BHOOVANACHANDRAN P N Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 July 2, 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 Exhibits P1 to P7 were marked. Exhibits Dl to D5(a) were also marked. Also the file of the Taluk Office, Kanjirappally was marked as Exhibit C1. The Tribunal, on the basis of the appreciation of the evidence, came to the conclusion that the petitioner is guilty of the charge levelled against him. PW 1 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. Exhibit D3, if accepted, would show that it is a report given by the petitioner on September 7, 1993. Exhibit D4 would show that the Revenue Inspector in turn has signed the Report on September 10, 1993. It appears that September 11, 1993 and September 12, 1993 were holidays and the Report was submitted on September 13, 1993, and finally the certificate was issued on September 14, 1993 by the Tahsildar. The Tribunal noted that prima facie the argument is relevant, or if the Report is issued by the petitioner on September 7, 1993, there could not be any question of demand and acceptance of bribe on September 13, 1993 which, admittedly, is the charge against the petitioner. However, this argument did not find 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 Exhibit P4 report given by the Tahsildar to the Vigilance Inspector militated against the reliability of Exhibits D3, D4 and Cl file. Exhibit P4 Report was produced by the petitioner as Exhibit 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 Exhibit P4 that the Officer could not state whether the solvency certificate was issued on September 14, 1993. Later on, Exhibit C1 was produced and marked without objection, according to the petitioner. Exhibit Cl was marked after the closing of the evidence. This is another aspect which dissuaded the Vigilance Tribunal from placing reliance upon Exhibits D3, D4 and Cl file. The Tribunal noted the contention of the prosecution that Exhibits 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 has 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 Exhibit 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 September 7, 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. Exhibit D5(a) is an entry in Exhibit D5 Distribution Register. It shows the application made by the complainant. The Tribunal finds that it is noted in Exhibit D5(a) that this file also is closed as K. Dis. on September 10, 1993 itself whereas admittedly, the certificate was issued only on September 14, 1993 and, therefore, finds the said entry can never be correct. The Tribunal takes note of the contention of the defence that Exhibit D5(a) entry would show that the Exhibit D5 report reached the Taluk Office on September 10, 1993 itself. It is stated that there is nothing in Exhibit D5 (a) to show that Exhibit P4 report was entered therein. Exhibit 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 Exhibit Cl 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 and 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 Exhibits D3 and D4. The Tribunal recommended punishment of compulsory retirement. Thereafter, the Deputy Secretary to the Vigilance Department issued a show cause notice dated June 19, 1999 as to why the punishment of compulsory retirement should not be imposed. A reply was submitted. Later, by order dated November 19, 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 that 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 September 13, 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 September 2, 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. September 7, 1993 itself, whereas the allegation is that the petitioner demanded and accepted Rs. 1,000/- on September 13, 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 September 27, 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 September 10, 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 September 10, 1993 has been submitted on the immediate working day, i.e. on September 13, 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 Officer, date of Report of the Revenue Inspector, date of receipt of the file by the Tahsildar, 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. :