IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 OP.No. 16177 of 2002(A) ----------------------- PETITIONER(S): --------------- M.THYAGARAJAN,SUB JUDGE,SULTHANBATHERY (UNDER SUSPENSION), RAJ BHAVAN,KOLLAKA P.O., KARUNAGAPPILLY. BY ADV. SRI.N.NAGARESH RESPONDENT(S): --------------- 1. HIGH COURT OF KERALA, ERNAKULAM REPRESENTED BY ITS REGISTRAR. 2. R.NATARAJAN,ENQUIRY OFFICER AND ADDITIONAL DIRECTOR OF TRAINING PRESENTLY WORKING AS DIRECTOR OF TRAINING,HIGH COURT OF KERALA, ERNAKULAM. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM. 4. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY,PATTOM PALACE PO., THIRUVANANTHAPURAM. ADV. SRI.K.R.B.KAIMAL, SENIOR ADVOCATE FOR R1& 2 SRI.ALEXANDER THOMAS,STANDING COUNSEL,KPSC FOR R4 SENIOR GOVT. PLEADER SRI.BENNY GERVASIS FOR R3 SRI.B.UNNIKRISHNA KAIMAL FOR R1 & 2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.16177 OF 2002 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the Proceedings-Order No.S.J/13/2000(SS)-II dated 11.06.2000 of the 1st respondent. Ext.P2: True copy of the Official Memorandum No.SJ/13/2000(SS)-II dated 26.06.2000 of the 1st respondent along with the petitions 1,2,3. Ext.P3: True copy of the Representation dated 04.07.2000 of the petitioner to the 1st respondent. Ext.P4: True copy of the Memo of charge No.RSJ/13/2000/II dated 03.10.2000 issued by the 1st respondent along with covering letter No.B1-2294/2000 dated 17.10.2000 of the District Judge, Kalpetta. Ext.P5: True copy of the written statement of defence dated 29.10.2000 submitted by the petitioner to the 1st respondent. Ext.P6: True copy of the Official Memorandum No.RSJ-13/2000(SS)-II dated 12.12.2000 of the 1st respondent. Ext.P7: True copy of the Notice No. RSJ-13/2000(SS)-II dated 19.12.2000 of the 2nd respondent. Ext.P8: True copy of the Official Memorandum No.RSJ-13/2000(SS)-II dated 18.04.2001 of the 1st respondent. Ext.P9: True copy of the Enquiry Report into the charges framed against Sri.M.Thyagarajan, filed by 2nd respondent. Ext.P10: True copy of the Representation dated 15.07.2001 of the petitioner to the 1st respondent. Ext.P11: True copy of the Official Memorandum No.RSJ.13/2000(SS)-II dated 29.04.2002 of the 1st respondent. Ext.P12: True copy of the GO(MS)128/2007/Home dated 11.6.2007 of the 3rd respondent. RESPONDENTS' EXHIBITS: NIL K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- O.P. NO. 16177 OF 2002 --------------------------------------------- Dated this the 5th day of January, 2010 JUDGMENT Balakrishnan Nair, J. This Original Petition was referred to the Division Bench by the learned Single Judge, noticing that certain substantial questions arise for decision in it and, therefore, the learned Judge felt, it is only appropriate that it is heard and decided by a Division Bench. Incidentally, the learned Single Judge also observed that those Judges of this Court who were party to the decision of the Full Court referred to in Ext.P11, may not hear this Original Petition. But, when the Original Petition was taken up for hearing, though one of us was present in the Full Court which took the decision mentioned in Ext.P11 to overrule the finding of the enquiry officer on charge No.2, the learned counsel for the petitioner submitted that he has no objection in this Bench hearing the Original Petition. In principle also, we think, the view that the members of the Full Court who handled the matter on the administrative side cannot hear the Writ Petition O.P. NO. 16177/2002 2 on the judicial side, cannot be upheld. If a decision of the Full Court is challenged immediately thereafter, no Judge of this Court will be able to hear the Writ Petition. It has to wait for hearing till the appointment of the next batch of new Judges. 2. The petitioner, while working as Sub Judge, Sulthan Bathery, was suspended from service on 11.6.2000, as per Ext.P1 order, in contemplation of disciplinary proceedings. Later, he was served with Ext.P2 memo on 26.6.2000, calling upon him to show cause why disciplinary action should not be taken against him for the grounds mentioned therein. The petitioner submitted Ext.P3 reply on 4.7.2000. The High Court took the view that the explanation submitted by the petitioner was not satisfactory and, therefore, decided to take disciplinary action against him. He was served with Ext.P4 memo of charges on 3.10.2000. The petitioner submitted his written statement of defence, Ext.P5. The High Court considered the written statement and found the same not satisfactory and, therefore, decided to hold an enquiry into the charges levelled against him. By Ext.P6 Sri. R. Natarajan, District Judge, the second respondent herein, was appointed as the Enquiry Officer. The Enquiry Officer submitted Ext.P9 report, finding the petitioner guilty of Charge No.1 which related to an incident which took place in the chamber O.P. NO. 16177/2002 3 of the petitioner on 1.4.2000. Charge No.2 which related to an incident which took place on 6.4.2000 and Charge No.3 were found to be not proved. The Administrative Committee of the High Court accepted Ext.P9 enquiry report and issued Ext.P8 show cause notice on 18.4.2001, calling upon the petitioner to show cause why he should not be dismissed from service. Along with Ext.P8, a copy of Ext.P9 report was also forwarded to him. The petitioner submitted Ext.P10 reply, contending that the findings in the enquiry are unsustainable in law and, therefore, he may be exonerated. Later, when the matter came up before the Full Court, the Full Court decided to overrule the finding of the Enquiry Officer on Charge No.2. It took a decision to that effect and thereafter, proposing to dismiss the petitioner from service, issued Ext.P11 show cause notice on 29.4.2002. Immediately on receipt of Ext.P11, the Original Petition was filed, challenging Exts.P8 and P11 on various grounds. 3. Though there are no pleadings as to what happened subsequently, from the files produced before us, we find that the petitioner submitted his reply to Ext.P11 on 23.6.2002. The Full Court considered the matter and decided to recommend to the Governor to dismiss the petitioner from service and the communication to that effect was addressed to the Government on 20.10.2004. Thereafter, several reminders were sent by O.P. NO. 16177/2002 4 the High Court and the last of the reminders was sent on 4.12.2006. Later, while the Original Petition was still pending, the Government passed Ext.P12 order on 11.6.2007, dismissing the petitioner from service with effect from 11.6.2000, the date on which he was placed under suspension. Upon receipt of Ext.P12, the Original Petition was amended, incorporating the challenge against that order also. According to the petitioner, since the Governor has passed the order of dismissal, the show cause notice also should have been issued by the Governor and his explanation should have been considered by the said authority. So, the issuance of the show cause notice by the High Court is without authority, it is submitted. Secondly, he pointed out that the findings of the Enquiry Officer are perverse and not supported by any legal evidence. Thirdly, it is pointed out that before overruling the finding on Charge No.2, the petitioner should have been issued with notice and given an opportunity of being heard. But, in Ext.P11, the decision to overrule the finding on Charge No.2 had already been taken without hearing the petitioner. It is also submitted that since the Administrative Committee is competent to take a decision in the matter, Ext.P8 should be taken as the decision of the High Court and thereafter, the Full Court has no jurisdiction to deal with the same matter. O.P. NO. 16177/2002 5 4. The High Court has filed a counter affidavit, supporting the impugned orders. According to the High Court, the finding regarding Charge No.2 is only a tentative finding and a composite notice under Rule 15(12) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (hereinafter referred to as “K.C.S. (CC&A) Rules”) has been issued in this case. The petitioner has filed his reply. Therefore, there was no violation of the principles of natural justice or violation of the rules. Other contentions are also raised, resisting the grounds taken by the petitioner. 5. We heard Sri. N. Nagaresh, learned counsel for the petitioner and Sri. K.R.B. Kaimal, learned senior counsel for the High Court. We also had the benefit of hearing Sri. Benny Gervasis, learned senior Government Pleader, who appeared for the State. 6. In support of the submission that the Governor should have issued the show cause notice, the learned counsel for the petitioner relied on the decision of this Court in Kumara Menon v. State of Kerala, 1981 K.L.T. 517. To buttress the argument that the finding on Charge No.2 should not have been overruled without hearing the petitioner, the learned counsel relied on the decision of the Apex Court in Yoginath D. Bagde v. O.P. NO. 16177/2002 6 State of Maharashtra [(1999)7 SCC 739]. The learned counsel pointed out that the facts of that case are identical to the facts of the present case. In that case, the Apex Court interfered with the decision of the High Court. 7. The learned senior counsel, who appeared for the High Court, submitted that even assuming that Charge No.2 is excluded from consideration for violation of the principles of natural justice, the dismissal can be sustained in view of Charge No.1, unless it is shown that the punishment is grossly disproportionate to the gravity of the offence. The learned senior counsel also submitted that the offence committed by the petitioner on 1.4.2000 and 6.4.2000, which are covered respectively by Charge Nos.1 and 2, are identical and Ext.P8 notice was already issued, proposing to dismiss him from service. based on Charge No.1. Therefore, even assuming that Charge No.2 is found to be not tenable, still, the dismissal is valid. In support of this contention, the learned senior counsel relied on the decision of the Honourable Supreme Court in State of U.P. v. Nand Kishore Shukla [(1996) 3 SCC 750]. The learned senior Government Pleader, who appeared for the State, contended that even assuming that there was violation of the principles of natural justice, the remand is going to be an empty formality and, therefore, this Court may not issue any futile writ. O.P. NO. 16177/2002 7 8. The contention that the High Court has no power to issue show cause notice and that the same has to be done by the Governor, made relying on the decision of this Court in Kumara Menon v. State of Kerala, 1981 K.L.T. 517, cannot be accepted, in view of the amendment to Rule 13 of the K.C.S. (CC&A) Rules brought out on 24.8.1978, as per the notification published in the Gazette dated 10.10.1978. The Division Bench was considering a disciplinary action taken in 1976, which was held under the unamended rules. Further, now it is well settled that in disciplinary matters of judicial officers, the Governor is absolutely bound by the advice of the Court and even in dealing with the appeals arising therefrom, the Governor has to go by the views of the High Court. Therefore, the contention of the petitioner that the Governor should have issued the show cause notice and considered the matter independently cannot be accepted. 9. The next point is whether the finding of the Enquiry Officer on Charge No.2, contained in Ext.P4 charge sheet, has been overruled without affording the petitioner an opportunity of being heard. The relevant portion of Ext.P11 containing the decision of the High Court on that point reads thus: O.P. NO. 16177/2002 8 “The Full Court also felt that rejection of the second charge by the Enquiry Officer with regard to the incident, which happened on 06.04.2000, is not correct. The reason for the rejection of the said charge by the Enquiry Officer was that there was contradiction in the evidence of P.W.1 and D.W.1 her senior, as to the manner in which she was called to the chambers of the delinquent officer. That was the sole reason for disbelieving the version of P.W.1 with regard to the incident occurred on 06.04.2000. P.W.1 has given plausible explanation for her going to the chamber of the delinquent officer on 06.04.2000. Full court felt that there is no reason to disbelieve the explanation given by P.W.1 in the oral evidence with regard to the circumstances under which P.W.1 went to the chamber of the delinquent officer on 06.04.2000. The enquiry officer appears to have forgotten the fact that the standard of proof required at the departmental enquiry is not proof beyond reasonable doubt. The Full Court found that the second charge against the delinquent officer also stood proved in the inquiry. In view of the above findings, the Full Court is of the opinion that the penalty of dismissal from service should be imposed on the delinquent officer. It is therefore resolved to issue a fresh show cause notice to the delinquent officer under Rule 15(12) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. Sri.M.Thyagarajan, Sub Judge Sulthanbathery (under suspension) is therefore directed to show cause, if any, within 15 days from the date of receipt of this communication, why he should not be dismissed from service. If no representation is received from him within the said period, it will be presumed that he has no representation to make and the matter will be O.P. NO. 16177/2002 9 dealt with accordingly.” Going by the above portion of Ext.P11, it is clear that the High Court has already arrived at the conclusion that Charge No.2 also stood proved. Though it is stated that notice under Rule 15(12) of the K.C.S. (CC&A) Rules was issued, we do not find any tentative finding in it, as contemplated under Rule 15(12)(i)(a) of the K.C.S. (CC&A) Rules. In fact, the decision has already been taken by the High Court without giving a chance to the petitioner to represent his case against that finding. In view of the decision of the Apex Court in Yoginath D. Bagde v. State of Maharashtra (1999)7 SCC 739, such a course of action is impermissible. The Apex Court was interpreting Rule 9 of the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979, which is similarly worded like our Rule 15 of the K.C.S. (CC&A) Rules. In the said decision, it was held as follows: 29. We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the disciplinary authority to disagree with the findings of the enquiring authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The rule does not specifically provide that before recording its own findings, the disciplinary O.P. NO. 16177/2002 10 authority will give an opportunity of hearing to a delinquent officer. But the requirement of “hearing” in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the “TENTATIVE” reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of “not guilty” already recorded by the enquiring authority was not liable to be interfered with. 30. Recently, a three-Judge Bench of this Court in Punjab National Bank v. Kunj Behari Misra relying upon the earlier decisions of this Court in State of Assam v. Bimal Kumar Pandit, Institute of Chartered Accountants of India v. L.K.Ratna as also the Constitution Bench decision in Managing Director, ECIL v. B.Karunakar and the decision in Ram Kishan v. Union of India has held that: (SCC p. 96, para 17) “It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till O.P. NO. 16177/2002 11 the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority”. The Court further observed as under: (SCC p.96, para 18) “When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs O.P. NO. 16177/2002 12 with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed.” The Court further held that the contrary view expressed by this Court in State Bank of India v. S.S.Koshal and State of Rajasthan v. M.C.Saxena was not correct. 31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311 (2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a O.P. NO. 16177/2002 13 final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the “right to be heard” would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution. xx xx xx xx xx xx xx 38. The Disciplinary Committee consisted of five seniormost Judges of the High Court which also included the Chief Justice. The Disciplinary Committee took a final decision that the charges against the appellant were established and recorded that decision in writing and then issued a notice requiring him to show cause against the proposed punishment of dismissal. The findings were final; what was tentative was the proposal to inflict upon the appellant the punishment of dismissal from service.” We think that the above decision will squarely apply to the present case. In this case also, the finding on Charge No.2 was already overruled and the petitioner was called upon to show cause only against the proposed penalty. No proposal to overrule the finding was served on him. In view O.P. NO. 16177/2002 14 of the above position, we are of the view that the Disciplinary Authority could not have relied on Charge No.2 for the purpose of dismissing the petitioner from service. 10. Now, the point arises as to whether the remaining charge, that is, Charge No.1 is sufficient to sustain the punishment. Choice of penalty is a subjective decision of the disciplinary authority whereas finding of guilt is an objective decision. The learned counsel for the petitioner pointed out that the decision relied on by the High Court in State of U.P. v. Nand Kishore Shukla [(1996) 3 SCC 750] does not lay down any binding precedent. No reason for the decision has been given. The learned counsel also pointed out that the finding of the Apex Court in that decision runs counter to the principles laid down by several Constitution Bench decisions concerning subjective decision under the preventive detention jurisdiction. The Apex Court had held that a subjective decision, if taken on several grounds and one of them is found to be faulty, the decision itself will fall to ground, as the court cannot decide whether based on the remaining grounds the Government would have arrived at the same conclusion. So, the decision itself must go and the matter has to be remanded to the Governor to take a fresh decision, based on Charge No.1, it is submitted. The possibility of the High Court recommending for O.P. NO. 16177/2002 15 compulsory retirement or imposing some other lesser penalty cannot be ruled out, if Charge No.1 alone is proved, it is pointed out. So, the impugned order, Ext.P12 may not be sustained once this Court found that Charge No.2 cannot be relied on to punish the petitioner, it is submitted. 11. In this case, we cannot consider the above contention of the petitioner, as we are bound by the decision of the Apex Court in State of U.P. v. Nand Kishore Shukla [(1996) 3 SCC 750]. It was a case where a Government servant was dismissed from service based on five charges. Later, it was found that one charge alone could be taken as proved. In that context, the Apex Court held that if one charge is proved, that is sufficient to sustain the punishment. The relevant portion of the judgment reads as follows: “7. It is settled law that the court is not a court of appeal to go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a government servant based upon the proved misconduct against the government