IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 WA.No. 1473 of 2004() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.5347/2004 Dated 26/02/2004 .................... APPELLANT(S): RESPONDENTS 1 AND 2 IN THE OP ------------------------------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY (FINANCE) GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TREASURIES, DIRECTORATE OF TREASURIES, THIRUVANANTHAPURAM. BY SPL.GOVT.PLEADER SRI.N.MANOJ KUMAR. RESPONDENT(S): PETITIONER IN THE OP ----------------------------------- C.SWARNAPPAN, JUNIOR SUPERINTENDENT, SUB TREASURY, VIZHINJAM AND RESIDING AT RAJ COTTAGE, CHAMAVILA, POOVACHAL P.O., KATTAKKADA, THIRUVANANTHAPURAM. ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.1473 of 2004 ---------------------------------------------- Dated 25th January, 2010. J U D G M E N T Balakrishnan Nair, J. The respondents in the writ petition, are the appellants. The writ petitioner is the respondent herein. He was a Junior Superintendent, who was working in the Sub Treasury, Vizhinjam, while the writ petition was filed. The respondent was suspended from service, while he was working as Junior Superintendent, in the District Treasury, Thiruvananthapuram, on 31.7.1997. Later, he was re-instated, without prejudice to the disciplinary proceedings. Ext.P2 was the memo of charges served on him, on 3.5.99. Since the disciplinary proceedings were pending, he was being superseded by his juniors, in the matter of promotion to the post of Senior Superintendent. So, the writ petition was filed, seeking the following reliefs :- “(1) Issue a writ of certiorari or other appropriate writ order or direction calling for the records leading to the disciplinary proceedings against the petitioner evidenced by Ext.P2 and to quash the same as illegal. (2) In the alternative to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to complete the disciplinary proceedings against the petitioner, if any, immediately. (3) To issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to assess the WA NO.1473/04 2 suitability of the petitioner to the higher post and a finding reached. (4) To grant such other reliefs that the petitioner may ask for and those which this Honourable Court deems fit and necessary in the interests of justice.” 2. The learned Single Judge, who heard the matter, directed to expedite the disciplinary proceedings and complete the same, within four months from the date of the judgment. The learned Judge also directed, not to proceed with any vigilance enquiry, against the respondent. The sustainability of the vigilance enquiry was neither a subject matter of the writ petition nor was there any prayer to quash the same. But, the learned Single Judge, suo motu issued the following direction : “Because of the passage of almost seven years, I think it will be really difficult to follow up the matter by way of vigilance enquiry. Therefore, I direct that such enquiries need not be proceeded further.” The appellants herein preferred this Writ Appeal, feeling aggrieved by the above direction, concerning the vigilance enquiry. This Appeal was dismissed by a Division Bench of this Court, by judgment dated 29.9.2004. Later, the appellants preferred, R.P.No.884/07. The said Review Petition was heard and allowed by a Division Bench of this Court, on 23.1.2009, and the Writ Appeal was re-posted for hearing. WA NO.1473/04 3 3. We heard the learned counsel on both sides. The learned Special Government Pleader, who appeared for the appellants, submitted that because of the observations of the learned Single Judge quoted above, which were earlier affirmed by the Division Bench, another Division Bench of this Court quashed the vigilance enquiry proceedings against the respondent, and the appellants have already moved the Apex Court, against that judgment. It is also submitted that, for pursuing the remedies before the Apex Court, the appellants are awaiting the decision in this Writ Appeal. It is pointed out that the vigilance case was registered in, 1998, and the final report in that case was filed in, 2006. It is submitted that even before the judgment under appeal was rendered by the learned Single Judge on 26.2.2004, the investigation was over and the further formalities were being completed, for filing the final report. It is also submitted that the writ petition was disposed of at the admission stage, without an opportunity to the respondents, to file counter affidavit. It is also pointed out that the Vigilance Department of the State was not a party to the writ petition, and therefore, their proceedings could not have been interfered with, WA NO.1473/04 4 by the learned Single Judge. Since the investigation was completed and the final report was going to be filed, in the absence of a specific prayer, and without proper parties being on the party array, the learned Single Judge should not have allowed the writ petition, it is submitted. The learned counsel for the respondent, on the other hand, supported the judgment under appeal. It is pointed out that prayer 'd', which is a prayer to grant such other reliefs, that the writ petitioner may ask for, was sufficient to grant the relief. Having regard to the predicament of the writ petitioner, the learned Single Judge granted the reliefs, to advance justice, and to prevent injustice, it is submitted. 4. We considered the rival contentions made at the Bar. We notice that in the writ petition, there were no pleadings or materials, justifying the interference, by the learned Single Judge with the vigilance case. If there were materials and pleadings in the writ petition, justifying the grant of reliefs, and there was a technical flaw of not making a proper prayer, the same can be condoned. In this case, we notice that, as mentioned earlier, there are no materials on record, to arrive at a finding that the continuance of the vigilance enquiry, was WA NO.1473/04 5 unjustified. Further, the Officers of the Department, who were handling the vigilance enquiry, were not made parties also. Therefore, in this case, relying on prayer 'd', the direction of the learned Single Judge, cannot be sustained. We are of the view that without pleadings and materials, and a proper prayer, the learned Judge should not have issued the impugned direction. We uphold the contentions of the appellants on this point, and reverse the judgment under appeal, to the extent it directs the dropping of the vigilance enquiry, against the respondent. The direction of the learned Single Judge, regarding the completion of the disciplinary proceedings, is sustained. The Writ Appeal is allowed as above. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. tgs K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.1473 of 2004 ---------------------------------------------- J U D G M E N T Dated 25th January, 2010.