IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 WP(C).No. 26043 of 2007(A) -------------------------- PETITIONER(S): --------------- C.K.SIDHIQUE, JUNIOR SUPERINTENDENT, OFFICE OF THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES, PALAKKAD. BY ADVS. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.ANIL K.NAIR SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN SRI.PRAMJI PAUL VAZHAPPILLY RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, VIGILANCE (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.7.2011 ALONG WITH WPC NO. 26879 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.26043 OF 2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE MEMO OF CHARGES No.11717/A2/2001/Vig DATED 26.8.2002 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P2 : COPY OF THE REPLY DATED 22.10.2002 SUBMITTED BY THE PETITIOENR TO THE 1ST RESPONDENT. EXT.P3 : COPY OF THE SHOW CAUSE NOTICE No.2887/A2/06/Vig. DATED 17.5.2006 ISSUED BY THE 1ST RESPONDENT. EXT.P4 : COPY OF THE ENQUIRY REPORT OF THE VIGILANCE TRIBUNAL. EXT.P5 : COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 28.6.2006. EXT.P6 : COPY OF THE ORDER GO(MS)No.37/2007/Vig DATED 27.7.2007 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE Kp S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos. 26043 & 26879 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of July, 2011 J U D G M E N T The petitioners in these two writ petitions are co- delinquents in a disciplinary action. Both were officers working in a Sales Tax Check Post on duty on a day when the Vigilance conducted a surprise check. The vigilance seized some unaccounted money from the petitioners from various parts of the office of the Check Post. All the persons on duty were proceeded against together on the ground that those were unaccounted money kept by the officers obtained as illegal ratification. The Vigilance did not find the case suitable for prosecution. Therefore they recommended departmental action. The Government referred the matter to the Vigilance Tribunal for enquiry. The Vigilance Tribunal ultimately entered the following finding: “In the light of the discussion of evidence in the preceding paragraphs I find the accused officers not guilty of the charge as framed against them. But they are found guilty to the extent W.P.(C)Nos. 26043 & 26879 of 2007 -2- that they were in possession of unaccounted money of Rs.5,160/- which was obtained by them by illegal means. It is also found that there is dereliction of duty on the part of Aos.1 and 2 in their failure to maintain the cash book up-to-date.” Thereafter by show cause notices the Government proposed the punishment of reduction to the lower post for a period of two years the petitioner in W.P. (C) No.26043/2007 and the punishment of reduction of 25% of his monthly pension for a period of five years under Rule 3 Part III of KSR on the petitioner in the other writ petition. The petitioners filed their representations against the proposed punishments. After considering their representations, the Government decided to alter the punishment to one of withholding of two increments with cumulative effect for 2 years and reduction of 10% of monthly pension for a period of 5 years, respectively. Since the same was on original order of punishment by the Government, as required under the rules, the matter was referred to the Kerala Public Service Commission for their advise. The P.S.C. advised that the original punishments themselves may be imposed on the petitioners. The Government vide the impugned order, W.P.(C)Nos. 26043 & 26879 of 2007 -3- which is the same in both writ petitions, imposed the punishment as originally proposed accepting the advice of the P.S.C. That is under challenge in these writ petitions. The contention raised by the petitioners is that the Government, merely, without applying their mind, decided to accept the advice of the Commission which was not what was expected of the Government under the rules. According to them, the Government should have considered the advice independently and come to a conclusion as to which of the two punishments is the proper punishment for the misconduct of which the petitioners were found guilty. They point out that in the impugned order except stating that the government have decided to accept the advice of the Commission, absolutely no reason has been stated as to why they decided to accept the advise of the P.S.C. According to them, the punishments originally proposed was reduced after considering the petitioners' representation and therefore when the P.S.C advised to impose the original punishments themselves, the W.P.(C)Nos. 26043 & 26879 of 2007 -4- Government ought to have given some reasons as to why they reverted back to their original opinion. It is totally absent in the impugned orders is the contention raised. According to them that amounts to non-application of mind. They rely on a decision of a learned Single Judge in W.P. (C) No.23655/2004, in which, according to them, in identical circumstances, a learned Judge of this Court directed the Government to re-consider the matter afresh applying their mind. 2. A counter affidavit has been filed by the 1st respondent where the Government seeks to support the impugned order. According to the Government, although no elaborate reasons have not been stated in the impugned order, the Government has specifically stated that the case was examined again on the strength of the advice of the P.S.C and Government have decided to accept the advice of the Commission, which would show that the Government has actually considered the entire issue in the light of the advice of the Commission and thereafter only it was decided W.P.(C)Nos. 26043 & 26879 of 2007 -5- to revert back to the original punishment. 3. I have considered the rival contentions in detail. 4. Originally the memo of charges was to the effect that the money seized from the petitioners were obtained by them as illegal ratification. But as is seen from the findings of the Vigilance Tribunal, that charges were not proved. The only charge proved was that the petitioners could not explain the possession of the money which was found in the office and it was also found that there was some dereliction of duty in not complying with the procedure prescribed for keeping private money in the office as per the circular issued by the Government. I am of opinion that the issue has to be considered in the light of the said findings. Of course, the Government had originally proposed a higher punishment. That was decided to be reduced based on representations submitted by the petitioners. That means the Government found that the reduced punishment was commensurate with the gravity of the misconduct. The advice of the P.S.C is not before me. Of course the W.P.(C)Nos. 26043 & 26879 of 2007 -6- petitioners would not get it. The government has not chosen to produce the same before me. Therefore I do not know whether the advise contained any specific reasons to advice to impose the higher punishment originally proposed. In the decision in W.P. (C) No.23655/2004, a learned Judge of this court held as follows: “But, I feel that the action of the Government in accepting the views of the PSC was in a mechanical manner and without application of mind. Going by Ext.P13 opinion given by the PSC, it can be seen that no reasons or grounds are given for arriving at the conclusion contained in the last paragraph of that opinion. In view of the nature of the opinion of the PSC, I feel that the acceptance of the same mechanically is unjustified. It will reveal total non-application of mind from the part of the Government. The impugned order would show that Government proceeded on footing that it is bound to follow the views of the PSC. It is for the disciplinary authority to take the decision. The PSC only renders its advice. Of course, the advise has to be accepted. if it is found to be a reasonable one. The advice can be overruled by the Government by following the due procedure of again consulting the PSC. I think, having regard to the facts of the case, the course adopted by the Government to accept the views of the PSC in a mechanical manner is unjustified. It has abdicated its statutory function as a disciplinary authority by not taking an independent decision on the materials before it. Accordingly Ext.P12 order is quashed. Now that the views of the Government on punishment are clear, if so advised, the petitioner may file a representation before the Government against imposing such a punishment. Considering that representation, the Government shall take a fresh decision on the penalty, if necessary, after fresh consultation with the PSC. The petitioner shall be given an opportunity of being heard also before proceeding further in the matter. Such a hearing is necessary, as the officer who heard the petitioner may not be the decision maker now. The Government may pass fresh orders as expeditiously as possible preferably within three months. If the Government think that the views of the PSC cannot be accepted, it is bound to follow W.P.(C)Nos. 26043 & 26879 of 2007 -7- the due procedure to overrule it. These are all matters for the Government to decide. The Government shall take a fresh decision in the matter, in accordance with law. The disciplinary authority will be free to decide whether the petitioner should be reinstated in service or kept under suspension pending final orders in the matter.” From that judgment, I find that there also the situation was almost identical. In the impugned order while accepting the advice of the P.S.C. what the Government has stated is this: “The case has been examined again on the strength of the advice of the Public Service Commission and Government have decided to accept the advice of the Commission.” 5. I am of opinion that the government ought to have, after originally deciding to impose a lesser punishment, before deciding to accept the advice of the Commission, given some reasons as to why they decided to accept the advice of the Commission. The impugned order does not contain any such consideration. In the above circumstances Ext.P6 order to that extent is quashed. The Government is directed to reconsider the issue in the light of the above findings and the findings in the above judgment and pass fresh orders. If the Government after considering finds that the more appropriate punishment is W.P.(C)Nos. 26043 & 26879 of 2007 -8- the lesser one, comply with the procedure of reverting back to the P.S.C. and pass fresh orders accordingly. The said procedure shall be taken up and completed, 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 disposed of as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/