IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 OP.No. 7581 of 2000(R) ---------------------- PETITIONER: ------------------- N. RAVEENDRAN PILLAI, S/O. NARAYANA PILLAI, AGED 41 YEARS, RESIDING AT `KARTHIKA', UMMANNOOR.P.O., KOTTARAKKARA, KOLLAM. BY MR.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE, ADVS.MR.C.UNNIKRISHNAN (KOLLAM), MR.S.HARIKRISHNAN, MR.M.R.HARIRAJ, MR.P.A.KUMARAN, MR.SURAJ.S, SMT.VINEETHA B. RESPONDENTS: ------------------------ 1. THE SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF HOME, SECRETARIAT, TRIVANDRUM. 2. THE REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM. 3. THE CHIEF JUDICIAL MAGISTRATE, KOLLAM. R1 & R3 BY GOVERNMENT PLEADER MR. DILEEP MOHAN, R2 BY MR.O.V.RADHAKRISHNAN, SENIOR ADVOCATE, S.C, ADV.SMT.K.RADHAMANI AMMA, MR.K.RAMACHANDRAN (THYKOODAM). THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 7581/2000-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SUSPENSION ORDER DATED 14/11/1996 ISSUED BY THE R.3. SERVED THE PETITIONER ON 16/11/1996. EXT.P.2: COPY OF THE D.O. LETTER DTD. 08/11/1996 SENT BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PUNALUR TO THE R.3. EXT.P.3: COPY OF THE MEMO DTD. 14/11/1996 NO. E.6301/96 ISSUED BY THE R.3. SERVED THE PETITIONER ON 22/11/1996. EXT.P.4: COPY OF THE REPLY SUBMITTED BY THE PETITIONER ON 19/12/1996 BEFORE THE R.3. EXT.P.5: COPY OF THE MEMO OF CHARGES AND STATEMENTS OF ALLEGATION DATED 10/03/1997 NO. E. 6301/96 ISSUED BY THE R.3. EXT.P.6: COPY OF THE EXPLANATION DTD. 08/04/1997 SUBMITTED BY THE PETITIONER BEFORE THE R.3. EXT.P.7: COPY OF THE PETITION DTD. 25/06/1997 FILED BY THE PETITIONER BEFORE THE ENQUIRY OFFICER. EXT.P.8: COPY OF THE ENQUIRY REPORT DTD. 09/10/1997. EXT.P.9: COPY OF THE OBJECTION DTD. 15/11/1997 TO THE ENQUIRY REPORT FILED BY THE PETITIONER BEFORE THE R.3. EXT.P.10: COPY OF THE SHOW CAUSE NOTICE DTD. 29/12/1997 NO.E.6301/96(A) ISSUED BY THE R.3. TO THE PETITIONER. EXT.P.11: COPY OF THE REPLY DTD. 20/01/1998 SUBMITTED BY THE PETITIONER BEFORE THE R.3. EXT.P.12: COPY OF THE DISMISSAL ORDER NO. E.6301/96(A) DTD. 19/02/1998 ISSUED BY THE R.3. TO THE PETITIONER. EXT.P.13: COPY OF THE APPEAL DTD. 30/04/1998 FILED BY THE PETITIONER BEFORE THE R.2. EXT.P.14: COPY OF THE JUDGMENT DTD. 26/02/1999 IN O.P. 4004/99 OF THIS HONOURABLE COURT. EXT.P.15: COPY OF THE ORDER NO. I 1-24174/98 DTD. 24/07/1999 ISSUED BY THE R.2. EXT.P.16: COPY OF THE REVIEW PETITION DTD. 30/09/1999 SUBMITTED BY THE PETITIONER BEFORE THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 7581 of 2000 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January, 2010 J U D G M E N T The petitioner was a U.D. Clerk in the Judicial First Class Magistrate's Court-I, Punalur. He was in charge of FIR, appeal and records. Disciplinary proceedings were initiated against him for certain allegations of misconduct. Ext.P5 charge sheet was issued to him setting out several allegations of misconduct involving culpable delay in placing the charge sheets before the court in time for committal proceedings in three murder cases. Ext.P6 explanation was submitted by the petitioner, in which the delay was not denied by the petitioner, but he tried to explain it away on the ground that some documents were yet to be received and there was pressure of work. An enquiry was ordered. Before the enquiry officer, the petitioner raised an objection regarding examination of PW1 on the ground that he is enemically disposed of towards the petitioner. After taking evidence, the enquiry officer O.P. No. 7581 of 2000 -2- submitted Ext.P8 report finding the petitioner guilty of gross dereliction of duty. Petitioner was served with copy of the enquiry report. The petitioner filed Ext.P9 representation against the same. However his objections were not accepted and agreeing with the findings in Ext.P8, he was served with Ext.P10 show cause notice directing him to show cause why the punishment of dismissal from service should not imposed on him. The petitioner filed Ext.P11 reply, again pointing out that there was no deliberate delay on his part and the delay occurred only on account of circumstances beyond his control. The same was also not accepted and by Ext.P12 order, the punishment of dismissal from service was imposed on the petitioner. Petitioner filed Ext.P13 appeal before the appellate authority namely the Registrar of the High Court of Kerala, who dismissed the same by Ext.P15 order. The petitioner filed Ext.P16 revision petition before the Government. That has not been considered yet. It is under the above circumstances the O.P. No. 7581 of 2000 -3- petitioner has filed this original petition challenging Exts.P12 & P15 orders. 2. According to the petitioner, the enquiry is vitiated for examining a biased witness as PW1. He would attack the findings in the enquiry report on the ground that the same is based on no evidence. According to the petitioner the argument raised by the petitioner in Ext.P11 were not considered in the order of punishment. He would also submit that the appellate authority did not afford the petitioner an opportunity of being heard. He would further submit that he has been dismissed from service with effect from a retrospective date, which is not sustainable. Lastly, he would submit that the punishment of dismissal from service is disproportionate to the gravity of the misconducts alleged to have been committed by him. 3. The learned senior counsel appearing for the High Court and the learned Government Pleader would oppose the contentions of the petitioner. According to the learned O.P. No. 7581 of 2000 -4- senior counsel appearing for the High Court, the petitioner practically admitted the misconducts. His explanations were lame excuses which cannot be accepted in the case of a Clerk in a Magistrate's Court dealing with very serious criminal offences against accused persons. The Senior Advocate points out that on the ground that a witness examined in the enquiry is biased, the validity of the enquiry cannot be challenged. It is very well within the right of the petitioner to discredit the witness by brining out the alleged bias on the part of the witness in cross- examination, in which the petitioner has sadly failed. Therefore according to the senior counsel, the enquiry cannot be said to be vitiated on the ground that the witness examined by the prosecution is a biased witness. Regarding the findings in the enquiry report he points out that there was more than sufficient evidence in the enquiry to find the petitioner guilty of the misconducts alleged against him. According to the senior counsel, the fact that the petitioner O.P. No. 7581 of 2000 -5- was not given an opportunity of being heard is not a ground for setting aside the appellate order since his written submissions have been elaborately considered by the appellate authority. On the question of proportionality of punishment, he points out that this court cannot interfere with punishment imposed by the disciplinary authority unless the punishment imposed is shockingly disproportionate to the gravity of the misconduct committed by the delinquent. He relies on the decisions of the Supreme Court in Chairman & Managing Director, V.S.P. And Others v. Goparaju Sri Prabhakara Hari Babu (2008) 5 SCC 569, State Of U.P. v. Sheo Shanker Lal Srivastava And Others (2006) 3 SCC 276, Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn. And Another (2007) 4 SCC 669, Union of India And Another v. S.S. Ahluwalia (2007) 7 SCC 257. According to him the misconducts proved O.P. No. 7581 of 2000 -6- against the petitioner are very serious enough to warrant the punishment of dismissal from service, especially since such misconducts cannot be condoned in the case of the clerk of a criminal court, if done would have deleterious effect on the functioning of the court. 4. I have considered the rival contentions in detail. 5. I do not think that the petitioner can validly challenge the enquiry proceedings on the ground that one of the witnesses examined by the prosecution is a biased witness. As rightly pointed out by the senior counsel appearing for the High Court, it is well within the rights of the petitioner to bring out the bias in the witness by cross- examining him and discrediting his evidence. The petitioner has not been able to satisfy me that he has done so. Even assuming that the witness is biased, that does not in any way vitiate the enquiry as such. Therefore I do not find any merit in the challenge against the validity of the enquiry. I have gone through the findings of the enquiry officer in O.P. No. 7581 of 2000 -7- Ext.P8 enquiry report. On a reading of the same, I am unable to persuade myself to hold that the findings are in any way perverse or that the same is based on no evidence. It is settled law that in exercise of powers under Article 226 of the Constitution of India this court can interfere with the finding in the enquiry in a disciplinary proceeding, only if the findings are based on no evidence or the findings are perverse. In this case the petitioner practically admitted the misconducts to a great extent. He only offered certain explanation for the delay caused by him in placing the charge sheets before the court in time. The petitioner's case is that in respect of one of the cases certain documents were not received. Even if the same is true, the petitioner should have brought the same to the attention of the court. Pressure of work is a lame excuse. Every material evidence has been carefully considered by the enquiry officer and the enquiry officer rightly found the petitioner guilty of gross dereliction of duty. As such the challenge against the O.P. No. 7581 of 2000 -8- report of the enquiry officer is without any merit. I also do not find any merit in the contentions of the petitioner that his argument in Ext.P11 do not find a place in the final order of punishment namely Ext.P12. In Ext.P12 the matter has been elaborately considered by the disciplinary authority before coming to the conclusion he reached. In fact Ext.P12 order of punishment runs into more than 35 pages and every contention of the petitioner has been elaborately discussed therein. I do not find any merit in the challenge against the appellate order on the ground of lack of opportunity of being heard. In Ext.P15 appellate order also every contention of the petitioner has been considered in detail. Further since I have considered all his contentions on merits, that objection is only academic even if valid. The question validity of imposing of punishment of dismissal with retrospective effect is covered against the petitioner in the decision of the Division Bench of this court in State of Kerala and Ors. v. A.P. Janardhanan O.P. No. 7581 of 2000 -9- 2008 (2) KHC 240. As such there is no merit in that contention also. 6. Now comes the last contention of the petitioner, which actually is his main contention. He contends that the punishment of dismissal imposed on the petitioner is disproportionate to the gravity of the misconducts found to have been committed by him. According to the petitioner although in the charge sheet malafides were alleged against the petitioner, in the enquiry, there is no evidence adduced to prove the same and the enquiry officer also found the petitioner guilty only of gross dereliction of duty and no dishonest intention on the part of the petitioner has been proved to the effect that the delay was deliberate to help the accused in the three cases. He would submit that what has been proved is only delay in placing the three charge sheets before the Court, which delay was caused only on account of want of certain documents and pressure of work. That being so, the punishment of dismissal from service for O.P. No. 7581 of 2000 -10- such minor misconduct is shockingly disproportionate to the gravity of misconduct committed by the petitioner is the contention of the petitioner. 7. These contentions are to be essentially appreciated in the light of the charges themselves. The charges, which are succinctly enumerated in Ext.P15 appellate order read thus: “(1) That he while holding the charge of FIR Section of Judicial First Class Magistrate's Court-I, Punalur after having received the charge sheet in Cr.No.63/95 of Yeroor Police Station for offences punishable under section 143, 147, 302, 201, read with 149 IPC through distribution register on 29-8-95 which bore no date seal, initial of Presiding Officer, initial of Junior Superintendent and distribution number even though the same was routed thorough the distribution register, kept it unauthorisedly and indefinitely without handing over the same with connected FIR and other papers for the registration of the same as C.P. case. (2) That the delinquent officer after receiving the charge sheet in Crime No.167/95 of Anchal Police Station for offences punishable under section 274, 275, 302, 307, 328, 420, 120 (B) read with 34 I.P.C. and 55 (a) (b) (i) 51 (A)Abkari Act from the Junior Superintendent Smt. V.S. Jameela Beevi of the said Court on 27-1-96 which bore no date seal, initial of Presiding Officer, initial of Junior Superintendent and without routing through the distribution register, kept it unauthorisedly and indefinitely without handing over the same with the connected FIR and other papers for registering the name as C.P. Case. O.P. No. 7581 of 2000 -11- (3) That he while holding the charge of FIR Section of that Court after having received the charge sheet in Cr.No.101/95 Yeroor Police Station for offences punishable under section 449, 302 I.P.C. through the distribution register on 2-3-96 which bore no date seal, initial of the Presiding Officer, initial of Junior Superintendent and distribution number even though the same was routed through the distribution register, kept it unauthorisedly and indefinitely without handing over the same with the connected papers for registering the same as C.P. Case. (4) That he with malafides received the charge sheets from the Junior Superintendent, in the manner as indicated above, stalled the committal proceedings in the said cases and his said acts resulted in causing inordinate delay in the registration of the said cases as O.P. (5) That he deliberately, dishonestly and willfully interfered with the administration of justice and delayed the committal and trial of the said cases, all of them involving offence of murder. (6) That his above said acts amounted to serious dereliction of duty, grave misconduct and gross negligence. (7) The explanation dated 04.12.1996 offered by him in this matter was misleading and thoroughly unsatisfactory. (8) That while he was in charge of Bench Clerk of Judicial I Class Magistrate's Court-II, Kottarakkara involved in a case of keeping away 10 pending calender cases from the Magistrate by showing the same as disposed and 25 cases were not refiled eventhough it was ordered by the concerned Magistrate to do so.” 8. It is true that in Ext.P8 report there was no specific finding regarding malafides on the part of the petitioner. But certainly there is finding of gross dereliction O.P. No. 7581 of 2000 -12- of duty by the petitioner. As pointed out by the learned senior counsel appearing for the High Court, as laid down by the Supreme Court in the decision in Janardhanan's case, the punishment chosen by the disciplinary authority can be interfered with only if the punishment is shocking disproportionate to the gravity of the misconduct committed by the delinquent. In this case admittedly the petitioner was responsible for placing the charge sheets before the Magistrate for committal proceedings in time. He is dealing with a very sensitive duty, which if not performed promptly would even have serious effect on the confidence of the public in the judiciary itself. Unlike other government officers, employees of the criminal judicial service are expected to work more responsibly and with expedition, because of the seriousness of the matters dealt with by them and considering the fact that personal liberty of a person and a crime against the society are concerned. Admittedly, in this case the petitioner has not shown the O.P. No. 7581 of 2000 -13- devotion to duty which is normally expected of him. Because of his misconduct, the committal proceedings in three murder cases were delayed by more than a year. Such delay can affect the accused favourably or unfavourably depending on whether they are guilty or not guilty. If they are actually guilty, the delay in prosecuting can work to their advantage. If they are innocent, the delay can work out to their prejudice. Therefore the misconduct on the part of the petitioner is very serious, whether he did it intentionally or unintentionally. I am of the opinion that such misconducts have to be dealt with very strictly to make an example to others also. If such misconducts are dealt with lightly, the same would encourage others to commit the same, sometimes perhaps intentionally also. It would have very deleterious effects on our justice delivery system, which is considered to be one of the best, if not the best, in the country. Laxity in dealing with such misconducts firmly would seriously dent the reputation of the judiciary which O.P. No. 7581 of 2000 -14- this country can ill-afford. Therefore considering these factors I am not satisfied that the punishment of dismissal is shockingly disproportionate to the gravity of the misconducts committed by the petitioner. In the above circumstances I do not find any merit in the original petition and accordingly the same is dismissed. S. SIRI JAGAN JUDGE shg/