IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33437 of 2009(Y)
1. K.C.VASU, GRADE ASSISTANT SUB-INSPECTOR
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :20/11/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 33437 OF 2009 (Y)
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Dated this the 20th day of November, 2009
J U D G M E N T
The petitioner was working as a Head Constable at
Nedumkandam Police Station.
2. Disciplinary proceedings were initiated against him on
the allegation that the petitioner abused his position as a public
servant and committed criminal misconduct by demanding bribe
of Rs.2,000/- from one Shri.V.T.Saseendran, father of Shri.Rajeev,
an accused in Crime No.10/2002 and threatened him that on
failure to pay the bribe, his son will be tortured, accepted
Rs.200/-, and that as a result thereof, Shri.Saseendran committed
suicide. Ext.P1 is the memo of charges and Ext.P2 is the reply
submitted by the petitioner.
3. Subsequently, by Government Order dated
04/07/2005, the matter was referred to the Vigilance Tribunal,
Thiruvananthapuram, for enquiry as provided under the Kerala
Police (Departmental Inquiries, Punishment and Appeal) Rules,
1958. Before the Tribunal, witnesses were examined and Exts.P3
to P9 are the depositions of P.Ws. 3, 4, 6, 7, 8, 14 & 15. Evidence
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was closed, parties were heard and along with its report, the
Vigilance Tribunal submitted Ext.P10 recommendation to the
Government, recommending to impose a penalty of withholding
of two increments without cumulative effect. Accepting Ext.P10
recommendation, Ext.P11 show cause notice was issued to the
petitioner, which states that a copy of the Vigilance Tribunal
report is appended to it. On receipt of Ext.P11, the petitioner
submitted Ext.P12 reply to the show cause notice, pleading
innocence and requesting for exoneration from the charges.
Finally, the Government issued Ext.P13 order dated 13/07/2009
imposing a penalty of withholding two increments with cumulative
effect. Challenge in this writ petition is against Ext.P13 order.
4. Contentions raised by the learned counsel for the
petitioner are that this is a case of no evidence, that a copy of the
enquiry report was not served on the petitioner and that hence
the law laid down by the Apex Court in Managing Director,
ECIL, Hyderabad etc. v. B.Karunakar etc. (AIR 1994 SC 1074)
has been violated. Lastly it was also contended that the findings
of the Vigilance Tribunal are based entirely on hearsay evidence
and hence is vitiated.
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5. As already stated, several witnesses have been
examined, and Exts.P3 to P9 are the depositions of P.Ws. 3, 4, 6,
7, 8, 14 & 15. A reading of these evidences show that except PW
8, other witnesses supported the case against the petitioner and
PW 8 turned hostile. In the chief examination, all these witnesses
have deposed that the deceased committed suicide only because
of the misconduct of the petitioner, the details of which are
disclosed in the depositions, which is also reiterated in the memo
of charges.
6. However, in the cross-examination, certain
contradictions have been brought out with reference to the
statements given by the witnesses to the Investigating Officer
under Section 162 of the Code of Criminal Procedure. First of all,
the evidence available before the Tribunal have been appreciated
by the Tribunal and it is on such appreciation of the evidence that
the Tribunal has concluded on the guilt of the petitioner. Unless
this is a case of no evidence, where the conclusion of the Tribunal
can be said to be a perverse one, this Court exercising its power
under Article 226 or 227 of the Constitution of India will not be
entitled to sit in judgment over the factual conclusions arrived at
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by the Tribunal on appreciation of the evidence available before
it. In this case, having regard to the evidence that was available
before the Tribunal, as disclosed from Exts.P3 to P9, I cannot say
that this is a case of no evidence or that the conclusions of the
Tribunal are perverse. If so, the first plea of the learned counsel
for the petitioner that this is a case of no evidence is only to be
rejected. Further, the contradictions pointed by the petitioner are
also not on material particulars and do not warrant rejection of
the evidence.
7. The other contention raised by the learned counsel for
the petitioner is that before the enquiry report was accepted by
the disciplinary authority, the delinquent was not furnished a copy
of the report submitted by the Vigilance Tribunal and that he was
not allowed to make his representation against the findings in the
enquiry report.
8. From the materials produced, it would appear that
before the issuance of Ext.P11 show cause notice proposing
punishment, the enquiry report was not served on the petitioner.
According to the learned counsel, this is in violation of natural
justice and for that reason, the punishment imposed deserves to
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be interfered with. He heavily relied on the judgment in
Managing Director, ECIL, Hyderabad etc. v. B.Karunakar
etc. (AIR 1994 SC 1074). However, a reading of this judgment
itself would show that failure to furnish a copy of the report will
not result in the automatic invalidation of the proceedings against
a delinquent unless the Court is satisfied that prejudice has been
caused to the delinquent. In a case, where violation of the
principles of natural justice is pleaded, it is up to the delinquent to
plead and prove that because of violation of principles of natural
justice, prejudice has been caused to him. ECIL judgment (Supra)
itself has been subsequently explained by the Apex Court in
several judgments. Haryana Financial Corporation and
Another v. Kailash Chandra Ahuja (2008(9) SCC 31) is one
such judgment, wherein paragraph 44 reads as under :-
“44. From the aforesaid decisions, it is clear that though
supply of report of the inquiry officer is part and parcel of
natural justice and must be furnished to the delinquent
employee, failure to do so would not automatically result in
quashing or setting aside of the order or the order being
declared null and void. For that, the delinquent employee
has to show “prejudice”. Unless he is able to show that
non-supply of report of the inquiry officer has resulted in
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cannot be held to be vitiated. And whether prejudice had
been caused to the delinquent employee depends upon the
facts and circumstances of each case and no rule of
universal application can be laid down.”
9. The averments in the writ petition do not disclose even
a plea that due to non supply of report, any prejudice has been
caused to the petitioner and therefore in the absence of proof of
prejudice, this plea is only to be rejected.
10. Further contention raised by the counsel for the
petitioner is that although he asked for a copy of the enquiry
report by invoking the provisions of the Right to Information Act,
in Ext.P14, stating that a copy of the report has already been
furnished, his request has been rejected. In so far as this plea is
concerned, I should state that in Ext.P11 show cause notice, it is
stated that copy of the report of the Vigilance Tribunal is
appended. If the report was not appended as stated in the show
cause notice, the first opportunity available for the petitioner to
raise that plea was on the occasion when he filed his reply to
Ext.P11 show cause notice. Ext.P12 is the reply filed by him, and
there is no averment in Ext.P12 to the effect that the report of the
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Vigilance Tribunal was not furnished to him along with Ext.P11
show cause notice. If that be so, the belated contention that a
copy of the enquiry report was not furnished and that therefore
the statement in Ext.P14 that a copy has already been furnished
is incorrect, cannot be accepted and are only to be rejected.
11. The other contention that was urged by the learned
counsel for the petitioner is that a reading of Ext.P10
recommendation of the Vigilance Tribunal itself show that the
Tribunal has relied entirely on hearsay evidence. According to
him, hearsay evidence is inadmissible in law and therefore the
Tribunal could not have relied on the same. However, the enquiry
in question is only into the misconducts alleged against the
petitioner in Ext.P1 charge sheet that was issued to him. Unlike
a criminal case where the proceedings are regulated by the
provisions of the Evidence Act and other statutes, all that is
required to be complied with in a disciplinary proceedings is
natural justice by ensuring fairness and reasonable opportunity to
the delinquent. There is absolutely no prohibition either in the
rules of fairness or natural justice governing disciplinary enquiry
or elsewhere, preventing the enquiry officer or disciplinary
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authority from relying on even hearsay evidence. In State of
Haryana v. Rattan Singh (1977(2) SCC 491), it has been held
that it is well settled that in a domestic enquiry the strict and
sophisticated rules of evidence may not apply and that all
materials which are logically probative for a prudent mind are
permissible. It is held that “there is no allergy to hearsay
evidence provided it has reasonable nexus and credibility”. This
principle has been reiterated in the subsequent judgments in
J.D.Jain v. Management of State Bank of India (1982(1) SCC
143) and Workmen of Balmadies Estates v. Management,
Balmadies Estates and others (2008(4) SCC 517). Petitioner
also has not shown me any judgment which supports his plea that
hearsay evidence is inadmissible in a disciplinary proceedings. In
such circumstances, I see absolutely no merit in this contention as
well.
12. As already stated, the charge against the petitioner
was that he abused his official position as public servant and
committed criminal misconduct by demanding bribe of Rs.2,000/-
from deceased Sri.Saseendran threatening that his son Sri.Rajeev,
accused in Crime No.10/02 of Nedumkandam Police Station would
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be tortured if bribe was not given and accepted Rs.200/- leading
to suicide of Sri.Saseendran. The misconduct was held proved.
Despite the gravity of the misconduct, the punishment
recommended and imposed on the petitioner is barring of two
increments and that too without cumulative effect. Having regard
to the nature of the misconduct proved against the petitioner, by
any standards, I cannot hold that this punishment is a
disproportionate one warranting interference in a writ
proceedings.
No other points are raised. Writ petition fails and is
dismissed.
ANTONY DOMINIC, JUDGE
Rp