K. Balakrishnan v. State of Kerala and Chief Engineer, Public Works Department Administration, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932** **OP.No. 8063 of 2003(I)** **----------------------** ## **PETITIONER(S):** **---------------------** **K.BALAKRISHNAN, FIRST GRADE OVERSEER, P.W.D. ELECTRICAL WING SUB DIVISION, ALAPPUZHA.** **BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SMT.RESMI G. NAIR** **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVT., PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT ADMINISTRATION, THIRUVANANTHAPURAM.** **GOVT.PLEADER SRI.ANTONY MUKATH** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 3/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP NO.8063/03** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1: TRUE COPY OF THE MEMO OF CHARGES NO.VIG.1B-12492/93 DT 25.5.94 OF THE 2ND RESPONDENT.** **EXT.P2: TRUE COPY OF THE EXPLANATION DT 5.12.95 SUBMITTED BY THE PETITIONER.** **EXT.P3: TRUE COPY OF THE ORDER NO.12492/VIG.2/93 DTD.17.2.97 OF THE 2ND RESPONDENT.** **EXT.P4: TRUE COPY OF THE PETITION DTD. 9.2.1998 FILED BY PETITIONER BEFORE THE 2ND RESPONDENT.** **EXT.P5: TRUE COPY OF THE ORDER NO.VIG.9/12492/93 DTD.20.2.01 OF THE DEPUTY CHIEF ENGINEER, (ADMINISTRATION).** **EXT.P6: TRUE COPY OF THE MEMORANDUM OF APPEAL DTD. 19.3.01 FILED BY THE PETITIONER.** **EXT.P7: TRUE COPY OF THE JUDGMENT IN OP 28679/2001-L OF THIS HON'BLE COURT.** **EXT.P8: TRUE COPY OF THE GO(Rt) NO.87.2002/PWD DT. 17.1.2002.** **EXT.P9: TRUE CPY OF THE SHOW CAUSE NOTICE NO.VIG.9/12492/93 DTD. 9.1.2003.** **EXT.P10: TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 27.1.2003.** **EXT.P11: TRUE COPY OF THE ORDER NO.12492/VIG.IB/93 DATED 27.5.1993 OF THE 2ND RESPONDENT.** **EXT.P12: TRUE COPY OF THE ORDER NO.12492/VIG.IB/93 DATED 26.5.94 OF THE 2ND RESPONDENT.** **EXT.P13: TRUE COPY OF THE LETTER NO.A3-1240/97 DT 10.8.2000 OF THE EXE.ENGINEER, PWD BUILDINGS DIVISION, ALAPPUZHA ADDRESSED TO THE 2ND RESPONDENT.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Rp** ## **ANTONY DOMINIC, J. ================ O.P. NO. 8063 OF 2003 (I) =====================** ## **Dated this the 3[rd] day of June, 2010** ## **J U D G M E N T** Petitioner was a Lineman in the Public Works Department. It is stated that on allegations of misconducts, in contemplation of disciplinary proceedings, by Ext.P11 order dated 27/5/93, petitioner was placed under suspension. Thereafter, Ext.P1 memo of charge was issued for initiating minor penalty proceedings against the petitioner, to which, the petitioner submitted Ext.P2 explanation. Meanwhile, by Ext.P12 dated 26/5/94, he was ordered to be reinstated in service. Although it is the case of the petitioner that he was admitted to duty only on 7/3/95, that issue may not be of relevance in this original petition. 2. The disciplinary authority considered the explanation submitted by the petitioner and issued Ext.P3 order imposing a punishment of barring of one increment without cumulative effect in terms of the provisions contained in Rule 11 (III) of Kerala Civil Services (Classification, Control & Appeal) Rules. Petitioner filed Ext.P6 appeal to the 1[st] respondent. By Ext.P8, the order was confirmed. However, it was directed that the Chief Engineer **OP No.8063/03** **:2 :** should follow the requirements of Rule 56(B) 5 of Part I KSR in relation to the period when the petitioner was kept under suspension. Accordingly, the Chief Engineer issued Ext.P9 show cause notice, to which, the petitioner filed Ext.P10 reply. Orders were not passed, and at that stage, this original petition was filed challenging Ext.P3 order imposing the punishment and Ext.P8 order rejecting his appeal and for a direction to the respondents to regularize the period of his absence. 3. The contention raised by the counsel for the petitioner is that in imposing the punishment, the disciplinary authority has violated the principles of natural justice. Elaborating this contention, learned counsel for the petitioner submitted that as can be seen from Ext.P1 memo of charges and Ext.P3 order imposing punishment, the disciplinary authority relied on an enquiry report. It is stated that the enquiry report was submitted without giving an opportunity to the petitioner either to cross examine the witnesses whose statements were recorded by the enquiry officer or to adduce evidence on his behalf. It is also contended that the disciplinary authority ought to have furnished the enquiry report to the petitioner in order to enable him to file **OP No.8063/03** **:3 :** his representations against the findings in the said report. 4. The other contention raised by the counsel for the petitioner is that the period he was kept under suspension based on Ext.P11 order of suspension, has not been regularized and orders as required under Rule 56(B) were not passed. 5. As far as the first contention regarding the non supply of enquiry report is concerned, admittedly the proceedings initiated against the petitioner were for imposing minor penalty. Proceedings in this respect are governed by Rule 16 of CC&A Rules. Rule 16 only provides that the delinquent should be informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and be given an opportunity to make any representations in the matter. This opportunity has been extended to the petitioner by issuing Ext.P3, and availing of this opportunity, he has furnished his explanation. It is thereafter that punishment of barring of one increment without cumulative effect has been ordered by Ext.P3. Therefore, Rule does not require that any enquiry should be conducted with notice to the petitioner. 6. Learned counsel for the petitioner relied on the **OP No.8063/03** **:4 :** judgment of this Court in _**Shaji Lukose v. State of Kerala**_ (2007(1) KLT 679) and contended that the fact that minor punishment was imposed does not exclude the disciplinary authority from the responsibility to furnish to the delinquent materials relied on against him. A close reading of the judgment shows that, that was a case where major penalty proceedings were initiated, and on conclusion thereof, a minor penalty was imposed on the delinquent. If proceedings against the delinquent is a major penalty proceedings, necessarily an enquiry has to be conducted. In such a case enquiry report also should be furnished to the delinquent. The fact that at the end of the proceedings, punishment imposed is a minor punishment, that does not relieve the disciplinary authority of his responsibility to furnish enquiry report to the delinquent. 7. In my view, this judgment does not help the petitioner to sustain his argument for the reason that unlike the case dealt with by this Court, this is a case where proceedings initiated itself were for minor penalty and not for major penalty and for that reason, whatever is held in the judgment, is of no assistance to the case of the petitioner. **OP No.8063/03** **:5 :** 8. Therefore, if before initiating proceedings against the petitioner, the disciplinary authority collected materials to initiate proceedings against the petitioner, it may not be necessary for the disciplinary authority to provide an opportunity to the delinquent at that stage or to furnish him copies of the materials based on which proceedings were initiated by him. That apart, a reading of Ext.P1 memo of charges itself show that the disciplinary authority has made reference to the report obtained by him. Despite the petitioner having received Ext.P1 memo of charges and being informed of such a report, petitioner did not choose to make a request to the disciplinary authority to furnish a copy of the report. On the other hand, answering all the allegations against him, he submitted Ext.P2 explanation. Therefore, not only that the petitioner did not ask for a copy of the report, he cannot also now plead that any prejudice has been caused to him on account of the alleged failure of the disciplinary authority in furnishing him a copy of the report relied on against him. Therefore, I am not impressed by this contention of the learned counsel for the petitioner. In view of these reasons, I am not in a position to accept the case of the petitioner that the **OP No.8063/03** **:6 :** disciplinary authority ought to have furnished a copy of the enquiry report to the petitioner. 9. The second grievance of the petitioner is regarding the delay on the part of the respondents in passing orders as required under Rule 56(B) (5) of Part I KSR. Evidently, it was in pursuance to the directions in Ext.P8 order of the appellate authority that Ext.P9 show cause notice was issued. On receipt of the show cause notice, petitioner has furnished his reply by Ext.P10. Necessarily, if the Chief Engineer has not so far passed orders on Ext.P9, he has to pass orders atleast at this stage taking into account the contentions of the petitioner in Ext.P10. It is directed that if such orders are not passed, it shall be passed within 8 weeks of production of a copy of this judgment. Original petition is disposed of as above. ## **ANTONY DOMINIC, JUDGE** Rp