IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 WP(C).No. 11462 of 2004(R) -------------------------- PETITIONER: ------------ N. RAJAN (FORMERLY JUDICIAL FIRST CLASS MAGISTRATE, NEDUMKANDOM), T.C.25/848, `KARTHIKA', METTUKKADA, THYCAUD, THIRUVANANTHAPURAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. PRINCIPAL SECRETARY TO GOVERNMENT HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. HIGH COURT OF KERALA, REPRESENTED BY ITS REGISTRAR, ERNAKULAM, KOCHI-31. BY SMT.SMITHA, GOVERNMENT PLEADER SRI.KRB.KAIMAL (SR.) FOR R3 SRI.B.UNNIKRISHNA KAIMAL FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.11462/2004 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE OFFICIAL MEMORANDUM NO.D2(J)51179/2000-11 DATED 02/01/2001 OF THE REGISTRAR OF THIS HONOURABLE COURT. P2 : COPY OF the REPLY SUBMITTED BY THE PETITIOENR TO EXT.P1 DATED NIL. P3 : COPY OF THE MEMO OF CHARGES NO.D2(J)-51179/2000-11 DATED 25/06/2001 OF THE REGISTRAR OF THIS HONOURABLE COURT. P4 : COPY OF THE EXPLANATION SUBMITTED BY PETITIONER DATED 16/07/2001 TO EXT.P3. P5 : COPY OF THE OFFICIAL MEMORANDUM NO.D2(J)-51179/2000-11 DATED 21/08/2001 OF THE REGISTRAR OF THIS HONOURABLE COURT. P6 : COPY OF THE OFFICIAL MEMORANDUM NO.D2(J)-51179/2000-11 DATED 06/04/2002 OF THE REGISTRAR OF THIS HONOURABLE COURT. P6(a) : COPY OF THE ENCLOSED ENQUIRY REPORT. P7 : COPY OF THE REPLY SUBMITTED BY PETITIONER DATED 09/05/2002 TO EXT.P6. P8 : COPY OF THE G.O.(MS) NO.31/2004/HOME DATED 27/01/2004. RESPONDENT'S EXHIBITS R3(a) : COPY OF LETTER NO.D2(J)-51179/2000-11 DATED 12/12/2002 OF THE HIGH COURT TO THE 2ND RESPONDENT. //TRUE COPY// PA TO JUDGE. jg C.R. C.N.RAMACHANDRAN NAIR, J. ----------------------------------- WP(C) No.11462 of 2004 ------------------------------ Dated, this the 5th day of September, 2008 J U D G M E N T Petitioner is challenging Ext.P6 Enquiry report and Ext.P8 order of punishment, whereunder he has been found guilty of various charges framed against him and as a consequence removed from service. Petitioner started his career as an assistant in the High Court in the year 1984 and he was selected as a Magistrate in the year 1991. After serving at various stations, petitioner was appointed as Judicial First Class Magistrate at Nedumkandam in Idukki District. While serving in this station, various complaints were received about petitioner, which led to enquiry by District Judge. Based on the enquiry report by the District Judge, he was placed under suspension on 24/11/2000. The seven charges framed against petitioner are the following. “(1) That you Shri.N.Rajan while working as Judicial I Class Magistrate, Nedumkandam, behaved indecently towards some of the students of B.Ed. College, Nedumkandam and by your several conducts have created a bad opinion about yourself among the Public especially regarding the WP(C) No.11462/2004 -2- moral side of yours; (2) That you Shri.N.Rajan while working as Judicial I Class Magistrate, Nedumkandam have established an unholy relationship with an advocate namely Shri.K.C.Raju, that you are not serious in discharging your official duties and that your acts constitute very grave and serious misconduct on your part and is in clear violation of your obligation to maintain high moral standards of Judicial Officer. (3) That you Shri.N.Rajan while working as Judicial I Class Magistrate, Nedumkandam when there was no sitting on 29/03/2000 and when all the cases were adjourned by notification, one case C.C.409/99, under Section 279 and 337 of Indian Penal Code where Advocate Shri.Raju was appearing for the defence, was disposed of by you imposing a fine and no entry was made in the ‘A’ Diary about the disposal. (4) That you Shri.N.Rajan while functioning as Judicial I Class Magistrate, Nedumkandam conducted the auction sale of the Jeep seized in C.C.80/97 of that Court without effecting proper publication for sale and without meeting expenses for the publication of the sale from the Government funds and caused it to be purchased by one Azeez who was your driver for a very low consideration resulting in loss to Government and showing in the proceedings, purchasers name as one Salim. (5) That judgments in 85 cases shown as disposed of in July, August and September 2000 in your Court had not been written even as on 15/09/2000. (6) The Cash book of that Court in which you are bound to WP(C) No.11462/2004 -3- verify and sign every day has not been seen by you after 23/11/1999. (7) And that you Shri.N.Rajan was in the habit of visiting wealthy accused persons and that you kept company with persons with whom you should not have kept company.” The enquiry officer, a Senior District Judge, conducted enquiry and found that among the seven charges framed, six charges are proved against the petitioner in the course of enquiry. The enquiry officer noticed that the first charge contained two aspects. He therefore, split the same into two parts and conducted enquiry on both. While petitioner was discharged from one part of the charge, he was found guilty of the other part. In other words, out of seven, five charges and part of the first charge stand proved against the petitioner. Considering the gravity of the charges proved against the petitioner, who was a Judicial Officer, the Government imposed punishment of removal from service on petitioner in terms of Rule II(vii) of the Kerala Civil Services (CC&A) Rules, 1960. Petitioner is challenging both the findings in the enquiry report and the punishment imposed on him. 2. I have heard learned counsel appearing for petitioner, WP(C) No.11462/2004 -4- learned Government Pleader appearing for the State and learned Senior Counsel Shri.K.R.B.Kaimal appearing for the Registrar of the High Court. 3. Learned counsel for the petitioner has referred to each and every charge and the findings thereon and contended that the charges are baseless and do not stand proved. However, on going through the findings in the enquiry report, I do not think the contention that the charges are not proved is correct. The enquiry officer collected evidence and took statements from various persons, who all confirmed the allegations. It is seen that the enquiry was conducted by none other than a senior District Judge of the State Judiciary and I find that he has complied with all procedural formalities of enquiry that he took evidence in a fair manner and came to the conclusion based on convincing evidence. It is a settled position that findings in the enquiry report can be interfered with by this Court only if the same is perverse, or not based on admissible evidence or materials, or such findings could not be arrived at by any reasonable man. I do not want to go through each and every WP(C) No.11462/2004 -5- charge, evidence available, and the findings thereon because on going through the enquiry report, I am satisfied that the findings are supported by adequate proof in the form of oral evidence or circumstantial evidence. In the circumstances, I uphold the findings of the enquiry officer on the charges leveled against the petitioner. 4. The next question to be considered is only on the punishment, which is removal from service under Rule 11(vii) of the Kerala Civil Services (CC&A) Rules. The punishment of removal from service is one below the maximum punishment of dismissal from service. Learned counsel for the petitioner contended that punishment is disproportionate and arbitrary to the gravity of the charges proved against the petitioner. Punishment is very grave because consequent upon the same, petitioner is not even entitled to pension for the service rendered by him even for the period prior to his suspension and later removal from service. It is a fact that petitioner had 16 years of service as on the date of suspension, out of which, nine years he served as a Judicial Officer. Even though Ext.P8 order removing WP(C) No.11462/2004 -6- him from service is issued on 27/01/2004, the same is given retrospective effect from the date of suspension i.e. 24/11/2000. Learned counsel submitted that there is no allegation of corruption against the petitioner and his family members are in utter poverty after his removal from service. Therefore, alternately, reduction in punishment is prayed for mainly on the ground that the charges were not serious enough to warrant a major punishment such as removal from service. Both the learned Government Pleader appearing for the State and the learned senior counsel appearing for the Registrar of the High Court opposed reduction in punishment because according to them, the charges are serious in nature more so because petitioner as a Judicial Officer, was bound to maintain the standard of discipline required of a Judicial Officer. Even though I have no doubt in mind that the degree of honesty and discipline required of a Judicial Officer is very high and no dilution can be permitted on this, I feel having regard to the nature of charges proved which do not involve corruption in the strict sense, some reduction in the gravity of punishment is called for to entitle WP(C) No.11462/2004 -7- petitioner for pensionary benefits for the past services. Even though, learned counsel for the petitioner submitted that petitioner had clean record until he was suspended from service, the same does not appear to be true because the High Court had informed him vide letter dated 18/05/1997 that his reputation was not good. Obviously, inspite of warning, petitioner refused to correct himself and performed in a manner unbecoming of a judicial officer affecting the image of the judiciary, and occasionally, he had done major acts of indiscipline like visiting rich accused and enjoying their hospitality, helping lawyers appearing for them etc. The Supreme Court has in the case of Chairman and Managing Director, United Commercial Bank and Others Vs. P.C.Kakkar, reported in 2003(4) SCC 364, held that Courts and Tribunals should interfere with punishment only if it is shockingly disproportionate to the gravity of the charges or indiscipline proved. The question to the considered is whether the punishment in this case is shockingly disproportionate to the gravity of the charges proved. Learned counsel rightly pointed out that there is no allegation of corruption against petitioner and WP(C) No.11462/2004 -8- even for corruption or for any high offence, the maximum punishment is only dismissal from service. In this case, the punishment of removal from service is virtually dismissal from service because the only difference between dismissal and removal is that in the latter case there is no disqualification for reemployment. Since petitioner is at the wrong age of around 48 years, there is no scope for any reemployment and therefore, leaving such a facility in the punishment is an empty formality. Therefore, effectively, the punishment is same as dismissal and so much so, he has prayed for reduction in punishment. Counsel also pointed out that petitioner being a member of Scheduled Caste community is uninfluential and will not be able to get employment in the private sector more so if he is removed from service for misconduct. A person joining Government service under reserved quota is not entitled to any dilution in the standard of discipline required in the post. In other words there is no relevance for caste, community, sex etc. in Rules of discipline which apply to all equally. However, counsel has highlighted the financial difficulties and the sufferings of the family of the petitioner, which includes two WP(C) No.11462/2004 -9- children. Considering all these aspects, I feel, a reduction in punishment is called for. In the normal course, this Court should remand the matter to the Government for reconsidering the punishment. However, the Supreme Court has, in the decision referred above, held that in exceptional and rare cases, the Court can reduce the punishment. Taking the facts and circumstances, I reduce the punishment to one of compulsory retirement. However, learned Government Pleader pointed out that under Rule 6A of the Kerala Service Rules (Part-III), the authority, which imposes punishment of compulsory retirement, has discretion to forfeit Death Cum Retirement Gratuity or even pension or order reduction of the same. However, since petitioner has not caused any loss to Government and having regard to the nature of charges proved, I do not think, these measures are called for. Petitioner would have been getting subsistence allowance during the period of suspension. Therefore, he will not be entitled to pension during this period, even if his removal from service from the date of suspension is converted to one of compulsory retirement under Clause 11(vi) of WP(C) No.11462/2004 -10- the Kerala Civil Services (CC& A) Rules. In the circumstances, I allow the writ petition in part by modifying Ext.P8 by reducing the punishment of removal from service to compulsory retirement under Rule 11(vi) of the Kerala Civil Services (CC&A) Rules with effect from 24/11/2000 with direction to 1st respondent to give gratuity and other benefits to the petitioner treating him as compulsorily retired as on 24/11/2000 and grant pension with effect from 01/02/2004. The arrears of pension from 01/02/2004 onwards should be released to petitioner within a period of two months from the date of receipt of a copy of the judgment. (C.N.RAMACHANDRAN NAIR, JUDGE) jg