IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 OP.No. 11625 of 2000(H) ----------------------- PETITIONER(S): --------------- R. SUGATHAN, UPPER DIVISION CLERK, DIVISIONAL FOREST DIVISIONAL FOREST OFFICE, KONNI. BY ADV. SRI.P.PARAMESWARAN NAIR SMT.SREELATHA PARAMESWARAN NAIR RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, GOVT. OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, FORESTS AND WILDLIFE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHIEF CONSERVATOR OF FORESTS (PROTECTION) THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. M.R. SABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 11625/2000. ----------------------------------------------------------------- EXT.P1 COPY OF ORDER DT. 9-1-1992. EXT.P2 ORDER DT. 12-8-1992. EXT.P3 ORDER DT. 13-5-1994. EXT.P4 ORDER DT. 27-1-1997. EXT.P5 APPEAL DT. 7-4-1997. EXT.P6 ORER DT. 31-12-1997 EXT.P7 ORDER DT. 25-5-1998. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 11625 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 6th November, 2008. J U D G M E N T The petitioner, while working as an Upper Division Clerk in the Divisional Forest Office, Konni, was charge sheeted for certain acts of misconduct for which he was imposed with the punishment of barring of one increment with cumulative effect. His appeal against that order was rejected. The petitioner filed a revision before the Government which was allowed and the matter was remanded to the disciplinary authority for fresh proceedings after conducting an enquiry. An enquiry was conducted in which the enquiry officer found the petitioner guilty of the misconducts alleged against him. The same punishment of barring of one increment with cumulative effect was again imposed on him. His appeal and revision having failed, the petitioner has filed this original petition challenging Exts.P 4, P6 and P7 orders, which are the original, appellate and revisional orders respectively. 2. At this point of time, the petitioner does not challenge the validity of the enquiry on the ground of violation of principles of natural justice or non-compliance with the procedure prescribed under the rules. The petitioner's contention is that there is no evidence adduced in the enquiry sufficient to find the petitioner guilty of the misconducts alleged against him and that the evidence adduced by the petitioner has not been properly appreciated. 3. A counter affidavit has been filed by the 2nd respondent supporting the impugned orders. 4. I have considered the rival contentions in detail. 5. The allegations against the petitioner is that he misguided his superior officer which resulted in issuing a communication to a contractor, by which the contractor was offered sale of 9460 numbers of teak poles for a sum of rs. 4,05,108/-, responding to a post O.P. No. 11625/2000 -: 2 :- auction offer submitted by the contractor. The Divisional Forest Officer's recommendation to accept the same was rejected by the Government and a re-sale was ordered. In the re-sale, the poles were sold for Rs. 8,48,300/-. The above facts were the basis for the allegations against the petitioner. The charges against the petitioner were as follows: (1) The petitioner caused issuance of erroneous correspondence to outsiders with malafide intention. 2) Wilful violation of existing orders of Government. 3) Attempts to cheat Government for illegal personal gains, which if had materialised as wished by them, might have resulted in a loss of Rs. 4.8 lakhs. Out of these, the first and third charges were found to have been proved by the enquiry officer, based on which the impugned orders were passed. The petitioner's contention is that the whole responsibility vests with the DFO and the petitioner being only a ministerial officer is not responsible for the action of the DFO. 6. At the outset, I must note that the petitioner has not chosen to produce the enquiry report to substantiate his contentions. But, I find that the relevant portion of the enquiry report has been extracted in Ext. P6 appellate order which reads thus: “The Head of the Konni Division office was non-Malayalee and just a beginner in holding the Division and handling the affairs of the territorial Division. Such an officer requires the right and appropriate advice from his staff in dealing especially with matters of financial implications so that the Government interest is adequately safe guarded. The argument of the defedents that they strictly acted according to the Divisional Forest Officer's instructions to issue chalan and take immediate action on the post O.P. No. 11625/2000 -: 3 :- offer is not incorrect. But what is not correct was that they did not follow the prescribed procedure. They did not mind to prepare the required note quoting relevant G.Os and circulars applicable to post offer and sent it to the Divisional Forest Officer on the next day through the Head Accountant and senior superintendent who were on c/L. The Divisional Forest Officer never directed the staff to dispense with the notes. It is revealed that the accused officer Sri. R. Sugathan took the whole matter of receiving and registering the post offer, preparing and effecting the issuance of the correspondence and the chelan into his hands. He deliberately sidelined the correct procedure to be followed even though the post offer clearly stated in his post offerer that he would be willing to participate in the re-auction. He and the second accused wanted to handle the matter between themselves in an attempt to push through their desired aim to help the post offerer.” The petitioner does not dispute the fact that the DFO was novice in the post and that he was not familiar with malayalam language. Apparently, the DFO did everything on the advise of the petitioner as well as the Junior Superintendent. The petitioner cannot feign ignorance of everything what that happened, because he also dealt with the file. If the petitioner had advised the DFO correctly, the situation would not have arisen. The finding is that the petitioner deliberately did the same in concert with the Junior Superintendent, to help the contractor to make illegal gains. It is settled law that sufficiency of evidence in a disciplinary enquiry is not a matter which can be considered by this Court under Article 226 of the Constitution of India, unless the conclusion arrived at by the enquiry officer and disciplinary authority is so perverse that no reasonable man would come to the conclusion. Here, the findings of the enquiry officer suggests that there was some evidence to show the connivance of the petitioner in the transaction, which would have resulted in huge loss to the Government. As such, I am unable to come to the conclusion O.P. No. 11625/2000 -: 4 :- that the conclusion arrived at in the impugned orders are so perverse that no reasonable man would come to that conclusion. It is certainly based on some evidence. In the above circumstances, I am unable to countenance the challenge of the petitioner against the impugned orders. Therefore, I do not find any merit in the original petition and accordingly the same is dismissed. S. Siri Jagan, Judge. Tds/ O.P. No. 11625/2000 -: 5 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 11625 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 6th November, 2008.