IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 OP.No. 32221 of 2001(J) ----------------------- PETITIONER(S): --------------------- K.S.PRAKASAN, FORESTER, SOCIAL FORESTRY, THRISSUR, RESIDING AT KALARIKKAL HOUSE, CIVIL LANE, NGO QUARTER IV/I, AYYANTHOLE, THRISSUR DT. BY ADV. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): ----------------------- 1. STATE OF KERALA REP.BY THE SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE (A) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE PRINCIPAL CHIEF FOREST CONSERVATOR (D&P) TRIVANDRUM. 3. THE CONSERVATOR OF FOREST, THRISSUR 4. THE DIVISIONAL FOREST OFFICER, MALAYATTOOR.XZ C SR.GOVERNMENT PLEADER SRI.P.NANDAKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.32221/01 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF THE MEMO OF CHARGES DT 8.3.93. EXT.P2: COPY OF THE REPORT DT 31.5.94 BY THE ENQUIRY OFFICER. EXT.P3: COPY OF THE SHOW CAUSE NOTICE DT 1.8.94 ISSUED BY THE 4TH RESPONDENT. EXT.P4: COPY OF THE EXPLANATION DT 1.10.94 SUBMITTED BY THE PETITIONER. EXT.P5: COPY OF THE ORDER DT 25.10.94 OF THE 4TH RESPONDENT TO THE PETITIONER IMPOSING THE PUNISHMENT. EXT.P6: COPY OF THE MEMORANDUM OF APPEAL DT 6.2.95 FILED BY THE PETIITOENR BEFORE THE 3RD RESPONDENT. EXT.P7: COPY OF THE ORDER DT 22.11.1995 HOLDING THAT THERE IS NO GROUNDS TO INTERFERE WITH EXT.P5 ORDER ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXT.P8: COPY OF THE ORDER NO.B4-34784/96 DT 4.4.98 OF THE 2ND RESPONDENT. EXT.P9: COPY OF THE MEMORANDUM OF APPEAL DT 30.7.98 SUBMITED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P10: COPY OF THE ORDER DT 16.1.01 PASSED BY THE 1ST RESPONDENT AGAINST EXT.P9 APPEAL. EXT.P11: COPY OF THE JUDGMENT OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MUVATTUPUZHA IN ST NO.565 OF 1993. EXT.P12: COPY OF THE ORDER DT 9.11.92 ISSUED BY THE DEPUTY RANGER, FOREST STATION, IDAMALAYAR. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ O.P. NO. 32221 OF 2001 (J) ===================== Dated this the 26th day of May, 2010 J U D G M E N T Petitioner was a Forest Guard. While he was working in the Malayattoor Division, he was served Ext.P1 memo of charges. The charges were of dereliction of duties, indiscipline, assault of superior officers and misuse of departmental vehicles. Petitioner submitted his explanation. Explanation was found to be unsatisfactory, enquiry was conducted and Ext.P2 is the report of the Enquiry Officer, where all the charges were held proved. On receipt of the enquiry report, findings were accepted by the Disciplinary Authority and Ext.P3 show cause notice was issued to the petitioner proposing to impose a punishment of barring two increments with cumulative effect. He submitted Ext.P4 explanation pleading innocence and seeking to be exonerated of the charges. By Ext.P5 order, the disciplinary authority confirmed the penalty proposed in Ext.P3. 2. Ext.P6 appeal was filed to the 3rd respondent, which was rejected by Ext.P7. Further appeal to the 2nd respondent and Review before the 1st respondent, were rejected by Exts.P8 and OP No.32221/01 :2 : P10 orders respectively. It is in these circumstances, the original petition is filed seeking to quash the aforesaid proceedings. 3. The first contention raised by the learned Senior Counsel appearing for the petitioner is that on the allegation that the petitioner had tresspassed into the quarters of the superior officer and assaulted him, there was a criminal case against him. The case was charge sheeted as ST Case No.565/93 on the file of the Judicial First Class Magistrate Court-I, Muvattupuzha. It is stated that, in the criminal case, he was acquitted by Ext.P11 judgment, and that, therefore, the petitioner could not have been held guilty of the related charge in Ext.P5. In support of this contention, learned Senior Counsel also placed reliance on the Apex Court judgments in G.M.Tank v. State of Gujarat and Others {2006 (5) SCC 446} and Basanti Prasad v. Chairman, Bihar School Examination Board and others {2009(6) SCC 791}. 4. In my view, as has been repeatedly held by the Apex Court, if an act committed by a Government servant is also a misconduct in terms of the Service Rules, in addition to criminal proceedings, he shall also be proceeded in departmental proceedings. However, if in the criminal case, the employee has OP No.32221/01 :3 : been honourably acquitted, that finding of the criminal court may have an impact in the departmental proceedings, where the standard of proof required is that of preponderance of probability unlike the strict standard of proof insisted in criminal cases. Therefore, the first question which may have to be examined is whether Ext.P11 reflects a honourable acquittal. Ext.P11 judgment shows that the occurrence witnesses turned hostile and the court acquitted the petitioner for want of evidence. This, in my view, cannot be said to be a case of honourable acquittal, which requires the delinquent to be acquitted free from all blames. Therefore, Ext.P11 judgment of the criminal court could not have any impact on the finding of guilt as entered in Ext.P2 report or Ext.P5 order imposing penalty. If that be so, the judgment relied on by the learned Senior Counsel for the petitioner cannot help the petitioner to get himself exonerated of the charges. 5. That apart, a reading of Ext.P11 judgment shows that the only allegation which was subject matter of that criminal case was that the petitioner had tresspassed into the residential quarters of the superior officer and assaulted him. A reading of Ext.P1 memo of charges and Ext.P2 report show that although this was also one of the misconducts alleged, dereliction of duties OP No.32221/01 :4 : and unuauthorised use of departmental vehicles were also charged against the petitioner. These misconducts were also proved against him and the punishment was imposed taking into account those misconducts as well. Therefore, Ext.P11 by itself does not help the petitioner to successfully impugn the punishment imposed. 6. The other contention raised by the learned Senior Counsel for the petitioner is that the evidence adduced by the petitioner were not appreciated by the enquiry officer or the disciplinary authority. Ext.P2 is the enquiry report. A reading of Ext.P2 shows that the enquiry officer has dealt with the entire evidence adduced and it gives the impression that the findings of the enquiry officer are consistent with the evidence adduced by both sides. This Court in exercise of the powers under Article 226 of the Constitution of India can interfere with the finding of fact only in a case where the findings can be characterised as perverse in the sense that it will not be arrived at by a person reasonably advised facts and law on the subject. A perusal of Ext.P2 does not persuade me to think that this report falls in anyone of those categories, in which event alone, can the findings be interfered with in a writ petition. OP No.32221/01 :5 : 7. The surviving question is whether the punishment imposed is disproportionate to the misconducts proved against the petitioner. The misconducts, as already stated, included tresspass into the residential quarters of the superior officer, assaulting him, dereliction of duties and unauthorised use of departmental vehicles. These misconducts have been proved against the petitioner in a properly conducted enquiry. 8. Having regard to the gravity of the misconducts proved against the petitioner, I do not think that the punishment of barring of two increments with cumulative effect can be one, which is shockingly disproportionate, warranting interference in a proceedings under Article 226 of the Constitution of India. 9. Even apart from all this, facts show that, this is a case where the disciplinary authority, appellate authority and the reviewing authorities have all examined the matter, and have concurrently held against the petitioner. Such a concurrent finding cannot be interfered with, except in extreme cases of arbitrariness or perversity. Such a ground also is not made out. In the result, original petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp