IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 WP(C).No. 2222 of 2008(M) --------------------------------- PETITIONER(S): ------------------- P.E.PRAKASAN, FIELD OFFICER, MEENAR ESTATE, GAVI DIVISION, GAVI P.O., VIA. VANDIPERIYAR. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): -------------------- 1. THE KERALA FOREST DEVELOPMENT CORPORATION LTD., REP. BY ITS MANAGING DIRECTOR, KARAPUZHA, KOTTAYAM. 2. THE GENERAL MANAGER, KERALA FOREST DEVELOPMENT CORPORATION LTD., KARAPUZHA, KOTTAYAM. 3. P.V.NARAYANAN,FIELD OFFICER, DIVISIONAL OFFICE, KERALA FOREST DEVELOPMENT CORPORATION LTD., VALIYALUKKAL, KANIMANGALAM P.O., TRICHUR. 4. V.V.JAYARAJAN, FIELD OFFICER, DIVISIONAL OFFICE, KERALA FOREST DEVELOPMENT CORPORATION LTD., VALIYALUKKAL, KANIMANGALAM P.O., TRICHUR. 5. P.N.MOHANAN, FIELD OFFICER,DIVISIONAL OFFICE, KERALA FOREST DEVELOPMENT CORPORATION LTD., GAVI P.O., VANDIPERIYAR (VIA),IDUKKI DISTRICT. 6. A.K.JAYAKUMAR, FIELD OFFICER,KERALA FOREST DEVELOPMENT CORPORATION LTD.,ARIPPA SUB UNIT, CHOZHIYAKKODU P.O., ARIPPA, KULATHUPUZHA(VIA),KOLLAM DISTRICT. 7. T.K.RADHAKRISHNAN,FIELD OFFICER, DIVISIONAL OFFICE, KERALA FOREST DEVELOPMENT CORPORATION LTD., VALIYALUKKAL, KANIMANGALAM P.O., TRICHUR. R1 & R2 BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR R3 TO 7 BY ADV. SRI.P.RAMAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2011, ALONG WITH WPC NO.2089 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs WP(C).No. 2222/2008(M) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LETTER DATED 26/10/2007 ISSUED BY THE CORPORATION. P2: COPY OF THE REPRESENTATION DATED 04/12/2007 BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P3: COPY OF THE PROMOTION ORDER DATED 20/03/2007 ISSUED BY THE 1ST RESPONDENT. P4: COPY OF THE RELEVANT PAGES OF G.O.(MS) NO.34/2005/F & WLD DATED 19/04/2005. P5: COPY OF THE ORDER DATED 11/01/2008 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos. 2222 of 2008 & 2089 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of February, 2011 J U D G M E N T W.P. (C) No. 2222/2008 is filed by the petitioner who is a Field Officer in the Forest Development Corporation, complaining that the petitioner is not being given his due promotion as Assistant Manager in accordance with his seniority, merely on the pendency of a vigilance enquiry against the petitioner. W.P. (C) No.2089/2009 is filed by the same petitioner challenging Ext.P5 which is stated to be the recommendation of the Director of the Vigilance and Anti- Corruption Bureau, for prosecuting the petitioner and others for certain offences involving misappropriation. The petitioner is challenging Ext.P5 on the ground that going by Ext.P5 itself it is clear that there are no allegations whatsoever against the petitioner. The petitioner's further contention is that one K.G. Joseph who was the 11th accused mentioned in Ext.P5 has been given promotion and W.P.(C)Nos. 2222 of 2008 & 2089 of 2009 -2- therefore the petitioner is entitled to equal treatment. 2. The respondents 1 & 2 seek to controvert the contentions of the petitioner by filing a counter affidavit. According to them pursuant to Ext.P5, a criminal case has already been lodged, which is pending. They would submit that in Ext.P5, no prosecution has been recommended against the 11th accused and therefore as per the clearance from the Vigilance & Anti-Corruption Bureau the said person had been promoted. 3. I have considered the rival contentions in detail. 4. In W.P. (C) No.2089/2009 the prayers are as follows: “(i) call for records leading to Ext.P5 and quash the same by a writ of certiorari or any other appropriate writ, direction or order. (ii) Declare Ext.P5 as illegal, unjust and unconstitutional. (iii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to not proceed ahead with Ext.P5 in any manner. (iv) issue an interim direction to the respondents not proceeds a heard with Ext.P5 in any manner.” Insofar as Ext.P5 is only a recommendation for initiating W.P.(C)Nos. 2222 of 2008 & 2089 of 2009 -3- prosecution which has already fructified into a criminal case, there is no point in considering the prayers of the petitioner in that writ petition at this point of time, insofar as the petitioner has to prove his innocence in the criminal case registered against him. As such W.P. (C) No.2089/2009 is liable to be dismissed. 5. In W.P. (C) No.2222/2008 the prayers are as follows: “a) to issue a writ of mandamus or other appropriate writ order or direction directing respondents 1 and 2 to promote the petitioner to one among the 8 posts of Asst. Manager lying vacant in the Corporation before promoting respondents 3 to 7 to that post; b) to issue a writ of mandamus or other appropriate writ, order or direction directing respondents 1 and 2 to give promotion to the petitioner to the post of Asst. Manager strictly in accordance with seniority show in Ext.P1 list prepared by the 1st respondent; c) to issue a writ of mandamus of other appropriate writ, order or direction directing respondents 1 and 2 not to deny timely promotion to the petitioner to the post of Asst. Manager, solely based on pendency of Vigilance Case.No.VC 8/05/IDK in Vigilance Police Station, Idukki. cc) to issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P5 order dt.11.1.08 promoting respondents 3 to 7 to the post of Asst. Manager; ccc) to issue a writ of mandamus or other appropriate writ order or direction directing respondents 1 and 2 to promote the petitioner to the post of Asst. Manager, if necessary, by reverting a person immediately junior to W.P.(C)Nos. 2222 of 2008 & 2089 of 2009 -4- him among respondents 3 to 7; “ 6. The specific contention of the petitioner is that in Ext.P5 in the other writ petition, although there is a recommendation to prosecute the petitioner, there is absolutely no mention as to how the petitioner is involved in the matter. Except the recommendation, nothing is stated as to the involvement of the petitioner in the incidents giving rise to the vigilance case is his contention. According to the petitioner, the petitioner's case stands on the same footing as the 11th accused and therefore insofar as the 11th accused has already been promoted the petitioner is entitled to similar treatment. 7. The recommendation in Ext.P5 reads thus: “Recommendation Dy.S.P. has recommended prosecution against A1, A3, A4, A8, A9 & A10. He recommended departmental action against A2, A5, A6, A7, A11 & A12. Additional Legal Advisor, VACB, Kochi has recommended prosecution against A1 to A6, A8 to A11 and no action against A7 and A12. Investigation discloses that it was A3 and A4 who had measured the land, recorded it as 85 ha. A1 and A10 have checkmeasured it and certified. A8 carried out the work as convenor. A1, A3, A4, A8 & A10 are involved in the three stages of works (primary nursery work, W.P.(C)Nos. 2222 of 2008 & 2089 of 2009 -5- secondary nursery work & planting operations) during the period from 1.3.01 to 19.1.02. They are primarily responsible for the misappropriation. A2 the Asst.Manager took charge of on 4.6.2003 only. He carried out the work as per the existing plan. When the irregularity was brought to his notice by A12, he recovered all the excess payment during his period. A12 also had initiated action and detected the fraud. Hence no action is recommended against A2 and A12 ....... Prosecution is recommended against A1, A3, A4, A5, A6, A8, A9 & A10. A1 K.B. Kishore Kumar A2 K.Vipinachandran A3 U.T.Venugopal A4 P.K.Radhakrishnan A5 P.E.Prakashan A6 P.M.Sudhakaran A7 E.J.Johnson A8 M.Mariadas A9 M.Lakshmanan A10 C.A.Abdul Bashir A11 K.G.Joseph A12 P.N.Bhanuvikraman Nair Role of Accused -A10 “He misappropriated Rs.3,71,156/98 alongwith A1, A3, A4, A5, A6, A8, A9 and A11 in connection with the execution of Nursery, survey, planting and 2nd year maintenance works of 2001 Eucalyptus grandis plantation at Silent Valley during 9.4.01 to 15.7.02” 8. From the same, it is clear that originally the Deputy Superintendent of Police has recommended W.P.(C)Nos. 2222 of 2008 & 2089 of 2009 -6- prosecution against A1, A3, A4, A8, A9 & A10. Against the petitioner who was A5 his recommendation was for departmental action. But the Additional Legal Advisor, Vigilance & Anti-Corruption Bureau, Kochi recommended prosecution against the petitioner also. Although in the recommendation the involvement of others have been specifically stated, there is no mention as to how the petitioner is involved in the same. Further, in the last sentence it is specifically stated that the 10th accused misappropriated amounts along with A1, A3, A4, A5, A6, A8, A9 & A11, which shows that the role of A11 was also mentioned therein, who has been granted promotion. From the same, I am inclined to conclude that both A5 & A11 stand on the same footing going by Ext.P5. Although in W.P. (C) No.2089/2009 the Director of Vigilance & Anti- Corruption Bureau of Police has been made a party, he has not chosen to file any counter affidavit and state as to how the petitioner is involved in the criminal case. In such circumstances, I am of opinion that on such flimsy material, W.P.(C)Nos. 2222 of 2008 & 2089 of 2009 -7- the petitioner should not be denied promotion at least provisionally insofar as a person similarly situated like the petitioner has been given promotion. Accordingly these writ petitions are disposed of as follows: W.P. (C) No.2089/2009 is dismissed. W.P. (C) No. 2222/2008 is disposed of with a direction to the respondents 1 & 2 to promote the petitioner provisionally in accordance with his seniority subject to the result of the criminal case pending. Orders in this regard shall be issued as expeditiously as possible, at any rate within one month from the date of receipt of a certified copy of this judgment. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/