IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WP(C).No. 36346 of 2007(B) ---------------------------------------- PETITIONER: --------------------- K. SANTHOSHKUMAR, AGED 53 YEARS, S/O. K.V. KUMARAN, SENIORMOST DEPUTY CONTROLLER, SOUTH ZONE, LEGAL METROLOGY DEPARTMENT, TRIVANDRUM (NOW ORDERED FOR REDUCTION TO LOWER GRADE OF ASSISTANT CONTROLLER). BY ADV. SRI.T.A.UNNIKRISHNAN SRI.P.P.BIJU RESPONDENTS: ------------------------- 1. THE GOVERNMENT OF KERALA, REP. BY ITS SECRETARY, FOOD & CIVIL SUPPLIES DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE ENQUIRY OFFICER (ADDL.SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM). BY ADDL.ADVOCATE GENERAL - R1,2 BY SR. GOVERNMENT PLEADER SRI. P.K. BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36346/2007 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER G.O.(RT) NO.533/07/CAD DTD. 27/11/2007. EXT.P2: COPY OF THE MEMO OF CHARGES ALONG WITH THE STATEMENT OF ALLEGATION. EXT.P3: COPY OF THE REQUEST MADE BY THE DEPUTY GENERAL MANAGER OF IOC DGD. 3/11/1997. EXT.P4: COPY OF THE SANCTION ORDER GIVEN BY THE PETITIONER. EXT.P5: COPY OF THE CIRCULAR DTD. 30/06/2001 ISSUED BY CONTROLLER OF LEGAL METROLOGY. EXT.P6: COPY OF THE REPLY DTD. 8/01/2004 SUBMITTED BY THE PETITIONER. EXT.P7: COPY OF THE MEMO OF CHARGES DTD. 16/10/2004. EXT.P8: COPY OF THE REPLY DTD. 25/11/2004. EXT.P9: COPY OF THE REPLY SUBMITTED BY PETITIONER DTD. 13/04/2005. EXT.P10: COPY OF THE ENQUIRY REPORT DTD. 4/07/2005. EXT.P11: COPY OF THE SHOW CAUSE NOTICE DTD. 7/12/2005. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss V. GIRI, J. ------------------------------- WP(C).NO. 36346 of 2007 --------------------------------- Dated this the 16th day of June, 2008 JUDGMENT The petitioner is a Deputy Controller in Legal Metrology Department. He is entitled to aspire for promotion to the post of Controller Legal Metrology. He challenges Ext.P1 order by which a major penalty of reduction to lower grade of Assistant Controller for a period of one year was imposed. He also challenges Ext.P10 enquiry report. 2. The allegations levelled against the petitioner as contained in Ext.P2 memo of charges are to the following effect: “ That you Sri.K.Santhosh Kumar, while working as Deputy Controller, Legal Metrology, Central Zone granted permission to the Depot Manager, Indian Oil Corporation, Palakkad to break open the calibration seal of tanker lorries put by the legal Metrology Department. You are neither competent nor authorised to do it. Hence the permission granted by you is illegal which warrants disciplinary action against you. “ WPC.36346 /2007 2 3. The petitioner submitted his reply Ext.P6. Ext.P6 is an elaborate one. After denying the allegations levelled against the petitioner, he also at the stage of conclusion of the reply stated that if he has acted in an incorrect manner in giving permission to break the calibration seal, it may be treated as a lapse on the part of the petitioner and he may be exonerated from the disciplinary action. By Ext.P7, the Government raised additional charges against the petitioner. The petitioner submitted his detailed reply Ext.P8. An enquiry was conducted and Ext.P10 is the enquiry report. The observation of the enquiry officer on charge No.1, which alone is relevant, reads as follows: “ At the time of enquiry he has admitted that he was not competent nor authorised to grant permission to the Depot Manager, Indian Oil Corporation, Palakkad to break open the calibration seal of Tanker Lorries affixed by Legal Metrology Department. He has also requested to excuse this lapse.” 4. Ext.P11 show cause notice was issued to the petitioner tentatively accepting the findings of the enquiry officer. The WPC.36346 /2007 3 Government also went on the premise that the enquiry officer has recorded that the petitioner at the time of personal hearing on 6.6.2005 had admitted that he had been warned against the conduct of insubordination twice before. The Government also stated that in the case of the allegation regarding breaking of calibration seal also, the petitioner had admitted the charge and that his explanation that he was not aware of his incompetence to open the seal itself reveals that the petitioner is an officer who is not even aware of the duties and responsibilities attached to his post. The petitioner had raised an objection to the finding in the enquiry report Ext.P10 to the effect that he had admitted his charge and that he was incompetent to break the calibration seal. A perusal of the reply submitted by the petitioner shows that he had taken a specific objection in one portion of his reply that he had admitted his lack of competence or lack of authority to do so. In fact it is stated so in paragraph VIII (f) of the reply. 5. I heard learned counsel for the petitioner Sri.T.A.unnikrishnan and the learned Government Pleader Sri.P.K.babu. Learned counsel for the petitioner submits that in the enquiry report the petitioner had admitted the major charge WPC.36346 /2007 4 levelled against him and this has vitiated the enquiry report and subsequent orders. He further submits that even though the enquiry officer had recommended barring of two increments, the Government decided to impose a major punishment of reduction to lower grade of Assistant Controller under Rule 11(1)(V) of Kerala Civil Service (Classification Control and Appeal) Rules. 6. It is up to the Government to decide the punishment to be imposed on conclusion of the disciplinary action. Therefore, the fact that the Government did not accept the recommendation of the enquiry officer and proposed to impose a major punishment of reduction to the rank of Assistant Controller by itself may not vitiate the order passed by the Government. But I notice that the conclusion is purely on the basis that the petitioner has admitted lapse on his part and therefore the petitioner had admitted the charges levelled against him. It is difficult to accept this. At any rate the petitioner had objected to this finding by the enquiry officer in the reply given by him to Ext.P11 show cause notice. But I find from Ext.P1 order passed by the Government that there is no reference to this aspect or any finding to the effect that the petitioner had objected to the WPC.36346 /2007 5 finding in the enquiry report. There are no other materials to come to the conclusion that the enquiry officer was correct in this regard. I also find that no other witness had actually been examined. 7. I also feel that it would be better, if a fresh enquiry is conducted in so far as the first charge is concerned. Apparently, the petitioner is a senior Deputy Controller in the Legal Metrology Department. For all these reasons, the writ petition is allowed in part. Ext.P10 enquiry report and Ext.P1 order passed by the Government are set aside. The Government shall conduct a fresh enquiry against the petitioner on the charge contained in Ext.P2. Such enquiry shall be completed as early as possible, at any rate, within three months from the date of receipt of a copy of this judgment. V. GIRI, JUDGE. pmn/ WPC.36346 /2007 6