High Court Kerala High Court

N.Hari vs State Of Kerala on 4 August, 2010

Kerala High Court
N.Hari vs State Of Kerala on 4 August, 2010
       

  

  

 
 
  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.
                -----------------------------------------
                       O.P.No.35246 of 2002
                -----------------------------------------
              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

O.P.No.35246 of 2002
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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