IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 27969 of 2007(D)
1. V.KESAVAN, S/O.VELUMBAN, AGED 56 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE KERALA STATE DEVELOPMENT CORPORATION
3. THE CHAIRMAN,
4. THE PRINCIPAL SECRETARY TO THE
For Petitioner :SRI.N.UNNIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :26/11/2007
O R D E R
ANTONY DOMINIC, J.
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W.P.(C)NO. 27969 OF 2007 D
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Dated this the 26th day of November, 2007
J U D G M E N T
The challenge in this writ petition is against Ext.P8, an
order of the Managing Director issued on behalf of the 2nd
respondent according sanction for the prosecution of the
petitioner for offences punishable under the Prevention of
Corruption Act, 1988. Though petitioner is a retired attender of
the 2nd respondent, he is facing prosecution pursuant to Ext.P8
and it is on that basis the present writ petition has been filed.
The contentions that are raised against Ext.P8 are
1) That Ext.P8 is issued by the Managing Director and as the
Board of Directors is the appointing authority, only appointing
authority could have granted sanction and hence Ext.P8 is illegal.
2) In Ext.P6 opinion rendered by the then Advocate General of
the State, discloses that there is no basis for prosecuting the
petitioner and Ext.P8 sanction being contradictory to Ext.P6, is
illegal.
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3) It is also contended that there was no material before the
authorities to conclude that the petitioner deserved to be
prosecuted and hence Ext.P8 is invalid for non application of
mind.
4) That the petitioner is not liable to be prosecuted for want of
sufficient materials and also for the reason that he is already
discharged in CC 27/03 by Ext.P2 order.
2. I have considered the submissions made by the
learned counsel for the petitioner.
3. As far as the first contention that it was only the Board
of Directors of the Corporation, which had the competence to
grant sanction to prosecute the petitioner is concerned, the very
contention is belied by the contents of Ext.P8 itself. Ext.P8 is the
proceedings of the Board of Directors of the Corporation, which
concludes by stating that the Board of Directors accord sanction
for the prosecution of the offenders including the petitioner.
4. However, Ext.P8 has been issued by the Managing
Director of the Corporation, but here again the said order has
been issued by the Managing Director on behalf of the Board of
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Directors. Therefore decision is that of the Board of Directors
and the communication has been issued on behalf of the Board of
Directors. If that be so, I must hold that the decision to
prosecute the petitioner is that of the Board of Directors only and
hence the first contention raised by the petitioner is
unacceptable.
5. Petitioner contended that Ext.P6, the opinion furnished
by the then Advocate General of the State is against Ext.P8
decision. Factually the petitioner is right in his contention. But
then, I do not find any legal support for the contention. My
reason for this conclusion is that at best, Ext.P6 is only to be
taken as an opinion and the appointing authority is always
entitled to take a view different from what is given in Ext.P6. By
no stretch of imagination can I hold that the appointing authority
is bound by the view taken by the Advocate General in Ext.P6.
Ext.P6 opinion is only one of the materials that is available before
the appointing authority and it is upto the appointing authority to
assess the materials available and take a decision thereon. In
the process, if the appointing authority has chosen to deviate
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from the opinion of the Advocate General, there is nothing illegal
in such a decision.
6. It is true that the petitioner was discharged by the
court of the Enquiry Commissioner and Special Judge, Trichur by
Ext.P2 order. A reading of Ext.P2 discloses that the petitioner was
discharged from the case for the reason that the petitioner and
other persons involved in the case were appointed in the
company by the resolution passed by the Board of Directors and
therefore, the Enquiry Commissioner took the view that the
Board of Directors being the Appointing authority, the competent
authority to remove the petitioner can only be the Board of
Directors. On this basis, it was held that the sanction for
prosecution issued by the Managing Director of the Company was
invalid and it was for that reason, the petitioner was discharged.
However, the discharge of the petitioner does not prevent the
appointing authority to consider the matter and cure the defect
that was pointed out in Ext.P2 and then proceed from that stage.
It is this process which has been adopted by the appointing
authority in Ext.P8. In view of this, for the only reason that the
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accused has been discharged on a technical ground, I am not
prepared to say that he should be left scot free from the
offences, if any, he has committed.
7. The last submission made by the counsel for the
petitioner is that Ext.P8 is bad for non application of mind. This
contention is raised on the basis that there was no material
available before the Board of Directors to sanction prosecution
against the petitioner. However, in Ext.P8, it is stated that the
Board of Directors of the Corporation after carefully examining all
the relevant aspects in respect to the allegations and
circumstances of the case was satisfied that the accused including
the petitioner had committed the offences and decided that they
should be prosecuted. In this proceedings, this court is not
justified in going in for a deeper probe that is what is stated in
Ext.P8. On the materials that is placed before me, and on a
perusal of Ext.P8, what is discernible is that the Board of
Directors had taken into account all relevant aspects while taking
Ext.P8 decision.
8. Thus on the materials, I am not in a position to
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conclude that the decision is bad for non application of mind.
9. Thus, on an anxious consideration of the contentions
raised by the petitioner, I do not find merit in any of them.
However, my findings herein above, will not stand in the way of
the petitioner urging any legal contention that is available for him
in the course of the prosecution the he may have to face.
Writ petition fails and is dismissed.
ANTONY DOMINIC,
JUDGE
Rp