IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 WA.No. 1728 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.32953/2006 Dated 04/02/2009 .................... APPELLANT(S)/RESPONDENTS IN THE WPC. --------------------------------------------------------------- 1. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR, INDIAN SYSTEMS OF MEDICINE,THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SRI.BENNY GERVASIS RESPONDENT(S): RESPONDENT/PETITIONER IN THE WPC. -------------------------------------------------------------------------------------- * DR.CHANDRAGADAN, RETD.DISTRICT MEDICAL OFFICER (ISM), PAZHAYAVALAPPIL HOUSE,THANOOR,MALAPPURAM. (*) NAME OF RESPONDENT CORRECTED AS DR.CHANDRANGADAN AS PER ORDER DATED 17/3/2010 IN I.A. 237/10.) ADV. SRI.K.JAJU BABU FOR R1 SMT.M.U.VIJAYALAKSHMI FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NO. 1728 OF 2009 ================== Dated this the 3rd day of June, 2011 J U D G M E N T Antony Dominic, J. The respondent was working as Senior Medical Officer. While so, he was issued Ext.P1 memo of charges. Disciplinary action initiated against him concluded by Ext.P3 order of punishment whereby one increment was barred with cumulative effect. Against Ext.P3 order, the respondent filed Ext.P4 appeal. By Ext.P6 order, appellant, the appellate authority rejected the appeal. The aforesaid proceedings were challenged by the respondent in WP(C) No.9655/2005. That writ petition was disposed of by this Court by Ext.P10 judgment with the following directions:- In the above circumstances, the Government is directed to discharge its statutory duty to consider the contentions raised in Ext.P4 appeal memorandum and to pass appropriate orders on merits. A speaking order shall be passed by the Government disposing of the appeal filed by the petitioner. Now that the petitioner has retired from service, there is need for passing urgent orders on Ext.P4. I therefore fix a time limit of two months from the date of receipt of a copy of the judgment. Petitioner shall be afforded an opportunity of being heard before fresh orders are passed. 2. In the purported compliance with the directions in the WA No.1728/09 : 2 : judgment, the appeal was reconsidered and rejected by Ext.P11 order, the operative portion of which reads as under: The petitioner filed WP(C) No.9655/05 seeking interim relief for directing the respondents to dispose of Ext.P4 ie. The appeal petition submitted by the petitioner. In the judgment read above the Hon.High Court has set aside the G.O.(Rt) No.125/02/H&FWD dated 15/1/2002 and Lr.No.40760/D2/04/H&FWD dated 2/6/2005 and directed to issue a speaking order. As directed by the Hon.High Court Government have examined the facts again. On going through the course of action taken in this case it can be seen that all procedures, to be followed while taking disciplinary action have been followed before passing the Government Order read as 3rd paper above. It is also seen that appeal petition read as 1st paper above was considered by Government. But by omission it was not referred to in the Government Order read as 3rd paper above. As directed by the Hon'ble High Court, Government have heard Dr.Chandrangadan afresh and at the time of hearing he has not produced any additional facts for proving his innocence. In the circumstances, Government have come to the conclusion, that decision taken in the case of Dr.P.Chandrangadan on the basis of report of Vigilance Department and the enquiry officer, vide GO(Rt) No.125/02/H&FWD dated 15/1/2002 does not require any modification and they order so and the appeal petition read as 1st paper above is rejected in due compliance of the Hon.H.C judgment read as 4th paper above. 3. Challenging Ext.P11, respondent filed WP(C) NO.32953/06. By the judgment under appeal, the learned Single Judge allowed the writ petition quashing Exts.P3 and P11. The ground on which the writ petition was allowed was that according WA No.1728/09 : 3 : to the learned Judge, the punishment imposed being major penalty under the Kerala Civil Service (Classification and Control Appeals) Rules, could not have been imposed without following the procedure laid down in that behalf. It is aggrieved by the said judgment, this appeal has been filed. 4. We have heard the learned Government Pleader appearing for the appellant and Sri. Jaju Babu appearing for the respondent. Learned Government Pleader points out that at the time when the punishment was imposed on 16/12/97, barring of one increment as ordered in Ext.P3 was only a minor penalty and that this position continued until 27/5/2002 when the rules were amended converting the said penalty into a major penalty. It is therefore contended that the learned Judge was wrong in interfering with the order of punishment on the ground that procedure for imposing major penalty was not followed. Although the position as contended by the learned Government Pleader is unassailable, learned counsel for the respondent sought to sustain the judgment on another ground. According to the learned WA No.1728/09 : 4 : counsel for the respondent, in Ext.P10 judgment, this Court directed the first appellant to dispose of Ext.P4 appeal dealing with the contentions raised therein and to pass a speaking order. 5. It is pointed out that in Ext.P11 order, the relevant portion of which has been extracted, the contentions raised in the appeal have not been dealt with. We have gone through Ext.P11 order and we notice that though a detailed order has been passed, none of the contentions raised by the respondent in Ext.P4 appeal have been considered or dealt with by the appellate authority. In that view of the matter, in our view also, since the appellate order is not a speaking order, the counsel for the respondent is perfectly justified in the submission made by him. In that view of the matter, we dispose of the writ appeal with the following directions:- We set aside the judgment of the learned Single Judge. For the aforesaid reasons, we also set aside Ext.P11 and direct the first appellant to reconsider Ext.P4 appeal filed by the respondent with notice to him and pass fresh orders as directed in Ext.P10 WA No.1728/09 : 5 : judgment. This the 1st appellant shall do as expeditiously as possible, at any rate within 2 months of production of a copy of this judgment. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC JUDGE. Rp