Kerala High Court
Kesavankutty Nair vs Dr.George Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 14TH DAY OF JANUARY 2016/24TH POUSHA, 1937
Crl.Rev.Pet.No. 1711 of 2013 ()
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AGAINST THE ORDER IN CRL.M.P.31/2013 of ENQUIRY COMMISSIONER & SPECIAL
JUDGE, KOTTAYAM
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REVISION PETITIONER(S):
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KESAVANKUTTY NAIR,
S/o.A.JANARDHANAKURUP,
ANJANALAYAM, INDUSTRIAL ESTATE P.O.,
KOLIYAKKODE, THIRUVANANTHAPURAM.
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
RESPONDENT(S):
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1. DR.GEORGE JOSEPH
S/o. LATE FR. V.G. JOSEPH
VAYALIRAKKATHU VEEDU
ANGADIKKAL SOUTH P.O.
KODUMAN, PATHANAMTHITTA.
2. THE PRINCIPAL
P.S.V.P.M. HIGHER SECONDARY SCHOOL
IRAVON P.O., KONNI, PATHANAMTHITTA.
3. THE MANAGER
P.S.V.P.M. HIGHER SECONDARY SCHOOL
IRAVON P.O.M KONNI, PATHANAMTHITTA.
4. STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
R1 TO R2 BY ADV. SRI.V.PHILIP MATHEW
R4 BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
14-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
STK
P.D. RAJAN, J.
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Crl.R.P.1711 of 2013
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Dated this the 14th of January, 2016
JUDGMENT
Revision petitioner is the complainant in Crl.M.P.31/2013 before the Enquiry Commissioner and Special Judge, Kottayam which was preferred against respondents 1 to 3 alleging offence punishable under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and also offence under Section 119, 167, 192, 196, 218, 463, 469, 466, 409, 467, 468, 471 and 120(B) IPC. The respondents 2 and 3 are the Principal and Manager of PSVPM Higher Secondary Aided School, Iravon, Konni in Pathanamthitta District and first respondent is a teacher in that school. The complainant's case is that from 01.07.2010 onwards the first respondent has been absent from the school in connection with various engagements/meetings of the Suriyani Christian Association and he signed his presence in the school in those days. Most of the entries in the attendance register have been rubbed and marked as 'present', which shows Crl.R.P.1711 of 2013 2 he manipulated the attendance register. The 2nd and 3rd respondent supported the above activities of the first respondent. Thereby, he committed criminal misappropriation which amounts to corruption and forgery, hence the above complaint. The learned Enquiry Commissioner and Special Judge dismissed the complaint. Being aggrieved by that he preferred this revision petition.
2. The learned counsel appearing for the revision petitioner contended that prima facie case is made out against the respondents 1 to 3. The first respondent had drawn salary for the period which he was absent and made entries after rubbing or making correction in the attendance register which amounts to corruption and also amounts to misappropriation of public money. The competent authority to conduct a verification of the above allegation is the Vigilance and Anti-Corruption Bureau and the direction issued by the court below is unsustainable in law. In the circumstance, he prays to set aside the order and remit the matter to the competent authority to reconsider the complaint and pass appropriate orders. Crl.R.P.1711 of 2013 3
3. The learned counsel appearing for the respondents 1 to 3 strongly opposed the above argument and contended that the directions issued by the trial court need not be disturbed. The counsel appearing for the 4th respondent also filed a counter affidavit.
4. In this context, I have perused the order issued by the learned Enquiry Commissioner and Special Judge dated 30.07.13 of which para 4 reads as follows;
"The collusion of the respondents 2 and 3 in making such corrections in the attendance register is evident, on perusing the register it is seen. If the 1st respondent had drawn salary during those days, the matter can be brought to the notice of the Education Department since in aided schools salaries are being paid by the Government from the public exchequer. Whether the corrections in the attendance register were made substituting with leave applications after drawing salary or not is a matter to be looked into by the concerned official of the Education Department. Since the dispute had already becomes the subject matter of an enquiry by the vigilance, I find no reason to order another enquiry. The petitioner can bring to the notice of the concerned official Crl.R.P.1711 of 2013 4 of the Education Department about this order for taking appropriate action, if the 1st respondent had already drawn salary during those days, which were marked as 'present' in the Attendance Register and later substituted with leave applications. It is upto the Education Department to see whether he had refunded the amount so drawn, if any or not. If not refunded, that will amount to misappropriation of public money. In such a circumstance the petitioner can approach this court again with proper petition."
5. It is clear from the documents that a Vigilance Enquiry had already been conducted in connection with the identical allegation and Enquiry Officer filed a report. That report was also considered by the Enquiry Commissioner and Special Judge. If there is any violation of the Kerala Education Rules (hereinafter referred to as KER) the empowered educational officers are the competent persons to take disciplinary action. The powers of the Principal and Manager in granting permission, leave and other aspects are specifically mentioned in the KER. If the first respondent had committed any illegality or irregularity in attending the Crl.R.P.1711 of 2013 5 school and discharging his official duty, the Manager and the Principal are the empowered educational authorities to scrutinize those aspects according to KER. If the Manager is conniving with the teacher, that fact has to be informed to the Director, Higher Secondary Education. Such an enquiry was not conducted in this case. Instead of conducting a verification by the educational authorities about the absence of the respondent on working days without any leave or permission and drawing of salary from the State exchequor on those days and referring the matter to the Vigilance and Anti-Corruption Bureau gives a wrong signal of flouting the provisions of K.E.R. and K.S.R.
6. Apex court in State of Kerala V. President, PTA, S.N.V.U.P. 2013(1) KLT 532(SC) held as follows;
"A great responsibility is, therefore, cast on the General Education Department to curb such menace which not only burden the State exchequer but also will give a wrong signal to the society at large. The Management and the Headmaster of the school should be a role model to the young students studying in their schools and if themselves indulge in such bogus admissions and record wrong attendance of Crl.R.P.1711 of 2013 6 students for unlawful gain, how they can imbibe the guidelines of honesty, truth and values in life to the students. We are, however, of the view that the investigation by the police with regard to the verification of the school admission, register etc., particularly with regard to the admissions of the students in the aided schools will give a wrong signal even to the students studying in the school and the presence of the police itself is not conducive to the academic atmosphere of the schools. In such circumstances, we are inclined to set aside the directions given by the Division Bench for police intervention for verification of the students' strength in all the aided schools."
7 Apex court in C.K.Jaffer Sharief V. State LAWS (SC) 2012-11-12 held as follows;
"As a Minister, it was for the appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the Rules or Norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to department norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary Crl.R.P.1711 of 2013 7 advantage will not be correct. That dishonest intention is the gist of the offence under Section 13 (1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by this Court in M. Narayanan Nambiar V. State of Kerala (1) while considering the provisions of Section 5 of Act of 1947. If the totality of the materials on record indicate the above position, we do not find any reason to allow the prosecution to continue against the appellant. Such continuance, in our view, would be an abuse of the process of court and therefore it will be the plain duty of the court to interdict the same."
8. The learned Enquiry Commissioner observed as follows:
"If the 1st respondent had drawn salary during those days, the matter can be brought to the notice of the Education Department since in aided schools salaries are being paid by the Government from the public exchequer."
Here, the allegation is that 1st respondent was absent on several days without taking leave and had also drawn salary from the treasury, which is a loss to the State exchequer. If that be the position, the proper Crl.R.P.1711 of 2013 8 method is to verify those aspects by the competent authorities. In the circumstance, if the complainant files a petition highlighting the averment in the petition before the Director, Higher Secondary Education, he may consider the application and verify those aspects as per law. The complainant also must present personally before the authority for filing such complaint and for giving evidence. The educational authorities shall consider the application only on his personal appearance. If the authority feels that prima facie materials are there, they can proceed as per law after hearing the respondents also.
This revision petition is disposed of as above.
Sd/-
P.D. RAJAN,
STK JUDGE
//TRUE COPY//
P.A. TO JUDGE