W.P.(C).No.35055 of 2011 (F)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 10TH DAY OF MARCH 2017/19TH PHALGUNA, 1938** **WP(C).No. 35055 of 2011 (F) ----------------------------** **PETITIONER(S): -------------** **SIMON K. FRANCIS, DIRECTOR, M/S CANON GRANITES PRIVATE LIMITED, PERUMBILAVU P.O., KUNNAMKULAM, THRISSUR DISTRICT.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.JIBU P THOMAS SRI.A.R.NIMOD SRI.P.K.SURESH KUMAR (SR.)** **RESPONDENT(S): --------------** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESETED BY THE SECRETARY**| ||**TO ENVIRONMENT (A) DEPARTMENT,**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2**|**THE KERALA STATE POLLUTION CONTROL BOARD,**| ||**REPRESENTED BY ITS CHAIRMAN, PLAMOOD,**| ||**PATTOM P.O., THIRUVANANTHAPURAM-695004.**| |**3**|**SINDHU RAMAKRISHNAN,**| ||**ASSISTANT ENVIRONMENT ENGINEER,**| ||**KERALA STATE POLLUTION CONTROL BOARD,**| ||**HEAD OFFICE, THIRUVANANTHAPURAM-695001.**| |**4**|**SUSEELA NAIR,**| ||**ASSISTANT ENVIRONMENTAL ENGINEER,**| ||**KERALA STATE POLLUTION CONTROL BOARD,**| ||**DISTRICT OFFICER, KOLLAM-691001.**| |**5**|**BIJU M.B.,**| ||**SENIOR GRADE ASSISTANT,**| ||**KERALA STATE POLLUTION CONTROL BOARD,**| ||**DISTRICT OFFICE, MALAPPURAM-676505.**| **WP(C).No. 35055 of 2011 (F) ----------------------------** **6 K.S. VINAYA, ASSISTANT ENGINEEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, KASARAGOD-671121.** **R1 BY SR. GOVERNMENT PLEADER SRI. BIJOY CHANDRAN R2 BY ADVS. SRI.M.K.CHANDRA MOHANDAS,SC, SRI. M.AJAY, SC SRI. T.NAVEEN SC R3 BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.BINOY VASUDEVAN SMT.P.G.BABITHA R4&R6 BY ADV.SRI.P.V.KUNHIKRISHNAN R5 BY ADVS. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.02.2017, THE COURT ON 10.03.2017 DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 35055 of 2011 (F)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** |**P1**|**TRUE COPY OF THE FINAL REPORT DATED 29.09.2007**| |---|---| |**P2**|**TRUE COPY OF THE LETTER DATED 25.05.2007**| |**P3**|**TRUE COPY OF THE MEMO OF CHARGES OF THE 3RD RESPONDENT**| ||**DATED 22.12.2009**| |**P4**|**TRUE COPY OF THE MEMO OF CHARGES OF THE 4TH RESPONDENT**| ||**DATED 11.12.2009**| |**P5**|**TRUE COPY OF THE MEMO OF CHARGES OF THE 5TH RESPONDENT**| ||**DATED 22.12.2009**| |**P6**|**TRUE COPY OF THE MEMO OF CHARGES OF THE 6TH RESPONDENT**| ||**DATED 11.12.2009**| |**P7**|**TRUE COPY OF THE JUDGEMENT IN WA.1436/2010 ON THE FILE OF**| ||**THIS HONOURABLE COURT DATED 09.11.2010**| |**P8**|**TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT**| ||**DATED 30.10.2010**| |**P9**|**TRUE COPY OF THE JUDGEMENT IN WPC.33922/2010 ON THE FILE**| ||**OF THIS HONOURABLE COURT DATED 20.12.2010**| |**P10**|**TRUE COPY OF THE JUDGEMENT IN WA.259/2011 ON THE FILE OF**| ||**THIS HONOURABLE COURT DATED 08.04.2011**| |**P11**|**TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT**| ||**DATED 14.10.2011**| |**P12**|**TRUE COPY OF THE JUDGEMENT IN WPC.36205/2007 ON THE FILE**| ||**OF THIS HONOURABLE COURT DATED 09.10.2009**| |**P13**|**TRUE COPY OF THE JUDGEMENT IN WPC.16720/2006 ON THE FILE**| ||**OF THIS HONOURABLE COURT DATED 29.06.2006**| |**P13**|**TRUE COPY OF FIR REGISTERED AS CRIME NO.1624/2014 UNDER**| ||**SECTION 192, 468, 120(b) r/w SECTION 34 OF IPC ON**| ||**03.09.2014 IN IA.16041/2014**| |**P14**|**TRUE COPY OF THE JUDGEMENT IN WA.880/2006 ON THE FILE OF**| ||**THIS HONOURABLE COURT DATED 14.08.2006**| **RESPONDENT(S)' EXHIBITS ----------------------R2(A) TRUE COPY OF THE PROCEEDINGS NO.PCB/E4/3800/2009 DATED 15.05.2010 R3(A) TRUE COPY OF THE JUDGEMENT DATED 10.11.2011 IN WPC.35628/2007** **WP(C).No. 35055 of 2011 (F) ---------------------------** |**R3(B)**|**TRUE COPY OF THE LETTER SUBMITTED BEFORE THE**| |---|---| ||**ENVIRONMENTAL ENGINEER DATED 28.05.2005**| |**R3(C)**|**TRUE COPY OF THE STATEMENT GIVEN BY THIS RESPONDENT TO**| ||**THE CBI DATED 24.08.2006**| |**R3(D)**|**TRUE COPY OF THE LETTER SENT TOT HE CHAIRMAN OF THE BOARD**| ||**ON 24.08.2006**| |**R3(E)**|**TRUE COPY OF THE REPLY TO THE MEMO OF CHARGES DATED**| ||**06.01.2010**| |**R3(F)**|**TRUE COPY OF THE HEARING NOTE OBTAINED BY INVOKING THE**| ||**PROVISIONS OF THE RIGHT TO INFORMATION ACT 2005 DATED**| ||**29.11.2011**| |**R3(G)**|**TRUE COPY OF THE APPEAL PREFERRED AND THE COVERING LETTER**| ||**DATED 20.12.2011**| |**R3(H)**|**TRUE COPY OF THE REQUEST DATED 29.03.2012**| |**R3(I)**|**TRUE COPY OF THE LETTER DATED 1.05.2012**| |**R5(A)**|**DATED 03.12.2011, TRUE COPY OF THE APPEAL FILED BY THE**| ||**PETITIONER THROUGH PROPER CHANNEL**| |**R5(B)**|**DATED NIL, TRUE COPY OF ADDITIONAL GROUNDS OF APPEAL**| ||**FILED BY THE PETITIONER THROUGH PROPER CHANNEL**| **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ANU SIVARAMAN, J.** = = = = = = = = = = = = = = = = = = = = = = = = = = ## **W.P.(C).No.35055 of 2011** = = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 10th day of March, 2017 ## JUDGMENT - 1.This writ petition is filed seeking directions to the 1[st] respondent State to award major penalties to respondents 3 to 6 and for allied reliefs. Exhibit P11 order of the Government finalising the disciplinary proceedings by awarding punishment of barring of three increments without cumulative effect and reinstating them in service is also under challenge. 2. The petitioner, who is an industrialist, had raised a criminal compliant before the CBI Court, Ernakulam in which Exhibit P1 final report dated 29.09.2007 was submitted. The allegation was that respondents 3 to 6 helped the then Member Secretary of the 2[nd] respondent Board in creating forged documents to aid one A.K.Surendran, Environmental Engineer to cover up his attempt to extract illegal gratification from the writ petitioner. Based on Exhibit P1, the CBI recommended criminal prosecution against Sri.A.K.Surendran and disciplinary action against Sri.Jeyaprasad, the then Member W.P.(C).No.35055/11 **2** secretary, as also against respondents 3 to 6. However, the disciplinary action against Sri.Jeyaprasad was finalised awarding censure and he was later appointed as Chairman of the 2[nd] respondent Board. It is submitted that Exhibits P3 to P6 memo of charges were issued against respondents 3 to 6. The petitioner had submitted complaints against the appointment of Sri.Jeyaprasad as Chairman of the Board and as a result he was sought to be removed from the post. Sri.Jeyaprasad filed a writ petition which was dismissed and he preferred W.A.No.1436 of 2010. By a common judgment dated 09.11.2010 a Division Bench of this Court dismissed the appeals and the writ petitions preferred by the petitioner and others and directed the State to register a criminal case against the said Jeyaprasad. Thereafter respondents 3 to 6 were also suspended from service. The suspension was challenged before this Court in W.P.(C). No.33922/2010 which was dismissed on 20.12.2010 and the writ appeal against the said judgment was also dismissed. Thereafter, the disciplinary proceedings continued and Exhibit P11 order imposing the penalty of bar of 3 W.P.(C).No.35055/11 **3** increments was imposed after conducting disciplinary proceedings. This is under challenge in this writ petition. - 3.Heard the learned Senior counsel appearing for the petitioner, the learned senior Government Pleader appearing for the State, learned standing counsel for the 2[nd] respondent Board and the learned counsel for respondents 3 to 6. - 4.The learned counsel for the petitioner would contend that a reading of Exhibits P7, P8 and P9 judgments would show that the instant case involved a serious allegation of corruption and fabrication of documents to cover up the same which were concerted acts done by the former Member Secretary along with the Environmental Engineer with the help and connivance of respondents 3 to 6 . It is contended that the petitioner, who was the complainant before the CBI court and who was instrumental for the enquiry against the erring officers of the Pollution Control Board can, by no stretch of imagination, be equated to a W.P.(C).No.35055/11 **4** busy body or a stranger to the proceedings. It is submitted that the petitioner is vitally interested in the outcome of the disciplinary action initiated against respondents 3 to 6 and that the refusal of the Government to initiate major penalty proceedings against respondents 3 to 6 was vitiated by extraneous considerations and amounted to condonation of their wrongful acts. The learned counsel relied on a decision of the Apex Court in **Rajnit Prasad v. Union of India and others** [(2000)9 SCC 313] to contend that though disciplinary proceedings are essentially a matter between an employee and the employer, it has been stated at paragraph 9 of the said judgment that a person, who is not even remotely connected with those proceedings cannot challenge any aspect of the departmental proceedings or action by filing a writ petition in the High Court. It is therefore contended that since the petitioner is not a stranger to the proceedings and since it was on his complaint that the CBI investigation had been initiated he would have the locus standi to challenge the outcome of the disciplinary proceedings before this Court. W.P.(C).No.35055/11 **5** 5.The learned counsel appearing for the contesting respondents would, on the other hand, contend that Exhibit P1 final report was submitted on 21.08.2007. The complaint which led to the filing of the said final report was admittedly one submitted by the petitioner herein. There was only one accused in the report. Respondents 3 to 6 were shown only as witnesses in the said report. Exhibit P2 clearly directed the initiation of the only minor penalty proceedings as against respondents 3 t 6. Exhibit P2 is dated 25.05.2007. This order was never under challenge. The disciplinary proceedings initiated against the contesting respondents ended with the imposition of penalty on them. It is contended that the writ petitioner, who did not challenge Exhibit P2 at any point in time cannot, after more than four years, maintain a writ petition contending that major penalty ought to have been imposed on the contesting respondents. W.P.(C).No.35055/11 **6** 6.The learned counsel appearing for the contesting respondents placed reliance on decisions of the Apex Court in **Dr.Duryodhan Sahu v. Jithendra Kumar Mishra** [(1998)7 SCC 273], **Gurpal Singh v. State of Punjab and others** [(2005) 5 SCC 136], **Hari Bansh Lal v. Sahodar Prasad Mahto and others** [(2010) 9 SCC 655], **P.Seshadri v. S.Mangati Gopal Reddy and others** [(2011) 5 SCC 484], **Bholanath Mukherjee and others v. Ramakrishna Mission Vivekanada Centenary College and others** [(2011)5 SCC 464], **Ayaabukhan Noorkhan Pathan v.State of Maharashtra and others** [(2013) 4 SCC 465], **Madan Lal v. High Court of Jammu and Kashmir and others** [ (2014) 15 SCC 308] to contend that no writ petition seeking directions to the disciplinary authority to impose a major penalty would be maintainable at the instance of a stranger to the disciplinary proceedings. - 7.I have considered the contentions advanced as well as the pleadings and the materials on record. It is clear that the writ petitioner had been instrumental in the criminal and W.P.(C).No.35055/11 **7** disciplinary action against Sri.Jeyaprasad, who was functioning as Member Secretary and later as Chairman of Pollution Control Board. He had also preferred complaints before the CBI Court as against one A.K. Surendran, Environmental Engineer. This had led to Exhibit P2 recommendation by the CBI which had recommended prosecution of Sri.A.K.Surendran, regular departmental action for major penalty against him as well as departmental action for minor penalty as against Sri.Jeyaprasad and respondents 3 to 6. The question of taking further action as against Sri.Jeyaprasad had culminated in Exhibit P7 judgment by which this Court directed initiation of criminal proceedings against him also. However, as regards respondents 3 to 6, Exhibit P2 remained unchallenged. Therefore, proceedings for imposition of minor penalty were initiated against them which culminated in Exhibit P11 proceedings. Exhibit P2 have become final as against respondents 3 to 6. I fail to see any illegality or material irregularity in the order of the Government imposing the penalty of baring of three increments as against respondents W.P.(C).No.35055/11 **8** 3 to 6. In the light of the fact that Exhibit P2 has become final as against the contesting respondents, I am of the opinion that the catena of decisions relied upon by the learned counsel for the contesting respondents would clearly indicate that the petitioner, who is a stranger as far as the disciplinary proceedings are concerned, would not be entitled to challenge the order imposing penalty on the ground that the penalty imposed is inadequate. As far as the disciplinary proceedings are concerned, I am of the definite view that the imposition of the penalty is a matter vesting completely within the discretion of the disciplinary authority and no material is pleaded or produced to contend that the said discretion was wrongly exercised. In the above view of the matter, I find no merit in the writ petition, the same fails and is accordingly dismissed. sd/- **Anu Sivaraman, Judge** sj