IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 WP(C).No. 520 of 2011(L) ----------------------------------- PETITIONER(S): ----------------------- S.JAGADAPPAN NAIR, S/O. M.SIVANKARA PILLAI, AGED 58 YEARS, VIGILANCE TRIBUNAL, (UNDER SUSPENSION), THIRUVANANTHAPURAM, RESIDING AT SREEJAGAM, SWAGATH LANE, ELIPPODE, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADVS. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE SRI.K.N.SASIDHARAN NAIR SRI.K.P.SUJESH KUMAR SRI.M.SUNIL RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 695 001. 2. THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.695 001. 3. THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM.695 001. R1 TO R3 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/04/2011, THE COURT ON 23/05/2011 DELIVERED THE FOLLOWING: tss W.P.(C) NO.520/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE G.O.(RT) NO.76/2001 DTD. 3.3.2001. P2:- COPY OF THE GOVERNMENT LETTER NO.4981/C3/2001 DTD. 10.7.2001. P3:- COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER DTD. 14.7.2003. P4:- COPY OF THE G.O.(RT) NO.166/2005 DTD. 3.6.2005. P5:- COPY OF THE G.O.(P) 65/92 DTD. 12.5.1992. P6:- COPY OF THE G.O.(RT) NO.218.2010 DT.D 30.12.2010. P7:- COPY OF THE G.O.(MS) 257/65 DT. 13.7.1965. P7:- COPY OF THE REPORT OF THE VIGILANCE ENQUIRY DTD. 11.11.2009. P8:- COPY OF THE REPORT OF THE 3RD RESPONDENT DTD. 11.10.2010 P9:- COPY OF THE REPORT PUBLISHED IN MATHRUBHOOMI DAILY DTD. 10.1.2011. P10:- COPY OF THE REPORT PUBLISHED IN MANGALAM DAILY DTD. 11.1.2011. P11:- COPY OF THE REPORT PUBLISHED IN MADHYAMAM DAILY DTD.9.1.2011. P12:- COPY OF THE REPORT PUBLISHED IN JANMABHOOMI DAILY DT. 9.1.2011. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 520 of 2011-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of May, 2011. JUDGMENT The writ petitioner who has been functioning as Vigilance Tribunal, is aggrieved by Ext.P6 order suspending him from service, pending disciplinary action. The background of the case as narrated in the writ petition, is the following: 2. It is pointed out that the appointment of Vigilance Tribunal is under Rule 3(3) of the Kerala Civil Services (Vigilance Tribunal) Rules, 1960. It is constituted by the Government to decide charges involving corruption on the part of Gazetted Officers in the service of the Government including police officers. It is pointed out that going by the rules, a person who has been or is eligible to be appointed as District and Sessions Judge, is eligible to be considered for appointment as Vigilance Tribunal. The conditions of service are governed by various executive orders. But going by Ext.P1 order, the Vigilance Tribunal is granted the same pay as applicable to District Judges. There are two Vigilance Tribunals in the State and the petitioner was initially appointed as Vigilance Tribunal, Kozhikode as per Ext.P3 order dated 14.7.2003 and was later wpc 520/2011 2 transferred as Vigilance Tribunal, Thiruvananthapuram on 3.6.2005 as per Ext.P4 order. He is in charge of cases arising from seven districts, viz. Thiruvananthapuram, Kollam, Alappuzha, Ernakulam, Pathanamthitta, Idukki and Kottayam. 3. It is pointed out that based on two complaints dated 6.12.2006 and 11.12.2008 from two non existing bodies raising allegations against the petitioner, an enquiry was ordered by the Government, to be conducted by the Vigilance Department. Ext.P5 is the order issued by the Government with regard to the procedure relating to the investigation and enquiry by the Vigilance Department and it is pointed out that the said procedure cannot be invoked against a judicial functionary. The petitioner contends that in Ext.P6 order the Government referred to the enquiry report and ordered that departmental action will be initiated for the lapses found on allegations 1, 7, 10 and 11 and cases will be registered by the Director of the Vigilance and Anti Corruption Bureau for lapses found on allegations 3 and 8. 4. The main ground raised in the writ petition relates to the invalidity of the vigilance enquiry, since Ext.P5 cannot be invoked against a person like the petitioner who is exercising judicial functions. Secondly, it is pointed out that allegations 1, 3, 7, 10 and 11 relate to the posting of cases in the camp sittings on various dates and this is governed by Rule 7(a) of the wpc 520/2011 3 Rules. It is therefore pointed out that the same cannot be a matter for departmental action, as the procedures are well protected. Reliance is placed on Section 2 of the Kerala Judicial Officers Protection Act which provides that “no judge or other person acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done in the discharge of his judicial duty.” It is further pointed out that the report also does not reveal any misconduct on the part of the petitioner. 5. The third respondent has filed a counter affidavit in the matter. 6. Heard Shri P.B. Suresh Kumar, learned counsel for the petitioner and Smt. Rani Diothima, learned Govt. Pleader appearing for the respondents. 7. The State has not filed any counter affidavit and the learned Govt. Pleader explained that the contentions answered in the counter affidavit already filed on behalf of the third respondent, have been adopted by the Government by filing a memo. 8. Shri Suresh Kumar, learned counsel for the petitioner contended that the petitioner has been appointed as Vigilance Tribunal and it is a statutory tribunal exercising various judicial functions and the vigilance enquiry against the Tribunal amounts to illegal interference in the independent and fearless exercise of functions by a judicial officer and wpc 520/2011 4 the judicial functions thus exercised cannot be a matter for vigilance enquiry. It is pointed out that the method adopted by the Government ordering vigilance enquiry against a Vigilance Tribunal cannot be held as valid as it amounts to interference in the independence and impartiality of judiciary, the importance of which was reiterated by the Apex Court in various decisions. Any interference by way of investigation into the exercise of functions by a judicial officer will affect the independence of judiciary and will have to be viewed seriously. It is pointed out that since departmental action is proposed only in respect of allegations 1, 3, 7, 10 and 11 which relate to various camp sittings of the Tribunal, it is well protected by Rule 7(a) of the Rules and it cannot be matter for departmental action. It is submitted that the petitioner had been conducting enquiries to the satisfaction of all persons, but disgruntled persons have cooked up these allegations and the Government straight away, even without conducting a preliminary enquiry, directed the vigilance enquiry, which belittles the stature of the Tribunal. It is pointed out that an officer in the cadre of Deputy Superintendent of Police had conducted the vigilance investigation and Ext.P6 order really affects the reputation of the petitioner. Finally, it is pointed out that the departmental action for such allegations need not result in an order of suspension, since the order of suspension is wpc 520/2011 5 not an administrative routine in such cases especially in the light of the high office held by the petitioner. 9. Learned Govt. Pleader, relying upon the averments in the counter affidavit, supported the order. 10. One thing to be noticed, going by Ext.P7 report, is that even though two complaints were received which were subjected to investigation, the complainants, in spite of sending of notice, did not respond. It is stated that the complainants could not be traced out and the same are pseudonymous.. 11. A reading of the report and the averments in the counter affidavit shows that the enquiry was originated on the basis of the complaint which was submitted by the President of the Advocates Association for Public Justice, Vanchiyoor, Thiruvananthapuram, before the Director of Vigilance and Anti Corruption Bureau. Evidently, it was not submitted before the Government which is the appointing authority. It appears that the Director thereafter sought for Government sanction for conducting vigilance enquiry which was ordered by the Government against the petitioner and two others. As evident from the counter affidavit, this was ordered by the Government by letter No.1682/C2/2007/Vig. dated 31.5.2007. The second complaint is by one person named Advocate Prabhukumar, Kumar Associates, wpc 520/2011 6 Vanchiyoor, Thiruvananthapuram. This was also forwarded by the Government to the Director, Vigilance and Anti Corruption Bureau, as per Government letter No.12787/C2/08/Vig. dated 2.2.2009 to conduct enquiry. The Director in turn forwarded this to the Superintendent of Police, Vigilance & Anti Corruption Bureau, Special Investigation Unit, Thiruvananthapuram. The report shows that the enquiry officer was in the cadre of Deputy Superintendent of Police. 12. The first question is whether the procedure prescribed by Ext.P5 will apply to the petitioner and hence will cut at the root of the matter. Ext.P5 is the Govt. Order dated 12.5.1992 (G.O.(P) No.65/92/Vig.) laying down the set up working and procedure relating to the investigation and enquiries by the Vigilance Department issued in supersession of the various Govt. Orders. Para 2 is under the heading “Nature of Duties”. It is stated that the object of the Vigilance Department is to combat effectively corruption and misconduct on the part of Government servants and public servants, particularly at the higher levels. The work will be confined to: (i) Government servants in the State, in respect of Crime cases and allegations of misconduct; and (ii) other public servants as defined in Section 2(c) of Prevention of Corruption Act, 1988 and the Kerala Criminal Law Amendment Act in respect of officers coming under the Prevention of wpc 520/2011 7 Corruption Act and the Indian Penal Code. It is evident from the said paragraph that with regard to the members of service in the Judicial Department only if the Department concerned makes a specific request, the Vigilance Department can conduct enquiries, apart from the members of Legislature Secretariat and Kerala Public Service Commission. 13. Learned counsel for the petitioner Shri Suresh Kumar contended that the petitioner will not be a public servant as contemplated in Ext.P5 and therefore he cannot be subjected to an investigation by the Vigilance Department. In fact, Section 2(c) of the Prevention of Corruption Act, 1988 defines public servant and sub para (iv) states as follows: “(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions.” Therefore, for the purpose of Prevention of Corruption Act, 1988 such persons will be public servants. Going by para 2 of Ext.P2, such public servants are also included therein. Apart from that, going by the facts of the case, this is a case where the Government directed the Director of Vigilance and Anti Corruption Bureau to conduct enquiry against the petitioner. The executive power of the Government under Article 162 of the Constitution is available in terms of the rules of business, to deal with such matters. wpc 520/2011 8 Herein, it cannot be disputed that the Government is the appointing authority. Therefore, the Government is having the power to decide as to how the allegations against the Tribunals including Vigilance Tribunal will have to be investigated. In that view of the matter also, it is not a case where the investigation/enquiry ordered based on the complaints are totally without jurisdiction. 14. Apart from that, the enquiry was ordered by the Government as per Govt. Letter No.1682/C2/2007/Vig. dated 31.5.2007 and the subsequent letter No.12787/C2/08/Vig. dated 2.2.2009 with regard to the second complaint. Both these are not directly under challenge in the writ petition. What is challenged is the order of suspension, Ext.P6. That the appointing authority is the Government, cannot be disputed. Therefore, the Government has got the power to suspend the petitioner. We are therefore only concerned with the validity of the order of suspension in this writ petition. Question is whether the reasons shown are really existing and whether there is proper application of mind. 15. As far as the Government's power is concerned, it is beyond doubt. When complaints, whether material or otherwise, are received by the Government, it can conduct a preliminary enquiry and satisfy itself as to the follow up action, if any, required to be taken in the matter. Of course, in wpc 520/2011 9 the light of the fact that the petitioner is functioning as Vigilance Tribunal, which is vested with wide powers, it would have been proper if the Government itself initially considered the gravity and veracity of the complaints to find out whether an enquiry by the Vigilance Department is warranted. The Vigilance Enquiry definitely has affected his reputation, especially since he has been performing the functions of the Tribunal with respect to enquiries against various officers. It does not appear that at the first stage any preliminary enquiry was held by the Government. The first complaint itself was addressed to the Director, Vigilance and Anti Corruption Bureau who sought sanction from the Government. Even though the contents of the letters under which the Government has granted such sanction, have not been placed before this Court, it can be presumed in the light of the narrations in the counter affidavit, that the Government merely granted sanction in a routine manner. This was really uncalled for. Therefore, learned counsel for the petitioner is right in submitting that a person like the petitioner who has been manning the office of the Vigilance Tribunal, should not have been subjected to such investigation by the officers under the third respondent straight away. The Government itself should have addressed the whole matter and should have decided the form of enquiry at the first stage itself, so as to avoid the wpc 520/2011 10 embarrassment and alleged humiliation. 16. The question is whether the suspension order is bad in law. Herein, the departmental action is contemplated in respect of items 1, 7, 10 and 11 mentioned in Ext.P6 order itself. They are the following: “1. The non-examination of witness at Thiruvananthapuram on 10.10.2006 who had come from Nedumkandom in Idukki District as warranted by SO-1. 7. SO-1 while holding charge of Vigilance Tribunal, Kozhikkode conducted more camp sittings at Palakkad. 10. SO-1 conducted more camp sitting without any disposal of cases and led to more pendency. 11. During the period from January 2007 to December 2007 only few sitting were conducted leading to pendency of cases.” Rule 7(a) of the Rules relied upon by the learned counsel for the petitioner is as follows: “7(a) The Tribunal may sit at such places in the State as it may determine with due regard to the convenience of the parties concerned and expenses involved.” Therefore, it is clear that as far as camp sittings are concerned, it is up to the Tribunal to determine the places with due regard to the convenience of the parties concerned and expenses involved. The report Ext.P7 shows that with regard to item No.1, the enquiry officer found that the allegations have wpc 520/2011 11 not been substantiated. Allegation No.3 relates to camp sitting at Kottayam on 2.7.2005. It was alleged that the date was fixed to attend the marriage function of the daughter of SO-2 after cancelling the posting fixed at Muvattupuzha in E.C. No.2/2005. Apart from taking statement from the petitioner, statements have been taken from the additional witnesses also. The case was posted to 18.6.2005 at Kottayam and was adjourned to 2.7.2005. After referring to various items of evidence, it was found that camp sitting was conducted but what is recorded is only a suspicion that it was made to attend the marriage function of the daughter of SO-2. Allegation No. 7 is with regard to the number of camp sittings at Palakkad and the allegation is that more camp sittings were held at Palakkad. Evidently, this was before he was transferred to Thiruvananthapuram as per Ext.P4 order dated 3.6.2005. No specific misconduct is found even by the enquiry officer as evident from the report, points out the learned counsel for the petitioner. The argument as above appears to be correct on a reading of the report and significantly it is mentioned that 12 Vigilance Cases were pertaining to Palakkad District and may be for this reason more camp sittings were held at Palakkad. With regard to item 10 that the petitioner had conducted more camp sittings, the enquiry officer has found nothing against him. He has only recommended to incorporate specific wpc 520/2011 12 provisions prescribing time limit for disposal of cases in the Kerala Civil Services (Vigilance Tribunal) Rules, 1960. The 11th allegation is that during the period from January 2007 to December 2007 only few sitting were conducted resulting in pendency of the cases. Herein, it was observed that the petitioner is exercising quasi judicial functions and sitting can be arranged according to the convenience of the parties and witnesses concerned and the allegation has not been established. 17. In fact, even a cursory reading of Ext.P6 order and the averments in the counter affidavit do not reveal that the Government has bestowed its attention to the findings in the report before passing Ext.P6 order, even though it is stated in Ext.P6 that the Government examined the report in detail. It is mentioned in the counter affidavit that the Superintendent of Police, Vigilance & Anti Corruption Bureau, Special Investigation Unit, Thiruvananthapuram scrutinized the evidence collected in the enquiry and concluded that the allegation numbers 1, 3, 7, 8, 10 and 11 and 18 are substantiated in evidence. He recommended to register case against the petitioner for offence under Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act for the third allegation. He had also recommended to register case against the petitioner under Section 13(2) read with Section 13(1)(e) of the Act for the allegation mentioned in item wpc 520/2011 13 8. It is further stated that the file was forwarded to the Legal Adviser for offering legal opinion and the Legal Adviser after scrutiny of the file with the connected records, endorsed the view of the Superintendent of Police and forwarded the file to the Director. The Director after scrutiny of the file forwarded the same to the Government with the connected records as per the directions in Ext.P5. Finally, it is averred that “the Government after fully and carefully examining the materials collected in the Vigilance enquiry”, took the further action as per Ext.P6 order. 18. It is evident from Ext.P6 that the suspension was ordered by the Government pending departmental action and not because of the registration of two cases against him. Learned counsel for the petitioner further pointed out that even with regard to allegation No.8 that he has acquired various assets, the petitioner had availed various loans and the allegations are not correct. It is pointed out that the properties purchased are shares of the family members like brother and sister. All the details relevant have been mentioned in Ext.P7 report itself and therefore it is contended that the allegations have no substance. 19. The Apex Court and this Court have laid down various principles which explain the nature of judicial power, including that of Tribunals. Learned counsel for the petitioner relied upon various decisions of the Apex wpc 520/2011 14 Court and this Court in this regard. In Jaswant Sugar Mills v. Lakshmi Chand (AIR 1963 SC 677), in para 11 the Apex Court considered the nature of a judicial decision in the following words: “A judicial decision is not always the act of a judge or a tribunal invested with power to determine questions of law of fact: it must however be the act of a body or authority invested by law with authority to determine questions or disputes affecting the rights of citizens and under a duty to act judicially. A judicial decision always postulates the existence of a duty laid upon the authority to act judicially.” A Division Bench of this Court in Beeran v. Rajappan (1980 KLT 210), in para 4 considered the impact of conferment of judicial powers on tribunals by statutes. With regard to the powers exercised by the tribunals, it was held thus: “It is the judicial power of the State that is exercised by a Court and a tribunal. But there is one difference. A court (a civil court) has judicial power of the State to try all suits of a civil nature excepting suits the cognizance of which is expressly or impliedly barred. But on the other hand, judicial power is statutorily conferred on a tribunal to deal with special matters. It will have some of the trappings of a court, but that by itself will not make it one among the hierarchy of courts established under the Constitution.” wpc 520/2011 15 20. The Apex Court in Registrar (Admn.) High Court of Orissa, Cuttak v. Sisir Kanta Satapathy (dead) by Lrs. and another {(1999) 7 SCC 725}, held that the independence of judiciary is one of the basic features of the Constitution of the Republic. It was held that Indian Constitution has zealously guarded independence of judiciary. 21. With regard to the exercise of judicial power, another decision in High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil and another {(1997) 6 SCC 339} in para 13 explained the said concept in the following words: “In a democracy governed by rule of law, under a written constitution, judiciary is the sentinel on the qui vive to protect the fundamental rights and poised to keep even scales of justice between the citizens and the States or the States inter se. Rule of law and judicial review are basic features of the Constitution. As its integral constitutional structure, independence of the judiciary is an essential attribute of rule of law. Judiciary must, therefore, be free from pressure or influence from any quarter. The Constitution has secured to them, the independence. The concept of “judicial independence” is a wider concept taking within its sweep independence from any other pressure or prejudice. It has many dimensions, namely, fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judge belongs. Independent judiciary, therefore, is most wpc 520/2011 16 essential to protect the liberty of citizens. In times of grave danger, it is the constitutional duty of the judiciary to poise the scales of justice unmoved by the powers (actual or perceived), undisturbed by the clamour of the multitude. The heart of judicial independence is judicial individualism. The judiciary is not a disembodied abstraction. It is composed of individual men and women who work primarily on their own. (Vide C. Ravichandran Iyer v. Justice A.M. Bhattacharje - (1995) 5 SCC 457). The Constitution of India has delineated distribution of sovereign power between the legislature, executive and judiciary. The judicial service is not service in the sense of employment. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the Council of Ministers and the members of the legislature. It is an office of public trust and in a democracy, such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State.” Another important decision of the Apex Court is Pareena Swarup v. Union of India {(2008) 14 SCC 107} wherein it was noted that the functioning of the Tribunal has to be free from executive interference. It was held in para 10 thus: “The independence and impartiality which are to be secured not only for the court but also for Tribunals and their members, though wpc 520/2011 17 they do not belong to the “judicial service” but are entrusted with judicial powers. The safeguards which ensure independence and impartiality