Pallichal S.K. Pramod v. Oommen Chandy and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID THURSDAY, THE 12TH DAY OF SEPTEMBER 2013/21ST BHADRA, 1935 Crl.Rev.Pet.No. 1096 of 2013 (B) -------------------------------AGAINST THE ORDER IN CRL.M.P.NO.1209/2012 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM DATED 11-01-2013 ## REVISION PETITIONER/COMPLAINANT: ------------------------------------------- PALLICHAL S.K. PRAMOD S/O.PALLICHAL SADASIVAN, SECRETARY ALLA INDIA LAWYERS UNION THIRUVANANTHAPURAM DISTRICT COMMITTE-695020 BY ADVS.SRI.T.B.HOOD SMT.M.ISHA RESPONDENTS/ACCUSED & STATE: --------------------------------------- ## 1. OOMMEN CHANDY CHIEF MINISTER OF KERALA, CLIFF HOUSE THIRUVANANTHAPURAM-695 003 2. DR.AJAY KUMAR, MANAGER, HOMOEOPATHIC MEDICAL COLLEGE, NEMOM THIRUVANANTHAPURAM-695 020 3. STATE OF KERALA REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-682 031 BY SENIOR PUBLIC PROSECUTOR SRI.C.S.MANILAL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **“C.R”** ## **HARUN-UL-RASHID, J. -----------------------Crl.R.P No.1096 Of 2013 ---------------------Dated this the 12[th] day of September, 2013.** ## **O R D E R** The petitioner/complainant in Crl.M.P.No.1209/2012 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram is the revision petitioner. The petition is directed against the order dated 11.1.2013 in Crl.M.P.No.1209/2012. The complaint was filed alleging that the counter petitioners have committed offence punishable under Section 13(1)(c) r/w 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act') and Section 120-B of Indian Penal Code. The court below rejected the complaint finding that the complainant failed to establish a prima facie case in support of the allegations levelled against the respondents. Parties hereinafter are referred to as arrayed in Crl.M.P.No.1209/2012. 2. The complainant is Advocate Pallichal S.K.Pramod. The 1[st] respondent is Sri.Oommen Chandy, the Chief Minister of Kerala and 2[nd] respondent Dr.Ajay Kumar, who is the Manager, Homeopathic Medical College, Nemom, Thiruvananthapuram. The gist of the allegation in the complaint is that the 1[st] respondent, Chief Minister of Kerala, abused his official position and hatched a criminal conspiracy ## **::2::** ## **Crl.R.P.No.1096 Of 2013** with the manager to create 27 posts of non-teaching staff in the Homeopathic Medical College, Nemom, Thiruvananthapuram and obtained undue pecuniary advantage, causing corresponding loss of crores of rupees to the State exchequer. The averments in the complaint and the documents produced by the complainant on perusal would reveal the following among other facts. There was a long pending dispute with respect to the payment of salary for the teaching and non-teaching staff of SVHMC and those disputes were considered at the time when Sri.V.S.Achuthanandan was the Chief Minister. During that period it was decided to convene a meeting of management of SVHMC after the election to the Legislative Assembly. After election, the 1[st] respondent became the Chief Minister. The file concerned was placed before him. A meeting of the Management of SVHMC, representatives of the staff, AKPCT, Government Officials, Ministers etc. was convened on 31.8.2011 at the instance of the 1[st] respondent. In the said meeting a decision was taken to disburse the salary due to the staff covered by Direct Payment System already implemented by virtue of agreement executed between the college management with effect from September, 2011. The meeting also decided to allocate teaching staff as per the guidelines of Central Council of Homeopathy and to explore the possibility of enhancing the strength of non-teaching staff in the Medical College. Subsequently, ## **::3::** ## **Crl.R.P.No.1096 Of 2013** Cabinet Meeting was held on 13.6.2012. Cabinet decided to create posts of 23 non-teaching staff subject to the decision in normative entitlement of posts and also to create four posts of Resident Homeopathic Doctors (RMO). 3. The learned counsel for the revision petitioner submits that Direct Payment System was introduced in the College with retrospective effect from 1.9.2002, that as per the Direct Payment Agreement, appointment in the College could be made only with the approval of the Selection Committee. But, the College management made appointments in violation of the Direct Payment Agreement far in excess of the actual requirement. It is further submitted that the Special Private Secretary to the 1[st] respondent vide note dated 29.7.2011 in his official letter head requested to circulate the file to the 1[st] respondent, that the file was circulated as desired by him and the 1[st] respondent directed to convene a meeting on 31.8.2011. In the meeting held on 31.8.2011, the 1[st] respondent chaired the meeting. Minister for Health, Principal Secretary to Government, Health & Family Welfare Department, representatives of the College Management and others attended the meeting. According to the complainant, as per the minutes, only three decisions were taken in the meeting. The minutes was submitted to the 1[st] respondent for perusal and approval on 7.9.2011. It is alleged that the 1[st] respondent ## **::4::** ## **Crl.R.P.No.1096 Of 2013** subsequently, added 7 more decisions in the minutes and signed the file on 4.10.2011 with an endorsement “minutes as revised approved”. The learned counsel submits that the 1[st] respondent, Chief Minister, revised the minutes and incorporated decisions which were in fact not taken in the meeting only to favour the 2[nd] respondent. It is further alleged that the 1[st] respondent on 21.11.2011 directed the Health Department to place the file before him immediately. It is alleged that by an endorsement made in the file on 9.12.2011, the 1[st] respondent directed to issue orders before 31.1.2012 in accordance with the decisions taken in the meeting and to submit the file thereafter. 4. According to the complainant, in the detailed note prepared by the officers of the Health Department, it was pointed out that as per the then existing policy decision, hospital staff does not come under the Direct Payment System and the same was approved by the Apex Court. The officers pointed out that if the hospital staff in the College is brought under the Direct Payment System, there is possibility of other two Aided Homeopathic Medical Colleges in the State also claiming the same benefit. The allegation is that the 1[st] respondent directed to create the posts and also directed to create one post of Senior Superintendent and 4 posts of Medical Officers. In the consolidated note prepared by the Home Department, the Department agreed to the suggestion to create teaching staff as per the Central **::5::** ## **Crl.R.P.No.1096 Of 2013** Council of Homeopathy norms limiting the staff strength to 43, but highlighted the necessity to reconsider the direction of the 1[st] respondent to create four posts of Medical Officers and non-teaching staff in the College. The complainant alleges that in the concluding part of the note it was cautioned that if the direction of the 1[st] respondent is implemented, it would create huge loss to exchequer. 5. The meeting of the Council of Ministers held on 13.6.2012 considered the proposal and approved the same. The Council of Ministers decided to create 23 posts of non-teaching staff subject to determination of normative entitlement of posts. Cabinet also decided to create 4 posts of Medical Officers in the College. According to the complainant, the creation of non-teaching staff was not the point for consideration as per the Cabinet note. It is alleged that the 1[st] respondent on 21.6.2012 directed the Chief Secretary to issue Government Order on 22.6.2012 and to resubmit the file. Necessary instructions were given to the Chief Secretary to include the 23 nonteaching staff then working in the College. 6. The petitioner alleges that a direction by the 1[st] respondent to the Chief Secretary on 21.6.2012 to issue Government Order including the 23 non-teaching staff then working in the College was beyond the scope of the decision taken by the Council of Ministers. According to him the Cabinet decision was convened for creation of 23 **::6::** ## **Crl.R.P.No.1096 Of 2013** posts of non-teaching staff subject to determination of normative entitlement of posts. It is also pointed out that direction issued by the Chief Secretary to issue orders subject to the condition that if there is any surplus staff after normative assessment, they would be treated as supernumerary is against the decision of the Council of Ministers. It is also alleged that the Government accorded sanction for only 14 nonteaching posts in the aided Homeo Medical Colleges in the State as per order issued on 22.3.2013. At the same time, there are 52 sanctioned posts of non-teaching staff in Nemom Homeo Medical College. It is submitted that there are 38 excess posts of non-teaching staff in Nemom Homeo Medical College and the 38 excess posts would be treated as supernumerary and the Government have to pay salary to those excess staff. 7. The allegation against the 1[st] respondent is that the 1[st] and 2[nd] respondents hatched a criminal conspiracy to create 27 posts and adopted corrupt and illegal means, which resulted in heavy financial loss to the Government and corresponding pecuniary advantage to the 2[nd] respondent. According to the complainant the 1[st] respondent Chief Minister manipulated the minutes of the meeting convened by him, directly intervened at all stages of decision making process, summoned the file on four occasions when valid objections were raised by the Secretary to Government, Health and Family Welfare Department, **::7::** ## **Crl.R.P.No.1096 Of 2013** bypassed the Finance Department and when the Health Secretary declined to issue order which was contrary to the Cabinet decision, the 1[st] respondent again summoned the file and directed the Chief Secretary to issue orders. 8. I have examined the complaint and also the documents produced by the complainant in support of the allegations made in the complaint. The allegation is that respondents 1 & 2 hatched a conspiracy. The place of meeting nor the date of meeting is not averred in the complaint. The documents produced also would not show that there was a meeting between respondents 1 & 2. In the meeting convened on 31.8.2011 the 2[nd] respondent did not participate. Only his representatives were present. Neither the documents nor the averments in the complaint shows that both met on any day and hatched the conspiracy. The file shows that the then Health Minister Smt.P.K.Sreemathy Teacher who is a member of the Cabinet headed by the former Chief Minister Sri.V.S.Achuthanandan ordered to place the proposal of meeting of Management of SVHMC after the elections to the Assembly. After the election, the file was placed before the 1[st] respondent, the new Chief Minister, who was pleased to convene a meeting of the Management and other representatives on 31.8.2011. Considering the recommendations of that meeting, the meeting of the Cabinet was held on 13.6.2012 in which the impugned decisions were **::8::** ## **Crl.R.P.No.1096 Of 2013** taken. The records also show that the Finance Department had initially concurred with the creation of 21 posts of non-teaching staff and thereafter it was only in view of the clarification given by the then Chief Secretary to implement the decision of the Cabinet, subject to the condition that if at the end of the normative decision there is any surplus staff they will be treated as supernumerary. It is seen that the decision of the Cabinet was implemented with the concurrence of the Finance Department. Further it is revealed that creation of 23 posts of non-teaching staff and 4 posts of Resident Medical Officers were only to accommodate the existing staff and Doctors working in the Medical College. The documents also reveal that the process of making staff pattern in uniform manner is under progress. It is also evident that it was only with an intention to resolve long pending disputes with respect to entitlement of the teaching and non-teaching staff of the Medical College to receive salary directly from the Government the 1[st] respondent convened a meeting and thereafter in view of the decisions taken in that meeting, the matter was placed before the Cabinet which had approved the proposal of creating the posts of 23 non-teaching staff and 4 Resident Medical Officers. It is also seen from the records that College Management, teaching staff and non-teaching staff are making representations to the Ministry from 5.8.2010. It is also seen that on 11.10.2010, the Principal and College Management submitted **::9::** ## **Crl.R.P.No.1096 Of 2013** representations to the Secretary, Health and Family Welfare Department and the Kerala Private College Teachers Association submitted representation on 23.8.2011. The minutes dated 14.3.2011 of the then Ministry recommended convening of the meeting after the election. 9. Criminal conspiracy cannot be inferred on the mere fact that there were official discussions between the officers of the Government, Chief Minister, Ministers and representatives of the Management which are all recorded. Suspicion, however, strong, cannot take the place of legal proof. There was no meeting in this case between respondents 1 & 2 so as to infer the existence of a criminal conspiracy. A wrong decision or an inaccurate or incorrect approach or poor management by itself cannot be said to be a product of criminal conspiracy. 10. The decision to create 23 posts of non-teaching staff subject to normative entitlement of posts is placed before the Government on the basis of the decision taken in the meeting convened by the Chief Minister and Minister for Health on 31.8.2011. The Cabinet decided to create the posts of 23 non-teaching staff and 4 teaching staff and it is the Cabinet which decided to take action to formulate normative entitlement of non-teaching staff in the three Aided Homeopathic Colleges as per the University Statute in the State ## **::10::** ## **Crl.R.P.No.1096 Of 2013** within three months as concurred to by the Finance Department. As the Government could not accommodate 31 teaching staff and 25 nonteaching staff those who became excess in subject categories approached the Government for getting their appointment under Direct Payment System. Many of them approached this Court by filing various writ petitions. Government seized the matter and a meeting under the Chairmanship of the Chief Minister was held on 31.8.2011 to find a solution to the problem. In the meeting, in tune with the Central Council of Homeopathic Pattern it has also been decided to create more non-teaching posts in the College, if found necessary, subject to the condition that the total number of non-teaching staff shall not exceed 41 in number. In the said meeting in addition to the above, it has also been decided to create 4 posts of RMOs in the Hospital attached to the Medical College. Pursuant to the Cabinet decision, the Health and Family Welfare (J) Department issued G.O. (MS)185/2012/H&FWD dated 18.6.2012 according sanction to create 4 posts of RMOs in the College. In the said Government Order it is stated that orders of creation of non-teaching staff will be issued separately. The meeting dated 31.8.2011 convened by the Chief Minister was attended by officers, representatives of the Management and representatives of the various Association of teachers. The meeting was convened and conference conducted of all persons ## **::11::** ## **Crl.R.P.No.1096 Of 2013** concerned to discuss the problem relating to fixation and disbursement of salary of the employees of the Medical College. The Cabinet decision was taken on the basis of the recommendations of the decision taken in the meeting dated 31.8.2011. There is an allegation that some of the officers manipulated the minutes. If the allegation is true, those who manipulated the minutes should also have been made as accused in the criminal complaint. 11. The learned counsel for the revision petitioner Sri.T.B.Hood placed reliance on the decision reported in _**Helios and Mathewson Information Technology Ltd. and others v. Rajeev Sawhney and**_ _**another**_ (2012 (1) SCC 699) and contended that if the complaint thus contains assertions with sufficient amount of clarity on facts and events, which if taken as proved, can culminate in order of conviction against accused persons, then it is precisely the test to be applied while determining whether court taking cognizance and issuing process was justified in doing so. The learned counsel also relied on the decision reported in _**Chandra Deo Singh v. Prakash Chandra Bose**_ _**alia Chabi Bose and another**_ (AIR 1963 SC 1430) and contended that for determining the question whether any process to be issued or not, what the Magistrate has to be satisfied is “whether there is sufficient ground for proceeding and not whether there is sufficient ground for convicting”. The Apex Court held that whether the ## **::12::** ## **Crl.R.P.No.1096 Of 2013** evidence is inadequate the same can be determined at the time of trial and not at the stage of enquiry. In the decision of the Apex Court reported in _**Subramanian Swamy v. Manmohan Singh and another**_ (2012 (3) SCC 64) it was held that before issuing the process, it is open to the court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the court may direct the issue of process to the respondent and take further steps in the matter. The scope of enquiry under Section 202 is examined in detail in the decisions reported in _**National Bank of Oman v. Barakara Abdul Aziz and another**_ (2013 (2) SCC 488), _**Srinivas Gundluri and others v. Sepco Electric Power Construction Corporation and others**_ (2010 (8) SCC 206), _**Adalat Prasad v. Rooplal Jindal and others**_ (2004 (7) SCC 138), _**Mohinder Singh v. Gulwant Singh and others**_ (1992 (2) SCC 213), _**Rashmi Kumar v. Mahesh Kumar Bhada**_ (1997 (2) SCC 397). 12. One of the objects behind the provisions of Section 202 Cr.P.C is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. It is for the court to find out what materials there is to ## **::13::** ## **Crl.R.P.No.1096 Of 2013** support the allegations made in the complaint. While making an enquiry duty is cast upon the Magistrate to elicit all facts not merely with a view to protect the interests of an absent accused person but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the materials placed before him by the complainant. The defence of the accused can only be enquired into at the trial stage. Enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be one trial for an offence. It is settled law that permitting an accused person to interfere during the enquiry would frustrate its very object. The accused person at this stage has no right to take part in an enquiry. The learned Special Judge should not have heard the learned Legal Advisor for and on behalf of respondents when the legislature has made no specific provision permitting the accused person to take part in an enquiry. The enquiry is no doubt for the purpose of ascertaining the truth or false of the complaint and for ascertaining whether there is supporting materials to support the complaint so as to justify the issue of process and commencement of proceedings against the accused. An enquiry under section 202 Cr.P.C shall be done for deciding the question purely on the view point of the complainant without adverting to any defence the **::14::** ## **Crl.R.P.No.1096 Of 2013** accused may have. 13. The learned Advocate General Mr.K.P.Dandapani placed reliance on the decision reported in _**State of Kerala and another v.**_ _**Naveena Prabhu and others**_ in Civil Appeal Nos.1152 & 1153 of 2009. The matter relates to the affairs of Dr.Padiar Memorial Homeopathic Medical College, Chottanikkara. In that case the hospital staff of the said College filed writ petitions seeking a declaration that they should also be brought under the Direct Payment System with effect from 1.1.2000. The contention was found favourably by the learned Single Judge. The learned Single Judge disposed of the writ petition with a direction that the said hospital staff should also be brought under the Direct Payment System with effect from 1.1.2000. The said judgment was confirmed by the Division Bench. The State of Kerala preferred Civil Appeal Nos.1152 & 1153 of 2009 before the Apex Court. The Apex Court allowed the appeals and dismissed the writ petitions. The Apex Court held as follows: “T _he decision of the Government to exclude the staff of the hospital attached to the college from the purview of the aforesaid orders was made specifically stating that direct payment system is not introduced by the Government so far as college hospital is concerned. The same being a policy decision of the Government and having not been challenged as either arbitrary or discriminatory at any stage by the respondents, thus we_ ## **::15::** ## **Crl.R.P.No.1096 Of 2013** _are not called upon to scrutinize the legality and validity of the aforesaid decision. Besides, the same being a policy decision of the Government, the same stands as this Court generally does not interfere with the policy decision of the Government_ ”. It is contended that the 23 posts of non-teaching staff was additionally created only to accommodate the existing non-teaching staff for whom the Government is bound to pay salary as per the direction given by this Court. It is pointed out that creation of 4 posts of RMOs is strictly in accordance with the CCH regulations and that all the decisions taken are policy decisions taken by the Government which cannot be a subject of challenge. It is further pointed out that all the 23 nonteaching staff and 4 RMOs are entitled to receive salary from the Government subject to the condition imposed by this Court at the time of disposal of the cases filed by them. This Court in the cases issued direction to the Government to make staff pattern in respect of nonteaching staff in uniform manner in the three Homeo Medical Colleges within a time schedule. The file shows that the process of making of staff pattern in uniform manner is under consideration. On a perusal of the materials produced by the complainant it is seen that it was only with an intention to resolve long pending disputes with respect to the entitlement of the teaching and non-teaching staff of SVHMC to receive salary directly from the Government that the 1[st] respondent had ## **::16::** ## **Crl.R.P.No.1096 Of 2013** convened a meeting and thereafter the matter was placed before the Cabinet which approved the proposal of creation of 23 posts of nonteaching staff and 4 RMOs. Apart from the bald allegations, there are absolutely no materials to support the allegation that the decision taken was intended to benefit the management of the College and for that purpose the 1[st] respondent had obtained illegal gratification. 14. It is submitted by the complainant that the management had appointed excess staff with ulterior motive accepting bribe from the staff and the 1[st] respondent had taken the impugned decision ignoring valid objections raised by various departments. 15. On a thorough examination of the materials placed before this Court, this Court is of the view that there is no sufficient material to proceed against the respondents who are arrayed as accused Nos.1 & 2. I find no reason to interfere with the order passed by the learned Special Judge. In the result, the criminal revision petition is devoid of any merit and accordingly dismissed reserving the right of the complainant to agitate the issue before the appropriate forum, if so advised. **HARUN-UL-RASHID, Judge.** bkn/-