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Kerala Public Service Commission Vs. J. John and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1979)ILLJ490Ker
AppellantKerala Public Service Commission
RespondentJ. John and ors.
Cases ReferredUnion of India v. H.C. Goel
Excerpt:
- - we may as well extract these paragraphs: the enquiry officer further brushed aside the statement of the respondent as well as his witnesses who had corroborated his statement when they said that they did not hear the s......the charge against the 2nd respondent sreedhara panicker and against one other employee, gopi).the enquiry officer in ext. p8 came to the conclusion that there is no evidence to proceed against gopi and accordingly further proceedings against him were dropped.3. the facts necessary to appreciate the charge and the proceedings taken are briefly these: from the room of the secretary of the kerala public service commission, the confidential seal is stated to have been either actually taken by the respondents or allowed to have been taken by someone with the consent or connivance of the respondents. the secretary's room is in the new block of the office of the commission. gopi is the watchman of the new block, and his hours of duty are from 5.15 p.m. to 8.15 a.m. the two respondents are.....
Judgment:

V.P. Gopalan Nambiyar, C.J.

1. The Kerala Public Service Commission has appealed against the decision of a learned Judge of this Court quashing the disciplinary proceedings taken by the Commission against two of its employees and setting aside Ext. PH order of the Chairman directing compulsory retirement from service. Exhibit P8 is the enquiry report of an Under Secretary of the Kerala Public Service Commission who enquired into the charge and found the two officers (respondents 1 and 2) guilty of the charges; and Ext. P3 is the preliminary report of the Vigilance Officer which preceded it.

2. The charge against the respondents was:

That you, Sri J. John, while holding the post of watcher in the office of the Public Service Commission, Trivandrum, have either yourself or in collusion with other watchers on duty and other persons unauthorisedly handled or allowed to be handled the confidential seal of the Secretary, Kerala Public Service Commission, after removing it from the drawer of the table of the Secretary on the night of 19/20-2-1975, presumably with ulterior motives by making or attempting to make an impression of the said seal.

(Similar was the charge against the 2nd respondent Sreedhara Panicker and against one other employee, Gopi).

The enquiry officer in Ext. P8 came to the conclusion that there is no evidence to proceed against Gopi and accordingly further proceedings against him were dropped.

3. The facts necessary to appreciate the charge and the proceedings taken are briefly these: From the room of the Secretary of the Kerala Public Service Commission, the confidential seal is stated to have been either actually taken by the respondents or allowed to have been taken by someone with the consent or connivance of the respondents. The Secretary's room is in the new block of the office of the Commission. Gopi is the watchman of the new block, and his hours of duty are from 5.15 p.m. to 8.15 a.m. The two respondents are watchmen in the old block, their hours of duty, from 5.15 p.m. to 8 a.m. The occurrence is stated to have taken place either in the night of the 19th or on the morning of the 20th February, 1975, as indicated in the charge. We may notice the findings of the enquiry officer. On the 19th February, 1975, the Secretary, left the office at 7 p.m. after locking the seal in the drawer of his table in the new block. Gopi, had reported for duty at 5.15 p.m. that day. The respondents reported at 5.15 p.m. and 'relinquished charge' at 8.45 a.m. on 20-2-1975. Paragraphs 15 and 16 of Ext. P8 report discusses the relevant aspects of the evidence and the conclusions of the enquiry officer. We may as well extract these paragraphs:

15. Issue No. 2: Sri V. Ajithkumar, Assistant, District office of the Public Service Commission, Trivandrum, was examined by me as P.W.3. He noticed the impressions on sealing wax on his table at 10 a.m. on 20-2-75. He is sure that these impressions were not on his table till he left the office at 5.15 p.m. on the previous day, i.e. on 19-2-1975 (page 95). As regards the fact of non-existence of the wax impressions on the table at 5.15 p.m. on 19-2-75 the person who can testify correctly is P.W.(3) and I do not find any reason to disbelieve him. The affixure of the seal would not also have been made after 8 a.m. on 20-2-75 for the following reasons: Sri P.T. Kunjunny, Assistant working in that section (PW6) came to the section before 8 a.m. on 20-2-75 for the purpose of verification of original documents of candidates to be interviewed by the Commission from 10 a.m. that day. Sri A.A. Ajithkumar, Assistant (PW3) came between 8.30 a.m. and 9 a.m. to assist Sri Kunjunny Both of them came early that day in the. usual course of official procedure for work in connection with interview and were doing their duty in the varandah outside their room till 10 a.m. When Sri Kunjunny came to the Section by 8 a.m. the accused officers were in that room. There is no evidence of any other person entering the room between 8 a.m. and 10 a.m. Even if anybody had entered, no unlawful act could have been perpetuated in secret after 8 a.m. as the Assistant or Assistants and several candidates were in the varandah nearby. The statement of PW 4 that the impressions could not have been affixed in the morning of 20-2-1975 as in that case they could be removed without difficulty is also relevant in this context (page 115), In these circumstances the argument made on behalf of the accused that PW2, PW3, PW6 or any other person might have affixed the seal either before 5.15 p.m. on 19-2-1975 or after 8.45 a.m. on 20-2-1975 is found not acceptable. I am inclined to believe that the affixure was made sometime between 5.15 p.m. on 19-2-1975 and 8 a.m. on 20-2-1975.

16. The accused were night watchers on duty in the old block of the Public Service Commission office building. Exhibit P(9) is the extract of the register of handing over charge of the keys of the building by the watchers and chowkidars. It is seen that Sri John and Sreedhara Panicker took charge at 5.15 p.m. on 19-2-1975 and relinquished charge at 8.45 a.m. on 20-2-75. They have admitted that they were entrusted with duty in the old block. From the above facts and circumstances the only conclusion possible is that the said impressions were made during the time when the accused officers were on duty as watchers in the old block between 19/20-2-1975.

In the next paragraph the enquiry officer discussed Issue No. 3 (Issue No. 3 raised the question as to who removed the Secretary's seal or caused or allowed the same to be removed.)

19. Sri Gopi the watcher who was in charge of the new block was examined by me as PW5. He was in charge of the keys of the new block from 5.15 p.m. on 19-2-1975 to 8.45 a.m. on 20-2-1975. According to him he locked the Secretary's room as soon as the Secretary left the room at 5.30 p.m. on 19-2-1975 and opened the room only when the sweepers came on the morning of next day. He has not handed over the keys to anybody, no one came to the office from outside while he was on duty and he did not sleep in the night of 19/20-2-75 (page 125). But according to his statement in the preliminary enquiry he left all the keys of the new block in the enquiry room and slept in the Varandah in front of the new block (Ext. P4 page 33). He was only a provisional employee with just two months of service. He could not have in the ordinary course opened the drawer of the Secretary's table to remove the seal as the key of the drawer was taken by the Secretary to his residence. The other watchers have hot said to have seen him in the old block on 19/20-2-75. So the presumption is that it was not Sri D. Gopi, the watcher of the new block who took the seal to the old block and made impressions of the seal. Nevertheless his statement at the enquiry that he did not sleep, etc. cannot be believed. Evidently he was approached by the accused officers and warned against making any incriminating statements at the oral enquiry.' I particularly noted the anxiety shown by the accused officers in obtaining T.A. from the office for PW5's appearance at the enquiry.

20. Sri John has about 15 years of service and Sri Sreedhara Panicker has about seven years of service in the office of the Public Service Commission. It would not have been difficult for these watchers to find out duplicate keys or other keys for the locks in use in the office. I am inclined to believe that at the instigation of someone and with or without the knowledge of P.W.5, the watcher of the new block, the accused officers had taken the confidential seal of the Secretary after opening the drawer of the table with a false key and that they or someone also made the impressions of the seal on sealing wax on a table in the room in the old block occupied by one of the accused. The accused officers have not been able to disprove this nor give any other satisfactory explanation for the incident. It is, therefore, evident that the accused officers had removed the confidential seal of the Secretary from the drawer of his table and handled it or allowed it to be handled unauthorisedly in the old block.

The enquiry officer noticed the situation of the Secretary's room in the new block, and that of the District Officer Section in the old block on the western side of the record room. After noticing these features and the facts proved, the enquiry officer recorded his finding that it was inconceivable that the chowkidar examined as P.W. 2 who had sealed the record room at 5.15 p.m. could have gone to the District Office Section making impressions of the seal on sealing wax and returned to the new block, giving back the seal to the Secretary by 5.15 p.m. This, according to the enquiry officer, was physically impossible, and inconceivable in the usual course of events. The chowkidar's duty had ended at 5.15 p.m. on 19-2-1975, and commenced only at 8.45 a.m. on 20-2-1975. What was most important, the enquiry officer recorded that there was no evidence at all that the chowkidar was seen in the District Office Section either in the evening of 19-2-1975 or on the morning of 20-2-75. P.W. 3 and P.W. 6, namely, Ajitkumar and Kunjunny, who were busy with their work in connection with the interview till 10 a.m. on 20-2-75 as noticed in paragraph 15, had come to office early on 20th, the one at 8 a.m., and the other between 8-30 and 9 a.m. Both deposed that at the time of their arrival, the respondents were in the District Office room. The witnesses were in the varandah doing preparatory work for an interview which was to be held that day, and they gave evidence that till 10 a.m. no one had entered the District office room. It was on an assessment of these facts, circumstances and evidence, that the enquiry officer recorded his conclusion finding the respondents guilty. That conclusion was accepted by the disciplinary authority in Ext. P11.

4. We have set out the findings of the enquiry officer and the disciplinary authority at some length in view of the learned Judge's conclusion in the judgment under appeal that the finding was based on no evidence at all. It was on this ground that the learned Judge interfered with the disciplinary proceedings and quashed Ext. P11. We regret that we cannot agree with the learned Judge's reasoning or conclusion. We think that the enquiry officer and the disciplinary authority based themselves on an assessment of the proved facts and circumstances and did not go by conjectures. The truth and acceptability, or the sufficiency of the material before them, is not for us to assess or to reassess; nor are we in these proceedings to sit in judgment over the findings or the conclusions of the enquiry officer or the disciplinary authority. The important circumstance which we think should be borne in mind is that the respondents were on the scene at 5.15 p.m. on 19-2-1975 and remained at the scene till 8.45 a.m. on 20-2-75. We have already pointed out the nature of the evidence of P. W. 3 and 6. There was a duty and responsibility, in the circumstances, on the part of the respondents to explain how and in what circumstances the wax impression of the Secretary's seal and the burnt candle happened to be seen on the Section Officer's table in the old block. We are not prepared to say that the conclusion was on no evidence at all. We are further of the view that the learned Judge was wrong in projecting interference under Article. 226.

5. The learned Judge referred to the judgment of the Supreme Court in State of Assam v. Mohan Chandra Kalita A.I.R. 1972 S.C. 2535. We think the case is distinguishable on facts. We shall extract the relevant portion of the judgment of the Supreme Court which will emphasise the crucial aspects of the case:

The enquiry officer after reviewing the evidence on the charge of collecting Garibhara realised that there was a lacuna in that evidence in as much as it did not directly or indirectly connect the respondent with the collections made outside the room where he was distributing compensation moneys. He, therefore, asked himself this question: Can it therefore be said that the S.C.C. who was inside the room does not know of this collection which was made just near the door itself ?' and immediately proceeded to answer it in the affirmative by basing his conclusion on mere conjecture. He said:

On a perusal of the evidence of the above four witnesses I am convinced that what they said was true. I do not believe that these witnesses deposed falsely just to implicate the S.O.C.

The enquiry officer further brushed aside the statement of the respondent as well as his witnesses who had corroborated his statement when they said that they did not hear the S.C.C. asking anybody to collect the Garibhara. Here again he posed the question: 'whose statements then are to be believed, that of the S.O.C. or the prosecuting witnesses ?

This question was also answered in the affirmative again on conjectures.

He said:

On a perusal of all the evidence on record I am convinced beyond reasonable doubt that the statement of the S.O.C. that the allegation is a false and connected one is not true. I see no reason why the villagers will depose falsely against the S.O.C. and I see no reason also' what grudge they will have against him. I am convinced, as I have already said, that the S.O.C. knew of the collection of 'Garibhara' otherwise no person will be so daring as to make the collection near the door itself without the express or implied consent of the S.O.C.

From the evidence recorded by the enquiry officer which we have perused and to which a reference will be made presently, it is clear beyond doubt that none of the witnesses testified to the fact that on 25th September, 1963 or earlier, neither the respondent authorized the collection of Garbhara nor did anyone say that they comlained to him about the collections that were being made outside his room. The enquiry officer recorded evidence on allegations extraneous to the charge such as that certain amounts were being collected as fee to be paid to the respondent, that the respondent had disbursed amounts less than those that were payable to the persons entitled to them and concluded that the respondent must have also authorised the collection of Garibhara. (para 5)

(underlining ours)

It was pointed out by the Supreme Court that the respondent in that case was actually found guilty of a charge not levelled against him and there was no evidence to connect the conclusions with the respondent. It was on these grounds that the Supreme Court sustained the order of the High Court interfering with the finding of the enquiry officer and the disciplinary authority. The position is quite different in the case before us.

6. Counsel for the appellant drew our attention to the recent decision of the Supreme Court in Nand Kishore v. State of Bihar, 1978-11 L.LJ. 89; Paragraphs 18 and 19 of the judgment summarize the relevant principles thus: A.I.R. 1978 S.C. 277

18. Before dealing with the contentions canvassed, we may remind ourselves of the principles, in point, crystallised by judicial decisions. The first of these principles is that disciplinary proceedings before a domestic Tribunal are of a quasi-judicial character; therefore, the minimum requirement of the rules of natural justice is that the Tribunal should arrive at its conclusion on the basis of some evidence, i.e. evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof even in domestic inquiries. As pointed out by this Court in Union of India v. H.C. Goel : (1964)ILLJ38SC , the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules.

19. The second principle, which is a corrollary from the first, is, that if the disciplinary inquiry has been conducted fairly without bias or prediction, in accordance with the relevant disciplinary rules and the Constitutional provisions, the order passed by such authority cannot be interfered with in proceedings under Article 226 of the Constitution, merely on the ground that it was based on evidence which would be insufficient for conviction of the delinquent on the same charge at a criminal trial.

We think that in the instant case, it cannot be said that the finding of guilt was based on no evidence at all. We rather think that there was 'evidential material' with sufficient degree of definiteness which point to the guilt of the delinquent as explained by the Supreme Court in the above decision. In the view that we take, we allow the appeal and set aside the judgment of the learned Judge and direct that O.P. No. 1779 of 1976 will stand dismissed. We make no order as to costs.


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