JUDGMENT
M.R. Hariharan Nair, J.
1. The petitioner – Smt. Lalithambika — was working as Deputy Administrative Officer in the P & A Department of the Indian Rare Earths Ltd. (‘ IRE’ for short) in its Udyogamandal unit as on June, 1995. Her duties included supervision of clearing and forwarding works also. ON 26th June 1995, 8 truck loads of sintex tanks arrived at the IRE premises through a transporting company by name K.T.C. The truck drivers demanded payment at the rate of Rs. 450/- per truck as deviation and unloading charges. Ultimately payment was made by the IRE without her junction at the rate of Rs. 250/- per truck load and receipts obtained. The petitioner felt something fishy in the claim and in the payments. According to her, the K.T.C. was bound to deliver the items at the IRE premises without any such payment, as they had collected the freight charges.
2. The petitioner contacted the K.T.C. over telephone and found that the claim and payment were unauthorised. She raised the matter before her superior officers. When they were disinclined to intervene and to make an enquiry, the trade unions took up the issue and the officers were questioned about the transaction which smelt of corruption. The higher ups did not relish the move. The petitioner was relieved of her duties in the Administration Wing and shifted elsewhere. The petitioner complained against her superiors; but the result was that disciplinary action was initiated against her. In Ext. P6 charge memo the following violations were alleged against her:
“ARTICLE I: Rule 5 (xxiii) of CDA Rules IRE Ltd. Unauthorised communication or disclosure of documents or information relating to the company’s operations and business to any unauthorised person.
In this, you had entered into unauthorised communication with an outside agency on official matters without permission of your superiors.
ARTICLE II: Rule 4(1)(i) read with Rule 5(xxii) of CDA Rules of IRE Ltd. “Every employee of the company shall at all times (i) maintain absolute integrity” and spreading false rumours or giving false information.
In this, you had made allegation of corruption against your superior officers by giving false information.
ARTICLE III: Rule 4(1)(iii) of CDA Rules – “(i) Every employee of the company shall at all times (iii) do nothing which is unbecoming of a public servant”.
In this you attempted to tarnish the image of your superior officer by false statement in your letter. ”
It is to be mentioned here straightaway that the unauthorised communication referred to here was the enquiry that the petitioner allegedly made over telephone to the K.T.C. office as to whether the drivers, who came to delivery the sintex tanks, were authorised by the transporting company to collect any charges from the IRE at the time of delivery and the other two charges are based on submission of Ext. P1 note to her official superior.
3. In the statement of imputation supporting the memo of charges it was also alleged that she made a complaint to the K.T.C. without the permission or sanction of the competent authority and also that she had approached her superior viz. General Manager (Projects) and requested him to take action, which was pursued before the Senior Manager (P & A) offering that proof could be produced within a week. Reference was also made in Ext. P6 to the fact that some of the office bearers of the trade union entered into the cabin of the Senior Manager (P & A) on the same issue and created unpleasant situation and that she had raised allegation of corruption against her superior officers towards the end of March, 1996 alleging that the amount of Rs. 2,000/- paid towards door delivery charges was unnecessary and that the superiors of the petitioner had also a share in it.
4. Pursuant to Ext. P7 written statement, one Jose Bastian was appointed as Enquiry Officer. An elaborate enquiry ensued. He filed Ext. P16 enquiry report on 17.11.1997 stating that all the allegations in the charges stood proved. The matter was considered by the Disciplinary Authoirty and as per Ext. P19, a penalty of withholding of promotion of the petitioner for a period of two years was imposed on 24.4.1998. The petitioner filed Ext. P20 appeal on 21.5.1998. She is aggrieved that the said appeal was dismissed as per Ext. P21 order of the Appellate Authority (CMD of the IRE) and that Ext. P22 review petition filed by her challenging the appellate order was also dismissed as per Ext. P23 through a non-speaking order. The prayer in the Original Petition is to quash Ext.s P16, P19, P21 and P23 aforementioned and to direct that the petitioner be given her due promotion ignoring the punishment imposed through Ext. P19 with effect from the date on which it was recommenced by the D.P.C.
5. The learned counsel for the petitioner submitted that what is evident from the proceedings is only an attempt to victimise the petitioner, who, out of her sense of responsibility and integrity, tried to expose the corruption practised in the IRE which, to her surprise was tried to be hushed up by the higher ups and that the guilty persons were let free and the person who tried to show loyalty to the institution got a punishment. It was also pointed out that there was absolutely no evidence to find that the petitioner’s action in the matter of enquiry with the transporting company or in the matter of bringing up the aspect of corruption to the notice of the superiors would amount to violation of any of the rules. She never complained to the K.T.C. as alleged in the charge and all that she did was to ascertain over telephone as to whether the collection made by the truck drivers was authorised and then to point out the suspicious background in which the amount was paid to the notice of the higher ups. this cannot be taken as acts of communication with outsiders or as acts of insubordination. What is involved is only faithful discharge of the duties of the petitioner with utmost good faith and with all good intentions. It was also pointed out during hearing that arbitrariness in the findings of the Enquiry Officer actually amount to violation of the principles of equality enshrined in Article 14 of the Constitution warranting interference.
6. The stand of the IRE is that it was the petitioner who was behind the uprisal made by the trade union leaders leading to a fuss over the issue and that the correspondence from the K.T.C. calling for details of the payments in questions were also initiated by the petitioner, though she was pulling strings only from behind the scene.
7. One of the aspects high lighted by the learned counsel for the respondent was the limitation of this Court in the matter of judicial review of the impugned orders. It was pointed out based on the decision in The High Court of Judicature at Bombay v. Shashikant S. Patil and Anr. (AIR 2000 S.C. 22) that judicial review is to be performed with great care and with circumspection and that the Court cannot overlook the fact that the departmental authority is the sole Judge of facts. Once the enquiry has been conducted following the rules concerned and with fairness the adequacy or reliability of the evidence relied on by the Enquiring Authority is not a matter that could be canvassed before the High Court through a petition of the present nature.
8. Before proceeding to consider the contentions raised, it is necessary to understand the scope of jurisdiction in the matter of judicial review in such a case. The decision cited by the learned counsel for the respondent arose in a case where the delinquent officer was a Judicial Magistrate. There was an allegation by a complainant before him that he was wrongfully arrested as per a warrant issued by the particular Magistrate; that he was handcuffed and paraded through the locality and that he was kept in the lock up during the night and when he was produced before the Magistrate on the next day in open court, the Magistrate retired to his Chambers and ordered release of the complainant. The grievance was that arrest was manipulated at the behest of the accused in the criminal case through an illegal warrant of arrest, and surreptitiously stage managed.
9. It was a Joint District Judge who enquired into the allegations and he exonerated the Magistrate of the charges. However, the Disciplinary Committee of the High Court consisting of five Judges, after a scrutiny of the report, was not inclined to agree with the findings. Notice was issued to the delinquent to show cause as to why the findings should not be repudiated and major penalty of the dismissal imposed on him. Subsequently the Committee, however, decided to impose punishment of compulsory retirement on the Magistrate.
10. A Division Bench of the High court quashed the order on the judicial side. It was the said decision that was challenged before the Apex Court. Even while holding that the Departmental Authority is the sole Judge of facts and that if there is some legal evidence on which the findings can be based, the adequacy or reliability of the evidence should not be interfered with by the High Court under Article 226 of the Constitution, it was also observed in para 16 that interference with the decision of the departmental authorities would stand permitted under Article 226 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 inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case or if the conclusion reached at by the authority, on the very face of it, is so arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or on grounds very similar to the above. The Court, in exercise of power of judicial review, can always consider whether the enquiry was held by an authority competent to do so and following the procedure prescribed in that behalf under the Rules and also complying with the principles of natural justice. However, if the Enquiry Authority has accepted evidence, which may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding.
11. In State of U.P. v. Harendra Arora and Anr. ((2001) 6 S.C.C. 392 the scope and ambit of applying the principles of natural justice in the matter of departmental enquiry was considered and it was held that non-furnishing of a copy of the report would be material only if it is established that in consequence of such failure the accused was actually prejudiced. The said decision was relied on by the respondent to show that merely because the petitioner called for certain records to be made available or to summon some witnesses and these requests were disallowed, it cannot be a ground to upset the findings of the Enquiry Officer as long as it is not shown that the accused was really prejudiced by such inaction.
12. A.L. Kalra v. The project and Equipment Corporation of India Ltd. (AIR 1984 S.C. 1361) was a case where the court intervened in the result of the disciplinary action. It was found that the disciplinary action was thoroughly arbitrary and violative of Article 14; that the alleged conduct did not actually come within the scope of the term ‘misconduct’ under the relevant rules and that the findings of the Enquiry Officer were unsupported by reasons. It was also held that what, in a given context, would constitute conduct unbecoming of a public servant, to be treated as misconduct, would expose a grey area not amenable to objective evaluation; that where misconduct, when proved, entails penal consequences, it is obligatory on the employer to specify, and if necessary define it, with precision and accuracy, so that interpretation of some incident may not be camouflaged as misconduct and put under the caption “conduct unbecoming of a public servant.” The said decision is also authority for the proposition that an action, per se arbitrary, itself, would deny equality of protection of law and that wherever there is arbitrariness in State action, whether it be of the Legislature or of the Executive or of any other authority, Article 14 would immediately spring into action and strike down such State action.
13. Bearing in mind the above legal principles, I shall first consider the minor contentions raised by the petitioner. In Ext. P14 the petitioner had requested for copies of certain documents. It is alleged that the petitioner is prejudiced by non-supply of copies of the said documents and also in the matter of non-issuing. notice to certain witnesses cited by the petitioner. No provision of the relevant rules of any judicial precedent has been placed before me to show that the Enquiry Officer is bound to issue notice to all witnesses cited by the petitioner and to ensure their presence at the enquiry. Ofcourse, it is open to the delinquent to cite her own witnesses; but then the responsibility for producing those witnesses before the Enquiry Officer lies on her only.
14. As regards the documents made mention of in Ext. P14, it is seen from the enquiry report that the petitioner herself had produced the relevant documents at the later stage of enquiry. What is seen from the report is that out of the various documents mentioned in Ext. P14, item 1, which is the purchase order relating to 14 nos. of sintex tanks, alone was not produced. What is involved here is only the aspect of the necessity for paying certain amounts demanded by the truck driver and hence the purchase order relating to the tanks does not appear to have any direct bearing on the present case. As such it cannot be said that the petitioner was prejudiced by the failure to make available the said record.
15. There is no evidence adduced before the Enquiry Officer to show that the petitioner entered into any correspondence with any outside; not even with the transporting contractor. The proved case, which is also admitted, is that when the demand for payment of a sum of Rs. 3,600/- i.e. at the rate of Rs. 450/- per tank, came from the truck drivers, who arrived at the IRE campus to effect delivery of the sintex tanks and when they presented Ext. P12 series receipts for payment of Rs. 3,600/-, the petitioner enquired over telephone with the K.T.C. as to whether any such payment was authorised. The reply that she got was that there was no such authorisation. If that is so, the demand made through Exts. P12 to P12(k) was certainly unauthorised and the petitioner, as a loyal employee, was fully justified in bringing up the matter before the higher ups. The enquiry made over telephone in this regard cannot at all be characterised as a communication of official matters with outsiders by any stretch of imagination. It is to be mentioned here that even though a sum of Rs. 3600/- was claimed through Exts. P12 to P12(k), what the IRE ultimately paid vide Ext. P12(b) is only at the rate of Rs. 250/- per load.
16. What Rule 11 of the Conduct, Discipline & Appeal Rules of the IRE (for short ‘the CDA Rules’) is only the following:
(a) “No employee shall, except in accordance with any general or special order of the Company or in the performance in good faith of the duties assigned to him, communicate, directly or indirectly, any official document or any part thereof or any information to any officer or other employee, or any other person to whom he is not authorised to communicate such document or information.”
It is obvious from the above that the bar against communication is subject to the exceptions contemplated in the first part of Rule 11(a) itself viz. that in the performance in good faith of the duties assigned to an officer, communication would be perfectly justified. In the instant case, being a responsible officer of the IRE and being in charge of administration including C & F operations, the petitioner had a duty to ensure that the company does not incur any unnecessary expense and that it is not exploited in any manner. Any responsible officer situated in such circumstances would certainly be expected, when faced with an extra ordinary claim for extra payment, to contract the institution on whose behalf the claim is made, to ascertain whether it was a genuine demand. The telephone call that the petitioner made to the KTC certainly comes within the exception aforementioned, viz. ascertainment of facts, in good faith and in discharge of the duties assigned to the petitioner. It goes without saying that the petitioner has not violated Rule 11 in the matter of the said telephone conversation. The decision to the contrary would certainly be perverse justifying interference in judicial review.
17. More or less the same is the position with regard to the action on the part of the petitioner in bringing the illegal claim to the notice of her official superior, who was examined as MWJ in the case. A reference to the enquiry report would show that when asked about the fact whether the petitioner brought the matter to his notice, he initially expressed the opinion that no such intimation was received. Then he was confronted with Ext. P1(a), which is a copy of the official note that the petitioner put in, wherein the endorsement of MW1 under his own signature directing the petitioner “to speak” is available. His reaction then was that he should see the original in order to answer the question. The original could not be produced by the petitioner as it was very much in the official records to which she had no access at the time. It is to be remembered here that immediately after the occurrence in the case the petitioner was shifted from the Administration Wing on 1.1.1996 resulting in loss of access to the relevant files. Such being the case, it is for the management to explain how Ext. P1 (a) paper disappeared from the file. In any case, what is contained in Ext. P1(a), again, is a report to the official superior about an irregularity which came to her notice and such communication would be protected by the built-in safeguard in Rule 11(a). Finding to the contrary is also perverse.
18. It is true that the K.T.C. started demanding evidence for the demand of delivery charges on the part of its driver for the first time through Ext. P12(m). dt. 17.7.1996, i.e. after the expiry of more than nine months after the telephone conversation. The Enquiry Officer has assumed that such a late demand should certainly be at the behest of the petitioner and that in that regard she has gone wrong and violated the rules. It is mentioned in Ext. P12(m) itself that the company took up the matter with their other offices and the letter is written only after such correspondence. The mere fact that there was some delay in the transporting contractor writing to the IRE requesting for documentary evidence to support the case projected by the petitioner over telephone on 1.8.1995 that the drivers had demanded extra amounts cannot at all be stated as an act instigated by the petitioner. Having received no reply to Ext. P12(m) the contractor wrote again to the IRE on 7.8.1996 vide Ext. P12(n). It appears the CGM noted that the previous correspondence viz. Ext. P12(m) was not available before him and hence asked for the original of that letter and this matter was referred to the petitioner, who endorsed that she was divested of her duties in the section as early as on 1.1.1996 and that she had nothing to do with the matter as on 14.8.1996 when the query was put to her.
19. It is evident from Ext. P12(o) that inspite of Ext. P12(n), which admittedly was received in the IRE, the relevant papers were not sent over to the contractor (KTC) and that is why the requirement of writing reminder vide Ext. P12(o) arose. It is only thereupon that the details called for by the contractor were supplied by the company and in Ext. P12(p) letter the contractor company stated in unequivocal terms that their drivers were not authorised to collect any amount from the customers and that in the circumstances copies of the relevant receipts executed by the drivers might be sent over to the contractor to enable them to take necessary action against the drivers. The above said correspondence would make it clear that though slightly belated, earnest efforts were made by the transporting contractor to take disciplinary action against its drivers; but that was not facilitated by the IRE, which refused to send over the relevant papers. The attempt was to sweep the dust under the carpet.
20. There is nothing to show that the letters aforementioned were all written at the instigation of the petitioner. In any case, the transporting contractor was not examined as a witness for the prosecution, without which it is impossible to presume that the petitioner was the person responsible for the transporting contractor’s writing these letters. What is evident from the Enquiry report is that the Enquiry Officer came to the conclusion., that the petitioner was in communication with the transporting contractor because letters started coming to the IRE only from 17.7.1996 and the sudden interest that the company took after 10 months of the occurrence was presumably at the behest of the petitioner. This is only a wild guess. As already mentioned, if the company had a case that the petitioner was instigating the contractor to press for the relevant records it was essential that the representative of the company was examined as a witness.
In the absence of any such proof the conclusion reached by the Enquiry Officer has to be seen as perverse.
21. During hearing it was fairly conceded by the learned counsel for the respondent that the charge that the petitioner behaved in a manner unbecoming of a public servant could be established only if the major charges regarding communication and acting against the superior officers are established. I have already found that the findings of the Enquiry Officer on the aforesaid aspects are perverse. It goes without saying that the charge of ‘doing acts unbecoming of a public servant’ alleged against the petitioner also cannot stand.
22. From Ext. P6 it is seen that there is an allegation that the petitioner alleged corruption against her superior officers around the end of March, 1996 by raising it before Shri V. Rajagopala Menon, Senior Personnel & Welfare Officer for informing the Senior Manager (P & A) stating that the amount of Rs. 2000/- paid for door delivery of sintex tanks was a false payment deliberately made by her superior officers and that they had a share in it. No documentary evidence is adduced, on the above aspect. It is also seen from Ext. P10 that in answer to question, the aforesaid Rajagopala Menon had stated before the Enquiry Officer that no allegation had been raised by the petitioner before him against superior officers.
23. As regards the allegation that the petitioner was responsible for the protest staged by the trade union leaders also, no acceptance evidence was available before the Enquiry Officer. The vigilance on the part of the trade union is not an unusual phenomenon in this State. It is not necessary for the trade unions to get encouragement from any officer of the company to challenge the acts which they do not relish. As long as the fact remains that the contractor had not authorised its drivers for collection of any amount as delivery charges and as long as the further fact that payments were in fact made by the company notwithstanding objections raised by the petitioner stands proved, there was nothing unusual or inappropriate on the part of the trade union in questioning the same. Without something more, it cannot, however, be stated that the reason for their uprisal and protest was the interest and instigation forthcoming from the petitioner.
24. What emerges from the above discussion is that the findings of the Enquiry Officer cannot be sustained. The Appellate Authority and the Review authority have not approached the question from the proper perspective. In the circumstances the petitioner is entitled to succeed in the case. The Original Petition is accordingly allowed and Exts. P16, P19, P21 and P23 are quashed.
25. Eventhough there is a prayer for a declaration and direction with regard to the promotion due to the petitioner, it is brought to my notice during arguments, that the company itself gave her the promotion though after the period of punishment mentioned in Ext. P19. I have also passed orders with regard to the date of promotion due to her in a separate O.P. viz. O.P.No. 13378 of 1996. No further direction is necessary in the matter of promotion due to the petitioner.
The Original Petition is allowed as above.
Appendix
Petitioner’s Exts:-
Ext. P1:-Copy of the letters dt. 1.8.95 of the petitioner.
Ext. P2:-Copy of the Memo No. P0/E-n/5437 dt. 16.8.96 of R2.
Ext. P3:-Copy of the reply letter dt. 17.8.96 of the petitioner to R2.
Ext. P4:-Copy of Memo No. Po/E-6/6980 dt. 23.9.96 of R2.
Ext P5:-Copy of reply letter at 3.10.96 of the petitioner to R2.
Ext. P6:-Copy of the Memorandum No.PO/E-6/7663 dt. 16.10.96 of R2.
Ext. P7:-Copy of the written statement dt. 25.10.96 of the petitioner to R2.
Ext P8:-Copy of the letter No. CHN (SIC) vc : 162/3164/96 dt. 6.9.96 of the Dy. General Manager (South), Kerala Transport Co. Cochin-31
Ext. P9:-Copy of the letter No. CHN: (SIC):162/2582/96 dt. 17.7.96 of the Dy. General Manager (South), Kerala Transport Co. Cochin-31
Ext. P10:-Copies of the depositions of the management witnesses.
Ext.P11:-Copy of the management document No. 12.
Ext. P12(a):-Copies of the documents marked on the side of petitioner as charged officer’s documents nos. 1 to 7, 9 to 17 and 21 to 23.
Ext. P13:-Copy of the letter dt. 18.12.96 of the petitioner.
Ext. P14:- Copy of the letter dt. 21.1.97 of the petitioner.
Ext. P15:-Copy of the written brief dt. 23.7.97 of the petitioner
Ext. P16:-Copy of the enquiry report dt. 17.11.97 of the Enquiry Officer.
Ext. P17:-Copy of the memorandum No. PO/E-6/09300 dt. 19.11.97 of R3.
Ext. P18:-Copy of the explanation dt. 29.11.97 of the petitioner
Ext. P19:-Copy of the Order No.PO/E-6/917 dt. 24.4.98 of R3.
Ext. P20:-Copy of the appeal dt. 21.5.98 of the petitioner.
Ext. P21:-Copy of the order dt. 23.12.98 of R4.
Ext. P22:-Copy of the Review Petition dt. 16.1.99 of the petitioner.
Ext. P23:-Copy of the Order No. (SIC)2000/24 dt. 6.3.2000 of the Company Secretary.
Ext. P24:-Copy of the letter No. (SIC)162/3493/96 dt.26.9.96 marked as Ext. CO/17 is Ext. P16 Enquiry Report of the Deputy Manager (South) Kerala Transport Company to the Chief General Manager, Indian Rare Earth ltd. Udyogamandal.
Respondents Exts.
Ext. P1(a):-Copy of letter dt. 20.12.96 submitted by the Presenting Officer in the enquiry.