IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 WP(C).No. 32953 of 2006(W) -------------------------- PETITIONERS: ------------------- DR. CHANDRANGADAN, RETD. DISTRICT MEDICAL OFFICER (ISM), PAZHAYAVALAPPIL HOUSE, THANOOR, MALAPPURAM-676 302. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR, INDIAN SYSTEMS OF MEDICINE, TRIVANDRUM. GOVERNMENT PLEADER SRI SHYSON P. MANGUZHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).NO.32953/2006 APPENDIX PETITIONER'S EXT: EXT.P1 TRUE COPY OF THE MEMO OF CHARGES NO.D2.12229/96 DTD. 18/9/1997 BY THE 2ND RESPONDENT. EXT.P2 TRUE COPY OF REPLY DTD. 12/11/97, SUBMITTED BY THE PETITIONER TO EXT.P1. EXT.P3 TRUE COPY OF THE ORDER NO.D22.12229/97 DTD. 16/12/97 ISSUED BY THE 2ND RESPONDENT. EXT.P4 TRUE COPY OF THE APPEAL MEMORANDUM DTD. 1/1/98 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXT.P5 TRUE COPY OF THE REPRESENTATION DTD.21/6/01 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXT.P6 TRUE COPY OF G.O.(RT) NO.125/02/H&FWD DD. 15/1/2002 ISSUED BY THE IST RESPONDENT. EXT.P7 TRUE COPY OF THE MEMO ISSUED BY THE IST RESPONDENT TO THE PETITIONER DTD. 20/11/99. EXT.P8 TRUE COPY OF JUDGMENT OF THIS COURT IN WP.(C).24096/2006 DTD. 25/2/2002. EXT.P9 TRUE COPY OF THE LETTR NO.407760/D2/04 DTD. 2/6/05 ISSUED BY THE IST RESPONDENT. EXT.P10TRUE COPY OF THE JUDGMENT OF THIS COURT IN W.P.(C).NO.9655/2005 DTD.22/8/2005. EXT.P11TRUE COPY OF GOVT.ORDER G.O.(RT)NO.1201/2006/H&FWD DTD. 7/4/2006 ISSUED BY THE IST RESPONDENT. EXT.P12 TRUE COPY OF THE INFORMATION RECEIVED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT FROM THE 2ND RESPONDENT. EXT.P13TRUE COPY OF THE LETTER DTD. 12/10/2000 ISSUED BY THE PETITIONER TO THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE. HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.32953 OF 2006 ---------------------------- DATED THIS THE 4TH DAY OF FEBRUARY, 2009 JUDGMENT Petitioner is a retired Government Servant. While working as Senior Medical Officer, he was served with Ext.P1 memo of charges on 18-9-97. Ext.P2 is the reply to Ext.P1 memo of charges. In the reply Ext.P2, the petitioner brought to the notice of the 2nd respondent-Director that disciplinary action was initiated for imposing major penalty and therefore an enquiry should be conducted with opportunity to the petitioner for contesting the case. The 2nd respondent proceeded as if the charges issued is for imposing minor penalty. Therefore, the 2nd respondent did not conduct any enquiry. The vigilance report was acted upon and a major punishment was imposed barring of one increment with cumulative effect. The petitioner preferred Ext.P4 appeal. It is the definite case of the petitioner that barring of increment with cumulative effect is a major punishment and therefore, before -2- W.P.(C)No.32953/2006 imposing such punishment, a detailed enquiry shall be conducted. Admittedly, there was no enquiry conducted by the 2nd respondent. Apart from other grounds raised in the appeal memorandum, the petitioner contended that Ext.P3 order is vitiated. Ext.P4 appeal was filed on 01-01-1998. While the appeal was pending the petitioner filed Ext.P5 representation on 21-6-2001 stating that he was unjustly denied promotion. Ext.P5 representation was rejected by Ext.P6 order dated 15/1/2002. Ext.P5 representation dated 21/6/2001 was specifically referred to as item No.2 in Ext.P6. But it is seen that nothing has been stated about the grievance of the petitioner set out in Ext.P5 representation. The Government has treated Ext.P5 as an appeal; but in fact Ext.P4 appeal was pending when Ext.P6 order was passed on Ext.P5 representation. There is no mention about Ext.P4 appeal. 2. In the meanwhile the petitioner was served with another charge memo dated 20/11/1999 produced as Ext.P7, by -3- W.P.(C)No.32953/2006 which very same charges are levelled against the petitioner. The petitioner challenged Ext.P7 charge memo stating that the 2nd respondent has passed Ext.P3 order and the appeal filed against Ext.P3 order is pending before the Government. Ext.P8 is the judgment of this Court dated 25/2/2002 in O.P.No.24096/2000 quashing Ext.P7 charge memo, which was produced as Ext.P5 in that O.P. This Court examined the position at that stage and held that the procedure adopted by the Government is totally alien to the procedure prescribed for taking disciplinary action under the Kerala Civil Service (Cassification and Control Appeals) Rules, 1960. The learned Judge also observed that for the same offence there cannot be two rounds of trial and punishment one at the hands of the Original Authority and the other at the hands of the Appellate Authority. This Court further held that the Appellate Authority may remit the matter for reconsideration by the Original Authority or it may take additional evidence or collect materials. But this Court noticed that in this case, a novel -4- W.P.(C)No.32953/2006 method of issuing a fresh charge sheet has been followed, for which there is no support from the Rules. This Court quashed Ext.P7 memo of charges (Ext.P5 in that case) and directed the Government to reconsider the petitioner's claim for promotion with effect from the date of his juniors were promoted in the light of the observations made in the judgment. In the meanwhile the petitioner submitted three representations before the Government requesting to dispose of Ext.P4 appeal pending before it. The Government by Ext.P9 order disposed of the representation dated 16/9/04 stating that the appeal was disposed of as per Ext.P6 order dated 15/1/2002 and therefore your request for consideration of the appeal stands rejected. The statement in Ext.P9 order that Ext.P6 is the order disposing of the appeal is wrong. In fact Ext.P6 order was passed disposing of Ext.P5 representation and not disposing of Ext.P4 appeal. The petitioner challenged Exts.P6 and P9 orders again before this Court in W.P.(C).No.9655/2005. This Court set aside Exts. P6 and P9 -5- W.P.(C)No.32953/2006 orders stating that it is evident that instead of the appeal memorandum, the Government mistakenly took into consideration the representation filed by the petitioner claiming promotion and then passed Ext.P6 order rejecting the appeal against the imposition of penalty. Same mistake has been repeated in Ext.P9. Ext.P9 order was passed disposing of another representation and not Ext.P4 appeal. Confusion and mistake crept in by passing different orders disposing of representation were adverted to by this Court and found that Ext.P6 and Ext.P9 are not the orders passed by the Government disposing of Ext.P4 appeal memorandum, which was filed on 1/1/1998. Therefore, this Court set aside Exts.P6 and P9 orders. This Court again directed the Government to consider Ext.P4 appeal memorandum and pass appropriate orders on merits. 3. On the basis of the directions contained in Ext.P10 judgment, the Government again considered the question and passed Ext.P11 order. In Ext.P11 order Ext.P4 appeal dated -6- W.P.(C)No.32953/2006 1/1/98 was referred to besides Exts.P6 and P9 orders. 4. The Apex Court unambitiously held that barring of increment with cumulative effect is a major punishment. If that be so, Ext.P3 order imposing penalty of barring of increment with cumulative effect is a major punishment inflicted on the petitioner. Such penalty can be imposed only after conducting a detailed enquiry. Admittedly, no enquiry was conducted by the Disciplinary Authority before passing Ext.P3 order. The penalty was imposed following the vigilance report. Therefore, the petitioner filed Ext.P4 appeal contending mainly that such major punishment without enquiry is vitiated. In spite of two judgments rendered by this Court quashing of Ext.P6 and P9 orders and reminding that those orders are mistakenly passed, again by Ext.P11 order the Government repeated the same mistake. The Government in Ext.P11 order stated that Ext.P4 appeal memorandum was considered by them but the only omission done is that the same was not referred to in Ext.P6 order. That -7- W.P.(C)No.32953/2006 means that the Government still is holding the view that Ext.P6 order was passed disposing Ext.P4 appeal. I have stated in detail the findings entered into by the Government in the last but one paragraph in Ext.P11. Ext.P6 order was passed on a representation, which was repeatedly pointed out by this Court in Exts.P8 and P10 judgments. 5. The conclusion arrived at by the Government is that the decision taken on the basis of report of the Vigilance Department and the Enquiry Officer does not require any modification and therefore, the appeal petition stands rejected. 6. There is no more necessity to refer the matter again to the Government for fresh consideration on the basis of the materials available in this case. In spite of the fact that the petitioner has pointed out to the Government that major punishment of barring of increment with cumulative effect was inflicted on him without enquiry, it was not considered by the Government even at this distance of time, while passing Ext.P11 -8- W.P.(C)No.32953/2006 order. Without going into any other contentions raised by the petitioner in the appeal memorandum, I find that a major punishment inflicted on the petitioner without enquiry cannot stand. In the circumstances, Ext.P3 and P11 orders are quashed. The petitioner is exonerated from all charges. The Government shall pay consequential benefits to the petitioner as if there is no disciplinary action against the petitioner. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv. S