IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 OP.No. 34324 of 2002(J) ---------------------------------- PETITIONER: ------------------- DR.K.A.JOHN BENITTO, AGED 57 YEARS, S/O. ANTONY K.G. (LATE), KALATHIPARAMBIL, RESIDENCE NO.10, U.P.S.LANE, AMBALATHARA, THIRUVANANTHAPURAM-26 (RETIRED DEPUTY DIRECTOR, DEPARTMENT OF HOMOEOPATHY). BY ADVS. SRI.S.MURALI, SRI.S.SUDHISH KUMAR, SRI.K.B.DAYAL, SRI.K.A.MINA. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, VIGILANCE (C) DEPARTMENT, GOVERNMENT OF KERALA. 2. THE ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF HOMOEOPATHY, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SRI. ATNONY MUKATH. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 34324/2002-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SHOW CAUSE MEMO NO. 5585/C2/2001/VIG. DTD. 03/08/2001 BY THE R.1. AND ENQUIRY REPORT IN CASE NO. 12/2000. EXT.P.2: COPY OF THE EXPLANATION OF THE PETITIONER. EXT.P.3: COPY OF THE PROCEEDING DTD. 01/06/2002 VIDE NO. G.O.(MS) 43/02/VIG. BY THE R.1. EXT.P.4: COPY OF THE SUBMISSION DTD 04/05/2001 BY THE PETITIONER TO THE R.3. EXT.P.5: COPY OF THE PROCEEDING NO. P-03/PENA/737/OP/01-02/1013 DTD. 06/12/2001 BY THE R.2. EXT.P.6: COPY OF THE PROCEEDING NO. P-3/PENA/737/P/01-02/511 DTD. 19/07/2002 BY THE R.2. TO THE R.3. EXT.P.7: COPY OF THE PROCEEDING NO. 10913/EB3/2000/DH, DTD. 30/07/2002 BY THE R.3. EXT.P.8: COPY OF THE PROCEEDING NO. P3-PENA/737/P/01-02/600 DTD. 09/08/2002 BY THE R.2. TO THE R.3. EXT.P.9: COPY OF THE PROCEEDING NO. 10913/EB3/2000/DH DTD. 30/07/2000 BY THE R.3. EXT.P.10: COPY OF THE PROCEEDING NO. P-11/AT/CAX/414/472 DTD. 16/08/2002 BY THE R.2. EXT.P.11: COPY OF THE PENSION PAYMENT ORDER OF THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J ....................... O.P.34324/2002 ....................... Dated this the 31st day of May, 2010 JUDGMENT Petitioner retired from service as Deputy Director of Homeopathy on 31.7.2000. While in service, he was issued memo of charges containing allegations that he willfully violated the norms prescribed by the Government in the appointment of five Part Time Sweepers in Homeopathy Dispensaries within Thiruvananthapuram District and that in order to cover up his illegal activities, he destroyed the mark list prepared by him in the selection and also the seniority list forwarded by the Employment Exchange. He did not submit any written statement to the memo of charges. 2. Government decided to enquire into the charges in detail under the Kerala Civil Services (Vigilance Tribunal Rules), 1960. Accordingly, order dated 10.8.2000 was issued referring the charges against the petitioner to the Vigilance Tribunal, Thiruvananthapuram for a detailed enquiry. Vigilance Tribunal registered the case as Enquiry Case No.12/2000 and submitted report dated 31.5.2001 finding the petitioner guilty. Enclosing the finding of the Tribunal, petitioner was issued Ext.P1 show cause O.P.34324/02 2 notice, stating that the Government have examined the report and accepted the findings. It is further stated that it has been provisionally decided to impose punishment of withholding ¼th of his monthly pension for a period of five years. Accordingly, petitioner was called upon to show cause to Ext.P1. 3. Although the petitioner says that in response to Ext.P1, he submitted Ext.P2, fact remains that Ext.P2 was not received by the Government. Finally he was issued Ext.P4 order confirming the proposal in Ext.P1 show cause notice and withholding ¼th of the pension for a period of five years. It is challenging the aforesaid proceedings and for disbursement of DCRG due to him, the writ petition was filed. 4. During the pendency of this proceedings, DCRG has been disbursed and what remains is the challenge against the order withholding ¼th of the pension that is due to petitioner. 5. The fact that an order withholding pension for a proved misconduct can be imposed by the Government, cannot be disputed in view of the provisions contained in Rule 3 of Part-III, O.P.34324/02 3 KSR. If so, the question is whether in the circumstances, Government was justified in passing the order. This necessarily depends upon the findings in the enquiry report of the Vigilance Tribunal. 6. Evidently the misconduct alleged against the petitioner to which he did not even file his written statement, are serious. Findings in the enquiry report show that six persons were appointed by the petitioner out of the candidates sponsored by the Employment Exchange. The case proved by the prosecution was that in the selection and appointment of the aforesaid six persons, there was violation of the norms issued by the Government. It is stated in the report that the petitioner has destroyed some of the vital documents connected with the appointment. Therefore, with the material in Ext.P2, the available file, it is found that it was not possible to ascertain the criteria adopted by the petitioner in the selection of candidates. It is found by the Vigilance Tribunal that even though the petitioner handed over the charge of District Medical Officer, Thiruvananthapuram to PW3 on 14.9.1998, he did not hand over the appointment file to his successor till 20.9.1999 and it was found that he had retained the file with the object of O.P.34324/02 4 destroying the vital documents to cover up his illegal activities. The fact that the petitioner did not hand over the files was spoken to by PWs1 and 2 and considering the fact that the petitioner was in the exclusive possession of the files, Tribunal found him responsible for loss of documents from the file. On that basis, Tribunal inferred that the petitioner would have destroyed the documents to cover up his illegal activities. It is also found that though the interview of the candidates was over on 30.5.1998, orders of appointing six candidates were issued on 4.5.1998, 14.5.1998 and 5.6.1998. From the above facts, the Tribunal inferred that the petitioner had undue interest in the matter of appointment. After an elaborate discussion Tribunal also found that in the assessment of relative merits of the selected candidates, the Director of Homeopathy found that except one, rest of the five candidates were ineligible for appointment and that by a manipulation of the marks awarded, others were made eligible. It is on all the above facts, Tribunal found that the petitioner violated the norms in the matter of appointment. It was considering the aforesaid proved misconducts which, in my view, are all grave, that the Government issued Ext.P1 show cause notice to which the petitioner did not even file a reply. In such O.P.34324/02 5 circumstances, the punishment of withholding ¼th of the pension for a period of five years, imposed on the petitioner, cannot be said to be an arbitrary exercise of power warranting interference. 7. I am also not impressed by the arguments of the learned counsel for the petitioner that the withholding of ¼th of the pension for five years is disproportionate to the gravity of the misconducts. Considering the position held by the petitioner in the Department and the responsibility he owed, I cannot say that the misconduct was not grave enough warranting withholding of pension as ordered in Ext.P5. I am not persuaded to interfere in the impugned orders. The writ petition fails and it is accordingly dismissed. ANTONY DOMINIC, Judge mrcs