IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 OP.No. 5794 of 2002(M) ---------------------- PETITIONER(S): --------------- P.A.JAYATHILAKAN S/O.U.RAGHAVAN, "SURABHI",NEAR RAILWAY GATE,P.O.PADANNAKKAD, VIA-NILESWAR,KASARAGOD DISTRICT BY ADV. SMT.VIDHYA. A.C RESPONDENT(S): --------------- 1. THE SECRETARY TO THE GOVT. OF KERALA, REVENUE (D) DEPARTMENT,SECRETARIATE, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF LAND REVENUE, GOVT. OF KERALA,THIRUVANANTHAPURAM. 3. THE KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM,REPRESENTED BY ITS SECRETARY 4. THE ACCOUNTANT GENERAL OF KERALA, THIRUVANANTHAPURAM. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R3 GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 5794/02. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE CHARGE MEMO DTD.1.4.96., P2. COPY OF THE WRITTEN STATEMENT DTD.17.6.96. P3. COPY OF THE MEMO OF CHARGES DTD.10/1996 P4. COPY OF THE WRITTEN STATEMENT. P5. COPY OF THE JUDGMENT IN O.P.No. 7247/2001 OF THIS COURT. P6. COPY OF THE SHOW CAUSE NOTICE DTD.11.7.2001. P7. COPY OF THE EXPLANATION DTD.14.8.2001. P8. COPY OF THE LETTER DTD.19.10.2001 OF THE GOVT. P9. COPY OF THE ENQUIRY REPORT DTD.7.6.2001. P10. COPY OF THE OBJECTION DTD.31.10.2001. P11. COPY OF THE GOVT. ORDER DTD.11.1.2002. P12. COPY OF THE LETTER DTD.14.2.92 BY DIST. COLLECTOR, KANNUR. P13. COPY OF THE LETTER DTD.22.7.92 TO THE GOVT. PLEADER. P14. COPY OF THE AFFIDAVIT DRAFTED IN THE HANDWRITING OF THE GOVT. PLEADER TO BE SIGNED AND FILED BY THE PETITIONER. P15. COPY OF THE DEMAND NOTICE DTD.16.9.2003. P16. COPY OF THE JUDGMENT IN L.A.R.NO.122/87 OF SUB COURT, PAYYANNUR. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 5794 of 2002 ================== Dated this the 10th day of February, 2009 J U D G M E N T The petitioner was a Deputy Collector in the Revenue Department of the Government of Kerala, who retired from service on 21.3.1997. Prior to his retirement, disciplinary proceedings were initiated against him on certain serious allegations of misconduct by issuing Exts.P1 and P3 memo of charges, to which the petitioner had filed statements of defence. Before the disciplinary proceedings could be completed, he retired from service. However, the petitioner was not paid his retirement benefits and therefore, the petitioner approached this Court by filing O.P.No.7247/2001, in which, by Ext.P5 judgment, this Court directed completion of the disciplinary proceedings expeditiously. Thereafter, an enquiry officer conducted an enquiry and filed Ext.P9 report, wherein the petitioner was found guilty of all charges except one. Thereafter, the petitioner was given a show cause notice as to why the loss caused to the Government on the account of the petitioner's misconducts should not be recovered from the retirement benefits and by resort to the Kerala Public Accountants Act. The petitioner's representation in this regard did not find favour with the disciplinary authority and the Government ultimately, by Ext.P11 order, directed to recover the loss caused to the Government on account of the misconducts to the tune of Rs.1,64,390/- from the DCRG of the petitioner, and the the balance amount of Rs.6,48,430/- o.p.5794/02 2 invoking the provisions of the Kerala Public Accountants Act, 1963. He was also imposed with punishment of reduction of Rs.1,327/- from the monthly pension of the petitioner under Rule 3(a) of Part III of KSR. The petitioner is challenging Ext.P11 order in this original petition. 2. The petitioner contends that the enquiry itself is invalid since no witnesses were examined in the enquiry. According to the petitioner, without the documents relied upon by the enquiry officer having been proved by an officer, the documents could not have been relied upon by the enquiry officer to find the petitioner guilty. Secondly he would contend that there was no sufficient evidence to prove the misconducts against the petitioner. According to the petitioner, the findings are perverse in so far as some of the alleged acts were at a time before the petitioner joined the particular office. He would submit that the major chunk of the amount relates to charges in respect of the disposal of applications under Section 28A of the Land Acquisition Act. The charge was that without the claimants having received compensation under protest, the petitioner entertained applications under Section 28A and awarded additional compensation. According to the petitioner, it is settled law now that for invoking Section 28A of the Act it is not necessary that the compensation should have been accepted under protest by the claimants. The petitioner, therefore, contends that the findings of misconducts in respect of entertaining of Section 28A applications by the petitioner was clearly perverse. The o.p.5794/02 3 petitioner further raises a contention that Ext.P11 order having been passed beyond three years from the date of his retirement, no liability could have been recovered from his DCRG under Note 3 of Rule 3 of Part III of KSR. 3. I have heard the learned Government Pleader also. 4. I have considered the rival contentions in detail. 5. The charges against the petitioner contain in Exts.P1 and P3, which are as follows: Exhibit P1: “I. That you while working as Special Tahsildar (LA), Thalassery have committed serious irregularities and dereliction of duties in dealing with the matter related to the payment of enhanced compensation in an LAR case No.122/87 relating to the acquisition of land for Naval Academy and thereby made a huge loss amounting to Rs.2,43,114.99 (Rupees two lakhs forty three thousand one hundred fourteen and paise ninety nine only) to Government, the details of which are given in the statement of allegation. II. That you have deliberately deposited a sum of Rs.8,99,474/- (Rupees eight lakhs ninety nine thousand four hundred and seventy four only) vide 'P' Form cheque No.10874 dated 9.6.92 in the court of Sub Judge, Payyannur on 19.6.1992 without adhering to the instructions issued from Collector's office in Ref.No.C2-64373/89 dated 14.2.92 to deposit only Rs.5,61,000/- with further interest @ 15% per annum from 30.1.92 till the date of deposit. III. That you have failed to take proper sanction from District Collector before depositing the higher amount for Rs.8,99,474/- IV. That you have deliberately filed an I.A. petition before the Sub Court, Payyannur on 18th August 1992 and got amended the decree and judgment wrongly in L.A.R. 122/87 in favour of the claimant in holding No.III, thereby causing loss to Government to the tune of Rs.2,43,114.99 (Rupees two lakhs forty three thousand one hundred fourteen and paise ninety nine only) V. That you have misrepresented the facts before the Sub Court, Payyannur in respect of detailed valuation of 4 pepper wince in Holding No.III in L.A.R.No.122/87 and caused loss to Government to the tune of Rs.2,43,114.99 (Rupees two lakhs forty three thousand one hundred fourteen and paise ninety nine only). o.p.5794/02 4 VI. That you have deliberately created records to show that the whole matter has been reported to higher authorities.” Exhibit P3: “(1) That you Sri.P.A.Jayathilakan, while working as special Tahsildar (LA) Thalassery committed serious irregularities in dealing the applications under Section 28(A) of the K.L.A. Act, resulting payment of Rs.13.82 lakhs in 32 cases to persons who are not eligible as per clarification issued in the Government letter No.33956/B1/94/RD dated 17.10.1994. (2) That you have not considered or gone through the statements filed by the parties at the time of award enquiry and also the B Form statements sent by the Land Acquisition Officer to the Accountant General, Thiruvananthapuram, on completion of payment, which were available in the connected L.A. disposal files, to make sure that the compensation was actually received by the parties under protest or not, while processing the applications under section 28(A) of L.A. Act and abetted in irregular payment thus causing huge loss to the Government. (3) That you have helped the petitioners (Land owners who filed application under Section 28A of the K.L.A. Act) by permitting them to record their protest on the insufficiency of compensation awarded to them on the counterfoils of the D Form cheques on the later dates which resulted in effecting payment of Rs.13.82 lakhs to the ineligible persons. (4) Your action described above amounts to gross dereliction of duty and breach of responsibility vested on you, as a responsible Government servant and caused loss to Government to a tune of Rs.13.82 lakhs.” 6. The petitioner's contention is that since the documents relied upon by the enquiry officer were not proved by a competent officer, the enquiry itself is vitiated. The counsel for the petitioner relies upon Sub Rule 7 of Rule 15 of Kerala Civil Services (Classification, Control and Appeal) Rules in support of his contention. According to the counsel, without the documents having been proved through a competent officer, the documents could not have been relied upon. The files relied upon by the enquiry officer are the files available o.p.5794/02 5 in the office where the petitioner was working. The files speak for themselves. It is settled law that in disciplinary enquiries the rules of evidence are not applicable. Any material which would appeal to a prudent man is of probative value in a disciplinary enquiry. Here the petitioner does not dispute that the files in question, which have been relied upon by the enquiry officer, are the files maintained at the office where the petitioner was working at the time when the alleged misconducts were stated to have been committed by the petitioner. He does not have any case that the files themselves have been fabricated or concocted by anybody. He does not dispute the genuineness of the files. The files are kept in the normal course of business of the Government. In fact the petitioner himself was dealing with the very same files. Rule 15 of Kerala Civil Services (Classification, Control and Appeal) Rules does not stipulate that any documents should be proved through any witnesses. All that it requires is that if any oral evidence is adduced, then the delinquent employee should be given an opportunity to cross examine that witness. In fact the petitioner was given an opportunity to adduce contra evidence. It was perfectly open to the petitioner to adduce evidence to disprove any of the documents in the file. He has no case that he has not been given an opportunity to peruse the files and to adduce evidence in support of his defence. That being so, the conclusion arrived at by the enquiry officer based on the files kept in the normal course of business of the o.p.5794/02 6 Government cannot be stated to be perverse at all. I have gone through Ext.P9 enquiry report in detail. The enquiry officer has given cogent reasons for the conclusion arrived at by him, which I do not find to be perverse at all. In fact I find that when there is a mistake in the decree in the LAR, which mistake is in favour of the Government, there was absolutely no reason for the petitioner to file an application to correct the decree, which he had done, about which he had no explanation to offer. Further, the enquiry officer has specifically demonstrated as to how even with that mistake the actual amount would not have been more than what was originally awarded. It was found on the basis of the files themselves that the petitioner did not properly go through the valuation prepared by the officers themselves and had the petitioner cared to make calculation in accordance with the valuation fixed by the officers of the Government, there would not have been any reason to file any petition for correction of the decree at all. In any event, if there was any mistake in the decree which was to the detriment of the claimant it was for the claimant to seek correction. 7. As far as the contention based on the subsequent Supreme Court decisions on Section 28A of the Act is concerned, I am of opinion that in so far as at the relevant time, the law on the subject was that only those claimants who have accepted compensation amount under protest would be entitled to invoke the provisions of Section 28A. It o.p.5794/02 7 was long after orders have been passed by the petitioner under Section 28A, that the legal position changed. On the other hand, the specific finding in Ext.P9 enquiry report is that the petitioner manipulated the counter foils of the cheque books to show that the compensation was accepted under protest. The corresponding B Forms did not reflect any such protest and it is on that basis that, the enquiry officer came to the conclusion that the counter foils have been manipulated by the petitioner later. Therefore, there was some probative material acceptable in a disciplinary enquiry to find the petitioner guilty. Sufficiency of evidence is not a matter which this Court should look into in proceedings under Article 226 of the Constitution of India in respect of the challenge against the disciplinary enquiry unless the conclusions are perverse. Here on a reading of Ext.P9 I am more than satisfied that there was sufficient evidence available for the enquiry officer to the come to the conclusion he has arrived at in respect of the charges and the findings are not at all perverse. 8. The last contention is based on Note 3 of Rule 3 of Chapter III of KSR. That would be applicable only in respect of fixation of liabilities and not to recovery of loss caused to the Government on account of misconducts committed by a Government servant. In fact the same is covered by Rule 3 which permits continuation of the disciplinary proceedings to its logical conclusion for the purpose of o.p.5794/02 8 recovery from the pension and for recovery of pecuniary loss caused to the Government when an employee is found guilty of grave misconducts or negligence during the period of his service. Therefore, I do not find any merit in that contention also. For all the above reasons, I do not find any merit in the original petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE S.SIRI JAGAN, J. ================= O.P.No. 5794 of 2002-M ================= J U D G M E N T 10th February, 2009