IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 WP(C).No. 12122 of 2009(I) ------------------------------------- PETITIONER: ------------------- S.RADHAKRISHNAN NAIR, JUNIOR SUPERINTENDENT, DIRECTORATE OF SURVEY & LAND RECORDS, THIRUVANANTHAPURAM. BY ADV. MR.PIRAPPANCODE V.S.SUDHIR. RESPONDENTS: ------------------------ 1. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, THIRUVANANTHAPURAM. R1 & R2 BY GOVT. PLEADER MR. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2009,ALONG WITH W.P.(C). NO. 12144 OF 2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.12122/2009-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MEMORANDUM OF CHARGES NO.S5-63433/2006 DTD. 19/11/2006 ISSUED BY THE R.2. EXT.P.2: COPY OF THE STATEMENT OF DEFENCE DTD. 23/11/2006 SUBMITTED BY THE PETITIONER TO EXT.P.1. EXT.P.3: COPY OF THE MEMORANDUM OF CHARGE AND THE STATEMENT OF ALLEGATIONS DTD. 07/07/2007. EXT.P.4: COPY OF THE REPLY DTD. 27/07/2007 SUBMITTED BY THE PETITIONER TO EXHIBIT.P.3. CHARGES. EXT.P.5: COPY OF THE JUDGMENT DTD. 18/12/2007 OF THIS HONOURABLE COURT IN W.P.(C).NO.37565/2007. EXT.P.6: COPY OF THE ORDER NO. S5-63433/2006 DTD. 23/01/2008 OF THE R.2. EXT.P.7: COPY OF THE ENQUIRY REPORT NO. CA-02/08 DTD. 26/05/2008 OF THE DEPUTY COLLECTOR (LR). EXT.P.8: COPY OF THE ORDER NO. S5-63433/2006 DTD. 11/06/2008 OF THE R.2. EXT.P.9: COPY OF THE MEMORANDUM OF APPEAL DTD. 08/08/2008 FILED BY THE PETITIONER BEFORE THE R.1. EXT.P.10: COPY OF THE JUDGMENT DTD. 16/10/2008 OF THIS HONOURABLE COURT IN W.P.(C).NO.30514/2008. EXT.P.11: COPY OF THE ORDER NO.LR.(D6)38999/08 DTD. 22/01/2009 OF THE R.1. EXT.P.12: COPY OF THE ORDER NO. S5-63433/06 DTD. 04/03/2009 OF THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. V.GIRI, J. --------------------------- W.P.(C) Nos.12122 & 12144 of 2009 --------------------------- Dated this the 5th day of October, 2009 JUDGMENT Identical contentions have been raised in these writ petitions. Therefore, they have been heard together and are being disposed of by this common judgment. I will refer to the facts in W.P.(C) No.12122 of 2009, which will govern the other writ petition also. 2. The petitioner, while functioning as Deputy Tahsildar in Survey and Land Records Department, was served with Ext.P1 memo of charges to which, he submitted Ext.P2 explanation. The department decided to conduct an enquiry against the petitioner. The proceedings were delayed and the petitioner had approached this court in W.P.(C) No.37565 of 2007, which was disposed of directing an expeditious finalisation of the disciplinary proceedings. The Deputy Collector(LR), Thiruvananthapuram was appointed as the Enquiry Officer as per Ext.P6 and by Ext.P7, the Enquiry Officer concluded that the petitioner had not committed W.P.(C)Nos.12122 & 12144 of 2009 :: 2 :: any misconduct, nor had done any act warranting any punishment as such. But, by Ext.P8 an order of punishment of barring of three increments with cumulative effect, a major punishment was imposed by the 2nd respondent, the disciplinary authority. It seems that Ext.P8 was not preceded by any notice, intimating the petitioner that the disciplinary authority proposes to disagree with the Enquiry Officer. 3. Apparently, aggrieved by Ext.P8 order, Ext.P9 appeal dated 8.8.2008 was preferred before the appellate authority, the 1st respondent. By Ext.P11, the appellate authority set aside the order passed by the original authority and required the District Collector to hear the matter afresh and pass fresh orders. It was found that the requisite procedure had not been followed by the District Collector. 4. Pursuant to Ext.P11, the disciplinary authority proceeded to pass a fresh order, Ext.P12. The operative portion of the same reads as follows: W.P.(C)Nos.12122 & 12144 of 2009 :: 3 :: “While considering the Appeal petition, the Commissioner of Land Revenue has observed that the Enquiry Officer had recommended to acquit the delinquent officer from the charges levelled against him. Even though the District Collector has imposed major penalty without adhering the formal enquiry report and considering the statement of defense filed by the delinquent officer. In the circumstances, Sri.K.Biju, Sub Collector, Thiruvananthapuram is hereby appointed as Enquiry Officer under Rule 15 of K.C.S. (CC&A) Rules, 1960 to conduct a detailed in this case. Since, the Commissioner of Land Revenue has remanded the case for fresh disposal, you are strictly directed to adhere the provisions contained in Rule 15 of K.C.S. (CC&A) Rules, 1960. The Enquiry Officer will submit the report within one month without fail. The connected file S5/63433/2006 (1 to 236 pages) is also enclosed herewith for further necessary action. The receipt of the records may please be acknowledged.” 5. The disciplinary authority has, in the course of passing fresh orders, on remand, proceeded to W.P.(C)Nos.12122 & 12144 of 2009 :: 4 :: direct a fresh enquiry to be conducted. This has been challenged in the writ petition. 6. Similar facts are involved in W.P.(C) No.12144 of 2009 and Ext.P11 is the order passed in the said case by the disciplinary authority, subsequent to the remand made by the Commissioner for Land Revenue. 7. I heard Mr.Pirappancode V.S.Sudheer, learned counsel for the petitioner and the learned Government Pleader Sri.Antony Mukkath. 8. Though the order of remand by the Commissioner of Land Revenue, in these cases, have also been challenged, learned counsel for the petitioner, at this stage, limited the challenge to the orders passed by the District Collector, directing a fresh enquiry to be conducted, which alone need be considered and I have considered the same. 9. By Ext.P7 in W.P.(C)No.12122 of 2009, the enquiring authority had submitted a report, exonerating the petitioner. This was then forwarded to W.P.(C)Nos.12122 & 12144 of 2009 :: 5 :: the disciplinary authority. No doubt, as per the K.C.S. (CC&A) Rules, 1960, it might be open to the disciplinary authority to take a different view from that of the Enquiry Officer. In such a case, the delinquent officer must be given an opportunity to show cause against the proposal. He must also be put on notice, the basis on which the disagreement was arrived at. That was not done in this case, prior to the passing of Ext.P8 order. This, among others, was taken note of by the 1st respondent-appellate authority when he directed the disciplinary authority to pass fresh orders. At no point of time did the appellate authority contemplate or provide for any fresh enquiry, nor is there any finding anywhere by the appellate authority that the enquiry report is not acceptable. The enquiry report has also not been set aside. 10. All that the appellate authority did was to remand the matter to the District Collector, requiring the latter to pass fresh orders, in accordance with law. It is necessary for the disciplinary authority to consider the W.P.(C)Nos.12122 & 12144 of 2009 :: 6 :: enquiry report, though the disciplinary authority need not follow or accept the enquiry report. But, as stated above, there are circumstances where he may disagree with the enquiry report. Such disagreement obviously cannot be capricious. It must be based on materials available and the proposal to disagree with the findings of the enquiring authority must be communicated by the disciplinary authority to the delinquent officer. This is not only part of the prescribed procedure, but it is required for complying with the principles of natural justice. 11. Apart from that, it is not open to the 2nd respondent, after the remand effected under Ext.P11, to direct a fresh enquiry to be conducted. This has been done without there being even a stray observation regarding the acceptability or otherwise of the Enquiry Report, let alone reference to any materials, on the basis of which the disciplinary authority can legitimately propose to disagree with the conclusions and findings in W.P.(C)Nos.12122 & 12144 of 2009 :: 7 :: the Enquiry Report. But, what has been done by the disciplinary authority, in the present case, is not only to proceed to disagree with the Enquiring Authority, but to direct a fresh enquiry to be conducted. This is clearly impermissible, for more than one reason. Firstly, the disciplinary authority has not set aside the original Enquiry Report. There cannot be any second enquiry, unless the first report is set aside. Secondly, as stated above, the grounds of disagreement have not been referred to by the disciplinary authority, let alone communicated to the delinquent officer. Thirdly, the powers of the disciplinary authority, in the instant case, are circumscribed by the terms contained in the order of remand, which is only to pass a fresh order and does not, as such, contemplate a fresh enquiry. For all these reasons, I am of the view that the petitioner is entitled to succeed. Ext.P12 in W.P.(C) No.12122 of 2009 and Ext.P11 in W.P.(C)No.12144 of 2009 are quashed. The 2nd respondent shall proceed to W.P.(C)Nos.12122 & 12144 of 2009 :: 8 :: pass fresh orders, as directed by the appellate authority, within three months from the date of receipt of a copy of this judgment. Writ petitions are disposed of as above. Sd/- (V.GIRI) Judge sk/ //true copy//