PC Act | Mere Violation Of Appointment Procedure Doesn't Always Imply 'Dishonest Intention' On Part Of Appointee/ Appointing Authority: Kerala HC

The Kerala High Court has laid down that mere procedural violations in appointment of a person to a post cannot always lead to the inference that the appointee and the appointing authority had a dishonest intention in making such appointment.

The Single Judge Bench of Justice K. Babu made the observation while dismissing the plea challenging the Special Court's dismissal of the complaint alleging irregularity in the appointment of MLA Anoop Jacob's wife to the post of Assistant Director of the Kerala Bhasha Institute. 

"In the present case, the complaint is silent as to whether the person benefitted and the person who effected the appointment are part of a vicious link. There may be cases of misfeasance or, wrong administration. In all cases of malfeasance or, misfeasance or wrong administration, a prosecution under the Prevention of Corruption Act cannot be initiated," Justice Babu observed. 

The complainant herein alleged corruption in the appointment of Anila Mary Geevarghese (2nd respondent) as Assistant Director of the Kerala Bhasha Institute. It was alleged that the 2nd respondent produced a forged experience certificate as a testimonial for her employment. It was thus submitted that her appointment was ordered in violation of the existing Rules. 

The complainant also made allegations of corruption against Former Minister for Cultural Affairs, K.C. Joseph, and Director of Kerala Bhasha Institute, Thampan. 

The Special Judge, on perusing the report of the Director of Vigilance and Anti-Corruption Bureau (VACB) which recommended disciplinary action against the 2nd respondent Geevarghese, rejected the complaint on not finding any materials in the complaint to proceed against the persons arrayed as accused. 

Advocate Renjith B. Marar submitted on behalf of the revision petitioner that the Special Court ought not to have rejected the complaint at the threshold, without even conducting an enquiry under Cr.P.C. It was further claimed that as per the Special Rules for the Kerala State Institute of Languages General Service, the minimum age for appointment by direct recruitment is 40 years, and the maximum age is 50 years, whereas respondent No.2 was only 34 years of age at the time of appointment, which is a clear violation of the existing Rules. 

The counsel for the respondents however claimed that the complaint did not disclose any cognizable offences. It was argued that the Government has the power to appoint any person otherwise qualified to the post of Assistant Director on deputation, and that the 2nd respondent's appointment was made in pursuance of a Government Order. 

The Court took note that the owner of Melinda Books had identified the the signature in the disputed experience certificate produced by the 2nd respondent as that belonging to the Manager of the firm. He also endorsed that the office seal contained in the disputed document as that of the firm's. 

The Court, on perusing Sections 463 ('Forgery') and 464 ('Making a false document') of IPC, found that the materials adduced in the present case did not disclose the offence of forgery. It observed that the complainant did not have a case that anybody fraudulently signed the disputed document with the intention of causing it to be believed that such document or part of the document was signed by another or under his authority. 

The Court also did not find any merit regarding the complainant's allegations of financial loss being caused to the State Exchequer. 

On the argument of the revision petitioner regarding rampant nepotism in promoting the interests of those near and dear to public servants, the Court was faced with the question as to whether criminal liability could be fastened upon the respondents for the alleged irregularity in the appointment in the absence of a specific allegation in reference to corruption or cheating. 

Taking note that the complaint was silent as to whether the person who benefitted and the person who effected the appointment were part of a vicious link, the Court held that the allegations in the complaint did not disclose any material to initiate prosecution against the respondents. 

"...the allegations do not make out any offence in the case on hand. The Special Judge has obtained an enquiry report from the Director of Vigilance. The Special Judge has not proceeded to conduct enquiry or investigation under Section 202 of Cr.P.C. The Special Judge, before the stage of enquiry or investigation under Section 202 of Cr.P.C, found that there is no sufficient ground for proceeding and rejected the complaint. The Special Judge has not proceeded to examine the complainant and the witnesses on oath. Even after the stage of examination under Section 200 Cr.P.C, and before the stage of enquiry or investigation under Section 202 of Cr.P.C, the appropriate mode of terminating the proceedings is by way of rejecting the complaint. There was no material for the Special Judge to take cognizance of the offences alleged. Therefore, the contention of the learned counsel for the petitioner that the Special Court ought not to have rejected the complaint at the threshold will not stand," it said. 

Emphasizing that the Revisional Court ought not to set aside an order merely because another view is possible, the Court dismissed the present revision petition on finding the impugned order not to be affected by any patent error of jurisdiction.

Special Government Pleader for Vigilance Rajesh A., Public Prosecutor Rekha, and Advocates Manoj P. Kunjachan, Paul Jacob, Mathew Thomas, Nikitta Tressy George, and Dipak Cherian Abraham appeared on behalf of the respondents.

Citation: 2024 LiveLaw (Ker) 97 

Case Title: S. Manimekhala v. State of Kerala & Ors. 

Case Number: CRL.REV.PET NO. 866 OF 2023

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