IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 OP.No. 11268 of 2000(N) ----------------------------------- PETITIONER(S): ---------------------- 1. J. DAMODARAN PILLAI, SPECIAL VILLAGE OFFICER, VALAKOM, KOTTARAKKARA, KOLLAM DISTRICT. *ADDL. P2 TO P4 IMPLEADED ADDL. P2: KUMARI T.K. LETHA, ANANDAVILASOM, UMMANNOOR P.O., KOTTARAKKARA. ADDL. P3: DEVISREE. L., (MINOR), REPRESENTED BY MOTHER AND NATURAL GUARDIAN KUMARI T.K. LETHA, ANANDAVILASOM, UMMANNOOR P.O., KOTTARAKKARA. ADDL. P4: DIVYASREE. L., (MINOR), REPRESENTED BY MOTHER AND NATURAL GUARDIAN KUMARI T.K. LETHA, ANANDA VILASOM, UMMANNOOR P.O., KOTTARAKKARA. * ADDL. PETITIONERS 2 TO 4 ARE IMPLEADED AS PER ORDER DATED 07/03/2006 IN I.A.2421/2006. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY, SRI.B.MOHANLAL, SMT.RESMI G. NAIR. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. OP.No. 11268 of 2000(N) 2. THE COMMISSIONER, LAND REVENUE, THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR, KOLLAM. R1 TO R3 BY GOVT. PLEADER MR.R. LAKSHMI NARAYANAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/10/2010, ALONG WITH OP NO. 25919 OF 2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 11268 of 2000(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE MEMO OF CHARGES NO.S3.30163/95 DATED 02/04/1996 OF THE 3RD RESPONDENT WITH THE STATEMENT OF ALLEGATIONS APPENDED. EXT.P2: COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P3: COPY OF THE SHOW CAUSE NOTICE NO.S3-30163/95 DATED 02/09/1997 OF THE ENQUIRY OFFICER. EXT.P4: COPY OF THE REPLY SUBMITTED BY THE PETITIONER. EXT.P5: COPY OF THE ORDER NO.S3-30163/95 DATED 12/12/1997 OF THE 3RD RESPONDENT. EXT.P6: COPY OF THE MEMORANDUM OF APPEAL TO THE SECRETARY, BOARD OF REVENUE (LAND REVENUE). EXT.P7: COPY OF THE ORDER NO.LR.D3.3547/98 DATED 30/06/1998 OF THE BOARD OF REVENUE (LR). EXT.P8: COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P9: COPY OF THE G.O.(RT)NO.4736/99/RD DATED 26/10/1999 GOVERNMENT REJECTED THE REVIEW PETITION SUBMITTED BY THE PETITIONER. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = O.P.Nos.11268/2000-N & 25919/2000-I = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of October, 2010. Judgment “CR” Thottathil B.Radhakrishnan, J. 1.These original petitions filed under Article 226 of the Constitution of India come before the Division Bench on a reference on the question as to whether, in a case where the proceedings for imposition of a major penalty were initiated against a government servant, a minor penalty could be imposed, without serving the copy of the report of the enquiry on the delinquent. The reference was necessitated as the learned Judge found conflict of opinion in the judgments of this Court in Janardhanan1 and Shaji Lukose2 OP.11268 & 25919/2000 -: 2 :- holding that the copy of the enquiry report has to be served; and Balakrishna Pillai3 and Eacharan4 being rendered to the contrary. 2.Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, the “Rules” for short, provides the procedure for imposing major penalties. Rule 16 of the Rules provides the procedure for imposing minor penalties. 3.Appearing for the petitioners, Adv.N.Santha argued that her clients were not served with the enquiry reports and therefore, the proceedings imposing penalty are invalid. She argued that the totality of the facts and circumstances clearly indicated that the alleged transaction is not proved and did not call for the imposition of any penalty, much less, a minor penalty and that as the enquiry reports were not furnished to the delinquents, the imposition of penalty is without jurisdiction and wholly unfounded. OP.11268 & 25919/2000 -: 3 :- 4.On behalf of the Government, Senior Government Pleader Adv.Lakshmi Narayanan argued that the submissions on behalf of the petitioners do not merit consideration, having regard to the law laid by the Apex Court and explained by this Court in Mohammed Faisal5. He also argued that the petitioners had no case at any time before the filing of these original petitions that they were unaware of the contents of the enquiry reports or were, in any manner, prejudiced by the failure to be given the copies of the enquiry reports. He pointed out that the appeals and revisions filed by the petitioners contained specific challenge to the findings as are contained in the enquiry reports and the show cause notices issued for imposition of minor penalty contained the findings entered against the petitioners in the enquiry reports. He accordingly argued that the petitioners have failed to demonstrate any case of prejudice and there is no scope for interference with the OP.11268 & 25919/2000 -: 4 :- disciplinary proceedings, in writ jurisdiction. 5.Disciplinary proceedings were initiated against the petitioners for imposition of major penalty. Memos of charges were issued to them. Written statements of defence were submitted by them. This was followed by inquiry as enjoined by Rule 15 of the Rules. After receipt of the enquiry reports, the disciplinary authority, namely, the District Collector, decided to proceed against the petitioners for imposition of only a minor penalty. Therefore, show cause notices, making reference to the findings in the enquiry reports, were issued to the petitioners. They replied. After considering the replies, minor penalties were imposed on them. They unsuccessfully challenged such decisions in appeals and revisions before the Board of Revenue and the Government respectively. Hence these original petitions. 6.In terms of the law as it stood before the 42nd OP.11268 & 25919/2000 -: 5 :- Amendment to the Constitution in 1976, a reasonable opportunity of showing cause to the proposed action in disciplinary proceedings was found to contain a right to represent against the proposed penalty also. As noticed by the Division Bench of this Court in Mohammed Faisal5, this view which held the field prior to 1976 and was re-stated in Khem Chand6, does not survive the addition of the proviso to Article 311(2) inserted by the 42nd Amendment. The opportunity to make a representation against the proposed penalty ceased to be a guaranteed constitutional safeguard. In Tulsiram Patel7, the validity of that amendment was upheld. As explained by this Court in Mohammed Faisal5, the situation came to be one where, after having filed written statement to the memo of charges and upon conclusion of the inquiry after witnesses are examined and documentary evidence admitted to the enquiry proceedings, the delinquent remains in the dark as to the conclusions of the inquiring authority and the decision that the disciplinary OP.11268 & 25919/2000 -: 6 :- authority may take on the conclusions of the inquiring authority. This situation was sought to be rectified by the law laid by the Apex Court in Ram Chander8. In view of that, Mohd. Ramzan Khan9 was rendered by the Apex Court holding that the enquiry report being an adverse material, the employee shall be given an opportunity to submit as to why the report should not be accepted by the disciplinary authority. Then, the Apex Court laid down in B.Karunakar10 that even if the enquiry report is not served, unless prejudice is shown to have been occasioned to the delinquent, interference with the disciplinary proceedings is not warranted. It was also laid down that even if prejudice is shown, the court should hear on the objections of the delinquent against enquiry report and unless the court is impressed with the objections, the enquiry proceedings should not be mechanically set aside and the matter remitted as that would only be an empty formality. 7.The core principle emanating from a proper OP.11268 & 25919/2000 -: 7 :- understanding of the precedents referred to above is that a delinquent does not have a constitutional right to represent against the proposed penalty, he having been heard in the enquiry, and, even if the disciplinary authority is not the inquiring authority and the punishment was imposed by the disciplinary authority without hearing the delinquent on the findings of the inquiring authority, the courts, in judicial review, would not interfere with the imposition of the punishment unless it is proved to its satisfaction that the absence of hearing on the correctness of the findings in the enquiry report and the punishment as imposed, have resulted in miscarriage of justice. 8.Now, in the context of the Kerala Public Services Act, 1968 and the Rules, treating them as a statute and rules framed in terms of the Constitution, we shall examine whether a delinquent has the right to be furnished a copy of the report and be heard on the correctness or OP.11268 & 25919/2000 -: 8 :- otherwise of the enquiry report before the imposition of a minor penalty on the basis of that report; merely because the employer commenced the disciplinary proceedings on the assumption that the delinquent has incurred the liability, by his misconduct, to suffer a major penalty in terms of the Rules. 9.Rule 15 of the Rules contains the procedure for imposing major penalties. Sub-rule (1) of Rule 15 provides that no order imposing any among the penalties specified in items (v) to (ix) of Rule 11(1) shall be passed except after an inquiry held as far as may be, in the manner provided in Rule 15. Those penalties are called the major penalties. Items (i) to (iv) in Rule 11(1) are called the minor penalties. Rule 16(1) of the Rules provides that no order imposing any of the minor penalties shall be passed except after following the prescriptions therein. That does not include the requirement to hold an inquiry as provided for in Rule 15 or to furnish to the OP.11268 & 25919/2000 -: 9 :- delinquent a copy of report of the inquiring authority. Adverting to Rule 15(12), it can be seen that where the disciplinary authority is the inquiring authority, the report of the inquiring authority; and where the disciplinary authority is not the inquiring authority, a statement of the findings of the disciplinary authority with brief reasons for disagreement, if any, with the findings of the inquiring authority; has to be served on the delinquent, if the disciplinary authority, having regard to the findings on the charges, is of the opinion that any among the major penalties should be imposed. The delinquent is to be given notice stating the action proposed to be taken and calling upon him to submit such representation as he may wish to make against the proposed action. However, Rule 15(13) of the Rules provides that if the disciplinary authority, having regard to its findings, is of the opinion that any of the minor penalties should be imposed, it shall pass appropriate orders in the case subject of course, to the OP.11268 & 25919/2000 -: 10 :- requirement to consult the Public Service Commission in every case in which it is necessary to do so. Sub-rule (13) of Rule 15 is, therefore, made visualizing the contingency where a disciplinary authority may, having regard to the findings following the inquiry, come to the opinion that it would suffice that a minor penalty is imposed instead of imposing any among the major penalties as originally contemplated without initiating proceedings on the basis of the allegations. Sub-rules (12) and (13) of Rule 15 of the Rules being statutory, the clear expressions made therein regarding the respective procedures to be adopted by the disciplinary authority depending on the opinion that it formulates on the basis of the findings in the inquiry, categorically show that the maker of the Rules contemplated that there may be cases where proceedings would commence on the premise that a major penalty has to be imposed, having regard to the gravity of the allegations, however that, on conclusion of the inquiry, the disciplinary OP.11268 & 25919/2000 -: 11 :- authority would come to the opinion that the proved allegations would call for imposition of only a minor penalty. The clear words of sub- rules (12) and (13) of Rule 15, therefore, specifically provide that if the proposal is to impose a major penalty, however that, the copy of the enquiry report is to be furnished; there is no requirement to furnish the copy of the enquiry report, if the proposal is only to impose a minor penalty. This principle was discerned and applied in Balakrishna Pillai3 and in Eacharan4. It is apposite in this context to quote Eacharan4 as follows: “5. The learned counsel for the petitioner would submit that where the ultimate penalty imposed is only minor penalty, if the proceedings had commenced under Rule 15 and not under Rule 16, it is incumbent on the disciplinary authority to supply copy of the inquiry report to the government servant and to give him an opportunity to make a representation and the disciplinary authority has to consider such representation as contemplated in OP.11268 & 25919/2000 -: 12 :- sub-rule (12) of rule 15 of the Rules. This argument does not stand legal scrutiny. There is a definite scheme and pattern behind Rules 15 and 16. Broadly speaking Rule 15 deals with procedure for the imposition of major penalty, while rule 16 deals with procedure for imposing minor penalties. Reading the two rules together, there can be no doubt that in a proceeding commencing under rule 16 only a minor penalty can be imposed and not a major penalty. But, in a proceeding commencing under Rule 15, disciplinary authority or the Government, as the case may be, has choice of two course in the matter of imposition of penalty. It is open to the authority to follow the mandate of sub-rule (12) and in appropriate cases, impose major penalty. It is also open to the authority to refrain from following the procedure provided under sub-rule (12) but to follow the procedure laid down in sub-rule (13) of Rule 15 of the Rules and to impose only a minor penalty. Difference between sub- rules (12) and (13) of Rule 15 indicate the difference between the procedures to be followed in the matter of imposition of major and minor penalties in a proceeding commencing under Rule 15 of the Rules. The OP.11268 & 25919/2000 -: 13 :- procedure prescribed in sub-rule (13) is analogous, so to say, to the procedure prescribed in Rule 16. Rule 16 as well as sub-rule (13) of Rule 15 contemplate only grant of one opportunity to the government servant concerned and that opportunity is to make a representation in regard to the charges framed against him of the show- cause notice. The right of the government servant in such cases is to ensure that his representation is considered before the disciplinary authority imposes minor penalty. But, where ultimately major penalty is to be imposed, the government servant has the right to insist on two opportunities as the rules stand now. The rules have not been amended even though Article 311(2) of the Constitution has been amended. As the rules stand now, before a major penalty can be actually imposed on a government servant, he has to receive two opportunities, one to submit a written statement of defence in answer to the charges and the other to submit representation in regard to the penalty proposed to be imposed on him in the light of the findings in the inquiry report and he can also insist on being furnished with a copy of the report. OP.11268 & 25919/2000 -: 14 :- 5A. Understanding rules 15 and 16 in the light of the broad scheme as explained above, it is clear that where a proceeding for imposition of major penalty is commenced against a government servant under Rule 15 of the Rules and an inquiry report is submitted, if the disciplinary authority or the government, as the case may be, is of the opinion that it is a fit case to impose only a minor penalty and not a major penalty, that authority is to follow the procedure prescribed in sub- rule(13) of Rule 15 and not the procedure prescribed under sub-rule (12). Consequently, it must follow that in such a case the government servant has no right to insist on being furnished with a copy of the inquiry report or being given an opportunity to make representation against the proposed action on the basis of the findings in the inquiry report and the evidence adduced during the inquiry. The present is the case, where the proceedings were initiated under Rule 15 as if it was proposed to impose a major penalty and after considering the inquiry report and the other circumstances in the case, the Government thought it fit to impose only a minor penalty. That being so, there is no illegality in the government not OP.11268 & 25919/2000 -: 15 :- furnishing a copy of the inquiry report to the petitioner or in not giving him an opportunity once again to make a representation regarding the proposed action.” 10.We are of the view that the afore-quoted expression of the principles of law governing the procedure to be adopted in terms of sub-rules (12) and (13) of Rule 15 of the Rules, as laid down in Eacharan4, is in conformity with those statutory provisions. Similar view in Balakrishna Pillai3 also lays down the correct position of law in this regard. 11.We visualize that the precedents of co-equal jurisdiction rendered earlier by this Court in Balakrishna Pillai 3 and Eacharan4 and those rendered by the Apex Court, noticed above by us, were not brought to the notice of this Court while Janardhanan1 and Shaji Lukose2 were heard and decided. On the basis of the statutory rules, the clear position is as laid down in Eacharan4, to wit, that when the disciplinary authority OP.11268 & 25919/2000 -: 16 :- takes recourse to Rule 15(13), it is not necessary to abide by the requirement of Rule 15 (12), that the delinquent be furnished a copy of the report of the inquiring authority. Janardhanan1 and Shaji Lukose2 cannot be treated as correct in the light of what is stated above. 12.Ultimately, it needs to be re-stated that in view of B.Karunakar10 and Mohammed Faisal5 and as found by us in paragraphs 6 and 7 above, the courts would not interfere in judicial review merely on the technical contention that the copy of the enquiry report was not served even in cases where what is ultimately imposed is a major penalty and there would be no interference except in cases where prejudice is demonstrated. 13.Having answered the question of law referred for decision to the Bench, we may state that the defence of the petitioners to the impugned proceedings that the enquiry reports were not given to them was never a ground either before OP.11268 & 25919/2000 -: 17 :- the appellate authority or in the revision before the Government. That issue was raised for the first time in jurisdiction under Article 226 of the Constitution, which essentially is a discretionary one and would not be exercised unless injustice is demonstrated. The allegations against the delinquents were that they, village officers, were responsible for effecting irregular mutations, suppressing the real state of affairs, as regards lands involved in land acquisition proceedings for the Kallada Irrigation Project. The allegations were proved on inquiry and such findings stand confirmed by the statutory authorities. No sustainable plea of glaring illegality or irregularity as would warrant interference with those findings in writ jurisdiction is pointed out. In fact, the proceedings before the statutory authorities, including the appeals and revisions filed by the petitioners would show that they were aware of the contents of the enquiry reports and had agitated before the appellate authority and in OP.11268 & 25919/2000 -: 18 :- revision on the correctness of the findings in the enquiry reports. The petitioners have also failed to show that the findings in the inquiry are perverse or that they were based on no evidence. Therefore, there is no room whatsoever to interfere with the impugned proceedings, on the merits either. For the aforesaid reasons, these original petitions are dismissed. The petitioners having retired from government service and one of them being no more, we desist from imposing any order of costs against them. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. 1 Janardhanan v. State of Kerala, 2004(1) KLT SN 103(Case No.133) 2 Shaji Lokose v. State of Kerala, 2007(1) KLT 679 OP.11268 & 25919/2000 -: 19 :- 3 Balakrishna Pillai v. State of Kerala, 1978 KLT 928 4 Eacharan v. State of Kerala, 1983 KLT 22 5 High Court of Kerala v. Mohammed Faisal, 2010 (1) KLT 857 6 Khem Chand v. Union of India, AIR 1958 SC 300 7 Union of India v. Tulsiram Patel, AIR 1985 SC 1416 8 Ram Chander v. Union of India, AIR 1986 SC 1173 9 Union of India v. Mohd. Ramzan Khan, AIR 1991 SC 471 10 Managing Director, E.C.I.L. v. B.Karunakar, (1993) 4 SCC 727. Sha/2810 P.S.to Judge. OP.11268 & 25919/2000 -: 20 :- Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = O.P.Nos.11268/2000-N & 25919/2000-I = = = = = = = = = = = = = = = = Judgment 22nd October, 2010.