State of Kerala Vs. Varghese Issac - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 19TH DAY OF DECEMBER 2012 28TH AGRAHAYANA 193 WA.No. 2367 of 2009 ( ) IN WPC/27662/2006 ------------------------------------------ AGAINST THE JUDGMENT IN WPC.27662/2006 DATED 07 08-2009 --------------- APPELLANTS/RESPONDENTS IN WPC:: ------------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM.

2. THE 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 SENIOR GOVERNMENT PLEADER SRI.P.I.DAVIS RESPONDENT/PETITIONER IN WPC:: ------------------------------- VARGHESE ISSAC, MARACHERIL HOUSE, PAZHANGANAD, KIZHAKKAMBALAM P.O. ERNAKULAM DISTRICT. BY ADV. SRI.MILLU DANDAPANI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK MANJULA CHELLUR, C.J & A.M.SHAFFIQUE, J.

---------------------------------------------------- W.A. No. 2367 of 2009 --------------------------------------------------- Dated this the 19th day of December, 2012 JUDGMENT

Shaffique, J.

The respondents in the writ petition are the appellants. The writ petition is filed by the first respondent herein challenging an order of dismissal pursuant to an enquiry conducted by the department against him for certain misconducts.

2. The facts involved in the case disclose that the petitioner was issued with a memo of charges dated 4.7.2003 alleging that while holding the post as Circle of Inspector (Excise), under suspension, petitioner committed serious misconducts by openly associating with known suspects of abkari crimes.

3. The allegation is that the petitioner travelled in the same car with two notorious suspects and were caught by the police while chasing as a member of their team in a pursuit against the police party. The police party were in civilian dress and while they were proceeding in a car, the said two suspects chased the police party in two cars and confronted them. It was later known that the persons in the car were Excise Officers. The main complaint was that the W.A. No. 2367 o”

2. petitioner was associated with such criminals and hence, memo of charges were issued to him.

4. Though the enquiry officer did not find any substantial involvement of the petitioner, by Ext.P6 order passed by the Commissioner of Excise, it is found that a deterrent punishment is required taking into consideration the association of a departmental official with abkari criminals and it will not be in the interest of the Excise Department to have such officers in the service. Accordingly, the petitioner was dismissed from the civil service of the State Government. The petitioner preferred an appeal to the Government and the Government by Ext.P8 confirmed the order by dismissing the appeal. He filed a review petition, which was also dismissed.

5. In the writ petition it was inter alia contended by the petitioner that he was not at all involved in the chasing of the car as he has only obtained a lift from Babuji one of the alleged suspects. According to him Babuji was not involved in any such excise offence and he had known him personally and while traveling in his car, Babuji received a call from the other alleged suspect China Sunil who complained to Babuji that certain persons in a private car was taking video of their hotel and wanted to verify who they were. So both of them decided to chase the said car and ascertain the identity of persons inside the said private car. On knowing about the above W.A. No. 2367 o”

3. incident, according to the petitioner, he informed the local police who requested him to see that the said vehicle does not move away. Accordingly, they intercepted the private car and only when the person inside the private car came out, petitioner identified the said person as an officer of the Central Excise and he did not say anything to the said officers. There was exchange of words between the officers and China Sunil. According to him, this was the only incident which does involve any serious misconduct and therefore his actions does not call for any departmental proceedings and further, the punishment imposed was grossly disproportionate to the proved charges.

6. The further contention was that as per the enquiry report the proved charge was only the association of the petitioner with the alleged suspects. A stray incident like the one projected should not be taken as a reason for dismissal from service especially when the petitioner was involved in meritorious service and had detected several crimes during his tenure.

7. Learned Single Judge after considering the matter in detail had come to a finding that the charges proved at best entitled the petitioner only for penalty as contemplated under Rule 11(1) (i) to (v A) of the Kerala Civil Services (Classification, Control and Appeal) Rules 1960 (hereinafter referred as the Rules) and held W.A. No. 2367 o”

4. that no major penalty was warranted. The learned Single Judge also found that punishment imposed was shockingly disproportionate to the charges proved in the light of the judgments of the Supreme Court in Ex. - Constable Ram Vir Singh vs Union of India and others [(2009) 3 SCC 97.and Life Insurance Corporation of India vs R.Suresh [(2008)11 SCC 319]. Hence the learned Single Judge set aside the order of punishment and directed the Government to take a fresh decision on the punishment in accordance with the observation and findings of the learned Single Judge. The said judgment is impugned in the appeal.

8. The learned Government Pleader placed reliance on the memo of charges, the report of the enquiry officer and the findings of the disciplinary authority and contended that as far as an Excise Officer is concerned he has to maintain absolute integrity in his work and if he gets associated with persons involved in abkari crimes, there is always an opportunity of such abkari offenders escaping the law enforcement. Therefore the mere association of the petitioner with such abkari offenders is enough for imposing a major punishment including dismissal from service. It is argued by the learned Government Pleader that even going by the records, China Sunil and Babuji were involved in abkari offences and when it is clearly found that and it is an admitted fact that the petitioner was associated W.A. No. 2367 o”

5. with them and even went to the extent of chasing another vehicle in which excise officials were travelling, his involvement with such unscrupulous elements was more than what is actually required to be proved. The said fact therefore by itself would indicate that the petitioner is not a person who deserves to be in the department and therefore the Commissioner of Excise was justified in passing Ext.P6 order of dismissal which was confirmed by the Government by way of Exts.P8 and P9.

9. However, it was argued by the learned senior counsel Smt. Sumathy Dandapani appearing for the respondent that a stray incident of association with a person by name Babuji cannot result in dismissal of a person from the service especially when he had a meritorious service during his tenure as he was involved in detecting several crimes while in office. According to the learned senior counsel the facts of the case itself will disclose that the petitioner was only traveling in the car of Babuji and he had no connection with China Sunil. Babuji was a person known to him who had offered a lift and it was the decision of Babuji and China Sunil to chase the private car whom they thought were certain anti-social elements. When the petitioner was told about the same by Babuji, as a lawful officer he had informed the matter to the police which will be evident from the SHD entry maintained in the police station. After the vehicle was W.A. No. 2367 o”

6. intercepted, the petitioner did not make any move at all. He had only witnessed the incident. He did not participate in any exchange of words. It was immediately known that they were excise officials. According to the learned counsel even the enquiry officer did not find that the petitioner was involved in any overt act which could have caused any embarrassment to the department. The only material is that the petitioner was travelling in the vehicle of Babuji and it was not on account of any long association but he was only taking a lift. In the said circumstances the learned senior counsel contends that even when the enquiry officer in Ext.P5 does not indicate that the charges against the petitioner are proved, it was wrong on the part of the Commissioner to have issued Ext.P6 order dismissing him from office alleging association with abkari suspects.

10. The scope of judicial review in respect of departmental proceedings are of a limited nature. This court can interfere in departmental proceedings only if there is any violation of natural justice or if the findings of the disciplinary authority are so perverse or illegal or in a case where the punishment imposed is shockingly disproportionate to the proved charges.

11. The learned single judge having considered the matter in detail opined that the proved charges can only amount to a minor penalty that would come within Rule 11(1) (i) to (vA) of the Rules. W.A. No. 2367 o”

7. 12. It is argued by the learned Government Pleader that as far as the excise department is concerned the officers are expected to keep absolute integrity in their work which also includes dissociating themselves from persons involved in abkari offences. Such instances would become counter productive as officers who are to prevent abkari offences when they associate with such people in a friendly manner will be a threat to the department as a whole. Therefore it is not a case where though such charges are not absolutely established that a punishment should not follow, as even on the admitted facts, like association with at least one suspect in a crime may affect the department as a whole.

13. The only question to be considered is whether dismissal from service is warranted under the circumstances or not. On an overall consideration of factual circumstances involved in the matter we have no hesitation to conclude that the Commissioner of Excise was justified in opining that the officers of the department are to maintain absolute integrity in their work which affects even the excise force as such, especially when there are allegations against the department getting involved with abkari offenders and such practices can be stopped only if strong action is taken against such officers. Similar to a police force, officers of excise department has also to remain as a disciplined force and while in service they get W.A. No. 2367 o”

8. involved in very important duties to enforce the law. The association of officers with such abkari offenders will definitely affect the morale of the department. Every officer should ensure that they do not get involved with such persons as there is every chance of occurrence of intelligence lapse.

14. Since the learned Single Judge had already opined that the punishment imposed is shockingly disproportionate to the proved charges after taking into consideration the factual circumstances as well as the law on the point, while exercising appellate jurisdiction we do not intend to interfere with such findings as long as it is not shown to be perverse. The law on the point is very clear.

15. The scope of judicial review has been considered by the Supreme Court in Administrator, Union Territory of Dadra and Nagar Haveli v. Gulabhia M. Lad, (2010) 5 SCC 77.wherein the Supreme Court reviewed various other judgments and held as under: "9. The scope of judicial review in disciplinary matters has come up for consideration before this Court time and again. It is worthwhile to refer to some of these decisions. In B.C. Chaturvedi v. Union of India3 this Court held: (SCC p. 762, para 18). W.A. No. 2367 o”

9. "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." 10. In DG, RPF v. Sai Babu4, this Court stated the legal position thus: (SCC p. 334, para

6) "6. ... Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved W.A. No. 2367 o”

10. against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works." 11. In United Commercial Bank v. P.C. Kakkar5, this Court on review of a long line of cases and the principles of judicial review of administrative action under English law summarised the legal position in the following words: (SCC p. 376, paras 11-13) "11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case6 the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.

12. To put it differently, unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment W.A. No. 2367 o”

11. by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed.

13. In the case at hand the High Court did not record any reason as to how and why it found the punishment shockingly disproportionate. Even there is no discussion on this aspect. The only discernible reason was the punishment awarded in M.L. Keshwani case. As was observed by this Court in Balbir Chand v. Food Corporation of India Ltd.7 even if a co-delinquent is given lesser punishment it cannot be a ground for interference. Even such a plea was not available to be given credence as the allegations were contextually different." 12. In Union of India v. S.S. Ahluwalia8, this Court reiterated the legal position as follows: (SCC p. 261, para

8) "8. ... The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved." 13. In State of Meghalaya v. Mecken Singh N. Marak9 this Court stated: (SCC p. 584, para

14) "14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with W.A. No. 2367 o”

12. the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice." 14. The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the W.A. No. 2367 o”

13. delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts". In the above circumstances, we do not think that any ground exists to interfere with the judgment of the learned Single judge. The writ appeal is hence dismissed. (MANJULA CHELLUR, CHIEF JUSTICE) (A.M.SHAFFIQUE, JUDGE) rka