IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 26384 of 2007(N) -------------------------------------- PETITIONER(S): ---------------------- P.K. RAMACHANDRAN, S/O PADMANABHAN NAIR, MUNDAYIL HOUSE, P.O.CHEMBRASSERY, PANDIKKAD, MALAPPURAM DIST., WORKING AS HEAD CLERK, O/O SUPERINTENDENT OF SURVEY & LAND REVENUE, NILAMBUR. BY MR.K.RAMAKUMAR, SENIOR ADVOCATE ADV. MR.P.SAMSUDIN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP., BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF VIGILANCE, THIRUVANANTHAPURAM. 5. THE JOINT SECRETARY TO GOVERNMENT, VIGILANCE DEPARTMENT, THIRUVANANTHAPURAM. 6. THE DISTRICT COLLECTOR, MALAPPURAM. R1 TO R6 BY GOVERNMENT PLEADER MR.V. TEK CHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 26384/2007-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS DATED 06/02/2003 OF THE VETTIKKATTIRI VILLAGE OFFICE ON THE APPLICATION SUBMITTED BY ONE SUNIL BABU. EXT.P2: COPY OF THE COMPLAINT FILED BY SUNIL BABU DATED 12/05/2003 BEFORE THE DY. SP., MALAPPURAM. EXT.P3: COPY OF THE STATEMENT OF SYED ALAVI IN THE SENQUIRY PROCEEDINGS. EXT.P4: COPY OF THE LEGAL OPINION DATED 15/09/2003 GIVEN BY THE LEGAL ADVISER TO VACB. EXT.P5: COPY OF THE MEMORANDUM OF CHARGES ISSUED TO THE PETITIONER. EXT.P6: COPY OF THE WRITTEN STATEMENT OF DEFENCE SUBMITTED BY THE PETITIONER. EXT.P7: COPY OF THE ORDER AND RECOMMENDATION OF THE VIGILANCE TRIBUNAL, KOZHIKODE, DATED 28/03/2006. EXT.P8: COPY OF THE REPLY DATED 13/10/2006 SUBMITTED BY THE PETITIONER TO THE SHOW CAUSE NOTICE ISSUED BY THE GOVERNMENT. EXT.P9: COPY OF THE PROCEEDINGS DATED 24/07/2007 OF THE VIGILANCE DEPARTMENT. EXT.P10: COPY OF THE DEPOSITION OF PW1 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P11: COPY OF THE DEPOSITION OF PW2 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P12: COPY OF THE DEPOSITION OF PW3 IN EC NO.11/2004 BEFOR THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P13: COPY OF THE DEPOSITION OF PW4 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P14: COPY OF THE DEPOSITION OF PW5 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P15: COPY OF THE DEPOSITION OF PW6 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P16 COPY OF THE DEPOSITION OF PW7 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P17 COPY OF THE DEPOSITION OF PW8 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. WP(C) NO. 26384/2007-N EXT.P18 COPY OF THE DEPOSITION OF PW9 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P19 COPY OF THE DEPOSITION OF DW1 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P20 COPY OF THE DEPOSITION OF DW2 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P21 COPY OF THE DEPOSITION OF DW3 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P22: COPY OF THE DEPOSITION OF DW4 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P23: COPY OF THE DEPOSITION OF DW5 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P24: COPY OF THE DEPOSITION OF DW6 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P25: COPY OF THE DEPOSITION OF DW7 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P26: COPY OF THE DEPOSITION OF DW8 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P27: COPY OF THE DEPOSITION OF DW9 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P28: COPY OF THE EXHIBIT P1 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P29: COPY OF THE EXHIBIT P4 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P30: COPY OF THE EXHIBIT P5 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P31: COPY OF THE EXHIBIT P6 AND P6(a) IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P32: COPY OF THE EXHIBIT P12 AND P12(a) IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P33: COPY OF THE EXHIBIT P13 AND P13(a) IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE EXT.P34: COPY OF THE EXHIBIT P16 AND P17 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P35: COPY OF THE EXHIBIT P18 AND P18(a) IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. WP(C) NO. 26384/2007-N EXT.P36: COPY OF THE EXHIBIT P20 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P37: COPY OF THE EXHIBIT D11 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P38: COPY OF THE EXHIBIT D12 IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE EXT.P39: COPY OF THE EXHIBIT D13 IN EC NO.11/2004 BEFORE TH COURT OF VIGILANCE TRIBUNAL KOZHIKODE. EXT.P40: COPY OF THE SITE PLAN SHOWING ISSUE ON 08/05/03. EXT.P41: COPY OF THE WIRTTEN STATEMENT DATED 14/03/06 GIVEN BY THE PETITIONER IN EC NO.11/2004 BEFORE THE COURT OF VIGILANCE TRIBUNAL KOZHIKODE. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.SIRI JAGAN, J. ======================== W.P.(C). No.26384 OF 2007-N ======================== Dated 10th June 2009 Judgment The petitioner is a Village Officer. On allegations of accepting illegal gratification for discharging his official duties, he was arrested by the vigilance. Subsequently, departmental action was recommended by the vigilance. Ext.P5 memo of charges was issued to him. Ext.P6 reply was filed by the petitioner. Since the disciplinary authority did not find it satisfactory, an enquiry was ordered by the Vigilance Tribunal. The Vigilance Tribunal conducted an enquiry and submitted Ext.P7 report, finding the petitioner guilty of the charges levelled against him. Copy of the enquiry report along with the proposal for punishment was issued to the petitioner for his representation. He filed Ext.P8 representation and after considering the same, the disciplinary authority passed Ext.P9 order, imposing on the petitioner, the punishment of reduction in rank to the lower post for a period of three years. The petitioner WPC 26384/07 2 is challenging that order. Originally, he took up the contention that Ext.P9 order, although stated to be issued by order of the Governor, was issued by the Vigilance department and not the petitioner's disciplinary authority and therefore, Ext.P9 was issued without jurisdiction. That issue was considered by a learned Judge of this court at the time of considering the interim prayer of the petitioner and the following order was passed on 02.11.2007 : “Challenge in the writ petition is against Ext.P9 order passed by the Government, whereby finalising the disciplinary proceedings initiated against the petitioner, the Government confirmed its provisional decision and ordered that the petitioner be imposed the penalty of reduction of rank to the lower post for a period of three years, for charges proved against him. Ext.P9 order is passed by the Vigilance (E) Department of the Government. The same is a culmination of the disciplinary action initiated against the petitioner, which led to an enquiry by the Vigilance Tribunal. Ext.P7 is the order of the Vigilance Tribunal in Enquiry Case No.11 of 2004. The recommendation made WPC 26384/07 3 by the Vigilance Tribunal is as follows: "The charge proved against the accused officer is one of demand and acceptance of illegal gratification in connection with his official duties. Normally such a person deserves one of the extreme penalties. But considering the fact that he is comparatively a youngster who can, in the normal course continue in service for 8 more years and that he is not having any previous punishment, I am inclined to take a lenient view. He may be imposed with a penalty of reduction to the lower post for a period of three years" 2. Apparently, the above recommendation was accepted and the same punishment has been imposed on the petitioner. 3. Writ petition challenges the enquiry report as well as the final order passed by the Government, Ext.P9. Several grounds have taken up in the writ petition. Those will have to be dealt with when the writ petition is heard and disposed of finally. 4. Learned counsel for the petitioner Mr.Ramakumar submits that Ext.P9 is without jurisdiction and therefore it should not be permitted to stand as it is. There is a prayer in the writ petition to stay the operation of Ext.P9. 5. I heard the learned Senior Government Pleader Mr.Nandakumar also. 6. Mr.Ramakumar submits that Ext.P9 order is without jurisdiction, for the reason that the petitioner who WPC 26384/07 4 is an employee in the Revenue Department, could be subjected to an imposition of major punishment, in the nature of dismissal from service, removal from service or reduction in rank, only by the head of the department where he works or if it is by the Government, it must be by the government department as such. It is contended that the protection afforded to a government servant under Article 311 of the Constitution of India has a constitutional character. It cannot be whittled down or otherwise diluted by statutory rules or rules of any other character, either framed under a plenary statute, or under the Rules of Business framed under Article 166 of the Constitution. Reliance in this regard is placed on a decision of the Supreme Court stated in State of Haryana v P.C.Wadhwa (AIR 1987 SC 1201). The contention is that protection under Article 311 extends to a situation where a government servant can be subjected to a major punishment as contemplated therein only by the government or by the appointing authority and the government in such cases will have to express its decision, through the department concerned. In the present case, WPC 26384/07 5 Ext.P9 order is passed by the Vigilance Department and though the order is authenticated as `by order of the Government', it is issued from the Vigilance Department. In so far as the petitioner is concerned, if the Government is constrained to pass an order of a major punishment as contemplated by Article 311 of the Constitution, then the decision must be expressed through the Revenue Department. 7. Mr.Nandakumar relied on the decision of a learned Judge of this Court in Appukuttan Nair v State of Kerala (2002(1) KLT 801) where a similar contention seems to have been taken up by an employee of the Tribal Extension Department, in the context of an order of suspension passed by the Vigilance Department. The learned judge considered the nature of the Kerala Civil Services (Classification, Control and Appeal) Rules 1960 and went on to observe that the rules issued under Article 309 should be treated as rules framed under the Public Services Act by virtue of the deeming provision under Section 3 of the said Act. The question as to whether there is any conflict between the CCA rules and the rules framed under WPC 26384/07 6 Article 166 of the Constitution was also considered. Learned Judge went on to note that there is no conflict between the two. Learned judge further went on to note that even if there is any conflict as such, the rules framed under Article 166 shall prevail. 8. Reference was also made to an amendment to the rules of business, brought about by SRO 482/94 dated 23.4.1994. The power to issue orders sanctioning prosecution of a public servant under Cr.P.C. or P.C.Act, placing him under suspension and finalising the disciplinary proceedings against him is allotted to the Vigilance Department. This was also therefore noted by this court to come to the conclusion that an order of suspension issued by the Vigilance department in relation to a government servant working in the Tribal Extension Department cannot be considered as without jurisdiction. 9. Having considered the contentions of both sides, I am of the view that Ext.P9 order cannot be considered as one without jurisdiction. Rule-9 of the CCA rules contemplate that all appointments in the State and subordinate services shall be made by the government. WPC 26384/07 7 This therefore should be taken a logical conclusion. The government is the appointing authority for all government servants, irrespective of the cadre, irrespective of the department as such. Government will have to conduct its business, by allocation of the port folios to different departments. The vigilance department has been entrusted with the power to sanction orders of prosecution and finalising disciplinary proceedings, when vigilance enquiry is conducted against a government servant. When the vigilance department passes such an order, it must be taken as an order passed by the government expressed through one of its Departments, but nevertheless the power exercised by the government comes within the purview of Article 166 of the Constitution of India. In my view, the protection under Article 311 of the Constitution of India, only means this; that a major punishment as contemplated therein can be imposed only by the government and not by an officer subordinate to the government as such. If that be so, an order passed by the Vigilance Department, which is a department of the government, entrusted with the task of finalising WPC 26384/07 8 disciplinary proceedings against government servants will have to be treated as an order passed by the government for the purpose of Article 311 also. 10. Learned counsel or the petitioner refers to the decision of the Supreme Court in State of Haryana v P.C.Wadhwa, IPS, Inspector General of Police and another (AIR 87 SC 1201). The issue which arose therein related to the writing of confidential report by the Home Secretary of the State, in relation to the working of the Police Department therein, which was governed by the provisions of the Police Act and the Punjab Police Rules framed thereunder. Considering the rules, it was held that in so far as the C.R. of the Inspector General of Police is concerned, it can be done only by the authority immediately superior to the Inspector General of Police, in view of Rule 1.2 of the Punjab Police Rules. The designated immediately superior authority to the Inspector General of Police, under the rules is the Minister in charge. Therefore the statutory rules excluded a person other than the nominated authority, as competent to write the C.R. of the I.G. of Police. It is in this context, the Supreme Court went WPC 26384/07 9 on to note that the Home Secretary could possibly only assist the Minister in charge, who is a reporting authority, but nevertheless the C.R. could be written only by the Minister in Charge and not by the Home Secretary. The Government in the said case sought to place reliance on rules of business under Article 166 of the Constitution to contend for the position that the police come under the Home department and therefore the head of the department of the Home department, namely, the Home Secretary is empowered to write the C.R. of the Inspector General of Police. In that context, the Supreme Court postulated a conflict between the rules of business and statutory rules governing the police department. In my view, there is no conflict as such between the rules of business and the statutory rules in the present case as has been held by this Court in the case of Appukuttan. If that be so, it cannot be said that Ext.P9 order is per se without jurisdiction. The prayer for stay of operation of Ext.P9 is declined. 11. I make it clear that the order is obviously an expression of opinion at the prima facie stage. Several WPC 26384/07 10 other issues are involved in this writ petition, which will be considered at the stage of final hearing of the writ petition. Counter affidavit to be filed within a period of four weeks. On that point, I respectfully agree with the learned single Judge and as such, I hold that Ext.P9 order was passed with jurisdiction. 2. The petitioner does not challenge the enquiry proceedings as vitiated by violation of the principles of natural justice or otherwise. He raises only two points. The first is that the findings in the enquiry report are perverse. The second is that despite Ext.P8 reply to the show cause notice issued to the petitioner, the disciplinary authority has not considered any of those contentions. However, the petitioner's counsel now submits that the petitioner would be satisfied if this court considers the question as to whether the findings in the enquiry report are perverse and he does not press the challenge against Ext.P9 on the ground that his reply was not properly considered. WPC 26384/07 11 3. The petitioner contends that the findings in the report are perverse. He submits that the allegation against him was that he demanded bribe from one Mr.Sunil Babu for handing over a site plan prepared in respect of his property. The vigilance is stated to have laid a trap and in that process, as per direction of the vigilance officers, the said Sunil Babu offered bribe in the form of marked currency notes to the petitioner, who, in turn is stated to have directed the money to be paid to a part-time Sweeper of the office, who accepted the same. Thereafter, the vigilance caught the said person red-handed and pursuant to that, further proceedings were completed, which resulted in Ext.P9 order. According to the petitioner, nobody has any case that he has accepted any money from the said Sunil Babu. Admittedly, the money was paid to a part-time sweeper. The petitioner would further contend that in view of the same, the trap did not prove that the petitioner demanded and accepted bribe. If any money was paid, it was to the part-time sweeper. For that the petitioner cannot be held liable. He further submits that as evidenced by Ext.P40, which is the copy of the office copy of the site plan, the WPC 26384/07 12 said Sunil Babu has acknowledged receipt of the same on 08.05.2003 and the allegation against the petitioner is that he accepted bribe on 12.05.2003 for handing over that site plan, which the said Sri.Sunil Babu had acknowledged receipt of, on 8.5.2003. If Sunil Babu accepted the site plan on 08.05.2003, there is no occasion for him to pay bribe to the petitioner on 12.05.2003, is the contention raised. The learned counsel for the petitioner also takes me through alleged discrepancies in the evidence of the prosecution witnesses in the enquiry and would contend that because of the discrepancies, their evidence cannot be believed. Therefore, according to the petitioner, the findings are totally perverse and based on which, the petitioner could not have been imposed with any punishment at all. 4. On the other hand, the learned Government Pleader would submit that there was sufficient evidence adduced in the enquiry to find the petitioner guilty of the charges levelled against him. He points out that the trap was laid by the vigilance with an independent witness, who is none other than a Deputy Labour Commissioner of the Labour Department, who witnessed WPC 26384/07 13 the said Sunil Babu, offering bribe to the petitioner, the petitioner directing the said Sunil Babu to pay it to the part-time sweeper, and the part-time sweeper accepting the same. The learned Government Pleader points out that the Deputy Labour Commissioner had given evidence before the Vigilance Tribunal as PW1 to the effect that he was a witness to the entire incident as he was watching the incident through the window of the Village Office. According to the learned Government Pleader, the vigilance and the Deputy Labour Commissioner who had no reason to foist a case against the petitioner had, on the complaint of the said Sunil Babu laid the trap successfully and in view of the evidence of those independent witnesses, the findings in the enquiry cannot be held to be perverse by any stretch of imagination. 5. I have considered the rival contentions in detail. The charge against the petitioner was, “That you Sri.P.K.Ramachandran, S/o.Padmanabhan Nair, Mundayil House, Theyyambadikuth, Chembrasseri PO, Malappuram while working as a Government servant in the WPC 26384/07 14 capacity of Village Officer, Vettikkattiri, demanded a bribe amount of Rs.500/- and later demanded atleast Rs.300/- from Sri.Sunil Babu, S/o.Unnikoya, Kondengadan House, Vettikkathiri Amsom, Karaya Desom, Valluvangad, Malappuram at about 12.00 noon of 8.5.2003 and reiterated the same at about 10.30 AM on 9.5.2003 at the Village Office, Vettikkathiri for issuing a site plan in respect of 10 cents of land in Sy.No.371/2 in Vettikkathiri village which is in possession of the said Sri.Sunil Babu and in pursuance of the said demand, as directed by you the said Sri.Sunil Babu paid the said amount of Rs.300/- to Sri.KP.Saidalavi, Casual Sweeper of your office at about 3.45 PM on 12.05.2003 and therefore, you have failed to maintain absolute integrity and devotion to duty.” 6. It cannot, now, be disputed that on the complaint of Sunil Babu, the vigilance officers laid the trap. The incidents which happened during the course of laying the trap cannot be disputed although the petitioner would try to make out a case that the money was forced into the hands of the part-time sweeper and he was coerced into giving a statement that it was WPC 26384/07 15 at the direction of the petitioner that he accepted the money. The learned counsel for the petitioner has produced copy of the deposition of PW1, the Deputy Labour Commissioner. He has taken me through that evidence in his attempt to show that his evidence cannot be believed. But, I find that even after lengthy cross examination, the petitioner's advocate could not throw any doubt on his evidence. Although the petitioner's counsel would try to bring out some discrepancy in so far the witness has stated that the site plan was seized from the village office whereas as per the seizure mahzar, it was seized from Sunil Babu at the office of the vigilance, I find that Sri.Sunil Babu had categorically stated that after receiving the site plan from the petitioner at the Village Office at the time of giving the bribe, he was summoned by the Dy.S.P. of vigilance to the office and the same was seized at the office. PW2, the Deputy Labour Commissioner was requested by the Dy.S.P. of Vigilance to witness the trap as part of the legal proceedings. During the trap, he was asked to wait at the verandah of the village office and watch the proceedings when Sunil Babu enters the room of WPC 26384/07 16 the petitioner and offers bribe to the petitioner. He deposed that he saw and heard the petitioner directing Sri.Sunil Babu to give the money to the part-time sweeper. Despite the lengthy cross- examination, the petitioner's advocate was not able to shake the veracity of the evidence of PW1. The prosecution had through PW4, Engineer of PWD, Buildings Division, who had prepared the site plan of the village office, proved that a person standing at the verandah is in a position to see what is going on inside the room of the Village Officer. The petitioner's counsel could not bring out any circumstances to doubt the credibility of those witnesses. PW1 is a high ranking officer of the Labour Department, who was summoned at the instance of the vigilance. He had no other connection with the case. The petitioner has no case that the Deputy Labour Commissioner had any prior knowledge of the petitioner or that he had any enmity towards the petitioner and as such, his evidence is more than sufficient to return the verdict of guilt, at least in a disciplinary proceedings. The mere discrepancy pointed out by the petitioner's counsel is not sufficient to describe the evidence WPC 26384/07 17 of PW1 as unreliable in a disciplinary proceedings. The fact that he deposed that the seizure of a document was at the village office whereas as per the seizure mahzar, it was at the vigilance office, would not in any way diminish the value of his evidence as a whole. In fact, the said document was handed over by the petitioner to the said Sri.Sunil Babu, which was the site plan, after the said Sri.Sunil Babu handed over