IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 35246 of 2002(U)
1. N.HARI, S/O.P.NARAYANA PILLAI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE PRINCIPAL SECRETARY,
3. THE PRINCIPAL SECRETARY, GENERAL
For Petitioner :SRI.P.S.SREEDHARAN PILLAI
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :04/08/2010
O R D E R
P.N.RAVINDRAN, J.
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O.P.No.35246 of 2002
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Dated this the 4th day of August, 2010
JUDGMENT
The petitioner, a Selection Grade Assistant working in the
Administrative Secretariat at Trivandrum, has filed this original petition
challenging Ext.P2 enquiry report, Ext.P3 show cause notice calling
upon him to show cause why the punishment of reduction in rank to
the lower post for a period of five years should not be imposed on him
and Ext.P5 order passed by the Government imposing the said
punishment on him. The brief facts of the case are as follows.
2. While the petitioner was working as Selection Grade
Assistant in the General Administration Department in the
Administrative Secretariat at Trivandrum, a memo of charges dated
18-2-1999 was issued to him. The petitioner submitted his written
statement of defence denying the charges on 31.3.1999. The
Government thereafter issued Ext.P1 order dated 12.11.1999 referring
the charges against the petitioner to the Vigilance Tribunal,
Trivandrum for enquiry under the Kerala Civil Service (Vigilance
Tribunal) Rules, 1960. The Vigilance Tribunal, after enquiry, submitted
Ext.P2 report dated 16-8-2000 finding the petitioner guilty of the
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charges levelled against him. The Vigilance Tribunal also
recommended imposition of the penalty of reduction in rank to the
lower post for a period of five years. The Government after considering
Ext.P2 enquiry report, provisionally decided to impose the punishment
of reduction in rank to the lower post for a period of five years on the
petitioner. Ext.P3 show cause notice dated 20-10-2000 was thereupon
issued. The petitioner submitted Ext.P4 reply dated 18-12-2000
wherein he also prayed that before final orders are passed he may be
given an opportunity of being heard. The Government thereafter
passed Ext.P5 order dated 11-11-2002 imposing on the petitioner the
penalty of reduction in rank to the lower post for a period of five years.
3. The main contention raised in the original petition is
that a copy of Ext.P2 enquiry report was not furnished to the petitioner
before Ext.P3 show cause notice was issued thereby violating the
express stipulation in that regard in rule 15(12) of the Kerala Civil
Services (Classification, Control and Appeal) Rules, 1960. It is
contended that as the Government had arrived at a provisional
decision to impose on the petitioner the punishment of reduction in
rank to the lower post for a period of five years, without furnishing a
copy of the enquiry report to the petitioner and without affording him
an opportunity to object to the findings therein, the entire proceedings
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is vitiated. It is also contended that as the charge levelled against the
petitioner in the memo of charges has not been proved, the order
imposing punishment is liable to be set aside and that in any view of
the case the punishment imposed is disproportionate to the gravity of
the proved charge.
4. The respondents have filed a counter affidavit resisting
the original petition. It is stated that as the written statement
submitted by the petitioner to the memo of charges was found not
satisfactory the Government decided to refer the case to the Vigilance
Tribunal, Trivandrum for detailed enquiry. It is contended that the
Vigilance Tribunal, after evaluating the evidence adduced by both sides
in the enquiry, found the petitioner guilty of demanding illegal
gratification from PW1 as a motive for arranging a job under the dying
in harness scheme and based on the findings and the recommendation
of the Vigilance Tribunal the Government provisionally decided to
impose on the petitioner the punishment of reduction in rank to the
lower post for a period of five years, that a copy of the report of the
vigilance enquiry was furnished to the petitioner along with Ext.P3
show cause notice, that the petitioner submitted a detailed explanation
and that it was after examining the entire facts that the Government
finalised the disciplinary proceedings by imposing the penalty of
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reduction in rank to the lower post for a period of five years.
5. I heard Sri.O.V.Radhakrishnan, learned Senior Counsel
appearing for the petitioner and Sri.K.Sandesh Raja, learned
Government Pleader appearing for the respondents. I have also gone
through the pleadings and the materials on record and the files
relating to the enquiry which were made available to me by the
learned Government Pleader. The charge levelled against the
petitioner in the memo of charges dated 18.2.1999 that was served on
him on 5.3.1999 reads as follows:-
“THAT YOU, Sri.N.Hari, while working as Assistant
Grade I of (M) Section in General Education
Department, Secretariat, Thiruvananthapuram
during July 1995, demanded a sum of Rs.25,000/-
as illegal gratification from Sri.K.Vinod,
S/o.T.K.Narayanan, Kundoli Kunnumpuram Veedu,
Pothuvacheri P.O., Kannur on 19.7.1995 at
Secretariat, Thiruvananthapuram as a motive for
arranging a job to him under Dying in harness
Scheme as mentioned in the statement of
allegation.
By your action you have failed to maintain absolute
integrity and devotion to duty.”
The allegation levelled against the petitioner was that he had on
19.7.1995 demanded the sum of Rs.25,000/- as illegal gratification
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from Sri.K.Vinod, S/o.T.K.Narayanan, Kundoli Kunnumpuram Veedu,
Pothuvacheri P.O., Kannur as a motive for arranging a job to him under
the dying in harness scheme. The petitioner denied the said charge.
He contended that he had neither seen Sri.K.Vinod nor demanded any
illegal gratification from him as alleged.
6. Before the Vigilance Tribunal Sri.Vinod was examined as
PW1. He deposed before the Vigilance Tribunal that he had submitted
an application before the Government in the year 1992 for
employment assistance under the dying in harness scheme consequent
on the death of his father Sri.T.K.Narayanan, P.D. Teacher,
Government U.P. School, Neerchal, Kannur District, that the said
application was rejected on the ground that he has not attained the
age of 18 years, that after attaining the age of 18 years he submitted a
fresh application, that on 15.7.1995 a person by name Sri.Thomas met
him at his house and told him that he has been sent from the
Secretariat in connection with his application for employment
assistance, that a sum of Rs.25,000/- was required in cash in
connection with the said application, that he expressed inability to pay
that much amount, that Sri.Thomas thereupon asked him to
accompany him to Trivandrum on 19.7.1995, that he and Sri.Thomas
accordingly left for Trivandrum by train on 19.7.1995 and reached
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Trivandrum the next day morning and that by about 10.30 a.m. on
20.7.1995 Sri.Thomas took him to the Secretariat and introduced him
to the petitioner. He further deposed that they had a talk under a tree
in the Secretariat compound, that the petitioner thereupon told him
that his normal demand for arranging employment is Rs.1,00,000/-,
that he is prepared to reduce the amount to Rs.25,000/-, that when
he expressed difficulty and refused to accede to the demand,
Sri.Thomas told him that he need only hand over a cheque for
Rs.25,000/-, that Sri.Thomas asked him to obtain Rs.1,000/- from
some one, open an account in a bank so as to get a cheque book and
to hand over the cheque on 27.7.1995 at Payyannur bus stand. He
further deposed that on 21.7.1995 he met PW2, an Upper Division
Clerk in the Legal Metrology Department, who advised him not to hand
over the cheque, that he stayed with P.W.2 in the NGO quarters and
on the next day he accompanied PW2 and one Sri.Chandran Pillai to
the Secretariat, that on enquiries made it was known that orders have
already been passed on 4.7.1995 appointing him but the file was
missing, that thereupon he and PW2 met Sri.Sathyan Mokeri and
E.P.Jayarajan, M.L.As and narrated the incident to them and as per
their instructions petitions addressed to the Hon’ble the Chief Minister
and the Hon’ble Education Minister were handed over to them, that the
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issue was also raised in the Assembly, that the file was traced out on
3.8.1995 and thereafter the appointment order was issued to him.
7. P.W.2, an Upper Division Clerk in the Legal Metrology
Department, had only deposed about the events that happened from
21.7.1995 onwards. P.W.3, who was the Under Secretary to
Government, in charge of P and M sections of the General Education
Department during the relevant period, had only deposed that the
petitioner was working as an Assistant in M Section of the General
Education Department and that he was dealing with land acquisition for
Government schools. She also deposed that P3 section was dealt with
by PW5, that she has no personal knowledge about the allegations
levelled against the petitioner, that she came to know from PW5 the
Assistant in charge of the P3 section that the file relating to the
appointment of PW1 was dealt with in P3 section and that a talk was
going on in the section that the petitioner had demanded illegal
gratification from PW1. P.W.4, the Section Officer in charge of P
Section of the General Education Department, also deposed in the
same lines. P.W.5 deposed that complainant had informed him that
the petitioner had demanded illegal gratification. P.W.6, an employee
of the Fisheries Department, deposed that he had occasion to go to the
N.G.O. Home where he met PW1 who was introduced to him by
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Sri.K.K.Thomas, who was also working in the Fisheries Department,
that he thereupon came to know that one Sri.Thomas had approached
PW1 and demanded illegal gratification for arranging a job under the
dying in harness scheme. On the side of the petitioner, D.W.1, a Peon
in the office of P.W.3 (the Under Secretary in charge of P and M
Sections of the General Education Department) was examined. He
deposed that the petitioner is an active member of the Union led by
the BJP and P.Ws. 3 and 5 are members of the Secretariat Employees
Association owing allegiance to the Left Front. He also deposed that
P.W3 was in the habit of taking files to her residence, that though
P.W.3 had informed him that the file relating to the appointment of
PW1 was missing, P.W.3 herself told him on 25-7-1995 that the
missing file has been traced out.
8. The Tribunal on an analysis of the evidence, oral and
documentary, held that the charge against the petitioner has been
proved and that the date of demand mentioned in the memo of
charges is apparently a mistake that crept in while drafting the charge.
The charge levelled against the petitioner in the memorandum of
charges dated 18.2.1999 was that he had on 19.7.1995 demanded
from Sri.K.Vinod, S/o.T.K.Narayanan, Kundolikunnumpuram Veedu,
Pothuvacheri P.O., Kannur, the sum of Rs.25,000/- as illegal
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gratification for arranging a job under the dying in harness scheme.
The vigilance enquiry against the petitioner was initiated upon a
petition dated 2.8.1995 submitted by him before the Hon’ble Minister
for Education. A copy thereof was marked as Ext.P1 before the
Vigilance Tribunal. It is alleged therein that a person by name
Sri.Thomas met him at his house and told him that he has been sent
from the Secretariat in connection with his application, that a sum of
Rs.25,000/- was required in cash in connection with the said
application, that he expressed inability to pay that much amount, that
Sri.Thomas thereupon asked him to accompany him to Trivandrum on
19.7.1995, that he and Sri.Thomas accordingly left for Trivandrum by
train on 19.7.1995 and reached Trivandrum the next day morning and
that by 10.30 a.m. on 20.7.1995 Sri.Thomas took him to the
Secretariat and introduced him to the petitioner and they together
demanded the sum of Rs.25,000/- from him. The said complaint was
submitted to the Hon’ble Minister for Education by Sri.Sathyan Mokeri,
MLA along with his letter dated 3.8.1995. On the said letter the
Hon’ble Minister for Education ordered a vigilance enquiry. A reading
of the complaint dated 2.8.1995 (Ext.P1 before the Vigilance Tribunal)
discloses that the petitioner had made the alleged demand for illegal
gratification on 19.7.1995 and that the file went missing on 20.7.1995.
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In the petition addressed to the Hon’ble the Chief Minister (Ext.P2
before the Vigilance Tribunal) the allegation is that the demand for
illegal gratification was made on 21.7.1995. Thus in two complaints
bearing the same date, one addressed to the Hon’ble the Chief Minister
and the other to the Hon’ble Minister for Education, PW1 the
complainant had given two different versions regarding the date on
which the petitioner is said to have made the demand for the sum of
Rs.25,000/-. When questioned by the Inspector General of Police,
PW1 had stated that the demand for illegal gratification was made on
20.7.1995.
9. The files disclose that Sri.K.Vinod, PW1, was appointed
by G.O(MS)No.394/95/G.Edn. dated 3.8.1995. It refers to his
application dated 25.9.1991 that was initially rejected and the revised
application dated 15.5.1995 submitted by him. The complaint
submitted by PW1 to the Hon’ble Minister for Education, (Ext.P1 before
the Vigilance Tribunal) was placed before the Hon’ble Minister only on
3.8.1995 by Sri.Sathyan Mokeri, MLA along with his letter dated
3.8.1995. But the original thereof shows that a vigilance enquiry was
ordered by the Hon’ble Minister for Education on 2.8.1995 itself. The
Vigilance Tribunal, however, held that though there is a discrepancy
with regard to the date, it is insignificant. Likewise, even after holding
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that though the file relating to PW1’s appointment was missing from
5.7.1995 to 3.8.1995 it has not been proved that it was the petitioner
who was responsible for the same, the Tribunal proceeded to hold that
it would not have been difficult for the petitioner who was seated near
the concerned section to watch the movement of the file, get
acquainted with the file and the order passed regarding the
appointment of PW1 and that this probabilises the prosecution version
regarding the demand for illegal gratification by the petitioner. Even in
the background of these glaring inconsistencies, the Tribunal held in
Ext.P2 report that the demand of Rs.25,000/- as illegal gratification by
the petitioner has been proved. The Tribunal however held that the
evidence of P.Ws 2 to 6 regarding the alleged demand of illegal
gratification by the petitioner is only hearsay in nature.
10. The Government did not immediately forward a copy
of Ext.P2 enquiry report to the petitioner. Instead the Government
decided to provisionally impose the punishment of reduction in rank to
the lower post for a period of five years and thereafter issued Ext.P3
show cause notice dated 20.10.2000 calling for the petitioner’s
explanation. Along with that show cause notice a copy of the enquiry
report was forwarded to the petitioner. The petitioner thereupon
submitted Ext.P4 reply dated 18.12.2000, running into 28 pages,
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wherein he had analysed the evidence and canvassed the correctness
of the findings in the enquiry report. The petitioner also prayed for an
opportunity of being heard in person before orders are passed in the
matter. The Government, without affording him such an opportunity,
passed Ext.P5 order imposing the punishment of reduction in rank to
the lower post for a period of five years.
11. The petitioner had in Ext.P4 reply pointed out to the
Government the disparity in the case set out by the complainant in the
complaints submitted to the Hon’ble Minister for Education and the
Hon’ble the Chief Minister and also in the statement given by him to
the Inspector General of Police. The Government did not however,
advert to these aspects of the matter when it passed Ext.P5 order. As
noticed earlier, the charge which the petitioner was called upon to
defend was that he had on 19-7-1995 demanded the sum of
Rs.25,000/- as illegal gratification from Sri.K.Vinod, examined as PW1
before the Vigilance Tribunal, as a motive for arranging a job under the
dying in harness scheme. The enquiry report itself discloses that a
decision had been taken by the Government on 25.6.1995 to appoint
the complainant as Peon in the Education Department under the dying
in harness scheme. The files disclose that a Government order, G.O
(MS)No.394/95/G.Edn. dated 3.8.1995 was also issued thereafter. In
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the complaint submitted by PW1, Sri.K.Vinod before the Hon’ble the
Chief Minister on 2.8.1995, a day before the aforesaid order was
issued, the allegation was that the petitioner had demanded illegal
gratification on 21.7.1995, while in the petition submitted before the
Hon’ble Minister for Education on the same day, the alleged demand
was on 19.7.1995. The version before Police was that the demand was
on 20.7.1995. As noticed by the Tribunal itself, apart from the version
given by PW1 there was no evidence to prove that the petitioner had
demanded illegal gratification from PW1. The Tribunal had also held
that though the file was missing from 5.7.1995 to 3.8.1995 the
petitioner was not responsible for the same. The Tribunal had also
noticed that the version given by PWs 2 to 6 that the petitioner had
demanded illegal gratification from PW1 is only hearsay evidence.
Notwithstanding these facts the Tribunal found that the petitioner’s
seat was near to the concerned section where the file relating to the
appointment of PW1 was handled and therefore, he was in a position to
watch the movement of the file, get acquainted with the fact that
orders had been passed for appointment of PW1 and therefore, the
possibility of the petitioner removing the file and retaining it on the
expectation of getting the money demanded by him cannot be ruled
out and that this aspect operates as a circumstance probabilising the
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prosecution version regarding the demand of illegal gratification by the
petitioner. I am afraid the said finding cannot be sustained.
12. The Tribunal has in paragraph 7.15 of Ext.P2 report
held as follows:-
“So in all probability the missing of the file and its
reappearance on 3.8.1995 after the matter was
raised in the assembly is the handiwork of
someone who was having some vested interests
with the intention of making troubles to PW1. The
evidence does not lead to a conclusion that it was
the accused officer who was behind the missing of
the file.”
The Tribunal thereafter proceeded to hold as follows:-
“It is not so difficult for the accused officer who
was seated near the concerned section to watch
the movement of the file and get acquainted with
the fact that the orders were passed for the
appointment of PW1. So the possibility of his
removing the file and retaining it on the
expectation of getting the money demanded by
him cannot be ruled out. So this aspect clearly
operates as a circumstance probabilising the
prosecution version regarding the demand of
illegal gratification by the accused officer.”
In my opinion the said finding cannot be sustained in the light of the
evidence on record. The finding of guilt entered by the Tribunal is
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based on mere surmises and conjectures. The Tribunal has
categorically held that the materials on record do not lead to the
conclusion that the petitioner was responsible for the missing of the
file. The Tribunal had also held that the testimony tendered by PWs 2
to 6 regarding demand of illegal gratification by the petitioner is only
hearsay. The Tribunal had also noticed the fact that PW1 had different
versions regarding the date on which the alleged demand was made.
He had given three different dates before three different authorities
and before two of the authorities different versions were given on the
same day. All these happened in close proximity to 3.8.1995, the date
on which the Government had issued orders appointing PW1 the
complainant, under the dying in harness scheme. In the light of the
glaring disparity in the case spoken to by PW1, I am of the opinion
that no safe reliance can be placed on his version to hold that the
petitioner had demanded illegal gratification. Further the Tribunal has
not found that the petitioner had demanded illegal gratification on
19.7.1995 as alleged in the memo of charges. 19.7.1995 was a
Wednesday. It is not known whether the petitioner had attended
office on 20.7.1995 or on 21.7.1995. The Tribunal has only found that
it is proved that the petitioner had demanded illegal gratification and
that the inconsistency in the date does not affect the prosecution case.
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In my opinion if the charge was that the petitioner had demanded
illegal gratification on a day other than 19.7.1995 he could have
defended the charge by proving that he was away elsewhere or that he
was on leave or that due to some reason or other he could not have
interacted with the complainant or even met him. The Tribunal has
instead brushed aside the disparity in the dates as of no consequence.
In other words, the Tribunal has found the petitioner guilty
notwithstanding the disparity in the date, which according to me is
crucial. The Tribunal had no cogent material before it to hold that the
petitioner had in fact made a demand either on 19.7.1995 or on
20.7.1995 or on 21.7.1995 for illegal gratification. The disparity in
the dates, according to me, is a crucial aspect which would probabilise
the case put forward by the petitioner that there was an attempt by
certain interested persons to foist a false charge on him due to
extraneous considerations including political rivalry. I am therefore, of
the considered opinion that the finding of the Tribunal on the guilt of
the petitioner is perverse and cannot be sustained.
I accordingly hold that the decision taken by the
Government to impose on the petitioner the punishment of reduction
in rank to the lower post for a period of five years cannot be sustained.
In that view of the matter I do not propose to deal with the contention
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of the petitioner that the failure to serve a copy of the enquiry report
before the Government provisionally took a decision to impose the said
punishment on him and before issuance of Ext.P3 show cause notice
vitiates the entire proceedings. I leave the said question open.
In the result I allow the original petition, quash Ext.P2
enquiry report, Ext.P4 show cause notice and Ext.P5 Government
order. The petitioner will be entitled to all consequential service
benefits including seniority and emoluments.
P.N.RAVINDRAN,
Judge.
ahg.
P.N.RAVINDRAN, J.
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O.P.No.35246 of 2002
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JUDGMENT
4th August, 2010