IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 WA.No. 2942 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.25579/2004 Dated 02/02/2009 .................... APPELLANT(S): PETITIONER IN THE WP ---------------------------------- 1. N.RAJASEKHARAN NAIR, S/O.RAMAN PILLAI IIIRD GRADE OVERSEER, OFFICE OF THE ASSISTANT ENGINEER, TRAVANCORE DEVASWOM BOARD, ETTUMANOOR. 2. C.P.GIREESH CHANDRAN NAIR, S/O.PARAMESWARAN PILLAI, IST GRADE OVERSEER, OFFICE OF THE ASSISTANT ENGINEER, TRAVANCORE DEVASWOM BOARD, MEDICAL COLLEGE P.O. ULLOOR, THIRUVANANTHAPURAM BY ADV. SRI.M.R.RAJENDRAN NAIR (SENIOR ADVOCATE) RESPONDENT(S): RESPONDENTS IN THE WP ------------------------------------ 1. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM 2. THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM 3. THE ENQUIRY COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM 4. DEVASWOM CHIEF ENGINEER (1), DEVASWOM BOARD BUILDING, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM 5. ASSISTANT ENGINEER, OFFICE OF THE ASSISTANT ENGINEER, TRAVANCORE DEVASWOM BOARD, PUNALUR. 6. ASSISTANT ENGINEER, OFFICE OF THE ASSISTANT ENGINEER TRAVANCORE DEVASWOM BOARD, KOTTARAKKARA. ADV.SRI.K.N.VENUGOPALA PANICKER. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------- W.A. No.2942 of 2009 ---------------------------------------------- Dated 12th January, 2010. J U D G M E N T Balakrishnan Nair, J. The appellants are the writ petitioners. The first appellant is a retired employee of the first respondent Travancore Devaswom Board. The second appellant is still in service. Disciplinary proceedings were initiated against them for demanding bribe in connection with the construction of the compound wall of Karavalur peedika temple. The allegations were 3-fold. They caused inflation of the estimate cost of the construction. They demanded a bribe of Rs.1 lakh from the contractor, who was awarded the work. They collected Rs.25,000/- in cash from the contractor and received three cheques of Rs.25,000/- each for the balance amount. Since the balance bribe amount was not paid in time, the appellants harassed the contractor, which ultimately led to his suicide. The above allegations came to light from the suicide note left by the contractor and from the statements given by his widow and daughter. The disciplinary authority suspended the appellants by Exts.P1 and P2 orders dated 16.9.2002. They were served with WA NO.2942/09 2 Ext.P7 memo of charges dated 2.1.2003. The charges contained the following allegations : (1) The appellants caused inflation of the estimate cost of the compound wall of Karavalur peedika temple as Rs.11,45,000/-, and thereby committed fraud on their superiors and Devaswom Board. (2) They demanded a bribe of Rs.1 lakh from Nandanan, the contractor who was awarded the work of construction of the compound wall. Towards the first instalment, they received Rs.25,000/- in cash and for the balance, they received three cheques. (3) They harassed the contractor and his family members incessantly and threatened him using muscle men, demanding the balance bribe amount, which led to the suicide of the contractor on 19.8.2002. 2. The respondents denied the allegations against them by filing Exts.P8 and P9 replies. The disciplinary authority, dissatisfied with their reply, appointed an Enquiry Officer, who conducted an enquiry into the charges, and submitted Ext.P10 report. The Enquiry Officer found the appellants guilty of the charges. As far as the first appellant was concerned, all the charges were found proved by the Enquiry Officer, but in the case of the second appellant, it was found that charge No.1 was not WA NO.2942/09 3 proved, but other charges were held proved against him. The appellants were served with a copy of the enquiry report. They submitted their objections. After taking into account their objections, the disciplinary authority accepted the findings of the Enquiry Officer and imposed the punishment of barring two increments with cumulative effect, by Exts.P18 and P19 orders. The said decision was preceded by a show cause notice concerning the punishment also. Their replies were also considered before imposing the punishment. Challenging Exts.P18 and P19, the final orders in the disciplinary proceedings, the writ petition was filed. 3. The respondents filed a detailed counter affidavit, supporting the impugned orders. The learned Single Judge heard both sides and examined all the contentions of the appellants in detail. The learned Single Judge took the view that in the case of the first appellant also, charge No.1 stood disproved. But relying on the other two charges, the punishment was sustained. The appellants canvassed that when charge No.1 goes, the other charges also will naturally fall to ground. But the learned Single Judge repelled that contention. It was held that there is positive WA NO.2942/09 4 evidence for demand of bribe which was followed by coercive actions to extract the promised bribe. The deposition of the widow and daughter of late Nandanan disclosed the commission of misconduct on the part of the appellants in demanding bribe, and the follow up actions taken by them. The learned Single Judge took the view that there is no reason to disbelieve the versions of the widow and daughter of the late contractor. The learned Judge also noticed that in their cross examination, not even a remote suggestion was made to the effect that they have some ill-will towards the appellants, in order to implicate them falsely. So, even if the first charge was not proved, charges 2 and 3 were proved independently by the evidence and therefore, the learned Single Judge sustained the action taken by the Devaswom Board as per the impugned orders. Finally, the learned Judge observed that the punishment imposed on them is a flea-bite, having regard to the enormity of the misconduct committed by them, and made certain observations which according to the appellants, may result in the Board suo motu reviewing the punishment imposed on them and inflicting a major penalty. Since the action is taken based on the direction of this WA NO.2942/09 5 court, they will be left without any remedy, it is submitted. Challenging the findings and observations of the learned Judge, this Writ Appeal is preferred. 4. The learned Senior Counsel Sri.M.R.Rajendran Nair, who appeared for the appellants, canvassed the contentions which were unsuccessfully raised before the learned Single Judge. The learned Senior Counsel pointed that since the first charge was found not proved in the case of both the appellants, the second and third charges must also collapse, as the demand for bribe was made for inflating the estimate cost of the compound wall. As mentioned earlier, charge No.1 related to the role of the appellants in inflating the estimate cost of the compound wall. The learned counsel also placed heavy reliance on Ext.P21 report, wherein the Investigating Officer who investigated into the death of the contractor held that it is doubtful whether the signature on the suicide note is that of the deceased. The findings on charge Nos.2 and 3 were based on no evidence and so, the allegations should be held to be not proved, it is submitted by the learned senior counsel. 5. According to the appellants, the cheques were WA NO.2942/09 6 issued in discharge of a debt due from Nandanan to the third parties. They have filed suits on the strength of those cheques to recover the amount. Those developments will further fortify the defence set up by the appellants that they have nothing to do with the issuance of the cheques, as alleged in the memo of charges, it is pointed out. 6. We considered the submissions of the learned Senior Counsel. Going through the pleadings and materials on record, even if charge No.1 was not proved, we are of the view that charge Nos.2 and 3 can be held to be proved, when there is evidence on record to sustain those charges. Charge No.1 is in the form of a motive for the commission of the misconducts under charge Nos.2 and 3. Even if the motive is not proved, when there is direct evidence to sustain the remaining charges, there is no reason why the disciplinary authority should not act upon it. As mentioned earlier, the widow and the daughter of the late contractor, who have no reason to falsely implicate the appellants, have spoken to various overt acts from the part of the appellants and the information furnished to them by late Nandanan. The enquiry authority as also the disciplinary WA NO.2942/09 7 authority decided to believe their version and found the appellants guilty. This Court, under Article 226 of the Constitution of India, cannot disturb those findings. The view taken by the learned Single Judge on Ext.P21 that the findings therein will not bind the Enquiry Officer or the disciplinary authority, is legal and valid. The perception of an Investigating Officer enquiring into a criminal case will be different from that of the disciplinary authority. The said authority is concerned with the discipline of the employees under it. The proof required before a criminal court is the concern of the Investigating Officer. The said officer's view has no bearing while the disciplinary authority evaluates the materials before it to arrive at the conclusion, whether the employee has committed any misconduct or not. Going by the materials on record, we fully concur with the view taken by the learned Single Judge that the appellants were rightly held guilty of charge Nos.2 and 3. Therefore, we find no reason to interfere with the judgment under appeal, or the punishment imposed on them. 7. But regarding the observation of the learned Single Judge which the appellants apprehend, may result in the WA NO.2942/09 8 disciplinary authority suo motu revising the punishment imposed on them, we think a clarification is required to be added. If the disciplinary authority has got any powers to review the punishment imposed on the appellants at this distance of time, they can do it un-influenced by anything stated in the judgment under appeal and if any action is taken by the disciplinary authority, while defending the same, the appellants will not in any way be prejudiced or fettered by the observations in the judgment under appeal. Subject to that clarification, the writ appeal is dismissed. K.BALAKRISHNAN NAIR, JUDGE. C.T.RAVIKUMAR, JUDGE. tgs K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------- W.A. No.2942 of 2009 ---------------------------------------------- J U D G M E N T Dated 12th January, 2010.