IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 24333 of 2009(R) ---------------------------------------- PETITIONER(S): ------------------------- N.PRAKASH, S/O.A.NARAYANA RAO, AGED 45 YEARS, RESIDING AT PRAJITH VIHAR, AYINI NADA ROAD, MARADU P.O., ERNAKULAM DISTRICT. BY ADV. SRI.N.PRAKASH(PARTY IN PERSON) RESPONDENT(S): ------------------------ , 1. THE HIGH COURT OF KERALA, ERNAKULAM, REP. BY ITS REGISTRAR GENERAL. 2. THE REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM. 3. THE DIRECTOR OF TRAINING, HIGH COURT OF KERALA, ERNAKULAM. 4. THE ADDITIONAL DIRECTOR OF TRAINING, HIGH COURT OF KERALA, ERNAKULAM. 5. SMT.REHANA T.R., P.A. TO JUDGE GR.I, HIGH COURT OF KERALA, ERNAKULAM. 6. THE REGISTRAR (VIGILANCE), HIGH COURT OF KERALA, ERNAKULAM. 7. THE APPELLATE COMMITTEE,CONSTISTUTED BY THE HON'BLE THE CHIEF JUSTICE TO HEAR THE APPEALS SUBMITTED BY THE PETITIONER AGAINST THE ORDERS DISMISSING THE PETITIONER FROM SERVICE,REP.BY THE REGISTRAR GENERAL,HIGH COURT OF KERALA,ERNAKULAM. 8. THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE R3 & R4 BY GOVT. PLEADER SRI.SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON 12/10/2010 DELIVERED THE FOLLOWING: W.P.(C) NO.24333/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTE DT. 7.9.2005 GIVEN BY THE PETITINER TO THE 5TH RESPONDENT. P2:- COPY OF THE M.P. 913/2006 DTD. 25.2.2006 FILED BY THE PETITIONER BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. P3:- COPY OF THE COMPLAINT DTD. 20.3.06 FILED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT. P4:- COPY OF THE COMPLAINT DTD. 6.4.2006 FILED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT. P5:- COPY OF THE ORDER NO.R.17/2004 (SS) /R. 13/2006(SS) DTD. 7.4.2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P6:- COPY OF THE ORDER NO.R-17/2004/SS/A1-5102/2005 DTD. 10.4.2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P7:- COPY OF THE MEMO OF CHARGES NO.R.17/2004(SS)/1-5102/2005 DTD. 3.6.06 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P8:- COPY OF THE COMPLAINT FILED BY THE PETITIONER'S COUNSEL TO THE HON'BLE CHIEF JUSTICE, HIGH COURT OF KERALA AND OTHER AUTHORITIES DT. 23. 8.2004. P9:- COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER'S COUNSEL TO THE HON'B CHIEF JUSTICE AND OTHER AUTHORITIES DT. 24.7.04. P10:- COPY OF THE WRITTEN STATEMENT OF DEFENCE SUBMITTED BY THE PETITIONER DT.D 17.6.2006. P11:- COPY OF THE NOTICE NO.R.17/2004(SS)/A1-5102/2005 DTD. 6.3.07 DIRECTING THE PETITIONER TO SHOW CAUSE WHY MAJOR PENALTY OF DISMISSAL FROM SERVICE SHALL NOT BE IMPOSED ALONG WITH THE REPORT OF ENQUIRY OF THE 4TH RESPONDENT. P12:- COPY OF THE EXPLANATION AS TO WHY MAJOR PENALTY OF DISMISSAL SHALL NOT BE IMPOSED DTD. 14.3.2007. P13:- COPY OF THE MEMO OF CHARGES NO.R.13/2006(SS)/A1-5102/2005. DTD. 11.12.2006. P14:- COPY OF THE ENQUIRY REPORT SUBMTITED BY THE 6TH RESPONDENT IN V.E.NO.8/06. P15:- COPY OF THE WRITTEN STATEMENT OF DEFENCE DTD. 5.3.07 SUBMITTED BY THE PETITINER BEFORE THE 2ND RESPONDENT. P16:- COPY OF THE OFFICIAL MEMORANDUM NO.R.13/2006(SS)/A1-5102/2005 DTD. 3.3.2008. ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER ALONGWITH THE ENQUIRY REPORT SUBMTITED BY THE 3RD RESPONDENT DTD. 18.1.08. P17:- COPY OF THE REPRESENTATION ON THE FINDINGS OF THE ENQUIRY OFFICER SUBMTITED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 19.3.2008. P18:- COPY OF THE NOTICE NO.R.13/2006(SS)/A1-5102/2006 DTD. 4.7.08 ISSEUD BY THE 2ND RESPONDENT TO THE PETITIONER. W.P.(C) NO.24333/2009 P19:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 19.7.2008. P20:- COPY OF THE ORDER NO.R.13/2006(SS)/A1-5102/2005 DT. 18.12.2008 ISSUED BY THE 2ND RESPONDENT. P21:- COPY OF THE ORDER NO.R.17/2004(SS)/A1-5102/2005 DTD. 16.12.2008 ISSUED BY THE 2ND RESPONDENT. P22:- COPY OF THE APPEAL DTD. 22.12.2008 PREFERRED BY THE PETITIONER AGAINST EXT.P20. P23:- COPY OF THE APPEAL DTD. 22.12.2008 PREFERRED BY THE PETITIONERAGAINST EXT.P21. P24:- COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.16492/2007 DTD. 31.5.2007. P25:- COPY OF THE ORDER NO.R.17/2004(SS)/A1-5102/2005 DTD. 20.8.09 ISSUED BY THE 2ND RESPONDENT. P26:- COPY OF THE COMMUNICATION NO.R.17/2004(SS) A1-5102/2005 DTD. 22.8.2009 ISSUED ON BEHALF OF THE 2ND RESPONDENT. P27:- COPY OF THE ORDER OF THE APPELLATE AUTHORITY ON APPEAL NO.1/2008/HC AND APPEAL NO.2/2008/HC DTD. 4.6.09. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE ORDER NO.R17/2004(SS)A1-5102/2006 DTD. 18.3.2010 ISSUED BY THE PETITIONER. R2(b):- COPY OF THE JUDGMENT DTD. 25.3.2010 OF THIS HON'BLE COURT IN WPC. 10075/2010. R2(c):- COPY OF THE JUDGEMENT DTD. 4.5.2010 OF THIS HONOURABLE COURT IN W.A. 765/2010. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 24333 of 2009-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of October, 2010. JUDGMENT In this writ petition, the petitioner challenges the orders culminating in punishment of dismissal from service in two separate enquiries and the order passed in appeal whereby the punishment has been modified as compulsory retirement. The respective orders have been produced as Exts.P20, P21, and P25; Ext.P27 being the proceedings of the Appellate Authority. 2. The petitioner was working as Private Secretary to the Judge in the High Court establishment. Initially he was recruited as Shorthand Writer Grade II on 15.3.1985 and was promoted as Private Secretary to Judge in the year 1996. In relation to the disciplinary enquiry, he was placed under suspension as per Ext.P5 order dated 7.4.2006. An erratum was issued as per Ext.P6. Ext.P7 is the copy of the memo of charges dated 3.6.2006 containing three distinct charges. Ext.P13 is the copy of the second memo of charges containing one charge. 3. The petitioner's arguments are centered on the inadequacy of evidence in both the enquiries as according to the petitioner, who appeared wpc 24333/2009 2 in person, there is no legal evidence to find any guilt against him. It is therefore submitted that it is a case of no evidence and therefore the orders of punishment which are confirmed in appeal, are liable to be quashed by this Court in these proceedings. 4. The memo of chargers, Ext.P7 incorporated the following charges: “(i) That you, Sri. N. Prakash, Private Secrtary to Judge, High Court of Kerala proceeded as an accused in C.C.604/2002 of Addl. Chief Judicial Magistrate's Court, Ernakulam for the offences punishable under Sec.294(b) and 506(i) I.P.C., made false allegations through your counsel by petition dated 23.8.2004 and 24.7.2004 against the Addl. Chief Judicial Magistrate, Ernakulam and the staff of that court where the case was pending, that they made fraudulent entries in 'A' and 'B' diaries and that they, along with Sub Inspector of Police, Panangad are guilty of conspiracy in the police arresting you at 3.20 a.m. on Sunday 22.8.2004. (ii) That you have got published through your counsel Sri Benhur Joseph Manayani, Advocate a news item containing grave accusations, which are totally false against the Presiding Officer and staff of the Addl. Chief Judicial Magistrate's Court, Ernakulam damnifying them and reducing the esteem and respect of the judiciary before the public in the Rashtra Deepika Daily on August 25th, 2004. (iii) That you were undertaking private typing work of Advocate wpc 24333/2009 3 Johnson Manayani, practising in the High Court on almost every day during the period from 1.2.2005 to 26.7.2005 in violation of Rule 48 of the Government Servants Conduct Rules, 1960. (iv) Your above mentioned acts are unbecoming of an employee of the High Court and amounts to serious misconduct.” 5. The first charge relates to two petitions filed by his counsel before the learned Chief Justice alleging certain accusations against the Addl. Chief Judicial Magistrate, Ernakulam and the staff of that court. Copies of those documents have been produced as Exts.P8 and P9. The second charge is that he has caused publication of the allegations against them in the Rashtradeepika Daily dated 25.8.2004. The third charge is that the petitioner has been undertaking typing work of Advocate Shri Johnson Manayani during the period 1.2.2005 to 26.7.2005. 6. The lone charge in Ext.P13 is the following: “That you, Sri N. Prakash, Private Secretary to Judge, High Court of Kerala, while working as the Private Secretary to the Honourable Mr. Justice R. Basant and the Honourable Mr. Justice K.P. Balachandran, inflicted mental and physical torture on Smt. T.R. Rehana, Shorthand Writer Grade II posted to the above Honourable Judges, in creating a hostile environment at the working place, preventing her from discharging her duties effectively.” 7. In respect of these two separate memo of charges, different wpc 24333/2009 4 enquiry officers were appointed. In respect of Ext.P7 memo of charges the formal enquiry was conducted by Shri Abraham Mathew, then Additional Director, Kerala Judicial Academy and in respect of Ext.P13 memo of charges, the formal enquiry was conducted by Shri Hariprasad, then Director, Kerala Judicial Academy. 8. As regards the charges contained in Ext.P7, charges 1 and 2 emanated from the complaints filed by Advocate Shri Benhur Johnson Manayani before the Learned Chief Justice, as already noticed. The petitioner was an accused in C.C. No.604/2002 before the Addl. Chief Judicial Magistrate's Court, Ernakulam. The petitioner was arrested on 22.8.2004 at 3.20 a.m., which led to the filing of these two complaints. It was alleged in the first complaint, Ext.P8 that the case C.C. No.604/2002 was posted on 23.2.2004 and on that date the accused and counsel were present before the court and the case was not called due to heavy workload and posting. Thereafter, they were enquiring daily about the posting of the case and the answer was always that the file is missing. It is pointed out that even though there was a posting on 15.7.2004, on that day also the case was not called. Even on enquiry on 20.8.2004 by the accused, he was informed that the file is missing. Accordingly, the learned Advocate sought for a direction to initiate appropriate disciplinary proceedings wpc 24333/2009 5 against respondents 1 to 3 in the petition. In the subsequent petition, Ext.P9, the allegation mainly is that the entries in the 'A' diary and 'B' diary have been fabricated, for which the respondents in the complaint are liable. 9. The petitioner's defence mainly is that the complaints were filed by the Advocate without any instructions on his part and he was not aware about it. The same is the stand taken with regard to the publication in the Rashtradeepika Daily also. 10. The enquiry report shows that P.Ws. 1 to 4 have been examined on the side of the prosecution and Dws.1 to 3 have been examined by the petitioner. Exts.P1 to P9 have been marked also. 11. After a detailed analysis of the evidence, the Enquiry Officer concluded that Advocate Benhur had no axe to grind against PW1 Additional Chief Judicial Magistrate or PW2 Bench Clerk. There was no reason for him to feel aggrieved because no illegality or irregularity had been committed by the Additional Chief Judicial Magistrate or the Bench Clerk. The only person who had a motive to raise false allegations against the Addl. Chief Judicial Magistrate and the Bench Clerk was the petitioner who was arrested in the wee hours of a holiday. Accordingly, it was concluded that the petitioner is responsible for filing false complaints before the learned Chief Justice and it was held that both charges have been wpc 24333/2009 6 proved. 12. While attacking the above findings in appeal, the petitioner reiterated various contentions. According to him, the counsel himself has admitted that he had filed the complaints and the fact that he had not given any instructions to file these complaints, is evident from the evidence of the learned Advocate and the petitioner. It was therefore pointed out that the finding by the Enquiry Officer is vitiated. I have gone through Ext.P27. This point was specifically considered by the Appellate Authority wherein three of the Honourable Judges of this Court were members. The decision was against the petitioner by a majority of 2 : 1. A reading of Ext.P27 shows that all the points raised by the petitioner were considered and the majority was of opinion that the conclusion arrived at by the Enquiry Officer as regards charges 1 and 2 is really justified. 13. The majority of the Appellate Authority held that “the appellant did not state in his written statement that the complaints filed by the said Advocate were false. The stand of the appellant that he knew that the allegations were false only after the examination of Advocate Benhur Manayani during the enquiry, was rightly rejected. The trend of the appellant's cross examination of P.W.1 (the Addl. Chief Judicial Magistrate) would indicate that he was more eager to conceal his wpc 24333/2009 7 involvement in the filing of petitions by Advocate Benhur Manayani. The said Advocate had no axe to grind against the Addl. Chief Judicial Magistrate or his Bench Clerk. There was no reason for him to feel aggrieved because no illegality or irregularity allegedly committed by the Magistrate or his Bench Clerk had caused any personal harm to the Advocate. If so, he had no motive to file a complaint against the Magistrate or his staff. The only person who had a motive to raise false allegations against the Magistrate and his Bench Clerk was the appellant who was arrested in the wee hours of a holiday in C.C. No.604/2002 in which the appellant was the sole accused. The arrest of the appellant was due to his non-appearance before the Magistrate and the consequent issuance of non- bailable warrants of arrest. The appellant's Advocate naturally had to forge some excuse to cover up his negligence. He, therefore, found it convenient to target the Magistrate and his staff. Thus, from the totality of circumstances, it was legitimate to conclude that the appellant was the person who was behind the petitions filed by his counsel namely Advocate Benhur Manayani.” 14. The petitioner contended that the conclusion arrived at by the Enquiry Officer as upheld by the Appellate Authority by their majority decision, is really unsupportable in law. According to him, the Enquiry wpc 24333/2009 8 Officer has not considered the relevant evidence. As regards the entry on 23.2.2004 in the Criminal Court in Ext.P1 proceedings sheet, there was no initials and this had led to the filing of the complaint by the Advocate. The copy of the complaint filed by the Advocate was obtained by the petitioner only after the petitioner was given permission to peruse the documents. Merely because he had not taken any action against the Advocate at that point of time, that cannot be taken as a circumstance against him. The Advocate had admitted that he filed the complaints on his own and not as instructed by the petitioner. Therefore, it is contended that the finding by the Enquiry Officer as affirmed by the Appellate Authority that the petitioner is responsible for filing complaints by the Advocate, is not correct and is rather perverse. 15. The learned Senior Counsel Shri K.R.B. Kaimal appearing for respondents 1 to 4 submitted that cogent evidence has been adduced to establish the charges. It is submitted that the plea that petitioner had no knowledge about the filing of the petitions and its contents cannot be accepted at all. 16. The Enquiry Officer had, before him the evidence of the witnesses which included the Addl. Chief Judicial Magistrate and the Bench Clerk. Their evidence was elaborately discussed along with the other wpc 24333/2009 9 documentary evidence produced in the enquiry. It is not as if the evidence was lacking in the matter. The question is whether the allegations raised in Exts.P8 and P9 have got any credence and who is responsible for the same. Evidently, the petitioner had real grievance, as he was arrested on a Sunday at 3.20 a.m. Therefore, as rightly pointed out by the Appellate Authority also, the only person who had complaint in the matter is the petitioner, as the Advocate had no real complaint against the Additional Chief Judicial Magistrate or his staff or the Sub Inspector. In that view of the matter, the circumstances clearly probabilised and have led to the only conclusion that the petitioner has caused to file the complaints against the Additional Chief Judicial Magistrate, the Bench Clerk and the Sub Inspector. The conclusion arrived at is not incorrect for want of evidence warranting interference in these proceedings. Cogent reasons have been stated by the Enquiry Officer which have been confirmed by the Appellate Authority also after an analysis of the evidence adduced in the case. The petitioner has not succeeded in proving that he had no role to play in the matter. In that view of the matter, it cannot be said that the conclusion arrived at by the Enquiry Officer is so perverse, warranting interference by this Court. The case is not one of “no evidence”, as contended by the petitioner. Therefore, the said contentions cannot be accepted. wpc 24333/2009 10 17. The third charge in the memo of charges is with respect to the typing work alleged to have been undertaken by the petitioner in the office of Advocate Shri Johnson Manayani. The evidence adduced have been discussed by the Enquiry Officer under the caption “Point No.3”. This is a case where the petitioner had taken defence that Advocate Shri Johnson Manayani has been appearing for him in Contempt Case No.1257 of 2004 before this Court as well as in C.C. No.604/2002 before the Addl. Chief Judicial Magistrate Court. The petitioner had filed nearly 30 cases as party-in-person before this Court and for conducting his cases properly he had been taking legal advice from Advocate Shri Johnson Manayani. The drafts of the pleadings, argument notes, petitions to be filed, etc. were brought to him for correction. Accordingly, the stand taken is that he had not undertaken any typing work. 18. The evidence relied upon by the prosecution is that of two officers of the Vigilance Cell attached to the High Court who had conducted a discrete enquiry. They have been examined as P.Ws.3 and 4 and have submitted Exts.P8 and P9 reports. Going by their evidence, the petitioner had visited the office of Advocate Johnson Manayani on 15 occasions in 11 days. On each occasion petitioner had either handed over to the Advocate or received from the Advocate certain papers. While wpc 24333/2009 11 analysing the evidence of DW.1, Advocate Shri Johnson Manayani, the Enquiry Officer observed that the voluntary statement made by the Advocate is only to the effect that the papers relating to the criminal case filed by Jayaprakash were handed over to him by Prakash and answers were given with respect to handing over of papers of other cases when leading questions were put by the petitioner. It was concluded that the papers handed over by the petitioner to Advocate Shri Johnson Manayani related neither to the criminal case nor to the matters filed in the High Court which is a strong circumstance to believe that those were papers prepared (typewritten or printed on computer) by Prakash for the Advocate. During 11 days, Prakash met the Advocate 15 times to hand over papers. On one occasion the visit lasted 3 minutes, on 9 occasions the visit lasted 5 minutes, on 4 occasions the visit lasted 10 minutest and on one occasion the visit lasted 35 minutes. It was observed that except on one occasion the petitioner had only fleeting visits. On some occasions the Advocate came out of his office to receive the papers brought by him. The time spent by him in the Advocate's Office was too short that it cannot be believed that he made any discussion with the Advocate in legal matters. This was pointed out as a circumstance to believe that the papers handed over by the petitioner to the Advocate were papers prepared for the purpose of the wpc 24333/2009 12 Advocate. 19. The Appellate Authority, by a majority, confirmed the same and opined that the charge has been proved. 20. The petitioner submitted that certain crucial aspects have not been considered by the Enquiry Officer as well as by the Appellate Authority which would show that the charge is really unfounded. According to him, no papers have been recovered/identified by the Vigilance or anybody else to prove that the papers handed over by the petitioner to Advocate Johnson Manayani are really typewritten sheets in respect of the matters concerning the office of the Advocate. It is also submitted that there is no allegation that the petitioner had done the typing work in any particular place also. According to him, the fact that except on one occasion the visit lasted only for a few minutes itself evidences the fact that the Advocate has not dictated anything to him for doing the typewriting work. Thus, it is submitted that the relationship is only of an Advocate client and not that of a typist doing work in the office of the Advocate or for his benefit. The details of the cases which he had filed before this Court, have been stated in Ext.P10 written statement of defence. 21. Evidently, there is no direct evidence with regard to the material handed over by the petitioner to the Advocate to establish that they were wpc 24333/2009 13 materials which were typed by the petitioner or printed in computer. Therefore, there is no reliable evidence as to what constituted the papers which were handed over by the petitioner to the Advocate. The prosecution has also no charge with respect to the place from wherein he was doing the typing work for the Advocate. To suggest those aspects there is no material at all and there are no allegations also in that regard. The handing over of papers is relied upon to conclude that the same are typed materials for the use of the Advocate. The conclusion is arrived at on the basis of the alleged discrepancies in the evidence of the Advocate and the petitioner. 22. That the learned counsel had been engaged for conduct of C.C. No.604/2002 before the Addl. Chief Judicial Magistrate's Court, Ernakulam, has come up in evidence. Also he was appearing in CCC No.1257/2004 for the petitioner before this Court, is also in evidence. Therefore, already they had the relationship of client and Advocate. The evidence adduced on behalf of the prosecution also shows that the visits by the petitioner in the office of the Advocate on 11 days during which, the Vigilance Officers observed the same, the petitioner met the Advocate 15 times to hand over the papers. The evidence also shows that the visit lasted 3 minutes, 5 minutes, 10 minutes and only in one occasion it lasted 35 minutes. The conclusion arrived at by the Enquiry Officer is also that wpc 24333/2009 14 except on one occasion the petitioner had only fleeting visits. The evidence shows that the petitioner had handed over papers to the Advocate and not otherwise and on some occasions the Advocate came out of his office to receive the papers brought by the petitioner. The learned Senior Counsel appearing for respondents 1 to 4 submitted that the conclusions of the Enquiry Officer are really supportable. 23. The point is whether the charge has been proved at all. It is well settled that a mere suspicion cannot take place of proof against a delinquent. This legal position is well settled by various decisions of the Apex Court. (See Nand Kishore Prasad v. State of Bihar and others - AIR 1978 SC 1277). 24. Herein, the fact that the learned Advocate was appearing for him in two cases cannot be disputed. That shows their relationship. Of course, it is in answer to the leading questions, that the learned Advocate submitted that the petitioner had handed over other papers for his opinion. But in the absence of any direct evidence to show that typed materials were being handed over, the question whether the petitioner had been doing typing work for the learned counsel, cannot be said to have been established at least satisfactorily, in support of the charge. There