IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 WP(C).No. 1404 of 2006(P) ------------------------- PETITIONER(S): --------------- I.R.SHAKILA BEEGUM, SENIOR CO-OPERATIVE INSPECTOR, A & E III , OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), NEDUMANGAD, THIRUVANANTHAPURAM. BY ADVS. SRI.C.P.SUDHAKARA PRASAD, SENIOR ADVOCATE SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.P.N.SANTHOSH SRI.NAVEEN.T SRI.T.G.SUNIL (PRANAVAM) SRI.C.X.ANTONY BENEDICT RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. THE DEPUTY REGISTRAR (VIGILANCE), OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SRI.NOBLE MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1404 of 2006(P) APPENDIX PETITIONER'S EXHIBITS :- EXT.P1 : TRUE COPY OF THE SUSPENSION ORDER ISSUED TO THE PETITIONER EXT.P2 : TRUE COPY OF THE MEMO OF CHARGES WITH STATEMENT OF ALLEGATIONS DATED 28-02-2000 EXT.P3 : TRUE COPY OF THE LETTER DATED 3-6-2000 SENT BY THE PETITIONER TO THE ASSISTANT REGISTRAR EXT.P4 : TRUE COPY OF THE REPLY DATED 26-6-2000 SUBMITTED BY THE PETITIONER. EXT.P5 : TRUE COPY OF THE ORDER DATED 23-4-2001 ISSUED BY THE 2ND RESPONDENT. EXT.P6 : TRUE COPY OF THE NOTICE DATED 4-5-2001 ISSUED BY THE 2ND RESPONDENT EXT.P7 : TRUE COPY OF THE ORDER DATED 30-7-2001 ISSUED BY THE 2ND RESPONDENT EXT.P8 : TRUE COPY OF THE REPRESENTATION DATED 21-9-2001 ISSUED TO THE GOVERNMENT BY THE PETITIONER EXT.P9 : TRUE COPY OF THE ORDER DATED 13-2-2003 ISSUED TO THE GOVERNMENT EXT.P10: TRUE COPY OF THE ORDER DATED 21-4-2003 ISSUED BY THE 2ND RESPONDENT EXT.P11: TRUE COPY OF THE REPORT DATED 7-5-2003 SENT BY THE 3RD RESPONDENT TO THE GOVERNMENT EXT.P12: TRUE COPY OF THE NOTICE DATED 20-4-2004 ISSUED BY THE GOVERNMENT. EXT.P13: TRUE COPY OF THE REPLY DATED 29-5-2004 SUBMITTED BY THE PETITIONER TO THE GOVERNMENT EXT.P14: TRUE COPY OF THE ORDER DATED 1-12-2005 ISSUED BY THE GOVERNMENT RESPONDENTS EXHIBITS :- NIL // TRUE COPY // P.A TO JUDGE amk. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.1404 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of October, 2011 J U D G M E N T While working as Senior Co-operative Inspector in the office of the Assistant Registrar of Co-operative Societies, Thiruvananthapuram, disciplinary proceedings were initiated against the petitioner by issuing Ext.P2 charge memo, wherein the allegation was that the petitioner delayed filing of audit reports in respect of various co-operative societies and showed in her diary that the audit reports have been completed. During the period of disciplinary proceedings, the petitioner was kept under suspension. An enquiry was conducted. The petitioner was found guilty of that misconduct. In respect of punishment, the petitioner was given a show cause notice, to which the petitioner filed Ext.P4 reply detailing extenuating circumstances, seeking a lenient view. It appears that, taking into account the extenuating circumstances, the disciplinary authority decided to complete the disciplinary proceedings by issuing a severe warning to the petitioner. An order was passed to that effect. Subsequently, the petitioner was given a notice to show cause why the suspension period should not be treated as non-duty. Pursuant to that notice, Ext.P7 order was passed treating the W.P.(C)No.1404 of 2006 -2- period of absence from duty as eligible leave and directing recovery of the subsistence allowance paid in excess of the leave salary. The petitioner filed Ext.P8 appeal before the Government against that order. On that appeal, the Government passed Ext.P9 order setting aside the entire enquiry proceedings and directing a de novo enquiry. That de novo enquiry was completed. The petitioner was again found guilty and ultimately Ext.P14 order was passed imposing on the petitioner the penalty of barring of two increments with cumulative effect. In that order the period of absence from duty was also directed to be regularised as eligible leave. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(a) issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Exts.P7, P9, P10, P11, P12 and P14 and quashing the same. (b) issue a writ of mandamus or other appropriate writ, order or direction declaring that in the facts and circumstances of the case Ext.P9 order issued by the Government for conducting enquiry under Rule 15 of the Rules is enable for any facts and circumstances of the case. (c) issue a writ of mandamus or other appropriate writ, order or direction declaring that the Government is not justified to take any action against the petitioner in the facts and circumstances of the case. (d) issue a writ of mandamus or other appropriate writ, order or direction declaring that no recovery of the subsistence allowance paid to the petitioner could be made on the basis of law settled by this Hon'ble Court. W.P.(C)No.1404 of 2006 -3- (e) issue a writ of mandamus or other appropriate writ, order or direction declaring that on the peculiar facts and circumstances of the case, the petitioner's case has to be dealt with compassion and hence the Government is justified in reviewing the decision taken by the disciplinary authority. (f) issue a writ of mandamus or other appropriate writ, order or direction declaring that the petitioner is not liable to be proceeded against under Rule 15 of the Rules in the peculiar facts and circumstances available in this case and no punishment could be imposed against her. (g) issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to disburse the increments due to the petitioner from 1.1.2000 onwards regularly with interest at 12% per annum. (h) issue a declaration that Note 3 to Rule 56 (b) in Chapter VII of Part III of the K.S.R. is unconstitutional and illegal. (i) issue a writ of mandamus or other appropriate writ, order or direction or injunction restraining the 1st respondent from enforcing Note 3 to Rule 56 (b) in Chapter VII of Part I of the K.S.R.” 2. A counter affidavit has been filed by the 1st respondent supporting the impugned orders. 3. I have considered the rival contentions in detail. 4. It is not disputed before me that the order of the disciplinary authority deciding to impose a warning on the petitioner was passed on 27.04.2001. That order was never under challenge by anybody. By Ext.P8, the petitioner only challenged Ext.P7 order whereby the period of absence from duty was regularised as eligible leave and the subsistence allowance paid in excess of the leave salary was directed to be W.P.(C)No.1404 of 2006 -4- recovered from the petitioner. I am of opinion that, Ext.P9 order is unsustainable for several reasons. First is that, before deciding to review the earlier proceedings, the petitioner was not given a notice to show cause why the earlier proceedings should not be cancelled. Therefore, Ext.P9 order cancelling the earlier proceedings is clearly vitiated for non-compliance with principles of natural justice. Secondly, apart from stating that the enquiry is found vitiated, in Ext.P9 it is not stated why the enquiry is vitiated necessitating a de novo enquiry. Of course, it would have been understandable, if based on the findings of guilt in the earlier enquiry, the Government proposed to review the punishment and to impose a higher punishment. But that is not what the Government had done. By Ext.P9 order the Government set aside the entire earlier proceedings without giving any reasons as to why those proceedings were vitiated. Thirdly, going by the counter affidavit, although the disciplinary authority had in fact passed an order imposing on the petitioner the penalty of severe warning, the same was not communicated to the petitioner. The Government Pleader would rely on the power of review under Rule 37 of the Kerala Civil Services (Classification, Control and Appeal) Rules to sustain Ext.P9 W.P.(C)No.1404 of 2006 -5- order. If the power of review under Rule 37 was to be exercised then the same must be directed against an order. An order becomes an order only when it is communicated to the person affected by that order. Even according to the respondents, that order has not been communicated to the petitioner. Therefore, there is no order as such to review, by invoking Rule 37. Apart from the same, even if Rule 37 can be invoked to review the order dated 27.04.2001 imposing punishment of severe warning on the petitioner, the action for review shall be initiated within one year from the date of the order. The said order is admittedly dated 27.04.2001. Ext.P9 order is dated 13.02.2003. Before 13.02.2003, there was no proceedings initiating review under Rule 37. Therefore, the action for review can only be stated to be initiated by Ext.P9 order, which is dated 13.02.2003, and is beyond the period of one year prescribed by Rule 37. In addition to all the above, it was totally unnecessary for the Government to set aside the earlier enquiry because in the earlier enquiry the petitioner was found guilty and the petitioner never challenged that finding also. I am of opinion that, in reply to the notice regarding punishment issued by the disciplinary authority to the petitioner, the petitioner had detailed sufficient extenuating W.P.(C)No.1404 of 2006 -6- circumstances which the disciplinary authority had in fact taken into account to restrict the punishment to one of severe warning. That has not been taken into account by the Government at all. It is settled law that in disciplinary proceedings, while imposing punishments, extenuating circumstances warranting imposing lesser punishment have also to be taken into account. I am of opinion that, this is not a fit case for the Government to exercise their discretionary powers in reviewing orders in disciplinary proceedings, insofar as the only charge against the petitioner is regarding delay in submitting audit reports. The petitioner has specifically stated that, at the relevant time she was severely handicapped by matrimonial disputes involving several litigation and she was also suffering from indifferent health. I do not have to think twice to quash Ext.P9 order insofar as the same is against all principles of law and natural justice. Accordingly Ext.P9 and all proceedings pursuant to Ext.P9 order are hereby quashed. I hold that the warning imposed by the earlier proceedings would be sufficient punishment to the petitioner in the particular circumstances of the case. However the direction to treat the suspension period as eligible leave would stand. It is settled law that any part of subsistence allowance cannot be W.P.(C)No.1404 of 2006 -7- recovered from a delinquent because it is paid to him/her for sheer subsistence of the delinquent. Therefore, the direction to recover subsistence allowance paid in excess of the leave salary is hereby quashed. However the subsistence allowance shall be adjusted against the leave salary. But if the subsistence allowance is more than the leave salary, the excess pay shall not be recovered from the petitioner. Orders in implementation of the above direction shall be passed and the arrears of monetary benefits arising from the cancellation of the punishment of barring of increments shall be paid to the petitioner, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/