K.P.JSEPH v. RESPONDE

W.P.(C) No. 12786 of 2005-2-Government should not disagree with the findings of the EnquiryOfficer. Although the petitioner filed detailed objections to thesame, by Ext.P6 order, the Government entered findings that thepetitioner is guilty, differing with the findings of the enquiryofficer. By Ext.P7 order the punishment of barring of twoincrements with cumulative effect was imposed on the petitioner.The petitioner filed a review petition which was rejected and alsofiled W.P.(C) No.16507 of 2004, challenging the proceedings. Asdirected in the judgment in that writ petition, the Governmentreconsidered the matter and reduced the punishment to that ofbarring of one increment without cumulative effect. Thepetitioner is challenging Exts.P1, P4, P6 and P7 which are theorders of suspension, show cause notice directing the petitionerto show cause why the Government should not disagree with thefindings of the Enquiry Officer and punishment should not beimposed on the petitioner, the order deciding to confirm theprovisional decision disagreeing with the findings of the EnquiryOfficer and the order imposing punishment respectively.Proportionate amounts of the missing cash was also directed tobe recovered from the petitioner. By Ext.P15, the period during W.P.(C) No. 12786 of 2005-3-which the petitioner was kept out of service was directed to beregularised as duty for all purposes, except for pay andallowances and accrual of earned leave limiting the pay andallowances to subsistence allowance already drawn. Thepetitioner is challenging Ext.P15 order also, as well as therecovery of proportionate amounts from the petitioner. 2.The petitioner contends that there is no groundswhatsoever for the government to disagree with the findings ofthe Enquiry Officer. According to the petitioner, the reasonsstated by the Government for disagreeing with the findings ofthe Enquiry Officer were totally perverse. The petitionersubmits that petitioner was only one of the 4 AssistantCommandants in the A.R.Camp. According to the petitioner, thepetitioner was never entrusted with the duty of supervising thedeceased Jayaprakash or the financial transactions inside theA.R.Camp. Therefore, according to the petitioner, petitionercould not have been found guilty of supervisory lapses in thematter. The petitioner further contends that for finding thepetitioner guilty, the evidence of a co-delinquent was relied uponwhich is against all canons of law. In para 18 of the writ W.P.(C) No. 12786 of 2005-4-petition, the petitioner categorically states that other personswho were actually found guilty by the Enquity Officer was giventhe benefit of the suspension period being treated as duty for allpurposes. In Ground (e) of the writ petition, the petitionersubmits that on a perusal of the statements taken by the EnquiryOfficer, it can be seen that the entire amount found missing inthe cash chest on 4.8.1997 has already been recovered frompersons to whom such amounts were given by late Jayaprakash,the details of which can be seen from the CD file relating toCrime No.443/97 registered in that regard. The petitioner,therefore, seeks the following reliefs :-“a) to issue a writ of certiorari or other appropriatewrit, order or direction to quash the disciplinaryproceedings initiated against the petitioner includingExts.P1, P4, P6 and P7, since such proceedings haveresulted in violating the petitioner's fundamental rightunder Article 14, 16, 20 and 21 of the Constitution ;b) to issue a writ of mandamus or other appropriatewrit, order or direction directing the 1st respondent topass an order regularizing the 23 months suspensionperiod of the petitioner as Duty for all purpose ;c) to issue a writ of mandamus of other appropriatewrit, order or direction directing the respondent toconsider the petitioner for promotion to the next higherpost of “Deputy Commandant” in the next arisingvacancy ; W.P.(C) No. 12786 of 2005-5-d) to issue a writ or mandamus or other appropriatewrit, order or direction directing the respondent to payall monetary benefits attached to the post of Asst.Commandant including increment and all otherallowances from attached to that post 10.9.1997onwards, debars the disciplinary proceedings initiatedagainst the petitioner ;e) to call for the records leading to Ext.P15 and toquash the same by issuing a writ of certiorari or otherappropriate writ order or direction”3.A counter affidavit has been filed disputing thecontentions of the petitioner. According to the respondents, theevidence of PW7, who was one of the co-delinquents sufficientlyprove the guilt of the petitioner. Further, the respondents relyon Circular No.21/76 dated 28.1.76 of the Inspector General ofPolice wherein, Assistant Commandant has been maderesponsible for daily inspection of the cash transactions in theArmed Reserve Camps. Therefore the petitioner being theAssistant Commandant was guilty of supervisory lapses is thecontention raised. 4.I have considered the rival contentions in detail.5.At the outset I notice that all the delinquents whomthe Enquiry Officer has found guilty have been subsequentlyexonerated by the Government in review. At the same time, the W.P.(C) No. 12786 of 2005-6-petitioner alone was found guilty whom the Enquiry Officerfound not guilty.6.Admittedly, the Enquiry Officer found the petitionernot guilty of the misconduct alleged against him. TheGovernment disagreed with the findings of the Enquiry Officeron 2 reasons as evident from Ext.P7 order. First is that theEnquiry Officer should not have disbelieved the evidence of PW7in the enquiry. Second is that as per Circular No.21/76 AssistantCommandant was responsible for inspecting the daily cashtransactions in the A.R.Camp.7.PW7, whose evidence has been relied on by theGovernment find the petitioner guilty was one of the co-delinquents in the enquiry. A common enquiry was conductedagainst 6 persons including the petitioner. It is strange to notethat the delinquents have been asked to give evidence on behalfof the prosecution in the enquiry, which is against the acceptednorms of conducting enquiries in disciplinary proceedings. Adelinquent cannot be asked to give evidence against him. Whenseveral persons are charged with the same misconduct naturallythe tendency of each would be to save himself and therefore W.P.(C) No. 12786 of 2005-7-would be prone to put the blame on the co-delinquents. HerePW7 was one of the co-delinquents. I have no hesitation to holdthat the Government could not have relied on the sole testimonyof the co-delinquent for the purpose of finding the petitionerguilty, that too of supervisory lapses.8.The 2nd reason stated is that as per Circular No.21/76Assistant Commandant was in charge of inspecting the cashtransactions in Armed Reserve Camps. Admittedly in CochinA.R.Camp there were 4 Assistant Commandants. Ext.P7 does notentered a finding that out of the 4 Assistant Commandants, thepetitioner was specifically entrusted with the task of supervisingSri. Jayaprakash or supervising the cash transactions in theA.R.Camp. On the other hand the Enquiry Officer categoricallyfound that the petitioner was not entrusted with any such duties.Therefore, without finding all the four Assistant Commandantstogether guilty of supervisory lapses, by no stretch ofimagination the petitioner could have been found guilty of themisconduct of supervisory lapses in the matter of loss of cashfrom the cash chest. As such both reasons given by theGovernment for finding the petitioner guilty disagreeing with the W.P.(C) No. 12786 of 2005-8-findings of the Enquiry Officer finding the petitioner not guiltyare perverse and totally unsustainable. Therefore, I am ofopinion that the petitioner could not have been validly foundguilty of the misconduct alleged against him. Consequently hecould not have been punished for the alleged misconduct. TheGovernment themselves had exonerated the persons whom theEnquiry Officer found guilty and treated their suspension periodas duty for all purposes. Since I have found the petitioner notguilty he is also entitled to the same treatment. 9.Accordingly the petitioner is entitled to have theperiod of suspension treated as duty for all purposes.10.When the petitioner is not guilty of the misconductnaturally the amount found missing from the cash chest cannotbe recovered from the petitioner even proportionately. Apartfrom that the statement in Ground (E) of the writ petition to theeffect that the amount found missing from the cash chest wasalready recovered from persons to whom such amounts weregiven by late Jayaprakash is not disputed by the respondents intheir counter affidavit. That is one additional ground not torecover the cash found missing from the petitioner. W.P.(C) No. 12786 of 2005-9-11.In view of my above findings the orders impugned inthis writ petition are quashed. It is declared that the petitioneris not guilty of the misconduct alleged against him and that he isnot liable to be punished for the same. Petitioner's suspensionperiod shall be regularised as duty for all purposes. The amountfound missing from the cash chest or part there of shall not berecovered from the petitioner. If the same has been alreadyrecovered, the same shall be refunded to him. The petitioner hasretired from service on 31.03.2006. The arrears of salary andarrears of retirement benefits due to the petitioner on account ofthe above order, along with the amounts recovered from himshall be disbursed to the petitioner as expeditiously as possibleat any rate within three months from the date of receipt of acopy of this judgment for which appropriate orders in tune withthe above directions shall also be passed within the said time.The writ petition is allowed as above. S. SIRI JAGAN, JUDGEJvt