IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 5794 of 2002(M)
1. P.A.JAYATHILAKAN S/O.U.RAGHAVAN,
... Petitioner
Vs
1. THE SECRETARY TO THE GOVT. OF KERALA,
... Respondent
2. THE COMMISSIONER OF LAND REVENUE,
3. THE KERALA PUBLIC SERVICE COMMISSION,
4. THE ACCOUNTANT GENERAL OF KERALA,
For Petitioner :SMT.VIDHYA. A.C
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :10/02/2009
O R D E R
S.SIRI JAGAN, J.
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O.P.No. 5794 of 2002
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Dated this the 10th day of February, 2009
J U D G M E N T
The petitioner was a Deputy Collector in the Revenue
Department of the Government of Kerala, who retired from service on
21.3.1997. Prior to his retirement, disciplinary proceedings were
initiated against him on certain serious allegations of misconduct by
issuing Exts.P1 and P3 memo of charges, to which the petitioner had
filed statements of defence. Before the disciplinary proceedings could
be completed, he retired from service. However, the petitioner was not
paid his retirement benefits and therefore, the petitioner approached
this Court by filing O.P.No.7247/2001, in which, by Ext.P5 judgment,
this Court directed completion of the disciplinary proceedings
expeditiously. Thereafter, an enquiry officer conducted an enquiry and
filed Ext.P9 report, wherein the petitioner was found guilty of all
charges except one. Thereafter, the petitioner was given a show
cause notice as to why the loss caused to the Government on the
account of the petitioner’s misconducts should not be recovered from
the retirement benefits and by resort to the Kerala Public Accountants
Act. The petitioner’s representation in this regard did not find favour
with the disciplinary authority and the Government ultimately, by
Ext.P11 order, directed to recover the loss caused to the Government
on account of the misconducts to the tune of Rs.1,64,390/- from the
DCRG of the petitioner, and the the balance amount of Rs.6,48,430/-
o.p.5794/02 2
invoking the provisions of the Kerala Public Accountants Act, 1963. He
was also imposed with punishment of reduction of Rs.1,327/- from the
monthly pension of the petitioner under Rule 3(a) of Part III of KSR.
The petitioner is challenging Ext.P11 order in this original petition.
2. The petitioner contends that the enquiry itself is invalid
since no witnesses were examined in the enquiry. According to the
petitioner, without the documents relied upon by the enquiry officer
having been proved by an officer, the documents could not have been
relied upon by the enquiry officer to find the petitioner guilty. Secondly
he would contend that there was no sufficient evidence to prove the
misconducts against the petitioner. According to the petitioner, the
findings are perverse in so far as some of the alleged acts were at a
time before the petitioner joined the particular office. He would submit
that the major chunk of the amount relates to charges in respect of
the disposal of applications under Section 28A of the Land Acquisition
Act. The charge was that without the claimants having received
compensation under protest, the petitioner entertained applications
under Section 28A and awarded additional compensation. According to
the petitioner, it is settled law now that for invoking Section 28A of the
Act it is not necessary that the compensation should have been
accepted under protest by the claimants. The petitioner, therefore,
contends that the findings of misconducts in respect of entertaining of
Section 28A applications by the petitioner was clearly perverse. The
o.p.5794/02 3
petitioner further raises a contention that Ext.P11 order having been
passed beyond three years from the date of his retirement, no liability
could have been recovered from his DCRG under Note 3 of Rule 3 of
Part III of KSR.
3. I have heard the learned Government Pleader also.
4. I have considered the rival contentions in detail.
5. The charges against the petitioner contain in Exts.P1 and
P3, which are as follows:
Exhibit P1:
“I. That you while working as Special Tahsildar (LA), Thalassery
have committed serious irregularities and dereliction of duties in dealing
with the matter related to the payment of enhanced compensation in an
LAR case No.122/87 relating to the acquisition of land for Naval Academy
and thereby made a huge loss amounting to Rs.2,43,114.99 (Rupees two
lakhs forty three thousand one hundred fourteen and paise ninety nine
only) to Government, the details of which are given in the statement of
allegation.
II. That you have deliberately deposited a sum of Rs.8,99,474/-
(Rupees eight lakhs ninety nine thousand four hundred and seventy four
only) vide ‘P’ Form cheque No.10874 dated 9.6.92 in the court of Sub
Judge, Payyannur on 19.6.1992 without adhering to the instructions
issued from Collector’s office in Ref.No.C2-64373/89 dated 14.2.92 to
deposit only Rs.5,61,000/- with further interest @ 15% per annum from
30.1.92 till the date of deposit.
III. That you have failed to take proper sanction from District
Collector before depositing the higher amount for Rs.8,99,474/-
IV. That you have deliberately filed an I.A. petition before the
Sub Court, Payyannur on 18th August 1992 and got amended the decree
and judgment wrongly in L.A.R. 122/87 in favour of the claimant in
holding No.III, thereby causing loss to Government to the tune of
Rs.2,43,114.99 (Rupees two lakhs forty three thousand one hundred
fourteen and paise ninety nine only)V. That you have misrepresented the facts before the Sub
Court, Payyannur in respect of detailed valuation of 4 pepper wince in
Holding No.III in L.A.R.No.122/87 and caused loss to Government to the
tune of Rs.2,43,114.99 (Rupees two lakhs forty three thousand one
hundred fourteen and paise ninety nine only).
o.p.5794/02 4
VI. That you have deliberately created records to show that the
whole matter has been reported to higher authorities.”
Exhibit P3:
“(1) That you Sri.P.A.Jayathilakan, while working as special
Tahsildar (LA) Thalassery committed serious irregularities in dealing the
applications under Section 28(A) of the K.L.A. Act, resulting payment of
Rs.13.82 lakhs in 32 cases to persons who are not eligible as per
clarification issued in the Government letter No.33956/B1/94/RD dated
17.10.1994.
(2) That you have not considered or gone through the
statements filed by the parties at the time of award enquiry and also the
B Form statements sent by the Land Acquisition Officer to the Accountant
General, Thiruvananthapuram, on completion of payment, which were
available in the connected L.A. disposal files, to make sure that the
compensation was actually received by the parties under protest or not,
while processing the applications under section 28(A) of L.A. Act and
abetted in irregular payment thus causing huge loss to the Government.
(3) That you have helped the petitioners (Land owners who filed
application under Section 28A of the K.L.A. Act) by permitting them to
record their protest on the insufficiency of compensation awarded to
them on the counterfoils of the D Form cheques on the later dates which
resulted in effecting payment of Rs.13.82 lakhs to the ineligible persons.
(4) Your action described above amounts to gross dereliction of
duty and breach of responsibility vested on you, as a responsible
Government servant and caused loss to Government to a tune of
Rs.13.82 lakhs.”
6. The petitioner’s contention is that since the documents
relied upon by the enquiry officer were not proved by a competent
officer, the enquiry itself is vitiated. The counsel for the petitioner
relies upon Sub Rule 7 of Rule 15 of Kerala Civil Services
(Classification, Control and Appeal) Rules in support of his contention.
According to the counsel, without the documents having been proved
through a competent officer, the documents could not have been relied
upon. The files relied upon by the enquiry officer are the files available
o.p.5794/02 5
in the office where the petitioner was working. The files speak for
themselves. It is settled law that in disciplinary enquiries the rules of
evidence are not applicable. Any material which would appeal to a
prudent man is of probative value in a disciplinary enquiry. Here the
petitioner does not dispute that the files in question, which have been
relied upon by the enquiry officer, are the files maintained at the office
where the petitioner was working at the time when the alleged
misconducts were stated to have been committed by the petitioner. He
does not have any case that the files themselves have been fabricated
or concocted by anybody. He does not dispute the genuineness of the
files. The files are kept in the normal course of business of the
Government. In fact the petitioner himself was dealing with the very
same files. Rule 15 of Kerala Civil Services (Classification, Control and
Appeal) Rules does not stipulate that any documents should be
proved through any witnesses. All that it requires is that if any oral
evidence is adduced, then the delinquent employee should be given
an opportunity to cross examine that witness. In fact the petitioner
was given an opportunity to adduce contra evidence. It was perfectly
open to the petitioner to adduce evidence to disprove any of the
documents in the file. He has no case that he has not been given an
opportunity to peruse the files and to adduce evidence in support of his
defence. That being so, the conclusion arrived at by the enquiry officer
based on the files kept in the normal course of business of the
o.p.5794/02 6
Government cannot be stated to be perverse at all. I have gone
through Ext.P9 enquiry report in detail. The enquiry officer has given
cogent reasons for the conclusion arrived at by him, which I do not
find to be perverse at all. In fact I find that when there is a mistake in
the decree in the LAR, which mistake is in favour of the Government,
there was absolutely no reason for the petitioner to file an application
to correct the decree, which he had done, about which he had no
explanation to offer. Further, the enquiry officer has specifically
demonstrated as to how even with that mistake the actual amount
would not have been more than what was originally awarded. It was
found on the basis of the files themselves that the petitioner did not
properly go through the valuation prepared by the officers themselves
and had the petitioner cared to make calculation in accordance with
the valuation fixed by the officers of the Government, there would not
have been any reason to file any petition for correction of the decree
at all. In any event, if there was any mistake in the decree which was
to the detriment of the claimant it was for the claimant to seek
correction.
7. As far as the contention based on the subsequent Supreme
Court decisions on Section 28A of the Act is concerned, I am of opinion
that in so far as at the relevant time, the law on the subject was that
only those claimants who have accepted compensation amount under
protest would be entitled to invoke the provisions of Section 28A. It
o.p.5794/02 7
was long after orders have been passed by the petitioner under
Section 28A, that the legal position changed. On the other hand, the
specific finding in Ext.P9 enquiry report is that the petitioner
manipulated the counter foils of the cheque books to show that the
compensation was accepted under protest. The corresponding B Forms
did not reflect any such protest and it is on that basis that, the enquiry
officer came to the conclusion that the counter foils have been
manipulated by the petitioner later. Therefore, there was some
probative material acceptable in a disciplinary enquiry to find the
petitioner guilty. Sufficiency of evidence is not a matter which this
Court should look into in proceedings under Article 226 of the
Constitution of India in respect of the challenge against the disciplinary
enquiry unless the conclusions are perverse. Here on a reading of
Ext.P9 I am more than satisfied that there was sufficient evidence
available for the enquiry officer to the come to the conclusion he has
arrived at in respect of the charges and the findings are not at all
perverse.
8. The last contention is based on Note 3 of Rule 3 of Chapter
III of KSR. That would be applicable only in respect of fixation of
liabilities and not to recovery of loss caused to the Government on
account of misconducts committed by a Government servant. In fact
the same is covered by Rule 3 which permits continuation of the
disciplinary proceedings to its logical conclusion for the purpose of
o.p.5794/02 8
recovery from the pension and for recovery of pecuniary loss caused to
the Government when an employee is found guilty of grave
misconducts or negligence during the period of his service. Therefore, I
do not find any merit in that contention also.
For all the above reasons, I do not find any merit in the original
petition and accordingly, the same is dismissed.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
S.SIRI JAGAN, J.
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O.P.No. 5794 of 2002-M
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J U D G M E N T
10th February, 2009