IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 OP.No. 14948 of 1997(D) ---------------------------------- PETITIONERS: --------------------- 1. K.R. JAYADEVAN, MANGALASSERIL, KODUVAZHATHOOR, KILIMANOOR, TRIVANDRUM. *ADDL. PETITIONERS 2 TO 5 IMPLEADED: 2. K.R. VASANTHY, W/O. LATE K.R. JAYADEVAN, ERAPLAVILA VEEDU, KODUVAZHANNOOR, CHIRAYINKEEZHU, THIRUVANANTHAPURAM. 3. JAYASEELA, D/O. LATE K.R. JAYADEVAN, ADITHYA BHAVAN, VENJARAMOODU. 4. JAYAKUMAR, S/O. LATE K.R. JAYADEVAN, ERAPLAVILA VEEDU, KODUVAZHANNOOR, CHIRAYINKEEZHU, THIRUVANANTHAPURAM. 5. JAYA PRABHA, D/O. LATE K.R. JAYADEVAN, ANANDA BHAVAN, KODUVAZHANNOOR, CHIRAYINKEEZHU, THIRUVANANTHAPURAM. *ADDL. PETITIONERS 2 TO 5 ARE IMPLEADED AS PER ORDER IN I.A. NO.962/07 DTD. 28/07/09. BY ADVS. MR.P.RAMAKRISHNAN, SMT.SOPHIA SUNIL. O.P. NO. 14948/1997-D: RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY SECRETARY TO THE GOVERNMENT, MINISTRY OF SHIPPING AND TRANSPORT, NEW DELHI. 2. THE DIRECTOR GENERAL, BOARDER ROADS, KASHMIR HOUSE, DHQ P.O., NEW DELHI – 110 011. 3. THE COMMANDER SE (CIV), 36 BOARDER TASKS FORCE, C/O. 99 APO. R1 TO R3 BY MR.V.V.JOSHI, ADDL.CGSC, MR.RAJIT, ADDL.CGSC, MR.K.M.JAMALUDHEEN, CGC, MR.P.PARAMESHWARAN NAIR,ASGI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 14948/1997-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CHARGE SHEET DT. 22/12/82 ISSUED BY THE R.3. EXT.P.2: COPY OF THE NOTICE DT. 27/12/82 ISSUED BY THE R.3. TO THE PETITIONER. EXT.P.3: COPY OF THE ORDER DT. 21/02/83 ISSUED BY THE R.3. TO THE PETITIONER. EXT.P.4: COPY OF THE NOTICE DT. 06/09/83 ISSUED BY THE R.3. TO THE PETITIONER. EXT.P.5: COPY OF THE MEMORANDUM DT. 21/02/87 FROM THE R.2. TO THE PETITIONER. EXT.P.6: COPY OF THE ORDER DT. 16/08/91 ISSUED BY THE R.2. EXT.P.7: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DT. 09/09/96 IN O.P. 947/93. EXT.P.8: COPY OF THE ORDER DT. 30/12/96 ISSUED BY THE R3. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE STATEMENT FILED BY THE PETITIONER ON 09/09/96. EXT.R3.B: COPY OF THE SPEAKING ORDER DTD. 30/12/1996. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 14948 of 1997 ================== Dated this the 22nd day of September, 2009 J U D G M E N T Sri.K.R.Jayadevan, a painter in the Border Development Board under the 2nd respondent, has filed this original petition challenging Ext.P8 order passed by the 3rd respondent, wherein the punishment of dismissal from service imposed on him was confirmed. Sri.K.R.Jayadevan is no more. His widow and children have come on record as additional petitioners 2 to 5 to prosecute this original petition. 2. Sri.K.R.Jayadevan joined the Border Development Board in the year 1965. While he was working in Meghalaya, in the year 1982, he was charge sheeted for unauthorised absence, indiscipline, negligence and insubordination. By Ext.P1 charge sheet dated 22.12.1982, court martial was conducted. He was awarded simple imprisonment for 90 days, by Ext.P2. By Ext.P3 order dated 22.12.1983, the 3rd respondent dismissed the petitioner from service under Rule 11(viii) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Originally there were only three charges against the petitioner, as is evident from Ext.P1. But in Ext.P3, the petitioner was found guilty of a 4th charge also under Section 42(c) of the Army Act, in respect of which, no charge sheet was served on O.P.14948/97 2 Sri.Jayadevan. Sri.K.R.Jayadevan filed a statutory appeal against Ext.P3 order. While that appeal was pending, by Ext.P4 notice dated 6.9.1983, Sri.K.R.Jayadevan was informed that charge Nos.2 and 3 in Ext.P1 had been dropped and he was convicted only for charge Nos. 1 and 4. Subsequently by a memo dated 11.2.1987, the petitioner was informed that the appeal filed against the order of punishment by him was rejected. That memo is Ext.P5. Sri.K.R.Jayadevan challenged his termination from service by filing O.P.No.4444/1989 before this Court. By judgment dated 4.7.1991, this Court quashed Exts.P3 and P5 orders and directed fresh consideration of the appeal submitted by the petitioner. But, again by Ext.P6 order dated 16.8.1991, the 3rd respondent upheld the petitioner's dismissal from service. Sri.K.R.Jayadevan again challenged Ext.P6 order in O.P.No.947/1993. This Court, by Ext.P7 judgment, quashed Ext.P6 order and again directed the 3rd respondent to consider the entire issue afresh with reference to the petitioner's conviction based on the first charge alone. Pursuant to Ext.P7 judgment, Sri.K.R.Jayadevan was summoned to Silchar in Assam by the 3rd respondent, before whom he appeared on 20.12.1996 and he was made to sign some papers the contents of which were not made known to Sri.K.R.Jayadevan. When he returned to his native place, by Ext.P8 order dated 30.12.1996, he was informed that the penalty imposed on him is maintained. O.P.14948/97 3 Sri.K.R.Jayadevan challenged that order in this original petition. It is now being prosecuted by the legal heirs on the death of Sri.K.R.Jayadevan. 3. The contention of the petitioners is that this Court had repeatedly directed the 3rd respondent to pass fresh orders considering the first charge alone. But, repeatedly, without considering the matter on merits, the 3rd respondent is going on passing laconic orders without reference to any of the issues involved by non-speaking orders without giving any reasons whatsoever for the conclusions arrived at by the 3rd respondent. According to them, now that Sri.K.R.Jayadevan is no more, the disciplinary proceedings cannot now be continued and petitioners 2 to 5 should be directed to be given terminal benefits due to Sri.K.R.Jayadevan as also the family pension due to them, if they are eligible for the same otherwise but for the disciplinary proceedings against Sri.K.R.Jayadevan. 4. A counter affidavit has been filed by the 3rd respondent in which, he has sought to sustain the impugned order. 5. I have considered the rival contentions in detail. 6. The impugned order reads thus: “1. Whereas in pursuance of the judgment and orders of the Honoruable High Court, Kerala dated 9 Sep. 96 in the Court Case O.P No.947 of 1993 K filed by Ex-GS 78994 Painter KR Jayadevan of 406 RM P1/77 RCC (now 115 RCC), an opportunity was afforded to him for being heard in person on 20th day of December 1996 at HQ 36 BRTF. O.P.14948/97 4 2. And whereas the undersigned after having heard the petitioner Shri KR Jayadevan, Ex Painter in person and recorded his statement and on going through the evidence DE-NOVO I hereby order the following: O R D E R Now, therefore, in exercise of the powers conferred by Rule 9 of CCS (CC&A) Rules 1965 read in conjunction with Rule 19(1) of CCS (CC&A) rules 1965, the undersigned order that the penalty imposed on Shri KR Jayadevan for absenting himself without leave is maintained.” That order was passed pursuant to Ext.P7 judgment of this Court, which reads thus: “The petitioner was charge sheeted as per Ext.P1 for three offences in a court martial proceedings. They are under sections 39(a), 63 and 42 (f) of the Army Act, 1950. The petitioner was found guilty and punished to suffer simple imprisonment for 90 days as per Ext.P2. The petitioner's appeal against Ext.P2 did not succeed. Thereafter, the petitioner was dismissed from service under Rule 11(viii) of the CCS (CC&A) Rules, 1965. This order shows that the disciplinary authority has taken note of that the petitioner had been convicted under Section 39(a), 63, 42(e) and 42(c) of the Army Act, 1950. The fourth count namely Section 42(c) does not find place in Ext.P1 charge sheet. Therefore, the disciplinary authority has addressed himself into extraneous aspects. Later, by Ext.P6 an amendment to written notice was issued wherein it was clarified that Summary Court Martial against the petitioner was for trial in respect of charge Nos. 1 and 4 only and that charge Nos. 2 and 3 had been set aside. As already mentioned above, there is no charge No.4 as per Ext.P1. So, Summary Court Martial which ended in conviction can be said to be only in respect of charge No.1. There was another discrepancy as well because the dismissal ordered in Ext.P5 was dismissal under Rule 11 (viii) of the C.C.S. (C.C. & A) Rules, 1965. Rule 11 (viii) deals with removal from service and not dismissal. Dismissal comes in Rule 11 (ix). Therefore, what is imposed by Ext.P5 is dismissal or removal, is in doubt. The petitioner's appeal against Ext.P5 was dismissed and that dismissal was communicated to the petitioner in Ext.P7. But, no appellate order was served on the petitioner. The petitioner filed a mercy petition. That also ended in same fate. In that circumstances, the petitioner approached this court in O.P. No.4444/89 which resulted in Ext.P9 judgment setting aside Exts.P5 and P7 which were marked as Exts. P4 and P6 in that original petition. The result is that there is no order by the disciplinary authority or appellate authority. But in Ext.P9 the appellate authority was asked to take a fresh decision adverting to the contention, in tune with the Supreme Court ruling in R.P. Bhatt v. Union of India (1986 Lab.I.C. 790). Thus the appellate authority had to consider every aspect and to pass a speaking order. Now, an order has been issued on behalf of the appellate authority stated to be in compliance with the directions in O.P.14948/97 5 Ext.P9 vide Ext.P10 order. Exhibit P10 order says that the petitioner had been convicted on all the fours counts, and that mentioning of Rule 11 (viii) in Ext.P5 was only a mistake, it was only Rule 11(ix) which provides for dismissal from service. Thus, in effect, in Ext.P10 the dismissal is confirmed. But, Ext.P10 does not disclose consideration of the petitioner's appeal as provided in Ext.P9 by the appellate authority or even on behalf of the appellate authority. Thus, there is no due compliance with the directions of Ext.P9. 2. One thing is clear form the records that the petitioner had been charge sheeted as per Ext.P1 only on three counts. It is stated in the counter affidavit that the petitioner had been, during the course of investigation, orally informed about the fourth count of charge. Charge sheeting shall be based on records and not on oral directions, either for an enquiry ending in criminal conviction or any enquiry which ends in imposition of penalty including dismissal from service. Every inquiring authority, on the basis of the facts disclosed during the course of enquiry, can modify or amend the charges. But, that amendment shall be in unambiguous terms be informed to the delinquent or the accused as the case may be. Even in the proceedings under the Army Act and in terms of Rule 113(2) of the Army Rules the delinquent or accused shall be given the modification of the charges. Therefore, the defence set up in the counter affidavit with regard to the fourth count or charge that the petitioner had been informed, does not meet the statutory requirement. Admittedly, in Ext.P6 conviction on charge Nos. 2 and 3 had been set aside. When the fourth charge does not find place in Ext.P1, necessarily the conviction can be taken based on the first charge alone. Whether that is sufficient for imposing a penalty of dismissal from service, is a matter to be examined by the disciplinary authority. Earlier disciplinary authority examined the matter with reference to conviction on all the four counts of charges as per Ext.P5. That was set aside in Ext.P9 judgment. So, there is no original order by the disciplinary authority either dismissing or removing the petitioner from the service. The appellate order was also quashed in Ext.P9. Exhibit P10 order is not in compliance with Ext.P9 direction. Therefore, Ext.P10 is quashed. Naturally, the disciplinary authority shall consider the entire matter with reference to the petitioner's conviction based on the first count of charge alone and pass fresh orders after affording the petitioner an opportunity of being heard. The order shall be passed at any rate within four months from the date of receipt of a copy of this judgment.” Ext.P8 order is not one passed in compliance with Ext.P7 judgment. It gives absolutely no reasons whatsoever for the conclusion arrived at. The 3rd respondent has not considered any of the matters, which this Court had directed him to consider as per Ext.P7 judgment. That being O.P.14948/97 6 so, on that ground alone Ext.P8 order is liable to be quashed. I do so. Now that Sri.K.R.Jayadevan is no more, no further proceedings can be taken in the matter. Therefore, Exts.P1 and P3 orders also have to go. The result of the same would be that Sri.K.R.Jayadevan should be deemed to have continued in service till his date of retirement or till his death whichever is earlier. It is held so. Consequently, the legal heirs of Sri.K.R.Jayadevan would be entitled to the terminal benefits due to Sri.Jayadevan. The legal heirs would also be entitled to family pension if they are eligible for the same but for the disciplinary proceedings against Sri.K.R.Jayadevan. The same shall be paid to the additional petitioners. 7. This is a case where despite two judgments of this Court, the 3rd respondent goes on passing orders without giving reasons for his conclusions. The person who passed Ext.P8 order should be made aware that he is not above the law and he is bound by the specific directions from this Court and he has to comply with the directions in letter and spirit. It is since the person who passed Ext.P8 order has failed to comply with the directions in Ext.P7 judgment in letter and spirit, as a consequence, the Board has become liable to pay amounts to the legal heirs of Sri.K.R.Jayadevan. Since the matter could not be considered on merits only because of the failure on the part of the 3rd respondent to pass a speaking order, I am of opinion that the O.P.14948/97 7 monetary benefits directed to be paid to the legal heirs of Sri.K.R.Jayadevan should be recovered from the person who passed Ext.P8 order personally. Accordingly, there would be an order to respondents 1 and 2 to see that monetary benefits paid to the legal heirs of Sri.K.R.Jayadevan are recovered from the person who passed Ext.P8 order. The amounts payable to petitioners 2 to 5 as directed above shall be computed and disbursed to them, as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 14948 of 1997-D ================== J U D G M E N T 22nd September, 2009