A. Abhilash v. State of Kerala & NORKA Roots

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** ## **WP(C).No.30207 OF 2014(A)** ## **PETITIONERS:** **A.ABHILASH AGED 35 YEARS S/O. N.ANANDHAN, ASHA BHAVANAM, PUTHIYA VILA, PATTOLI MARKET P.O., KAYAMKULAM, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.SUBAL J.PAUL SMT.SHEEBA THOMAS SMT.L.PREETHA SMT.T.N.SREEKALA** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, NON RESIDENT KERALITES AFFAIRS (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2 NORKA ROOTS HAVING ITS HEAD OFFICE AT CENTRE PLAZA VAZHUTHACAD, THIRUVANANTHAPURAM, REPRSENTED BY ITS CHIEF EXECUTIVE OFFICER.** **R1 BY SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL R1-2 BY ADV. SRI.JAWAHAR JOSE R1 BY ADV. SRI.K.A.JALEEL ADDL. ADVOCATE GENERAL** ## **SRI.SUNIL KUMAR KURIAKOSE - GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.30207 OF 2014 2** ## **JUDGMENT** The petitioner, while working as a Junior Executive in the Customer Attestation Centre (CAC) of the 2[nd] respondent - “Norka Roots”, was proceeded against for disciplinary infraction and was placed under suspension through Ext.P1 on 09.12.2009. The petitioner was, thereafter, served with Ext.P2 Memo of Charges on 21.01.2010, along with a Statement of Allegations and he replied to the same. 2. Since the explanation given by the petitioner to Ext.P2 Memo of Charges was found unsatisfactory, an enquiry was conducted against him, which led to the report of the Enquiry Officer, namely Ext.P4, being settled on 15.03.2010. Subsequently, the Chief Executive Officer of the 2[nd] respondent asked the petitioner to show cause why the punishment of removal from service be not imposed against him, to which, he replied through Ext.P3 dated 26.04.2010, seeking that he be “ _acquitted of the allegations and_ **WP(C).No.30207 OF 2014 3** _reinstated in service condoning any_ _unintentional lapses which may have occurred from my part_ ” (sic). 3. The Disciplinary Authority, however, went on to impose the punishment of removal from service on the petitioner, which was then confirmed by the Appellate Authority through Ext.P7 order. The petitioner, thereafter, filed Ext.P8 Revision Petition before the Government, which was disposed of through Ext.P9 order finding his assertions to be without merit. 4. The petitioner, has thus approached this Court impugning Exts.P4,P5,P7 and P9 and seeking that the disciplinary action against him be declared as illegal and that he be directed to be reinstated in service immediately. 5. I have heard Smt.Sreekala T.N., learned counsel appearing for the petitioner; Shri.Jawahar Jose, learned Standing Counsel ## **WP(C).No.30207 OF 2014 4** appearing for the 2[nd] respondent - “Norka Roots” and the learned Senior Government Pleader, Shri.P.M.Manoj, appearing for the 1[st] respondent - State of Kerala. 6. Smt.Sreekala commenced the arguments in support of her client's case asserting that the Memo of Charges namely Exts.P2, contains vague and indefinite allegations and consequently that he was not in a position to properly defend himself. Smt.Sreekala pointed out that, going by Ext.P2, the allegation against her client is that he had taken illegal gratification from certain applicants who approached the CAC of the 2[nd] respondent for Embassy Attestation, with the help of some private agencies and that he had done so for reward abusing his official capacity with a pecuniary motive and in a fraudulent manner, thus causing loss to the applicants and consequently that he acted against the interests of the 2[nd] respondent, causing damage to their goodwill and reputation. **WP(C).No.30207 OF 2014 5** 7. Smt.Sreekala submitted that these allegations are as vague as it can get, since no specific instances were mentioned therein and therefore, that her client was not in a position to frame a defence properly. She, thereafter submitted that her client filed his defence to Ext.P2 – conceding that same has not been placed on record in this case – explaining that only in a few instances, which involved his own friends and relatives, that he had guided them to a private agency for attestation and that this was done because the normal duration of attestation through the “Norka Roots” would take much longer than if it was done through a private agency. She submitted that this, however, would not establish any guilt on the part of her client, including that he had taken any illegal gratification or that he had abused his official capacity for pecuniary gain. 8. Smt.Sreekala further submitted that, in any event of the matter, enquiry is ## **WP(C).No.30207 OF 2014 6** completely vitiated because none of the applicants were examined and nothing was brought on record to show that her client had obtained any illegal gratification from such persons. She, therefore, prayed that this writ petition be allowed and the impugned orders be set aside. 9. Shri.Jawahar Jose, learned Standing Counsel appearing for the 2[nd] respondent, submitted that this writ petition is not maintainable since his client – the 2[nd] respondent, is not a “State” under Article 12 of the Constitution of India. After contending so, on the merits of the matter, he added that the Memo of Charges against the petitioner is not vague or indefinite, as has been alleged; but that petitioner had been clearly notified therein that the allegation against him is that he had misused his official position to divert the business that should have gone to the “Norka Roots”, by collecting the certificates brought to it by various persons ## **WP(C).No.30207 OF 2014 7** for attestation and getting it done through private agencies, thus obtaining pecuniary reward in the process. 10. Shri.Jawahar Jose submitted that the evidence on record, namely the depositions of PW1 and PW2, have been placed on record as Exts. R2(b) and R2(c), which would indubitably establish that petitioner was engaged in a private business of sorts, by obtaining certificates intended for attestation from applicants and then taking it to a private agency by name “Nisa Travels” for having them attested. He submitted that this was more so because the evidence on record also establishes that the expenses and money for such attestation were, in fact, paid by the petitioner directly to “Nisa Travels” and that there was a running account between them, which has not been settled even as of now. 11. Shri.Jawahar Jose asserted that, therefore, the allegations made against the ## **WP(C).No.30207 OF 2014 8** petitioner in Ext.P2 Memo of Charges have been completely proved and that in such circumstances, it would be impossible for him to continue in the services of the “Norka Roots”, particularly when his duties were specifically to assist the applicants who approach him for certificate attestation and that his conduct in having diverted such persons to a private agency would clearly show his absolute lack of rectitude and credibility. The learned Standing Counsel, therefore, prayed that this writ petition be dismissed. 12. I have evaluated the afore submissions on the touch stone of the various materials available on record. 13. I am aware that the specific submissions of Smt.Sreekala are that Ext.P2 Memo of Charges is vague in nature and therefore, that no enquiry could have been proceeded on the basis of the same. She relies ## **WP(C).No.30207 OF 2014 9** on various judgments of the Hon'ble Supreme Court, including in _**M.V.Bijlani v. Union of India (UOI) and Others [(2006) 5 SCC 88]** ;_ _**Union of India (UOI) and others v. Gyan Chand Chattar [(2009) 12 SCC 785]; Sawai Singh v. State of Rajasthan [(1986) 3 SCC 454]; Anil Gilurker v. Bilaspur Raipur Kshetria Gramin Bank and Others [(2011) 14 SCC 379] and Surath**_ _**Chandra Chakrabarthy v. State of West Bengal [(1970) 3 SCC 548]** ,_ in support of her submissions and vehemently argued that when the charges were vague and indefinite, accused would be robbed of his opportunity of framing a legitimate defence; thus praying that the proceedings involved in this case be declared as being vitiated. 14. Before I answer the afore submissions, I must certainly go through Ext.P2 Memo of Charges - the relevant portions of which is extracted infra for the sake of complete reading: ## **WP(C).No.30207 OF 2014 10** “1. That you Sri.Abhilash A. while holding the post of Junior Executive, CAC, NORKA-ROOTS committed breach of Norka Roots Service Rule 55 by taking illegal gratification from applicants who have come for certificate attestation with CAC, TVM for HRD and for different embassy attestation with the help of private travel agencies functioning in the field of certificate attestation. You have been doing it for reward using your official capacity with pecuniary motive in a fraudulent manner, causing wrongful loss to applicants and Norka-Roots which is detrimental to the interest of Norka Roots and thereby caused damage to the good will and reputation of Norka-Root, shall be punishable under Rule 55(d)(g)(v), Chapter V of Norka Roots Service Rules.” 15. It is luculent from Ext.P2 that what was alleged against the petitioner was that he had taken illegal gratification from applicants who went to the 2[nd] respondent – “Norka Roots” for certificate attestation and that he got the same done through private agencies, thus abusing his official capacity with a pecuniary motive. The charges would also then show that this was alleged to be contrary to the interests of Norka Roots, thus deracinating their goodwill and reputation. 16. When I read the Memo of Charges closely, am afraid that I cannot find it to be vague or indefinite, as has been now asserted by Smt.Sreekala, particularly when the ## **WP(C).No.30207 OF 2014 11** petitioner was specifically notified thereto that there was a clear suspicion and input that he was running a parallel attestation business of sorts, using a private agency. 17. That said, the evidence on record, particularly Ext.R2(b) - which is the deposition of the Manager of the afore mentioned “Nisa Travels” is to the unmistakable effect that petitioner himself was approaching them two or three times every month, with certificates from applicants and that they were being attested by the Travel Agency by charging Rs.2,200/- per certificate. The deposition then goes on to say that there was a running account between the Travel Agency and the petitioner and that he would not pay the full amounts when attestations were completed and the certificates returned; but that he would give them fresh certificates for attestation, on the strength of which, they would accept a part payment, on the understanding that full accounts will be **WP(C).No.30207 OF 2014 12** settled later. 18. The Manager of the Travel Agency has further deposed that there were large amounts of money due to them from the petitioner and that it is only on account of his request for leniency, that a settlement of account was entered into, but that an amount of Rs.5,800/is still due to them. 19. I must at this juncture record that what is really important in this case is not merely the incriminating deposition of the Manager of the Travel Agency, but the fact that the petitioner chose not to cross-examine the said witness in any manner whatsoever and it is so recorded in the deposition itself. **==> picture [356 x 12] intentionally omitted <==** inferential opinion that the petitioner had nothing to speak contrary to the deposition of the witness; but at the Bar, his counsel Smt.Sreekala, tried to explain this by saying that her client was advised not to cross- ## **WP(C).No.30207 OF 2014 13** examine the witness by the Enquiry Officer himself. I must say that this is a grievous allegation against the Enquiry Officer made by the learned counsel at the Bar, but I cannot countenance the same, because there is not even a whisper of this allegation either in the pleadings or in any other material available on record. 21. Obviously, therefore, this Court will have to repel the afore statement made at the Bar and will have to take it that petitioner had not cross examined the witness mentioned in Ext.R2(b). This testimony is thereafter fortified by the deposition of PW2 who is stated to be an agent of “Nisa Travels”. 22. The evidence of PW2, which has been marked and recorded as Ext.R2(c), is that he and the petitioner were initially involved in certificate attestation under the aegis of “Nisa Travels”, but that the petitioner, thereafter, started doing it directly with the **WP(C).No.30207 OF 2014 14** said Agency. Pertinently, in the cross- examination conducted by the petitioner – wherein interestingly he does not say that the Enquiry Officer persuaded him not to do so - his specific question to the witness was whether or not he was charging Rs.3000/-, which was more than what he was obtaining from him. The answer of the witness, interestingly, was that he was only charging Rs.2,200/per certificate from Abhilash. 23. In the conspectus of the evidence available on record, it becomes manifestly clear that petitioner was involved in private attestation of certificates, which he obtained from various applicants and that he was getting this done through “Nisa Travels”, by directly approaching them and settling their charges, which can only mean that he had already obtained necessary remuneration from the applicants directly. ## **WP(C).No.30207 OF 2014 15** 24. When I say as above, of course, I am fully cognizant of the argument of Smt.Sreekala that none of this can be proved without any of the applicants having been called as witnesses and without their statement or deposition being recorded. 25. Normally, the afore argument may have obtained some force in an abstract sense, but would be of no avail to the petitioner in this case because the fact remains that he had chosen not to cross-examine PW1, even though she specifically deposed that he was going directly to the Travel Agency with the certificates obtained from the applicants and that he was paying the requisite charges also directly to them. When the petitioner chose not to cross-examine the witness, thus virtually conceding to whatever she has deposed, it can only mean that he had no defence qua the allegation that he was running a parallel attestation business, independent of the “Norka Roots”. **WP(C).No.30207 OF 2014 16** 26. This aspect becomes extremely grievous when one notices that petitioner was a Junior Executive in the CAS of the “Norka Roots”, who was expected to assist applicants approaching to the said agency for certificate attestations. The obvious inference that can be drawn from the afore narration is that he was then canvasing such applicants, by telling them that he would have their certificates attested through “Nisa Travels” – which fact is also deposed by PW2 whose deposition to such effect remains unimpeached even in crossexamination – by charging certain amounts, a part of which he would then handover to the Travel Agency, once the attestation was completed. 27. This establishes not merely that petitioner made pecuniary gain or that he had obtained any unlawful gratification, but also that he was acting contrary to the interests of “Norka Roots” – his employer; and that he was denying them the service charges they **WP(C).No.30207 OF 2014 17** would have normally obtained, had the applicants been serviced through their mechanism. 28. Therefore, even if I am to assume that the argument of Smt.Sreekala - that the factum of the petitioner having obtained illegal gratification or having caused loss to the applicants not being proved - it would still not help the petitioner even on the touchstone of the afore cited precedents because the Memo of Charges contains a specific allegation that he had misused his official position for pecuniary gain, which is clearly established from the deposition of PW1 and remains without being contested by him in any manner – that he had approached the Travel Agency more than twice or thrice every month, with certificates from the applicants and that he had them got attested, by paying an amount of Rs.2,200/per certificate. **==> picture [355 x 12] intentionally omitted <==** ## **WP(C).No.30207 OF 2014 18** construed as an illegal business being carried on by the petitioner and when this has been urgently established, his continuation in the “Norka Roots” becomes untenable and would certainly have to be seen as being contrary to their interests. 30. I cannot, therefore, find any of the impugned orders to be vitiated on account of the Memo of Charges being vague or indefinite; and am certain that the proven allegations against the petitioner would certainly deserve the highest punishment, as has been imposed against him. In the afore circumstances, I find no reason to exercise discretion in favour of the petitioner and therefore, dismiss this writ petition. Since I have dismissed this writ petition on its merits, I do not think it is necessary for this Court to answer the contention of Shri.Jawahar Jose that this petition is not **WP(C).No.30207 OF 2014 19** maintainable and therefore, it is left open to be pursued, if required, in future. This writ petition is thus disposed of. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** **MC/29.3.2021** **WP(C).No.30207 OF 2014 20** ## **APPENDIX** - **PETITIONER'S/S EXHIBITS: EXHIBIT P1 EXHIBIT-P1-TRUE COPY OF THE ORDER DATED 09/12/2009 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P2 EXHIBIT-P2-TRUE COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATION DATED 21/01/2010.** - **EXHIBIT P3 EXHIBIT-P3-TRUE COPY OF THE OBJECCTION DATED 26/04/2010 SUBMITTED BY THE PETITIONER WITH ENGLISH TRANSLATION.** - **EXHIBIT P4 EXHIBIT-P4-TRUE COPY OF THE ENQUIRY REPORT DATED 15/03/2010.** - **EXHIBIT P5 EXHIBIT-P5-TRUE COPY OF THE ORDER DATED 09/06/2010 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P6 EXHIBIT-P6-TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE APPELLATE AUTHORITY.** - **EXHIBIT P7 EXHIBIT-P7-TRUE COPY OF THE ORDER DATED 04/01/2011 ISSUED BY THE BOARD OF DIRECTORS OF THE 2ND RESPONDENT.** - **EXHIBIT P8 EXHIBIT-P8-TRUE COPY OF THE REVISION PETITION DATED 27/06/2011 FILED BY THE PETITIONER.** - **EXHIBIT P9 EXHIBIT-P9-TRUE COPY OF THE ORDER DATED 20/12/2013 ISSUED BY THE IST RESPONDENT.** - **EXHIBIT P10 EXHIBIT-P10-TRUE COPY OF THE SERVICE RULES OF THE NORKA ROOTS** - **EXHIBIT P11 EXHIBIT-P11-TRUE COPY OF THE ORDER DATED 17/12/2009 APPOINTING THE ENQUIRY OFFICER.** - **EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 19.6.2013 RENDERED BY THIS HON'BLE COURT IN WPC NO15099 OF 2013.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2 A TRUE COPY OF ORDER/MEMORANDAUM DATED 21-122005 ISSUED BY THE CHIEF EXECUTIVE OFFICER OF THE 2ND RESPONDENT COMPANY** **EXHIBIT R2B TRUE COPY OF THE EVIDENCE OF PW-1 SMT.** **WP(C).No.30207 OF 2014 21** ||**SHEREENA MEHR**| |---|---| |**EXHIBIT R2C**|**TRUE COPY OF THE EVIDENCE PW2 SHRI**| ||**JAGADHANAN N.A**| |**EXHIBIT R2D**|**TRUE COPY OF THE LETTER DATED 13.1.2010**| ||**ISSUED BY NISA TRVEL AGENCY**| |**EXHIBIT R2E**|**TRUE COPOY OF THE UNDERTAKING GIVEN BY THE**| ||**PETITIONER BEFOER NISA TRVEL AGENCY**|