Kerala Civil Service (Classification Control and Appeal) Rules 1960 – Rule 15 – If the imposition of a minor penalty in the present case was after holding an enquiry under R.15, and the charge having been found proved as in that case, there could have been no ground for feeling aggrieved so far as the petitioner was concerned.
# 1984 KLT 564 : 1984 KLJ 268
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. Bhaskaran (ACJ) and P.C. Balakrishna Menon J.
Raveendranathan Vs. District Collector, Palghat & Ors.
O.P. No. 10529 of 1983
Advocates: For Petitioner: Party in person; For Respondents: Government Pleader
K. Bhaskaran, Ag. C.J.
1. The petitioner is an Upper Division Clerk in the service of the Kerala State, in the Revenue Department (now in the office of the Special Tahsildar, Vested Forest Land Assignment, Palghat). He feels aggrieved by the order passed by the 1st respondent, the District Collector, Palghat on 29-10-1983, purported to be in compliance with directions of this Court in the judgment dated 29-6-1983 in O. P. Nos. 827 of 1981 and 7978 of 1982. According to him this order has been passed by the District Collector in violation of the spirit of the direction given by this Court in the judgment dated 29-6-1983 in O. P. Nos. 827 of 1981 and 7978 of 1982. We would extract the relevant portion of the directions contained in that judgment:
“The petitioner is highly aggrieved about this long delay in the completion of the enquiry, as according to him, many of the reliefs to which he is entitled would depend upon the result of the enquiry. He has also a case that the charges have not been framed making clear allegations as observed by this Court in Ext. P12 judgment with reference to Para.8 of the statement of allegations attached to Ext. P2 charge memo (vide paragraph C of Ext. P12 judgment). It is for the respondents to consider whether anything in the light of the observation is to be made or not. Whatever that might be it is extremely important that the enquiry with respect to the alleged conduct of the petitioner for the year 1979 should be complete at least now, without further delay.
I would therefore direct the respondents to ensure that the enquiry, if any pending against the petitioner shall be completed as expeditiously as possible at any rate within three months from the date of the receipt of a copy of this judgment fin the office of the Ist respondent, District Collector, Palghat…
After this judgment, the 1st respondent District Collector is seen to have issued charge memo dated 3-10-1983 inter alia requiring the petitioner to submit his statement of defence within, a week; and it is the admitted case that on 10-10-1983 the petitioner had submitted his statement of explanation. Neither from the counter filed nor from the papers made available to this Court in these proceedings it is seen as to whether anything transpired between 10-10-1983 and 18-10-1983 on which date a show cause notice, order No. A4.77272/82 is seen to have been issued to the petitioner by the 1st respondent Collector. The following paragraphs of that show cause notice would clearly show that no enquiry was conducted between 10-10-1983 and 18-10-1983.
“Sri K. Raveendranathan, U. D. Clerk has submitted his written statement of defence dated 10-10-1983. He had denied all the charges levelled against him. The District Collector has carefully considered the explanation of Sri. Raveendranathan. The explanation is not at all satisfactory. It is found that Sri. Raveendranathan while holding the. post of U.D. Clerk in the office of the Special Tahsildar, PAR, Palghat had delayed putting up of files disobeyed the orders and also misbehaved with the Superior Officers. The charges therefore stand proved.
Naturally this is a case for major penalty. Inefficiency coupled with impertinence has to be put down with a firm hand. But in view of the suspension and the long delay in finalisation of disciplinary proceedings the District Collector takes a lenient view and comes to the provisional conclusion that the increment of Sri. K. Raveendranathan should be stopped for a period of six months, without cumulative effect.
Sri. K. Raveendranathan, U. D. Clerk Office of the Special Tahsildar, PAR, Palghat is hereby directed to show cause in writing, why his increment should not be stopped for a period of six months without cumulative effect, for the above charges, which stand proved. The explanation, if any, to be submitted in response to this notice, should be submitted within 7 days from the date of receipt of this notice and if it is not received within the stipulated time, the matter will be proceeded with on the presumption that he has no explanation in the matter and final orders will be passed accordingly”.
The important question to be decided is whether an enquiry in terms of the directions given in the judgment of this Court dated 29-6-1983 was conducted by the disciplinary authority. As is evident from the petitioner’s reply dated 22-10-1983 to the show cause notice dated 18-10-1983 no enquiry was conducted. The petitioner had also a grievance that no witness list was furnished. and he was not also allowed to peruse the records relevant for the purpose of the enquiry.
2. The Government Pleader sought to support the order dated 29-10-1983 imposing a penalty of stoppage of increment for six months without cumulative effect on the reasoning that it being a minor penalty it was not necessary to conduct an elaborate formal enquiry as contemplated under
# R.15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960.
3. We feel quite distressed that the 1st respondent, the District Collector, ought to have thought it fit to circumvent the direction of this Court in the judgment dated 29-6-1983 by resort to the imposition of a minor penalty to obviate the difficulty of holding an enquiry under R.15. This Court actually directed the enquiry to be completed expediously, if necessary, after the clarification of the charges in the light of the statement of facts attached to the charge memo. Thereafter a charge memo was given on 3-10-1983. The petitioner’s statement of defence was submitted on 10-10-1983 and on 18-10-1983 a show cause notice was issued why the proposed punishment should not be imposed on the petitioner. On 22-10-1983 the petitioner submitted his reply stating inter alia that no enquiry was conducted and, therefore, the punishment should not be imposed. In spite of the fact that the petitioner had disputed the correctness of this procedure stating that no enquiry was conducted, on 29-10-1983 the impugned order was passed imposing a punishment of stoppage of increment of six months without cumulative effect.
4. All that is to be decided is whether the punishment imposed under the impugned order is a minor punishment as enumerated in R.11 of the Rules, and whether the disciplinary authority could justify his action in not holding the enquiry with reference to which a direction was given by this Court in the judgment dated 29-10-1983, and, which, as a matter of fact, was even proposed to be held.
5. One of us (Balakrishna Menon, J.) had occasion to consider a case where the allegations in the statement attached to the charge memo warranted an enquiry under R.15 of the Rules for inflicting a major punishment; however, without holding an inquiry under R.15, a minor penalty was imposed. The reference is to the decision of this Court reported in
# Ramankutty Warrier v. State of Kerala, 1983 KLT 245
In that decision, in Para.9, it was observed as follows:
“I am of the view that the findings entered in the impugned orders in violation of the principles of natural justice cannot be allowed to stand merely for the reason that the punishment imposed is a minor penalty under Rule H of the K. C. S. (CC & A) Rules which does not prescribe an elaborate enquiry for the imposition of a minor penalty. The offence found against the petitioner is one for which a major penalty can be imposed, after a detailed enquiry as contemplated by R.15 of the Rules. The imposition of a minor penalty cannot be the expedient to dispense with a detailed enquiry under R.15 before a Government servant is found guilty of a grave offence involving moral turpitude.”
6. In fact the principle laid down in the above decision is applicable to the facts of this case with greater emphasis in as much as per the directive given by this Court in the judgment dated 29-6-1983 charge memo had already been framed for imposition of a major penalty; and what remained was the expeditious completion of the enquiry. When the matter went back to the Collector, what be seems to have done was to issue the charge memo, and after receiving the statement of defence, issued the show cause notice dated 18-10-1983 requiring the petitioner to show cause why the penalty of stoppage of increment of six months without cumulative effect should not be imposed on biro, holding that the allegations made in the statement of defence had been substantiated. For the sake of shirking the responsibility of holding an enquiry as directed by this Court, as it ought to have been held even otherwise in the nature of the charge memo, the disciplinary authority could not make a short cut, abruptly dispensing with the enquiry as prescribed under R.15, by resorting to the imposition of a minor penalty.
7. The Government Pleader brought to our notice the decision of this Court in
# Enos Jeevakumar v. State of Kerala, 1977 KLT 733
In that decision Gopalan Nambiar, Ag. C.J., as he then was, observed as:
“The disciplinary proceedings started with a proposal to impose any of the major penalties under sub-clauses (v) to (ix) of R.11. Therefore the procedure under R.15 was followed and the Tribunal for disciplinary proceedings sent its enquiry report. On receipt of the report and after consideration of the same it was ultimately decided to impose only one of the minor penalties under sub-clauses (i) to (iv) of R.11 and this was done by Ext. P1 order. The procedure is in strict conformity with R.15 sub-rule (13) of the Rules. In the instant case the procedure in R.15 was followed, and only a minor penalty was inflicted in strict conformity with the provisions of sub-rule 13 of R.15. There is no violation of the statutory rule or the principles of natural justice.”
It is significant to note that in the case cited and relied on, it is after following the procedure under R.15 a minor penalty was imposed instead of a major penalty. If the imposition of a minor penalty in the present case was after holding an enquiry under R.15, and the charge having been found proved as in that case, there could have been no ground for feeling aggrieved so far as the petitioner was concerned. The distinction here is, if we may say so, after having initiated proceedings for imposition of a major penalty, and having reached half way, the disciplinary authority made a short-cut by not following the procedure prescribed under R.15 of the Rule for the infliction of the major penalty, and choosing to inflict a minor penalty without properly completing the enquiry following the procedure prescribed in that behalf, and bearing in mind the spirit of the direction given by this Court in the judgment dated 29-6-1983. The position would have been quite different had it been that after completion of the enquiry in accordance with R.15 of the Rules the disciplinary authority chose to inflict only a minor punishment. Therefore, the decision of this Court in
# Enos Jeevakumar v. State of Kerala, 1977 KLT 733
does not in any way advance the case of the State.
8. If we give our seal of approval to the procedure adopted by the District Collector in this case, it would mean that we accept a procedure by which the disciplinary authority could inflict the punishment (may be only a minor penalty) in a case where the charge memo is one for the infliction of a major penalty as and when that authority finds it inconvenient to proceed with the enquiry or to prove the charge according to the procedure prescribed in that behalf.
9. The Government Pleader also submitted that the petitioner could have filed an appeal to the Board of Revenue, and there being such an alternative remedy available, the writ petition filed was premature. This is a case where the main ground of attack against the impugned order is that it has been passed both in violation of the principles of natural justice and without complying with the directions contained in the judgment of this Court dated 29-6-1983. Considering all aspects of the case we are of the opinion that the fact that normally the petitioner would have had an alternative remedy in the form of an appeal to the Board of Revenue against the impugned order would not disentitle him to invoke the writ jurisdiction of this Court.
For the foregoing reasons we allow the writ petition, and quash the impugned order dated 29-10-1983 (imposing a penalty of stoppage Of increment for a period of six months without cumulative effect) without prejudice to the right of the respondent to deal with the matter according to law and in the light of the directions contained in the judgment of this Court dated 29-6-1983, if so advised. There will be no order as to costs. Allowed.