IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 33437 of 2009(Y) -------------------------- PETITIONER(S): ------------------ K.C.VASU, GRADE ASSISTANT SUB-INSPECTOR (HC 950) KATTAPPANA POLICE STATION, KATTAPPANA, IDUKKI. BY ADV. SRI.ELVIN PETER P.J. SRI.POOJA SURENDRAN RESPONDENT(S): -------------------- STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM GOVT.PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 33437 OF 2009 (Y) ===================== Dated this the 20th day of November, 2009 J U D G M E N T The petitioner was working as a Head Constable at Nedumkandam Police Station. 2. Disciplinary proceedings were initiated against him on the allegation that the petitioner abused his position as a public servant and committed criminal misconduct by demanding bribe of Rs.2,000/- from one Shri.V.T.Saseendran, father of Shri.Rajeev, an accused in Crime No.10/2002 and threatened him that on failure to pay the bribe, his son will be tortured, accepted Rs.200/-, and that as a result thereof, Shri.Saseendran committed suicide. Ext.P1 is the memo of charges and Ext.P2 is the reply submitted by the petitioner. 3. Subsequently, by Government Order dated 04/07/2005, the matter was referred to the Vigilance Tribunal, Thiruvananthapuram, for enquiry as provided under the Kerala Police (Departmental Inquiries, Punishment and Appeal) Rules, 1958. Before the Tribunal, witnesses were examined and Exts.P3 to P9 are the depositions of P.Ws. 3, 4, 6, 7, 8, 14 & 15. Evidence WPC 33437/09 :2 : was closed, parties were heard and along with its report, the Vigilance Tribunal submitted Ext.P10 recommendation to the Government, recommending to impose a penalty of withholding of two increments without cumulative effect. Accepting Ext.P10 recommendation, Ext.P11 show cause notice was issued to the petitioner, which states that a copy of the Vigilance Tribunal report is appended to it. On receipt of Ext.P11, the petitioner submitted Ext.P12 reply to the show cause notice, pleading innocence and requesting for exoneration from the charges. Finally, the Government issued Ext.P13 order dated 13/07/2009 imposing a penalty of withholding two increments with cumulative effect. Challenge in this writ petition is against Ext.P13 order. 4. Contentions raised by the learned counsel for the petitioner are that this is a case of no evidence, that a copy of the enquiry report was not served on the petitioner and that hence the law laid down by the Apex Court in Managing Director, ECIL, Hyderabad etc. v. B.Karunakar etc. (AIR 1994 SC 1074) has been violated. Lastly it was also contended that the findings of the Vigilance Tribunal are based entirely on hearsay evidence and hence is vitiated. WPC 33437/09 :3 : 5. As already stated, several witnesses have been examined, and Exts.P3 to P9 are the depositions of P.Ws. 3, 4, 6, 7, 8, 14 & 15. A reading of these evidences show that except PW 8, other witnesses supported the case against the petitioner and PW 8 turned hostile. In the chief examination, all these witnesses have deposed that the deceased committed suicide only because of the misconduct of the petitioner, the details of which are disclosed in the depositions, which is also reiterated in the memo of charges. 6. However, in the cross-examination, certain contradictions have been brought out with reference to the statements given by the witnesses to the Investigating Officer under Section 162 of the Code of Criminal Procedure. First of all, the evidence available before the Tribunal have been appreciated by the Tribunal and it is on such appreciation of the evidence that the Tribunal has concluded on the guilt of the petitioner. Unless this is a case of no evidence, where the conclusion of the Tribunal can be said to be a perverse one, this Court exercising its power under Article 226 or 227 of the Constitution of India will not be entitled to sit in judgment over the factual conclusions arrived at WPC 33437/09 :4 : by the Tribunal on appreciation of the evidence available before it. In this case, having regard to the evidence that was available before the Tribunal, as disclosed from Exts.P3 to P9, I cannot say that this is a case of no evidence or that the conclusions of the Tribunal are perverse. If so, the first plea of the learned counsel for the petitioner that this is a case of no evidence is only to be rejected. Further, the contradictions pointed by the petitioner are also not on material particulars and do not warrant rejection of the evidence. 7. The other contention raised by the learned counsel for the petitioner is that before the enquiry report was accepted by the disciplinary authority, the delinquent was not furnished a copy of the report submitted by the Vigilance Tribunal and that he was not allowed to make his representation against the findings in the enquiry report. 8. From the materials produced, it would appear that before the issuance of Ext.P11 show cause notice proposing punishment, the enquiry report was not served on the petitioner. According to the learned counsel, this is in violation of natural justice and for that reason, the punishment imposed deserves to WPC 33437/09 :5 : be interfered with. He heavily relied on the judgment in Managing Director, ECIL, Hyderabad etc. v. B.Karunakar etc. (AIR 1994 SC 1074). However, a reading of this judgment itself would show that failure to furnish a copy of the report will not result in the automatic invalidation of the proceedings against a delinquent unless the Court is satisfied that prejudice has been caused to the delinquent. In a case, where violation of the principles of natural justice is pleaded, it is up to the delinquent to plead and prove that because of violation of principles of natural justice, prejudice has been caused to him. ECIL judgment (Supra) itself has been subsequently explained by the Apex Court in several judgments. Haryana Financial Corporation and Another v. Kailash Chandra Ahuja (2008(9) SCC 31) is one such judgment, wherein paragraph 44 reads as under :- “44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show “prejudice”. Unless he is able to show that non-supply of report of the inquiry officer has resulted in WPC 33437/09 :6 : prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.” 9. The averments in the writ petition do not disclose even a plea that due to non supply of report, any prejudice has been caused to the petitioner and therefore in the absence of proof of prejudice, this plea is only to be rejected. 10. Further contention raised by the counsel for the petitioner is that although he asked for a copy of the enquiry report by invoking the provisions of the Right to Information Act, in Ext.P14, stating that a copy of the report has already been furnished, his request has been rejected. In so far as this plea is concerned, I should state that in Ext.P11 show cause notice, it is stated that copy of the report of the Vigilance Tribunal is appended. If the report was not appended as stated in the show cause notice, the first opportunity available for the petitioner to raise that plea was on the occasion when he filed his reply to Ext.P11 show cause notice. Ext.P12 is the reply filed by him, and there is no averment in Ext.P12 to the effect that the report of the WPC 33437/09 :7 : Vigilance Tribunal was not furnished to him along with Ext.P11 show cause notice. If that be so, the belated contention that a copy of the enquiry report was not furnished and that therefore the statement in Ext.P14 that a copy has already been furnished is incorrect, cannot be accepted and are only to be rejected. 11. The other contention that was urged by the learned counsel for the petitioner is that a reading of Ext.P10 recommendation of the Vigilance Tribunal itself show that the Tribunal has relied entirely on hearsay evidence. According to him, hearsay evidence is inadmissible in law and therefore the Tribunal could not have relied on the same. However, the enquiry in question is only into the misconducts alleged against the petitioner in Ext.P1 charge sheet that was issued to him. Unlike a criminal case where the proceedings are regulated by the provisions of the Evidence Act and other statutes, all that is required to be complied with in a disciplinary proceedings is natural justice by ensuring fairness and reasonable opportunity to the delinquent. There is absolutely no prohibition either in the rules of fairness or natural justice governing disciplinary enquiry or elsewhere, preventing the enquiry officer or disciplinary WPC 33437/09 :8 : authority from relying on even hearsay evidence. In State of Haryana v. Rattan Singh (1977(2) SCC 491), it has been held that it is well settled that in a domestic enquiry the strict and sophisticated rules of evidence may not apply and that all materials which are logically probative for a prudent mind are permissible. It is held that “there is no allergy to hearsay evidence provided it has reasonable nexus and credibility”. This principle has been reiterated in the subsequent judgments in J.D.Jain v. Management of State Bank of India (1982(1) SCC 143) and Workmen of Balmadies Estates v. Management, Balmadies Estates and others (2008(4) SCC 517). Petitioner also has not shown me any judgment which supports his plea that hearsay evidence is inadmissible in a disciplinary proceedings. In such circumstances, I see absolutely no merit in this contention as well. 12. As already stated, the charge against the petitioner was that he abused his official position as public servant and committed criminal misconduct by demanding bribe of Rs.2,000/- from deceased Sri.Saseendran threatening that his son Sri.Rajeev, accused in Crime No.10/02 of Nedumkandam Police Station would WPC 33437/09 :9 : be tortured if bribe was not given and accepted Rs.200/- leading to suicide of Sri.Saseendran. The misconduct was held proved. Despite the gravity of the misconduct, the punishment recommended and imposed on the petitioner is barring of two increments and that too without cumulative effect. Having regard to the nature of the misconduct proved against the petitioner, by any standards, I cannot hold that this punishment is a disproportionate one warranting interference in a writ proceedings. No other points are raised. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp