IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 OP.No. 36856 of 2002(K) ----------------------- PETITIONER(S): --------------- E. KRISHNAN, SALES TAX INSPECTOR (RETIRED), KAMALESH NILAYAM, P.O. NUT STREET, VADAKARA, KOZHIKODE DISTRICT. BY MR.P.K.SURESH KUMAR,ADVOCATE MR.K.P.SUDHEER,ADVOCATE RESPONDENTS: ----------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.P.K.RAVIKRISHNAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No.36856/2002 2 ORDER ON C.M.P.No.62149/2002 IN O.P.No.36856/2002 CLOSED. Sd/-S.SIRIJAGAN,JUDGE 02/04/2009 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF MEMO OF CHARGES DT.16.4.94 ISSUED TO THE PETITIONER. EXT.P2: COPY OF THE REPRESENTATION DT.15.12.95 SUBMITTED BY THE PETITIONER BEFORE THE ENQUIRY OFFICER. EXT.P3: COPY OF SHOW CAUSE NOTICE DT.6.1.98 ISSUED TO THE PETITIONER. EXT.P3(a): COPY OF ENQUIRY REPORT DT. 22.1.96. EXT.P4: COPY OF ORDER DT. 5.3.98 ISSUED BY THE BOARD OF REVENUE (TAXES). EXT.P5: COPY OF JUDGMENT DT. 18.3.98 IN O.P.No.5267/98 ISSUED BY THE HON'BLE COURT. EXT.P6: COPY OF JUDGMENT DT. 30.1.2001 IN W.A.No.639/98 ISSUED BY THIS HON'BLE COURT. EXT.P7: COPY OF APPEAL DT. 9.2.2001 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P8: COPY OF GO(RT)No.372/2002/TD DT. 9.7.2002 ISSUED BY THE GOVT. TRUE COPY P.A.TO JUDGE S. SIRI JAGAN, J. ------------------------------------ O.P.No.36856 OF 2002 ---------------------------------------- Dated this the 2nd day of April, 2009 JUDGMENT The petitioner was a Sales Tax Inspector in the service of the Government of Kerala, who retired on 31.5.1999. While he was in service, disciplinary proceedings were initiated by the Board of Revenue against the petitioner by issuing Ext.P1 memo of charges. The allegation in Ext.P1 memo of charges was that certain traders fraudulently used delivery notes, which contained signature of the petitioner and seal of the Department, which amounts to gross negligence, grave dereliction of duty and misconduct as he acted with interior intention of making persons gain. The petitioner filed a reply disowning any responsibility in respect of the delivery notes. He contends that this was made by a racket involving other officers of the department and he has been made a scapegoat for the action of others. An enquiry officer was appointed to conduct an enquiry into charges. The enquiry officer summoned the petitioner and recorded the statement of the petitioner on 6.12.1995. The petitioner filed O.P.No.36856/02 2 Ext.P2 petition before the enquiry officer citing 21 witnesses and seeking a chance to cross examine those witnesses, most of whom were officers of the department. Nothing happened thereafter for a period of about two years. Therefore, the petitioner filed O.P.No.13996/1997 before this Court. By judgment dated 10.9.1997, this Court directed completion of the enquiry proceedings expeditiously. Thereafter on 6.1.1998, Ext.P3 show cause notice was issued to the petitioner enclosing Ext.P3(a) enquiry report directing the petitioner to show cause why the punishment of compulsory retirement should not be imposed on the petitioner. The petitioner filed objections. However, by EXt.P4 order, the punishment of compulsory retirement was imposed on the petitioner. The petitioner challenged Ext.P4 order in O.P.No.5267/1998, in which by Ext.P5 judgment, the petitioner was relegated to the alternate remedy by way of appeal. The petitioner challenged that judgment in W.A.No.639/1998, in which a stay of implementation of Ext.P4 order was granted and the petitioner was allowed to continue. The petitioner continued as such and retired on 31.5.1999. Thereafter, Ext.P6 judgment was passed by the Division Bench O.P.No.36856/02 3 in the Writ Appeal directing the petitioner to file an appeal, which was directed to be considered by the Government. The petitioner filed Ext.P7 appeal and that appeal was also rejected by Ext.P8 order. The petitioner is challenging Exts.P4 and P8 orders. 2. The contention of the petitioner is that the entire disciplinary proceedings are vitiated for want of compliance with the procedure prescribed under the Kerala Civil Services (Classification, Control and Appeal) Rules and also violation of principles of natural justice. According to the petitioner, no enquiry worth the name had been conducted by the enquiry officer as mandated under Rule 15 (7) of the Kerala Civil Services (Classification, Control and Appeal) Rules. The only thing, the enquiry officer has done is to summon the petitioner and to record his statement, which itself is violative principles of natural justice, in so far as the enquiry officer cannot, before conclusion of the evidence of the prosecution, direct the petitioner to give a statement in defence. Secondly, he would contend that no witness whatsoever has been examined with opportunity to the petitioner to cross examine them. The delivery notes have been simply relied upon without proving O.P.No.36856/02 4 the same through an officer, who recovered the same from the traders, who alleged to have used the same for fraudulent purposes. According to the petitioner, to top it all, Ext.P3 (a) enquiry report did not find the petitioner guilty of the misconducts alleged against him at all. What the enquiry officer has done is to simply compare the signatures, seals, handwriting etc., in the delivery notes with other signatures etc., of the petitioner alleged to have been obtained otherwise. Even then, the enquiry officer did not find the petitioner conclusively guilty of any misconduct whatsoever. The petitioner points out that the enquiry officer after examining the 11 delivery notes, definitely concluded that in respect of eight of them, the initials and handwriting shown therein are different from those of the petitioner and the seal impression therein is of a duplicate one. In respect of three delivery notes, he found some similarity in the handwriting and stated that it can be reasonably concluded that of the petitioner. Even then, the enquiry officer was not prepared to find the petitioner guilty of the misconducts alleged against him. Ultimately, the enquiry officer instead of finding the petitioner guilty only directed a detailed enquiry with the help of a O.P.No.36856/02 5 handwriting expert. Therefore, according to the petitioner, in Ext.P3(a) enquiry report, there is absolutely no finding that the petitioner is guilty of misconduct. The petitioner would contend that in the absence of any finding of guilt by the enquiry officer, no punishment whatsoever could have been imposed on the petitioner. 3. No counter affidavit has been filed this case. But the learned Government Pleader seeks to sustain the impugned orders on the ground that in Ext.P3(a) enquiry report, at least in respect of three delivery notes, there is a finding by the enquiry officer to the effect that the petitioner has a role in the fabrication of those documents. Therefore, according to the learned Government Pleader, the punishment imposed on the petitioner is perfectly valid and proper. 4. I have considered the rival contentions in detail. 5. At the outset I must note that there was no enquiry in this case against the petitioner, after complying with the procedure prescribed under Rule 15 (7) of the Kerala Civil Services (Classification, Control and Appeal) Rules and the principles of natural justice. The start of the enquiry itself is vitiated, in so far as before evidence was adduced in support of O.P.No.36856/02 6 the charges, the petitioner has been directed to give a statement, which itself is in violation of principles of natural justice. Secondly, no evidence worth the name has been adduced in any enquiry conducted for that purpose. At no time, the documents were proved through any officer, who had knowledge about the documents. The enquiry officer has simply assumed that the documents are acceptable in evidence and considered whether the handwriting and initials therein are that of the petitioner and whether the seal found therein was the genuine seal of the office. I am of opinion that the enquiry officer could not have done the same, without the same having been proved through the officer, who is conversant with those documents, with an opportunity to the petitioner to controvert those documents, which has not admittedly been done in this case. Further by Ext.P2, the petitioners had cited 21 witnesses, most of whom were officers of the department. The Enquiry Officer has not even considered the same. He has neither accepted it nor rejected it. Without assigning some reason as to why those witnesses cannot be examined to prove the innocence of the petitioner, the enquiry cannot be said to be an enquiry in compliance with the principles of natural O.P.No.36856/02 7 justice. In this connection, I also note that in paragraph III of Ext.P3(a), the enquiry officer has specifically noted that the petitioner has requested for examination of those witnesses and he has not given any reasoning as to why the request could not have been granted. 6. Finally, as rightly pointed out by the learned Counsel for the petitioner, in Ext.P3(a), there is absolutely no finding that the petitioner is guilty. In respect of eight out of eleven delivery notes, the enquiry officer categorically found that the initials and handwriting are different from that of the petitioner and the seal impression thereon is of a duplicate seal. Of course, in respect of three delivery notes, he found some similarity in the initials and handwriting and the office seal. But even then, ultimately, the enquiry officer did not find the petitioner guilty. Instead, the following was his conclusion: “So out of the 11 delivery notes and connected record relied on by the department for charges against Sri.E. Krishnan, close similarity and resemblance of initial and handwriting with that of the accused officer can be attributed only in respect of 3(three) records. The inference is after naked eye examination which is not fool proof. The possibility of the accused officer having deliberately put different initials on these records cannot also be ruled out. The truth in this case can be unearthed O.P.No.36856/02 8 only by a scientific examination of the handwriting by an expert. So I recommend such an examination . From the oral narration of the accused it became clear that a racket of department officials operated in Wayanad District behind tax evasion in Coffee practiced by unscrupulous dealers. This aspect requires a detailed probe by the Vigilance Dept. or an independent agency. It is quite evident from my enquiry that a duplicate seal of the Check Post was used by the culprits”. From the same, it is abundantly clear that the enquiry officer did not find the petitioner guilty of any misconduct whatsoever. 7. I do not think that on the basis of such findings, an employee can be punished that too by imposing the extreme punishment of compulsory retirement from service. 8. Although in Ext.P7 appeal all the above contentions have been specifically taken by the petitioner, none of the same has been considered by the Government in Ext.P8 order. That being so, in so far as Ext.P8 is only a continuance of the unsustainable enquiry report and punishment, the same also cannot be upheld. Accordingly, Exts.P4 and P8 are quashed. 9. The learned counsel for the petitioner submits that although on the basis of interim order of this Court the provisional pension has been paid to the petitioner, none of the O.P.No.36856/02 9 other retirement benefits have been given to the petitioner. In the above circumstances, I direct that the petitioner shall be deemed to have continued in service till he retired from the service on 31.5.1999 with all consequential monetary and retirement benefits. All monetary benefits including retirement benefits arising from the above direction shall be paid to the petitioner as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The original petition is allowed as above. S. SIRI JAGAN, JUDGE Acd O.P.No.36856/02 10