N. Prakash v. High Court of Kerala, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932** **WP(C).No. 24333 of 2009(R)** **----------------------------------------** ## **PETITIONER(S):** **-------------------------** **N.PRAKASH, S/O.A.NARAYANA RAO, AGED 45 YEARS, RESIDING AT PRAJITH VIHAR, AYINI NADA ROAD, MARADU P.O., ERNAKULAM DISTRICT.** ## **BY ADV. SRI.N.PRAKASH(PARTY IN PERSON)** ## **RESPONDENT(S):** - **------------------------ ,** **1. THE HIGH COURT OF KERALA, ERNAKULAM, REP. BY ITS REGISTRAR GENERAL.** ## **2. THE REGISTRAR GENERAL,** **HIGH COURT OF KERALA, ERNAKULAM.** **3. THE DIRECTOR OF TRAINING, HIGH COURT OF KERALA, ERNAKULAM.** **4. THE ADDITIONAL DIRECTOR OF TRAINING, HIGH COURT OF KERALA, ERNAKULAM.** ## **5. SMT.REHANA T.R.,** - **P.A. TO JUDGE GR.I, HIGH COURT OF KERALA, ERNAKULAM.** **6. THE REGISTRAR (VIGILANCE), HIGH COURT OF KERALA, ERNAKULAM.** **7. THE APPELLATE COMMITTEE,CONSTISTUTED BY THE HON'BLE THE CHIEF JUSTICE TO HEAR THE APPEALS SUBMITTED BY THE PETITIONER AGAINST THE ORDERS DISMISSING THE PETITIONER FROM SERVICE,REP.BY THE REGISTRAR GENERAL,HIGH COURT OF KERALA,ERNAKULAM.** **8. THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM.** **R1 & R2 BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE R3 & R4 BY GOVT. PLEADER SRI.SANDESH RAJA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON 12/10/2010 DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.24333/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE NOTE DT. 7.9.2005 GIVEN BY THE PETITINER TO THE 5TH RESPONDENT.** ## **P2:- COPY OF THE M.P. 913/2006 DTD. 25.2.2006 FILED BY THE PETITIONER BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** **P3:- COPY OF THE COMPLAINT DTD. 20.3.06 FILED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT.** **P4:- COPY OF THE COMPLAINT DTD. 6.4.2006 FILED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT.** **P5:- COPY OF THE ORDER NO.R.17/2004 (SS) /R. 13/2006(SS) DTD. 7.4.2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **P6:- COPY OF THE ORDER NO.R-17/2004/SS/A1-5102/2005 DTD. 10.4.2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **P7:- COPY OF THE MEMO OF CHARGES NO.R.17/2004(SS)/1-5102/2005 DTD. 3.6.06 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **P8:- COPY OF THE COMPLAINT FILED BY THE PETITIONER'S COUNSEL TO THE HON'BLE CHIEF JUSTICE, HIGH COURT OF KERALA AND OTHER AUTHORITIES DT. 23. 8.2004.** ## **P9:- COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER'S COUNSEL TO THE HON'B CHIEF JUSTICE AND OTHER AUTHORITIES DT. 24.7.04.** **P10:- COPY OF THE WRITTEN STATEMENT OF DEFENCE SUBMITTED BY THE PETITIONER DT.D 17.6.2006.** **P11:- COPY OF THE NOTICE NO.R.17/2004(SS)/A1-5102/2005 DTD. 6.3.07 DIRECTING THE PETITIONER TO SHOW CAUSE WHY MAJOR PENALTY OF DISMISSAL FROM SERVICE SHALL NOT BE IMPOSED ALONG WITH THE REPORT OF ENQUIRY OF THE 4TH RESPONDENT.** **P12:- COPY OF THE EXPLANATION AS TO WHY MAJOR PENALTY OF DISMISSAL SHALL NOT BE IMPOSED DTD. 14.3.2007.** **P13:- COPY OF THE MEMO OF CHARGES NO.R.13/2006(SS)/A1-5102/2005. DTD. 11.12.2006.** **P14:- COPY OF THE ENQUIRY REPORT SUBMTITED BY THE 6TH RESPONDENT IN V.E.NO.8/06.** ## **P15:- COPY OF THE WRITTEN STATEMENT OF DEFENCE DTD. 5.3.07 SUBMITTED BY THE PETITINER BEFORE THE 2ND RESPONDENT.** **P16:- COPY OF THE OFFICIAL MEMORANDUM NO.R.13/2006(SS)/A1-5102/2005 DTD. 3.3.2008. ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER ALONGWITH THE ENQUIRY REPORT SUBMTITED BY THE 3RD RESPONDENT DTD. 18.1.08.** **P17:- COPY OF THE REPRESENTATION ON THE FINDINGS OF THE ENQUIRY OFFICER SUBMTITED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 19.3.2008.** ## **P18:- COPY OF THE NOTICE NO.R.13/2006(SS)/A1-5102/2006 DTD. 4.7.08 ISSEUD BY THE 2ND RESPONDENT TO THE PETITIONER.** ## **W.P.(C) NO.24333/2009** ## **P19:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 19.7.2008.** ## **P20:- COPY OF THE ORDER NO.R.13/2006(SS)/A1-5102/2005 DT. 18.12.2008 ISSUED BY THE 2ND RESPONDENT.** **P21:- COPY OF THE ORDER NO.R.17/2004(SS)/A1-5102/2005 DTD. 16.12.2008 ISSUED BY THE 2ND RESPONDENT.** **P22:- COPY OF THE APPEAL DTD. 22.12.2008 PREFERRED BY THE PETITIONER AGAINST EXT.P20.** **P23:- COPY OF THE APPEAL DTD. 22.12.2008 PREFERRED BY THE PETITIONERAGAINST EXT.P21.** **P24:- COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.16492/2007 DTD. 31.5.2007.** ## **P25:- COPY OF THE ORDER NO.R.17/2004(SS)/A1-5102/2005 DTD. 20.8.09 ISSUED BY THE 2ND RESPONDENT.** ## **P26:- COPY OF THE COMMUNICATION NO.R.17/2004(SS) A1-5102/2005 DTD. 22.8.2009 ISSUED ON BEHALF OF THE 2ND RESPONDENT.** ## **P27:- COPY OF THE ORDER OF THE APPELLATE AUTHORITY ON APPEAL NO.1/2008/HC AND APPEAL NO.2/2008/HC DTD. 4.6.09.** ## **RESPONDENT'S EXHIBITS** **R2(a):- COPY OF THE ORDER NO.R17/2004(SS)A1-5102/2006 DTD. 18.3.2010 ISSUED BY THE PETITIONER.** **R2(b):- COPY OF THE JUDGMENT DTD. 25.3.2010 OF THIS HON'BLE COURT IN WPC. 10075/2010.** **R2(c):- COPY OF THE JUDGEMENT DTD. 4.5.2010 OF THIS HONOURABLE COURT IN W.A. 765/2010.** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 24333 of 2009-R** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 12th day of October, 2010.** ## **JUDGMENT** In this writ petition, the petitioner challenges the orders culminating in punishment of dismissal from service in two separate enquiries and the order passed in appeal whereby the punishment has been modified as compulsory retirement. The respective orders have been produced as Exts.P20, P21, and P25; Ext.P27 being the proceedings of the Appellate Authority. 2. The petitioner was working as Private Secretary to the Judge in the High Court establishment. Initially he was recruited as Shorthand Writer Grade II on 15.3.1985 and was promoted as Private Secretary to Judge in the year 1996. In relation to the disciplinary enquiry, he was placed under suspension as per Ext.P5 order dated 7.4.2006. An erratum was issued as per Ext.P6. Ext.P7 is the copy of the memo of charges dated 3.6.2006 containing three distinct charges. Ext.P13 is the copy of the second memo of charges containing one charge. 3. The petitioner's arguments are centered on the inadequacy of evidence in both the enquiries as according to the petitioner, who appeared wpc 24333/2009 2 in person, there is no legal evidence to find any guilt against him. It is therefore submitted that it is a case of no evidence and therefore the orders of punishment which are confirmed in appeal, are liable to be quashed by this Court in these proceedings. 4. The memo of chargers, Ext.P7 incorporated the following charges: “(i) That you, Sri. N. Prakash, Private Secrtary to Judge, High Court of Kerala proceeded as an accused in C.C.604/2002 of Addl. Chief Judicial Magistrate's Court, Ernakulam for the offences punishable under Sec.294(b) and 506(i) I.P.C., made false allegations through your counsel by petition dated 23.8.2004 and 24.7.2004 against the Addl. Chief Judicial Magistrate, Ernakulam and the staff of that court where the case was pending, that they made fraudulent entries in 'A' and 'B' diaries and that they, along with Sub Inspector of Police, Panangad are guilty of conspiracy in the police arresting you at 3.20 a.m. on Sunday 22.8.2004. (ii) That you have got published through your counsel Sri Benhur Joseph Manayani, Advocate a news item containing grave accusations, which are totally false against the Presiding Officer and staff of the Addl. Chief Judicial Magistrate's Court, Ernakulam damnifying them and reducing the esteem and respect of the judiciary before the public in the Rashtra Deepika Daily on August 25[th] , 2004. (iii) That you were undertaking private typing work of Advocate wpc 24333/2009 3 Johnson Manayani, practising in the High Court on almost every day during the period from 1.2.2005 to 26.7.2005 in violation of Rule 48 of the Government Servants Conduct Rules, 1960. (iv) Your above mentioned acts are unbecoming of an employee of the High Court and amounts to serious misconduct.” 5. The first charge relates to two petitions filed by his counsel before the learned Chief Justice alleging certain accusations against the Addl. Chief Judicial Magistrate, Ernakulam and the staff of that court. Copies of those documents have been produced as Exts.P8 and P9. The second charge is that he has caused publication of the allegations against them in the Rashtradeepika Daily dated 25.8.2004. The third charge is that the petitioner has been undertaking typing work of Advocate Shri Johnson Manayani during the period 1.2.2005 to 26.7.2005. 6. The lone charge in Ext.P13 is the following: - “That you, Sri N. Prakash, Private Secretary to Judge, High Court of Kerala, while working as the Private Secretary to the Honourable Mr. Justice R. Basant and the Honourable Mr. Justice K.P. Balachandran, inflicted mental and physical torture on Smt. T.R. Rehana, Shorthand Writer Grade II posted to the above Honourable Judges, in creating a hostile environment at the working place, preventing her from discharging her duties effectively.” 7. In respect of these two separate memo of charges, different wpc 24333/2009 4 enquiry officers were appointed. In respect of Ext.P7 memo of charges the formal enquiry was conducted by Shri Abraham Mathew, then Additional Director, Kerala Judicial Academy and in respect of Ext.P13 memo of charges, the formal enquiry was conducted by Shri Hariprasad, then Director, Kerala Judicial Academy. 8. As regards the charges contained in Ext.P7, charges 1 and 2 emanated from the complaints filed by Advocate Shri Benhur Johnson Manayani before the Learned Chief Justice, as already noticed. The petitioner was an accused in C.C. No.604/2002 before the Addl. Chief Judicial Magistrate's Court, Ernakulam. The petitioner was arrested on 22.8.2004 at 3.20 a.m., which led to the filing of these two complaints. It was alleged in the first complaint, Ext.P8 that the case C.C. No.604/2002 was posted on 23.2.2004 and on that date the accused and counsel were present before the court and the case was not called due to heavy workload and posting. Thereafter, they were enquiring daily about the posting of the case and the answer was always that the file is missing. It is pointed out that even though there was a posting on 15.7.2004, on that day also the case was not called. Even on enquiry on 20.8.2004 by the accused, he was informed that the file is missing. Accordingly, the learned Advocate sought for a direction to initiate appropriate disciplinary proceedings wpc 24333/2009 5 against respondents 1 to 3 in the petition. In the subsequent petition, Ext.P9, the allegation mainly is that the entries in the 'A' diary and 'B' diary have been fabricated, for which the respondents in the complaint are liable. 9. The petitioner's defence mainly is that the complaints were filed by the Advocate without any instructions on his part and he was not aware about it. The same is the stand taken with regard to the publication in the Rashtradeepika Daily also. 10. The enquiry report shows that P.Ws. 1 to 4 have been examined on the side of the prosecution and Dws.1 to 3 have been examined by the petitioner. Exts.P1 to P9 have been marked also. 11. After a detailed analysis of the evidence, the Enquiry Officer concluded that Advocate Benhur had no axe to grind against PW1 Additional Chief Judicial Magistrate or PW2 Bench Clerk. There was no reason for him to feel aggrieved because no illegality or irregularity had been committed by the Additional Chief Judicial Magistrate or the Bench Clerk. The only person who had a motive to raise false allegations against the Addl. Chief Judicial Magistrate and the Bench Clerk was the petitioner who was arrested in the wee hours of a holiday. Accordingly, it was concluded that the petitioner is responsible for filing false complaints before the learned Chief Justice and it was held that both charges have been wpc 24333/2009 proved. 6 12. While attacking the above findings in appeal, the petitioner reiterated various contentions. According to him, the counsel himself has admitted that he had filed the complaints and the fact that he had not given any instructions to file these complaints, is evident from the evidence of the learned Advocate and the petitioner. It was therefore pointed out that the finding by the Enquiry Officer is vitiated. I have gone through Ext.P27. This point was specifically considered by the Appellate Authority wherein three of the Honourable Judges of this Court were members. The decision was against the petitioner by a majority of 2 : 1. A reading of Ext.P27 shows that all the points raised by the petitioner were considered and the majority was of opinion that the conclusion arrived at by the Enquiry Officer as regards charges 1 and 2 is really justified. 13. The majority of the Appellate Authority held that “the appellant did not state in his written statement that the complaints filed by the said Advocate were false. The stand of the appellant that he knew that the allegations were false only after the examination of Advocate Benhur Manayani during the enquiry, was rightly rejected. The trend of the appellant's cross examination of P.W.1 (the Addl. Chief Judicial Magistrate) would indicate that he was more eager to conceal his wpc 24333/2009 7 involvement in the filing of petitions by Advocate Benhur Manayani. The said Advocate had no axe to grind against the Addl. Chief Judicial Magistrate or his Bench Clerk. There was no reason for him to feel aggrieved because no illegality or irregularity allegedly committed by the Magistrate or his Bench Clerk had caused any personal harm to the Advocate. If so, he had no motive to file a complaint against the Magistrate or his staff. The only person who had a motive to raise false allegations against the Magistrate and his Bench Clerk was the appellant who was arrested in the wee hours of a holiday in C.C. No.604/2002 in which the appellant was the sole accused. The arrest of the appellant was due to his non-appearance before the Magistrate and the consequent issuance of nonbailable warrants of arrest. The appellant's Advocate naturally had to forge some excuse to cover up his negligence. He, therefore, found it convenient to target the Magistrate and his staff. Thus, from the totality of circumstances, it was legitimate to conclude that the appellant was the person who was behind the petitions filed by his counsel namely Advocate Benhur Manayani.” 14. The petitioner contended that the conclusion arrived at by the Enquiry Officer as upheld by the Appellate Authority by their majority decision, is really unsupportable in law. According to him, the Enquiry wpc 24333/2009 8 Officer has not considered the relevant evidence. As regards the entry on 23.2.2004 in the Criminal Court in Ext.P1 proceedings sheet, there was no initials and this had led to the filing of the complaint by the Advocate. The copy of the complaint filed by the Advocate was obtained by the petitioner only after the petitioner was given permission to peruse the documents. Merely because he had not taken any action against the Advocate at that point of time, that cannot be taken as a circumstance against him. The Advocate had admitted that he filed the complaints on his own and not as instructed by the petitioner. Therefore, it is contended that the finding by the Enquiry Officer as affirmed by the Appellate Authority that the petitioner is responsible for filing complaints by the Advocate, is not correct and is rather perverse. 15. The learned Senior Counsel Shri K.R.B. Kaimal appearing for respondents 1 to 4 submitted that cogent evidence has been adduced to establish the charges. It is submitted that the plea that petitioner had no knowledge about the filing of the petitions and its contents cannot be accepted at all. 16. The Enquiry Officer had, before him the evidence of the witnesses which included the Addl. Chief Judicial Magistrate and the Bench Clerk. Their evidence was elaborately discussed along with the other wpc 24333/2009 9 documentary evidence produced in the enquiry. It is not as if the evidence was lacking in the matter. The question is whether the allegations raised in Exts.P8 and P9 have got any credence and who is responsible for the same. Evidently, the petitioner had real grievance, as he was arrested on a Sunday at 3.20 a.m. Therefore, as rightly pointed out by the Appellate Authority also, the only person who had complaint in the matter is the petitioner, as the Advocate had no real complaint against the Additional Chief Judicial Magistrate or his staff or the Sub Inspector. In that view of the matter, the circumstances clearly probabilised and have led to the only conclusion that the petitioner has caused to file the complaints against the Additional Chief Judicial Magistrate, the Bench Clerk and the Sub Inspector. The conclusion arrived at is not incorrect for want of evidence warranting interference in these proceedings. Cogent reasons have been stated by the Enquiry Officer which have been confirmed by the Appellate Authority also after an analysis of the evidence adduced in the case. The petitioner has not succeeded in proving that he had no role to play in the matter. In that view of the matter, it cannot be said that the conclusion arrived at by the Enquiry Officer is so perverse, warranting interference by this Court. The case is not one of “no evidence”, as contended by the petitioner. Therefore, the said contentions cannot be accepted. wpc 24333/2009 10 17. The third charge in the memo of charges is with respect to the typing work alleged to have been undertaken by the petitioner in the office of Advocate Shri Johnson Manayani. The evidence adduced have been discussed by the Enquiry Officer under the caption “Point No.3”. This is a case where the petitioner had taken defence that Advocate Shri Johnson Manayani has been appearing for him in Contempt Case No.1257 of 2004 before this Court as well as in C.C. No.604/2002 before the Addl. Chief Judicial Magistrate Court. The petitioner had filed nearly 30 cases as party-in-person before this Court and for conducting his cases properly he had been taking legal advice from Advocate Shri Johnson Manayani. The drafts of the pleadings, argument notes, petitions to be filed, etc. were brought to him for correction. Accordingly, the stand taken is that he had not undertaken any typing work. 18. The evidence relied upon by the prosecution is that of two officers of the Vigilance Cell attached to the High Court who had conducted a discrete enquiry. They have been examined as P.Ws.3 and 4 and have submitted Exts.P8 and P9 reports. Going by their evidence, the petitioner had visited the office of Advocate Johnson Manayani on 15 occasions in 11 days. On each occasion petitioner had either handed over to the Advocate or received from the Advocate certain papers. While wpc 24333/2009 11 analysing the evidence of DW.1, Advocate Shri Johnson Manayani, the Enquiry Officer observed that the voluntary statement made by the Advocate is only to the effect that the papers relating to the criminal case filed by Jayaprakash were handed over to him by Prakash and answers were given with respect to handing over of papers of other cases when leading questions were put by the petitioner. It was concluded that the papers handed over by the petitioner to Advocate Shri Johnson Manayani related neither to the criminal case nor to the matters filed in the High Court which is a strong circumstance to believe that those were papers prepared (typewritten or printed on computer) by Prakash for the Advocate. During 11 days, Prakash met the Advocate 15 times to hand over papers. On one occasion the visit lasted 3 minutes, on 9 occasions the visit lasted 5 minutes, on 4 occasions the visit lasted 10 minutest and on one occasion the visit lasted 35 minutes. It was observed that except on one occasion the petitioner had only fleeting visits. On some occasions the Advocate came out of his office to receive the papers brought by him. The time spent by him in the Advocate's Office was too short that it cannot be believed that he made any discussion with the Advocate in legal matters. This was pointed out as a circumstance to believe that the papers handed over by the petitioner to the Advocate were papers prepared for the purpose of the wpc 24333/2009 12 Advocate. 19. The Appellate Authority, by a majority, confirmed the same and opined that the charge has been proved. 20. The petitioner submitted that certain crucial aspects have not been considered by the Enquiry Officer as well as by the Appellate Authority which would show that the charge is really unfounded. According to him, no papers have been recovered/identified by the Vigilance or anybody else to prove that the papers handed over by the petitioner to Advocate Johnson Manayani are really typewritten sheets in respect of the matters concerning the office of the Advocate. It is also submitted that there is no allegation that the petitioner had done the typing work in any particular place also. According to him, the fact that except on one occasion the visit lasted only for a few minutes itself evidences the fact that the Advocate has not dictated anything to him for doing the typewriting work. Thus, it is submitted that the relationship is only of an Advocate client and not that of a typist doing work in the office of the Advocate or for his benefit. The details of the cases which he had filed before this Court, have been stated in Ext.P10 written statement of defence. 21. Evidently, there is no direct evidence with regard to the material handed over by the petitioner to the Advocate to establish that they were wpc 24333/2009 13 materials which were typed by the petitioner or printed in computer. Therefore, there is no reliable evidence as to what constituted the papers which were handed over by the petitioner to the Advocate. The prosecution has also no charge with respect to the place from wherein he was doing the typing work for the Advocate. To suggest those aspects there is no material at all and there are no allegations also in that regard. The handing over of papers is relied upon to conclude that the same are typed materials for the use of the Advocate. The conclusion is arrived at on the basis of the alleged discrepancies in the evidence of the Advocate and the petitioner. 22. That the learned counsel had been engaged for conduct of C.C. No.604/2002 before the Addl. Chief Judicial Magistrate's Court, Ernakulam, has come up in evidence. Also he was appearing in CCC No.1257/2004 for the petitioner before this Court, is also in evidence. Therefore, already they had the relationship of client and Advocate. The evidence adduced on behalf of the prosecution also shows that the visits by the petitioner in the office of the Advocate on 11 days during which, the Vigilance Officers observed the same, the petitioner met the Advocate 15 times to hand over the papers. The evidence also shows that the visit lasted 3 minutes, 5 minutes, 10 minutes and only in one occasion it lasted 35 minutes. The conclusion arrived at by the Enquiry Officer is also that wpc 24333/2009 14 except on one occasion the petitioner had only fleeting visits. The evidence shows that the petitioner had handed over papers to the Advocate and not otherwise and on some occasions the Advocate came out of his office to receive the papers brought by the petitioner. The learned Senior Counsel appearing for respondents 1 to 4 submitted that the conclusions of the Enquiry Officer are really supportable. 23. The point is whether the charge has been proved at all. It is well settled that a mere suspicion cannot take place of proof against a delinquent. This legal position is well settled by various decisions of the Apex Court. (See **Nand Kishore Prasad v. State of Bihar and others -** AIR 1978 SC 1277). 24. Herein, the fact that the learned Advocate was appearing for him in two cases cannot be disputed. That shows their relationship. Of course, it is in answer to the leading questions, that the learned Advocate submitted that the petitioner had handed over other papers for his opinion. But in the absence of any direct evidence to show that typed materials were being handed over, the question whether the petitioner had been doing typing work for the learned counsel, cannot be said to have been established at least satisfactorily, in support of the charge. There is also lack of evidence nor even any suggestion to show that the learned Advocate had been giving wpc 24333/2009 15 dictation, or was handing over written drafts, etc. for doing the typing work. There is no allegation or evidence to show that the petitioner had been engaged in typing materials for the Advocate from any particular place also. 25. In that view of the matter, there are no proved circumstances in support of the charge in question. Even the circumstances pointed out may lead only to a suspicion in the legal sense of the term and not evidence to establish the guilt. But a suspicion cannot lead to an inference that positive circumstances have been proved in support of the charge. It cannot be a substitute for proof. Speculation also will not be sufficient to establish a charge. In that view of the matter, I hold that it was not safe to conclude that the said charge has been proved against the petitioner. Therefore, the finding in respect of charge No.3 of Ext.P7 memo of charges, that the petitioner had been doing typing work for Advocate Shri Johnson Manayani, is vacated as there is no proper dependable item of evidence in support of the said charge. 26. The conclusion of the majority of the Appellate Authority also with regard to this charge is against the petitioner as evident from para 5 of Ext.P27. In the light of the discussion above, the same also cannot be supported. 27. Now we come to the second memo of charges. The prosecution wpc 24333/2009 16 relies upon the evidence of Pws.1 to 9 and the petitioner had also examined Dws. 1 to 28. The documents produced are Exts.P1, P1(a) and P2 and Ext.D1. 28. The charge is that the petitioner, during the course of employment, inflicted mental and physical torture to Smt. T.R. Rehana, Shorthand Writer Grade II, at the working place, preventing her from discharging her duties. The petitioner denied the charge in toto. According to him, the alleged complaint is without any substance. 29. Prior to the disciplinary enquiry, there was an enquiry by the Registrar-Vigilance of the High Court, into her complaints and the report is against the petitioner. After a discussion of the evidence, the Enquiry Officer in the disciplinary enquiry, concluded that the delinquent is guilty of the charge levelled against him. It is evident from the report that four points were raised therein in support of the above conclusion. 30. The petitioner's argument was centered around a loan transaction he had to undertake on behalf of the 5[th] respondent herein and the fall out emanating therefrom which according to the petitioner, had led to the attempt to wreck vengeance against him. It is pointed out that the various findings are against the evidence adduced in the case also. It is pointed out that there was cordial relationship between the parties which led wpc 24333/2009 17 to the petitioner taking a personal loan for her benefit. But the repayment as agreed to, was not made in time. It is pointed out that the complaint of harassment is also not correct. One of the points proved against the petitioner is regarding the alleged physical obstruction made by the petitioner of the complainant o n 17.3.2006 at about 6 p.m. at the staircase of the High Court. According to him, the evidence is lacking in this regard also. The learned Senior Counsel Shri K.R.B. Kaimal submitted that the findings on the charge raised are sufficient to establish his guilt. 31. First I may come to the report of the Enquiry Officer. As noticed already, the Enquiry Officer relied upon the evidence of Management's witnesses to prove the various components of the charges. PW.1 gave evidence that the petitioner was in the habit of removing records from case bundles to trap her. It was the case that one C.M.P. in S.A. No.215/1999 was noted for defect, since it did not contain the initial of the Honourable Judge. According to her, the delinquent must have removed it from the records. Herein, the Enquiry Officer relied upon the evidence of the complainant as well as Smt. Jayalakshmi (P.W.3) who testified about an incident occurred earlier when she was working with the delinquent. This evidence was accepted to find that such actions not only cause mental trauma but also affect the smooth functioning of the institution. Another wpc 24333/2009 18 incident occurred on 17.3.2006 after 6 p.m. when the delinquent restrained and confined the complainant on a staircase and threatened that he would see that some how or other that she was terminated from service. This is supported by the evidence of Pws.1 and 8. Their evidence was accepted by the Enquiry Officer. 32. P.Ws.2 and 4 were examined to show that the petitioner was in the habit of insulting and humiliating his women co-workers. Their evidence was accepted as it was supported by the evidence of P.W.5. It was also pointed out that the Ext.P1 letter admittedly written by the petitioner, will also support the charge. 33. The Appellate Authority considered these evidence and the majority concluded that that the charge stands proved. 34. The petitioner pointed out that even the witnesses had an axe to grind against him because of certain earlier controversies wherein he had occasion to complain against them with respect to various aspects. The petitioner vehemently argued that many of the women co-workers with whom he had occasion to work, have been examined as defence witnesses and they have consistently deposed that there was no occasion for him to cause any embarassment to them. 35. The complainant P.W.1 had occasion to work with the petitioner. 19 wpc 24333/2009 The different incidents including the use of camera attached to a mobile phone to take her photo, have been proved in evidence by the prosecution even though it is contended by the petitioner that there is no proper appreciation of evidence. The findings of the Appellate Authority shows that all aspects have been analysed. The evidence have been discussed in detail in para 6 of the order passed by the majority of the Appellate Authority. The following findings contained in para 6 reflects the decision of the majority: “The relationship between the appellant and the complainant was very cordial to begin with. Both were working in the same Judge's chamber. The appellant had even volunteered to arrange a loan for the complainant (Rehna) from the State Bank of India. But after arranging the loan and handing over the cash of Rs.1,40,000/to Rehna, the attitude of the appellant towards her changed. He started harassing her. She even suspected that it was the appellant who removed the record from the case bundle of S.A. No.215 of 1999 with a view to trouble her and to trap her. The testimony of P.W.3 Jayalekshmi who had similar experience at the hands of the appellant had also been believed by the Enquiry Officer. The complainant's case that she was restrained and wrongly confined on the staircase by the appellant who threatened her that he would see to it that her services were terminated is also fully proved by the evidence of the complainant examined as P.W.1 and wpc 24333/2009 20 probabilised by the testimony of P.W.3 Jayalekshmi. The evidence of P.Ws.2 to 4 namely, S. Bindu, B.S. Maya, P.K. Aneetha, would go to show that the appellant was insulting and humiliating many female colleagues working with him and was subjecting them to mental torture. The testimony of P.W.5 U. Jayalekshmi also goes to show that she was also mentally harassed by the appellant. The evidence adduced before the Enquiry Officer shows that the appellant was spreading canards against Rehna and her husband to the effect that they were in a debt trap. The appellant was making false propaganda against the complainant and her husband with a view to lower their dignity, honour and credibility. The argument of the appellant that the time spent by him and Rehna together in the chamber of the Judge was too short for him to make an attempt to take her photograph in the mobile phone deserves to be rejected as puerile. Taking photograph on a mobile phone can be accomplished within no time and the case of the complainant that upon her remonstrance the appellant withdrew from the said attempt is quiet credible. The conclusion reached by the Enquiry Officer are fully justified. After considering the entire aspects of the matter we are in complete agreement with the findings recorded by the two Enquiry Officers.” 36. Even though it was vehemently argued by the petitioner that the evidence of the complainant supported by persons with whom he had worked at different points of time, cannot be accepted as proof of the charge, I fail to understand how in a disciplinary enquiry the same can be wpc 24333/2009 21 eschewed on the basis of the alleged motive. The main allegation against him is of mental and physical torture. The various incidents, viz. the attempt to take the photo of the complainant and restraining her in the staircase and that he was making false propaganda against P.W.1, have been established by cogent evidence. The argument raised against the prosecution witnesses that the witnesses were speaking untruth deliberately because of ill-will towards him, cannot therefore be accepted. The Enquiry Officer has discussed their evidence to arrive at his conclusion. As far as the mental and physical torture and harassment etc. the best person to speak is the complainant herself. 37. As regards the defence witnesses examined, merely because they have deposed that there was no occasion to cause any harassment by the delinquent, that will not destroy the evidence produced by the prosecution. That he had good relationship with others will not show that the charge of harassment of mental torture of the complainant is untrue. The suggestions made by the complainant in the cross examination of the prosecution witnesses about the various aspects which led them to speak against him, have been denied by them in the evidence. It is his case that the alleged complaint is filed only after receipt of notice from the Criminal Court in a case filed by him for cheating, in M.P.No.918/2006. It is the case of the wpc 24333/2009 22 petitioner that P.W.2 is having an axe to grind against the petitioner, as a writ petition was filed on his behalf challenging her admission in the Law Academy, Thiruvananthapuram for LL.B. Course and in view of the directions in Writ Appeal No.481/1997 she had to discontinue her studies. P.W.2 denied the suggestion that she was inimical towards him on account of this. 38. With regard to the use of mobile phone with camera to take the photograph of P.W.1, the evidence led by the prosecution has been accepted by the Enquiry Officer. Possession of the same stood proved by the evidence of DW.23 as well as the defence taken by the petitioner. The petitioner was trying to establish that the same was with in his possession only for one day which was not accepted by the Enquiry Officer. As rightly concluded by the Appellate Authority also the evidence which have been proved, is against him and it supports the plea of harassment at the hands of the petitioner. 39. I am not persuaded to accept that the findings rendered are so perverse warranting interference in these proceedings. 40. One legal contention raised by the petitioner which, according to him, has vitiated the enquiry, is that, the Enquiry Officers, in the absence of Presenting Officer had chief examined the prosecution witnesses and the wpc 24333/2009 23 cross examination of the defence witnesses was conducted by the Enquiry Officers themselves. It is therefore pointed out that the Enquiry Officers in this case were the prosecutors and Judges of their own cause and such a procedure is against the principles of natural justice. The said contention has been raised in ground 'L' of the writ petition. Reliance is placed on the decision of this Court in **High Range Estate Employees' Assn. v. The Industrial Tribunal** (2008 (1) KLJ 392). The legal position has been stated thus in para 7: “The appointment of a presenting officer for the management is only to enable the management to present their evidence in an orderly manner to their best advantage. They may or may not choose to appoint one. If no presenting officer is appointed, the management shall cause their witnesses to be present before the enquiry officer and the enquiry officer shall record their evidence as stated by them, with opportunity to the workman to cross examine the witnesses. The enquiry officer can put questions to the witnesses for clarification whenever necessary without a biased mind. Actually, non-appointment of presenting officer is to the disadvantage of the management, in so far as the management would not be able to put forward their evidence properly and cross examine the witnesses of the workman, if there are, effectively. In any event, such non-appointment of enquiry officer does not cause any prejudice to the workmen. On the other hand disadvantage, if wpc 24333/2009 24 any, is to the management themselves. Therefore, the mere fact that no presenting officer is appointed does not vitiate the enquiry in any manner. However, in the absence of presenting officer, the enquiry officer cannot take up the role of the presenting officer although he may put questions to the witnesses without bias, merely for clarification, of course with opportunity to the workman to cross examine the witnesses after the enquiry officer has recorded the answers to his questions. He cannot cross examine the witnesses or put leading questions to the witnesses of the management exposing himself to the allegation of bias, in which case it would amount to violation of principles of natural justice.” The above dictum will show that unless there is proof of bias and that prejudice has been caused to the delinquent concerned, there will not be any violation of the principles of natural justice. 41. Herein, going by the averments in ground 'L', the petitioner has not pleaded that any prejudice has been caused to him. Further, during the time of enquiry, no such objections have been raised before the Enquiry Officers. After the report was submitted, the petitioner was directed to offer his remarks on the enquiry reports but, no such contention is seen raised. Such a contention is not raised in the appeal also. According to the petitioner, being a question of law it can be raised at any stage of the proceedings. wpc 24333/2009 25 42. It is well settled that the delinquent will have to plead and prove prejudice and a mere assumed violation, if any, will not vitiate the enquiry itself. 43. Apart from that, this court had occasion to examine the very same question in **Sivarajan v. Presiding Officer** (1988 (2) KLT 385) and **Rajendra Pai v. Canara Bank** (1988 (2) KLT 624). The question whether prejudice has to be proved or not, was examined by this Court in **Sivarajan's case** (supra) and it was held thus in paragraphs 3, 4 and 6: “The enquiring authority is entitled to question the witnesses, so long as the delinquent employee is permitted to cross-examine the witnesses, and that will not violate the enquiry or make it unfair. Thus, the role ascribed to the Enquiry Officer, will not taint the findings. The Enquiry Officer putting questions to witnesses in the absence of a Presiding Officer separately appointed, will not violate the enquiry. Records of proceedings reveal that the Enquiry Officer put a specific question to petitioner at the close of enquiry, whether he had any grievance about conduct of the enquiry. His answer was that, he had no grievance. Petitioner was represented at the enquiry. If petitioner had no grievance about the manner in which the enquiry was held or about the person who conducted the enquiry, there was no prejudice. If there was no prejudice in fact, there is no prejudice in law. Neither the conclusion on the evidence, nor the punishment which the wpc 24333/2009 26 enquiring authority may regard as appropriate is binding upon the punishing authority.” This Court noticed that going by the facts of the case there was no plea raised by the delinquent at any stage of the proceedings or even after the conclusion of the proceedings about the manner in which the enquiry was held. If there was no prejudice, in fact there is no prejudice in law. I respectfully agree with the same. The said dictum squarely applies to the facts of this case. 44. In **Rajendra Pai's case** (1988 (2) KLT 624) also, it was held thus in paragraphs 7 and 8: “The fact that in the enquiry, the management was not represented by the Enquiry Officer separately, and that the questions to the worker and the witnesses were put by the Enquiry Officer did not vitiate the enquiry. There is no legal compulsion that the Presenting Officer should be appointed and that the mere fact that the Presenting Officer was not appointed was no ground to set aside the enquiry.” Thus, the legal position is well settled that a mere assumed violation without any proof of prejudice will not vitiate the enquiry proceedings. The contention therefore cannot be sustained. 45. The next question is whether any interference is called for on the wpc 24333/2009 27 punishment imposed. The legal principles in this regard is well settled by various decisions of this Court and the Apex Court. This Court is not sitting in appeal over the punishment imposed by the disciplinary authority and unless the punishment shocks the conscience of the Court, no interference is called for. Herein, the dismissal has been modified as one of compulsory retirement. A Division Bench of this Court in **Pushkaran v. State of Kerala** (2005 (3) KLT 657), held in para 5 that unless the punishment is shockingly disproportionate to the charges proved, it cannot be interfered with. Herein, the punishment of dismissal has been modified as one of compulsory retirement. As regards the scope of judicial review in such matters, a Division Bench of this Court in **Syndicate Bank v. B.K. Mahim** (2000 (2) KLJ 151), laid down thus in para 18: “The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute their own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. Supreme Court in several cases has pointed out that judicial review is not an appeal wpc 24333/2009 28 from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court-Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. When the authority accepts the evidence and the conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may therefore where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to wpc 24333/2009 29 the facts of that case.” Therefore, this Court cannot act as an appellate authority to find out whether the penalty imposed is sufficient. Only if the punishment imposed by the disciplinary authority shocks the conscience of the court, the relief can be moulded. Even though I have held that one of the charges in Ext.P7 has not been legally established, that cannot have any impact on the punishment imposed, especially in the light of the decision of the Apex Court in **State of U.P. and others v. Nand Kishore Shukla and another** {(1996) 3 SCC 750} wherein in para 7 it was held thus: “7. It is settled law that the court is not a court of appeal to go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a government servant based upon the proved misconduct against the government servant. Its proportionality also cannot be gone into by the court. The only question is whether the disciplinary authority would have passed such an order. It is settled law that even one of the charges, if held proved and sufficient for imposition of penalty by the disciplinary authority or by the appellate authority, the court would be loath to interfere with that part of the order. The order of removal does not cast stigma on the respondent to disable him from seeking any appointment elsewhere. Under these circumstances, we think that the High Court was wholly wrong in setting aside the order.” wpc 24333/2009 30 46. Herein, the Appellate Authority has modified the punishment to one of compulsory retirement after assessing various aspects. The discretion has been properly exercised and interference sought for by the petitioner thus cannot be granted by this Court. The enquiry has been held properly after allowing all opportunity to defend. In that view of the matter, the writ petition fails and the same is dismissed. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**