Partly allowed

State of Krala and Others v. Simon K.Francis and Others

Kerala HC9 Nov 2010WA/181/2010

Case brief

AI extract

What is this about?

This judgment addresses petitions challenging the termination of a Presidency Board Chairman's tenure and disciplinary actions against officials. The court directed the State to register a criminal case against the Chairman due to grave uninvestigated allegations of fabricating false evidence, while dismissing petitions seeking his recountency or stay on charges.

What did the court decide?

Number 4 respondent directed to register a criminal case against him in accordance with law on the basis of the memo of charges dated 31.10.2008. Writ petitions filed by respondents and appeals filed

State of Krala and Others Vs Simon K.Francis… — Pension and Retirement Benefits | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932

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WA.No. 181 of 2010

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-------------------AGAINST THE JUDGEMENT IN WPC.36205/2007 Dated 09/10/2009

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APPELLANT/IST RESPONDENT IN WPC:

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STATE OF KERALA,REPRESENTED BY THE HOME SECRETARY,GOVERNMENT OF KERALA, SECRETARIAT,THIRUVANANTHAPURAM.

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BY SENIOR GOVERNMENT PLEADER, SRI. BENNY GERVASIS.

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RESPONDENTS/PETITIONER AND RESPONDENT NOS.2 TO 4 IN THE WPC:

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SIMON K.FRANCIS,DIRECTOR,CANUS GRANITES PVT.LTD,PERUMPILAVU.

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THE MEMBER SECRETARY,THE KERALA STATE POLLUTION CONTROL BOARD,PATTOM PALACE.P.O, THIRUVANANTHAPURAM.

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THE CHAIRMAN,THE KERALA STATE POLLUTION CONTROL BOARD,PATTOM PALACE.P.O, THIRUVANANTHAPURAM.

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A.K.SURENDRAN,SENIOR ENVIRONMENTAL ENGINEER,PALAKKAD.

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R1 BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.ALAN PAPALI SRI.N.N.ARUN BECHU R2 & R3 BY SRI.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOARD R4 BY ADV. SRI.JACOB P.ALEX

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SRI.JOSEPH P.ALEX

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09/11/2010, ALONG WITH W.A. Nos. 211/10 AND 1436/10 AND WPC NOs. 11235/2010 AND 20211 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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- - - - Dated this the 9^th day of November, 2010

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JUDGMENT

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J.Chelameswar, C.J.

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An industry by name Canon Granites Private Limited, Perumpilavu, Thrissur District of which one 'Mr.Simon K.Francis' is a Director, had applied for the consent of the Pollution Control Board (hereinafter referred to as Board)for installation of two additional secondary Crushers. The said application was rejected by the Board. It appears from the records that the said industry proceeded to install the additional crushers, even though the Board declined consent. The Board initiated action against the said industry. The industry approached this Court by way of Writ Petition. The full particulars of the same may not be necessary, except to state that by order dated 08.04.2005, this Court gave certain directions to the Pollution Control Board to examine whether the functioning of the above industry is causing any pollution beyond the limits permissible under the law. It is alleged against one Surendren that he demanded from the

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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above mentioned Simon K.Francis an illegal gratification of an amount of `15 lakhs for giving a favourable report. The said Simon K.Francis complained to the vigilance authorities of the State who in turn laid a trap on 23.05.2005 at about 7.00 P.M. and vigilance case No. 07/05 was registered, the investigation of which was eventually entrusted to CBI by virtue of an order of this Court dated 24.02.2006 in W.P. (C)19759 of 2005 filed by Mr.Simon K.Francis. It appears, from the records, that the CBI completed the investigation in the said matter and filed a final report under Section 173 of the Criminal Procedure Code on the file of Special Judge of CBI Court, Ernakulam, opining that the above mentioned Surendran committed offences under Sections 7, 13 (2) r/w 13 (1)(d) of the Prevention of Corruption Act, 1988.

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Based on another complaint given by one Muraleedharan, the petitioner in W.P(C) 36185 of 2007, another vigilance case No. 21 of 2000 on the file of Vigilance Department Kozhikkode is registered against the above mentioned Surendran and in that case also a trap was laid and final report was filed before the Enquiry Commissioner, Vigilance Department,

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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Kozhikode as case No. 01 of 2008 reporting that Surendran is required to be tried for offences under the Prevention of Corruption Act.

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A charge memo dated 31.10.2008, came to be issued by the State of Kerala framing certain charges against one Mr.Jeyaprasad, who was working as the Member Secretary of the Kerala State Pollution Control Board in connection with sordid episode mentioned earlier. The substance of the allegation in the charge memo is that Jeyaprasad created some false documents with an intention to protect Surendran, who was working as Environmental Engineer in the Pollution Control Board at Trichur, who was facing criminal cases under the Prevention of Corruption Act mentioned earlier. The relevant portion of the charge memo is as follows:

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“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 Radhakrishna, AEE, Smt. Suseela Nair, AE, Smt. K.S. Vinaya, AE and Smt. Bindu Vinod Junior Scientific Assistant on daily wages, agreed among them solves to create false de fence documents to show as if an adverse report had already been sent against Canon

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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Granites P. Ltd before the passing of the bribe money and thereby that there was a motive for the bribe amount being taken on behalf 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 Pollution Control Board, Trichur on 29.05.2005 (Sunday) and Smt. Sindhu Radhakrishnan, Smt. Suseela Nair, Smt. K.S. Vinaya, created a letter falsely dated 28.05.2005 addressed to standing counsel of Kerala State Pollution control Board in the Hon'ble High Court of Kerala, Ernakulam, with a copy marked to the Member Secretary, Kerala State Pollution Control Board, Trivandrum conveying that the result of the conduct of the trial run at M/s. Canon Granites was adverse and Smt. Bindu Vinod falsely showed the despatch of the said letter on 28.05.2005 in the Despatch Register.

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The investigation of the said case was taken over by the CBI in compliance to the direction issued by the Honourable High Court of Kerala. During the CBI investigation you have produced before the investigating officer, a photocopy of the said letter in which you have falsely and with the intention to support the false claim of Shri Surendran and others that the said letter was dispatched on 28.5.2005 , put your initial and d ate as 28/5 with the intention of showing that the said letter was received by you 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 Surendran and falsely claimed before the investigating Officer that the sake letter was received by you from Shri

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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A.K.Surendran on 28.5.2005 while passing through Trichur, whereas the said letter was made only on 29.5.2005, despatched thereafter and reached office of the Member Secretary, Kerala State Pollution Control Board only on 3.6.2005.

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That you, Shri S.D. Jeyaprasad thereby failed to maintain absolute integrity and violated Rule 3 of Kerala Government Servants Conduct Rules, 1960”.

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The Government thought it fit not to conduct any detailed enquiry against the above mentioned Jeyaprasad with regard to the allegation contained in the above mentioned charge memo but decided to impose a minor penalty of censure as the same could be imposed without resorting to a regular departmental enquiry but by following a summary procedure contemplated under Rule 16 read with Rule 11 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. In view of the decision of the Government to impose such minor penalty, a further notice dated 14.06.2010 came to be issued to Jeyaprasad calling upon him to explain as to why his appointment as Chairman of the Pollution Control Board should not be terminated. Challenging the order

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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imposing punishment of Censure dated 24.03.2010 and notice dated 14.06.10 Jeyaprasad filed W.P. (C) No.20211 of 2010.

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3A. It can be noticed from the above extract that the

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allegations against Jeyaprasad are very grave in nature whatever be the truth of the allegations. If the said allegations are proved, Jeyaprasad, according to us, would be guilty of various offences under the Indian Penal Code such as offence under Section 192 of fabricating false evidence etc. However, in spite of such grave allegations, the State of Kerala never thought it fit to register any crime against said Jeyaprasad, on the other hand rested content with initiation of a departmental proceeding of disciplinary action, which also was closed by awarding a minor so called punishment of Censure.

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Mr.S.D.Jeyaprasad was working as Member Secretary of the Kerala State Pollution Control Board, a statutory board constituted under the Prevention of Water Pollution Control Act 1974, w.e.f. 18.04.2005. By a Government Order G.O. (Rt.) No. 71/2009/Envt. dated 31.08.2009, Mr. Jeyaprasad was appointed as the Chairman of the Kerala State Pollution Control

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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Board for a period of one year from the date of his taking over charge. Subsequently, by a letter dated 27.03.2010 of the Secretary to Government, Government of Kerala, Environment (A) Department, the said Jeyaprasad was informed that the Government proposes to make his tenure as the chairman of the Pollution Control Board co-terminus with the date of his retirement from the Board service i.e., 31^st March, 2010 and called upon Jeyaprasad to show cause, if any, as to why such a decision should not be taken.

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Challenging the said communication dated 27.3.2010, Mr.Jeyaprasad filed a Writ Petition No. 11235 of 2010. Along with the said Writ Petition he also sought for an interim order seeking to stay all the operations of the above mentioned proceedings. On 31.3.2010, an interim order as sought for by the petitioner was granted. Subsequently, by filing I.A. 10950 of 2010, the above mentioned Jeyaprasad also sought for a positive direction to continue him in the office of Chairman for a period of 3 years. The said prayer was rejected by this Court by order dated 18.08.2010. Aggrieved by the said order Mr. Jeyaprasad

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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filed W.A. No. 1436 of 2010. By interim order dated 20.10.2010 in the above mentioned appeal, a Division Bench of this Court ordered “stay against termination of the appellant until disposal of the said Writ Appeal”.

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Two Writ Petitions, viz. W.P.(C) Nos. 36185 of 2007 and 36205 of 2007, came to be filed by two persons; (1) Mr.Muraleedharan and (2) Mr.Simon K.Francis respectively. The latter is the defacto complainant in Crime Nos. 21 of 2000 and 05 of 2007 registered against the above mentioned Surendran, Environmental Engineer at Trichur on the file of the CBI.

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The two writ petitions came to be heard together and allowed by common judgment dated 09^th October, 2009 with certain directions as follows :

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“In the above circumstances, I direct the first respondent to consider the matter in the right perspective in the light of the findings hereinabove and pass orders regarding: (1) whether it is necessary to keep the 4^th respondent under suspension in view of the criminal cases pending against him;(2) whether the promotion given to the 4^th respondent contrary to Rules as Senior Environmental Engineer requires to be cancelled and (3) whether it is

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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necessary to initiate disciplinary proceedings in respect of the allegations of corruption against the 4^th respondent and issue necessary directions to the Pollution Control Board in that regard, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. In any event, in the meantime, the 4^th respondent shall be moved out of Palakkad forthwith and he shall not be posted either at Palakkad or Thrissur where the cause of action for the two criminal cases arose, until and unless he is acquitted in the two criminal cases. Orders passed by the Government as directed above shall be communicated to the petitioners within two weeks from the date of passing the orders.

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These Writ Petitions are disposed of as above.”

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While examining the above mentioned two Writ Petitions, the learned Single Judge, who heard those Writ Petitions made certain remarks against the State of Kerala and aggrieved by the same, State of Kerala filed Writ Appeal Nos. 181 of 2010 and 211 of 2010.

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In the background of the abovementioned facts, the various submissions made in these batch of matters are required to be examined. We shall now deal with these matters individually.

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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W.P.(C) No.20211 of 2010 is filed with the prayer

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as follows:

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“ i. issue a writ of certiorari or any other appropriate writ, order or direction quashing Exts.P19 and P24 orders; ”

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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

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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of the Chairman of the Kerala State Pollution Control Board.

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Coming to W.P.(C) No.11235 of 2010, the prayers

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are as follows:

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“ 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;

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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 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; ”

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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 31^st March, 2010.

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The main submission made in the said writ

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petition is regarding the competence of the State to reduce the

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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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.

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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

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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opinion of the Government involves moral turpitude is one of the disqualifications prescribed under both the enactments.

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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 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.

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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

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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constitutional obligation to provide a rational and clean governament oblige the State to investigate allegations of

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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

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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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 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.

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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

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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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.

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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

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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charge memo may not be used as a factor for declining the exercise of jurisdiction under Article 226 of the Constitution of India.

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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 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.

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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

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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same read as follows:

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“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 4^th 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 4^th 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 4^th respondent at the hands of the VACB. Pursuant to the same, the C.B.I. has charge sheeted the 4^th respondent, which case is also pending.”

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The second submission made on behalf of

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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

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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law are factors which distinguish Jeyaprasad for a separate treatment. Apart from that the manner in which 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.

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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

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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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.

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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.

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For the above mentioned reasons, W.P.(C) No.20211 of 2010 is dismissed. For the same reasons, W.P.(C)

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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No.11235 of 2010 is also dismissed. W.A. 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.

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We are left with W.A. Nos.211 and 181 of 2010 filed by the State of Kerala, aggrieved by certain observations made in the judgment at paragraphs 5 and 11, which read as follows:

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“5 . Since, the facts disclosed in these writ petitions point at the appalling attitude of the Government and the Pollution Control Board in the matter of dealing with allegations of corruption against an engineer in the Pollution Control Board Service.

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11. The whole history of the case, without doubt, is a standing testimony of the enormous clout the 4^th respondent has in the higher echelons of power, regardless of political colour of the Government. The 4^th respondent, who eminently deserves suspension for the grave offences he is charged with in two criminal cases, the second one committed after the revocation of the suspension pursuant to the first criminal case, had not only been not suspended, but was rewarded with a promotion, even contravening the Rules applicable. A Government which claims to have declared war against corruption in the services of the State,

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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vehemently defends a person who is accused of corruption, that too, a person who has been allegedly caught red handed accepting bribe and who has, unmindful of the first case pending against him, had got himself involved in another more serious case of corruption. Government's stand in defending him in this case would put doubt into the minds of the public regarding the sincerity of the Government about their professed commitment to fight corruption, which is presently the cancer eating into the body of our democracy. If their professed fight against corruption is not mere lip service to pull the wool over the eyes of the public, the Government would do well to cancel the promotion of the 4^th respondent and place him under suspension, like any well-meaning Government, who have their priorities right. ”

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The above extracted observations are observations in the judgment under appeal which is a common judgment disposing of two writ petitions filed by two defacto complainants in the two criminal cases registered under the provisions of Prevention of Corruption Act against Surendran (the details of which are already noticed earlier in this judgment). The grievance of the two writ petitioners is that in spite of the fact that Surendran was being investigated for charges under Prevention of Corruption

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W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010

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-:23:-

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Act, during the pendency of such investigation though initially Surendran was kept under suspension, the suspension was revoked by the State Pollution Control Board and Surendran was also granted a promotion. The petitioners therefore approached this Court seeking directions to the Pollution Control Board to take appropriate action against Surendran. By the judgment under appeal, in the abovementioned two appeals the writ petitions were disposed of with certain directions. The correctness or otherwise of those directions is not the question before us in these appeals. For the purpose of determining whether the observations which are the subject matter of these appeals are justified or not, we would only state that by the judgment under appeal, the learned Judge after elaborate consideration of the material came to the conclusion that the entire episode requires at least a departmental enquiry against Surendran. It is in that background the observations made by the learned Judge are required to be examined. The facts narrated above, in our opinion, clearly demonstrate a very unsatisfactory state of affairs in the administration. In the

¶136

W.A. Nos. 181, 211 and 1436 of 2010 and W.P.(C) Nos. 11235 & 20211 of 2010 -:24:-

¶137

circumstances we do not see any reason to interfere with the observations made in the judgment under appeal, or we find anything unwarranted in the said observations. These two appeals are therefore dismissed.

¶138

J.Chelameswar, Chief Justice.

¶139

P.R.Ramachandra Menon, Judge.

¶140

kmd/ttb/vku

State of Krala and Others v. Simon K.Francis and Others

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State of Krala and Others v. Simon K.Francis and Others

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