IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 WP(C).No. 12786 of 2005(V) -------------------------- PETITIONER(S): ----------------------- K.P.JSEPH, ASST.COMMANDANT OF POLCE, A.R.CAMP, KOCHI CITY. BY ADV. SMT.V.P.SEEMANDINI, SENIOR ADVOCATE MR.M.R.ANISON SMT.S.KARTHIKA SMT.K.P.GEETHA MANI SMT.LEKSHMY RAMANATHAN RESPONDENT(S): ------------------------ 1. THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIATE, TRIVANDRUM. 2. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, TRIVANDRUM. GOVERNMENT PLEADER MR.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JVT S. SIRI JAGAN, J ---------------------- W.P.(C.) No.12786 of 2005 --------------------------------- Dated this the 15th day of March 2010 J U D G M E N T The petitioner was an Assistant Commandant in the A.R.Camp, Cochin city, in 1997. On 10.9.1997 the petitioner was suspended from service pending enquiry on certain allegations of misconduct regarding supervisory lapses. One Jayaprakash, who was the custodian of the cash chest of the Camp committed suicide on 4.8.1997. An amount of Rs.2.11 lakhs was found missing from the cash chest. That missing cash was the subject matter of the allegation of supervisory lapse against the petitioner. The petitioner was served with a memo of charges dated 4.2.1998. He was later reinstated on 15.7.1999 pending further disciplinary proceedings. The enquiry was finalized in July, 2000 wherein, the Enquiry Officer found that the charges against the petitioner have not been proved. A copy of the enquiry report was served on the petitioner on 19.2.2003 under cover of Ext.P4 directing the petitioner to show cause, why the W.P.(C) No. 12786 of 2005 -2- Government should not disagree with the findings of the Enquiry Officer. Although the petitioner filed detailed objections to the same, by Ext.P6 order, the Government entered findings that the petitioner is guilty, differing with the findings of the enquiry officer. By Ext.P7 order the punishment of barring of two increments with cumulative effect was imposed on the petitioner. The petitioner filed a review petition which was rejected and also filed W.P.(C) No.16507 of 2004, challenging the proceedings. As directed in the judgment in that writ petition, the Government reconsidered the matter and reduced the punishment to that of barring of one increment without cumulative effect. The petitioner is challenging Exts.P1, P4, P6 and P7 which are the orders of suspension, show cause notice directing the petitioner to show cause why the Government should not disagree with the findings of the Enquiry Officer and punishment should not be imposed on the petitioner, the order deciding to confirm the provisional decision disagreeing with the findings of the Enquiry Officer and the order imposing punishment respectively. Proportionate amounts of the missing cash was also directed to be recovered from the petitioner. By Ext.P15, the period during W.P.(C) No. 12786 of 2005 -3- which the petitioner was kept out of service was directed to be regularised as duty for all purposes, except for pay and allowances and accrual of earned leave limiting the pay and allowances to subsistence allowance already drawn. The petitioner is challenging Ext.P15 order also, as well as the recovery of proportionate amounts from the petitioner. 2. The petitioner contends that there is no grounds whatsoever for the government to disagree with the findings of the Enquiry Officer. According to the petitioner, the reasons stated by the Government for disagreeing with the findings of the Enquiry Officer were totally perverse. The petitioner submits that petitioner was only one of the 4 Assistant Commandants in the A.R.Camp. According to the petitioner, the petitioner was never entrusted with the duty of supervising the deceased Jayaprakash or the financial transactions inside the A.R.Camp. Therefore, according to the petitioner, petitioner could not have been found guilty of supervisory lapses in the matter. The petitioner further contends that for finding the petitioner guilty, the evidence of a co-delinquent was relied upon which is against all canons of law. In para 18 of the writ W.P.(C) No. 12786 of 2005 -4- petition, the petitioner categorically states that other persons who were actually found guilty by the Enquity Officer was given the benefit of the suspension period being treated as duty for all purposes. In Ground (e) of the writ petition, the petitioner submits that on a perusal of the statements taken by the Enquiry Officer, it can be seen that the entire amount found missing in the cash chest on 4.8.1997 has already been recovered from persons to whom such amounts were given by late Jayaprakash, the details of which can be seen from the CD file relating to Crime No.443/97 registered in that regard. The petitioner, therefore, seeks the following reliefs :- “a) to issue a writ of certiorari or other appropriate writ, order or direction to quash the disciplinary proceedings initiated against the petitioner including Exts.P1, P4, P6 and P7, since such proceedings have resulted in violating the petitioner's fundamental right under Article 14, 16, 20 and 21 of the Constitution ; b) to issue a writ of mandamus or other appropriate writ, order or direction directing the 1st respondent to pass an order regularizing the 23 months suspension period of the petitioner as Duty for all purpose ; c) to issue a writ of mandamus of other appropriate writ, order or direction directing the respondent to consider the petitioner for promotion to the next higher post of “Deputy Commandant” in the next arising vacancy ; W.P.(C) No. 12786 of 2005 -5- d) to issue a writ or mandamus or other appropriate writ, order or direction directing the respondent to pay all monetary benefits attached to the post of Asst. Commandant including increment and all other allowances from attached to that post 10.9.1997 onwards, debars the disciplinary proceedings initiated against the petitioner ; e) to call for the records leading to Ext.P15 and to quash the same by issuing a writ of certiorari or other appropriate writ order or direction” 3. A counter affidavit has been filed disputing the contentions of the petitioner. According to the respondents, the evidence of PW7, who was one of the co-delinquents sufficiently prove the guilt of the petitioner. Further, the respondents rely on Circular No.21/76 dated 28.1.76 of the Inspector General of Police wherein, Assistant Commandant has been made responsible for daily inspection of the cash transactions in the Armed Reserve Camps. Therefore the petitioner being the Assistant Commandant was guilty of supervisory lapses is the contention raised. 4. I have considered the rival contentions in detail. 5. At the outset I notice that all the delinquents whom the Enquiry Officer has found guilty have been subsequently exonerated by the Government in review. At the same time, the W.P.(C) No. 12786 of 2005 -6- petitioner alone was found guilty whom the Enquiry Officer found not guilty. 6. Admittedly, the Enquiry Officer found the petitioner not guilty of the misconduct alleged against him. The Government disagreed with the findings of the Enquiry Officer on 2 reasons as evident from Ext.P7 order. First is that the Enquiry Officer should not have disbelieved the evidence of PW7 in the enquiry. Second is that as per Circular No.21/76 Assistant Commandant was responsible for inspecting the daily cash transactions in the A.R.Camp. 7. PW7, whose evidence has been relied on by the Government find the petitioner guilty was one of the co- delinquents in the enquiry. A common enquiry was conducted against 6 persons including the petitioner. It is strange to note that the delinquents have been asked to give evidence on behalf of the prosecution in the enquiry, which is against the accepted norms of conducting enquiries in disciplinary proceedings. A delinquent cannot be asked to give evidence against him. When several persons are charged with the same misconduct naturally the tendency of each would be to save himself and therefore W.P.(C) No. 12786 of 2005 -7- would be prone to put the blame on the co-delinquents. Here PW7 was one of the co-delinquents. I have no hesitation to hold that the Government could not have relied on the sole testimony of the co-delinquent for the purpose of finding the petitioner guilty, that too of supervisory lapses. 8. The 2nd reason stated is that as per Circular No.21/76 Assistant Commandant was in charge of inspecting the cash transactions in Armed Reserve Camps. Admittedly in Cochin A.R.Camp there were 4 Assistant Commandants. Ext.P7 does not entered a finding that out of the 4 Assistant Commandants, the petitioner was specifically entrusted with the task of supervising Sri. Jayaprakash or supervising the cash transactions in the A.R.Camp. On the other hand the Enquiry Officer categorically found that the petitioner was not entrusted with any such duties. Therefore, without finding all the four Assistant Commandants together guilty of supervisory lapses, by no stretch of imagination the petitioner could have been found guilty of the misconduct of supervisory lapses in the matter of loss of cash from the cash chest. As such both reasons given by the Government for finding the petitioner guilty disagreeing with the W.P.(C) No. 12786 of 2005 -8- findings of the Enquiry Officer finding the petitioner not guilty are perverse and totally unsustainable. Therefore, I am of opinion that the petitioner could not have been validly found guilty of the misconduct alleged against him. Consequently he could not have been punished for the alleged misconduct. The Government themselves had exonerated the persons whom the Enquiry Officer found guilty and treated their suspension period as duty for all purposes. Since I have found the petitioner not guilty he is also entitled to the same treatment. 9. Accordingly the petitioner is entitled to have the period of suspension treated as duty for all purposes. 10. When the petitioner is not guilty of the misconduct naturally the amount found missing from the cash chest cannot be recovered from the petitioner even proportionately. Apart from that the statement in Ground (E) of the writ petition to the effect that the amount found missing from the cash chest was already recovered from persons to whom such amounts were given by late Jayaprakash is not disputed by the respondents in their counter affidavit. That is one additional ground not to recover the cash found missing from the petitioner. W.P.(C) No. 12786 of 2005 -9- 11. In view of my above findings the orders impugned in this writ petition are quashed. It is declared that the petitioner is not guilty of the misconduct alleged against him and that he is not liable to be punished for the same. Petitioner's suspension period shall be regularised as duty for all purposes. The amount found missing from the cash chest or part there of shall not be recovered from the petitioner. If the same has been already recovered, the same shall be refunded to him. The petitioner has retired from service on 31.03.2006. The arrears of salary and arrears of retirement benefits due to the petitioner on account of the above order, along with the amounts recovered from him shall be disbursed to the petitioner as expeditiously as possible at any rate within three months from the date of receipt of a copy of this judgment for which appropriate orders in tune with the above directions shall also be passed within the said time. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE Jvt