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2018 Supreme(Ker) 621
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. ASHA, J.
T.A. Abdul Azeez - Petitioner
Vs.
Union of India & Ors. - Respondents
W.P(C) No. 3288 of 2017-I
Decided On : 05-10-2018
Advocate Appeared:
For the Petitioner: Sri. Vijai Mathews
For the Respondents: Sri. K. Anand, Smt. Latha Anand, Sri. N. Nagaresh
Headnote:
Departmental Enquiries - The enquiry contemplated under the Regulation is a full fledged enquiry which is the counter part of a regular trial in which the witnesses have to be examined in support of the allegations, opportunity has to be given to the delinquent officer to cross examine them and to lead evidence in his defense.
Statement of facts:
Challenged Exhibit P21 order on the ground that the entire proceedings in the enquiry are vitiated for non-compliance of the principles of natural justice and procedural irregularities in conducting the enquiry. The case of the petitioner was that the enquiry was conducted in violation of the procedure prescribed in the regulations and in violation of the principles of natural justice, charges were vague and without any clear allegation which constituted a misconduct; it is also argued that the punishment awarded to him is shockingly disproportionate; without specifying the actual words used in the memo of charge or even in the evidence, without examining the complainant at whose instance the proceedings were initiated/before whom the alleged incident occurred-Abusing, physically assaulting or intimidating a superior officer in a work place are grave misconducts which warrant highest level of punishment and also the petitioner had tendered unconditional apology as per Exhibit R3(b).
Finding of the Court:
" The manner in which the entire inquiry is conducted starting with the examination of the delinquent, the examination of witnesses by the presenting officer in the absence of the delinquent employee or the defence assistant, conducting cross examination before chief examination, etc. would reveal that the entire proceedings leading to the inquiry report were conducted in violation of the principles of natural justice.
" The enquiry officer as well as the disciplinary and appellate authorities relied on Ext.R3(c) statement as an admission of guilt, despite the fact that the petitioner has explained the circumstances behind it in the inquiry. Even if the statement itself is taken as such, irrespective of his explanation before the inquiry officer, that cannot be termed as an admission of the charges alleged.
" The Dock master, who forwarded Ext.P2 note based on which the petitioner was placed under suspension and disciplinary proceedings were initiated, is not examined, which has definitely caused prejudice to the petitioner. The charge is of insubordination by shouting and abusing the Dock master and causing dislocation to his office. The best witness who was to be examined was the dock master himself, especially in view of the explanations submitted by the petitioner.
" The manner in which the enquiry was conducted as well as the refusal to examine the complainant the Dock Master, has caused serious prejudice to the petitioner. The findings of guilt based on such an enquiry and the orders passed based on that are therefore arbitrary and unreasonable.
Result: Disposed of
The petitioner, who was working as Assistant (Ele.) in Electrical Division in Mechanical Engineering Department of the Cochin Port Trust is aggrieved by the order removing him from service.
2. The case of the petitioner is that on 5.1.2015 the dock master directed him to meet him in connection with his application for nonrefundable advance from his General Provident Fund (GPF) account; accordingly he went there when he was harassed and humiliated by the dock master refusing to forward his application for GPF advance; the dock master asked him to bring his wife in order to sanction the advance, saying that the wives of other staff used to meet him; on account of the harassment and humiliation, he warned the dock master that he would make a complaint against him and thereupon the dock master shouted at him and openly declared that he would teach him a lesson, calling him a drunkard and drug addict. Immediately after the said incident on 05.01.2015, the dock master forwarded Ext.P2 note to the Deputy Conservator, Cochin Port Trust requesting to initiate disciplinary action against the petitioner stating that the petitioner came to his cabin at about 11 a.m.; shouted at him using abusive language for the reason that his application for withdrawal of Provident Fund amount was not accepted by the office; the application did not comply with the required regulations. He requested to initiate disciplinary action against the petitioner pointing out that disciplinary action was taken against him in 2011 under Regulation 3(1A) and (1C) of Cochin Port Employees [CPE] (Conduct) Rules, 1946. Based on that note, the petitioner was placed under suspension as per Ext.P3 order issued on 07.01.2015. The suspension was revoked thereafter as per Ext.P4 order issued on 13.01.2015. As per Ext.P5 order dated 23.01.2015, the petitioner was transferred and posted in the Deputy C.M.E (Ele.) Division. Articles of charges along with statement of imputation was issued thereafter as per Ext.P6 memorandum dated 29.01.2015 along with the list of documents and list of witnesses informing the petitioner the proposal to hold an enquiry against him under Regulation 12 of the CPE (Classification, Control & Appeal) Regulations, 1964. The petitioner was asked to submit his written statement of defence and also to inform whether he desired to be heard in person. The charge alleged against him was that he, while working at Dock Master's Division, Marine Department of the Cochin Port Trust, had shown serious insubordination to the superior officer Sri P.A. Abdul Azeez while on duty on 05.01.2015 at about 11 a.m. by trespassing into dock master's cabin and misbehaved to the Dock Master shouting, using abusive language and openly threatening. It was stated that the dock master had as per note dated 05.01.2015 requested to take necessary disciplinary action against the petitioner. It was further stated that the petitioner had submitted an application for GPF Non Refundable Advance (NRA) of an amount of Rs.9,000/- on 31.12.2014 when the balance at his credit in his account on the date of application was only Rs.12,150/-. It was stated that since the petitioner was one among the employees in the habit of taking GPF NRA without sufficient amount at credit and processing of such applications caused dislocation to the office, he was asked to meet the dock master; when he met the dock master within 2 days, he was informed about the inability to grant his request as it did not comply with the required regulations and he was advised to meet the manager of the section who dealt with the application; however on 5.1.2015 the petitioner without any provocation trespassed into the dock master's cabin and misbehaved to the Dock Master and has shown serious insubordination to the superior officer in a manner unbecoming of an employee of the Board and caused dislocation of work in the dock master's office. It was alleged that the petitioner has thus contravened sub regulations 1(
