IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 36185 of 2007(G) -------------------------- PETITIONER(S): --------------- K.MURALIDHARAN, S/O.M.BHASKARA MENON, A-9, `BHASKARA', SANTHI COLONY, CHANDRA NAGAR, PALAKKAD. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE MEMBER SECRETARY, THE KERALA STATE POLLUTION CONTROL BOARD, PATTOM PALACE P.O., THIRUVANANTHAPURAM. 3. THE CHAIRMAN, THE KERALA STATE POLLUTION CONTROL BOARD, PATTOM PALACE P.O., THIRUVANANTHAPURAM. 4. A.K.SURENDRAN, SENIOR ENVIRONMENTAL ENGINEER, PALAKKAD. ADV. SRI.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOAR FOR R2 & R3 GOVERNMENT PLEADER SRI.DILIP MOHAN, FOR R1 SRI.T.A.SHAJI FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.8.2009, ALONG WITH WPC NO. 36205 OF 2007 THE COURT ON 9.10.2009 DELIVERED THE FOLLOWING: W.P.(C).No. 36185/07. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER IN CRL.M.P.NO.750/2006 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE DTD.28.12.06. P2. COPY OF THE ORDER IN W.P.C.NO.19893/05 OF THIS COURT. P3. COPY OF THE FINAL REPORT DTD.31.1.08 FILED BY THE VIGILANCE AND ANTI CORRUPTION BUREAU, PALAKKAD. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE MINUTES OF THE MEETING OF SUSPENSION REVIEW DTD.14.1.03. “B. COPY OF THE LETTER DTD.4.3.03. R4A. COPY OF THE JUDGMENT IN W.P.C.NO.4388/07 OF THIS COURT. “B. COPY OF THE ORDER DTD.3.4.03 OF THE CHAIRMAN, POLLUTION CONTROL BOARD. “C. COPY OF THE COMMUNICATION DTD.19.6.03 OF THE DIRECTOR TO THE GOVT. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).Nos.36185 of 36205 of 2007 ================== Dated this the 9th day of October, 2009 J U D G M E N T These two writ petitions are filed by de facto complainants in two criminal cases against the 4th respondent, under the Prevention of Corruption Act, complaining that despite the pendency of the criminal cases, instead of keeping him under suspension, the 4th respondent, an engineer of the Kerala State Pollution Control Board, is rewarded not only by revocation of his suspension, but also by promotion, and is now posted at Palakkad where one of the petitioners is running an industry, in relation to compliance of pollution laws of which only he had filed the complaint under the Prevention of Corruption Act against the 4th respondent. According to the petitioners, in connection with compliance with the pollution laws in respect of their industries, the 4th respondent demanded bribe from them, which prompted them to complain to the police, who laid traps in both cases and in one caught the 4th respondent and in the other his abettors red handed. Despite the same, the Vigilance initially chose to file refer reports in both cases, forcing the petitioners to approach this court and pursuant to orders of this Court only, criminal cases have been registered, which are pending. Although initially after the registration of the first crime, the 4th respondent was kept under suspension, he was later reinstated W.P.C.36185/07 & cc. 2 and was rewarded with a promotion also, in spite of the fact that the service rules prohibit promotion of an employee against whom criminal proceedings are pending. On promotion, he was also posted at the place where one of the petitioners has his factory where the cause of action in respect of one of the two criminal cases arose. The petitioners, therefore, seek the following prayers. W.P.(C).No.36185/2007: “(i) issue a writ of Mandamus or any other appropriate writ, order or direction, directing respondents to place the 4th respondent, under suspension forthwith in the interest of public at large. (ii) issue such other writ, order or appropriate direction as this Hon'ble Court may deem fit and proper in the facts and Circumstances of the case.” W.P.(C).No. 36205/2007: “(i) issue a writ of Mandamus or any other appropriate writ, order or direction, directing respondents to place the 4th respondent who is the accused in RC No.21(A)/05 of CBI/SPE/Kerala, under suspension forthwith in the interest of public at large. (ii) issue such other writ, order or appropriate direction as this Hon'ble Court may deem fit and proper in the facts and Circumstances of the case.” 2. The respondents do not dispute the facts that the criminal cases are pending, that although he was suspended, he was later reinstated and that he was promoted to a higher post. Their contention is that the petitioners have no locus standi to file these writ petitions. According to them, the petitioners are not in any way affected by the reinstatement and promotion of the 4th respondent and they also have W.P.C.36185/07 & cc. 3 no right to file a public interest litigation since it is settled law that no public interest litigation would lie in respect of service matters. The Pollution Control Board would take the stand that the 4th respondent being the senior-most engineer, his promotion is routine and proper. 3. The petitioners would reply that as the de facto complainants in the criminal cases, they are affected persons in so far as by reinstating, promoting and posting the 4th respondent at the place where the cause of action for the criminal case arose, the 4th respondent would be in a position to influence witnesses and manipulate evidence, which would directly affect them also. 4. I have considered the rival contentions in detail. 5. Since, the facts disclosed in these writ petitions point at the appalling attitude of the Government and the Pollution Control Board in the matter of dealing with allegations of corruption against an engineer in the Pollution Control Board service, I deem it appropriate to state here the facts leading to the two criminal cases against the 4th respondent in some detail, which are narrated graphically in the judgments of this Court in the writ petitions filed by the petitioners against the orders dropping proceedings against the 4th respondent, which have been made available for my perusal by the counsel for the petitioners. 6. The petitioner in W.P.(C).No. 36185/2007 is the proprietor W.P.C.36185/07 & cc. 4 of a soap factory at Palakkad. He filed a complaint to the vigilance that the 4th respondent demanded bribe of Rs.3000/- from the petitioner for purportedly reducing water cess payable by the petitioner. On the said complaint, the vigilance laid a trap and the 4th respondent was caught red handed on 11.12.2000 accepting bribe from the petitioner. A crime was registered as V.C.No.21/2000 by the Vigilance and Anticorruption Bureau, Palakkad, under the Prevention of Corruption Act and the same was investigated. According to the petitioner, while he was expecting filing of charge sheet against the 4th respondent, further investigation was ordered by the Director of Vigilance and one Sri.Balakrishna Kurup, S.P. Special Cell, of the Vigilance started questioning the witnesses in the case again, including the petitioner and wanted the petitioner to settle the case under threat of filing false cases against the petitioner and his son. This attitude of the S.P., prompted the petitioner to approach this Court by filing O.P.No. 8412 of 2003 for quashing the further investigation. During the pendency of the said writ petition, the said Sri.Balakrishna Kurup filed a final report in the case, stating that the case was registered on a mistake of fact. The criminal court accepted the final report and dropped further proceedings in the case. Therefore, the petitioner got the writ petition amended including a prayer for quashing that final report and the order of the Vigilance Court. This court by judgment dated 12.10.2006 W.P.C.36185/07 & cc. 5 reported in Muralidharan v. State of Kerala , ILR 2006 (4) Kerala 512, quashed the order of the Vigilance Court accepting the final report, directing the Enquiry Commissioner and the Special Judge, Kozhikode, to reconsider the final report and to pass fresh orders. Pursuant thereto, the Special Judge passed Ext.P1 order, in Crl.M.P.No.750/2006, rejecting the final report, holding that there are sufficient materials on record to proceed against the 4th respondent under Section 7 of the Prevention of Corruption Act. That criminal case is pending. 7. The petitioner in W.P.(C).No. 36205/2007 is one of the directors of M/s.Canus Granites Pvt. Ltd., a company running a granite crusher unit. The company applied to the Pollution Control Board for consent to establish and operate two newly purchased crusher machines, which was declined. The appeal before the appellate authority having been unsuccessful, the company approached this Court by filing W.P.(C).No. 1759/2005, in which, by judgment dated 8.4.2005, this Court directed the 4th respondent herein, to conduct a trial run of the machines and to grant consent, if there is no pollution. The 4th respondent, who was the engineer in charge, on 18.5.2005, demanded Rs.15 lakhs from the petitioner, since he requires money for securing admission to his daughter for M.B.B.S. in Jubilee Mission Medical College, Trichur, failing which he threatened to give a report W.P.C.36185/07 & cc. 6 against the company. The petitioner informed this to the Central Bureau of Investigation, Ernakulam. The Supdt. and Dy. Supdt. of C.B.I. at Thrissur, directed the petitioner to contact the 4th respondent over phone in their presence, which he did, using his mobile phone after switching on its loud speaker. After bargaining for some time, as instructed by the CBI officers, the petitioner agreed to pay Rs.15 lakhs in three instalments. The C.B.I. officers heard the conversation through the loud speaker. Later, since the 4th respondent was not within their jurisdiction, the C.B.I. officers contacted the Director of Vigilance And Anticorruption Bureau. As instructed, the petitioner met Mr.Mohanan, Dy. S.P. Vigilance and Anticorruption Bureau, Thrissur, on 25.5.2005, who furnished the petitioner with a voice recorder, after turning on which, the petitioner met the 4th respondent, who advised the petitioner to approach either Mr.Gopalan or Mr.Rajendran at Sreebhavan Hotel at Ollur, to identify them with a secret code and to hand over the money to one of them. That conversation was recorded and handed over to the Dy. S.P., VACB. On 27.5.2005 the petitioner went to the hotel with the Dy.S.P., where he could not meet Mr.Gopalan. He contacted the 4th respondent over phone, who directed the petitioner to hand over 2 instalments of Rs.5 lakhs to Mr.Gopalan and gave the mobile phone number of Gopalan. At 9.30 a.m. on 28.5.2005, when the trial run started, the 4th respondent told the W.P.C.36185/07 & cc. 7 petitioner that if Mr.Gopalan did not confirm receipt of the money, the trial run would be stopped. When the petitioner expressed his inability to pay the whole amount, the 4th respondent directed him to pay the available money to Mr.Gopalan or Mr.Rajendran. The petitioner went to the office of the Dy.S.P. V.A.C.B., and lodged a formal complaint. The Dy. S.P. laid a trap, Rs.2 lakhs smeared with phenolphthalein powder was handed over to Mr.Rajendran by the petitioner and the same was recovered from him by the officers of the VACB. The phenolphthalein test was positive. The petitioner's mobile phone, in which the conversation between the petitioner and the 4th respondent was recorded was also handed over to the Dy.S.P. An F.I.R. was registered on 28.5.2005. Suspecting foul play by the VACB, the petitioner filed W.P.(C).No.19757/2005, seeking a C.B.I. investigation, which was ordered by a Single Judge of this Court by judgment dated 15.7.2005, which was set aside by a Division Bench, on the ground that the 4th respondent was not heard before passing that order, directing the Single Judge to hear the matter afresh. The writ petition again came up before another learned Single Judge, who by judgment dated 24.2.2006, after hearing the 4th respondent also, directed the C.B.I. to take over the investigation, accepting the contention of the petitioner that the investigation by the VACB is not proceeding in the right direction, after referring also to the fate of the earlier case against the W.P.C.36185/07 & cc. 8 4th respondent at the hands of the VACB. Pursuant to the same, the C.B.I. has charge sheeted the 4th respondent, which case is also pending. 8. The petitioner contends that the other officers of the Pollution Control Board have been hostile to the petitioner and have been putting obstacles to the petitioner's getting consent from the Board in respect of which he had to file several writ petitions before this Court. It appears that the 4th respondent was suspended by order dated 13.12.2000, but reinstated by order dated 2.4.2003. While one of the writ petitions, viz., W.P.(C).No.19893/2005 filed by the petitioner, came up for hearing on 24.10.2005, by Ext.P2 order, a learned Single Judge of this Court expressed the opinion that “it remains a riddle why the 2nd respondent, who is an accused in two corruption cases is still allowed to remain in service” and directed the Pollution Control Board to explain why so far they have not suspended the 4th respondent. Despite the same, nothing happened. The 4th respondent was thereafter promoted as Senior Environmental Engineer in a vacancy which arose on 1.7.2007 and was posted at Palakkad. It is under the above circumstances the petitioners have approached this Court. 9. Both the Government and the Kerala State Pollution Control Board join the 4th respondent, in vehemently opposing these W.P.C.36185/07 & cc. 9 writ petitions, by filing counter affidavits. Originally in the counter affidavit of the State in W.P.(C).No. 36185/2007, regarding the reinstatement of the 4th respondent it was stated thus:- “The accused was already suspended from service immediately after the registration of the case and later he is learned to have been reinstated in service”, giving an impression that the Government had nothing to do with the reinstatement. But in the counter affidavit of the member secretary of the Pollution Control Board, it was stated as follows:- “The Government accepted the report of Vigilance and Anticorruption Bureau to the same effect and instructed the Board to reinstate Sri.A.K.Surendran. Accordingly, he was reinstated”. Since the Government and the Board wanted the other to shoulder the responsibility for having reinstated the 4th respondent, by order dated 3.8.2009. I directed as follows: “Post on 10.8.2009, within which time, the learned Government Pleader shall place on record a counter affidavit stating as to why in spite of the fact that the Government had directed the Pollution Control Board to reinstate the 4th respondent, in the counter affidavit filed by the State, they had not categorically said so.” Pursuant thereto, the Government has filed a counter affidavit dated 6.8.2009, admitting that as recommended by the suspension review committee, which met on 14.1.2003 [Ext.R1(a)], by order dated 4.3.2003 [Ext.R1(b)] the Government directed reinstatement of the 4th respondent and apologising for not stating the same in the earlier W.P.C.36185/07 & cc. 10 counter affidavit. 10. Neither Ext.R1(a) nor Ext.R1(b) states any reason for reinstating a person against whom a crime has been registered under the Prevention of Corruption Act, in respect of which, a criminal case is pending. In fact it was after Exts.R1(a) and R1(b) pursuant to the directions of this Court, charge sheet has been filed in the first case. Further thereafter more distressing things have happened and there was an attempt to sabotage the case, which was prevented by the intervention of this Court. A further, more serious, case under the Prevention of Corruption Act has been registered against the 4th respondent, to sabotage which also there was an attempt, which prompted this Court to direct handing over of the investigation of the case to the C.B.I. Yet it is surprising that the Government and the Pollution Control Board did not find it necessary to suspend the 4th respondent, even despite Ext.P2 order of this Court. 11. It is still more surprising that instead, the 4th respondent has been rewarded with a promotion, that too, against statutory rules. Initially the counsel for the Pollution Control Board took the stand that the 4th respondent being the senior-most engineer, his promotion is in order, which prompted this Court to direct production of the rules applicable to the officers of the Board in this regard, which have been produced by the counsel. The relevant Rules are the Kerala State W.P.C.36185/07 & cc. 11 Pollution Control Board General and Special Service Rules published in the Official Gazette on 11.7.1989. The Rule regarding promotion of officers against whom criminal proceedings are taken for grave criminal offences is Rule 23(6) thereof, which reads thus: “23. Promotion.- ...... xxx xxx xxx xxx (6) The 'Select list' shall be prepared from among the eligible officers on the basis of merit and ability, seniority being a consideration only when all the qualifications are equal. The number of names to be included in the 'Select list' shall be same as the estimated number of vacancies likely to arise during the eyer. Supplemental lists may be prepared in case the lists already prepared got exhausted before the close of the year to which they relate so as to obviate the necessity for convening meetings of Departmental Selection Committee at short notice or keeping of posts unfilled and thereby causing administrative inconvenience. Persons included in the 'Select list' shall be ranked in the order of their seniority in the lower category or grade. Note:- (1) Officers under suspension and officers against whom criminal or departmental proceedings are taken for grave criminal offences or for imposition of a major penalty, as the case may be, should not be included in the select list. But the suitability of such an officer for promotion should be assessed at the relevant time by the Departmental Promotion Committee and a finding reached whether he would have been recommended/ selected for promotion. The findings as to the suitability and the place in the select list of the officer should be recorded separately and attached to the proceedings of the Departmental Promotion Committee in a sealed cover. The proceedings of the Departmental Promotion Committee need only contain a note 'the findings are in the attached sealed cover”. The authority competent to fill the vacancy should be separately advised to fill up vacancy only on temporary basis. (2) If the officer concerned is completed exonerated and if the vacancy which has been filled up on temporary basis is still in existence he will be promoted to that vacancy, the arrangements made previously being reversed. If such a vacancy ceases to exist at the time W.P.C.36185/07 & cc. 12 of exoneration, he will be promoted in the first vacancy that may be available in future if he is found fit for promotion at that time. If the exoneration is not complete, the Departmental Promotion Committee may decide each case on merit. (3) Officers whose names are included in the 'Select List' but who are subsequently placed under suspension or against whom Criminal proceedings/Departmental proceedings of the type referred to in Note (1) above, have been initiated should not be promoted on the basis of their inclusion in the select list until they are completely exonerated of the charges, he will be promoted on the basis of his position in the select list, to the post which has been filled on a temporary basis. If the exoneration is not compete, the Departmental Promotion Committee may consider such case on its merits. (4) A censure or warning awarded to an officer need not be taken into account while considering his case for promotion under Note (2) and (3) above.” (underlining supplied) The two criminal cases referred to above are still pending. Despite the same, the Government and the Board do not find anything wrong in promoting the 4th respondent, contrary to the statutory rules and have the temerity to argue before this Court in support of such illegal promotion taking the technical plea of locus standi. In this connection I may note the decision of the Supreme Court in Krishnakant Raghunath Bibhavnekar v. State of Maharashtra and others, AIR 1997 SC 1434, in which, laying down the procedure to deal with a person who has been acquitted of grave criminal charges, the Court held thus: “4. ...... We find no force in the contention. It is true that when a Government servant is acquitted of offences, he would be entitled to re- instatement. But the question is: whether he would be entitled to all consequential benefits including the pensionary benefits treating the W.P.C.36185/07 & cc. 13 suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given a full faith and credit to public acts. Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or fool-proof. The act of reinstatement sends ripples among the people in the office/locality and sows (sends) wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts, would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to the prosecution of him for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges; whether the Government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits? In our considered view, this grant of consequential benefits with all back-wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty, (and on payment of subsistence allowance etc.) Rules 72(3), 72(5) and 72(7) of the Rules give a discretion to the Disciplinary Authority. Rule 72 also applies, as the action was taken after the acquittal by which date rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal, he was reinstated into service, he would not be entitled to the consequential benefits. As a consequence, he would not be entitled to the benefits of nine increments as stated in para 6 of the additional affidavit. He is also not entitled to be treated as on duty from the date of suspension till the date of the acquittal for purpose of computation of pensionary benefits etc. The appellant is also not entitled to any other consequential benefits as enumerated in paragraphs 5 and 6 of the additional affidavit.” W.P.C.36185/07 & cc. 14 Although that decision was in respect of acquittal of the employee in the criminal case, the observations therein are equally applicable toe High Court of Kerala case at hand. 11. The whole history of the case, without doubt, is a standing testimony of the enormous clout the 4th respondent has in the higher echelons of power, regardless of political colour of the Government. The 4th respondent, who