          JUNIOR SUPERINTENDENT, MUNSIFF COURT,
          CHERTHALA, ALAPPUZHA, RESIDING AT KOCHUPARIYARATHU,
          KARUVATTA P.O., ALAPPUZHA-690517.

          BY ADV KALEESWARAM RAJ


RESPONDENTS:

    1     HIGH COURT OF KERALA
          REPRESENTED BY THE REGISTRAR GENERAL, HIGH COURT OF
          KERALA, MARINE DRIVE, ERNAKULAM, KOCHI-682031.

    2     REGISTRAR (DISTRICT JUDICIARY)
          (APPELLATE AUTHORITY) HIGH COURT OF KERALA, MARINE
          DRIVE, ERNAKULAM, KOCHI-682031.

    3     DISTRICT JUDGE (DISCIPLINARY AUTHORITY),
          DISTRICT COURT, VELIYANAD ROAD, KIDANGAMPARAMP,
          THATHAMAPALLY, ALAPPUZHA-688013.


          SMT NISHA BOSE SR GOVERNMENT PLEADER



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.21717 of 2022

                                           2




                                       JUDGMENT

The petitioner is presently working as a Junior Superintendent in the

Office of the Munsiff Court, Alappuzha. Disciplinary proceedings were

initiated against him on the allegation that while working as Bench Clerk in

the Additional District Court and Sessions Court-I, Alappuzha, he left the

office at about 3 p.m. on 29.08.2017 and did not attend the office during the

remaining working hours. The enquiry was proceeded with, and on its

culmination, the petitioner was imposed with a penalty of withholding one

increment due on 7/2021 with cumulative effect. Though an appeal was

preferred under Rule 23 of the Kerala Civil Services (Classification, Control,

and Appeal) Rules,1960, the Appellate Authority confirmed the order

imposing penalty and thereby dismissed the appeal. The above orders are

under challenge in this Writ Petition.

2. A summary of the case can be sketched as under:

a) On 29.08.2017, at about 3 p.m., the petitioner herein, while

working as Bench Clerk, Grade-I, Additional District Court-I, Alappuzha

left the office at 3 p.m. without availing leave and without informing the W.P.(C) No.21717 of 2022

Judicial Officer. He failed to attend the office during the remaining

working hours.

b) The petitioner was served with a notice calling for his

explanation. A preliminary enquiry was conducted and a report dated

09.07.2018 was obtained as per which, prima facie, the allegations were

found to be true. An inquiry officer was later appointed, and a formal

enquiry was ordered. A report was submitted on 30.11.2018 by

Sub-Judge Chengannur, and the punishment of barring one increment

with cumulative effect was imposed.

c) The matter was taken in appeal. The Appellate Authority, on an

appraisal of the materials, found that the report of enquiry had not been

furnished to the petitioner before the enquiry report was accepted by

the disciplinary authority. The disciplinary authority was ordered to

restart the proceedings afresh from the stage at which the disciplinary

authority received the enquiry report from the enquiry officer. Directions

were issued to pass orders afresh after curing the material irregularities

and after providing an opportunity to be heard to the petitioner.

3. In compliance with the directions issued by the Appellate W.P.(C) No.21717 of 2022

Authority, the District Judge issued a show-cause notice to the petitioner

herein on 30.01.2020 proposing a penalty of reduction to a lower rank in the

seniority list. Before issuing the show cause notice, a copy of the formal

enquiry report was also served on the petitioner. However, by proceedings

dated 19.02.2020, the notice dated 30.1.2020 was withdrawn. The petitioner

was heard on 28.02.2020, and after considering the written submissions filed

by him, a show cause notice was issued proposing penalty of reduction to a

lower rank in the seniority list by placing him as the junior most of the Junior

Superintendents in the Alappuzha District.

4. The petitioner responded by raising various contentions to the

above show-cause notice. After hearing the petitioner, the disciplinary

authority imposed a penalty of withholding one increment due on 7/2021

with cumulative effect upon the petitioner.

5. Challenging the said order, the petitioner preferred an appeal

before the Appellate Authority. The Appellate Authority, after exhaustively

considering the sequence of events, the records, and the order imposing the

penalty, rejected the appeal holding that the penalty of barring one

increment with cumulative effect does not warrant any interference. The

above orders are challenged in this writ petition. W.P.(C) No.21717 of 2022

6. I have heard Smt. Thulasi K. Raj, the learned counsel appearing

for the petitioner.

7. Smt. Thulasi K. Raj, the learned counsel appearing for the

petitioner, submitted that the enquiry proceedings were beset with various

irregularities, and it was in the said circumstances that the appellate

authority had interfered at the first instance by issuing Ext.P6 order. However,

without exonerating the petitioner, directions were issued to restart the

disciplinary proceedings from the date of submission of the enquiry report

after curing the irregularities, which were incurable. According to the learned

counsel, as the Additional District Judge was on leave on 29.08.2017, nothing

prevented the petitioner from taking leave in an emergency. It is further

urged that the petitioner's specific case was that he had completed all the

works and thereafter had submitted a leave application. The learned

counsel further contended that one Lilly, the Personal Peon of the Additional

District Judge -I, Alappuzha, was cited as a witness by the petitioner.

However, the opportunity to examine the witness was denied on the ground

that her correct address was not furnished. Finally, it was submitted that the

punishment imposed is highly excessive and disproportionate to the charges

leveled against the petitioner, even if it is assumed that such an allegation W.P.(C) No.21717 of 2022

had been proved.

8. I have anxiously considered the submissions and have evaluated

the materials.

9. It is by now settled that this Court, exercising the jurisdiction

under Article 226 of the Constitution of India, does not sit in appeal over the

finding of the disciplinary authority and cannot re-examine the merits of the

charges against the aggrieved officer as if the enquiry was being examined

afresh. The scope of this jurisdiction is restricted to deciding whether the

disciplinary authority as well as the Appellate Authority have exceeded their

jurisdiction or acted with perversity. It is equally well settled that the

disciplinary and appellate authorities exercise quasi-judicial powers, and this

Court would effectively be exercising certiorari jurisdiction while sitting in

judicial review over their decisions.

10. In State of Karnataka and Another v. N.Gangaraj [(2020)

3 SCC 423], the Hon'ble Apex Court had occasion to examine the question

with regard to the exercise of jurisdiction under Article 226 of the

Constitution of India in Departmental proceedings. In paragraph Nos. 8 to

13, it has been held as follows:

W.P.(C) No.21717 of 2022

8. We find that the interference in the order of punishment by the Tribunal as affirmed by the High Court suffers from patent error. The power of judicial review is confined to the decision - making process. The power of judicial review conferred on the constitutional court or on the Tribunal is not that of an appellate authority.

9. In State of Andhra Pradesh & Ors. v. S. Sree Rama Rao (AIR 1963 SC 1723), a three Judge Bench of this Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under:

"7. ...The High Court is not constituted in a proceeding under Art.226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Art.226 to review the evidence and to arrive at an independent finding on the evidence...."

10. In B.C. Chaturvedi v. Union of India & Ors. ((1995) 6 SCC 749), again, a three Judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the W.P.(C) No.21717 of 2022

decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court / Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under:

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court / Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge.

The Court / Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court / Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of W.P.(C) No.21717 of 2022

inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court / Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co - extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court / Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."

11.In High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil & Anr. ((2000) 1 SCC 416), this Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising jurisdiction under Art.226 of the Constitution. It was held as under:

"16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative / disciplinary authority of the High Court.

Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Art.226 of the W.P.(C) No.21717 of 2022

Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Art.226 of the Constitution."

12. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya ((2011) 4 SCC

584), this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under:

"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds W.P.(C) No.21717 of 2022

for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B. C. Chaturvedi vs. Union of India - 1995 (6) SCC 749, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463, and Bank of India vs. Degala Suryanarayana - 1999 (5) SCC 762, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC 416).

xxxx xxxx xxxx

10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceeding invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry.

An employee who allows the findings in the enquiry and the W.P.(C) No.21717 of 2022

punishment by the disciplinary authority to attain finality by non - challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him."

13. In another judgment reported as Union of India v. P Gunasekaran((2015) 2 SCC 610), this Court held that while reappreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings:(SCC p.617, para 13)

"13. Under Art.226/227 of the Constitution of India, the High Court shall not:

(i) re - appreciate 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."

11. The principles that emerge from the conclusive pronouncements

of the Hon'ble Supreme Court can be encapsulated thus:

a) The Power of judicial review conferred on this Court is not an appeal W.P.(C) No.21717 of 2022

from a decision but a review of the manner in which the decision is made.

b) The Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion that the authority reaches is necessarily correct in the eyes of the court.

c) The Writ Court, in its power of judicial review, does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence.

d) The Writ Court is concerned with determining whether the inquiry is held by an authority competent in that behalf, and according to the procedure prescribed, and whether the rules of natural justice have been strictly adhered to.

e) Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge.

f) It is not the function of the Writ Court in a petition for a writ under Art.226 to review the evidence and to arrive at an independent finding on the evidence

g) Where there is some evidence that the authority entrusted with the duty to hold the enquiry has accepted, and which evidence may reasonably support the conclusion that the delinquent officer is W.P.(C) No.21717 of 2022

guilty of the charge, the writ court shall stay aloof (aloof) and refuse to interfere.

h) If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries.

i) The Court will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The courts can interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.

j) The writ court can interfere with the quantum of punishment if it shocks the conscience of the court, applying the principles of Wednesbury unreasonableness.

12. Applying the principles laid down by the Apex Court in the facts

and circumstances of the instant case, I am of the considered opinion that

the petitioner has not made out any case for interference. The enquiry has

been conducted by an authority which is competent to enquire into the

charges. The disciplinary proceedings have been conducted in strict

adherence to the procedure prescribed and in full compliance with the

principles of natural justice. As there are ample materials to come to the W.P.(C) No.21717 of 2022

conclusion that the petitioner had left the Court after lunch without securing

leave and that he was absent all through the rest of the day, it cannot be

said that the decision of the authorities below are arbitrary or capricious. I

cannot accept the contention that the conclusion of the authorities below are

such that no reasonable person, conversant with the facts would arrive at

and hence perverse. The punishment of barring one increment due on

7/2021 with cumulative effect cannot be said to be of such a nature that it

would shock the conscience of the Court. It is commensurate with the gravity

of the allegations proved against the petitioner, who was at the relevant point

of time, working as a Bench Clerk in the Additional District Court.

In that view of the matter, I find no reason to entertain this writ

Petition. This writ petition will stand dismissed.

There will be no order as to costs.

Sd/-

RAJA VIJAYARAGHAVAN V, JUDGE

IAP W.P.(C) No.21717 of 2022

APPENDIX OF WP(C) 21717/2022

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF THE OFFICIAL MEMORANDUM BEARING NO.01/2017/SHR DATED 26.08.2017 ISSUED BY THE SHERISTADAR FOR THE DISTRICT JUDGE, ALAPPUZHA.

Exhibit P2 TRUE COPY OF THE ENQUIRY REPORT DATED 09.07.2018 BY SRI.S.K.ANILKUMAR, SUB JUDGE, ALAPPUZHA.

Exhibit P3 TRUE COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS BEARING NO.C-6116/2017 DATED 08.08.2018 ISSUED BY THE DISTRICT JUDGE, ALAPPUZHA.

Exhibit P4 TRUE COPY OF THE FORMAL ENQUIRY REPORT DATED 30.11.2018 SUBMITTED BY SRI. D. SUDHEER, SUB JUDGE, CHENGANNUR.

Exhibit P5 TRUE COPY OF THE ORDER NO.C-6116/2017 DATED 02.02.2019 ISSUED BY THE DISTRICT JUDGE, ALAPPUZHA.

Exhibit P6 TRUE COPY OF THE ORDER NO.1-1-29974/19 & APPEAL NO.4/19 ISSUED BY THE REGISTRAR (SUBORDINATE JUDICIARY), HIGH COURT OF KERALA.

Exhibit P7 TRUE COPY OF THE ORDER NO.C-6166/2017 DATED 30.01.2020 ISSUED BY THE DISTRICT JUDGE, ALAPPUZHA.

Exhibit P8 TRUE COPY OF THE ORDER NO.C-6116/2017 DATED 19.02.2020 ISSUED BY THE DISTRICT JUDGE, ALAPPUZHA.

W.P.(C) No.21717 of 2022

Exhibit P9 TRUE COPY OF THE NO.C- ORDER NO.C-6116/2017 DATED 12.03.2020 PASSED BY THE DISTRICT JUDGE, ALAPPUZHA.

Exhibit P10 TRUE COPY OF THE REPLY DATED 12.05.2020 SUBMITTED BY THE PETITIONER TO EXT.P9 BEFORE THE DISTRICT JUDGE, ALAPPUZHA.

Exhibit P11 TRUE COPY OF THE ORDER NO.C-6116/2017 DATED 20.10.2020 PASSED BY THE DISTRICT JUDGE, ALAPPUZHA.

Exhibit P12 TRUE COPY OF THE APPEAL DATED 25.11.2020 SUBMITTED BY THE PETITIONER.

Exhibit P13 TRUE COPY OF THE ORDER NO.1-1-5583/21 & APPEAL NO.1/2021 DATED 15.11.2021 ISSUED BY THE REGISTRAR(DISTRICT JUDICIARY), HIGH COURT OF KERALA.

RESPONDENTS' EXHIBITS:

NIL