IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 WP(C).No. 3536 of 2009(U) ------------------------- PETITIONER(S): --------------- P.K. NANDANA MENON,\ INTELLIGENCE INSPECTOR, SQUAD NO.4, OFFICE OF THE DEPUTY COMMISSIONER (INTELLIGENCE) COMMERIAL TAXES, EDAPPALLY, ERNAKULAM. BY ADV. SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU) RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT. VIGILANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF COMMERCIAL TAXES, AND CONVENER, DEPARTMENTAL PROMOTION COMMITTEE (LOWER), THIRUVANANTHAPURM. GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.8.2009 THE COURT ON 27/08/2009 DELIVERED THE FOLLOWING: W.P.(C).No. 3536/2009 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE FIR DATED 15.8.2002. P2. COPY OF THE FINAL REPORT DTD.17.8.05. P3. COPY OF THE OR4DER DTD.7.10.05 OF THE ENQUIRY COMMISSIONER. P4. COPY OF THE ORDER DTD.3.3.08 -DO- P5. COPY OF THE MEMO OF CHARGES DTD.6.5.04. P6. COPY OF THE WRITTEN STATEMENT OF DEFENCE. P7. COPY OF THE GOVT. ORDER DTD.20.10.04. P8. COPY OF THE NOTICE DTD.12.11.04 OF THE VIGILANCE TRIBUNAL, KOZHIKODE. P9. COPY OF THE ORDER SHEET OF THE TRIBUNAL. P10. COPY OF THE PROVISIONAL SENIORITY LIST. P11. COPY OF THE LETTER DTD.5.12.07 BFY THE DY. COMMR. (INT). ERNAKULAM. P12. COPY OF THE SELECT LIST DTD.4.2.08. P13. COPY OF THE ORDER DTD.2.2.2008 OF R2. P13A. COPY OF THE LIST SUPERSEDED OFFICERS ISSUED ALONG WITH Ext.P13. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.3536 of 2009 ================== Dated this the 27th day of August, 2009 J U D G M E N T The petitioner, while working as Assistant Sales Tax Officer at Kasargode, was transferred to Bengara-Manjeswar Sales Tax Check Post, where he joined on 9.7.2002. On 12.8.2002 the officers of the Vigilance and Anti Corruption Bureau conducted a surprise check at the check post. They recovered Rs.8797/- from various points in the sales tax check post and Rs.1,500/- from a motor vehicle check post. On allegations of receiving illegal gratification, an FIR was registered under the Prevention of Corruption Act on 15.8.2002 against several employees, which is Ext.P1. On the basis of the same, Vigilance Case No.4/2002 was registered before the Enquiry Commissioner and Special Judge, Kozhikode. After investigation, the Vigilance and Anti Corruption Bureau submitted Ext.P2 final report, stating that there is no direct evidence to prove demand or acceptance of bribe. As there is no evidence to prove demand or acceptance of bribe, report was filed as FAD (Further Action Dropped). The Enquiry Commissioner & Special Judge refused to accept the same and, by Ext.P3, ordered further investigation. After further investigation, Ext.P4 final report was submitted, wherein also it was recommend that as there is no direct proof of demand or acceptance of bribe, the final report was submitted W.P.C.3536/09 2 as FAD (Further Action Dropped). By order dated 3.3.2008 (which is also part of Ext.P4 document), the Special Judge accepted the final report and dropped further proceedings. 2. In the meanwhile, by Ext.P5 dated 6.5.2004, disciplinary proceedings were initiated against the petitioner by issuing a memo of charges in respect of the same set of facts. The petitioner submitted Ext.P6 statement of defence. By Ext.P7, enquiry by the Tribunal was ordered by the Vigilance Department. The Vigilance Tribunal took the case to file as No.EC 12/2004. Proceedings were started on 9.11.2004. Although there were 40-odd postings in the enquiry before the Tribunal, nothing whatsoever has transpired before the Tribunal, except adjourning the case from time to time. Ultimately on 27.11.2008, it was adjourned to 28.4.2009. In the meanwhile, the petitioner was overlooked for promotion to the post of Sales Tax Officer on the ground that a vigilance case is pending. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) to issue a writ of certiorari or any other appropriate writ or order quashing Ext.P5 Memo of Charges and all further proceedings pursuant to that before the Vigilance Tribunal, Kozhikode; ii) to issue an appropriate writ or order declaring that on the basis of Ext.P4 order of the Enquiry Commissioner & Special Judge any further enquiry before the Vigilance Tribunal into the charges framed in Ext.P5 is illegal; iii) to issue a writ of mandamus or any other appropriate writ or order directing the 2nd respondent to consider the proposal in Ext.P11 W.P.C.3536/09 3 and to issue appropriate order declaring that the petitioner has satisfactorily completed probation in the cadre of Asst. Sales Tax Officer; iv) to issue a writ of mandamus or any other appropriate writ or order directing respondents 2 and 3 to revise Ext.P12 select list and to include the name of the petitioner in the select list assigning him due rank on the basis of his seniority in the cadre of Assistant Sales Tax Officer; v) to issue a writ of mandamus or any other appropriate writ or order directing the 2nd respondent to promote the petitioner to the cadre of Sales Tax Officer with effect from 2.2.2008, the date on which his juniors were promoted and to grant him all consequential benefits; and vi) to issue such other appropriate writ, order or directions as this Hon'ble Court may deem just and proper to issue in the circumstances of the case.” 3. According to the petitioner, there is absolutely no material whatsoever to even suggest or suspect that the petitioner is guilty of any misconduct whatsoever. He would also submit that under Note 1 to 28(b)(i)(7) of KS&SSR, a procedure is prescribed in the case of a Government servant facing disciplinary proceedings, as per which, the Departmental Promotion Committee cannot refuse to consider such Government servant from promotion. The Departmental Promotion Committee has to consider him for promotion and attach a note to the select list giving the position, at which such persons should get promotion, if the disciplinary proceedings were not initiated. The petitioner would contend that such procedure was never adopted in this case and he was simply overlooked for promotion. The petitioner submits that he is due to retire on 31.3.2010. According to him, the W.P.C.3536/09 4 very delay in completing the disciplinary proceedings would vitiate the entire proceedings themselves. He relies on a decision of a learned Single Judge of this Court in K.Damodaran v. State of Kerala & Others [2004 (2) KLJ 355] wherein, in view of the delay of 30 months in completing the disciplinary proceedings after issue of memo of charges, this Court directed that no action need be taken on the basis of the memo of charges issued and in view of the impending retirement, he may be given promotion. 4. The learned Government Pleader vehemently opposes the contentions of the petitioner with the help of a counter affidavit filed by the 3rd respondent. According to the Government Pleader, very serious misconducts are alleged against the petitioner involving financial irregularities and the enquiry was prolonged not merely because of any laches on the part of the respondents, but also because of absence of some of the delinquents who were also jointly proceeded against alongwith the petitioner. The Government Pleader also submits that a person who is accused of such serious misconducts should not be given promotion. 5. I have considered the rival contentions in detail. 6. From a reading of Ext.P5 memo of charges, I find that there was no specific allegation against the petitioner as such. He was only included in a group of ten persons as delinquents. In fact in the W.P.C.3536/09 5 statement of allegations it is explained that the petitioner had declared Rs.100/- as personal cash in the personal cash declaration register. But in Ext.P5 statement of allegations, it is inter alia stated that no personal declaration register is seen maintained in the check post at Manjeswar. Statements in the statement of allegations themselves are contradictory. Further, as I have already stated, there is no specific allegation against the petitioner as such. What is stated therein is that a total amount of Rs.8797/- was found unaccounted at various points in the sales tax check post. In fact the petitioner's contention is that at the relevant time he was on duty in the barricade away from the office itself. Surprise check was on 12.8.2002. It took almost two years for the respondents to issue a memo of charges dated 6.5.2004. In the final report in the criminal case it is stated that there is absolutely no evidence to show any acceptance of bribe by anybody. The Tribunal, after starting proceedings on 9.11.2004, even after almost five years, has not taken any steps whatsoever in the proceedings. In the above circumstances, I am inclined to adopt the same course of action as taken in the decision in Damodar's case (supra). In that decision the learned Single Judge found that continuation of disciplinary proceedings, after a period of hibernation of thirty months does not appear to be a satisfactory solution. In the said decision, in paragraphs 9 and 10, the learned Single Judge has held thus: W.P.C.3536/09 6 “9. The picture that is gatherable from the files is that the Department has not seriously pursued the issue and has even suggested that further proceedings could be dropped. This was in early 2002. When the DPC met on 20.5.2003 and again on 18.10.2003, the petitioner's claims also ought to have been subjected to consideration. The presence of a charge sheet should not have interfered with a a formal consideration of his claims. To this extent, he has been subjected to a treatment which was not justified. 10. The petitioner, therefore, cannot be left to the vagaries of service. On the facts of the case, I direct that no action need be taken on Ext.P1, any more. Further actions are to be dropped forthwith. Appropriate proceedings are to be drawn up for withdrawing the charge sheet. The resultant position will be that the petitioner will be deemed as having no disability from being considered for promotion as Assistant Commissioner. It will be difficult to constitute DPC before the petitioner's retirement date. Taking notice of the Government Orders on the subject, I direct the second respondent to issue orders promoting the petitioner as Assistant Commissioner within one month from today, as he is to retire by 30-06-2004. This can be on a provisional basis. His entitlement for being considered for regular promotion, on the basis of his confidential records, also are to be appropriately considered expeditiously on the presumption that there was no jurisdiction for excluding him at all, at any time, on the ground that he was recipient of a charge sheet. The benefit that might have derived from consideration by an ad hoc D.P.C. however is lost. But his entitlement for regular promotion may be appropriately determined. If this happens after his superannuation, he will be entitled to fixation of pay retrospectively, although no arrears might be payable. But, he will be also entitled to get the pensionary benefits as might be available on the basis of such fixation.” 7. In this case there is delay of more than five years after serving memo of charges and seven years after the detection of the alleged misconduct itself, which would be a more appropriate case to adopt the same course of action. Accordingly, I direct that no action need be taken against the petitioner on Ext.P5 memo of charges any more. Further actions are to be dropped forthwith. The resultant position would be that the petitioner would be deemed to be having no disability in being considered for promotion as Sales Tax Officer. The W.P.C.3536/09 7 respondents shall constitute an ad hoc Departmental Promotion Committee to consider the case of the petitioner for promotion as Sales Tax Officer. On such consideration, if the petitioner should be given appropriate promotion as Sales Tax Officer if found fit, he should be given appropriate seniority at the appropriate place in the seniority list of Assistant Sales Tax Officers and should be included in the appropriate place among the Sales Tax Officers already promoted overlooking the seniority of the petitioner. The above procedure shall be initiated and completed as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. If the probation of the petitioner has not been declared in the cadre of Assistant Sales Tax Officer only because of the pendency of the disciplinary proceedings, appropriate steps shall be taken to declare the probation of the petitioner within one month from the date of receipt of a certified copy of this judgment. The matter shall be placed before the Ad hoc DPC only after the procedure for declaration of probation is completed. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge W.P.C.3536/09 8