IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WA.No. 404 of 2009() -------------------- AGAINST THE JUDGMENT IN OP.5794/2003 .................... APPELLANT(S): -------------- P.A.JAYATHILAKAN, S/O.U.RAGHAVAN, “ SURABHI”, NEAR RAILWAY GATE, P.O.PADANNAKKAD, VIA-NILESWAR, KASARAGOD DIST. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SMT.VIDHYA. A.C RESPONDENT(S): --------------- 1. SECRETARY TO THE GOVT. OF KERALA, REVENUE(D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF LAND REVENUE, GOVT. OF KERALA, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY 4. ACCOUNTANT GENERAL OF KERALA, THIRUVANANTHAPURAM. ADV. SRI.ALEXANDER THOMAS,STANDING COUNSEL,KPSC FOR R3 SENIOR GOVT.PLEADER SRI.BENNY GERVASIS R1 ,2 &4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A.NO.404 2009 --------------------------------------------- Dated this the 15th day of October, 2009 JUDGMENT Ravikumar, J. The writ petitioner is the appellant herein. He is a retiree from the post of Deputy Collector in the Revenue Department of the Government of Kerala. Prior to his retirement on 31.3.1997, he was charge-sheeted as per Exts.P1 and P3. Ext.P1 charge sheet pertains to filing of an application for correction of mistake in LAR No.122/87 on the file of the Sub Court, Payyannur and Ext.P3 charge sheet relates to the dealing of applications under Section 28A of the Kerala Land Acquisition Act (for short 'L.A. Act') in 32 cases. In response to the aforesaid charges, the appellant had submitted Exts.P2 and P4 written statements of defence. Later, the delay in the disbursement of pensionary benefits made him to file O.P.No.7247/2001 and by Ext.P5 judgment, this court disposed of the same directing to complete the disciplinary proceedings based on Exts. P1 and P3, expeditiously, at any rate within three months from date of receipt of copy of judgment and to disburse whatever benefits due to him, including pension, DCRG etc., within one month thereafter. W.A.NO.404 of 2009 -2- 2. In compliance with Ext.P5 judgment, disciplinary enquiry was completed and Ext.P9 report was submitted by the Enquiry Officer, holding all the charges, but one, as proved. Thereupon, the appellant was issued with Ext.P6 show cause notice to explain as to why an amount of Rs.15,04,082/- should not be fixed as his liability towards the loss sustained by the Government and reduction of Rs.2,000/- per month permanently should be effected from his pension under Rule 3, Part III of the Kerala Service Rules. Though he represented against it, Ext.P11 was passed by the Government disregarding his objections and an amount of Rs.8,12,820/- was fixed as the loss sustained by the Government. It was directed thereunder to recover the loss caused to the Government on account of his misconducts to the tune of Rs.1,64,390/- from his DCRG and the balance amount of Rs.6,48,430/- by invoking the provisions under the Kerala Public Accountants Act, 1963. It was also directed to reduce Rs.1277/- per month permanently from his pension under Rule 3(a) of Part III of K.S.R. It was challenging Ext.P11 order that O.P.No.5794/2003 was filed by the appellant herein. 3. Before the learned Single Judge, it was contended that the enquiry itself was vitiated by non-examination of witnesses and also by the action of placing reliance on documents without being proved through competent officers. It was also contended that there was no evidence on W.A.NO.404 of 2009 -3- record to prove the misconducts alleged against him. According to him, it was ignoring the settled position of law that even a non-protester in the matter of receipt of compensation can invoke Section 28A of the L.A Act that he was charge sheeted and found guilty for having enabled such non- protesters to get additional compensation. The said finding was perverse, it was contended. The findings in Ext.P11were perverse inasmuch as some of the alleged acts were relating to a period prior to his joining the concerned office. Lastly, it was contended that since Ext.P11 order was passed after three years since his retirement and, as such, no liability could have been fixed and recovered from his DCRG under Rule 3 of Part III, K.S.R. 4. The respondents have filed a detailed counter affidavit resisting the contentions and also to sustain the impugned order. It was contended that on account of the concerted action of the appellant and the co- delinquent, Government had sustained loss of an amount of Rs.16,25,639/- and as they are equally responsible for the said loss, the appellant was saddled with the liability to the tune of Rs.8,12,820/-. Further, it was contended that the appellant while working as a Special Tahsildar, Land Acquisition, had manipulated the counterfoils of the cheque books with a view to show that about 32 non-protesters accepted the compensation under protest. It was further contended that the findings at the enquiry were based on some evidence supported by materials and therefore, the findings could W.A.NO.404 of 2009 -4- not be said to be perverse warranting interference by this Court. In short, the respondents contended that the charges leveled and proved against the appellant are enough to arrive at a conclusion of guilt against him and to pass Ext.P11. The learned Single Judge after considering the rival contentions dismissed the writ petition. Hence this appeal. 5. We heard senior counsel Sri.M.C.Sen for the appellant and the learned Senior Government Pleader Sri.Benny Gervasis for the respondents. 6. Virtually, all the contentions unsuccessfully raised before the learned Single Judge were reiterated before us for the appellant. The main contention was that the entire disciplinary proceedings have been vitiated firstly, on account of non-examination of witnesses and secondly, by the action of placing reliance on documents without being proved through competent officers. Non-examination of witnesses will not and cannot vitiate every disciplinary proceeding. But, if oral evidence is adduced, definitely the delinquent employee should be given an opportunity to cross- examine those witnesses. The petitioner herein did not have a case that despite the examination of witnesses, such witnesses were not permitted to be cross-examined. So also, he did not have a case that he was not permitted to examine his witnesses despite seeking permission for that behalf. In the absence of any such contentions, the petitioner cannot sustain W.A.NO.404 of 2009 -5- a contention that non-examination of witnesses vitiated the disciplinary proceedings. With respect to the objection regarding the reliance placed on documents which were not proved through competent witnesses it is to be noted that Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, hereinafter referred for short 'K.C.S (CCA) Rules' only, do not contain any invariable or inflexible stipulation that documents should be relied on only if they are proved through witnesses. Various circumstances may bring admissibility to a document even if it was marked not through witnesses in departmental proceedings. Failure to raise objection at the proper time or at the the earliest opportunity may make such a document admissible in disciplinary proceedings. The proper time to raise such an objection is when the objectionable document was marked an an exhibit. Failure to raise such objection at the time of its marking or at the earliest opportunity will definitely bring it outside the scope of impeachment. We may examine the sustainability of the aforesaid contentions having regard to the facts of the present case, a little later. 7. The gravamen of the first set of charges leveled as per Ext.P1 memo, is that judgment and decree in L.A.R.122/87 were wrongly got amended causing huge loss to the Government. Admittedly, at the instance of the appellant an application for amendment was moved before the learned Sub Judge and the same was initially allowed. However, it was later found W.A.NO.404 of 2009 -6- that there was no actual mistake involved in the said case warranting such amendment and therefore, by inviting order on such amendment petition, an excess amount of Rs.1,54,390/- was paid. The said amount was later recovered from the DCRG payable to the appellant. Admittedly, by a subsequent order dated 28.10.05 in I.A.No.1028/97 in L.A.R.122/87, the Sub Court, Payyannur had directed the claimant therein to refund the said excess amount already received and in default directing the Tahsildar to resort to any action for realisation of the amount. Later, the same was set aside by this Court as per judgment dated 3.10.2001 in L.A.A No.167/01 and the case was remanded to the Lower Court for fresh disposal. In the wake of the said facts and circumstances, only a feeble attempt made before us to attack the first set of charges. In view of the said incontrovertible factual position obtained in the case there is no room for any interference with the conclusion arrived at in Ext.P11 in regard to the first set of charges. As per Ext.P11, the appellant is equally responsible for the loss of Rs.2,43,115/- sustained by the Government. In other words, his liability on that score will come to half of that amount, that is Rs.1,21,557.50/-. In the totality of the circumstances we agree with the findings and conclusion of the learned Single Judge regarding the charges under Ext.P1. 8. The second set of charges leveled as per Ext.P3 memo charges, relates to the dealings of applications for enhanced compensation under W.A.NO.404 of 2009 -7- Section 28A of the Land Acquisition Act in 32 cases. It reads as hereunder:- “(1) That you Sri.P.A.Jayathilakan, while working as special Tahsildar (LA) Thalassery committed serious irregularities in dealing the applications under Section 28(A) of the K.L.A Act, resulting payment of Rs.13.82 lakhs in 32 cases to persons who are not eligible as per clarification issued in the Government letter No.33956/B1/94/RD dated 17.10.1994. (2) That you have not considered or gone through the statements filed by the parties at the time of award enquiry and also the B Form statements sent by the Land Acquisition Officer to the Accountant General, Thiruvananthapuram, on completion of payment, which were available in the connected L.A. disposal files, to make sure that the compensation was actually received by the parties under protest or not, while processing the applications under section 26(A) of L.A Act and abetted in irregular payment thus causing huge loss to the Government. (3) That you have helped the petitioners (Land owners who filed application under Section 28A of the K.L.A Act) by permitting them to record their protest on the insufficiency of compensation awarded to them on the counterfoils of the D Form cheques on the later dates which resulted in effecting payment of Rs.13.82 lakhs to the ineligible persons. (4) Your action described above amounts to gross dereliction of duty and breach of responsibility vested on you, as a responsible Government servant and caused loss to Government to a tune of Rs.13.82 lakhs.” 9. In order to resist the aforesaid charges, the appellant has placed reliance on the decision of the Hon'ble Apex Court in Babua Ram & ors. v. State of U.P & anr. reported in JT 1994 (7) SC 377. It was held therein, that when an application is made in writing by the aggrieved person, for W.A.NO.404 of 2009 -8- determination of compensation under Section 28 A of the L.A Act, notwithstanding the fact that such person had received compensation under Section 31 without protest and had not availed the right and remedy under Section 18, re-determination of compensation shall be done. It was based on the aforesaid declaration of law by the Hon'ble Apex Court that the appellant assailed the said charges leveled against him as per Ext.P3. It was contended that even if the claimants in the said 32 cases involved in this issue had received the amount of compensation without protest, they are entitled to enhancement of compensation under Section 28 A of the L.A Act in the light of Babua Ram's case (supra) and therefore, the learned Single Judge ought to have interfered with the finding of the disciplinary authority that Government had sustained monetary laws on account of payment of enhanced compensation. 10. In the counter affidavit, the respondents have raised manifold contentions to resist the aforesaid contention of the appellant. It was contended that the appellant had re-determined compensation in respect of the 32 cases involved in the issue based on the decision of Babua Ram's case (supra) in March, 1995 where as the said judgment was communicated to the land acquisition officers from the Board of Revenue only on 27.10.1995. It was also contended that prior to that, Government as per letter No.3956/V1/RD dated 17.10.1994 clarified the position that to avail W.A.NO.404 of 2009 -9- the privilege under Section 28 A, the awardee must have indicated his dissatisfaction/objection against the amount awarded by the collector either during the award enquiry or while receiving the award. In view of the said factual position, it was contended that the general applicability of the Apex Court decision in Babua Ram's case (supra) was to be decided by the competent authorities and not by the low level officers like Special Thahsildar and in short, the appellant had to obey the guidelines obtained in the letter dated 17.10.1994. In other words, the contention of the respondents is that in view of Government letter dated 17.10.1994, there was no authority for the appellant as Special Thahsildar to re-determine the eligibility of the applicants under Section 28 A of the L.A Act even after the decision of the Hon'ble Apex Court. We are afraid, we cannot comprehend such a contention in the light of the decision of the Hon'ble Apex Court in Star Co. v. Union of India reported in AIR 1987 SC 179. It was held therein that the Supreme Court decisions laying down the position of law are laws binding on all and for that matter the party need not be served with any notice or be a party to the said proceedings. It is obvious from paragraph 10 of the counter affidavit that the respondents virtually admit the fact that the appellant was the competent authority to decide the eligibility of the applicants in the 32 cases involved in this issue, for re- determination under Section 28 A. If that be so, the appellant could not have ignored the decision of the Hon'ble Apex Court in Babua Ram's case W.A.NO.404 of 2009 -10- (supra) when it is brought to his notice or if he was aware of the same while deciding the question of enhancement of compensation in respect of said cases. Therefore, the said contention of the respondents is to be dispelled. However, that will only clothe the appellant with the power to consider the question of re-determination of compensation under Section 28 A of the L.A Act in respect of the said 32 cases. The eligibility or otherwise of the applicants in those cases will still depend upon satisfaction of certain other conditions. The appellant himself admits the fact that the entitlement to get enhancement of compensation under Section 28 A of L.A.Act in the light of Babua Ram's case (supra) depends upon another crucial fact i.e., the date of the award. In the said decision, the Hon'ble Apex Court held that the amendment to Section 28 A of the L.A Act is prospective in nature and is not retrospective and therefore it applies only to an award passed after 24.9.1984. Whether in the case on hand the award relied on for enhancing the compensation was passed after 24.9.84, and whether the property involved in that case and the cases of the 32 applicants covered by the one and the same notification and whether the aggrieved parties had duly submitted appropriate applications for re-determination of the compensation under Section 28 A and such other relevant aspects would have to be considered to see whether they had, actually, earned eligibility for such re- determination. According to the appellant, the applications for re- determination of compensation under Section 28 A of the L.A Act were W.A.NO.404 of 2009 -11- pending when he joined duty in the concerned office. In the light of Babua Ram's case (supra), he found them entitled to get enhanced compensation and accordingly the compensation was re-determined in terms of Section 28 A of the L.A Act. In short, according to the appellant, the respondents cannot attribute any illegality in respect of his action in re-determining the compensation in respect of the 32 cases involved in the issue under Section 28 A in the light of Babua Ram's case (supra). In response to Ext.P6 showcause notice, he had explained all these aspects in Ext.P7. In Ext.P10 explanation also all these points were elaborately explained. In spite of such explanation based on settled position of law, his explanation was not properly considered and Ext.P11 order was passed without proper application of mind in regard to the said settled position of law. It is a fact discernible from Ext.P11 that the contention of the appellant in the light of Babua Ram's case (supra) was not at all considered by the disciplinary authority while passing Ext.P11 order. Without adverting to the legal contentions advanced by the appellant based on the said decision the disciplinary authority arrived at a finding that the applicants concerned were not eligible to get any enhanced compensation under Section 28 A of the L.A. Act as they had received the amount without any protest. It was on that score that the payment effected to them were found to be irregular and consequently saddled the appellant and the co-delinquent with the liability. W.A.NO.404 of 2009 -12- 11. The learned Single Judge considered the aforesaid contentions of the appellant herein in paragraph 7 of the judgment. The impact of the decision in Babua Ram's case (supra) was not actually considered by the learned Single Judge and the learned Single Judge found that at the relevant time the law on the subject was that only those claimants who have accepted the compensation amount under protest alone would be entitled to invoke the provisions of Section 28 A for re-determination of compensation. It was found that the appellant has passed the orders under Section 28 A long after the aforesaid decision of Hon'ble Apex Court. The contention of the appellant that the applications for enhancement from the 32 persons in the concerned cases were pending when the appellant joined the concerned office and by the time he took up the matter for consideration the law on the subject was declared by the Hon'ble Apex Court deserves consideration based on relevant materials and records. As we noticed hereinbefore, these specific contentions were not at all adverted to by the disciplinary authority while issuing Ext.P11 order. In the above mentioned peculiar situation, it was obligatory on the part of the disciplinary authority to apply its mind on the materials brought on record by the parties in the light of Babua Ram's case (supra). If the concerned applicants are entitled to enhanced compensation based on Babua Ram's case (supra) the very charge under items 1, 2, 4, and 3 to the extent it attributes loss of Rs.13.82 lakhs on account of payment of compensation in respect of the said 32 cases would W.A.NO.404 of 2009 -13- become unsustainable. 12. The first limb of charge under item 3 in Ext.P3 pertains to the manipulation of certain records pertaining to the 32 cases involved in the issue, for re-determination of the compensation under Section 28A of the L.A Act. It was found that there was manipulation of records with a view to enable the 32 applicants sought for enhancement of compensation under Section 28A and the relevant records were produced and marked at the enquiry. There is nothing on record to show that the petitioner had protested the marking of the said documents while they were marked during the enquiry. The records would further show that an objection with respect to the same were not at all raised by the petitioner even at the earliest opportunity. In that regard, it is pertinent to note that Exts.P2 and P4 do not contain any such objections. That apart, the learned Single Judge has elaborately considered the said contention. The learned Single Judge has rightly observed that it is a settled law that in disciplinary enquiries, the rules of evidence are not applicable. In the decision in Zonal Manager, L.I.C of India v. Mohan Lal Saraf reported in 1978 (2) SLR 868, the Hon'ble Apex Court has held that strict rules of evidence are not applicable in marking of documents. The learned Single Judge has found that the files relied upon by the enquiry officer are those which were maintained at the office where the petitioner was working at the time when W.A.NO.404 of 2009 -14- the alleged misconduct were stated to have been committed by the petitioner. Most importantly, learned Single Judge has found that petitioner did not have a case that the said files were fabricated or concocted by anybody and also that he did not dispute the genuineness of the files. It was also found that the files are kept in the normal course of business of the Government and the petitioner himself was dealing with the very same files. Coupled with the above aspects, the fact that Rule 15 of K.C.S (CCA) Rules does not stipulate that documents should be proved only through witnesses was also taken into consideration by the learned Single Judge to find that the conclusion arrived by the enquiry officer based on the files kept in the normal course of business cannot be said to be perverse. In this context, it is to be noted that admittedly an attempt was made to show that the awardees in the concerned cases had received the compensation under protest. Perhaps such an attempt was made prior to the declaration of law on the relevant provision by the Hon'ble Apex Court in Babua Ram's case (supra). In view of the materials on record and in view of the position of law with respect to the marking of documents expatiated earlier, we do not find any reason to interfere with the finding of the learned Single Judge on this issue. 13. Lastly, it was contended on behalf of the appellant that the order to withhold an amount of Rs.1327 per month permanently from the pension of the appellant as per Ext.P11 is unsustainable. Though order in W.A.NO.404 of 2009 -15- Ext.P11 was to withhold the said amount from the pension under Rule 3(a) of Part III K.S.R, it has to be noted as per Ext.P6 show cause notice reduction of pension was proposed to be effected under Rule 3 Part III K.S.R. Withdrawing or withholding of pension or any part thereof, either permanently or for a specific period is permissible under Rule 3 Part III K.S.R. In the decision in Jayarajan v. State of Kerala (2001 (3) KLT 929), this court has held that the power under Rule 3 Part III for reducing pension can be exercised even in the absence of allegation of pecuniary loss to the Government. However, in this case it has to be noted that the specific finding is that on account of action on the part of the appellant, Government had sustained pecuniary loss. We have already sustained the finding in respect of the charges under Ext.P1 and also the charge of manipulation on records as against the petitioner leveled under item 3 in Ext.P3 memo charges. In the circumstances, the order in Ext.P11 as relates withholding of Rs.1327 permanently from the pension of the petitioner cannot be said to be illegal and without jurisdiction warranting interference . We find no reason to disagree with the finding of the learned Single Judge on this aspect as well. 14. In the circumstances expatiated earlier, we are of the opinion that interest of justice will be subserved if the disciplinary authority is directed to consider the matter afresh in the light of the show-cause filed by W.A.NO.404 of 2009 -16- the appellant and also the decision of the Hon'ble Apex Court in Babua Ram & Ors. v. State