IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WP(C).No. 2998 of 2007(F) ------------------------------------ PETITIONER: ------------------- V.J. JOSE, ASSISTANT EXCISE COMMISSIONER, EXCISE INTELLIGENCE & INVESTIGATION BUREAU, CENTAL ZONE, ERNAKULAM. BY ADVS. DR.K.P.SATHEESAN, MR.K.K.GOPINATHAN NAIR, MR.M.R.JAYAPRASAD, MR.K.K.RAJEEV. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT TAXES (F) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL OF KERALA, ACCOUNTANT GENERAL'S OFFICE, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.2998/2007-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MEMO OF CHARGES NO.XB-10370/95 DTD. 29/01/1997. EXT.P.2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE R.2. DTD. 20/04/1997. EXT.P.3: COPY OF THE ENQUIRY REPORT GIVEN BY THE DEPUTY COMMISSIONER OF EXCISE, CENTRAL ZONE, ERNAKULAM TO THE R.1. DTD. 14/06/2004. EXT.P.4: COPY OF THE SHOW CAUSE NOTICE NO. 14922/F2/04/TD DTD. 05/08/2005 ISSUED TO THE PETITIONER. EXT.P.5: COPY OF THE EXPLANATION OFFERED BY THE PETITIONER TO THE R.1. DTD. 27/09/2005. EXT.P.6: COPY OF THE ORDER ISSUED BY THE R.1. G.O.(RT).NO.596/2006/TD. DTD. 04/10/2006. EXT.P.7: COPY OF THE ORDER ISSUED BY THE R.1. AS G.O.(RT).NO.796/2006/TD DTD. 20/12/2006. EXT.P.8: COPY OF THE REPORT GIVEN BY THE PETITIONER IN RESPECT OF ARRACK SHOPS IN GROUP NO. IV OF ERNAKULAM EXCISE RANGE DTD 27/11/1993. EXT.P.9: COPY OF THE REPORT GIVEN BY THE PETITIONER IN RESPECT OF ARRACK SHOPS IN GROUP NO.1 OF ERNAKULAM EXCISE RANGE DTD. 09/12/1993. EXT.P.10: COPY OF THE LETTER NO. GE 035/D/EXJ-16/1192 DTD. 09/01/2007 ISSUED TO THE PETITIONER BY THE R.3. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 2998 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 1st June, 2009. J U D G M E N T Disciplinary proceedings were initiated against the petitioner by Ext. P1 memo of charges for certain charges detailed in the same. The petitioner filed Ext. P2 reply. However, the Government decided to conduct an enquiry into the charges. An enquiry officer was appointed, who submitted Ext. P3 report, in which the enquiry officer found the petitioner guilty of two charges. Ext. P4 show cause notice was issued by the Government to the petitioner asking him to show cause why the punishment of barring of two increments with cumulative effect should not be imposed on him. The petitioner filed Ext. P5 reply. The reply did not find favour with the Government and the Government, by Ext. P6 order, imposed on the petitioner the punishment of barring of two annual increments with cumulative effect. The petitioner filed a petition seeking review, which was also rejected by Ext. P7 order. The petitioner is now challenging Exts.P6 and P7 orders. 2. The learned Government Pleader, with the help of the counter affidavit of the 1st respondent, opposes the writ petition. 3. I have heard both sides. 4. The petitioner does not have any contention that the enquiry was in violation of the principles of natural justice. Of course, he would challenge the findings therein on the ground that the evidence available before the enquiry officer did not warrant a finding of guilt. His main contention in this writ petition is that Exts.P6 and P7 orders are bad for non-compliance with the procedure prescribed under the Kerala Civil Services (Classification, Control and Appeal) Rules. He particularly relies on sub-rule (14) of Rule 15 of the said Rules. According to the petitioner, before imposition of punishment on him, the Public Service Commission should have been consulted and a copy W.P.C. No. 2998/07 -: 2 :- of the advice of the Commission should have been furnished to the petitioner along with a statement of reasons for non-acceptance of the advice, if the disciplinary authority has not accepted the advice of the Commission. According to him, the petitioner was not furnished with a copy of the advice of the Commission and as such, he is not even able to ascertain whether the Commission has recommended imposition of punishment or whether the Public Service Commission has disagreed with the proposal for imposition of of punishment. He further contends that the disciplinary authority had not given him an opportunity of being heard before imposing the punishment by the impugned order. 5. If I accept the first contention of the petitioner that he has not been served with a copy of the advice of Ext. P5 and legally he is entitled to have such a copy, I need not go into the further contentions of the petitioner at this juncture. Therefore, I shall first consider that question. Sub-rules (12) to (15) of the Kerala Civil Services (Classification, Control and Appeal) Rules read thus: “15. Procedure for imposing major penalties:- xx xx xx (12) (i) If the Disciplinary Authority, having regard to the findings on the charges, is of the opinion that any of the penalties specified in items (v) to (ix) of rule 11(1) should be imposed, it shall,- (a) furnish to the Government servant a copy of the report of the Inquiring Authority and where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority; and (b) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time which may not generally exceed one month of such W.P.C. No. 2998/07 -: 3 :- representation as he may wish to make against the proposed action: Provided that such representation shall be based only on the evidence adduced during the inquiry. (ii)(a) In every case in which it is necessary to consult the Commission the record of the inquiry together with a copy of the notice given under clause (i) and the representation made in response to such notice, if any, shall be forwarded by the Disciplinary Authority to the Commission for its advice. (b) On receipt of the advice of the Commission the Disciplinary Authority shall consider the representation , if any, made by the Government servant as aforesaid, and the advice given by the Commission and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case. (iii) In any case in which it is not necessary to consult the Commission the Disciplinary Authority shall consider the representation, if any, made by the Government servant in response to the notice under clause (i) and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case. (13) If the Disciplinary Authority having regard to its findings is of the opinion that any of the penalties specified in items (i) to (iv) of rule 11(1) should be imposed, it shall pass appropriate orders in the case: Provided that in every case in which it is necessary to consult the Commission to record of the enquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice taken into consideration before passing the orders. (14) Orders passed by the Disciplinary Authority shall be communicated to the Government servant who shall also be supplied with a copy of the report of the report of the Inquiring Authority, and where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority, unless they have already been supplied to him, and also a copy of the advice, if any, given by the Commission and where the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such non- acceptance. W.P.C. No. 2998/07 -: 4 :- (15) The procedure referred to above shall be conducted as expeditiously as the circumstances of the case may permit, particularly one against an officer under suspension.” (Emphasis supplied) Sub-rule (14) specifically states that the delinquent officer should be served with a copy of the advice of the Commission and where the disciplinary authority has not accepted the advice of the Commission, a brief statement of the reasons for such non-acceptance. I specifically asked the the learned Government Pleader as to whether a copy of the advice of the Commission has been served on the petitioner. The learned Government Pleader would submit that there is no record of having served a copy of the advice of the Commission on the petitioner, although the same is referred to in Ext. P6 order as reference No. 9. That being so, Ext. P6 order to that extent is clearly violative of the procedure prescribed in Rule 15 and therefore Ext. P6 and consequently Ext. P7 are liable to be quashed. I do so. The 1st respondent may, if they wish to continue the proceedings, serve a copy of the advice of the Commission and if the disciplinary authority has not accepted the advice of the Commission, state the reasons for such non-acceptance as contemplated in Rule 15 (14). Thereafter, the petitioner shall be afforded an opportunity of being heard and fresh orders shall be passed in accordance with law. The above procedure shall be completed and fresh orders passed as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. However, I make it clear that since I have considered only the technical contention of violation W.P.C. No. 2998/07 -: 5 :- of procedure prescribed by Rules, I have not considered the question of validity of the findings of the enquiry officer, which is for the disciplinary authority to consider. The writ petition is allowed as above. S. Siri Jagan, Judge. Tds/