Johnson Padamadan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942** ## **WP(C).No.10608 OF 2020(A)** ## **PETITIONER/S:** **JOHNSON PADAMADAN AGED 60 YEARS S/O. LONACHAN, PRESIDENT, KERALA BUS TRANSPORT ASSOCIATION STATE COMMITTEE, REG. NO.710/2006, SALU COMPLEX, MISSION QUARTERS JUNCTION, T. B. ROAD, THRISSUR - 680 001.** **BY ADVS. SRI.SHABU SREEDHARAN NITIN RAJAN NAIR UNAIS K.P SHRI.JOBIN JOSE P. SMT.RADHIKA U.** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME AND VIGILANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF VIGILANCE PMG, VIKAS BHAVAN P. O., THIRUVANANTHAPURAM - 695 033.** - **3 THE SECRETARY DEPARTMENT OF TRANSPORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **4 THE COMMISSIONER OF TRANSPORT TRANS TOWERS, VAZHUTHACAD P. O., THIRUVANANTHAPURAM - 695 014.** - **5 SAMUEL KODIPLACKAL HOUSE, IRUMAPRAMATTAM, KOTTAYAM - 686586.** 2 **W.P.(C) No.10608 of 2020** **(RETIRED AS DEPUTY TRANSPORT COMMISSIONER FROM THE OFFICE OF THE TRANSPORT COMMISSIONER, TRANS TOWERS, VAZHUTHACAD P. O., THIRUVANANTHAPURAM - 695 014.)** **6 BABU JOHN REGIONAL TRANSPORT OFFICER, MUVATTUPUZHA, ERNAKULAM - 686661.** **7 SMITHA JOSE C. MOTOR VEHICLE INSPECTOR, REGIONAL TRANSPORT OFFICE, KAKKANAD, ERNAKULAM - 682 030.** **R6 BY GOVERNMENT PLEADER R7 BY ADV. SMT.GIRIJA K GOPAL** ## **OTHER PRESENT:** ## **PP T.R.RENJITH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-01-2021, THE COURT ON 04-03-2021 DELIVERED THE FOLLOWING:** **W.P.(C) No.10608 of 2020** 3 ## **JUDGMENT** Dated this the 4[th] day of March **,** 2021 **Petitioner claims to be the President of Kerala Bus Transport Association State Committee and as such, concerned about the functioning of the office of the Transport Commissioner and the unauthorised, illegal and corrupt practices adopted by officers in the Motor Vehicles Department. The specific allegation in the writ petition is against the corrupt practices adopted by the 7[th] respondent, while working as Assistant Motor Vehicle Inspector at the Sub Regional Transport Office, Mattancherry. The particular instance highlighted by the petitioner is the vehicle checking conducted by the 7[th] respondent on 08.10.2014, near the Toll Booth on the Indira Gandhi Road in Wellingdon Island. According to the** **W.P.(C) No.10608 of 2020** 4 **petitioner, the checking was conducted after duty hours and without obtaining prior permission from superior officers. It is alleged that the 7[th] respondent had reached the spot in her husband's car and not in the departmental vehicle. That, during the course of inspection, the folder containing the fine amount collected, the check report book, TR-5 book and seized driving licences kept inside the car were reportedly lost. Instead of reporting the matter at the Harbour Police Station situated close by, the 7[th] respondent lodged a complaint before the Assistant Commissioner of Police, Mattancherry and the complaint was forwarded to the Harbour Police Station only on 11.10.2014, three days after the incident. Even though a crime was registered under Section 379 IPC, it was closed as undetected. Instead of conducting a departmental enquiry and** **W.P.(C) No.10608 of 2020** 5 **imposing severe punishment on the 7[th] respondent, the superior officials blindly accepted her explanation and closed the proceedings by directing to recover the amount of Rs.21,400/lost from the possession of the 7[th] respondent. According to the petitioner, the actual amount collected by the 7[th] respondent was Rs.4,45,000/and the claim of having collected only Rs.21,400/as fine, is false. The petitioner filed Ext.P8 complaint before the 4[th] respondent, seeking a detailed enquiry into the misconduct of the 7[th] respondent and appropriate departmental action against her. The complaint having evoked no response, the petitioner filed Ext.P12 before the 1[st] respondent, praying for registration of crime against the 7[th] respondent and an enquiry by the Vigilance Department. Ext.P12 also being left unanswered, the writ petition is filed seeking the** **W.P.(C) No.10608 of 2020** 6 ## **following relief:** _**“1. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 and 2 to register a vigilance case and to conduct a detailed investigation regarding the inspection of vehicles by the 7[th] respondent near the tool booth of Indira Gandhi road, Welligdon Island on 08.12.2014, the alleged incident of loss of file, the real things happened including the actual collection and the role of the respondents 4 to 6 in extending unholy help to the 7[th] respondent in the matter.”**_ **2. In her counter affidavit, the 7[th]** **respondent has refuted the allegations, terming them to be false, frivolous and ill-motivated. Further, she has questioned the very maintainability of the writ petition. According to the 7[th] respondent, the writ petition is liable to be dismissed with exemplary costs.** **3. As regards the incident that took place on 08.10.2014, the version of the 7[th] respondent is that, while returning home after conducting checking near the CISF check post at Wellingdon** **W.P.(C) No.10608 of 2020** 7 **Island between 7.30 p.m and 9.00 p.m, she realised that the folder containing the check report book, TR5 receipt book, fine amount of Rs.21,400/- and four driving licences seized by her were missing. Immediately, she rushed back to the spot and searched the entire area with the help of the CISF personnel present there. Having failed to recover the missing documents and cash, information was given at the Harbour Police Station. But, the police did not register a crime or enter the information in the complaint register. Instead, the crime was registered on 11.10.2014, that too, after the 7[th] respondent approached the Assistant Commissioner of Police, who directed the Station House Officer, Harbour Police Station, to register the crime. The Police failed to identify the culprits or recover the stolen articles and filed final report before the jurisdictional court,** **W.P.(C) No.10608 of 2020** 8 **requesting to treat the crime as undetected. The loss of cash and receipt books resulted in departmental action being initiated against the 7[th] respondent. The disciplinary authority, after providing opportunity to submit explanation, found the 7[th] respondent to have been negligent in handling the cash and documents. Consequently, the fine amount of Rs.21,400/- lost from her possession, was fixed as her personal liability. Pursuant to the order issued by the Transport Commissioner, the sum of Rs.21,400/- was recovered from the salary of the 7[th] respondent.** **4. Heard Sri.Shabu Sreedharan, learned Counsel for the petitioner, Smt.Girija K.Gopal, learned Counsel for the 7[th] respondent and Smt.Sony K.B, learned Special Government Pleader (Vigilance).** **5. Learned Counsel for the petitioner** **W.P.(C) No.10608 of 2020** 9 **reiterated the allegations in the writ petition and submitted that the 7[th] respondent had conducted vehicle checking on 08.10.2014, after her duty time, without prior permission and had reached the spot in her husband's car. According to the learned Counsel, nothing further is required to prove that the checking was illegal and conducted for personal aggrandisement. It is submitted that the actual amount lost was not Rs.21,400/-, as reported by the 7[th] respondent, but Rs.4,45,000/as per the information received from reliable sources. Reliance is placed on Exts.P14 to P16 series of receipts to demonstrate that the fine collected by the 7[th] respondent and allegedly lost from her possession, would be much more than Rs.21,400/-. According to the learned Counsel, the superior officers of the 7[th] respondent had acted hand-in-glove with her, by imposing only a** **W.P.(C) No.10608 of 2020** 10 **minor penalty for the serious offence of defalcation of public funds. It is therefore contended that, unless vigilance enquiry is ordered, the true facts will not come to light and the 7[th] respondent will remain unscathed.** **6. Learned Counsel for the 7[th] respondent refuted the contention and submitted that the writ petition is nothing but witch hunting, motivated by personal vendetta against her client, for having carried out her duties honestly and without succumbing to the dictates of the petitioner and his Association. Copy of the relevant extract from the Motor Vehicle Department Manual [Ext.R7(a)], dealing with the functions and duties of Assistant Motor Vehicle Inspectors, is relied on to contend that an Assistant Motor Vehicle Inspector is a full time field officer in charge of a circle and hence, there no prohibition against an AMVI** **W.P.(C) No.10608 of 2020** 11 **conducting vehicle checking after regular office hours. Strong exception is taken against the allegation of the petitioner having collected Rs.4,45,000/- during the checking conducted on 08.10.2014. It is contended that the allegation is made without an iota of evidence and that Exts.P14 to P16 receipts are produced with the deliberate intention of misleading the Court. It is pointed out that Exts.P14 to P16 series are receipts issued towards collection of tax from vehicles that had violated national permit conditions and therefore, the quantum of amount payable as fine would be much more than the fines and compounding fees to be remitted for minor violations. Reference is made to Ext.R7(b) judgment of this Court and Ext.R7(c) order of the State Information Commissioner, to contend that the petitioner and the other office bearers of his** **W.P.(C) No.10608 of 2020** 12 **Association are in the habit of threatening and filing false complaints/cases against honest officers in the Motor Vehicles Department. That, on realising the dubious motive, this Court had dismissed W.P.(C) No.12875 of 2019 filed by the Secretary of the petitioner's Association, with cost of Rs.5,00,000/-. Likewise, the State Information Commissioner had dismissed the application seeking information filed by the writ petitioner, finding that the information was sought for settling personal scores and for compelling honest officers to act as per the directives of his Association.** **7. In reply, the learned Counsel for the petitioner submitted that, being a public spirited citizen, he is legally entitled to bring the malpractices committed by public servants to the notice of the authorities, and on their failure to** **W.P.(C) No.10608 of 2020** 13 **act, to the notice of this Court. It is submitted that, as against Ext.R7(b) judgment, a review petition has been filed and that, Ext.r7(c) is under challenge in a writ petition.** **8. Having heard the learned Counsel at length, I find substantial force in the contention of the learned Counsel for the 7[th] respondent that the writ petition amounts to an abuse of process of court. It is an undisputed fact that pursuant to the petitioner's complaint regarding loss of documents and cash, a crime was registered at the Harbour Police Station and the police, after investigation, reported the crime to be undetected. Ext.P2 final report was filed on 06.04.2015 and no action, either in the form of a protest complaint or a request for further investigation, was taken by the petitioner. All that is done later was to send Ext.P8** **W.P.(C) No.10608 of 2020** 14 **representation dated 09.02.2016 requesting the Transport Commissioner to transfer the petitioner and conduct an enquiry. As far as the departmental proceedings against the 7[th] respondent is concerned, it is settled law that third parties has no right to challenge the disciplinary proceedings and that, there is no scope for public interest litigation in service matters.** **9. Coming to the factual allegations, I am constrained to observe that the petitioner has miserably failed to substantiate the contention that the 7[th] respondent could not have conducted the checking after duty hours. On the other hand, the 7[th] respondent has succeeded in establishing that an Assistant Motor Vehicle Inspector being a full time officer, no particular time for checking of vehicles is prescribed. In order to substantiate the allegation that the actual amount** **W.P.(C) No.10608 of 2020** 15 **lost is Rs.4,45,000/-, the petitioner has produced Exts.P14 to P16 receipts. It was contended by the learned Counsel for the 7[th] respondent that Exts.P14 to P16 are receipts issued towards collection of fine for major violations by national permit vehicles, where as the 7[th] respondent had collected the fine for minor violations committed by vehicles plying within city limits. It was also alleged that Exts.P14 to 16 are produced to mislead this Court. Neither the contention, of the the receipts issued by the 7[th] respondent being entirely different from Exts.P14 to 16 receipts, nor the contention that Exts.P14 to P16 are produced to mislead the Court, is controverted or attempted to be explained. The aforementioned factors compel me to reach at the unequivocal conclusion of the writ petition having been filed with the sole objective of defaming and** **W.P.(C) No.10608 of 2020** 16 ## **demoralising the 7[th] respondent.** **10. Having come across repeated instances of frivolous litigations being filed by the vested interests, the Apex Court has set forth principles that should govern the litigants while approaching the court. Two among those principles stated in** _**Kishore Samrite v. State of U.P.**_ **, [(2013) 2 SCC 398], which according to me, are contextually** ## **relevant, are extracted hereunder:** _“32.1.Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts and came to the courts with “unclean hands”. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor are entitled to any relief._ _32.2.The people, who approach the court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant._ _**”**_ **W.P.(C) No.10608 of 2020** 17 **Despite the attempts to curb abuse of the public interest jurisdiction, the propensity to file frivolous cases, garbed as public interest litigations, is on the increase. The instant writ petition is a classic example of such abuse, which leaves me with no option, but to dismiss the writ petition with costs.** **In the result, the writ petition is dismissed with cost of Rs.25,000/- to be paid by the petitioner to the 7[th] respondent. If the cost is not paid within one month, the District Collector, Ernakulam shall initiate recovery proceedings for realisation of the amount.** ## **Sd/-** **V.G.ARUN JUDGE** Scl/ **W.P.(C) No.10608 of 2020** 18 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE ACP, MATTANCHERRY DATED 10.10.2014.** **EXHIBIT P2 THE TRUE COPY OF THE FINAL REPORT IN CRIME NO.872/2014 OF HARBOUR POLICE STATION SUBMITTED BEFORE THE JFCM COURT - 1, KOCHI DTED 6.4.2015.** **EXHIBIT P3 THE TRUE COPY OF THE WRITTEN SUBMISSION OF THE 7TH RESPONDENT BEFORE THE 6TH RESPONDENT DATED 9.10.2014.** - **EXHIBIT P4 THE TRUE COPY OF THE LETTER OF THE 6TH RESPONDENT TO THE 4TH RESPONDENT DATED 15.10.2014.** **EXHIBIT P5 THE TRUE COPY OF THE MEMO ISSUED BY THE 4TH RESPONDENT TO THE 7TH RESPONDENT DATED 13.08.2015.** **EXHIBIT P6 THE TRUE COPY OF THE REPLY SUBMITTED BY THE 7TH RESPONDENT DATED 9.9.2015. EXHIBIT P7 THE TRUE COPY OF THE INFORMATION FURNISHED BY THE STATE PUBLIC INFORMATION OFFICER ATTACHED TO THE OFFICE OF THE 4TH RESPONDENT DATED 26.2.2016.** **EXHIBIT P8 THE TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 9.2.2016. EXHIBIT P9 THE TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE** **W.P.(C) No.10608 of 2020** 19 ## **3RD RESPONDENT DATED 3.5.2018.** **EXHIBIT P10 THE TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 3RD RESPONDENT WITHOUT THE DOCUMENT PRODUCED THEREIN DATED 11.10.2019.** **EXHIBIT P11 THE TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 24.11.2019.** - **EXHIBIT P12 THE TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT WITH COPIES TO THE RESPONDENTS 2 AND 3 DATED 5.2.2020.** **EXHIBIT P13 THE TRUE COPY OF THE RC PARTICULARS OF THE VEHICLE WITH REG.NO.KL7 BS 9687 TAKEN FROM THE OFFICIAL WEBSITE OF THE MOTOR VEHICLE DEPARTMENT DATED NIL.** **EXHIBIT P14(A) THE TRUE COPY OF THE RECEIPT NO.786288 ISSUED BY THE 7TH RESPONDENT ON 3.7.2015. EXHIBIT R14(B) THE TRUE COPY OF THE RECEIPT NO.786286 ISSUED BY THE 7TH RESPONDENT ON 3.7.2015. EXHIBIT P14(C) THE TRUE COPY OF THE RECEIPT NO.786290 ISSUED BY THE 7TH RESPONDENT ON 3.7.2015. EXHIBIT P15(A) THE TRUE COPY OF THE RECEIPT NO.789643 ISSUED BY THE 7TH RESPONDENT ON 5.11.2015. EXHIBIT P15(B) THE TRUE COPY OF THE RECEIPT NO.789639 ISSUED BY THE 7TH RESPONDENT ON 5.11.2015. EXHIBIT P16(A) THE TRUE COPY OF THE RECEIPT NO.039111** 20 ## **W.P.(C) No.10608 of 2020** **ISSUED BY THE 7TH RESPONDENT ON 8.1.2016.** **EXHIBIT P16(B) THE TRUE COPY OF THE RECEIPT NO.039117 ISSUED BY THE 7TH RESPONDENT ON 8.1.2016. EXHIBIT P16(C) THE TRUE COPY OF THE RECEIPT NO.039119 ISSUED BY THE 7TH RESPONDENT ON 8.1.2016.**