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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
FRIDAY, THE 5TH DAY OF OCTOBER 2012/13TH ASWINA 1934
WP(C).No. 20863 of 2012 (G)
---------------------------
PETITIONER(S):
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JEYAPRASAD S.D., AGED 57 YEARS
S/O.LATE SUKUMARAN DEVADAS, LUTETIA, CONCORDIA LANE
PEROORKADA P.O., THIRUVANANTHAPURAM-695005.
BY ADVS.SRI.JOSEPH KODIANTHARA (SR.)
SRI.BABU JOSEPH KURUVATHAZHA
SRI.T.K.BIJU (MANJINIKARA)
RESPONDENT(S):
--------------
GOVERNMENT OF KERALA
REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT
DEPT. OF ENVIRONMENT, GOVT. SECRETARIAT
THIRUVANANTHAPURAM-695001.
Addl.2. SRI.JAMES VARGHESE
PRINCIPAL SECRETARY TO THE GOVERNMENT
ENVIRONMENT DEPARTMENT, GOVERNMENT OF KERALA
THIRUVANANTHAPURAM.ADDL. R2 IS IMPLEADED SUO MOTU AS PER ORDER
DATED 11/09/2012 .
Addl.3. SIMON .K.FRANCIS
DIRECTOR, M/S.CANON GRANITES PRIVATE LIMITED
PERUMBILVAU.P.O., KUNNAMKULAM, THRISSUR DISTRICT.ADDL. R3 IS
IMPLEADED AS PER ORDER DATED 27/09/2012 IN IA 12611/2012.
RADDL.3 BY ADV. SRI.T.C.SURESH MENON
RADDL.3 BY ADV. SRI.P.S.APPU
RADDL.3 BY ADV. SRI.A.R.NIMOD
RADDL.3 BY ADV. SRI.K.A.ANAS
BY ADV. GOVERNMENT PLEADER SRI.SHAIJRAJ K.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC NO.20863/12
APPENDIX
PETITIONER'S EXHIBITS
EXHIBIT-P1. TRUE COPY OF G.O.(MS) NO.104/2005/H & FWD DATED 16.4.2005
ISSUED BY THE RESPONDENT.
EXHIBIT-P2. TRUE COPY OF THE REPORT BEARING NO.PCB/TSR/CA/85/97 DATED
28.5.2005 SENT BY THE ENVIRONMENTAL ENGINEER, PCB, THRISSUR.
EXHIBIT-P3. TRUE COPY OF THE MEMO OF CHARGES BEARING
NO.11787/A1/08/ENVT.DATED 31.10.2008 ALONG WITH STATEMENT OF
ALLEGATIONS ISSUED BY THE RESPONDENT.
EXHIBIT-P4. TRUE COPY OF THE EXPLANATION DATED 10.8.2009 SUBMITTED BY
THE PETITIONER BEFORE THE RESPONDENT.
EXHIBIT-P4(a).TRUE COPY OF G.O.(RT) NO.71/09/ENVT.DATED 31.8.2009
ISSUED BY THE RESPONDENT.
EXHIBIT-P5. TRUE COPY OF THE ORDER GO (MS) NO.03/09/ENVT.DATED 19.9.2009
NOTIFIED IN THE KERALA GAZETTE NO.45 DATED 17.11.2009 BY THE GOVERNMENT.
EXHIBIT-P6.TRUE COPY OF THE ORDER NO.GO (RT) NO.22/10/ENVT.DATED
24.3.2010 ISSUED BY THE RESPONDENT.
EXHIBIT-P7. TRUE COPY OF THE NOTICE NO.16664/A1/09-ENVT.DATED 27.3.2010
ISSUED BY THE RESPONDENT.
EXHIBIT-P8. TRUE COPY OF THE JUDGMENT DATED 4.6.2010 IN W.A.NO.905/2010
OF THIS HON'BLE COURT.
EXHIBIT-P9. TRUE COPY OF THE REVIEW PETITION DATED 24.4.2010 SUBMITTED
BY THE PETITIONER BEFORE THE RESPONDENT.
EXHIBIT-P10.TRUE COPY OF THE PROCEEDING NO.16664/A1/09 ENVT.DATED
14.6.2010, ISSUED BY THE RESPONDENT.
EXHIBIT-P10(a).TRUE COPY OF THE JUDGMENT DATED 9.11.2010 IN W.P.(C)
NO.11235/2010 OF THIS HON'BLE COURT.
EXHIBIT-P11.TRUE COPY OF THE EXPLANATION DATED 20.11.2010, OFFERED BY
THE PETITIONER BEFORE THE RESPONDENT.
EXHIBIT-P12.TRUE COPY OF THE GO (MS) NO.03/10/ENVT. DATED 20.11.2010,
ISSUED BY THE RESPONDENT.
EXHIBIT-P12(a).TRUE COPY OF THE ORDER DATED 23.11.2010 IN SPECIAL LEAVE
TO APPEAL (CIVIL) NOS.32394-32936/2010 OF THE HON'BLE SUPREME COURT OF
INDIA.
CONTD..2..
--2--
EXHIBIT-P13.TRUE COPY OF THE REVIEW PETITION DATED 3.12.2010 SUBMITTED
BY THE PETITIONER BEFORE THE GOVERNMENT.
EXHIBIT-P14.TRUE COPY OF THE JUDGMENT DATED 8.11.2011 IN W.P.(C)
NO.25661/2011 OF THIS HON'BLE COURT.
EXHIBIT-P15.TRUE COPY OF THE ORDER G.O.(RT) NO.119/12/ENVT. DATED
7.8.2012 ISSUED BY THE RESPONDENT.
EXTS OF R2
EXT.R2(a): TRUE COPY OF THE ORDER ISSUED BY THE GOVERNMENT DATED
14.10.11.
EXT.R2(a): GOVERNMENT LETTER NO.1652/A1/11/ENVT. DATED 4.11.11.
//True Copy//
PA to Judge
Rp
ANTONY DOMINIC, J.
================
W.P.(C) NO. 20863 OF 2012
===================
Dated this the 5th day of October, 2012
J U D G M E N T
In this writ petition, the prayers sought are to direct the 1st respondent to extend all benefits consequent to the annulling of Ext.P6 order by appropriate modification to Ext.P15 order and also to direct that the petitioner be allowed to continue as Member and Chairman of the Kerala State Pollution Control Board. A declaration that Ext.P12 order of the 1st respondent is void ab- initio is also sought for.
2. By Ext.P1 order dated 16/4/2005, the 1st respondent appointed the petitioner as Member Secretary of the Kerala State Pollution Control Board (hereinafter referred to as 'Board' for short). While the petitioner was continuing as Secretary, in relation to the trial run conducted in the industrial unit of M/s.Canon Granites Private Limited, Vigilance and Anti Corruption Bureau had registered VC No.7/05 against Sri.A.K.Surendran, Environmental Engineer of the Board. That trial run was conducted pursuant to the judgment of this court in WP(C) No. 19759/05 filed by M/S.Canon Granites Private Limited, WPC.No.20863/12 :2 : Subsequently, WP(C) No. 19757/05 was filed by the additional 3rd respondent alleging foul play by the VACB and pursuant to the orders passed by this Court, the investigation of the vigilance case was handed over to the Central Bureau of Investigation The CBI completed investigation and filed its final report. Based on the findings in the investigation report of the CBI, Ext.P3 memo of charges dated 31/10/2008 alleging violation of Rule 3 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (hereinafter referred to as "the Rules" for short) and statement of allegations were issued to the petitioner. On receipt of the memo of charges and statement of allegations, petitioner filed Ext.P4 explanation. The Government adopted the summary procedure contemplated under Rule 16 read with Rule 11 of the Rules and concluded the disciplinary proceedings by Ext.P6 order dated 24/3/10 and a minor penalty of censure was awarded. This order gives the background of the disciplinary action and therefore, the relevant portion of the order, is extracted below for reference:-
The brief history of the case for which charges were levelled against him is as follows:
WPC.No.20863/12 :3 : Based on the complaint of Shri Simon K.Francis, Director, M/s.Canon Granites Pvt. Ltd., that Shri A.K.Surendran, Environmental Engineer, Kerala State Pollution Control Board, Trichur was demanding bribe of Rs.15 lakhs from him for not showing him official dis- favour in the matter of conducting trial run in the premises of M/s.Canon Granites Pvt. Ltd. And for giving favourable report, a case in VC 7/2005 was registered by Dy.SP, Vigilance & Anti Corruption Bureau, Trichur and a trap was laid on 28/5/2005 at about 7 pm in which one Shri P.Rajendran working in Sreebhavan Hotel, Ollur, received a packet containing Rs.2 lakhs from the complainant as per the directions of Shri A.K.Surendran communicated through one Shri K.N.Gopalakrishnan of Sreebhavan Hotel.
Upon coming to know of the said trap, Shri A.K.Surendran and other officials of Kerala State Pollution Control Board, Trichur, namely Smt.Sindhu Radhakrishnan, Assistant Environmental Engineer, Smt.Suseela Nair, Assistant Engineer, Smt.K.S.Vinaya, Assistant Engineer and Smt.Bindu Vinod, Junior Scientific Assistant on daily wages, agreed among themselves to create false defence documents to show as if an adverse report had already been sent against M/s.Canon Granites Pvt. Ltd. Before the passing of the bribe money and thereby that there was no motive for the bribe amount being taken on behalf of Shri Surendran and, in pursuance of the said agreement, the said officials namely Smt.Sindhu Radhakrishnan, Smt.Suseela Nair, Smt.K.S.Vinaya and Smt.Bindu Vinod unauthorisedly came to the District office of Kerala State Pollution Control Board, Trichur on 29/5/2005 (Sunday) and Smt.Sindhu Radhakrishnan, Smt.Suseela Nair, Smt.K.S.Vinaya created a letter falsely dated 28.5.2005 addressed to Standing counsel of Kerala State Pollution Control Board in the Honourable High Court of Kerala, Ernakulam, with a copy marked to the Member Secretary, Kerala State Pollution Control Board, Thiruvananthapuram conveying that the result of the conduct of the trial run at M/s Canon Granites (P) Ltd was adverse and Smt.Bindu Vinod falsely showed the dispatch of the said letter on 28/5/2005 in the dispatch register.
WPC.No.20863/12 :4 : The investigation of the said case was taken over by the Central Bureau of Investigation in compliance to the direction issued by the Honourable High Court of Kerala. During the CBI investigation, Shri Jeyaprasad has produced before the Investigating Officer, a photo copy of the said letter in which he has falsely and with the intention to support the false claim of Shri A.K.Surendran and others the said letter was dispatched on 28.5.2005, put his initial and date as 28/5 with the intention of showing that the said letter was received by him before the passing of the bribe money and thereby to make it appear that there was no motive for the bribe being received on behalf of Shri A.K.Surendran and falsely claimed before the Investigating officer that the said letter was received by him from Sri.A.K.Surendran on 28/5/2005, while passing through Trichur whereas the letter was made only on 29.5.2005 dispatched thereafter and reached the office of the Member Secretary, Kerala State Pollution Control Board only on 3/6/2005.
Shri SD Jeyaprasad in his written statement of defence read as 2nd paper above has denied the above charges and has requested to drop all further disciplinary proceedings initiated against him.
Government have examined the statement of defence furnished by Shri S.D.Jayaprasad with reference to connected records and found that the same is not satisfactory. Government also found that he had violated Rule 3 of Kerala Government Servants Conduct Rules, 1960, and hence he is found guilty of the charges levelled against him.
In the above circumstances Government order that the punishment of 'Censure' be imposed on Sri.S.D.Jayaprasad, Chairman, Kerala State Pollution Control Board under Rule II of Kerala Civil Services (Classification, Control & Appeal) Rules, 1960 for his above lapses, while holding the post of Member Secretary of Kerala State Pollution Control Board.
The disciplinary proceedings initiated as per the Memo of charges read as 1st paper above is disposed of as above."
WPC.No.20863/12 :5 :
3. In the meantime, despite the pendency of the disciplinary action against him, by Ext.P4(a) dated 31/8/2009, the 1st respondent appointed the petitioner as Chairman of the Board for a period of one year. While he was continuing as Chairman, Government issued Ext.P5 notification reconstituting the Board with the petitioner as the Chairman.
4. Subsequent to the issuance of Ext.P6 order of censure, Government issued Ext.P7 notice dated 27/3/2010 calling upon the petitioner to show cause against the proposal to issue orders amending the term of his appointment and to restrict it to 31/3/2010, so as to make it co-terminus with his date of normal retirement from the Board's service. Petitioner challenged Ext.P7 before this Court in WP(C) No. 11235/10. In that writ petition, this Court stayed the order, but gave liberty to the Government to take appropriate action in the matter. Against that direction, petitioner filed WA 905/10, which was disposed of by Ext.P8 judgment vacating the freedom given to the Government, and directing expeditious disposal of the writ petition itself.
5. While the matter was thus pending, petitioner filed WPC.No.20863/12 :6 : Ext.P9 review petition under Rule 35 of the Rules seeking review of Ext.P6 order awarding penalty of censure. While so, the Government issued Ext.P10 order dated 14/6/2010 by which Ext.P7 show cause notice was withdrawn and referring to the findings in Ext.P6 order imposing censure, petitioner was called upon to show cause why he shall not be removed from service. The relevant portion of Ext.P10 notice reads thus;
"Government is of the opinion that in view of the punishment awarded to you vide G.O cited 2nd above and considering that you have been proven guilty of a misconduct, which is nothing short of moral turpitude your continuance as a member and Chairman of the Kerala State Pollution Control Board is not in public interest.
Government proposes to remove you as member and Chairman of Kerala State Pollution Control Board as per Rule 5(3) of Water (Prevention and Control of Pollution) Act, 1974. You are directed to show cause if any against the proposed decision of Government within 15 days from the date of receipt of this notice. If your reply is not received within the time limit it will be presumed that you have no reply to furnish and further action will be taken accordingly."
6. Producing Exts.P6 and P10 as Exts.P19 and P24 and seeking to set aside both, petitioner filed WP(C) No. 20211/10 before this Court. The aforesaid two cases and the connected writ petitions and appeals were heard by a Division Bench of this Court. These cases were disposed of by Ext.P10(a) judgment WPC.No.20863/12 :7 : rendered on 9th of November 2010. That judgment narrates the entire history of the case and the relevant portion of the judgment, contained in paragraphs 9 to 22, are extracted for reference.
9. W.P.(C) No.20211 of 2010 is filed with the prayer as follows:
"i. issue a writ of certiorari or any other appropriate writ, order or direction quashing Exts.P19 and P24 orders;"
Exts.P19 and P24 which are impugned in the said writ petition are proceedings dated 24.03.2010 and 14.06.2010 respectively. Earlier of the two proceedings is a Government Order, GO(Rt) No.22/10/Envt. by which the Government decided to award the punishment of censure to Jayaparasad for the misconduct alleged in the memo of charges dated 31.10.2008 referred to earlier. It is already noticed that such a punishment was awarded following a summary procedure contemplated under Rule 16 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 without a regular departmental enquiry. The second of the abovementioned proceedings is a show cause notice consequent upon the imposition of punishment mentioned earlier. By the said proceedings, the Government called upon Jeyaprasad to show cause as to why he should not be removed from the office of the Chairman of the Kerala State Pollution Control Board.
10. Coming to W.P.(C) No.11235 of 2010, the prayers are as follows:
"i. issue a writ of certiorari or any other appropriate writ, order or direction quashing the operation and all further proceedings in pursuance to Ext.P6;
ii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to permit the petitioner to continue to hold WPC.No.20863/12 :8 : the office of the Chairman of the Kerala State Pollution Control Board, until his term of office, as contemplated under Section 5(1) of Act 6 of 1974 and Section 7(1)of Act 14 of 1981 expires and the successor enters in office;" The impugned proceedings, Ext.P6 dated 27.03.2010, is already extracted earlier in this judgment. The substance of the said proceedings is that it is a notice calling upon Jeyaprasad to explain why his tenure as the Chairman of the Kerala State Pollution Control Board should not be confined to 31st March, 2010.
11. The main submission made in the said writ petition is regarding the competence of the State to reduce the tenure of the office as proposed in the show cause notice dated 27.03.2010. The submission is that under Section 7(1) of the Air(Prevention and Control of Pollution) Act, 1981 a member of the Board constituted under the said Act shall hold the office for a term of 3 years from the date on which his nomination is notified in the Official Gazette, therefore the tenure statutorily fixed cannot be curtailed by the Government.
12. Jeyaprasad was appointed as the Chairman of the Kerala State Pollution Control Board in exercise of the powers conferred on the Government of Kerala both under Section 4 (2) (a) of the Water (Prevention and Control of Pollution) Act, 1974 and Section 5 (2) (a) of the Air (Prevention and Control of Pollution) Act, 1981. Section 8 of the Air (Prevention and Control of Pollution) Act, 1981 and Section 6 of the Water (Prevention and Control of Pollution) Act, 1974 prescribed certain disqualifications. Both the Sections stipulate that no person who suffers any one of the specified disqualifications under either of the abovementioned Sections shall be a member of the State Pollution Control Board. Conviction for an offence which in the opinion of the Government involves moral turpitude is one of the disqualifications prescribed under both the enactments.
13. The allegations contained in the charge memo dated 31.10.2008, if proved against Jeyaprasad, would render Jeyaprasad guilty of an offence (fabricating false evidence) under Section 192 of the Indian Penal Code at the least and may also establish the commission of other WPC.No.20863/12 :9 : offences like abetment etc. We make it clear that we are not recording any conclusive finding that Jeyaprasad is guilty of any such offence but only indicate that allegations made against him, if proved, are likely to result in such a consequence. In spite of the gravity of the allegations the State of Kerala never thought it fit to register a crime against Jeyaprasad much less investigate the same.
14. The necessity to maintain the purity of the administration (in our opinion) squarely demands a proper investigation in accordance with law into such allegations and more particularly when the allegations are made by the State itself in a departmental proceedings. The primary responsibility of the State is to maintain law and order and also the constitutional obligation to provide a rational and clean governament oblige the State to investigate allegations of commission of crime whenever they come to the notice of the State. The State cannot act arbitrarily by selectively applying the law. That would be negation of the Rule of law. The background in which the allegations of fabrication of false evidence is made against Jeyaprasad is already noticed. The two cases against Surendran under the Prevention of Corruption Act are already being investigated by the Delhi Special Police Establishment [popularly known as Central Bureau of Investigation(CBI)] pursuant to an order of this Court dated 24.02.2006 in W.P.(C) No.19757 of 2005. In the context of the said case, the allegations against Jeyaprasad, in our opinion, may also give rise to a charge of abetment. The State does not come forward with any explanation as to why such allegations are never subjected to any investigation in accordance with law. On the other hand, the State of Kerala which had initiated a departmental proceeding against Jeyaprasad by issuing the charge memo dated 31.10.2008 strangely thought it fit to appoint him to be the Chairman of the Pollution Control Board by the order dated 31.08.2009 (some ten months after the initiation of the disciplinary proceedings), without concluding the same. Sections 8 and 6 of the Air and Water Pollution Control Acts positively disqualify persons found guilty of offences involving moral turpitude. The State cannot ignore the existence of such allegations which if proved would result in the conviction of a person for offences WPC.No.20863/12 :10 : involving moral turpitude, while choosing people to hold a responsible public office. We are therefore of the opinion that this is a fit case where the State should be directed to register a criminal case in accordance with law on the basis of the allegations made in the memo of charges dated 31.10.2008 framed against Jeyaprasad. We direct accordingly.
15. It is surprising to notice that while making appointments even to Class IV posts under the State the antecedents of the candidate are invariably verified, but in the instant case the State chose to ignore serious allegations existing on record in deciding the desirability of Jeyaprasad to a statutory high office. The statutory authority conferred on the State to appoint members of the Pollution Control Board necessarily implies an obligation on the part of the State to exercise that authority in good faith and the larger public interest. When the law prescribes definite disqualifications which render people suffering from such disqualifications unfit to hold public offices, the State cannot ignore the allegations which indicate the doubtful suitability of the person who is being considered for filling up a public office. Such conduct of the State would not be consistent with its constitutional obligations. It is that failure on the part of the State which gives rise to the present exorbitant claims of Jeyaprasad. Our Constitution designed with the high ideal of protecting the citizens from unfair and arbitrary exercise of State power can also be taken advantage of by citizens of doubtful credentials; when the various organs of the State wittingly or otherwise collaborate.
16. The learned counsel appearing for Jeyaprasad very strenuously argued that though the CBI filed a charge sheet against Surendran, it did not choose to make any indictment against Jeyaprasad and therefore the mere allegation in the charge memo may not be used as a factor for declining the exercise of jurisdiction under Article 226 of the Constitution of India.
17. We regret our inability to accept the submission. The fact that the CBI did not choose to make any indictment against Jeyaprasad in the final report is for an obvious reason that the case which was investigated WPC.No.20863/12 :11 : by the CBI was a case of definite allegations of violations of the provisions of Prevention of Corruption Act against Surendran. Such an investigation was taken up by the CBI pursuant to an order of this Court. There was never any occasion or authorization for the CBI to examine the conduct of Jeyaprasad.
18. The order of this Court entrusting investigation of the case by the CBI against Surendran came to be passed in W.P.(C) No.19757 of 2005 and same remained unchallenged by the State. The circumstances under which such an order came to be passed are explained in the common judgment dated 09.10.2009 in W.P.(C) Nos.36185/07 and 36205/07 which are the subject matter of the appeals, viz. WA Nos.211/10 and 181/10 and the same read as follows:
"Suspecting foul play by the VACB, the petitioner filed W.P.(C) No.19757/2005, seeking a C.B.I investigation, which was ordered by a Single Judge of this Court by judgment dated 15.7.2005, which was set aside by a Division Bench, on the ground that the 4th respondent was not heard before passing that order, directing the Single Judge to hear the matter afresh. The writ petition again came up before another learned Single Judge, who by judgment dated 24.2.2006, after hearing the 4th respondent also, directed the C.B.I. to take over the investigation, accepting the contention of the petitioner that the investigation by the VACB is not proceeding in the right direction, after referring also to the fate of the earlier case against the 4th respondent at the hands of the VACB. Pursuant to the same, the C.B.I. has charge sheeted the 4th respondent, which case is also pending."
19. The second submission made on behalf of Jeyaprasad that a mere allegation of wrong doing cannot disentitle him to seek the constitutional remedy under Article 226 requires an examination. In the normal circumstances the submission would be unexceptionable. But the consistent reluctance of the State in dealing with Jeyaprasad and Surendran in accordance with law, and in fact that at every stage this Court had to intervene to compel the State to act in accordance with law are factors which distinguish Jeyaprasad for a separate treatment. Apart from that the manner in which WPC.No.20863/12 :12 : Jeyaprasad dealt with Surendran in spite of the serious allegations against him is also a strong factor that should weigh with the Court in deciding whether the discretion should be exercised in his favour. We desist from explaining those factors for the reason that any observation in that regard is likely to have an adverse effect on the investigation of the crime to be registered against Jeyaprasad. Exercising the discretion under Article 226 in a case with such factual background in our view is likely to promote a misconception that the judicial branch of the Constitution is not different from the other branches. No misconception could do more lasting injury to this Court and to the system of law. It is immaterial whether justice is done or not to Jeyaprasad.
20. In the background of the facts narrated above the question arises whether this Court should really exercise the extraordinary jurisdiction vested in it by the Constitution under Article 226 to issue writs or orders in the nature of mandamus or certiorari. It is well settled that both the writs are discretionary in nature but not writs of right. The extraordinary jurisdiction is created for the protection of the fundamental rights of the subjects and to prevent the abuse of the State's power. The jurisdiction is to be exercised either for the enforcement of a legal right of the subject or the enforcement of the legal obligations of the State. Courts have recognised a number of exceptional circumstances which justify the refusal to exercise the jurisdiction even in those cases where there is a clearly established legal right or obligation.
21. We are of the opinion that exercising the jurisdiction under Article 226 in favour of a person whose credentials to hold a public office are highly doubtful and who would be disqualified to hold the public office in question if the allegations made against him are investigated and proved before a competent criminal court, would be not a sound exercise of the discretion vested in this Court under Article 226 of the Constitution of India.
22. For the above mentioned reasons, W.P.(C) No.20211 of 2010 is dismissed. For the same reasons, W.P.(C)No.11235 of 2010 is also dismissed. W.A. WPC.No.20863/12 :13 : No.1436 of 2010 which arises out of an order passed in I.A. No.10950 of 2010 in W.P.(C) No.11235 of 2010 should naturally stand dismissed consequent upon the dismissal of W.P.(C)No.11235 of 2010.
7. Aggrieved by Ext.P10(a) common judgment rendered by this Court, petitioner filed SLP Nos.32934 - 32936/10 before the Apex Court. In those SLPs, the Apex Court passed Ext.P12(a) order dated 23/11/2010 granting leave confining to the direction in Ext.P10(a), the Division Bench judgment, where it was directed that FIR should be registered against the petitioner and that direction alone was ordered to be stayed. The relevant portion of the order reads thus:-
"Issue notice confined to the question as to whether the Division Bench of the High Court was justified in issuing direction to the State for registration of a criminal case against the petitioner, returnable in four weeks".
8. Thus, by virtue of Ext.P10(a) judgment of the Division Bench of this Court, dismissing WP(C) No. 20211/10 and since the Apex Court did not grant leave against the said judgment, the punishment of censure imposed by Ext.P6 order has been upheld by this Court and the judgment has become final and binding on the parties.
9. Petitioner says that in the meanwhile, he filed Ext.P11 WPC.No.20863/12 :14 : dated 20/11/2010, a belated explanation to Ext.P10 show cause notice issued by the Government proposing his removal, which specifically required him to file explanation within 15 days. On 20/11/2010 itself, referring to reply dated 9/11/2010 filed by the petitioner, 1st respondent issued Ext.P12 order removing the petitioner from service. The relevant portion of this order reads thus;
"Sri.Jeyaprasad has furnished a reply on 9.11.2010 to the Show Cause notice dated 14.6.2010, requesting two week time to give explanation on the basis of judgment cited above, Government have found this reply unsatisfactory and is rejected. In view of the grave charges of misconduct and offences by Sri.S.D.Jeyaprasad proven in the CBI investigation and which is due for further police investigation as above and also considering the fact that his term of appointment as Chairman vide G.O. read as 1st above was for one year which has expired on 30.8.2010, the appointment of Sri.S.D.Jeyaprasad as Chairman and member of Kerala State Pollution Control Board is terminated with immediate effect under Section 5 (3) of Water (Prevention & Control of Pollution) Act, 1974. His appointment as Chairman under the Air (Prevention & Control of Pollution) Act is also terminated under Rule 8(1)(c) of the Air Act, 1981. Smt.P.Molikutty, Chief Environmental Engineer holding the charge of the Member Secretary, Kerala State Pollution Control Board shall assume the additional charge of Chairman, Kerala State Pollution Control Board forthwith, until further orders".
10. Long thereafter, on 26/9/11, petitioner filed WP(C) No. 25661/11 before this Court. In that writ petition, among others, WPC.No.20863/12 :15 : petitioner sought the following relief:-
" ii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent to consider and dispose of Exts.P9 and P13 review petitions filed by the petitioner."
11. Ext.P9 mentioned in the prayer is Ext.P9 in this writ petition, which was filed by the petitioner seeking review of Ext.P6 order. Ext.P13 mentioned above is Ext.P13 herein, the review petition dated 3/12/2010, which the petitioner claimed to have filed, seeking the following prayer:-
"In the above circumstance, I would humbly pray that your esteemed authority may be pleased to conduct an enquiry into the allegations made against me in the 3rd referred memo of charges and statement of allegations and to review and reconsider the 7th referred order of censure, on the basis of the enquiry report and to cancel the operation of the last referred order, on the basis of the report of enquiry as may be conducted in pursuance to the 3rd referred proceeding, at the earliest, without any delay, for enabling me to continue as Chairman of the Board, for the remaining tenure of office."
12. The order sheet of WP(C) No. 25661/11 shows that the case came up for admission on 27/9/11 and was adjourned to 3/10/11 with a direction to the Government Pleader to obtain instructions. On 3/10/11, at the request of the learned Government Pleader, the case was posted to 18/10/11, when at the instance of the petitioner, the case was adjourned to WPC.No.20863/12 :16 : 21/10/11. On 21/10/11, again at the instance of the Government Pleader, the case was adjourned by two weeks and was finally disposed of on 8/11/11 by Ext.P14 judgment. In that judgment, on the basis that aggrieved by Ext.P12 order of termination, petitioner filed the review petition, this Court directed consideration of Ext.P13 review petition in accordance with law. It should be noticed that despite a prayer sought, this Court did not direct consideration of Ext.P9 seeking review of Ext.P6 order. In the purported compliance of the directions in Ext.P14 judgment, the additional 2nd respondent passed Ext.P15 order dated 7/8/12. By this order, he has annulled the penalty of censure imposed on the petitioner by Ext.P6, but however rejected the petitioner's prayer to cancel his removal as ordered in Ext.P12.
13. Ext.P15 Government Order, to the extent relevant, reads thus:
6. In compliance with the judgment read as 3rd paper above directing to dispose of the review petition submitted by Shri.S.D.Jeyaprasad after affording him a personal hearing, he was heard on 3/1/2012. As per his request to hear the witnesses of the handing over of the letter dated 28.5.2005 which is only question at issue in the case, the following persons, who were with the petitioner on 28.5.2005 at Thrissur were also heard:-
WPC.No.20863/12 :17 :
1. Shri.G.Jaya Prakash, then Board Member
2. Shri.Sudheer Babu, CEE, KSPCB (then EE, KSPCB)
3. Shri.M.Dileep Kumar, Director, Suchitwa Mission (then AAE, KSPCB).
4. Shri.Sukumar, then A.E, KSPCB (on deputation from F&B Department)
5. Shri.K.K.Abdul Rahuman, CEE (Rtd.), KSPCB
7. Government have examined the case in detail and came to the following findings:-
(i) The very premise that the dispatch of the letter on 28th May is helpful to the accused in the CBI case is not logical. Even if he head sent the report on 28th May 2005, he could have collected the bribe as the party (M/s.Canon Granites) would not be in the know of things. The knowledge of the party is more important from the point of view and had the accused in the CBI case created a record to show that the party was intimated about the existence of such a document, the argument would have had some force.
(ii) The eye witnesses testified to the effect that the district officer of Pollution Control Board had met the petitioner in this case at Trissur around 5 pm on 28.5.2005 and the dispute is whether the report was handed over at the time or not. It is not unlikely to have taken place.
(iii) Another pertinent issue is as to why CBI didn't enjoin the petitioner as an accused in the case if he had fabricated a document to save the accused. Fabrication of a document is a criminal act. Instead, they opted to recommend departmental action.
Recourse for a criminal act is not departmental action but is prosecution. It makes the case of the review petitioner stronger.
(iv) The evidences furnished by CBI are substantially weakened subsequently when WPC.No.20863/12 :18 : two employees of the Pollution Control Board Office, Trissur gave statements before Magistrate under Section 164 Cr.P.C to the effect that they have direct knowledge about the dispatching of the report on 28.5.2005 itself as claimed by the petitioner in this case.
8. In the light of the above, Government order that the decision to censure the petitioner be annulled retaining the option to reconsider the matter as and when the case charged by CBI is finally decided. In case the Court finds that the review petitioner is culpable (as can be inferred from the stand taken by the court about the veracity of the argument of CBI that the document purported to be executed on 28.5.2005 was actually typed and dispatched on 29.5.2005 only or later), Government could initiate even major penalty.
9. As regards his request for cancelling the operation of G.O(Ms) No.03/10/Envt. Dated 20.11.2010 terminating his appointment as Chairman and Member of the Kerala State Pollution Control Board cannot be considered in view of the unambiguous observations made by the Hon'ble High Court in its judgment dated 9.11.2010 in WP(C) No. 11235/10 filed by Shri.S.D.Jeyaprasad, and also as it is not a matter under consideration in this file."
14. It is on the strength of Ext.P15 order issued by the additional 2nd respondent, this writ petition is filed and the main relief sought is for his reinstatement as Chairman of the Board and other consequential prayers are also sought. When this writ petition was considered on 11th of September, 2012, this Court prima facie felt that the conduct of the officer who issued Ext.P15 WPC.No.20863/12 :19 : order amounted to contempt as defined in the Contempt of Courts Act. Therefore, he was impleaded as additional 2nd respondent and notice was issued and the 2nd respondent has filed his counter affidavit also.
15. Learned senior counsel contended that the service of the petitioner was terminated as per Ext.P12, based on the punishment of censure awarded to him as per Ext.P6. Therefore, according to him, since the censure imposed has been annulled by Ext.P15 order, the basis on which his service was terminated does not survive and as a consequence thereof, the petitioner is entitled to be reinstated in service and granted other reliefs that are sought for in the writ petition. To answer this contention of the petitioner, reference to Ext.P12, which discloses the reasons for his termination, is necessary. This order shows, that in addition to the grave misconducts that were found against the petitioner, Government have also stated that his appointment by Ext.P4(a) Government order was for one year and that the same has expired on 30/8/10. So long as that second order remains in force, even if it is assumed that for valid reasons, Ext.P6 has been WPC.No.20863/12 :20 : annulled, that does not result in a situation where Ext.P12 looses its efficacy. Therefore, this contention does not have any merit.
16. However, there is yet another, a more serious aspect of the matter, viz., whether Ext.P6 order could have been annulled by the 2nd respondent at all. When this question was raised, counsel for the petitioner vehemently contended that in Ext.P14 judgment, this Court directed consideration of Ext.P13 and that in Ext.P13, there was a prayer to reconsider the order of censure also. Therefore, according to the learned senior counsel, the 2nd respondent was well within his rights to reconsider Ext.P6 order also. In my view, this contention is totally untenable and deserves rejection for the following reasons;
(a) In Ext.P14 judgment, this Court only directed consideration of Ext.P13 and clarified that it shall be in accordance with law. Therefore, if legally, it was impermissible for the 2nd respondent to interfere with Ext.P6 order, he was duty bound to decline interference. Therefore, the fact that by Ext.P13 judgment, this Court directed consideration of a review petition does not mean that the statutory authority has the license to WPC.No.20863/12 :21 : abuse his position in the manner it was done in this case. The 2nd respondent should have remembered that in WP(C) No. 25661/11, the petitioner had also sought a prayer for consideration of Ext.P9 seeking review of Ext.P6 and that was not granted by this Court. Even that factual aspect was ignored by the 2nd respondent in his over enthusiasm in the matter.
(b) As already seen, Ext.P6 order has been upheld by this Court by dismissing WP(C) No. 20211/2010. Special leave sought by the petitioner was not granted by the Apex Court as is evident from Ext.P12(a) order. This shows that Ext.P6 order has attained finality in all respects. Once the order has attained finality in the hands of a constitutional court, thereafter, statutory authority cannot annul the order and thus nullify the effect of the binding judicial pronouncement.
(c) In the counter affidavit filed, 2nd respondent justifies review petition and consideration of Ext.P15 contending that it is the statutory right of a party to seek review. Therefore, according to him, Ext.P15 order was passed by him in exercise of the review powers available to the Government. Suffice it to say that the 2nd WPC.No.20863/12 :22 : respondent is making this assertion ignoring the fact that the punishment of censure had attained finality at the hands of this Court and Apex Court which have passed Ext.P10(a) judgment and Ext.P12(a) order, upholding the same and that he could not have thereafter tinkered with the order in any manner.
(d) That apart, unlike a routine administrative order, which could have been modified or even recalled in certain circumstances, even after it is upheld by a court of law, Ext.P6 is an order passed under Rule II of the Rules. In a case where such an order is upheld by this Court, a petition under Rule 35 seeking its review, could not have been considered thereafter, unless, permitted by this Court. Otherwise, inspite of the binding judgments rendered by Constitutional Courts, parties will be at liberty to pass fresh orders, upsetting the earlier ones upheld by Courts. Such a course, will be allowing judgments to be nullified and is impermissible. Therefore, the contention that right of review was available to the petitioner is no ground to sustain the order.
(e) In compliance with the order dated 11th September, WPC.No.20863/12 :23 : 2012, the additional 2nd respondent filed an affidavit and produced Ext.R2(a), the Government order dated 4/11/11 and in para 5 of the affidavit, he has stated that;
"the representation received dated 23/6/11 for review of the earlier orders on punishment and termination was rejected by Government vide communication dated 4/11/11."
Rule 35 of the Rules specifically provide that there shall be only one review and the above averments in the affidavit show that the review power was already invoked by the petitioner by his representation dated 23/6/11 and that was rejected by Ext.R2(a) order. Once a review petition was rejected by the additional 2nd respondent as per Ext.R2(a), he had no jurisdiction to entertain Ext.P13, which is a second application made for review of the order. In the counter affidavit, there is absolutely no explanation for overlooking the statutory prohibition against entertaining more than one application under Rule 35 of the Rules or for reaching a contradictory finding in Ext.P15 order.
(f) Ext.R2(a) order produced along with the counter affidavit refers to WP(C) No. 25661/11. That writ petition was disposed of by Ext.P14 judgment on 8/11/11 and that too after WPC.No.20863/12 :24 : adjourning the case atleast on four occasions for the Government Pleader to obtain instructions in the matter. Therefore, if Ext.R2(a) order was already passed on 4/11/11, and that too, on a different review petition, the 2nd respondent had the duty to appraise this Court of the same when the case was taken up for consideration on 8/11/11. Even if there was a failure on his part in doing so, the 2nd respondent should have sought review of the judgment by making an appropriate application before this court rather than taking refuge under the judgment and abuse his position.
(g) In the counter affidavit filed by the 2nd respondent, it is stated that;
"since Ext.P13 review petition dated 3/12/2010 was not traceable in this department, copy of the said review petition itself which was produced along with the writ petition was acted upon. This was so done because there was a peremptory direction by this Court in WP(C) No. 25661/11 to positively consider the review application."
In my view, this is a puerile justification. As I have already stated, before Ext.P14 judgment was rendered, 2nd respondent had various opportunities to inform this Court that Ext.P13 was not received by the Government. Even if he has not done so, he could have declined to consider Ext.P13 for its non receipt, or he WPC.No.20863/12 :25 : could have informed this Court of the unreceipt of Ext.P13, by seeking a review of the judgment. Both these courses were not adopted. Instead, the 2nd respondent has chosen to act upon a review application which was not received in the Government and even if it was received, the application was not a maintainable one. As a result, suppression of a material fact committed by the petitioner in obtaining Ext.P14 judgment went unnoticed.
(h) In his counter affidavit, 2nd respondent has placed reliance on the observation in Ext.P10(a) judgment that this Court did not record any conclusive finding that the petitioner is guilty of any offence. A bare reading of the judgment would show that such an observation was made in view of the direction to register FIR against the petitioner, so that investigating officers could investigate into the offences alleged against him, untramelled by the findings in the judgment. Therefore, the aforesaid statement in the judgment does not mean that it was open to the petitioner or the 2nd respondent to nullify the judgment in any manner. These show that attempt now made by the 2nd respondent is to misinterpret the judgment of this Court to bestow unmerited and WPC.No.20863/12 :26 : undeserved advantage to the petitioner, and one cannot be faulted, if conspiracy is suspected.
(i) The manner in which Ext.P13 was dealt with by the 2nd respondent, to say the least, is strange. Power of review is different from appellate power and the scope of an application for review is narrow and is to be sparingly used to correct errors apparent on the face of the record. Even if this traditional and settled principle regarding the scope of an application for review is relaxed, by no stretch of imagination can a reviewing authority collect fresh evidence while dealing with an application under Rule 35 of the Rules. Para 6 of Ext.P15 order shows that the 2nd respondent allowed examination of 5 witnesses, while considering Ext.P13. This procedure adopted is totally illegal and was without any jurisdiction.
17. For these reasons, I am of the view that the Government could not have issued Ext.P15 order annulling Ext.P6 order imposing penalty of censure.
18. This judgment will be incomplete, if I do not comment upon the conduct of the petitioner. Even in WP(C) No. 25661/11, WPC.No.20863/12 :27 : he has suppressed the representation dated 23/6/11 leading to Ext.R2(a) and obtained Ext.P14 judgment for the consideration of a review petition, which was not even received by the statutory authority. That fact has been suppressed in this writ petition also. Therefore, he is guilty of suppression of material facts and that his conduct deserves to be condemned.
19. In so far as the additional 2nd respondent is concerned, the background of this case has been fully explained in Ext.P10(a) judgment and therefore, it needs no reiteration. It is despite Ext.P10(a) and Ext.P12(a) order passed by the Apex Court confirming the same, he has now issued Ext.P15 annulling Ext.P6. The vehemence with which he has attempted to justify his conduct is reflected in his counter affidavit and it shows his anxiety to sustain Ext.P15 and also to justify his willful conduct. In Ext.P10(a) judgment, this Court held thus;
Our Constitution designed with the high ideal of protecting the citizens from unfair and arbitrary exercise of State power can also be taken advantage of by citizens of doubtful credentials; when the various organs of the State wittingly or otherwise collaborate.
20. Ext.P15 order proves that these statements in Ext.P10
(a) judgment were prophetic. Further the consistent reluctance of WPC.No.20863/12 :28 : the State to deal with the petitioner in accordance with law and that at every stage, this Court had to compel the State were taken note of in paragraph 19 of the judgment. It is in that background Ext.P15 order should be viewed. In my view, the conduct of the 2nd respondent as explained in the preceding paragraphs, prima facie, shows that he has interfered with administration of justice, and therefore is liable to be proceeded against under the Contempt of Courts Act. However, since the proceedings are in relation to Ext.P10(a) judgment rendered by a Division Bench, any decision in this matter has to be taken only by a Division Bench.
In the result,
(1) Writ petition is dismissed.
(2) Registry will place the papers before the appropriate
Bench dealing with cases under the Contempt of Courts Act to consider whether proceedings under the Contempt of Courts Act should be initiated against the additional 2nd respondent.
ANTONY DOMINIC, JUDGE Rp