IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 WP(C).No. 6487 of 2010(S) ------------------------- {OA.262/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH} .................... PETITIONER(S): --------------------- STATE OF KERALA, REP. BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.V.MANU RESPONDENT(S): ------------------------ 1. V.V.MOHANAN, IFS WORKING PLAN OFFICER, VANASREE, CHINNAKKADA, KOLLAM. 2. UNION OF INDIA, MINISTRY OF ENVIRONMENT AND FOREST REPRESENTED BY ITS SECRETARY, NEW DELHI. 3. UNION PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, NEW DELHI. R1 BY ADV. SRI.ELVIN PETER P.J. R2 & R3 BY SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI R3 BY ADV.SRI.THOMAS MATHEW NELLUMOOTTIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6487 of 2010(S) :: 2 :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE ORDER OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA 262/09 DATED 12.11.2009. RESPONDENTS' EXHIBITS: EXT.R1(A): TRUE COPY OF THE SELECT LIST, PUBLISHED AS PER G.O. DATED 4.7.2009. EXT.R1(B): TRUE COPY OF THE ORDER, G.O. DATED 28.4.2010 ISSUED BY THE GOVERNMENT. EXT.R1(C): TRUE COPY OF THE ORDER, G.O. DATED 31.10.2008 ISSUED BY THE GOVERNMENT. EXT.R1(D): TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER TO THE GOVT. //true copy// P.S. To Judge SK/- THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- W.P.(C).No.6487 of 2010 --------------------------------------- Dated this the 31st day of May, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. This writ petition is by the State of Kerala. First respondent, an IAS officer, was issued with memo of charges on 24.8.2004. He gave his explanation on 4.11.2004. In 2009, on the allegation that the disciplinary proceedings has been inordinately dragged on, he moved the Central Administrative Tribunal by filing O.A.No.262/09. 2. The Tribunal quashed the memo of charges and the disciplinary proceedings. The fundamental thrust of the findings of the Tribunal is that there is inordinate delay in finalising the disciplinary proceedings. While we note that the 1st respondent who had moved the Tribunal only in 2009, is legally justified in saying that he could not have rushed to the Tribunal immediately after the issuance of articles of charges as inordinate delay was the fundamental ground of attack against the disciplinary proceedings, we also note that the Tribunal had made certain comments about the W.P.(C).No.6487 of 2010 :: 2 :: scope of the charges leveled against the officer and also on the question whether there was application of mind in issuing articles of charges. It appears that the matter relates to financial embezzlement. There was an Upper Division Clerk by name C.D.Bastin. Certain cheque leaves were missing from the office. According to the 1st respondent, at his instance, proceeding were initiated against Bastin and ultimately it reached the criminal court. While the said Bastin could be stated to be the custodian of the cheque book, any supervisory failure and other attendant grounds, as also any specific allegation of financial embezzlement against the officer cannot be got over by merely passing the allegations on to Bastin. It is not as if the articles of charges were found to be wholly baseless by the Tribunal. We are, therefore, clear in our mind that the observations made by the Tribunal in its judgment/order touching the merits of the charges cannot be sustained. They are premature. W.P.(C).No.6487 of 2010 :: 3 :: 3. Insofar as the question of delay in completing the disciplinary proceedings is concerned, while the Tribunal decided the matter on 12.11.2009, the disciplinary proceedings were going on and immediately thereafter, the Enquiry Officer issued Ext.R1(d) enquiry report on 2.12.2009 by which the 1st respondent states that he has been absolved of the charges. Therefore, we, immediately clarify that nothing stated in this judgment or in the order of the Tribunal will be put against the first respondent in any proceedings consequent on Ext.R1(d). 4. With the aforesaid fact situation, it is to be noted that the employer Government are entitled, in appropriate cases, to disagree with the findings of the Enquiry Officer. This is usually done through the disciplinary authority, at the first instance. This exercise has a fixed modality. The grounds on which the disciplinary authority is persuaded to disagree are formulated prima facie and put to the delinquent requiring him to show case as to why W.P.(C).No.6487 of 2010 :: 4 :: the disciplinary authority shall not disagree with the Enquiry Officer. The learned counsel for the first respondent states that as of now, his client has been given a show cause notice simply saying that a punishment is proposed to be imposed. The proposed punishment is also indicated. He says that the procedure adopted by the disciplinary authority is unheard of and in violation of the principles relatable to such procedures. We may note that while dealing with this writ petition under Articles 226 and 227 of the Constitution, applying the principles of Chandrakumar's case, it is not on the facts and circumstances of the case in hand, feasible for us to extend the doctrine of 'consequential orders theory' whereby the court, exercising a visitorial jurisdiction, could extend to correct any consequential action taken during the pendency of the proceedings. 5. While it is open for the first respondent to take any action that he may be advised as against the consequential action taken W.P.(C).No.6487 of 2010 :: 5 :: by the superior authority, it is directed that the writ petitioners will conclude any proceedings against the first respondent within a period of two months from now, without fail. It shall be borne in mind that the first respondent had been fighting the disciplinary proceedings for the last 5 years and had been kept out of consideration by different Departmental Promotion Committees for higher posts. Therefore, the time limit fixed above shall be treated as peremptory. Subject to what is stated above, the impugned order is set aside. Writ petition is disposed of as above. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/ //true copy//