IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 OP.No. 35246 of 2002(U) ----------------------- PETITIONER(S): --------------- N.HARI, S/O.P.NARAYANA PILLAI, AGED 41 YEARS, T.C.10/958 (ARA 66), S.N.NAGAR, MANNANTHALA P.O., THIRUVANANTHAPURAM - 15. SELECTION GRADE ASSISTANT. GENERAL ADMINISTRATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM BY SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE SRI.P.GOPINATH SRI.SURESH SUKUMAR SRI.C.S.SUNIL SRI.P.R.SREEJITH SRI.K.B.SAJEESH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, TRIVANDRUM. 2. THE PRINCIPAL SECRETARY, DEPARTMENT OF HOME AND VIGILANCE, GOVERNMENT SECRETARIAT, TRIVANDRUM. 3. THE PRINCIPAL SECRETARY, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. GOVERNMENT PLEADER SRI.K.SANDESH RAJA FOR R THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON 04/08/2010 DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.59546/2002 & 10058/2006 IN O.P.NO.35246/2002 DISMISSED. 4/8/2010 SD/-P.N.RAVINDRAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF ORDER DATED 12.11.1999 ISSUED BY THE GOVERNMENT OF KERALA EXT.P2. TRUE COPY OF THE ENQUIRY CASE NO.17/1999 AS G.O(MS) NO.105/99/VIG. DATED 12.11.1999 EXT.P3. TRUE COPY OF THE SHOW CAUSE NOTICE NO.8337/E1/2000/VIG. DATED 20.10.2000 ISSUED BY THE GOVERNMENT OF KERALA. EXT.P4. TRUE COPY OF THE REPLY TO EXT.P3 SHOW CAUSE NOTICE SUBMITTED BY THE PETITIONER. EXT.P5. TRUE COPY OF THE ORDER DATED 11.11.2002 ISSUED BY THE GOVERNMENT OF KERALA / TRUE COPY / P.S. to JUDGE P.N.RAVINDRAN, J. ----------------------------------------- O.P.No.35246 of 2002 ----------------------------------------- Dated this the 4th day of August, 2010 JUDGMENT The petitioner, a Selection Grade Assistant working in the Administrative Secretariat at Trivandrum, has filed this original petition challenging Ext.P2 enquiry report, Ext.P3 show cause notice calling upon him to show cause why the punishment of reduction in rank to the lower post for a period of five years should not be imposed on him and Ext.P5 order passed by the Government imposing the said punishment on him. The brief facts of the case are as follows. 2. While the petitioner was working as Selection Grade Assistant in the General Administration Department in the Administrative Secretariat at Trivandrum, a memo of charges dated 18-2-1999 was issued to him. The petitioner submitted his written statement of defence denying the charges on 31.3.1999. The Government thereafter issued Ext.P1 order dated 12.11.1999 referring the charges against the petitioner to the Vigilance Tribunal, Trivandrum for enquiry under the Kerala Civil Service (Vigilance Tribunal) Rules, 1960. The Vigilance Tribunal, after enquiry, submitted Ext.P2 report dated 16-8-2000 finding the petitioner guilty of the O.P.No.35246 of 2002 -:2:- charges levelled against him. The Vigilance Tribunal also recommended imposition of the penalty of reduction in rank to the lower post for a period of five years. The Government after considering Ext.P2 enquiry report, provisionally decided to impose the punishment of reduction in rank to the lower post for a period of five years on the petitioner. Ext.P3 show cause notice dated 20-10-2000 was thereupon issued. The petitioner submitted Ext.P4 reply dated 18-12-2000 wherein he also prayed that before final orders are passed he may be given an opportunity of being heard. The Government thereafter passed Ext.P5 order dated 11-11-2002 imposing on the petitioner the penalty of reduction in rank to the lower post for a period of five years. 3. The main contention raised in the original petition is that a copy of Ext.P2 enquiry report was not furnished to the petitioner before Ext.P3 show cause notice was issued thereby violating the express stipulation in that regard in rule 15(12) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. It is contended that as the Government had arrived at a provisional decision to impose on the petitioner the punishment of reduction in rank to the lower post for a period of five years, without furnishing a copy of the enquiry report to the petitioner and without affording him an opportunity to object to the findings therein, the entire proceedings O.P.No.35246 of 2002 -:3:- is vitiated. It is also contended that as the charge levelled against the petitioner in the memo of charges has not been proved, the order imposing punishment is liable to be set aside and that in any view of the case the punishment imposed is disproportionate to the gravity of the proved charge. 4. The respondents have filed a counter affidavit resisting the original petition. It is stated that as the written statement submitted by the petitioner to the memo of charges was found not satisfactory the Government decided to refer the case to the Vigilance Tribunal, Trivandrum for detailed enquiry. It is contended that the Vigilance Tribunal, after evaluating the evidence adduced by both sides in the enquiry, found the petitioner guilty of demanding illegal gratification from PW1 as a motive for arranging a job under the dying in harness scheme and based on the findings and the recommendation of the Vigilance Tribunal the Government provisionally decided to impose on the petitioner the punishment of reduction in rank to the lower post for a period of five years, that a copy of the report of the vigilance enquiry was furnished to the petitioner along with Ext.P3 show cause notice, that the petitioner submitted a detailed explanation and that it was after examining the entire facts that the Government finalised the disciplinary proceedings by imposing the penalty of O.P.No.35246 of 2002 -:4:- reduction in rank to the lower post for a period of five years. 5. I heard Sri.O.V.Radhakrishnan, learned Senior Counsel appearing for the petitioner and Sri.K.Sandesh Raja, learned Government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record and the files relating to the enquiry which were made available to me by the learned Government Pleader. The charge levelled against the petitioner in the memo of charges dated 18.2.1999 that was served on him on 5.3.1999 reads as follows:- “THAT YOU, Sri.N.Hari, while working as Assistant Grade I of (M) Section in General Education Department, Secretariat, Thiruvananthapuram during July 1995, demanded a sum of Rs.25,000/- as illegal gratification from Sri.K.Vinod, S/o.T.K.Narayanan, Kundoli Kunnumpuram Veedu, Pothuvacheri P.O., Kannur on 19.7.1995 at Secretariat, Thiruvananthapuram as a motive for arranging a job to him under Dying in harness Scheme as mentioned in the statement of allegation. By your action you have failed to maintain absolute integrity and devotion to duty.” The allegation levelled against the petitioner was that he had on 19.7.1995 demanded the sum of Rs.25,000/- as illegal gratification O.P.No.35246 of 2002 -:5:- from Sri.K.Vinod, S/o.T.K.Narayanan, Kundoli Kunnumpuram Veedu, Pothuvacheri P.O., Kannur as a motive for arranging a job to him under the dying in harness scheme. The petitioner denied the said charge. He contended that he had neither seen Sri.K.Vinod nor demanded any illegal gratification from him as alleged. 6. Before the Vigilance Tribunal Sri.Vinod was examined as PW1. He deposed before the Vigilance Tribunal that he had submitted an application before the Government in the year 1992 for employment assistance under the dying in harness scheme consequent on the death of his father Sri.T.K.Narayanan, P.D. Teacher, Government U.P. School, Neerchal, Kannur District, that the said application was rejected on the ground that he has not attained the age of 18 years, that after attaining the age of 18 years he submitted a fresh application, that on 15.7.1995 a person by name Sri.Thomas met him at his house and told him that he has been sent from the Secretariat in connection with his application for employment assistance, that a sum of Rs.25,000/- was required in cash in connection with the said application, that he expressed inability to pay that much amount, that Sri.Thomas thereupon asked him to accompany him to Trivandrum on 19.7.1995, that he and Sri.Thomas accordingly left for Trivandrum by train on 19.7.1995 and reached O.P.No.35246 of 2002 -:6:- Trivandrum the next day morning and that by about 10.30 a.m. on 20.7.1995 Sri.Thomas took him to the Secretariat and introduced him to the petitioner. He further deposed that they had a talk under a tree in the Secretariat compound, that the petitioner thereupon told him that his normal demand for arranging employment is Rs.1,00,000/-, that he is prepared to reduce the amount to Rs.25,000/-, that when he expressed difficulty and refused to accede to the demand, Sri.Thomas told him that he need only hand over a cheque for Rs.25,000/-, that Sri.Thomas asked him to obtain Rs.1,000/- from some one, open an account in a bank so as to get a cheque book and to hand over the cheque on 27.7.1995 at Payyannur bus stand. He further deposed that on 21.7.1995 he met PW2, an Upper Division Clerk in the Legal Metrology Department, who advised him not to hand over the cheque, that he stayed with P.W.2 in the NGO quarters and on the next day he accompanied PW2 and one Sri.Chandran Pillai to the Secretariat, that on enquiries made it was known that orders have already been passed on 4.7.1995 appointing him but the file was missing, that thereupon he and PW2 met Sri.Sathyan Mokeri and E.P.Jayarajan, M.L.As and narrated the incident to them and as per their instructions petitions addressed to the Hon'ble the Chief Minister and the Hon'ble Education Minister were handed over to them, that the O.P.No.35246 of 2002 -:7:- issue was also raised in the Assembly, that the file was traced out on 3.8.1995 and thereafter the appointment order was issued to him. 7. P.W.2, an Upper Division Clerk in the Legal Metrology Department, had only deposed about the events that happened from 21.7.1995 onwards. P.W.3, who was the Under Secretary to Government, in charge of P and M sections of the General Education Department during the relevant period, had only deposed that the petitioner was working as an Assistant in M Section of the General Education Department and that he was dealing with land acquisition for Government schools. She also deposed that P3 section was dealt with by PW5, that she has no personal knowledge about the allegations levelled against the petitioner, that she came to know from PW5 the Assistant in charge of the P3 section that the file relating to the appointment of PW1 was dealt with in P3 section and that a talk was going on in the section that the petitioner had demanded illegal gratification from PW1. P.W.4, the Section Officer in charge of P Section of the General Education Department, also deposed in the same lines. P.W.5 deposed that complainant had informed him that the petitioner had demanded illegal gratification. P.W.6, an employee of the Fisheries Department, deposed that he had occasion to go to the N.G.O. Home where he met PW1 who was introduced to him by O.P.No.35246 of 2002 -:8:- Sri.K.K.Thomas, who was also working in the Fisheries Department, that he thereupon came to know that one Sri.Thomas had approached PW1 and demanded illegal gratification for arranging a job under the dying in harness scheme. On the side of the petitioner, D.W.1, a Peon in the office of P.W.3 (the Under Secretary in charge of P and M Sections of the General Education Department) was examined. He deposed that the petitioner is an active member of the Union led by the BJP and P.Ws. 3 and 5 are members of the Secretariat Employees Association owing allegiance to the Left Front. He also deposed that P.W3 was in the habit of taking files to her residence, that though P.W.3 had informed him that the file relating to the appointment of PW1 was missing, P.W.3 herself told him on 25-7-1995 that the missing file has been traced out. 8. The Tribunal on an analysis of the evidence, oral and documentary, held that the charge against the petitioner has been proved and that the date of demand mentioned in the memo of charges is apparently a mistake that crept in while drafting the charge. The charge levelled against the petitioner in the memorandum of charges dated 18.2.1999 was that he had on 19.7.1995 demanded from Sri.K.Vinod, S/o.T.K.Narayanan, Kundolikunnumpuram Veedu, Pothuvacheri P.O., Kannur, the sum of Rs.25,000/- as illegal O.P.No.35246 of 2002 -:9:- gratification for arranging a job under the dying in harness scheme. The vigilance enquiry against the petitioner was initiated upon a petition dated 2.8.1995 submitted by him before the Hon'ble Minister for Education. A copy thereof was marked as Ext.P1 before the Vigilance Tribunal. It is alleged therein that a person by name Sri.Thomas met him at his house and told him that he has been sent from the Secretariat in connection with his application, that a sum of Rs.25,000/- was required in cash in connection with the said application, that he expressed inability to pay that much amount, that Sri.Thomas thereupon asked him to accompany him to Trivandrum on 19.7.1995, that he and Sri.Thomas accordingly left for Trivandrum by train on 19.7.1995 and reached Trivandrum the next day morning and that by 10.30 a.m. on 20.7.1995 Sri.Thomas took him to the Secretariat and introduced him to the petitioner and they together demanded the sum of Rs.25,000/- from him. The said complaint was submitted to the Hon'ble Minister for Education by Sri.Sathyan Mokeri, MLA along with his letter dated 3.8.1995. On the said letter the Hon'ble Minister for Education ordered a vigilance enquiry. A reading of the complaint dated 2.8.1995 (Ext.P1 before the Vigilance Tribunal) discloses that the petitioner had made the alleged demand for illegal gratification on 19.7.1995 and that the file went missing on 20.7.1995. O.P.No.35246 of 2002 -:10:- In the petition addressed to the Hon'ble the Chief Minister (Ext.P2 before the Vigilance Tribunal) the allegation is that the demand for illegal gratification was made on 21.7.1995. Thus in two complaints bearing the same date, one addressed to the Hon'ble the Chief Minister and the other to the Hon'ble Minister for Education, PW1 the complainant had given two different versions regarding the date on which the petitioner is said to have made the demand for the sum of Rs.25,000/-. When questioned by the Inspector General of Police, PW1 had stated that the demand for illegal gratification was made on 20.7.1995. 9. The files disclose that Sri.K.Vinod, PW1, was appointed by G.O(MS)No.394/95/G.Edn. dated 3.8.1995. It refers to his application dated 25.9.1991 that was initially rejected and the revised application dated 15.5.1995 submitted by him. The complaint submitted by PW1 to the Hon'ble Minister for Education, (Ext.P1 before the Vigilance Tribunal) was placed before the Hon'ble Minister only on 3.8.1995 by Sri.Sathyan Mokeri, MLA along with his letter dated 3.8.1995. But the original thereof shows that a vigilance enquiry was ordered by the Hon'ble Minister for Education on 2.8.1995 itself. The Vigilance Tribunal, however, held that though there is a discrepancy with regard to the date, it is insignificant. Likewise, even after holding O.P.No.35246 of 2002 -:11:- that though the file relating to PW1's appointment was missing from 5.7.1995 to 3.8.1995 it has not been proved that it was the petitioner who was responsible for the same, the Tribunal proceeded to hold that it would not have been difficult for the petitioner who was seated near the concerned section to watch the movement of the file, get acquainted with the file and the order passed regarding the appointment of PW1 and that this probabilises the prosecution version regarding the demand for illegal gratification by the petitioner. Even in the background of these glaring inconsistencies, the Tribunal held in Ext.P2 report that the demand of Rs.25,000/- as illegal gratification by the petitioner has been proved. The Tribunal however held that the evidence of P.Ws 2 to 6 regarding the alleged demand of illegal gratification by the petitioner is only hearsay in nature. 10. The Government did not immediately forward a copy of Ext.P2 enquiry report to the petitioner. Instead the Government decided to provisionally impose the punishment of reduction in rank to the lower post for a period of five years and thereafter issued Ext.P3 show cause notice dated 20.10.2000 calling for the petitioner's explanation. Along with that show cause notice a copy of the enquiry report was forwarded to the petitioner. The petitioner thereupon submitted Ext.P4 reply dated 18.12.2000, running into 28 pages, O.P.No.35246 of 2002 -:12:- wherein he had analysed the evidence and canvassed the correctness of the findings in the enquiry report. The petitioner also prayed for an opportunity of being heard in person before orders are passed in the matter. The Government, without affording him such an opportunity, passed Ext.P5 order imposing the punishment of reduction in rank to the lower post for a period of five years. 11. The petitioner had in Ext.P4 reply pointed out to the Government the disparity in the case set out by the complainant in the complaints submitted to the Hon'ble Minister for Education and the Hon'ble the Chief Minister and also in the statement given by him to the Inspector General of Police. The Government did not however, advert to these aspects of the matter when it passed Ext.P5 order. As noticed earlier, the charge which the petitioner was called upon to defend was that he had on 19-7-1995 demanded the sum of Rs.25,000/- as illegal gratification from Sri.K.Vinod, examined as PW1 before the Vigilance Tribunal, as a motive for arranging a job under the dying in harness scheme. The enquiry report itself discloses that a decision had been taken by the Government on 25.6.1995 to appoint the complainant as Peon in the Education Department under the dying in harness scheme. The files disclose that a Government order, G.O (MS)No.394/95/G.Edn. dated 3.8.1995 was also issued thereafter. In O.P.No.35246 of 2002 -:13:- the complaint submitted by PW1, Sri.K.Vinod before the Hon'ble the Chief Minister on 2.8.1995, a day before the aforesaid order was issued, the allegation was that the petitioner had demanded illegal gratification on 21.7.1995, while in the petition submitted before the Hon'ble Minister for Education on the same day, the alleged demand was on 19.7.1995. The version before Police was that the demand was on 20.7.1995. As noticed by the Tribunal itself, apart from the version given by PW1 there was no evidence to prove that the petitioner had demanded illegal gratification from PW1. The Tribunal had also held that though the file was missing from 5.7.1995 to 3.8.1995 the petitioner was not responsible for the same. The Tribunal had also noticed that the version given by PWs 2 to 6 that the petitioner had demanded illegal gratification from PW1 is only hearsay evidence. Notwithstanding these facts the Tribunal found that the petitioner's seat was near to the concerned section where the file relating to the appointment of PW1 was handled and therefore, he was in a position to watch the movement of the file, get acquainted with the fact that orders had been passed for appointment of PW1 and therefore, the possibility of the petitioner removing the file and retaining it on the expectation of getting the money demanded by him cannot be ruled out and that this aspect operates as a circumstance probabilising the O.P.No.35246 of 2002 -:14:- prosecution version regarding the demand of illegal gratification by the petitioner. I am afraid the said finding cannot be sustained. 12. The Tribunal has in paragraph 7.15 of Ext.P2 report held as follows:- “So in all probability the missing of the file and its reappearance on 3.8.1995 after the matter was raised in the assembly is the handiwork of someone who was having some vested interests with the intention of making troubles to PW1. The evidence does not lead to a conclusion that it was the accused officer who was behind the missing of the file.” The Tribunal thereafter proceeded to hold as follows:- “It is not so difficult for the accused officer who was seated near the concerned section to watch the movement of the file and get acquainted with the fact that the orders were passed for the appointment of PW1. So the possibility of his removing the file and retaining it on the expectation of getting the money demanded by him cannot be ruled out. So this aspect clearly operates as a circumstance probabilising the prosecution version regarding the demand of illegal gratification by the accused officer.” In my opinion the said finding cannot be sustained in the light of the evidence on record. The finding of guilt entered by the Tribunal is O.P.No.35246 of 2002 -:15:- based on mere surmises and conjectures. The Tribunal has categorically held that the materials on record do not lead to the conclusion that the petitioner was responsible for the missing of the file. The Tribunal had also held that the testimony tendered by PWs 2 to 6 regarding demand of illegal gratification by the petitioner is only hearsay. The Tribunal had also noticed the fact that PW1 had different versions regarding the date on which the alleged demand was made. He had given three different dates before three different authorities and before two of the authorities different versions were given on the same day. All these happened in close proximity to 3.8.1995, the date on which the Government had issued orders appointing PW1 the complainant, under the dying in harness scheme. In the light of the glaring disparity in the case spoken to by PW1, I am of the opinion that no safe reliance can be placed on his version to hold that the petitioner had demanded illegal gratification. Further the Tribunal has not found that the petitioner had demanded illegal gratification on 19.7.1995 as alleged in the memo of charges. 19.7.1995 was a Wednesday. It is not known whether the petitioner had attended office on 20.7.1995 or on 21.7.1995. The Tribunal has only found that it is proved that the petitioner had demanded illegal gratification and that the inconsistency in the date does not affect the prosecution case. O.P.No.35246 of 2002 -:16:- In my opinion if the charge was that the petitioner had demanded illegal gratification on a day other than 19.7.1995 he could have defended the charge by proving that he was away elsewhere or that he was on leave or that due to some reason or other he could not have interacted with the complainant or even met him. The Tribunal has instead brushed aside the disparity in the dates as of no consequence. In other words, the Tribunal has found the petitioner guilty notwithstanding the disparity in the date, which according to me is crucial. The Tribunal had no cogent material before it to hold that the petitioner had in fact made a demand either on 19.7.1995 or on 20.7.1995 or on 21.7.1995 for illegal gratification. The disparity in the dates, according to me, is a crucial aspect which would probabilise the case put forward by the petitioner that there was an attempt by certain interested persons to foist a false charge on him due to extraneous considerations including political rivalry. I am therefore, of the considered opinion that the finding of the Tribunal on the guilt of the petitioner is perverse and cannot be sustained. I accordingly hold that the decision taken by the Government to impose on the petitioner the punishment of reduction in rank to the lower post for a period of five years cannot be sustained. In that view of the matter I do not propose to deal with the contention O.P.No.35246 of 2002 -:17:- of the petitioner that the failure to serve a copy of the enquiry report before the Government provisionally took a decision to impose the said punishment on him and before issuance of Ext.P3 show cause notice vitiates the entire proceedings. I leave the said question open. In the result I allow the original petition, quash Ext.P2 enquiry report, Ext.P4 show cause notice and Ext.P5 Government order. The petitioner will be entitled to all consequential service benefits including seniority and emoluments. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- O.P.No.35246 of 2002 ---------------------------- JUDGMENT 4th August, 2010