{"id":7171,"date":"2010-08-04T00:00:00","date_gmt":"2010-08-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-hari-vs-state-of-kerala-on-4-august-2010"},"modified":"2017-02-21T15:31:31","modified_gmt":"2017-02-21T10:01:31","slug":"n-hari-vs-state-of-kerala-on-4-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-hari-vs-state-of-kerala-on-4-august-2010","title":{"rendered":"N.Hari vs State Of Kerala on 4 August, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
N.Hari vs State Of Kerala on 4 August, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nOP.No. 35246 of 2002(U)\n\n\n1. N.HARI, S\/O.P.NARAYANA PILLAI,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY THE\n                       ...       Respondent\n\n2. THE PRINCIPAL SECRETARY,\n\n3. THE PRINCIPAL SECRETARY, GENERAL\n\n                For Petitioner  :SRI.P.S.SREEDHARAN PILLAI\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice P.N.RAVINDRAN\n\n Dated :04\/08\/2010\n\n O R D E R\n                         P.N.RAVINDRAN, J.\n                -----------------------------------------\n                       O.P.No.35246 of 2002\n                -----------------------------------------\n              Dated this the 4th day of August, 2010\n\n                              JUDGMENT\n<\/pre>\n
           The petitioner, a Selection Grade Assistant working in the<\/p>\n
Administrative Secretariat at Trivandrum, has filed this original petition<\/p>\n
challenging Ext.P2 enquiry report, Ext.P3 show cause notice calling<\/p>\n
upon him to show cause why the punishment of reduction in rank to<\/p>\n
the lower post for a period of five years should not be imposed on him<\/p>\n
and Ext.P5 order passed by the Government imposing              the said<\/p>\n
punishment on him. The brief facts of the case are as follows.<\/p>\n
              2. While the petitioner was working as Selection Grade<\/p>\n
Assistant  in   the  General     Administration   Department     in   the<\/p>\n
Administrative Secretariat at Trivandrum, a memo of charges dated<\/p>\n
18-2-1999 was issued to him. The petitioner submitted his written<\/p>\n
statement of defence denying the charges on 31.3.1999.                The<\/p>\n
Government thereafter issued Ext.P1 order dated 12.11.1999 referring<\/p>\n
the charges against the petitioner to the Vigilance Tribunal,<\/p>\n
Trivandrum for enquiry under the Kerala Civil Service (Vigilance<\/p>\n
Tribunal) Rules, 1960. The Vigilance Tribunal, after enquiry, submitted<\/p>\n
Ext.P2 report dated 16-8-2000 finding the petitioner guilty of the<\/p>\n
O.P.No.35246 of 2002
\n                                   -:2:-<\/span><\/p>\n
charges    levelled  against   him.     The   Vigilance   Tribunal    also<\/p>\n
recommended imposition of the penalty of reduction in rank to the<\/p>\n
lower post for a period of five years. The Government after considering<\/p>\n
Ext.P2 enquiry report, provisionally decided to impose the punishment<\/p>\n
of reduction in rank to the lower post for a period of five years on the<\/p>\n
petitioner. Ext.P3 show cause notice dated 20-10-2000 was thereupon<\/p>\n
issued.   The petitioner submitted Ext.P4 reply dated 18-12-2000<\/p>\n
wherein he also prayed that before final orders are passed he may be<\/p>\n
given an opportunity of being heard.       The Government thereafter<\/p>\n
passed Ext.P5 order dated 11-11-2002 imposing on the petitioner the<\/p>\n
penalty of reduction in rank to the lower post for a period of five years.<\/p>\n
            3. The main contention raised in the original petition is<\/p>\n
that a copy of Ext.P2 enquiry report was not furnished to the petitioner<\/p>\n
before Ext.P3 show cause notice was issued thereby violating the<\/p>\n
express stipulation in that regard in rule 15(12) of the Kerala Civil<\/p>\n
Services (Classification, Control and Appeal) Rules, 1960.           It is<\/p>\n
contended that as the Government had arrived at a provisional<\/p>\n
decision to impose on the petitioner the punishment of reduction in<\/p>\n
rank to the lower post for a period of five years, without furnishing a<\/p>\n
copy of the enquiry report to the petitioner and without affording him<\/p>\n
an opportunity to object to the findings therein, the entire proceedings<\/p>\n
O.P.No.35246 of 2002
\n                                   -:3:-<\/span><\/p>\n
is vitiated. It is also contended that as the charge levelled against the<\/p>\n
petitioner in the memo of charges has not been proved, the order<\/p>\n
imposing punishment is liable to be set aside and that in any view of<\/p>\n
the case the punishment imposed is disproportionate to the gravity of<\/p>\n
the proved charge.\n<\/p>\n
            4. The respondents have filed a counter affidavit resisting<\/p>\n
the original petition.    It is stated that as the written statement<\/p>\n
submitted by the petitioner to the memo of charges was found not<\/p>\n
satisfactory the Government decided to refer the case to the Vigilance<\/p>\n
Tribunal, Trivandrum for detailed enquiry. It is contended that the<\/p>\n
Vigilance Tribunal, after evaluating the evidence adduced by both sides<\/p>\n
in the enquiry, found the petitioner guilty of demanding illegal<\/p>\n
gratification from PW1 as a motive for arranging a job under the dying<\/p>\n
in harness scheme and based on the findings and the recommendation<\/p>\n
of the Vigilance Tribunal the Government provisionally decided to<\/p>\n
impose on the petitioner the punishment of reduction in rank to the<\/p>\n
lower post for a period of five years, that a copy of the report of the<\/p>\n
vigilance enquiry was furnished to the petitioner along with Ext.P3<\/p>\n
show cause notice, that the petitioner submitted a detailed explanation<\/p>\n
and that it was after examining the entire facts that the Government<\/p>\n
finalised the disciplinary proceedings by imposing the penalty of<\/p>\n
O.P.No.35246 of 2002
\n                                     -:4:-<\/span><\/p>\n
reduction in rank to the lower post for a period of five years.<\/p>\n
            5. I heard Sri.O.V.Radhakrishnan, learned Senior Counsel<\/p>\n
appearing for the petitioner and Sri.K.Sandesh Raja, learned<\/p>\n
Government Pleader appearing for the respondents. I have also gone<\/p>\n
through the pleadings and the materials on record and the files<\/p>\n
relating to the enquiry which were made available to me by the<\/p>\n
learned Government Pleader.            The charge levelled against the<\/p>\n
petitioner in the memo of charges dated 18.2.1999 that was served on<\/p>\n
him on 5.3.1999 reads as follows:-\n<\/p>\n
             “THAT YOU, Sri.N.Hari, while working as Assistant<\/p>\n
             Grade I of (M) Section in General Education<\/p>\n
             Department,     Secretariat,   Thiruvananthapuram<\/p>\n
             during July 1995, demanded a sum of Rs.25,000\/-<\/p>\n<\/blockquote>\n
             as    illegal  gratification    from   Sri.K.Vinod,<\/p>\n
             S\/o.T.K.Narayanan, Kundoli Kunnumpuram Veedu,<\/p>\n
             Pothuvacheri   P.O.,   Kannur    on 19.7.1995    at<\/p>\n
             Secretariat, Thiruvananthapuram as a motive for<\/p>\n
             arranging a job to him under Dying in harness<\/p>\n
             Scheme     as mentioned in the statement of<\/p>\n
             allegation.\n<\/p><\/blockquote>\n
             By your action you have failed to maintain absolute<\/p>\n
             integrity and devotion to duty.”<\/p>\n<\/blockquote>\n
The allegation levelled against the petitioner was that he had on<\/p>\n
19.7.1995 demanded the sum of Rs.25,000\/- as illegal gratification<\/p>\n
O.P.No.35246 of 2002
\n                                     -:5:-<\/span><\/p>\n
from Sri.K.Vinod, S\/o.T.K.Narayanan, Kundoli Kunnumpuram Veedu,<\/p>\n
Pothuvacheri P.O., Kannur as a motive for arranging a job to him under<\/p>\n
the dying in harness scheme. The petitioner denied the said charge.<\/p>\n
He contended that he had neither seen Sri.K.Vinod nor demanded any<\/p>\n
illegal gratification from him as alleged.\n<\/p>\n
             6. Before the Vigilance Tribunal Sri.Vinod was examined as<\/p>\n
PW1. He deposed before the Vigilance Tribunal that he had submitted<\/p>\n
an application before the Government in the year 1992 for<\/p>\n
employment assistance under the dying in harness scheme consequent<\/p>\n
on the death of his father Sri.T.K.Narayanan, P.D. Teacher,<\/p>\n
Government U.P. School, Neerchal, Kannur District, that the said<\/p>\n
application was rejected on the ground that he has not attained the<\/p>\n
age of 18 years, that after attaining the age of 18 years he submitted a<\/p>\n
fresh application, that on 15.7.1995 a person by name Sri.Thomas met<\/p>\n
him at his house and told him that he has been sent from the<\/p>\n
Secretariat in connection with his application for employment<\/p>\n
assistance, that a sum of Rs.25,000\/- was required in cash in<\/p>\n
connection with the said application, that he expressed inability to pay<\/p>\n
that much amount, that Sri.Thomas thereupon asked him to<\/p>\n
accompany him to Trivandrum on 19.7.1995, that he and Sri.Thomas<\/p>\n
accordingly left for Trivandrum by train on 19.7.1995 and reached<\/p>\n
O.P.No.35246 of 2002
\n                                   -:6:-<\/span><\/p>\n
Trivandrum the next day morning and that by about 10.30 a.m. on<\/p>\n
20.7.1995 Sri.Thomas took him to the Secretariat and introduced him<\/p>\n
to the petitioner. He further deposed that they had a talk under a tree<\/p>\n
in the Secretariat compound, that the petitioner thereupon told him<\/p>\n
that his normal demand for arranging employment is Rs.1,00,000\/-,<\/p>\n
that he is prepared to reduce the amount to Rs.25,000\/-, that when<\/p>\n
he expressed difficulty and refused to accede to the demand,<\/p>\n
Sri.Thomas     told him that he need only hand over a cheque for<\/p>\n
Rs.25,000\/-, that Sri.Thomas asked him to obtain Rs.1,000\/- from<\/p>\n
some one, open an account in a bank so as to get a cheque book and<\/p>\n
to hand over the cheque on 27.7.1995 at Payyannur bus stand.         He<\/p>\n
further deposed that on 21.7.1995 he met PW2, an Upper Division<\/p>\n
Clerk in the Legal Metrology Department, who advised him not to hand<\/p>\n
over the cheque, that he stayed with P.W.2 in the NGO quarters and<\/p>\n
on the next day he accompanied PW2 and one Sri.Chandran Pillai to<\/p>\n
the Secretariat, that on enquiries made it was known that orders have<\/p>\n
already been passed on 4.7.1995 appointing him but the file was<\/p>\n
missing, that thereupon he and PW2 met Sri.Sathyan Mokeri and<\/p>\n
E.P.Jayarajan, M.L.As and narrated the incident to them and as per<\/p>\n
their instructions petitions addressed to the Hon’ble the Chief Minister<\/p>\n
and the Hon’ble Education Minister were handed over to them, that the<\/p>\n
O.P.No.35246 of 2002
\n                                  -:7:-<\/span><\/p>\n
issue was also raised in the Assembly, that the file was traced out on<\/p>\n
3.8.1995 and thereafter the appointment order was issued to him.<\/p>\n
            7. P.W.2, an Upper Division Clerk in the Legal Metrology<\/p>\n
Department, had only deposed about the events that happened from<\/p>\n
21.7.1995 onwards.       P.W.3, who was the Under Secretary to<\/p>\n
Government, in charge of P and M sections of the General Education<\/p>\n
Department during the relevant period, had only deposed that the<\/p>\n
petitioner was working as an Assistant in M Section of the General<\/p>\n
Education Department and that he was dealing with land acquisition for<\/p>\n
Government schools. She also deposed that P3 section was dealt with<\/p>\n
by PW5, that she has no personal knowledge about the allegations<\/p>\n
levelled against the petitioner, that she came to know from PW5 the<\/p>\n
Assistant in charge of the P3 section that the file relating to the<\/p>\n
appointment of PW1 was dealt with in P3 section and that a talk was<\/p>\n
going on in the section that the petitioner had demanded illegal<\/p>\n
gratification from PW1.    P.W.4, the Section Officer in charge of P<\/p>\n
Section of the General Education Department, also deposed in the<\/p>\n
same lines. P.W.5 deposed that complainant had informed him that<\/p>\n
the petitioner had demanded illegal gratification. P.W.6, an employee<\/p>\n
of the Fisheries Department, deposed that he had occasion to go to the<\/p>\n
N.G.O. Home where he met PW1 who was introduced to him by<\/p>\n
O.P.No.35246 of 2002
\n                                 -:8:-<\/span><\/p>\n
Sri.K.K.Thomas, who was also working in the Fisheries Department,<\/p>\n
that he thereupon came to know that one Sri.Thomas had approached<\/p>\n
PW1 and demanded illegal gratification for arranging a job under the<\/p>\n
dying in harness scheme. On the side of the petitioner, D.W.1, a Peon<\/p>\n
in the office of P.W.3 (the Under Secretary in charge of P and M<\/p>\n
Sections of the General Education Department) was examined.          He<\/p>\n
deposed that the petitioner is an active member of the Union led by<\/p>\n
the BJP and P.Ws. 3 and 5 are members of the Secretariat Employees<\/p>\n
Association owing allegiance to the Left Front. He also deposed that<\/p>\n
P.W3 was in the habit of taking files to her residence, that though<\/p>\n
P.W.3 had informed him that the file relating to the appointment of<\/p>\n
PW1 was missing, P.W.3 herself told him on 25-7-1995 that the<\/p>\n
missing file has been traced out.\n<\/p>\n
            8. The Tribunal on an analysis of the evidence, oral and<\/p>\n
documentary, held that the charge against the petitioner has been<\/p>\n
proved and that the date of demand mentioned in the memo of<\/p>\n
charges is apparently a mistake that crept in while drafting the charge.<\/p>\n
The charge levelled against the petitioner in the memorandum of<\/p>\n
charges dated 18.2.1999 was that he had on 19.7.1995 demanded<\/p>\n
from Sri.K.Vinod, S\/o.T.K.Narayanan, Kundolikunnumpuram Veedu,<\/p>\n
Pothuvacheri P.O., Kannur, the sum of Rs.25,000\/- as illegal<\/p>\n
O.P.No.35246 of 2002
\n                                  -:9:-<\/span><\/p>\n
gratification for arranging a job under the dying in harness scheme.<\/p>\n
The vigilance enquiry against the petitioner was initiated upon a<\/p>\n
petition dated 2.8.1995 submitted by him before the Hon’ble Minister<\/p>\n
for Education.    A copy thereof was marked as Ext.P1 before the<\/p>\n
Vigilance Tribunal.   It is alleged therein that    a person by name<\/p>\n
Sri.Thomas met him at his house and told him that he has been sent<\/p>\n
from the Secretariat in connection with his application, that a sum of<\/p>\n
Rs.25,000\/- was required in cash in connection with the said<\/p>\n
application, that he expressed inability to pay that much amount, that<\/p>\n
Sri.Thomas thereupon asked him to accompany him to Trivandrum on<\/p>\n
19.7.1995, that he and Sri.Thomas accordingly left for Trivandrum by<\/p>\n
train on 19.7.1995 and reached Trivandrum the next day morning and<\/p>\n
that by 10.30 a.m. on 20.7.1995 Sri.Thomas took him to the<\/p>\n
Secretariat and introduced him to the petitioner and they together<\/p>\n
demanded the sum of Rs.25,000\/- from him. The said complaint was<\/p>\n
submitted to the Hon’ble Minister for Education by Sri.Sathyan Mokeri,<\/p>\n
MLA along with his letter dated 3.8.1995.       On the said letter the<\/p>\n
Hon’ble Minister for Education ordered a vigilance enquiry. A reading<\/p>\n
of the complaint dated 2.8.1995 (Ext.P1 before the Vigilance Tribunal)<\/p>\n
discloses that the petitioner had made the alleged demand for illegal<\/p>\n
gratification on 19.7.1995 and that the file went missing on 20.7.1995.<\/p>\n
O.P.No.35246 of 2002
\n                                   -:10:-<\/span><\/p>\n
In the petition addressed to the Hon’ble the Chief Minister (Ext.P2<\/p>\n
before the Vigilance Tribunal) the allegation is that the demand for<\/p>\n
illegal gratification was made on 21.7.1995. Thus in two complaints<\/p>\n
bearing the same date, one addressed to the Hon’ble the Chief Minister<\/p>\n
and the other to the Hon’ble Minister for Education, PW1 the<\/p>\n
complainant had given two different versions regarding the date on<\/p>\n
which the petitioner is said to have made the demand for the sum of<\/p>\n
Rs.25,000\/-.     When questioned by the Inspector General of Police,<\/p>\n
PW1 had stated that the demand for illegal gratification was made on<\/p>\n
20.7.1995.\n<\/p>\n
             9. The files disclose that Sri.K.Vinod, PW1, was appointed<\/p>\n
by G.O(MS)No.394\/95\/G.Edn. dated 3.8.1995.              It refers to his<\/p>\n
application dated 25.9.1991 that was initially rejected and the revised<\/p>\n
application dated 15.5.1995 submitted by him.             The complaint<\/p>\n
submitted by PW1 to the Hon’ble Minister for Education, (Ext.P1 before<\/p>\n
the Vigilance Tribunal) was placed before the Hon’ble Minister only on<\/p>\n
3.8.1995 by Sri.Sathyan Mokeri, MLA along with his letter dated<\/p>\n
3.8.1995. But the original thereof shows that a vigilance enquiry was<\/p>\n
ordered by the Hon’ble Minister for Education on 2.8.1995 itself. The<\/p>\n
Vigilance Tribunal, however, held that though there is a discrepancy<\/p>\n
with regard to the date, it is insignificant. Likewise, even after holding<\/p>\n
O.P.No.35246 of 2002
\n                                    -:11:-<\/span><\/p>\n
that though the file relating to PW1’s appointment was missing from<\/p>\n
5.7.1995 to 3.8.1995 it has not been proved that it was the petitioner<\/p>\n
who was responsible for the same, the Tribunal proceeded to hold that<\/p>\n
it would not have been difficult for the petitioner who was seated near<\/p>\n
the concerned section to watch the movement of the file, get<\/p>\n
acquainted with the file and the order passed regarding the<\/p>\n
appointment of PW1 and that this probabilises the prosecution version<\/p>\n
regarding the demand for illegal gratification by the petitioner. Even in<\/p>\n
the background of these glaring inconsistencies, the Tribunal held in<\/p>\n
Ext.P2 report that the demand of Rs.25,000\/- as illegal gratification by<\/p>\n
the petitioner has been proved. The Tribunal however held that the<\/p>\n
evidence of P.Ws 2 to 6 regarding the alleged demand of illegal<\/p>\n
gratification by the petitioner is only hearsay in nature.<\/p>\n
            10. The Government did not immediately forward a copy<\/p>\n
of Ext.P2 enquiry report to the petitioner. Instead the Government<\/p>\n
decided to provisionally impose the punishment of reduction in rank to<\/p>\n
the lower post for a period of five years and thereafter issued Ext.P3<\/p>\n
show cause notice dated 20.10.2000 calling for the petitioner’s<\/p>\n
explanation. Along with that show cause notice a copy of the enquiry<\/p>\n
report was forwarded to the petitioner.        The petitioner thereupon<\/p>\n
submitted Ext.P4 reply dated 18.12.2000, running into 28 pages,<\/p>\n
O.P.No.35246 of 2002
\n                                   -:12:-<\/span><\/p>\n
wherein he had analysed the evidence and canvassed the correctness<\/p>\n
of the findings in the enquiry report. The petitioner also prayed for an<\/p>\n
opportunity of being heard in person before orders are passed in the<\/p>\n
matter. The Government, without affording him such an opportunity,<\/p>\n
passed Ext.P5 order imposing the punishment of reduction in rank to<\/p>\n
the lower post for a period of five years.\n<\/p>\n
            11. The petitioner had in Ext.P4 reply pointed out to the<\/p>\n
Government the disparity in the case set out by the complainant in the<\/p>\n
complaints submitted to the Hon’ble Minister for Education and the<\/p>\n
Hon’ble the Chief Minister and also in the statement given by him to<\/p>\n
the Inspector General of Police. The Government did not however,<\/p>\n
advert to these aspects of the matter when it passed Ext.P5 order. As<\/p>\n
noticed earlier, the charge which the petitioner was called upon to<\/p>\n
defend was that he had on 19-7-1995 demanded the sum of<\/p>\n
Rs.25,000\/- as illegal gratification from Sri.K.Vinod, examined as PW1<\/p>\n
before the Vigilance Tribunal, as a motive for arranging a job under the<\/p>\n
dying in harness scheme. The enquiry report itself discloses that a<\/p>\n
decision had been taken by the Government on 25.6.1995 to appoint<\/p>\n
the complainant as Peon in the Education Department under the dying<\/p>\n
in harness scheme. The files disclose that a Government order, G.O<\/p>\n
(MS)No.394\/95\/G.Edn. dated 3.8.1995 was also issued thereafter. In<\/p>\n
O.P.No.35246 of 2002
\n                                 -:13:-<\/span><\/p>\n
the complaint submitted by PW1, Sri.K.Vinod before the Hon’ble the<\/p>\n
Chief Minister on 2.8.1995, a day before the aforesaid order was<\/p>\n
issued, the allegation was that the petitioner had demanded illegal<\/p>\n
gratification on 21.7.1995, while in the petition submitted before the<\/p>\n
Hon’ble Minister for Education on the same day, the alleged demand<\/p>\n
was on 19.7.1995. The version before Police was that the demand was<\/p>\n
on 20.7.1995. As noticed by the Tribunal itself, apart from the version<\/p>\n
given by PW1 there was no evidence to prove that the petitioner had<\/p>\n
demanded illegal gratification from PW1. The Tribunal had also held<\/p>\n
that though the file was missing from 5.7.1995 to 3.8.1995 the<\/p>\n
petitioner was not responsible for the same. The Tribunal had also<\/p>\n
noticed that the version given by PWs 2 to 6 that the petitioner had<\/p>\n
demanded illegal gratification from PW1 is only hearsay evidence.<\/p>\n
Notwithstanding these facts the Tribunal found that the petitioner’s<\/p>\n
seat was near to the concerned section where the file relating to the<\/p>\n
appointment of PW1 was handled and therefore, he was in a position to<\/p>\n
watch the movement of the file, get acquainted with the fact that<\/p>\n
orders had been passed for appointment of PW1 and therefore, the<\/p>\n
possibility of the petitioner removing the file and retaining it on the<\/p>\n
expectation of getting the money demanded by him cannot be ruled<\/p>\n
out and that this aspect operates as a circumstance probabilising the<\/p>\n
O.P.No.35246 of 2002
\n                                      -:14:-<\/span><\/p>\n
prosecution version regarding the demand of illegal gratification by the<\/p>\n
petitioner. I am afraid the said finding cannot be sustained.<\/p>\n
            12. The Tribunal has in paragraph 7.15 of Ext.P2 report<\/p>\n
held as follows:-\n<\/p>\n
            “So in all probability the missing of the file and its<\/p>\n
            reappearance on 3.8.1995 after the matter was<\/p>\n
            raised in the assembly is the handiwork of<\/p>\n
            someone who was having some vested interests<\/p>\n
            with the intention of making troubles to PW1. The<\/p>\n
            evidence does not lead to a conclusion that it was<\/p>\n
            the accused officer who was behind the missing of<\/p>\n
            the file.”\n<\/p><\/blockquote>\n
The Tribunal thereafter proceeded to hold as follows:-<\/p>\n
            “It is not so difficult for the accused officer who<\/p>\n
            was seated near the concerned section to watch<\/p>\n
            the movement of the file and get acquainted with<\/p>\n
            the fact that the orders were passed for the<\/p>\n
            appointment of PW1.        So the possibility of his<\/p>\n
            removing the file and retaining it on the<\/p>\n
            expectation of getting the money demanded by<\/p>\n
            him cannot be ruled out. So this aspect clearly<\/p>\n
            operates as a circumstance probabilising the<\/p>\n
            prosecution version regarding the demand of<\/p>\n
            illegal gratification by the accused officer.”<\/p>\n<\/blockquote>\n
In my opinion the said finding cannot be sustained in the light of the<\/p>\n
evidence on record. The finding of guilt entered by the Tribunal is<\/p>\n
O.P.No.35246 of 2002
\n                                  -:15:-<\/span><\/p>\n
based on mere surmises and conjectures.              The Tribunal has<\/p>\n
categorically held that the materials on record do not lead to the<\/p>\n
conclusion that the petitioner was responsible for the missing of the<\/p>\n
file. The Tribunal had also held that the testimony tendered by PWs 2<\/p>\n
to 6 regarding demand of illegal gratification by the petitioner is only<\/p>\n
hearsay. The Tribunal had also noticed the fact that PW1 had different<\/p>\n
versions regarding the date on which the alleged demand was made.<\/p>\n
He had given three different dates before three different authorities<\/p>\n
and before two of the authorities different versions were given on the<\/p>\n
same day. All these happened in close proximity to 3.8.1995, the date<\/p>\n
on which the Government had issued orders appointing PW1 the<\/p>\n
complainant, under the dying in harness scheme. In the light of the<\/p>\n
glaring disparity in the case spoken to by PW1, I am of the opinion<\/p>\n
that no safe reliance can be placed on his version to hold that the<\/p>\n
petitioner had demanded illegal gratification. Further the Tribunal has<\/p>\n
not found that the petitioner had demanded illegal gratification on<\/p>\n
19.7.1995 as alleged in the memo of charges.          19.7.1995 was a<\/p>\n
Wednesday.     It is not known whether the petitioner had attended<\/p>\n
office on 20.7.1995 or on 21.7.1995. The Tribunal has only found that<\/p>\n
it is proved that the petitioner had demanded illegal gratification and<\/p>\n
that the inconsistency in the date does not affect the prosecution case.<\/p>\n
O.P.No.35246 of 2002
\n                                  -:16:-<\/span><\/p>\n
In my opinion if the charge was that the petitioner had demanded<\/p>\n
illegal gratification on a day other than 19.7.1995 he could have<\/p>\n
defended the charge by proving that he was away elsewhere or that he<\/p>\n
was on leave or that due to some reason or other he could not have<\/p>\n
interacted with the complainant or even met him. The Tribunal has<\/p>\n
instead brushed aside the disparity in the dates as of no consequence.<\/p>\n
In other words, the Tribunal has found the petitioner guilty<\/p>\n
notwithstanding the disparity in the date, which according to me is<\/p>\n
crucial. The Tribunal had no cogent material before it to hold that the<\/p>\n
petitioner had in fact made a demand either on 19.7.1995 or on<\/p>\n
20.7.1995 or on 21.7.1995 for illegal gratification. The disparity in<\/p>\n
the dates, according to me, is a crucial aspect which would probabilise<\/p>\n
the case put forward by the petitioner that there was an attempt by<\/p>\n
certain interested persons to foist a false charge on him due to<\/p>\n
extraneous considerations including political rivalry. I am therefore, of<\/p>\n
the considered opinion that the finding of the Tribunal on the guilt of<\/p>\n
the petitioner is perverse and cannot be sustained.<\/p>\n
            I accordingly hold that the decision taken by the<\/p>\n
Government to impose on the petitioner the punishment of reduction<\/p>\n
in rank to the lower post for a period of five years cannot be sustained.<\/p>\n
In that view of the matter I do not propose to deal with the contention<\/p>\n
O.P.No.35246 of 2002
\n                                   -:17:-<\/span><\/p>\n
of the petitioner that the failure to serve a copy of the enquiry report<\/p>\n
before the Government provisionally took a decision to impose the said<\/p>\n
punishment on him and before issuance of Ext.P3 show cause notice<\/p>\n
vitiates the entire proceedings. I leave the said question open.<\/p>\n
            In the result I allow the original petition, quash Ext.P2<\/p>\n
enquiry report, Ext.P4 show cause notice and Ext.P5 Government<\/p>\n
order. The petitioner will be entitled to all consequential service<\/p>\n
benefits including seniority and emoluments.\n<\/p>\n<\/p>\n
                                               P.N.RAVINDRAN,
\n                                                     Judge.\n<\/p>\n
ahg.\n<\/p>\n
  P.N.RAVINDRAN, J.\n<\/p>\n
—————————\n<\/p>\n
 O.P.No.35246 of 2002\n<\/p>\n
—————————-\n<\/p>\n<\/p>\n
       JUDGMENT<\/p>\n
    4th August, 2010<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-7171","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nN.Hari vs State Of Kerala on 4 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/n-hari-vs-state-of-kerala-on-4-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"N.Hari vs State Of Kerala on 4 August, 2010 - 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