IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 WP(C).No. 14340 of 2008(F) -------------------------- PETITIONER(S): PETITIONER ------------------------- T.J.OOMMEN,THAYYIL THOTTATHIL HOUSE, KUTTOOR P.O.,THIRUVALLA,WORKED AS ASST.SUB INSPECTOR (RETIRED), CHENGANNOOR. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL,A & E KERALA, M.G.ROAD,P.B.NO.5607, THIRUVANANTHAPURAM-695 039. 4. THE SUB TREASURY OFFICER, THIRUVALLA SUB TREASURY. GOVERNMENT PLEADER SHRI.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 14340/2008 APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE SHOW CAUSE NOTICE DTD.30.6.2006. P2. COPY OF THE EXPLANATION DTD.21.8.2006. P3. COPY OF THE FINAL REPORT IN CRIME NO.490/1997 OF THE CHENGANNUR POLICE STATION. P4. COPY OF THE LETTER DTD.4.12.2007 BY THE ACCOUNTANT GENERAL. P5. COPY OF THE LETTER DATED 28.3.2008 -D0- sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.14340 of 2008 ================== Dated this the 22nd day of November, 2010 J U D G M E N T The petitioner retired as a Additional Sub Inspector of Police on 31.5.2001. After his retirement, by Ext.P1 dated 30.6.2006, the petitioner was asked to show cause why proceedings under Rule 2(a) of Part III of the Kerala Service Rules for reducing his pension by Rs.100/- should not be taken against him for the misconduct of giving false evidence before the Judicial First Class Magistrate's Court, Chengannur. The petitioner filed Ext.P2 explanation disowning any responsibility in respect thereof. Dissatisfied with the petitioner's explanation, orders have been passed reducing the petitioner's pension by Rs.100/-. The petitioner is challenging the said action, seeking the following reliefs: “a) To issue a writ, order or direction calling upon the records leading to Ext.P4 and P5 and to issue a writ of certiorari quashing G.O (R.T) No.2198/07 dated 14.8.2007 mentioned in Ext.P4 and P5 and proceedings No.A7/4969/07 dated 14.11.2007 of the Superintendent of Police Idukki or in the alternative to declare the same as illegal and unenforceable. b) To issue a writ of certiorari quashing Ext.P4 and P5 directions issued by the Accountant General to the Sub Treasury officer. c) To issue a writ of mandamus or any other appropriate writ order or direction forbearing the respondents 3 and 4 from making any deduction in the monthly pension of the petitioner.” 2. The contention of the petitioner is that he has not given any false evidence. He only told the truth before the court as he knew w.p.c.14340/08 2 it and, therefore, he cannot be proceeded against, is his contention. He also submits that without conducting an enquiry, pension cannot be reduced under Rule 2(a). 3. A counter affidavit has been filed on behalf of the 1st respondent, wherein, the contention taken is that the petitioner had disowned his signature in a charge sheet filed by him and given false evidence before the court to the effect that it is not his signature. After considering his evidence, the Judicial First Class Magistrate found that the petitioner has given false evidence and forwarded a copy of the judgment to the D.G.P for further action in accordance with law. It is pursuant to the same, impugned orders have been issued. It is submitted by the learned Government Pleader that Rule 2(a) does not contemplate any enquiry and procedure prescribed for such action is detailed in sub rule (c) of Rule 2, which has been fully complied with. 4. I have considered the rival contentions in detail. 5. Rule 2 of Part III of the KSR reads thus: “2.(a) Future good conduct shall be an implied condition of every grant of a pension.- The Government may, by order in writing, withhold or withdraw a pension or part thereof whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. (b) Where a pensioner is convicted of a serious crime by a Court of Law action under clause (a) shall be taken in the light of the judgment of the court relating to such conviction. (c) In a case not falling under clause (b), if the Government under clause (a) considers that the pensioner is prima facie guilty of grave misconduct, it shall, before passing an order under clause (a). w.p.c.14340/08 3 (i) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit within fifteen days of the notice or such further time not exceeding fifteen days as may be allowed, his explanation for such misconduct. (ii) take the explanation, if any, submitted by the pensioner under sub-clause (i) into consideration. (d) The Public Service Commission shall be consulted before final orders are passed.” 6. As rightly pointed out by the learned Government Pleader, going by Rule 2(c), for action under Rule 2(a), no enquiry is contemplated. Only a show cause notice and consideration of explanation by the employees are all what are contemplated under Rule 2. As far as the culpability of the petitioner is concerned, the judgment of Sessions Case No.125/2001 stands testimony for the misconduct of the petitioner. The same reads thus: “13. Point Nos.1 to 3: These points are considered together for convenience. In this case the charge sheet was laid before the Judicial First Class Magistrate's Court-II, Chengannur on 3.10.2000 which shows that there are 9 charge witnesses to prove the case, among whom the CW9 is Additional S.I. T.J.Oommen of Chengannur Police Station. Against this witness matters sought to be proved have been stated as follows:- But it was pointed out by the defence side that such a witness was not shown in the copy of charge furnished to the accused. This has been endorsed by the learned Additional Public Prosecutor also that in the C.D. filed also there is no such witness shown. It is to be seen that CW8 is shown as R.D.Ajith, S.I., Chengannur Police Station against whom the mattes to be proved were shown as follows:- FIR w.p.c.14340/08 4 Thus it is evident that conclusion of the investigation was effected by CW8 who was examined as PW8. As far as CW9 is concerned it is very surprising that the said witness T.J.Oommen when he was produced on production warrant as he is now a retired officer in Judicial custody in connection with an Abkari case deposed as PW6 that he has never filed any such charge sheet before Judicial First Class Magistrate-II, Chengannur. He also disowned the signature seen in the charge sheet to be his. His testimony before court is embarrassing. He would depose that he was the Additional S.I. in the Chengannur Police Station from June 1999 till 28th November 1999 and that he was working as Officer in the Flying Squad, Ernakulam on 4.9.97. Again he deposed that on 3.10.2000 he was S.I. of Police at Adoor police Station. He asserted that he had never conducted any investigation in this case according to his memory. He was recalled on allowing CMP 399/03 under Section 311 of Cr.P.C. and he was confronted with a register, namely, the acquittance roll of Chengannur Police Station which was marked as Ext.P7 and when he was shown his signature dated 8.9.99 in Ext.P7 he admitted it to be his. It was suggested that he was uttering lie before court that he has not filed the charge sheet in this case and to that he answered in the negative. He was allowed to be cross-examined since he was hostile to the prosecution. He was thoroughly cross examined by the Defence as well. The prosecution had produced Ext.P8 which is the original case diary dated 29.9.99 and again he deposed that the signature seen in Ext.P8 as that of T.J.Oommen on 29.9.99 is not his. But he admitted that on 29.9.99 he was the Additional S.I. of Chengannur and that he had been S.H.O. of Chengannur Police Station also. But according to him, he was S.H.O. Chengannur Police Station in the 11th month only. 14. Disowning of signature in the charge sheet by CW9 has been seriously taken as a defence to say that the entire prosecution is false and capricious. The learned Additional Public Prosecutor submitted that he is not able to say as to whether PW6 was lying or not. 15. On a careful perusal and examination of the admitted signature in Ext.P7 of PW6, namely, the Acquittance Roll dated 18.8.99 with the signature in the charge sheet which is disputed, I am inclined to find that the signatures are tallying in all respects. According to me, Ext.P7 also tallies with the signature in the charge and Ext.P8. In the circumstances as pointed out earlier and since according to me the signature in the charge sheet is believably that of PW6 I hold that what PW6 has spoken to before court was absolutely a falsehood and that it cannot be thought for a moment that the charge sheet is false and to be ignored. According to me, there is a strong possibility that PW6 is the one in Judicial custody in connection with Abkari offence at present and therefore his testimony denying the signature in the charge sheet can be looked into and considered only with suspicion. He cannot be trusted at the moment and his denial is to be totally ignored. I hold that the charge sheet has been filed by PW6 himself and what has been spoken to before court by him against filing of charge sheet by w.p.c.14340/08 5 him is a falsehood. May be that he is now a Retired Officer, he affords to utter a lie before this court. But even while he is a Retired Officer he cannot annul what he has done while he was a public servant. He is to be dealt with according to law. Copy of the Judgment will be sent to the D.G.P., Kerala via. Hon'ble Sessions Judge, Alappuzha (through proper channel).” From the judgment it is abundantly clear that the petitioner has given false evidence in a case charge sheeted by him. The respondents have fully complied with the procedure prescribed in Rule 2 of Part III of KSR. Although the petitioner feebly contended that the PSC has not been consulted, the same has been controverted in the counter affidavit and the Government has also made available a copy of the communication from the PSC in that regard. In view of the above findings, I do not find any merit in any of the contentions of the petitioner and the respondents have rightly taken action under Rule 2 of Part III of KSR. As such, the writ petition is misconceived and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge