IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 OP.No. 8944 of 1995(M) -------------------------------- PETITIONER: ------------------- K.P.RAJAGOPALAN, ASST. CONSERVATOR OF FORESTS (RETD), NOW RESIDING AT ''RAJASREE'', KUZHIMANNA, MALAPPURAM DISTRICT. BY ADV. RAMAKUMAR (SR.) RESPONDENTS: ----------------------- 1. THE COMMISSIONER & SECRETARY TO GOVT. FOREST & WILD LIFE (A), DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE CHIEF CONSERVATOR OF FORESTS (PROTECTION), THIRUVANANTHAPURAM. 3. THE CHIEF SECRETARY TO THE GOVT. OF KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/03/2008, ALONG WITH OP NO. 14129 OF 1999 THE COURT ON 14.03.2008 DELIVERED THE FOLLOWING: OP. NO.8944/1995 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE INQUIRY REPORT SUBMITTED BY INQUIRY AUTHORITY. EXT.P2:- COPY OF THE ORDER DT. 1.9.90 PASSED BY THE 2ND RESPONDENT. EXT.P3:- COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE SIT RESPONDENT. EXT.P4:- COPY OF THE ORDER DT. 8.1.93 ISSUED BY GOVT. OF KERALA. EXT.P5:- COPY OF THE SHOW CAUSE NOTICE DT. 2.6.94 ISSUED BY 2ND RESPONDENT. EXT.P6:- COPY OF THE REPRESENTATION DT. 23.6.94 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P:- COPY OF THE ORDER DT. 4.10.94 PASSED BY 2ND RESPONDENT. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NOs.8944/1995 & 14129/1999 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of March, 2008. JUDGMENT Both the original petitions are filed by the common petitioner. In O.P. No.8944/1995 the relief sought for is to quash Ext.P7 which is an order concerning the regularisation of the period of suspension. In O.P.No.14129/99 the petitioner is challenging Ext.P6 order passed by the disciplinary authority imposing penalty of barring two increments without cumulative effect and consequential direction for regularising the period of suspension. 2. O.P.No.14129/1999 is treated as the main case since the penalty itself is under challenge in that original petition. The petitioner, while working as Range Officer, was placed under suspension on 5.7.1981 pending disciplinary enquiry. A memo of charges was issued on 16.2.1983 and the disciplinary enquiry was not held for six years and ultimately as per the directions of this court, it commenced in June 1989. He was one of the accused in C.C. No. 281/1989 in which he was found not guilty and was acquitted. Crl. Appeal No.17/89 filed by the department before this court was also dismissed on 25.9.1990. OP 8944/95 & 14129/99 -2- 3. In the disciplinary enquiry none of the charges were proved against him and he was found wholly innocent of the charges. But the Chief Conservator of Forests issued a show cause notice proposing punishment of removal from service from the date of suspension as against the petitioner, two other Range Officers and three other officers. Ext.P1 is the show cause notice. After considering his explanation, the disciplinary authority imposed punishment of barring four increments with cumulative effect and reduction in rank by 20 places in the seniority list then in force. He was ordered to be reinstated in service forthwith. The order is dated 1.9.1990 (Ext.P2). The appeal filed by him before the Government was unsuccessful and the same was dismissed by Ext.P3. Thereafter, he filed a review petition before the Government which was also dismissed by Ext.P4. These orders were challenged in O.P. No.17588/1993 which was disposed of by Ext.P5 judgment. After considering the various contentions of the petitioner, this court noticed that in the enquiry nothing was proved against him. The disciplinary authority chose to disagree with it, but the method adopted by the disciplinary authority was found far from satisfactory. It was held that whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its OP 8944/95 & 14129/99 -3- findings. The report of the enquiry officer containing his findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. It was found by this court that this procedure has not been followed and accordingly the orders referred to above, passed by the disciplinary authority and in appeal and review, were set aside. The disciplinary authority was directed to consider the matter afresh in the light of the observations/directions issued in the said judgment. Thereafter, by Ext.P6 the disciplinary authority passed fresh orders which is under challenge in this writ petition. By the time the order was passed, he had retired from service. 4. Shri K. Ramakumar, learned Senior Counsel appearing for the petitioner argued that the order Ext.P6 has been passed totally in violation of the directions contained in Ext.P5 judgment. It is pointed out that the disciplinary authority exonerated the petitioner on all charges, except charge No.4. It is also stated that even in respect of charge No.4, there is no clear finding against the petitioner. What is found is that he was partially responsible for non drawal of liability mahazar. It is submitted that the said finding is not supported by any evidence or required proof and the conclusion made by the disciplinary authority is totally without any evidence. It is also contended that even after issuance of the directions in OP 8944/95 & 14129/99 -4- Ext.P5, the disciplinary authority did not follow the procedure that was directed to be done and a unilateral decision was taken and an order was passed without affording the petitioner an opportunity for showing cause and by simply recording that the enquiry report cannot be accepted. It is therefore submitted that there is clear violation of Rule 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules. 5. This is a case where the enquiry report is totally in favour of the petitioner. He was found wholly innocent of the charges. Thereafter, the disciplinary authority differed from the findings of the enquiry officer and has proceeded to impose the penalty as per Ext.P1, which culminated in Ext.P2 proceedings, which was confirmed in appeal, by Ext.P3. As per Ext.P5 judgment, all these proceedings were set aside. They have been set aside mainly on the ground that in those proceedings nothing has been stated as to on what basis the disciplinary authority rejected the reasonings given by the enquiry officer and has come to the conclusion that the petitioner is guilty of the various charges. It was held that “there can be no doubt that it is a duty of the disciplinary authority to consider the report of the enquiry officer and then if he desires to take a different view, he must state reasons as to why he is rejecting the reasonings and findings in the enquiry report.” In support of the above proposition the decision of the Apex Court in Punjab National Bank v. S.P.Goel (1998 (2) KLT SN 39, OP 8944/95 & 14129/99 -5- case No.47) was relied upon. Therefore, what emerges from the above judgment is that the disciplinary authority must record its tentative reasons to justify disagreement with the enquiry officer and then give the delinquent officer an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. It was found in Ext.P5 judgment that this procedure has not been followed in this case. 6. A reading of Ext.P6 shows that after the above judgment, the petitioner was directed to appear before the second respondent and adduce evidence in the matter. Thereafter, the disciplinary authority examined the explanation submitted by him to the memo of charges and the show cause notice. Judged in the light of the directions in Ext.P5, according to me, the said method is totally illegal and unsupportable in law. It is clear from Ext.P6 that the disciplinary authority considered the charges and then proceeded to examine the guilt of the petitioner. Clearly, he had not been informed of the tentative reasons for the disagreement with the enquiry officer by the disciplinary authority. Therefore, what was held illegal by this court in Ext.P5, has again been repeated, which vitiates the entire proceedings. The procedure adopted shows that the delinquent officer has not been given any opportunity to enable him to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The Apex Court in the decision in Punjab National Bank's case, laid down the OP 8944/95 & 14129/99 -6- principles applicable in such cases, in the following words: “It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority. Principles of natural justice have to be read into Regulation 7(2). Whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer.” Going by the above dictum, the method adopted here is totally bad in law. Apart from that, the findings rendered by this court in Ext.P5 judgment had become final and as the same were binding on the respondents, they were bound to comply the said directions. On this ground itself, Ext.P6 is liable to be quashed. 7. On the merits of the findings rendered in Ext.P6 also, it is clear that he had been exonerated on all charges except charge No.4, wherein there is a vague finding that he was partially responsible for not drawing the OP 8944/95 & 14129/99 -7- liability mahazar. The question is whether the said finding by the disciplinary authority has any support from the evidence available on record. Nothing has been stated in Ext.P6 as to the basis on which the disciplinary authority rejected the reasonings given by the enquiry officer and drawing the conclusion of guilt against the petitioner, even though the liability shown is only partial. 8. The background of the matter as given in Ext.P6 shows that an extent of thousand acres of land was allotted to the Kerala Forest Development Corporation from the Nelliampathy Range in the Padagiri section for cardamom cultivation. The authorities of the corporation set apart 117.3 hectares of land named as Pothumala coupe No.1 for starting the operations. They identified 1120 trees for the purpose of cutting and removing the same. Ext.P6 order will show that the authorities of the KFDC were in possession of the area. The Corporation had prepared estimates for cutting those trees and the findings rendered in Ext.P6 is that the authorities of the Corporation were misusing the authority given. A reading of the enquiry report which is produced as Ext.P1 in O.P.No.8944/1995 shows that the enquiry officer entered a finding on the basis of the oral and documentary evidence. It is stated in paragraph 17 that the conclusion is irresistible that the Corporation had effective possession and control of the coupe with the rights of felling of trees and collection of OP 8944/95 & 14129/99 -8- firewood. It was also found in paragraph 20 that the Corporation had entered into possession of the coupe not long after 9.4.1979 and had defacto possession of the area from 1979. Ultimately, it was found by the enquiry officer in paragraph 29 that the affairs in the coupe was so nebulous and confusing that it is not possible to identify at this distance of time which of the two agencies was actually responsible for the misdeeds, if any, in the coupe. In respect of the petitioner, in Ext.P1(a) produced in O.P.No.8944/1995 as regards charge No.4, it has been found by the enquiry officer that the Divisional Forest Officer approved the proposal for extension of the contract without insisting for liability mahazars and since the formality of drawing liability mahazar was obviously dispensed with by the Divisional Forest Officer, it is for the Divisional Forest Officer to throw light on the circumstances leading to the omission. It is on the above background that the enquiry officer entered a finding that it is difficult to hold that the failure to prepare the liability mahazar amounts to a serious misconduct. 9. When we examine this aspect with reference to the findings contained in Ext.P6, it is clear that the justification for disagreeing with the findings of the enquiry officer have not at all been stated also. It is clearly recorded in Ext.P6 while considering charge No.4 that there are no reports or evidence to show that there were any irregularities in the cutting of 1120 OP 8944/95 & 14129/99 -9- trees in the area allotted to the K.F.D.C. But without anything more, it is concluded that a liability mahazar could have been prepared and it was not done by the section staff and was not verified by the Range Officer. Then, it is finally concluded that the petitioner is partially responsible, without making it clear what was his actual role in the matter. Thus, going by the dictum laid down in “Punjab National Bank's case,” the attempt made by the disciplinary authority totally lacks any credibility, as the grounds for disagreeing with the findings of the enquiry officer have not at all been made mention of before finding the petitioner partially guilty of the charge. Before recording the findings on the said charge, the tentative reasons for such disagreement must have been recorded and the petitioner should have been given an opportunity to represent. There is total non application of mind to various aspects as noticed above. The petitioner is justified in arguing that as the whole area was under the control of the K.F.D.C., the officers like the petitioner could not have been found fault. It is evident that the finding of guilt has been made without any supporting material. The authority does not refer to any documentary evidence which provide for preparation of liability mahazar as a responsibility on the part of the petitioner and other departmental officers. In fact, the finding by the enquiry officer that the Divisional Forest Officer had granted extension of time for removal of the trees without fixing the corresponding obligation to OP 8944/95 & 14129/99 -10- prepare a liability register, has not even been considered by the disciplinary authority. Therefore, the said finding is on the basis of mere surmises and conjectures and not on proved evidence. In the counter affidavit also, the basis of such a finding is not explained. 10. In a similar case, in Surendran v. State of Kerala (1999 (1) KLT 618) after analysing the provisions of Rule 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules, it was held by this court in paragraph 5 that “a disciplinary authority other than Government cannot disagree with the findings in the enquiry report as contained in-rule (11) to Rule 15. Even if the Disciplinary Authority disagrees with the finding, the reason for such disagreement shall be communicated to the delinquent himself. That also is not followed in this case.” The said dictum applies here. 11. This is a case where the enquiry officer could not find any guilt on the part of the petitioner. It is also pointed out by the petitioner that even though he was arrayed as an accused in C.C. NO.281/1980, he was found not guilty and acquitted and though Crl. Appeal No.17/1989 was filed by the department before this court, that was also dismissed. A person cannot be imposed with a penalty merely on the basis of vague findings. He has been exonerated on all the major charges of corruption. There is no finding that he was the sole responsible officer to prepare a liability mahazar. Even OP 8944/95 & 14129/99 -11- the finding is only that he was only partially responsible, without establishing what was his actual role in the matter. Judged in the light of the well settled legal principles, the said conclusion cannot be justified at all. Therefore, Ext.P6 in O.P.No.14129/99 is quashed. The petitioner will be entitled for all consequential benefits including monetary benefits. The direction in the order to limit the salary payable to 80% including the subsistence allowance paid, during the period of suspension is vacated. Consequential orders will be passed granting all monetary benefits within two months from the date of receipt of a copy of this judgment. In O.P.No.8944/1995, the main challenge is against Ext.P7 and in the light of the directions issued as above, it is not necessary to go into the merits of the said case, particularly since Ext.P7 had been modified by Ext.P6 in O.P.No.14129/1999. The said Original Petition is closed as infructuous. No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 8944/95 & 14129/99 -12- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. Nos.8944/1995 & 14129/99 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 14th March, 2008.