Kerala High Court
A.Anzar vs Kerala Minerals And Metals Ltd on 5 February, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
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W.A.No.2251 of 2016 2025:KER:9051
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946
WA NO. 2251 OF 2016
AGAINST THE JUDGMENT DATED 12.11.2015 IN WPC NO.11573 OF
2006 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
A.ANZAR
SAFETY OFFICER, KERALA MINERALS AND METALS
LTD,SANKARAMANGALAM, CHAVARA, KOLLAM - 691
583,RESIDING AT RAJATHAM, BHARATH NAGAR,KURIKKODE
P.O., KOLLAM.
BY ADVS.
SRI.S.RAMESH
SRI.NAVEEN.T
SMT.POOJA SURENDRAN
RESPONDENTS/RESPONDENTS:
1 KERALA MINERALS AND METALS LTD.
SANKARAMANGALAM, CHAVARA - 691 583,KOLLAM, REPRESENTED
BY ITS MANAGING DIRECTOR.
2 THE MANAGING DIRECTOR
KERALA MINERALS AND METALS LTD,SANKARAMANGALAM,
CHAVARA - 691 583,KOLLAM.
3 THE JOINT GENERAL MANAGER (P&A)
KERALA MINERALS AND METALS LTD,SANKARAMANGALAM,
CHAVARA - 691 583, KOLLAM.
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4 SRI.A.N.KUTTAN
ADVOCATE, AMRUTHA, SASTHA TEMPLE ROAD,KALOOR, KOCHI -
682 017 (ENQUIRY OFFICER).
5 K.M.M.TITANIUM EMPLOYEES UNION (CITU)
REPRESENTED BY ITS GENERAL SECRETARY,SUSEELA GOPALAN
BHAVAN, TITANIUM JUNCTION,SANKARAMANGALAM, CHAVARA,
KOLLAM - 691 583.
6 KERALA LOK AYUKTA
REPRESENTED BY ITS REGISTRAR, VIKAS BHAVAN
P.O.,THIRUVANANTHAPURAM - 695 033.
BY ADVS.
SMT.LATHA ANAND STANDING COUNSEL FOR KMML
SRI.M.N.RADHAKRISHNA MENON
SMT. VINITHA B, GOVERNMENT PLEADER
THIS WRIT APPEAL WAS FINALLY HEARD ON 17.01.2025, THE COURT
ON 5.2.2025 PASSED THE FOLLOWING:
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JUDGMENT
Muralee Krishna, J.
The appellant who is the petitioner in W.P.(C)No.11573 of
2006 filed this writ appeal under Section 5(i) of the Kerala High
Court Act, 1958, challenging the impugned judgment dated
12.11.2015 passed by the learned Single Judge whereby the writ
petition filed by the appellant under Article 226 of the Constitution
of India was partly allowed declaring that the proceedings in
complaint No.562 of 2005 [sic: complaint No.209 of 2006] before
the Lok Ayukta cannot be continued, but, however, upholding the
punishment imposed on the appellant by the disciplinary
authority.
2. The appellant, while working as Sub Inspector in the
Border Security Force was appointed on deputation as a Security
Officer in the 1st respondent Company Kerala Minerals and Metals
Ltd ('Company' in short) on 03.03.1983. He was permanently
absorbed as a Security Officer on 03.03.1985. Later he was
promoted to the post of Deputy Manager(Security). While he was
holding that post, on 03.09.2004, missing of 200 bags of cement
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sent from Malabar Cements to the Company was reported by the
Duty Officer, being informed to him by the Assistant Stores Officer.
The Security Guard on duty at the gate, though initially told a
worker in the store and the Assistant Stores Officer that he had
seen the unloading of cement in the godown of Vijaya
Constructions situated within the premises of the company, later
gave Ext.P3 statement dated 03.09.2004 to the Duty Officer that
the lorry containing cement bag was sent outside the company
premises on the basis of telephonic instructions given by the
appellant.
2.1. The 3rd respondent Joint General Manager then
suspended the appellant from service as per Ext.P5 order dated
04.09.2004 and issued Ext.P6 charge memo dated 15.09.2004.
Thereafter, an enquiry was initiated against the appellant by
appointing the 4th respondent as the Inquiry Officer. To Ext.P6
charge memo, the appellant filed Ext.P7 explanation
dated 05.10.2004. Apprehending bias from the enquiry office due
to previous enmity between the appellant and the Inquiry Officer,
he filed Ext.P8 representation dated 18.10.2004 before the 4th
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respondent. But overruling the objections raised in Ext.P8
representation, the 3rd respondent issued Ext.P9 order dated
27.10.2004. Again, the appellant filed Ext.P10 representation
dated 06.11.2004 before the 3rd respondent raising the very same
objections, but informing that he will be cooperating with the
enquiry. The 4th respondent proceeded with the enquiry and
submitted Ext.P12 enquiry report dated 05.08.2005, finding all the
charges against the appellant. Against the findings in Ext.P12
enquiry report, the appellant submitted Ext.P14 statement dated
16.05.2005. However, without considering the reply submitted by
him, the 2nd respondent issued Ext.P15 order dated 26.09.2005
discharging the appellant from service.
2.2. Thereafter, the appellant submitted Ext.P16 appeal
dated 09.10.2005 to the 1st respondent Company. He submitted
another representation dated 21.10.2005 to supplement Ext.P16
appeal. After considering that representation, on the basis of the
decision of the Board of Directors of the Company, the 2 nd
respondent issued Ext.P17 order dated 16.01.2006, appointing
the appellant as Safety Officer in the Company. While the
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appellant was working as a Safety Officer, Ext.P18 Complaint
No.209 of 2006 was filed by the 5th respondent before the Lok
Ayukta against his fresh appointment. The appellant was not made
a party in the said complaint. But the Lok Ayukta by Ext.P19 order
dated 15.03.2006 deleted the 2nd respondent in the complaint, the
Minister for Industries, from the array of parties and directed to
implead the appellant also as a party to the proceedings before
the Lok Ayukta. Thereafter, the appellant approached this Court
by filing W.P.(C)No.11573 of 2006 under Article 226 of the
Constitution of India, seeking a writ of certiorari to quash Exts.P9,
P12, P15 and P19; a writ of mandamus commanding respondents
1 to 3 to reinstate the appellant in service as Deputy Manager
(Security) with back wages and other consequential reliefs. After
considering the pleadings and materials on records and the rival
contentions raised by the parties, the learned Single Judge partly
allowed the writ petition as said above.
3. Heard the learned counsel for the appellant, the learned
Standing Counsel for respondents 1 to 3, the learned counsels for
respondents 5 and 6 and the learned Government Pleader.
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4. The learned counsel for the appellant argued that the
appellant had raised objection against the appointment of the 4 th
respondent as Inquiry Officer, since the 4th respondent had enmity
against him for more than one reason. Exts.P8 and P10
representations filed by him before the 3rd respondent clearly
allege the reason for said enmity. Hence, Ext.P12 enquiry report
submitted by the 4th respondent is vitiated by bias. The learned
counsel relied on the judgments of the Apex court in
S.Parthasarathi v. State of Andhra Pradesh [(1974) 3 SCC
459], H.V Nirmala v. Karnataka State Financial Corporation
and others [(2008) 7 SCC 639] and Union of India and
others v. Sanjay Jethi and another [(2013) 16 SCC 116] in
support of his contention that in the case of a real likelihood of
bias or apprehension of bias, the enquiry report cannot be
accepted against the delinquent. The learned counsel vehemently
argued that the findings in a domestic enquiry cannot be equated
with the findings in a judicial proceeding. As far as the enquiry
report is concerned the learned counsel submitted that it was
based on a statement given by a Security Guard deputed on the
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gate that the appellant gave telephonic information to him to
permit the lorry loaded with cement to go out without a gate pass,
the Inquiry Officer reached to a finding against the appellant.
However, the enquiry officer failed to verify the veracity of the
telephonic conversation allegedly held between the appellant and
the Security Guard. Therefore, the enquiry was also not properly
conducted.
5. On the other hand, the learned Standing Counsel and the
learned counsel appearing for respondents 5 and 6 argued that
the contention of bias raised by the appellant was properly
considered by the learned Single Judge and found those
contentions as baseless. The evidence adduced by the workers of
the Company was also considered in detail by the learned Single
Judge, though it was unnecessary in view of the findings in the
enquiry report, and found that the appellant has raised untenable
contentions. Therefore, no interference is needed to the impugned
judgment of the learned Single Judge.
6. It is trite that in disciplinary proceedings, the High Court,
by exercising power under Article 226 or 227 of the Constitution
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of India, shall not venture into reappreciation of evidence.
7. In Union of India v. P. Gunasekaran [(2015) 2 SCC
610] the Apex Court in paragraph 13 held thus:
"13. Under Articles 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."
8. In State of Karnataka v. N.Gangaraj [(2020) 3 SCC
423] the Apex Court held that 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. In that case, the Apex Court
found the interference in the order of punishment by the Tribunal
which was affirmed by the High Court as one suffers from patent
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error.
9. In Chatrapal v. State of Uttar Pradesh [AIR 2024 SC
948] the Apex Court by referring to P.Gunasekharan [(2015)
2 SCC 610] reiterated the settled law that ordinarily the findings
recorded by the Inquiry Officer should not be interfered by the
Appellate Authority or by the writ Court and that if the findings of
guilty recorded by the Inquiry Officer is based on perverse finding,
the same can be interfered with.
10. In K. Karunanidhi v. State of Kerala [ILR 2024 (2)
Ker. 475], a Division Bench of this Court by relying on the various
judgments of the Hon'ble Supreme Court including that of
Chatrapal [AIR 2024 SC 948] held that when the Tribunal
correctly analysed the procedure adopted by the Inquiry Officer
and the findings reached therein, the High Court cannot interfere
with the same by exercising supervisory jurisdiction under Article
227 of the Constitution of India.
11. The appellant is challenging the decision of the
disciplinary authority on two grounds. The first one is by
contending that the Inquiry Officer was not impartial or in other
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words he was biased and the second one is that the evidence is
manipulated against him by some other workers who according to
him are the actual culprits. Though it is unnecessary to go through
these contentions in detail in view of the settled law laid down in
the above-referred judgments, we are considering them in brief
so as to ascertain whether there is any illegality in the impugned
judgment.
12. The bias alleged against the Enquiry Officer by the
appellant is also for two reasons, as evident from Exts.P8 and P10
objections filed by him after the appointment of the 4 th
respondent as the Inquiry Officer. The first reason raised by him
was that the Inquiry Officer had previously made illegal demands
for the use of vehicles and it was turned down by him. To prove
that the appellant was in charge of the vehicles at that time he
produced Ext.P11 circular dated 13.11.2021 issued while he was
holding the post of Deputy Manager(Security) authorizing the
Security Officer for allotment of the car. At that time there was
no post of Deputy Manager(Security) and hence he was holding
the post of Security Officer. However, the mere production of such
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a document alone is not sufficient to say that the 4 th respondent
made any illegal demand for a vehicle to the appellant and he
turned down the same. No evidence to that effect was produced
by him either along with Exts.P8 and P10 objections or during the
enquiry before the 4th respondent. He had not raised any such
complaints to his superiors about the illegal demand for a vehicle
made by the 4th respondent.
13. The second reason to apprehend bias stated by the
appellant is that previously the very same Inquiry Officer had
conducted another enquiry wherein the appellant appeared as a
witness and in that enquiry the 4th respondent made some
observations against the appellant. But this contention is also not
tenable for the reason that the details of that enquiry was not
produced by the appellant before the learned Single Judge to
substantiate his apprehension of bias. Moreover, Ext.P12 enquiry
report does not show that the 4th respondent ever prevented the
appellant from adducing necessary evidence or raising his defence
in the enquiry proceedings. The appellant has no claim that the 4 th
respondent conducted the enquiry violating natural justice to the
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appellant. As observed by the learned Single Judge, the duty of
the 4th respondent is only to finalise the enquiry proceedings by
following the procedure established by law and place the enquiry
report before the disciplinary authority with his findings therein. It
is the disciplinary authority that has to take a decision on the basis
of the enquiry report and the appellant had the opportunity to
contradict the findings in an enquiry report with reasons, if the
enquiry report is suffering from any illegal and unreasonable
findings due to the bias if any nurtured by the Enquiry Officer. The
appellant has no case that the reasoning arrived at by the 4 th
respondent is incorrect when assessed from the evidence before
him. The contention of the appellant is that the Security Guard at
the gate namely, Mr.Madhavan as well as the Assistant Stores
Officer Mr.Shankaran, together created false evidence against
him. He has no case that the 4th respondent connived with those
persons. Hence, the defence of bias raised by the appellant against
the 4th respondent has no merits.
14. As far as the evidence adduced before the Inquiry Officer
is concerned, the learned Single Judge made a detailed analysis
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in the impugned judgment, though the same was unwarranted in
proceedings under Article 226 of the Constitution of India, to
ascertain whether the disciplinary authority has come to the
conclusion of guilt of the appellant even in the absence of
acceptable evidence. After elaborate consideration of the evidence
tendered by the witnesses and the defence taken by the appellant,
the learned Single Judge reached a finding that there is no reason
to interfere with the enquiry report and the findings of the
disciplinary authority.
15. As far as the contention of the appellant regarding his
acquittal in the criminal case is concerned, the learned Single
Judge found that the acquittal of the appellant, in that case, was
due to the withdrawal of the case by the prosecution and it was
not an honourable acquittal and he cannot claim the benefit of the
order of acquittal passed by the learned Magistrate.
16. It is trite that mere acquittal by a Criminal Court will not
confer on the employee a right to claim any benefit, including
reinstatement. The Apex Court in Ram Lal v. State of Rajasthan
[AIR 2024 SCC 637] considered the relevance of acquittal by a
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Criminal Court in a departmental disciplinary proceeding and by
relying on the previous judgments on the point held that if the
charges in the departmental enquiry and the Criminal Court are
identical or similar, and if the evidence, witnesses and
circumstances are one and the same, then the matter acquires a
different dimension. If the Court in judicial review concludes that
the acquittal in the criminal proceedings was after full
consideration of the prosecution evidence and that the prosecution
miserably failed to prove the charge, the Court in judicial review
can grant a redress in certain circumstances. The court will be
entitled to exercise its discretion and grant relief, if it concludes
that allowing the findings in the disciplinary proceedings to stand
will be unjust, unfair and oppressive. Each case will turn on its
own facts.
17. As said above, the criminal case against the appellant
was ended, being withdrawn by the Government and it was not
ended by an acquittal after trial. Therefore, it cannot be held that
the appellant was acquitted in the criminal proceedings after full
consideration of the prosecution evidence. it was not an
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honourable acquittal. In such circumstances, the learned Single
Judge cannot be found fault in finding that the appellant cannot
claim benefit of his acquittal in the criminal case.
18. As far as the authority of Lok Ayukta to proceed with
the complaint is concerned, the learned Single Judge found that
Lok Ayukta has no authority to proceed with the said complaint.
The said finding of the learned Single Judge was not challenged
by the respondents.
On re-appreciating the pleadings and materials on record
and also hearing the submissions made at the Bar, we find no
sufficient ground to interfere with the findings of the learned
Single Judge. Therefore, the appeal is liable to be dismissed.
In the result, the appeal stands dismissed.
Sd/-
ANIL K.NARENDRAN, JUDGE
Sd/-
Sks MURALEE KRISHNA S., JUDGE
