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Kerala High Court · body

2005 DIGILAW 101 (KER)

P. N. Bhoovanachandran v. State of Kerala

2005-02-09

K.M.JOSEPH

body2005
Judgment :- The petitioner challenges the imposition of the penalty of compulsory retirement from service. The said penalty was imposed when he was working as Deputy Tahsildar in the Revenue Department. The petitioner worked as Village Officer at Kanjirappally. The charge against the petitioner in the disciplinary proceedings was that while working as Village Officer, Kanjirappally during the year 1993, the petitioner by abusing his official position as a Government servant, demanded and accepted Rs.1,000/- as illegal gratification from one Mr. T.S. Muhammed Basheer as a motive for sending a report recommending issue of a solvency certificate on his application, to the Tahsildar, Kanjirappally and thereby failed to maintain absolute integrity and devotion to duty. Petitioner was served with the said charge with Statement of Allegations on 2.7.1997. A detailed enquiry was held by the Vigilance Wing under the Kerala Civil Service Vigilance Tribunal Rules, 1960. 2. Before the tribunal, PWs.1 to 6 were examined for the prosecution and Exts.P1 to P7 were marked. Exts.D1 to D5(a) were also marked. Also the file of the Taluk Officer Kanjirappally was marked as Ext.C1. The tribunal, on the basis of the appreciation of the evidence, came to the conclusion that the petitioner is guilty of the charge leveled against him. PW1 is the complainant himself. As regard the evidence of PWs.3 and 4, the tribunal remarks that it is hearsay in nature, but it is stated that being an enquiry, the same need not be discarded on that ground alone. It is also found that there are no major contradictions to discard their evidence. Ext.D3, if accepted, would show that it is a report given by the petitioner on 7.9.1993. Ext.D4 would show that the Revenue Inspector in turn has signed the Report on 10.9.1993. It appears that 11.9.1993 and 12.9.1993 were holidays and the Report was submitted on 13.9.1993, and finally the certificate was issued on 14.9.1993 by the Tahsildar. The tribunal noted that prima facie the argument is relevant, or if the Report is issued by the petitioner on 7.9.1993, there could not be any question of demand and acceptance of bribe on 13.9.1993 which, admittedly, is the charge against the petitioner. However, this argument did not found favour with the Vigilance Tribunal. It took the view that in the light of attendant circumstances, there has to be a cautious approach. However, this argument did not found favour with the Vigilance Tribunal. It took the view that in the light of attendant circumstances, there has to be a cautious approach. It found that Ext.P4 report given by the Tahsildar to the Vigilance Inspector militated against the reliability of Exts.D3, D4 and C1 file. Ext.P4 Report was produced by the petitioner as Ext.P4 in the writ petition. The tribunal found that the said document indicates that the file itself could not be traced. It is also stated in Ext.P4 that the Officer could not state whether the solvency certificate was issued on 14.9.1993. Later on, Ext.C1 was produced and marked without objection, according to the petitioner. Ext.C1 was marked after the closing of the evidence. This is another aspect which dissuaded the Vigilance Tribunal from placing reliance upon Exts.D3, D4 and C1 file. The tribunal noted the contention of the prosecution that Exts.D3 and D4 are not the original reports furnished by the accused officer and the Revenue Inspector and they are subsequent creations. The tribunal noted that there is no explanation on the part of the accused for the sudden disappearance of the above file and reappearance at the fag end of the proceedings before the tribunal. It is stated that only after the prosecution evidence has been closed, that the accused officer made an application to call for the same. PW2 was the Tahsildar who had dealt with the above application. It is noted that the petitioner did not call for the files prior to his examination. The fact regarding the tracing of the file was also not brought to the notice of the tribunal. It is stated that unless the circumstances connected with the disappearance and subsequent reappearance of the file is also examined, it will not be possible to rely on the same. It is stated that since the file is closed as K. Dis., it should have been retained for three years, and that the period has not elapsed when Ext.P4 was issued. It is also stated that the petitioner in his original Written Statement of Defence did not have a case regarding his submission as alleged on 7.9.1993. The tribunal noticed the additional written statement seeking to explain the earlier statement on the ground that he could not peruse the relevant records. It is also stated that the petitioner in his original Written Statement of Defence did not have a case regarding his submission as alleged on 7.9.1993. The tribunal noticed the additional written statement seeking to explain the earlier statement on the ground that he could not peruse the relevant records. But the tribunal noticed that he had no such case and further finds that the petitioner has no consistent case. Ext.D5(a) is an entry in Ext.D5 Distribution Register. It shows the application made by the complainant. The tribunal finds that it is noted in Ext.D5(a) that this file also is closed as K. Dis. On 10.9.1993 itself whereas admittedly, the certificate was issued only on 14.9.1993 and, therefore, finds the said entry can never be correct. The tribunal takes note of the contention of the defence that Ext.D5(a) entry would show that Ext.D5 report reached the Taluk Office on 10.9.1993 itself. It is stated that there is nothing in Ext.D5(a) to show that Ext.P4 report was entered therein. Ext.D5(a) is found to be of no assistance to the petitioner. After considering all these, the tribunal finds that the contention of the prosecution that Ext.C1 is recast suits the petitioner’s case, cannot be brushed aside. The tribunal notes that the Tahsildar who was examined as PW2 was a co-accused in another Vigilance Case pending against the petitioner in the Court of the Enquiry Commissioner & Special Judge. The tribunal orally endorses that it was possible that they would be hand in glove. The tribunal places reliance on the disappearance of the file and finally disbelieved Exts.D3 and D4. The tribunal recommended punishment of compulsory retirement. Thereafter, the Deputy Secretary to the Vigilance Department issued a show cause notice dated 19.6.1999 as to why the punishment of compulsory retirement should not be imposed. A reply was submitted. Later, by order dated 19.11.2001, the first respondent imposed the penalty of compulsory retirement from service with effect from the date of suspension. 3. Heard the learned counsel appearing for the parties. The contention of the petitioner is twofold. Firstly, he challenges the findings of the tribunal as perverse and against the evidence on record. A reply was submitted. Later, by order dated 19.11.2001, the first respondent imposed the penalty of compulsory retirement from service with effect from the date of suspension. 3. Heard the learned counsel appearing for the parties. The contention of the petitioner is twofold. Firstly, he challenges the findings of the tribunal as perverse and against the evidence on record. It is pointed out the according to the Statement of Allegations issued to the petitioner along with the Charge Memo, it was alleged that the complainant approached the petitioner on 13.9.1993 and gave him Rs.500/= as illegal gratification for sending his Report to the Tahsildar and subsequently he gave Rs.500/= more. It is the case of the petitioner that the files produced would show that the complainant had made the application before the Tahsildar on 2.9.1993 and the Tahsildar had forwarded the same to the petitioner through the Revenue Inspector for his Report, and the petitioner had furnished his Report within four days thereafter, i.e. 7.9.1993 itself, whereas the allegation is that the petitioner demanded and accepted Rs.1,000/= on 13.9.1993 for sending his Report to the Tahsildar. It is pointed out that the list of documents relied on by the Government in the Charge Memo is the communication issued by the Tahsildar, Kanjirappally. It is stated that the petitioner was called upon to file a Written Statement to the Statement of Allegations, which he did on 27.9.1997. It is stated that it is seen from the letter of the Tahsildar, Kanjirappally that an application for issuance of a solvency certificate was received from the complainant on 10.9.1993. The petitioner complains that his request for permission to peruse the relevant files and records in order to prepare his Written Statement was not allowed. He was, therefore, forced to submit his Written Statement without perusing the files and it is, therefore, that the petitioner submitted his Written Statement that the Report called for by the Tahsildar on 10.9.1993 has been submitted on the immediate working day, i.e. on 13.9.1993. He was, therefore, forced to submit his Written Statement without perusing the files and it is, therefore, that the petitioner submitted his Written Statement that the Report called for by the Tahsildar on 10.9.1993 has been submitted on the immediate working day, i.e. on 13.9.1993. The petitioner has made a definite complaint that he was not permitted to peruse the records to ascertain the accuracy of the date of application for solvency certificate, date of endorsement made by the Tahsildar, date of Report of the Village Office, date of Report of the Revenue Inspector, date of receipt of the file by the Tasildar, and the date of issue of the solvency certificate. It is stated that the tribunal miserably failed to appreciate these aspects before arriving at the finding that the petitioner is guilty, solely relying on the statement made by the petitioner in his Written Statement. 4. The learned counsel for the petitioner would further submit that the petitioner was heard on 15.10.1999 by Shri T.A. Antony, Deputy Secretary to Government, Vigilance Department on the basis of the show cause notice dated 19.6.1999. Petitioner submitted a detailed reply on 14.7.1999. It is stated that though the petitioner was heard by Shri T.A. Antony on 15.10.1999, the impugned order Ext.P4 was passed on 19.11.2001 by another Officer who had not heard the petitioner. It is stated that the said order is passed more than two years after the personal hearing conducted by another Officer. It is, therefore, contended that Ext.P3 order is violative of the principles of natural justice. Ext.P3 is also faulted for non-application of mind. Learned counsel for the petitioner relied upon a decision of the Supreme Court in Bhagwati Prasad Dubey v. Food Corporation of India and another (1987 (Supp) SCC 579), wherein the Supreme Court has held as follows: “….Normally, this Court does not interfere with findings of fact arrived at in disciplinary proceedings. Ext.P3 is also faulted for non-application of mind. Learned counsel for the petitioner relied upon a decision of the Supreme Court in Bhagwati Prasad Dubey v. Food Corporation of India and another (1987 (Supp) SCC 579), wherein the Supreme Court has held as follows: “….Normally, this Court does not interfere with findings of fact arrived at in disciplinary proceedings. But, leave to appeal having been granted, we have looked into the matter and find that in the present case the Enquiry Officer has reached his conclusion on no evidence and without a proper appreciation of the background and circumstances in which the appellant had to function at the relevant time.” He also relied on a decision of this Court in P.B. Rocho v. Union of India & Others (1984 KLT 590), wherein this Court has held as follows: In proceedings under Article 226 of the Constitution, the court refrains from substituting its own view of the facts for that of the authority. The court will not interfere with the decision of the authority except when it is shown that the authority erred in law or violated rules of natural justice or acted ‘unreasonably’. If the authority has taken into account matters which are relevant and has excluded from its consideration irrelevant matters, its decision is not reviewable unless so unreasonable that no reasonable authority would have come to it. This principle, as formulated by Lord Greens M.R. in Associated Provincial Picture Houses Ltd. V. Wednesbury Corpn. (1947) 2 ALL ER.680, governs judicial review of administrative actions in the generality of cases, Judged by this principle, the impugned orders, as I shall presently show are liable to be quashed. The power of the court is nevertheless supervisory, and not appellate. Where two or more views are possible, the court will not substitute its own view for that of the authority. But where, on an appraisal of the quality of the evidence, the view taken by the authority is, in the opinion of the court, inconsistent with the only view that is rationally and fairly possible, or vitiated by a serious error of law or procedure, the court will intervene to quash the impugned decision.” He also relied on the decisions of this Court in Bhattathiripad v. Tasildar (1994 (1) KLT 790) and Sadasivan v. Joint Registrar (1994 (2) KLT 238). Learned counsel also referred to Ext.P10, which is produced along with the reply affidavit. Ext.P10, if relied upon, would show that there was a valid explanation for the missing of the file. Learned counsel, Shri Shaji Thomas Porkkattil further submitted that this is a case where there was no charge against the petitioner for causing the missing of the file and in such circumstances, the authority has acted illegally and arbitrarily in finding that the file cannot be relied upon toe exonerate the petitioner. Learned counsel would further submit that there was, in fact, no evidence or material before the authority for it to arrive at the conclusion that the files were concocted by the petitioner. In other words, he would say that it was perverse on the part of the authority to have entered the findings on the basis of which it refused to place reliance upon Exts.D3, D4 and C1. Learned counsel in particular emphasis would submit that a perusal of Ext.D3 would show that it contained the signature of the complainant in the case. He would argue that if the file was concocted, there was no explanation for the presence of the signature of the complainant in Ext.D3 dated 7.9.1993. He would submit that there was no challenge to the genuineness of the signature of the complainant in Ext.D3. He would further argue that, at any rate, the genuineness of the document emanating from Ext.C1 file is probabilised and fortified by Ext.D4 which is the Report signed on 10.9.1993 by the Revenue Inspector. He would urge that the petitioner has been the target of the false case foisted by the complainant against him. Learned Government Pleader, on the other hand, would contest the matter and submit that the order is perfectly in order and cannot be interfered with. 5. The first contention of the petitioner that the findings of the enquiry are vitiated and are perverse, is to be considered. It is to be noted that the tribunal has decided to rely upon the evidence of the prosecution witnesses. It is not the case of the petitioner that there is no evidence at all for linking him with the misconduct alleged against him. The adequacy of the said findings or the sufficiency of the said evidence, cannot be the subject matter of judicial review. It is not the case of the petitioner that there is no evidence at all for linking him with the misconduct alleged against him. The adequacy of the said findings or the sufficiency of the said evidence, cannot be the subject matter of judicial review. This is settled by a large body of case law, both of the Apex Court and of this Court. 6. It has been held in the decision of the Apex Court in Kumaon Mandal Vikas Nigam Ltd. V. Girja Shankar Pant and Others ((2001) 1 SCC 182), as follows: “While it is true that in a departmental proceedings, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings, but the availability of judicial review even in the case of departmental proceedings cannot be doubted. Judicial review of administrative action is feasible and the same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted, but in the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-high impossibility to decry availability of judicial review at the instance of an affected person.” In the decision of the Supreme Court in Syed Rahimuddin v. Director General, CSIR and Others ((2001)9 SCC 575), the Court held as follows: “It is well settled that the conclusion or a finding of fact arrived at in a disciplinary enquiry can be interfered with by the Court only when there are no material for the said conclusion or that on the materials the conclusion cannot be that of a reasonable manner.” This Court has no power in the exercise of its jurisdiction under Article 226 to reappreciate the evidence. This position has been categorically laid down in the decision of the Supreme Court in Sub Divisional Officer, Konch v. Maharaj Singh (2003) 9 SCC 191) which reads as follows: “A bare perusal of the same makes it crystal clear that the High Court in exercise of its jurisdiction under Article 226 has reappreciated the entire evidence, gone into the question of burden of proof and onus of proof and ultimately did not agree with the conclusion arrived at by the enquiring officer, which conclusion was upheld by the disciplinary authority as well as the U.P. Public Service Tribunal. It has been stated by this Court on a number of occasions that the jurisdiction of the High Court under Article 226 is a supervisory one and not an appellate one, and as such the Court would not be justified in reappreciating the evidence adduced in a disciplinary proceedings to alter the findings of the enquiring authority.” It cannot be doubted that the question as to whether the charges were established on the material available, is also a matter beyond the scope of judicial review (See the decision in State of Tamil Nadu v. Thiru. K.V. Perusal and Others (AIR 1996 SC 2474). It is not doubt true that the material or evidence must link the delinquent officer with the charges (See in this regard the decision of the Supreme Court in Sher Bahadur v. Union of India and others ((2002) 7 SCC 142). The Court held as follows: “It may be observed that the expression “sufficiency of evidence” postulates existence of some evidence which links the charged Officer with the misconduct alleged against him. Evidence, however voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged Officer, is no evidence in law. The mere fact that the enquiry Officer has noted in his report, “in view of oral, documentary and circumstantial evidence as adduced in the enquiry” would not in principle satisfy the rule of sufficiency of evidence.” In State of A.P. v. Mc. Dowell & Co. The mere fact that the enquiry Officer has noted in his report, “in view of oral, documentary and circumstantial evidence as adduced in the enquiry” would not in principle satisfy the rule of sufficiency of evidence.” In State of A.P. v. Mc. Dowell & Co. ((1996) 3 SCC 709), the Court held as follows: “…The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review.” His has been followed in the decision in Union of India and another v. G. Ganayutham (1997) 7 SCC 463), wherein His Lordship Justice Jagannadha Rao, after an exhaustive review of the case law, both Indian and otherwise, held as follows: “We are of the view that even in our country – in cases not involving fundamental freedoms – the role of our courts/tribunals in administrative law is purely secondary and while applying Wednesbury and CCSU principles to test the validity of executive action or of administrative action taken in exercise of statutory powers, the courts and tribunals in our country can only go into the matter, as a secondary reviewing court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CSU tests. The choice of the options available is for the authority; the court/tribunal cannot substitute its view as to what is reasonable.” 7. In fact the only complaint the petitioner can have, is regarding the reasoning by which the tribunal chose to disregard Exts.D3, D4 and C1. Here also, I am not persuaded by the strenuous arguments addressed by the learned counsel for the petitioner that the authority has acted perversely. It is not as if the authority has disregarded Exts.D3, D4 and C1 without any reasoning at all. It has to be noted that Exts.D3 and D4 and C1 were produced and marked after the close of the evidence. It was marked after PWs.1 and 2 were already examined. It is stated to have been marked on consent. It is not as if the authority has disregarded Exts.D3, D4 and C1 without any reasoning at all. It has to be noted that Exts.D3 and D4 and C1 were produced and marked after the close of the evidence. It was marked after PWs.1 and 2 were already examined. It is stated to have been marked on consent. The signature in Ext.D3 or Ext.P7 was not put to PW1, the complainant whose signature is alleged to be found on Ext.D3. It is also pertinent to note that the tribunal chose to rely upon Ext.P4 to come to the conclusion that reliance cannot be placed on Exts.D3, D4 and C1. The authority did not have the benefit of perusing Ext.P10. Whatever it be, the fact remains that the authority has chosen to take a view in the matter in the course of appreciation of evidence. I am not impressed by the argument by the counsel for the petitioner that the petitioner was not specifically charged with having caused the disappearance of the file or concoction of the file. Actually, what the authority has done is not to find that the petitioner has done either of the above. All that the authority did was that while appreciating the reliability of the evidence produced on behalf of the petitioner, chose not to attach much value to the said evidence for certain reasons. When I am exercising my power sitting in judicial review, I am not able to say that the approach in this regard by the tribunal can be said to be so perverse that it merit interference. It is to be noted that the authority placed reliance at least on three circumstances. Firstly, it found that in the original statement filed by the petitioner, the petitioner did not have a case that he had submitted the report on 7.9.1993, which is that he wishes to establish by the production of Exts.D3, D4 and C1. On the contrary, his case was that the report was given on 10.9.1993. No doubt, he has a case that he made that statement only on account of the fact that he was not permitted to peruse the files and since the explanation was given at some distance of time, it is but natural that it was relying upon his memory which he would say can only be imperfect. No doubt, he has a case that he made that statement only on account of the fact that he was not permitted to peruse the files and since the explanation was given at some distance of time, it is but natural that it was relying upon his memory which he would say can only be imperfect. He would say that he has, in his additional statement, specifically stated these facts. However, the pertinent point is that this is also a matter which was referred to by the authority. But, the authority chose to take a view in the matter. Since I am not sitting as an appellate body, it may not be open for me to pronounce it wrong and justify interference. The second circumstance which weighed with the authority was Ext.P4 which is a communication by the Tahsildar creating the impression that not much reliance can be placed on Ext.C1 file and Exts.D3 and D4. The further circumstance, it is pointed out is the application to all for the file, was made only after the prosecution evidence was over. The prosecution witnesses include the complainant and the Tahsildar who has prepared Ext.P4 and from whom an explanation could have been sought with reference to Exts.D3, D4 and C1. The tribunal noticed that the petitioner has no consistent case. The tribunal has also relied upon Exts.D5 and D5(a) which are distribution registers of the Taluk Office. 8. It may be true that if I were dealing with this matter as an appellate body, I may have thought that the approach of the authority is wrong. But, proceedings under Article 226 of the Constitution of India are not in the nature of an appeal. Nor, am I entitled to invalidate a decision of the administrator because it is wrong. The body has drawn inferences on the basis of the materials. While it may be true that there is no charge against the petitioner that he forged the files, it cannot be said that it was not open to the body to adopt a view of the value to be attached to the materials before it and in the course of such a reasoning to find that a document is not to be relied for certain reasons. I would think that, this is in the domain of appreciation of evidence. I would think that, this is in the domain of appreciation of evidence. The explanation that is sought to be given by the petitioner by production of Ext.P10 cannot detain me in the consideration of the matter in proceedings under Article 226. It cannot be disputed that the said document was not before the original authority and I cannot be persuaded to overturn a decision which is otherwise not amenable to correction by the introduction of new material in these proceedings. On an overall assessment of the materials in the context of the law applicable, I am of the view that the petitioner has not made out a case for interference. 9. However, the petitioner is entitled to succeed on the second point. It is not disputed that the petitioner was heard originally on 15.10.1999 by Shri T.A. Antony, Deputy Secretary to Government, Vigilance Department on the basis of the show cause notice dated 19.6.1999. He submitted a reply on 14.7.1999. However, the impugned order Ext.P3 was passed on 19.11.2001 by another Officer who has not heard the petitioner. Nearly more than two years had elapsed from the date of the original hearing and an Officer who had not heard the petitioner came to pass the order. Both elements, according to him, in this case establish the case of breach of the principles of natural justice. I feel that the delay in passing the order itself amounts to a breach of the principles of natural justice. Further, the fact that a person other than he who heard came to pass the order, certainly has resulted in a breach of the principles of natural justice. Accordingly, Ext.P3 order is set aside and the authority is directed to consider the matter afresh with notice to the petitioner and after hearing him. The authority will take a decision in accordance with law within a period of two months from the date of production of a copy of this Judgment. The writ petition is allowed as above.