IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 WP(C).No. 12660 of 2007(F) -------------------------- PETITIONER(S): --------------- K.R.DAMODARAN, RETD FIRST GRADE SURVEYOR (RETIRED FROM THE O/O THE SPL.TAHSILDAR(LA) KRP & BSIP, KALPETTA, WAYANADU), R/AT KUZHITHADATHIL HOUSE, VAZHAKKULAM VILLAGE, SOUTH VAZHAKKULAM P.O SOUTH VAZHAKKULAM KARA, ALUVA- 5, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, PIN - 683 015. BY ADV. SRI.P.V.VIJAYAKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ADDITIONAL SECRETARY TO GOVERNMENT, VIGILANCE (E) DEARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF SURVEY & LAND RECORDS, DIRECTORATE OF THE SURVEY, VAZHUTHAKKADU, THIRUVANANTHAPURAM. 4. THE DISTRICT COLLECTOR, ERNAKULAM. 5. THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 12660/07. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE GOVT. ORDER DTD.13.1.2000. P2. COPY OF THE RINAL REPORT OF THE ENQUIRY CASE NO.8/99. P3. COPY OF THE CIRCULAR DTD.4.11.93. P4. COPY OF THE REPORT DTD.7.10.96 SENT TO R4 BY THE TAHSILDAR, ALUVA. P5. COPY OF THE NOTICE DTD.14.6.96. P5A. COPY OF THE NOTICE DTD.14.6.96. B. COPY OF THE NOTICE DTD.5.7.96 ISSUED BY THE TAHSILDAR, ALUVA TO THE PETITIONER AND OTHERS. P6. COPY OF THE DEPOSITION OF PW7 BEFORE THE TRIBUNAL. P7A COPY OF THE DEPOSITION OF PW1 -DO- B. -DO- PW2. C. -DO- PW3 D. -DO- PW4 E. -DO- PW5. P8. -DO- PW6. P9. -DO- PW8. P10. -DO- PW9. P11. COPY OF THE SHOW CAUSE NOTICE DTD.24.5.99 P12. COPY OF THE EXPLANATION DTD.28.6.99. P13. COPY OF THE GOVT. ORDER DTD.25.4.98. P14. COPY OF THE JUDGMENT OF THIS COURT IN O.P.No. 22370/99. P15. COPY OF THE JUDGMENT OF THIS COURT IN O.P.No. 10561/2000. P16. COPY OF THE ORDER OF THIS COURT IN I.A.NO.8863/06 IN O.P.No. 10561/00. P17. COPY OF THE RELEVANT PAGES OF REVIEW PETITION. P18. COPY OF THE HEARING NOTICE DTD.10.10.06. P19. COPY OF THE WRITTEN ARGUMENT DTD.18.2.06. P20. COPY OF THE GOVT. ORDER DTD.15.2.07. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.12660 of 2007 ================== Dated this the 22nd day of May, 2009 J U D G M E N T In this writ petition, a 1st Grade Surveyor of the Revenue Department challenges the punishment imposed on him for misconducts pursuant to disciplinary proceedings against him. The disciplinary proceedings were initiated while the petitioner was in service and continued after his retirement from service, which culminated in Ext.P1 order, whereby the Government imposed on the petitioner a punishment of reduction of 20 per cent of the monthly pension admissible to the petitioner permanently. The petitioner's review petition against Ext.P1 was dismissed by Ext.P20. 2. Short facts required for disposal of this writ petition may be summarised as follows:- Six persons filed complaints alleging that the petitioner demanded and accepted bribe from them for preparing survey sketch of their properties. The matter was referred to the Vigilance Department of the Government, who conducted an enquiry and submitted a report to higher authorities. Based on that report, the Government decided to take disciplinary action against the petitioner. Memo of charges was issued to the petitioner and his written statement of defence obtained. Since the explanation furnished by the petitioner was not satisfactory to the Government, the Government referred the matter to the Vigilance Tribunal for a detailed enquiry. w.p.c.12660/07 2 The charge levelled against the petitioner was as follows: “THAT YOU, Sri.K.R.Damodaran, S/o.Raman, Kuzhithadathil, South Vazhakkulam while working as a Government servant in the capacity of Addl. Taluk Survoyor, Aluva from 1993 November onwards, demanded and obtained bribe from the beneficiaries under the Rajeev ten lakh Housing Scheme for the issuance of Transfer of Registry and thereby failed to maintain absolute integrity and devotion to duty.” On these charges the Vigilance Tribunal conducted an enquiry. The Vigilance Tribunal examined all the six complainants who complained that they paid bribe to the petitioner as also other witnesses. Although the petitioner produced four documents, which were marked in the enquiry, the petitioner did not choose to adduce any other oral or documentary evidence in defence. Ultimately, after considering the evidence adduced, the Vigilance Tribunal came to the conclusion that the petitioner is guilty of the charge of accepting bribe. Based on that enquiry report, the Government issued Ext.P1 order of punishment. Although the petitioner filed Ext.P17 review petition against Ext.P1 order, the same was dismissed by the Government by Ext.P20. It is challenging the said proceedings, the petitioner has filed this writ petition seeking the following reliefs: “A) To issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ or order or direction calling for the records leading to Exhibit P20 from the first respondent and to quash the same as contrary to law, perverse, unreasonable, unjustifiable and unsustainable, holding that Exhibit P1 order based on Exhibit P2 imposing the punishment of reduction of 20% of the monthly pension admissible to the petitioner permanently, is contrary to law, facts and evidence in the case, and that the punishment imposed is unreasonable, unjustifiable, and unsustainable in law; and consequently, B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ or direction or order directing w.p.c.12660/07 3 the respondents to release and disburse the balance amount of the petitioner's full monthly pension from the date of his retirement within a specific time limit that may be fixed by this Hon'ble Court. C) To direct the first respondent to regularise the aforementioned period of suspension of the petitioner from services as duty and to pay the consequential benefits to him. D) To award the costs of this Petition from the respondents;” 3. The petitioner raises two contentions. First is that as is evident from Ext.P4, which is the report from the Tahsildar to the District Collector, in respect of the same subject matter, the Tahsildar had reported that the petitioner is not guilty of the allegations made by the complainants and therefore, a second enquiry on the same amounts to double jeopardy. The petitioner would further contend that the evidence adduced before the Vigilance Tribunal was totally in support of the petitioner and the witnesses who were examined did not support the prosecution case. Therefore, the findings in Ext.P2 enquiry report are totally perverse and against the evidence adduced before the Tribunal is the argument raised by the counsel for the petitioner. 4. A counter affidavit has been filed on behalf of the 1st respondent supporting Exts.P1 and P2. 5. I have heard both sides. 6. As regards the first contention, I am of opinion that there were no two enquiries in the disciplinary proceedings as contended by the petitioner. From Ext.P4 it is clear that the Collector had referred certain complaints received by him to the Tahsildar for enquiry and the w.p.c.12660/07 4 Tahsildar had reported that, on perusing the hearing note recorded by somebodyelse, the complainants had no complaint presently against the petitioner. Ext.P4 reads thus: “Please refer to the letter cited. Notices were issued to the applicants who applied for Transfer of Registry for hearing on 12.7.96 by my predecessor. The hearing note reads that Sri.Esthapanose and Poulose appeared for hearing and they said that they had no complaint at present and that their cases were attended by the Taluk Surveyor properly. My predecessor who conducted the hearing has also noted that Sri Jose Varekulam co-ordinator Social Service Malayattoor who is the complaint petitioner has not paid any money to the Taluk Surveyor and that the information was given by the other persons and that he had not witnessed any transaction between the surveyor and the others. The other persons mentioned in the petition have no complaint about the surveyor at present. A copy of the report sent to the Inspector of Police Vigilance Dept. EKM is enclosed for information 3 n/a.” I do not think that Ext.P4 can be considered as part of a disciplinary proceedings initiated against the petitioner. The petitioner has no case that prior to Ext.P4 the petitioner had been issued with any charge sheet based on which an enquiry was conducted. At best Ext.P4 can only be a preliminary enquiry report. In any event, the District Collector did not act on Ext.P4, instead the matter was referred to the Government, who in turn referred the same to the Vigilance Department who conducted an investigation and recommended disciplinary action. As such, Ext.P4 is not at all part of the disciplinary proceedings. Therefore, I do not find any merit in the first contention of the petitioner. 7. The second contention is that findings in Ext.P2 report are perverse. The counsel for the petitioner has taken me through the w.p.c.12660/07 5 discussion of the evidence in Ext.P2 in his attempt to prove the said contention. Of course while giving evidence before the Tribunal, except PW6, the other complainants did not fully support their earlier case that they had paid bribe to the petitioner. Of course, while stating that they paid money, they did not support the prosecution case that it was as bribe to the petitioner. They also disowned the earlier complaint filed through PW7 as also the statements given by them before the Vigilance officers. But the enquiry officer chose to rely on their original complaints and statements before the Vigilance to enter a finding of guilt in respect of the allegations raised by four of the complainants. The counsel for the petitioner would strenuously argue that even the Tribunal had found that the signature of one of the witnesses appearing in the original complaint was not that of the complainant. From this he wants this Court to draw an inference that the entire findings in Ext.P2 report are totally perverse. 8. PW7 is the person who forwarded the original complaint of the six complainants to the disciplinary authority. He was involved in the proceedings as office bearer of a social organization through whom only applications for financial assistance under the 'Rajeev Ten Lakh Housing Scheme' could be submitted for availing of which their properties had to be mutated for which the survey sketches were necessitated. Six complainants submitted applications for financial w.p.c.12660/07 6 assistance through PW7. When the complainants complained to PW7 that the petitioner had demanded and accepted bribe from them for preparing the survey sketches of their properties, PW7 prepared a complaint and obtained signatures of the six complainants, which was forwarded to the disciplinary authority. Of course, subsequently, except PW6, others even went to the extent of disowning the complaint itself although four of them admitted their signatures. Their turn around was disbelieved by the Tribunal in view of the admitted signature of five of them as also the statements given by them before the vigilance authorities, which also they disowned. Perhaps in respect of the deposition of five complainants on the above grounds some doubt could have been cast on their evidence. But on a reading of the evidence of PW6, which is produced as Ext.P8 in the writ petition, I could not find anything wrong with the conclusion by the Tribunal that PW6 had paid bribe to the petitioner for getting the survey sketch of his property prepared. The evidence of PW6 was categoric and specific. He specifically deposed that for the purpose of preparing the sketch, he had paid Rs.350/- as bribe to the petitioner. He was elaborately cross examined by the petitioner, but his evidence could not be shaken to any extent. Of course learned counsel for the petitioner would now contend that PW6 had some grudge against the petitioner for having returned the papers earlier. But from Ext.P8 deposition I find that the w.p.c.12660/07 7 petitioner had no such case while cross-examining PW6. In fact he had no such case except in the argument of the counsel before me. Therefore, at least in the case of PW6 there is very reliable evidence to the effect that PW6 paid bribe to the petitioner for preparing a survey sketch of the property of PW6. Therefore, even if some doubt can be cast on the evidence of others I have no hesitation to hold that the deposition of PW6 is more than sufficient to enter a finding of guilt against the petitioner in respect of the complaint of PW6 against the petitioner. Even if I find that the prosecution was not able to prove the allegations of other five witnesses, the evidence of PW6 and finding thereon is more than sufficient to impose punishment on the petitioner. Further, the law is settled that sufficiency of evidence in disciplinary proceedings is not a matter which can be gone into by this Court in proceedings under Article 226 of the Constitution of India, if there is some acceptable evidence. The standard of proof required in disciplinary proceedings is far less than that in a criminal court or a civil court. The test is only as to whether an ordinary prudent person would come to the conclusion on the basis of the evidence on record. In the above circumstances, I do not find anything wrong with either Ext.P2 enquiry report or Ext.P1 punishment order. Of course, the petitioner submits that Ext.P20 order of the Government which is the order in review, is a non-speaking order. Even if that is a non-speaking w.p.c.12660/07 8 order, now that I have considered the entire case on merits based on the contentions and materials produced by the petitioner himself, I do not think that I should go into that question at this juncture. In so far as I am satisfied that the finding of guilt at least in respect of one instance of bribe has been sufficiently proved, there is no merit in the writ petition. Accordingly, the writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge