IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 32228 of 2008(J) -------------------------- PETITIONER(S): --------------- C.G. MICHEL, S/O.C.N. GEORGE, JOINT R.T.O, SUB, R.T.O OFFICE, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, INFORMATION TECHNOLOGY AND TRANSPORT DEPARTMENT, THIRUVANANTHAPURAM. 2. SPECIAL SECRETARY TO GOVERNMENT AND CONVENER, DEPARTMENT PROMOTION COMMITTEE (HIGHER), REGIONAL TRANSPORT OFFICERS, TRANSPORT DEPARTMENT, THIRUVANANTHAPURAM. 3. JOHN VARGHESE, JOINT RTO, SUB RTO OFFICE, MALLAPPALLY, PATHANAMTHITTA DISTRICT. GOVERNMENT PLEADER FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON 18/06/2009 DELIVERED THE FOLLOWING: WP(C)No.32228/2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE MEMO OF CHARGES WITH THE STATEMENT OF ALLEGATION DATED 20.2.2008 ISSUED BY TRANSPORT DEPARTMENT. EXHIBIT P2: TRUE COPY OF THE EXPLANATION DTD.10.3.08 BEFORE THE LAND TRIBUNAL, KASARAGOD. EXHIBIT P3: TRUE COPY OF THE SELECT LIST, DTD.15.03.2008 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXHIBIT P4: TRUE COPY OF THE SENIORITY LIST DATED 27.05.2008 ISSUED. EXHIBIT P5: TRUE COPY OF THE W.P.NO.23777/06 DTD.01.09.2008 ISSUED BY THIS HON'BLE COURT. EXHIBIT P6: TRUE COPY OF THE GOVT.ORDER DATED 16.08.2008 BY THE GOVERNMENT. /TRUE COPY/ P.A.TO JUDGE vgd S.SIRI JAGAN ----------------------------- WP(C) No.32228 of 2008 ----------------------------- Dated this the 18th day of June, 2009 JUDGMENT The Petitioner is a Joint RTO in the Motor Vehicles Department of the Government of Kerala. In Ext.P3 select list he was overlooked for promotion as Regional Transport Officer and his juniors have been promoted. The petitioner has been so overlooked allegedly on the ground of a disciplinary enquiry pending. According to the petitioner the disciplinary enquiry itself has been initiated on the basis of non existing ground. Ext.P1 is the charge sheet issued to the petitioner in respect of the same. The petitioner would contend that Ext.P1 does not make out any allegations against the petitioner, to which he can file a meaningful reply. According to him the allegations in Ext.P1 are vague and a disciplinary enquiry on the basis of such vague charges are clearly vitiated. The Petitioner therefore challenges Ext.P1 charge sheet and further proceedings based on the same. The Petitioner seeks the following reliefs: “i. a writ of mandamus or any other appropriate writ, order or direction directing the respondents to include the petitioner in Ext.P4 DPC list and promote the petitioner to the post of RTO forthwith in preference to the 3rd Respondent in the light of P5 judgment. ii. a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P1 and all further proceedings pursuant to that. W.P.C.No.32228 of 2008 2 iii. any other appropriate writ, order or direction as the Hon'ble Court may be pleased to grant in the facts and circumstances of the case.” 2. At the time of admission of this writ petition, this Court directed the respondents to file a counter affidavit and to produce along with the counter affidavit the minutes of the meeting of the Departmental Promotion Committee. Though counter affidavit has been filed as directed, the minutes of the Departmental Promotion Committee has not been produced. But a copy of the same is made available to me by the Government Pleader across the bar. Therein it is stated that the petitioner's case was considered by the DPC and the petitioner has been overlooked for the reason that “disciplinary action initiated against him is pending for finalization and probation has not been declared”. The counter affidavit also proceeds on the basis that because of the initiation of the disciplinary proceedings the petitioner cannot be promoted. 3. I have considered the rival contentions in detail. Before going into the merits of the contentions of the petitioner, I must note a very disturbing fact. It appears that W.P.C.No.32228 of 2008 3 the Departmental Promotion Committee was not even aware of the procedure to be followed while considering the case of a candidate, who is facing disciplinary proceeding for promotion. It is settled law that when disciplinary proceedings are pending against an officer, who is being considered for promotion, sealed cover procedure has to be adopted. In this case, the petitioner has been simply overlooked stating that disciplinary action is pending which has not been finalised and his probation has not been declared. The petitioner also points out that the probation of the petitioner has not been declared only because of the disciplinary action. In the counter affidavit no reason is stated for non-declaration of probation of the petitioner. At the same time the petitioner has in para 2 of the reply affidavit specifically stated that the probation of the petitioner is not declared for the reason that disciplinary proceedings are pending against the petitioner and not for any other reason. 4. I shall now consider the validity of the disciplinary proceedings which is the reason stated by the DPC for overlooking the petitioner for promotion. The disciplinary W.P.C.No.32228 of 2008 4 proceedings are initiated by Ext.P1 memo of charges and statement of allegations. I shall extract the whole of the same, since the contention is that the allegations therein are vague: MEMO OF CHARGES Charges against Sri.C.G.Michael, Motor Vehicles Inspector, Alappuzha. I. THAT you, Shri C.G.Michael, while working as a Motor Vehicles Inspector, Regional Transport Office, Alappuzha, had committed grave negligence and dereliction of duty in that you received bribe through agents, for certifying the fitness of vehicles brought before you, and Motor Vehicles Inspectors demanded Rs. 2,000/- as bribe for registering a new bus. II. You are required to show cause why disciplinary action as under Rule 15 of Kerala Civil Service (CC&A) Rules 1960, should not be taken against you. You are allowed 15 days from the date of receipt of this communication to submit your written Statement of Defence. If the written statement of Defence is not received within the specified time, the matter would be proceed with on the presumption that you have no explanation to offer. You are also required to state whether you desire to be heard in person. You may peruse the relevant records mentioned in the statement of allegations and take down extracts from there if you so desire, in the presence of the Additional Secretary, on any day prior to the due date for submission of your written statement of defence, which would be fixed in advance at your request. III. A statement of allegations on which the above charge is based, is hereto attached. W.P.C.No.32228 of 2008 5 STATEMENT OF ALLEGATIONS The Vigilance & Anti Corruption Bureau, Alappuzha Unit had conducted a Vigilance enquiry at the Regional Transport Office, Alappuzha. 2. The Vigilance Enquiry revealed the following: (i) The Officials in Sections C2, C3, C4 of the Regional Transport office, Alappuzha, demanded bribe for carrying our official work. (ii) The Motor Vehicle Inspectors received bribe, through agents, for certifying the fitness of vehicles brought before them. (iii) The Motor Vehicle Inspectors demanded Rs. 2,000/- as bribe for registering a new bus. 3. The enquiry revealed that the agents collect money more than what is actually due for registration and other purposes, and a portion of the excess money thus collected by the agent is appropriated by the Regional Transport Office officials. 4. The Enquiry Officer had conducted only a random check of owners, who have approached the Regional Transport Office for registration of their vehicle etc. No evidence is available to show demand of bribe by C2, C3 and C4 Sections. These Sections are entrusted with the work of collection of taxes, registration, and revenue collection works. As per exhibit E, 2690 vehicles were registered in Alappuzha from 01.01.2003 to 31.07.2003. The enquiry reveals that the witnesses who approached the Regional Transport Office directly had no complaint of payment of bribe to the Regional Transport Office directly had no complaint of payment of bribe to the Regional W.P.C.No.32228 of 2008 6 Transport Officers, but they had to suffer inordinate delay. Those who approached the Regional Transport Office through agents were able to get their work done quickly and efficiently at a price. 5. Evidence is available to suggest that the agents had collected fees far in excess of what is due to the Government. The enquiry report has pointed out a specific incident of harassment by the Regional Transport Office staff. Regarding the allegation that the Motor Vehicles Inspectors are demanding Rs. 2,000/- each as bribe, was enquired into by the Enquiry Officer. Ext.A the list of register number and owners of stage carrier were verified. Out of them W3 the owner of KL-04 N 8238 admitted that Rs. 2,500/- was given to the agent additionally during the time of payment of registration fee to the agent, and that every month the agent collected Rs. 1,150/- instead of Rs. 470/- for the renewal of temporary registration. 5. From the same I am unable to understand what are the allegations against the petitioner, which he has to answer. Apart from a very vague and unspecified allegation that the petitioner has accepted bribe through agents, the names of the agents or the person who paid the same, place etc. are not stated. There is absolutely no mention as to for what purpose the petitioner has allegedly demanded bribe. The W.P.C.No.32228 of 2008 7 statement of allegations are still worse. It specifically states that no evidence is there to show that C2, C3 & C4 sections, which are the sections entrusted with the work of collection of tax, registration & revenue, have demanded bribe. It further states that the enquiry reveals that the witnesses who approached the Regional Transport Office directly had no complaint of payment of bribe to the Regional Transport Officers, but only that they had to suffer inordinate delay. The allegation is only that those who approached the office through agents were able to get their work done quickly and efficiently at a price. Of course it cites the owner of KL-04 N 8238 as having admitted that Rs. 2,500/- was given to the agent additionally during the time of payment of registration fee to the agent, and that every month the agent collected Rs. 1,150/- instead of Rs. 470/- for the renewal of temporary registration. But neither in the memo of charges nor in the statement of allegations is there any specific allegation as to payment of bribe to and receipt of bribe by the petitioner from anybody. No Government servant can file any meaningful reply W.P.C.No.32228 of 2008 8 to such memo of charges and statement of allegations. Therefore the memo of charges and statement of allegations are totally unsustainable for vagueness and for that reason itself the memo of charges are liable to be quashed . I do so. 6. Now that the disciplinary proceedings against the petitioner has been quashed, there cannot be any impediment in the matter of considering the petitioner for promotion on that ground. If the disciplinary proceedings are the only reason for non-declaration of probation of the petitioner, then non- declaration of probation also cannot stand in the way of considering the petitioner for promotion. Insofar as while considering the petitioner for promotion the Departmental Promotion Committee has not followed the procedure prescribed in the matter on preparing select lists, i.e. sealed cover procedure, Ext.P3 select list is also unsustainable. Accordingly I quash Ext.P3 select list also. I direct the respondents to convene the DPC again and to drew up a fresh select list, considering the petitioner's case also in accordance with his seniority, for promotion of the post of Regional W.P.C.No.32228 of 2008 9 Transport Officer. This exercise shall be taken up and completed as expeditiously as possible, at any rate, within 3 months from the date of receipt of a copy of this judgment. Before convening the DPC, the declaration of probation of the petitioner shall also be finalised. The writ petition is allowed as above. S.SIRI JAGAN JUDGE vgd