IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 32221 of 2001(J)
1. K.S.PRAKASAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SMT.SUMATHY DANDAPANI (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :26/05/2010
O R D E R
ANTONY DOMINIC, J.
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O.P. NO. 32221 OF 2001 (J)
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Dated this the 26th day of May, 2010
J U D G M E N T
Petitioner was a Forest Guard. While he was working in the
Malayattoor Division, he was served Ext.P1 memo of charges. The
charges were of dereliction of duties, indiscipline, assault of
superior officers and misuse of departmental vehicles. Petitioner
submitted his explanation. Explanation was found to be
unsatisfactory, enquiry was conducted and Ext.P2 is the report of
the Enquiry Officer, where all the charges were held proved. On
receipt of the enquiry report, findings were accepted by the
Disciplinary Authority and Ext.P3 show cause notice was issued to
the petitioner proposing to impose a punishment of barring two
increments with cumulative effect. He submitted Ext.P4
explanation pleading innocence and seeking to be exonerated of
the charges. By Ext.P5 order, the disciplinary authority confirmed
the penalty proposed in Ext.P3.
2. Ext.P6 appeal was filed to the 3rd respondent, which
was rejected by Ext.P7. Further appeal to the 2nd respondent and
Review before the 1st respondent, were rejected by Exts.P8 and
OP No.32221/01
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P10 orders respectively. It is in these circumstances, the original
petition is filed seeking to quash the aforesaid proceedings.
3. The first contention raised by the learned Senior
Counsel appearing for the petitioner is that on the allegation that
the petitioner had tresspassed into the quarters of the superior
officer and assaulted him, there was a criminal case against him.
The case was charge sheeted as ST Case No.565/93 on the file of
the Judicial First Class Magistrate Court-I, Muvattupuzha. It is
stated that, in the criminal case, he was acquitted by Ext.P11
judgment, and that, therefore, the petitioner could not have been
held guilty of the related charge in Ext.P5. In support of this
contention, learned Senior Counsel also placed reliance on the
Apex Court judgments in G.M.Tank v. State of Gujarat and
Others {2006 (5) SCC 446} and Basanti Prasad v. Chairman,
Bihar School Examination Board and others {2009(6) SCC
791}.
4. In my view, as has been repeatedly held by the Apex
Court, if an act committed by a Government servant is also a
misconduct in terms of the Service Rules, in addition to criminal
proceedings, he shall also be proceeded in departmental
proceedings. However, if in the criminal case, the employee has
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been honourably acquitted, that finding of the criminal court may
have an impact in the departmental proceedings, where the
standard of proof required is that of preponderance of probability
unlike the strict standard of proof insisted in criminal cases.
Therefore, the first question which may have to be examined is
whether Ext.P11 reflects a honourable acquittal. Ext.P11
judgment shows that the occurrence witnesses turned hostile and
the court acquitted the petitioner for want of evidence. This, in my
view, cannot be said to be a case of honourable acquittal, which
requires the delinquent to be acquitted free from all blames.
Therefore, Ext.P11 judgment of the criminal court could not have
any impact on the finding of guilt as entered in Ext.P2 report or
Ext.P5 order imposing penalty. If that be so, the judgment relied
on by the learned Senior Counsel for the petitioner cannot help
the petitioner to get himself exonerated of the charges.
5. That apart, a reading of Ext.P11 judgment shows that
the only allegation which was subject matter of that criminal case
was that the petitioner had tresspassed into the residential
quarters of the superior officer and assaulted him. A reading of
Ext.P1 memo of charges and Ext.P2 report show that although
this was also one of the misconducts alleged, dereliction of duties
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and unuauthorised use of departmental vehicles were also
charged against the petitioner. These misconducts were also
proved against him and the punishment was imposed taking into
account those misconducts as well. Therefore, Ext.P11 by itself
does not help the petitioner to successfully impugn the
punishment imposed.
6. The other contention raised by the learned Senior
Counsel for the petitioner is that the evidence adduced by the
petitioner were not appreciated by the enquiry officer or the
disciplinary authority. Ext.P2 is the enquiry report. A reading of
Ext.P2 shows that the enquiry officer has dealt with the entire
evidence adduced and it gives the impression that the findings of
the enquiry officer are consistent with the evidence adduced by
both sides. This Court in exercise of the powers under Article 226
of the Constitution of India can interfere with the finding of fact
only in a case where the findings can be characterised as
perverse in the sense that it will not be arrived at by a person
reasonably advised facts and law on the subject. A perusal of
Ext.P2 does not persuade me to think that this report falls in
anyone of those categories, in which event alone, can the findings
be interfered with in a writ petition.
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7. The surviving question is whether the punishment
imposed is disproportionate to the misconducts proved against
the petitioner. The misconducts, as already stated, included
tresspass into the residential quarters of the superior officer,
assaulting him, dereliction of duties and unauthorised use of
departmental vehicles. These misconducts have been proved
against the petitioner in a properly conducted enquiry.
8. Having regard to the gravity of the misconducts proved
against the petitioner, I do not think that the punishment of
barring of two increments with cumulative effect can be one,
which is shockingly disproportionate, warranting interference in a
proceedings under Article 226 of the Constitution of India.
9. Even apart from all this, facts show that, this is a case
where the disciplinary authority, appellate authority and the
reviewing authorities have all examined the matter, and have
concurrently held against the petitioner. Such a concurrent finding
cannot be interfered with, except in extreme cases of
arbitrariness or perversity. Such a ground also is not made out.
In the result, original petition fails and is dismissed.
ANTONY DOMINIC, JUDGE
Rp