A.K. Vijayan v. High Court of Kerala and The District Judge, Thodupuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **&** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** ## **WEDNESDAY, THE 28TH MAY 2008 / 7TH JYAISHTA 1930** **WA.No. 1233 of 2003()** **--------------------AGAINST THE JUDGEMENT/ORDER IN OP.17047/1994 Dated 07/03/2003** **....................** ## **APPELLANT: PETITIONER** **---------------------** **A.K.VIJAYAN, LOWER DIVISION CLERK, SUB COURT, THODUPUZHA, RESIDING AT ARACKAL HOUSE, EZHALLOOR P.O., THODUPUZHA (VIA), IDUKKI DISTRICT** **BY ADV. SRI.K.RAMAKUMAR (SR.)** ## **RESPONDENTS: RESPONDENTS** **------------------------** **1. HIGH COURT OF KERALA, REPRESENTED BY THE REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** ## **2. THE DISTRICT JUDGE, THODUPUZHA.** **SRI.KRB.KAIMAL (SR.)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J.B. Koshy & P.N.Ravindran, JJ.** ## **--------------------------------------** ## **W.A. No. 1233 of 2003 --------------------------------------Dated this the 28th day of May, 2008** ## **Judgment** ## **Koshy,J.** Appellant/Petitioner was appointed on probation. During initial probation of the appellant/petitioner as L.D. Clerk in the Sub Court, Thodupuzha, a complaint was received from one Shri C.Unni who is the husband of Smt.Mary, who was alleged to have been abducted by the petitioner. After preliminary enquiry, Ext.P1 charge sheet was issued contending the following charge: "That you, Sri.A.K.Vijayan, while holding the post of L.D.Clerk, Munsiff's Court, Thodupuzha on 11.5.1992, had abducted Smt.Mary, wife of Sri.Unni while Sri.Unni was not in the house and that in August 1992 attempted to adbuct Kumari Moncy the eldest daughter of Sri.Unni with the assistance of M/s.Gopalan @ Sunni and Binu, S/o.Johnson, friends of yourself and thereby committed moral turpitude of such nature as to bear a conduct unbecoming of a responsible government servant." In the preliminary enquiry, it was observed that the statements of witnesses 1 to 3 disclosed that the delinquent officer had illicit 2 **W.A.No. 1233/2003** connection with the wife of the complainant and thereafter the charge was issued. Enquiry officer found as follows: "On going through the evidence of the witnesses already discussed above, there is no sufficient evidence to conclude that the wife of the complainant was 'abducted' by the delinquent or that he attempted to 'abduct' the complainant's daughter, in the strict legal sense of that word. There is no evidence in this case to show that the complainant's wife is presently staying with the delinquent. The evidence given by witness No.2 is also insufficient to hold that the delinquent had attempted to abduct her, as alleged." It was further found that there was evidence regarding illicit relationship with Smt.Mary. It was proved before the enquiry that wife of the complainant, Mary, was living with the delinquent officer, the petitioner. The enquiry officer found as follows: "I have discussed in detail the evidence given by the witnesses. The statement given by these witnesses are not challenged by the delinquent. In the explanation submitted by the delinquent to the memo of charges, he has denied all the allegations made against him and according to him the allegations are made on account of political rivalry that existed between him and the complainant before he became a Govt. servant. On going through the evidence of the witnesses already discussed above, there is no sufficient evidence to conclude that the wife of the complainant was 'abducted' by the delinquent or that he attempted to 'abduct' the complainant's daughter in the strict legal sense of that word. There is no evidence in this case to show that the complainant's wife is presently 3 **W.A.No. 1233/2003** staying with the delinquent. The evidence given by witness No.2 is also insufficient to hold that the delinquent had attempted to abduct her, as alleged. But, there is strong, acceptable and uncontroverted evidence given by the complainant and his witnesses which conclusively show that the delinquent had strong intimacy with the wife of the complainant which in the circumstances proved can only be described as illicit. The delinquent knew that Mary was the wife of the complainant. The evidence of the complainant and his two elderly daughters show that the delinquent was in intimate terms with Mary. They had been meeting in the house of the complainant - when none else was there - in the house of Leela, sister of his friend Gopalan @ Sunny, situated nearby and at several places at Thodupuzha and even at St.George Hospital. On one such occasion, the delinquent was seen resting his hand on the shoulders of Mary. He was seen sitting on her bed beside her, at the hospital. They continued their meetings in spite of requests, advices and threats. Even the request of the elderly daughters could not deter their mother from her conduct and in retaliation she sent out the 2nd witness and beat the 4th witness and when the witness No.4 pleaded with her mother, she said that if she lived for a moment more, it would be with the delinquent. The conduct of the lady, as spoken to by the complainant and his daughters shows the ardent and deep rooted connection she had with the delinquent. The stand taken up by the delinquent is one of total denial. According to him, the complaint is only to harass him on account of political rivalry that existed between the two before he became a Govt. servant. Apart from that there is no evidence or indication to think so. I am unable to think for a ;moment that the complainant or anybody else would - for that reason - attempt to make such 4 **W.A.No. 1233/2003** allegations involving his own wife and which would damage the future of his own family including that of his elder daughters. By no stretch of imagination can it be thought for a moment that witness No.2 and 4 - elderly daughters of the complainant - would make such allegations concerning the conduct of their mother and speak of the affair she had with her paramour for the reason that their father had political rivalry with the delinquent. There is absolutely no reason to disbelieve the evidence given by the complainant and his daughters which stand further corroborated by the evidence of witness No.3, their immediate neighbour at Eazhalloor. Though, as already pointed out, the evidence is not sufficient to hold that the delinquent had 'abducted' Mary in the strict legal sence of the word, there is sufficient evidence to hold that the delinquent was having illicit intimacy with Mary, the wife of the complainant, knowing fully well that she is the wife of the complainant. A Govt. servant is expected to maintain, at all times, absolute integrity. The illicit intimacy which the delinquent had with the wife of the complainant and which ultimately resulted in her leaving the company of her husband shows the lack of integrity on the part of the delinquent. The conduct of the delinquent is contrary to modesty and good morals and which is unbecoming of a Govt. servant. The delinquent, in his dealings with the lady, has not kept up the integrity and standard expected for a Govt. servant. The complainant has been able to establish that the conduct of the delinquent towards Mary, the wife of the complainant, was not befitting a Govt. servant and that by his conduct he committed moral turpitude of such nature as to bear a conduct unbecoming of a Govt. servant. The charge, to that extent, stands proved." 5 **W.A.No. 1233/2003** The disciplinary authority considered the report, accepted the same and proposed punishment of dismissal from service by Ext.P3 show cause notice and, finally, by Ext.P5, he was removed from service with effect from 28.7.1993. In appeal, penalty imposed was reduced and instead of removal from service, appellant's probation was terminated and he was discharged from service under rule 19 (ii), Part II of the Kerala State and Subordinate Services Rules with effect from 28.7.1993 by Ext.P7 order dated 29.7.1994. Operative portion of Ext.P7 reads as follows: "In the circumstances, the penalty imposed on the appellant is reduced. Instead of removal from service, the appellant's probation is terminated and he is discharged from service under rule 19 (ii) Part II KSSSR with effect from 28.7.1993 (the date of his removal from service by the Disciplinary authority)." At paragraph 5 of Ext.P7, the Appellate Authority found as follows: "5. The High Court has considered the appeal petition filed by the appellant, the report of the Inquiring authority, the order of the Disciplinary authority and all connected records including the evidence adduced before the Inquiring authority. The High Court finds that the conclusion of the Disciplinary authority that the appellant was having illicit intimacy with a married woman, viz., the wife of the complainant and that the conduct of the appellant was not befitting a responsible Government servant especially in the judicial department, have only to be upheld. There is 6 **W.A.No. 1233/2003** no illegality in the procedure adopted by the Disciplinary authority in the conduct of the proceedings. The appellant had been given sufficient opportunity to present his case before the Inquiring authority. He had also been supplied with copies of relevant records and enquiry report along with the show cause notice issued by the Disciplinary authority and sufficient opportunity had been given to him to put forward his defence. The findings of the Disciplinary authority are fully justified on the materials placed before him." When the matter was under challenge judicially, the learned single Judge was of the opinion that the main allegation in the charge sheet was that he abducted wife and daughter of Unni, but, abduction was not proved. What was proved is only illegal intimacy for which there was no definite charge. But, the charge was commission of a conduct unbecoming of a responsible Government servant. The court also found that the allegation is regarding a private conduct and not affecting the work. In the above circumstances, the learned single Judge held that the disciplinary authority ought to have noticed that the petitioner was only a probationer and as far as a probationer is concerned, appointing authority is obliged to consider whether he is fit to be a full member 7 **W.A.No. 1233/2003** of the service and whether it is possible to mend his ways even by extending his probation and if not only steps should have been taken to terminate his service. It is true that if the service of the probationer is not satisfactory, probation can be extended, but, that will not take away the power of the disciplinary authority in taking action according to law after conducting enquiry. The punishment of removal from service was modified as termination of probation and he was discharged from service under rule 19 (ii) of the General Rules as appellate authority has taken a lenient view only. However, the learned single Judge directed the second respondent to reinstate the service of the petitioner forthwith as a probationer. The learned Judge also found that since petitioner has not worked after 28.7.1993, he will not be entitled to salary and allowance till he joins duty and the period shall be treated as leave without allowances and writ petition was allowed to the above extent. Contention of the appellant that benefit of service including salary during the period of suspension till the date of reinstatement ought to have been granted in view of rule 56A (1) Chapter V, Part I, Kerala 8 **W.A.No. 1233/2003** Service Rules cannot be accepted. He was reinstated as per the order of the learned single Judge in a writ petition and rule 56 (1) reads as follows: "56. (1) When an officer who has been dismissed, removed or compulsorily retired including an officer who has been compulsorily retired under Rule 60A, is reinstated as a result of appeal or review or would have been so reinstated, but for his retirement on superannuation while under suspension or not, the authority competent to order re-instatement shall consider and make a specific order -- (a) regarding the pay and allowances to be paid to the officer for the period of his absence from duty including the period of suspension preceding his dismissal, removal, or compulsory retirement, as the case may be, (b) whether or not the said period shall be treated as a period spent on duty; and (c) in the case of an officer who was compulsorily retired under Rule 60A and subsequently reinstated for the recovery of the relevant benefits if any, already paid to him." The authority competent to order reinstatement has to pass a specific order regarding pay and allowances. Here, with regard to pay and allowances during the period of reinstatement was specifically ordered by the learned single Judge. In this connection, we also refer to the Division Bench decision in Travancore 9 **W.A.No. 1233/2003** Devaswom Board v. Rajasekharan Nair (2003 (2) KLT 882). In this case, we are of the opinion that the learned single Judge was too lenient in awarding reinstatement of the employee who had illicit relationship with the wife of his friend. That too, during the period of probation and even though it is a private conduct, it is unbecoming of a court employee. However, he was reinstated as per the impugned judgment and no appeal was filed. In any event, we are not inclined to grant the relief prayed by using extraordinary jurisdiction of this court under article 226 of the Constitution of India. Even the relief granted to the petitioner is more than what he deserves. He is not entitled to salary for the period he is out of service. The learned single Judge has only used the discretionary jurisdiction and no grounds are made out to interfere in the impugned judgment in an intra court appeal. Appeal is dismissed. **J.B.Koshy Judge** **P.N.Ravindran Judge** vaa **W.A.No. 1233/2003** 10 **J.B. KOSHY AND P.N.RAVINDRAN,JJ.** ------------------------------------W.A. No.1233 of 2003 ------------------------------------- **Judgment** Dated:28th May, 2008