Rajasekharan Pillai v. State — 1996 DIGILAW 200 (KER)

Judgment :- Narayana Kurup, J. The petitioner while working as Head Clerk in the District Court, Ernakulam, was promoted and posted as Sheristadar, Special Court (SPE/CBI) I, Ernakulam. By letter dt.16.12.1986 the District Judge, Ernakulam reported to the High Court some irregularities found on the part of the petitioner in connection with the valuable thondy articles in various civil and sessions cases kept in his custody as the Head Clerk of the District Court before his promotion. Sri. V.E. Varghese, the new Head Clerk posted in the petitioner's vacancy reported for duty on 10.12.1986 and the charge of office was handed over to him by the petitioner. Even so, he did not hand over charge of the valuable thondy articles in his custody to the new Head Clerk. When this was reported to the District Judge, he directed the petitioner to appear before him on 12.12.1986 and hand over charge of the valuable thondy articles to the new Head Clerk. On 11.12.1986, the petitioner submitted are port before the District Judge stating that the valuables were still in his custody, but, on verification of the same, variations were noticed and requested for 10 days time to find out the missing items. On 12.12.1986, the petitioner appeared before the District Judge as directed earlier and handed over in his presence, some of the valuables to the Head Clerk. But the petitioner failed to hand over many other valuable items, mainly gold ornaments kept in his custody. The District Judge asked for the explanation of the petitioner in the matter. In his explanation dt. 6.1.1987, it was submitted that he had not misappropriated the valuables found missing and he was completely innocent in the matter. He also expressed his willingness to replace the items missing owning legal and moral responsibility as the custodian of the missing articles. The District Judge forwarded the explanation of the petitioner to the High Court. The High Court as per O.M. No. D2/56547/86 dt. 27.1.87 accepted the unconditional offer made by the petitioner to replace the missing articles. Pursuant to the aforesaid O.M. dt. 27.1.87 the District Judge issued Ext. P1 memo to the petitioner directing him to replace all the valuable items of property missing from the petitioner's custody while he was working as Head Clerk on or before 6.2.1987 positively. In compliance with the direction contained in Ext. Pursuant to the aforesaid O.M. dt. 27.1.87 the District Judge issued Ext. P1 memo to the petitioner directing him to replace all the valuable items of property missing from the petitioner's custody while he was working as Head Clerk on or before 6.2.1987 positively. In compliance with the direction contained in Ext. P1 the petitioner replaced the missing articles as evidenced by Ext. P2 receipt dt. 17.2.1987 issued by the District Judge. On production of the missing articles, the District Judge got the same verified and tested with the help of a licensed goldsmith and they were found to be of the same description and specification of the original items found missing from the custody of the petitioner and this matter was reported by the District Judge to the High Court as per Ext. P3 letter dt. 23.2.87. On receipt of Ext P3 letter, the High Court took the view that the old ornaments replaced by the petitioner might have been the original ornaments kept as thondy materials so that the petitioner might have produced the very same old ornaments which he has deliberately misplaced. In that view, Ext. P4 charge memo was issued to the petitioner with an accompanying statement of allegations by the Registrar of the High Court and at the same time keeping him under suspension on 8.5.1987. The charges framed against the petitioner by the High Court were as follows: 'T He, while working as the Head Clerk, District Court, Ernakulam purposefully removed and misappropriated the valuable thondy articles concerned in various cases (as shown in the memo of charges) of which he was the custodian as the Head Clerk of the Court and substituted the gold ornaments therein with imitation ornaments in order to mislead and cheat the inspecting officers in periodic checks and later when he had to hand over the charge of the valuable to the new Head Clerk on his promotion and transfer as the Sheristadar of the Spl. Court, SPE/ CBI cases-I, Ernakulam he replaced the currency notes misappropriated by him and some of the limitation ornaments, with new currency notes and new gold ornaments respectively and the remaining ornaments with the very same ones removed by him earlier (as shown in the memo of charges) thereby revealing misappropriation on his part and disproving his claims of innocence in the matter. II. II. His above actions amounted to serious misconduct, abuse of official position and violation of the provisions of R.3 of Kerala Government Servants' Conduct Rules, 1960 in as much as he had not maintained absolute integrity and devotion to duty and it would be against public interest and detrimental to the interest of the Administration to allow such a person to continue in public service". As per the orders of the High Court, the Addl. District Judge was appointed as the enquiry officer. Against Ext. P4 memo of charges the petitioner filed Ext. P5 written statement dt. 12.10.87. On a consideration of the memo of charges and the written statement furnished by the petitioner, the enquiry officer considered the following questions for decision: 1. Whether the accused official was the custodian of the 18 items mentioned in the memo of charges? 2. Whether he had substituted the gold ornaments among the above by imitation items in order to mislead and cheat the inspecting officers? 3. Whether any of the items replaced were the same as the originals removed earlier? 4. Whether there was failure on the part of the accused official to maintain absolute integrity? 5. Whether there was failure to maintain devotion to duty? 6. Whether the accused official is guilty of violating the provisions of the Government Servants Conduct Rules and if so how and to what extent? On completion of the enquiry, the enquiry officer entered findings on all the six points after examining the witnesses and documents produced before him. The enquiry officer found points 2 and 3 in favour of the petitioner, but on points 1,4,5 and 6 he found that there was failure on the part of the petitioner to maintain devotion to duty and absolute integrity. The High Court accepted the findings entered into by the enquiry officer in respect of the charges except as regards misappropriation. As regards misappropriation of the valuable thondy articles, the High Court took the view that the articles were in fact removed by the petitioner during the period 23.10.1986 to 12.12.1986 and misappropriated by him and issued Ext. P6 O.M. dt. 3.9.1988 directing the petitioner to show cause, if any, within 15 days from the date of receipt of Ext. As regards misappropriation of the valuable thondy articles, the High Court took the view that the articles were in fact removed by the petitioner during the period 23.10.1986 to 12.12.1986 and misappropriated by him and issued Ext. P6 O.M. dt. 3.9.1988 directing the petitioner to show cause, if any, within 15 days from the date of receipt of Ext. P6 why the penalty of removal from service as provided in the Kerala Civil Services (Classification, Control and appeal) Rules, 1960 (for short, 'The Conduct rules') should not be imposed on him. In reply to Ext. P6, the petitioner submitted Ext. P8 explanation submitting that on the facts mentioned therein, his case may be considered sympathetically and the proposed action as per Ext. P6 may be dropped and he may be exonerated from the charges and permitted to join service. The High Court, however, rejected Ext. P8 and passed Ext. P9 proceedings dt. 29.7.1989 imposing on the petitioner the penalty of compulsory retirement to take effect from the date of suspension, namely, 8.5.1987. The prayer in this original petition is for the issuance of a writ of certiorari to quash Ext. P9 proceedings and for other incidental reliefs. 2. The main thrust of the petitioner's contention before this court was that he having been exonerated of the main charges by the enquiry officer as per Ext. P7 enquiry report, the second respondent has committed an obvious mistake in differing from the views expressed by the enquiry officer while entering an independent finding of guilt unsupported by any cogent reasons or valid materials. I find considerable force in this submission made by the learned counsel for the petitioner. To recapitulate, the charges framed against the petitioner are: 'The, while working as the Head Clerk, District Court, Ernakulam purposefully removed and misappropriated the valuable thondy articles concerned in various cases (as shown in the memo of charges) of which he was the custodian as the Head Clerk of the Court and substituted the gold ornaments therein with imitation ornaments in order to mislead and cheat the inspecting officers in periodic checks and later when he had to hand over the charge of the valuables to the new Head Clerk on his promotion and transfer as the Sheristadar of the Spl. Court SPE/CBI cases-I, Ernakulam he replaced the currency notes misappropriated by him and some of the imitation ornaments with new currency notes and new gold ornaments respectively and the remaining ornaments with the very same ones removed by him earlier (as shown in the memo of charges) thereby revealing misappropriation on his part and disproving his claims of innocence in the matter. II. His above actions amounted to serious misconduct, abuse of official position and violation of the provisions of R.3 of Kerala Government Servant's Conduct Rules, 1960 in as much as he had not maintained absolute integrity and devotion to duty and it would be against public interest and detrimental to the interest of the Administration to allow such a person to continue in public service". 3. The various points examined by the enquiry authority and its conclusions thereon are the following: 1. Whether the petitioner was the custodian of the various items mentioned in the memo of charges? Since the petitioner's predecessor had handed over the valuables to the petitioner, it was found that the petitioner was the custodian of the valuables. 2. Whether the petitioner had substituted the gold ornaments by imitation items in order to mislead and cheat the inspecting officers? On this point, mere was no reliable evidence to show that the items removed were either bogus or imitation articles. None of the prosecution witnesses had stated mat they found any imitation jewellery in the chest at any time. The Section Officer of the High Court who inspected the District Court and verified the valuables item by item had certified on 23.10.1986 that they were found in tact. That apart, si nee the District Judge who permitted the petitioner to replace the items having given him full liberty for it without any manner of supervision or even taking note of any items replaced enabling him to freely remove whatever items he wanted to remove, will not be justified in charging him at last with the allegation of substitution of ornaments. (3) Whether any of the items replaced were the same as the originals removed earlier? On this point, none of the witnesses could assert that the substituted six items, which looked like old, were the originals themselves. (3) Whether any of the items replaced were the same as the originals removed earlier? On this point, none of the witnesses could assert that the substituted six items, which looked like old, were the originals themselves. On the other hand, D. W.1 stated that some of his ornaments were given to the petitioner to be pledged for purchase of new items and D. W.5 that some old ornaments belonging to his wife were given to the petitioner to be used for substitution. The alleged owners of the ornaments were not available for examination to verify whether the items replaced were the originals or not. Even the person who was supposed to have manufactured some of them could not state whether those were made and supplied by him or not. Therefore, the petitioner was found not guilty of these allegations. (4) Whether there was failure on the part of the petitioner to maintain absolute integrity? By his explanation dt.10.12.1986, the petitioner tried to make believe the District Judge that the deficiency in the valuables was noticed by him only on 10.12.1986 when he verified them in order to hand over them to the new Head Clerk. However, the evidence revealed that he was aware of the factum of missing at least two weeks prior to that date, but did not report it properly. Thus, the petitioner attempted to misrepresent the fact and mislead the official superior and hence, there was failure to maintain absolute integrity on the part of the petitioner. (5) Whether there was failure to maintain devotion to duty? On this point, it was found that there was serious laches on the part of the petitioner in dealing with the ornaments in question. On 23.10.1986, when the physical verification was done by the Section Officer of the High Court, all the valuables were i n tact in which case the ornaments would have disappeared after that date. The evidence adduced has shown that the petitioner was the sole custodian of the chest of the valuables and no other person had access to it, and the responsibility for their disappearance is solely on the petitioner. If the missing of the articles was without his knowledge, then also it has to be held that he had not taken proper care to avoid the loss. If the missing of the articles was without his knowledge, then also it has to be held that he had not taken proper care to avoid the loss. Thus, there was failure to maintain devotion to duty, which is expected, of a responsible officer like the petitioner. From the aforesaid discussion, it becomes clear that there is no valid evidence to find the petitioner guilty of the major charges of misappropriation and substitution levelled against him. As already noted, the enquiry officer raised six points regarding the allegations of misconduct. Items 4 to 6 deal with maintenance of integrity, devotion to duty and violation of the provisions of Conduct Rules. The enquiry officer found these points against the petitioner. The first point as to whether the petitioner was the legal custodian of the material objects was also found against him. But, the basic charge, namely, points 2 to 3 indicating substitution of the missing ornaments by the very same old ornaments to inter misappropriation was not found proved by the enquiry officer. If only these two points were proved against the petitioner, can the charge of misappropriation be brought home to the delinquent. The enquiry officer after meticulous consideration of the evidence adduced in the enquiry, categorically found that there is no evidence that the petitioner substituted the gold ornaments with imitation items in order to mislead and cheat the inspecting officers. He also found that there is absolutely no evidence to show that any of the replaced items were the original items alleged to have been removed earlier. In this connection, a reference to paragraph 48 of Ext. P7 is very pertinent: In Ext. P7 it is stated as follows: "I have already found under the relevant points that the accused official has failed to maintain absolute integrity and devotion to duty. A part of charge No. II thus stands proved. However, there is no proof available with regard to charge No. I. Misappropriation, attempt to cheat superiors by putting imitation items in the chest and use of misappropriated items themselves to substitute the mussing items alleged in Charge No. I stands unproved by any reliable evidence or clinching circumstances. There is no preponderance of evidence against the accused on those counts". 4. There is no preponderance of evidence against the accused on those counts". 4. In the light of the categoric finding entered in to by the enquiry officer exonerating the petitioner of the major charges, the second respondent was not justified in ignoring the said findings and substituting the same with his own findings of guilt against the petitioner without any sufficient reason. All that is stated in Ext. P8 is that the enquiry of ficer missed the crucial point regarding the charge of misappropriation. In one laconic sentence, the second respondent observed that there is no escape from concluding that the petitioner had misappropriated the gold ornaments since he subsequently produced the original ornaments. This conclusion drawn by the second respondent is not warranted by the evidence on record. The petitioner himself has given adequate explanation as to the circumstances under which he was compelled to produce some old ornaments vide par a 4 of Ext. P5. That apart, if the second respondent had a case that there is a case of misappropriation, the second respondent ought to have put the petitioner on notice of the same and his explanation considered. That having not been done, I am of the view that the impugned order evidenced by Ext. 9 passed by the second respondent cannot be legally sustained. It is trite law that when the disciplinary authority does not accept the findings of the enquiry officer which may be in favour of the delinquent and proposes to impose a penalty on the delinquent officer, he should give reasons as to why he differs from the conclusions of the enquiry officer. Obviously no reasons have been stated by the second respondent except to state that the enquiry officer missed the crucial point regarding the charge of misappropriation. The order of the second respondent evidenced by Ext. P9 is therefore, vitiated by non-application of mind and absence of evidence. Normally, this Court will be loath to interfere with findings of fact arrived at in disciplinary proceedings, but where the authorities concerned have reached conclusions on no evidence and without proper appreciation of the facts and circumstances of the case, this Court would interfere with such findings and grant appropriate relief to the party concerned. According to me, this is a fit case in which the petitioner is entitled to get relief from his court. According to me, this is a fit case in which the petitioner is entitled to get relief from his court. As already noted, the petitioner stands exonerated of the major charges levelled against him. The only charge proved against him is dereliction of official duty in violation of R.3 of the Conduct Rules. The question then is whether the punishment of compulsory retirement from service can be awarded for such a misconduct. I do not think that on the facts and circumstances disclosed, the second respondent will be justified in imposing the punishment of compulsory retirement on the petitioner. Such a punishment will be completely disproportionate to the gravity of the charges proved against the petitioner. Then the question is can this court straight away order reinstatement in this proceedings? But for the long lapse of time involved in this case, this Court would have directed the second respondent to reconsider the matter afresh in the light of the observations contained in this judgment. Having regard to the fact that the petitioner was placed under suspension way back in 1987,1 am of the view that interest of justice requires that appropriate directions be issued by this court itself without any further delay. In a case where the termination order is found to be invalid, payment of back wages is the rule unless exceptional circumstances are brought to the notice of the Court disentitling the employee for back wages for the period he was illegally kept out of employment. Since no such exceptional circumstances have been brought out, I am of the view that the petitioner is entitled to a direction for reinstatement with back wages, but subject to a reduction of 25% on account of his having been found guilty of dereliction of duty under R.3 of the Conduct Rules. In the result, I allow this original petition and direct that the petitioner shall be reinstated in service forthwith without continuity of service and with a slash of 25% back wages. Original Petition is allowed as above. No order as to costs.