Ajith Gopi v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 26TH DAY OF FEBRUARY 2013/7TH PHALGUNA 1934** ## **WP(C).No. 7572 of 2011 (V)** ## **--------------------------** ## **PETITIONER(S):** - **--------------------------** **AJITH GOPI,PROJECT ENGINEER (PRESENTLY TERMINATED FROM SERVICE), AGENCY FOR NON-CONVENTIONAL ENERGY AND RURAL TECHNOLOGY, (ANERT), THIRUVANANTHAPURAM, RESIDING AT SOORYA GAYATHRI, TC-18/605/3, OJRA-118, ARAMADA P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.V.PHILIP MATHEWS** **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA,REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF POWER, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR,AGENCY FOR NON-CONVENTIONAL ENERGY AND RURAL TECHNOLOGY, (ANERT), THYCAUD P.O., THIRUVANANTHAPURAM-695 014.** **3. V.ANILKUMAR, ENQUIRY OFFICER (STATE TECHNICAL DIRECTOR), AGENCY FOR NON-CONVENTIONAL ENERGY AND RURAL TECHNOLOGY, (ANERT), THYCAUD P.O., THIRUVANANTHAPURAM-695 014.** **4. AGENCY FOR NON-CONVENTIONAL ENERGY AND RURAL TECHNOLOGY (ANERT), THIRUVANANTHAPURAM-695 014, REPRESENTED BY ITS MANAGING DIRECTOR.** **R1 BY GOVERNMENT PLEADER SMT. SAREENA GEORGE R2 & R4 BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.7572/2011 V** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE ORDER ADMINISTRATIVE ORDER NO.722/ADM/ANERT/91, DTD. 03/07/91 ISSUED BY THE THEN DIRECTOR OF 4TH RESPONDENT.** - **P2: COPY OF THE ADMINISTRATIVE ORDER NO.1348/93/ADM. DTD. 31/07/1993 ISSUED BY THE 2ND RESPONDENT.** - **P3: COPY OF THE LETTER DTD. 19/12/94.** - **P4: COPY OF THE ADMINISTRATIVE ORDER NO.2275/95/ADMIN. DTD.28/12/1995 ISSUED BY THE 2ND RESPONDENT.** - **P5: COPY OF THE ADMINISTRATIVE ORDER NO.176/96/ADMN/ANERT DTD. 03/02/1996.** - **P6: COPY OF THE G.O.(RT) NO.197/07/PD DTD. THIRUVANANTHAPURAM 23/07/2007.** - **P7: COPY OF THE GOVERNMENT ORDER G.O.NO.221/09/PD DTD. 14/08/2009.** - **P8: COPY OF THE APPLICATION FORWARDED BY THE 2ND RESPONDENT TO SIDA.** - **P9: COPY OF THE SELECTION LETTER DTD. 16/09/2009.** - **P10: COPY OF THE LETTER DTD. 15/10/2009 SEND BY THE 2ND RESPONDENT.** - **P11: COPY OF THE LETTER DTD. 08/01/2010 SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT.** - **P12: COPY OF THE SHOW CAUSE NOTICE DTD. 15/03/2010 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **P13: COPY OF THE REPLY LETTER DTD. 23/03/2010 SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT.** - **P14: COPY OF THE ORDER DTD. 30/04/2010 PASSED BY THE 2ND RESPONDENT.** - **P15: COPY OF THE MEMO OF CHARGES DTD. 07/05/2010.** **..2/-** **Kss** ## **....2......** ## **WPC.NO.7572/2011 V** - **P16: COPY OF THE REPLY DTD. 03/06/2010 SUBMITTED BY THE PETITIONER TO EXHIBIT P15.** - **P17: COPY OF THE REPRESENTATION DTD. 09/06/2010 SUBMITTED BY THE PETITIONER TO FIRST RESPONDENT.** - **P18: COPY OF THE JUDGMENT DTD. 02/09/2010 PASSED BY THIS HON'BLE COURT IN WPC.NO.26732/2010.** - **P19: COPY OF THE COMMUNICATION DTD. 25/09/2010 ISSUED BY THE 2ND RESPONDENT.** - **P20: COPY OF THE ENQUIRY REPORT.** - **P21: COPY OF THE SHOW CAUSE NOTICE DTD. 25/01/2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **P22: COPY OF THE REPLY/OBJECTION DTD. 31/01/2011 GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT IN RESPONSE TO EXHIBIT P21.** - **P23: COPY OF THE ORDER NO.A.O.NO.30/HRM/2011 DTD. 16/02/2011 PASSED BY THE 2ND RESPONDENT.** - **P24: COPY OF THE G.O.(RT) NO.193/2009/PD DTD. 17/07/2009.** ## **RESPONDENT'S EXHIBITS: N I L** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **Kss** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.7572 of 2011 ---------------------------------------Dated this the 26[th] day of February 2013 ## **J U D G M E N T** The petitioner while working as Project Engineer of the 4[th] respondent was removed from service which is under challenge in this writ petition. The petitioner was served with two memo of charges alleging that he was unauthorisedly absent and had gone abroad without permission. 2. Though the petitioner submitted necessary objection inter alia contending that he had been permitted by the Director, for attending a Conference abroad, and that he had applied for leave, there was delay in sanctioning the leave and he proceeded abroad for attending the Conference on the bona fide belief that leave would be sanctioned in the normal course. But, it seems that the W.P.C.No.7572 of 2011 2 leave was not sanctioned and when he came back, he was faced with an order of suspension and thereafter, after conducing an enquiry in the matter, he was dismissed from service. 3. The first charge levelled against him was that he was absent from office on 09/01/2010 to 17/01/2010 , that he had gone to China without obtaining permission from the Government of Kerala or the Director during the aforesaid period, that there was dereliction of duty by not attending other duties, that the petitioner was habitually absent without permission and that he was absent from duty on an earlier occasion which was ultimately condoned by the Government. The second charge was relating to his unauthorised absence from 09/04/2010 to 08/05/2010, during which time he had gone to Sweden for the second phase of training. 4. An enquiry was conducted with reference to the memo of charges and Ext.P16 is the report. The petitioner W.P.C.No.7572 of 2011 3 has a case that he was not given sufficient opportunity to adduce evidence or cross examine the witnesses. 5. Subsequently, a show cause notice had been issued as Ext.P21 calling upon the petitioner to explain as to why action should not be taken against him. Ext.P22 is the objection submitted by the petitioner wherein one main contention urged by the petitioner is that while suspending him from service, it was indicated that disciplinary proceedings initiated against him will be proceeded under Section 16(1)(a) of the Kerala Civil Services (Classification Control & Appeal) Rules 1960 (hereinafter referred as the Rules). The contention of the petitioner is that having informed him that only a minor penalty will be imposed, the authorities proceeded to pass Ext.P23 order imposing a major penalty of removal from service in terms with Rule 11 (1)(vii) of the Rules. 6. Counter affidavit is filed by respondents supporting the stand taken in the matter. W.P.C.No.7572 of 2011 4 7. It is argued by the learned counsel for the petitioner relying upon the judgment of Supreme Court in **Rajasthan Tourism Development Corporation Ltd. & Another v. Jairaj Singh Chauhan** _[2011(13) SCC 541]_ that such a harsh step of removal from service should not be taken against an employee for unauthorised absence from service. According to the petitioner, the Director had granted permission to go abroad for Conference. But, subsequently, leave was not sanctioned. Still further, there is an allegation that he has not obtained permission to go abroad for another 28 days from 09/04/2010 to 07/05/2010. Altogether, the absence from the office is only for 36 days. Therefore, taking such a harsh step is against the judgment of the Supreme Court in **Jairaj Singh Chauhan** (Supra). 8. Another argument raised is with reference to the major penalty imposed on the petitioner after having invoked Rule 16(1)(a). According to the petitioner, the position is covered by the judgment of this Court in W.P.C.No.7572 of 2011 5 **Bacharan v. State of Kerala** [ _1983 KLT 22]_ wherein paragraph 5 reads as follows: _5. The learned counsel for the petitioner would submit that where the ultimate penalty imposed is only minor penalty, if the proceedings had commenced under R.15 and not under R.16, it is incumbent on the disciplinary authority to supply copy of the inquiry report to the government servant and to give him an opportunity to make a representation and the disciplinary authority has to consider such representation as contemplated in subrule (12) of R.15 of the Rules. This argument does not stand legal scrutiny. There is a definite scheme and pattern behind R.15 and 16. Broadly speaking, R.15 deals with procedure for the imposition of major penalty, while R.16 deals with procedure for imposing minor penalties. Reading the two rules together, there can be no doubt that ia a proceeding commencing under R.16 only a minor penalty can be imposed and not a_ W.P.C.No.7572 of 2011 6 _major penalty. But, in a proceeding commencing under R.15, disciplinary authority or the Government, as the case may be, has choice of two courses in the matter of imposition of penalty. It is open to the authority to follow the mandate of subrule (12) and in appropriate cases, impose major penalty. It is also open to the authority to refrain from following the procedure provided under sub-rule (12) but to follow the procedure laid down in sub-rule (13) of R.15 of the Rules and to impose only a minor penalty Difference between sub-rules (12) and (13) of R.15 indicate the difference between the procedures to be followed in the matter of imposition of major and minor penalties in a proceeding commencing under R.15 of the Rules. The procedure prescribed in sub-rule (13) is analogous, so to say, to the procedure prescribed in R.16. R.16 as well as sub-rule (13) of R.15 contemplate only grant of one opportunity to the government servant concerned and that opportunity is to make a representation in_ W.P.C.No.7572 of 2011 7 _regard to the charges framed against him of the show-cause notice. The right of the government servant in such cases is to ensure that bis representation is considered before the disciplinary authority imposes minor penalty. But, where ultimately major penalty is to be imposed, the government servant has the right to insist on two opportunities as the rules stand now. The rules have not been amended even though Art.311(2) of the Constitution has been amended. As the rules stand now, before a major penalty can be actually imposed on a government servant, be has to receive two opportunities, one to submit a written statement of defence in answer to the charges and the other to submit representation in regard to the penalty proposed to be imposed on him in the light of the findings in the inquiry report and he can also insist on being furnished with a copy of the report._ The learned counsel for the petitioner also highlights the W.P.C.No.7572 of 2011 8 position that proper opportunity should have been granted to the petitioner as per the procedure prescribed under the Rules for imposing major penalty as provided under Rule 15, and having not done so, only a minor penalty could have been imposed. 9. Controverting the above arguments, the learned counsel for the respondents, based on the files produced contends that in the petitioner's case, a strict view had been taken on account of the fact that there had been an earlier disciplinary proceedings in respect of unauthorised absence and though he was found to be guilty of the alleged misconducts at that point of time, on intervention of the Government, petitioner was reinstated in service. This is the second occasion that the petitioner has gone abroad without getting leave from the organisation. That apart while the show cause notice in regard to the first absence from 09/01/2010 to 17/01/2010 was issued, without getting further leave, he had gone abroad on 09/04/2010 and was W.P.C.No.7572 of 2011 9 unauthorisedly absent till 07/05/2010. Further it is argued that in Ext.P14 it is only mentioned that the petitioner is suspended by invoking the procedure under Rule 16(1)(a) of the Rules, whereas Rule 15 enquiry was conducted. Therefore, there is nothing wrong with the action taken by the Management in removing the petitioner from service. 10. The fact remains that though the petitioner was informed that only a minor penalty will be imposed on him, after the enquiry proceedings, the organisation had taken a different stand in the matter and informed the petitioner that Rule 15 is invoked and a major punishment is imposed on the petitioner. When an officer is informed that the proceedings initiated against him is to impose a minor penalty, he should not be inflicted with a punishment of major penalty as held by this Court in **Bacharan** 's case (Supra). Therefore, for that reason itself, the punishment imposed on the petitioner is liable to be set aside. W.P.C.No.7572 of 2011 10 11. Coming to the procedural formalities which had been complied with, I am of the view that as far as Rule 16 (1)(a) is concerned, appropriate procedure had been followed by the department and therefore there is nothing wrong in the department conducting an enquiry in the manner prescribed under Rule 16. No doubt it is for the department to take appropriate action against the petitioner for having committed the misconduct. Having regard to the findings in the enquiry, I do not think it will be justified on the part of this Court to interfere with the said findings. But only a minor penalty can be imposed, since the procedure followed was relating to imposition of minor penalty. 12. Hence the writ petition is allowed in part. The impugned order Ext.P23 to the extent that it imposed a punishment of major penalty is set aside. The matter is remitted back to the disciplinary authority, the 2[nd] respondent to consider the imposition of any of the minor penalties as prescribed under Rule 11. The 2[nd] respondent 11 W.P.C.No.7572 of 2011 shall pass appropriate orders within a period of three weeks from the date of receipt of a copy of this judgment. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.7572 of 2011 12 W.P.C.No.7572 of 2011 13