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1996 DIGILAW 122 (KER)

Saralamma v. State

1996-03-01

K.NARAYANA KURUP

body1996
Judgment :- Narayana Kurup, J. The petitioner entered Government service as Executive Officer on 6.2.1956. During the relevant period she was the Executive Officer of Karumkulam Panchayat. 2. The first respondent, Director of Panchayats forwarded to the Government, letter No. D3/82718/79 dt. 27.9.1980 along with petitions containing allegations against the petitioner which were forwarded to the Vigilance Department, Trivandrum to conduct a detailed enquiry. A detailed enquiry was conducted by an officer of the Vigilance Department. The subject matter of the allegation is that the petitioner while working as Executive Officer of Karumkulam Panchayat misappropriated a total sum of Rs. 8,120/- from the Panchayat funds showing that she had executed 19 road maintenance works and cleaning of 4 wells within her jurisdiction, whereas no such works were executed. The officer of the Vigilance Department, Trivandrum who conducted detailed enquiry submitted a report to the higher authorities for taking further action against the petitioner. The Government decided to take disciplinary action against the petitioner based on the facts disclosed in the detailed enquiry. Hence the following charges were framed against her: Charge No. 1: Misappropriation of a sum of Rs. 8,120/- from the Panchayat funds showing in the records of the Panchayat that maintenance of 19 roads and cleaning of 4 wells were executed by the petitioner without actually executing the same. Charge No. 2: Manipulation of the minutes books of the Panchayat and preparation of false muster-rolls, measurement book, register of payment and cash book of the Panchayat in respect of the maintenance work relating to 19 road and 4 wells, whereas they were not executed at all and the amount shown to have been spent for the works were misappropriated by the petitioner. Charge No. 3: Cheating the Panchayat President and the Members of the Panchayat by making false entries in the minutes book so as to appear that the petitioner was authorised to execute the above mentioned works. On receipt of the charges and the statement of allegations as evidenced by Ext. P1 the petitioner submitted Ext. P2 written statement of defence dt.11.9.1994 repudiating the charges as baseless. Being not satisfied with the written statement the Government referred the case to the third respondent Vigilance Tribunal as per G. O. (Rt) 68/857Vig. dt. 29,4.1985 for a detailed enquiry under the Kerala Civil Services (Vigilance Tribunal) Rules, 1960. P1 the petitioner submitted Ext. P2 written statement of defence dt.11.9.1994 repudiating the charges as baseless. Being not satisfied with the written statement the Government referred the case to the third respondent Vigilance Tribunal as per G. O. (Rt) 68/857Vig. dt. 29,4.1985 for a detailed enquiry under the Kerala Civil Services (Vigilance Tribunal) Rules, 1960. The third respondent Tribunal accordingly conducted a detailed enquiry in the matter and submitted Ext. P3(b) report to the Government with its findings and recommendations. The Tribunal found that that the petitioner misappropriated a sum of Rs. 7,634/- as against. Rs. 8,120/- as stated in the charge. The Tribunal recommended to award the punishment of permanent withholding of one-third admissible pensions of the delinquent officer- petitioner and to recover from her a sum of Rs. 7,635/-. The Government having considered the enquiry report in detail with reference to the connected records took a provisional decision to accept the finding and recommendation of the Tribunal. Accordingly, a notice was served on the petitioner to show cause why the provisional decision of the Tribunal should not be confirmed. Thereupon, the petitioner submitted Ext. P4 explanation requesting the second respondent to reject the enquiry report of the third respondent. Ext. P4 explanation submitted by the petitioner was examined by the Government and found unsatisfactory. Hence, the Kerala Public Service Commission was consulted which has agreed with the provisional decision of the Government to accept the finding and recommendation of the Vigilance Tribunal. The second respondent- Government having examined the case- in detail once again in the light of the advice rendered by the Public Service Commission confirmed their provisional decision and ordered as per Ext. P5 that one-third of the admissible pension of the petitioner be withheld permanently under R.3 Part III K.S.R. and an amount of Rs. 7,634/- be recovered from her. 3. The prayer in this Original Petition is for the issuance of a writ of certiorari to quash Exhibit P-3(b) report of the third respondent and Ext. P-5 order of the second respondent and for other incidental reliefs. 4. Having heard learned counsel for the petitioner and learned Government Pleader in extension I am satisfied that the petitioner is entitled to partial relief in this Original Petition. 5. The first charge relates to the misappropriation of a sum of Rs. P-5 order of the second respondent and for other incidental reliefs. 4. Having heard learned counsel for the petitioner and learned Government Pleader in extension I am satisfied that the petitioner is entitled to partial relief in this Original Petition. 5. The first charge relates to the misappropriation of a sum of Rs. 8,120/- from the Panchayat funds showing in the records of the Panchayat that maintenance of 19 roads and cleaning of 4 wells were executed by the petitioner without actually executing the work in respect of those maintenance works. According to the petitioner, the maintenance works of those 19 roads and 4 wells were also done along with the maintenance works of three other roads. The prosecution adduced oral evidence of PWs.1 to 9 and documentary evidence Exts. P-1 to P-25. On an examination of the evidence both oral and documentary the Tribunal found that: " 1. The petitioner was the Executive Officer of the Karumkulam Panchayat during the relevant period, namely, from 16.2.1979 to 12.2.1980; 2. The petitioner manipulated records to show that she expended a sum of Rs. 9,402/- by way of payments for the maintenance of 22 road and 4 wells without actually executing the works in respect of those maintenance works; 3. The petitioner did not carry out the maintenance works relating to 18 roads and 4 wells; and 4. The petitioner while working as Executive Officer of Karumkulam Panchayat during the period from 16.2.1978 to 12.2.1980 misappropriated an amount of Rs. 7,634/- from the Panchayat funds showing in the records of the Panchayat that maintenance of roads and cleaning of wells were executed by her." 6. In support of the second charge relating to manipulation of records the Tribunal relying on the oral evidence of PWS 1 to 9 found that the maintenance works in respect of 18 roads and 4 wells were not actually executed by the petitioner; but made false records relating to these maintenance works. According to the Tribunal, there is no reason to disbelieve the oral testimony of PWs 1 to 9. It was also found that resolution Nos. 6 and 7 were subsequently inserted by the petitioner. According to the Tribunal, there is no reason to disbelieve the oral testimony of PWs 1 to 9. It was also found that resolution Nos. 6 and 7 were subsequently inserted by the petitioner. The Tribunal on a discussion of the evidence found that the so called minutes of the meting of the Panchayat was not even seen approved by the Panchayat members and that the signature of the Panchayat President was obtained by the petitioner while he was undergoing treatment in the Medical College Hospital. According to the Tribunal, the oral evidence of the Panchayat Members would clearly show that the petitioner had manipulated the minutes. It was further found that the muster rolls did not reveal the clear address of the workers as seen in the receipts. Accordingly, the Tribunal found that the prosecution has proved beyond doubt that the accused officer has not executed the maintenance works relating to 18 roads and 4 wells and that all entries relating to these maintenance works are false and manipulated ones. 7. Charge No. 3 relates to cheating the Panchayat President and the Members of the Panchayat by making false entries in the minutes books so as to make it appear that the petitioner was authorised to execute the various items of works. The contention of the petitioner was that she was authorised by resolution numbers 6 and 7 to execute the work. As already noted those resolutions were found to be subsequently inserted by the petitioner based on valid evidence. So charge No. 3 also stands approved. 8. In acase where a domestic Tribunal has entered a finding of guilt based on proper evidence, oral and documentary this court exercising extra-ordinary jurisdiction under Article 226 of the Constitution will be reluctant to interfere with such a finding unless itis shown that the finding is perverse or arbitrary or based on no evidence. On a perusal of Exhibit R3(b) enquiry report of the Vigilance Officer, I am satisfied that the Tribunal has adverted to oral and documentary evidence to enter a finding of guilt against a delinquent officer. The finding contained in Exhibit R3(b) cannot be characterised as perverse or arbitrary or based on no evidence, nor can it be said that the Tribunal based its findings on surmises or conjecturers. The finding contained in Exhibit R3(b) cannot be characterised as perverse or arbitrary or based on no evidence, nor can it be said that the Tribunal based its findings on surmises or conjecturers. On receipt of Exhibit R3(b) enquiry report the Government applied their mind to the various aspects of the case and then passed Exhibit P-5 confirming the provisional decision and ordered that one-third of the admissible pension, of the petitioner be withheld permanently under Rule 3 Part III K.S.R. and an amount of Rs. 7,634/- be recovered from her. 9. However, learned counsel for the petitioner has a case that the punishment of withholding permanently one-third of the admissible pension due to the petitioner is rather harsh and disproportionate to the charges levelled against the petitioner. Under the facts and circumstances of this case I am of opinion that the petitioner's submission is well founded. In cases where it is satisfied that the punishment meted out by the domestic Tribunal is disproportionate to the charges proved, this Court while sustaining the charges will be justified in interfering with the order of punishment and substituting a lesser punishment. Permanent withholding of one-third of the admissible pension tantamounts to deprivation of the livelihood of the petitioner, which is an excessive penalty qua the offence, charged and proved. Accordingly while that part of Exhibit P-5 ordering recovery of a sum of Rs. 7,634/- (which the petitioner says, has been paid) is kept intact, I direct that Exhibit P-5 in so far as it directs withholding of one-third of the admissible pension of the petitioner will be reduced to a sum of Rs. 100/- every month. The Original Petition is allowed to the extend indicated above. No order as to costs.