Mini.E.P. v. State of Kerala and Deputy Director, Economics & Statistics Department

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 WP(C).No. 7816 of 2008(E) ------------------------- PETITIONER(S): --------------- MINI.E.P. ,AGED 34 WIDOW OF V.C.UNNI IRUMULIPARAMBIL HOUSE, FEROKE COLLEGE P.O., KOZHIKODE. BY ADV. SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU) RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,PLANNING & ECONOMIC AFFAIRS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR DISTRICT OFFICE,ECONOMICS & STATSTICS DEPARTMENT BY GOVERNMENT PLEADER SRI.P.NANDAKUMAR FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2010, THE COURT ON 10/08/2010 DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.7816 OF 2008 EXT.P1 TRUE COPY OF SERVICE CERTIFICATE DT. 9.1.2006 RELATING TO SRI.UNNI.V.C. ISSUED BY THE 2ND RESPONDENT. - EXT.P2 TRUE COPY OF POLICE REPORT DATED 21.9.2003 FILED BEFORE CJM COURT, PONNANI. - EXT.P3 TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE DATED 12.12.2005 ISSUED BY THE TAHSILDAR, ERANAD, MANJERI. - EXT.P4 TRUE COPY OF INCOME CERTIFICATE DATED 6.11.2006 ISSUED BY VILLAGE OFFICER RAMANATTUKARA VILLAGE OFFICE. - EXT.P5 TRUE COPY OF REPLY NO.3689/02/2006/PLANNING DATED 14.8.2007 OF THE FIRST RESPONDENT. - EXT.P6 TRUE COPY OF ORDER NO.A(1) 3812/97/DOESM DATED 23.10.2001 OF SECOND RESPONDENT. EXT.P7 TRUE COPY OF REPRESENTATION DT. 24.10.2007 TO THE FIRST RESPONDENT. - EXT.P8 TRUE COPY OF REPLY NO.16582/D2/2007/PLANNING DATED 14.12.2007 OF THE FIRST RESPONDENT. EXT.P9 TRUE COPY OF ENQUIRY REPORT DT. 24.5.1998. //TRUE COPY// P.A. TO JUDGE. ## **P.N.RAVINDRAN, J.** ------------------------------- ## **W.P.(C) No.7816 of 2008** ------------------------------- ## **Dated this the day of August, 2010** ## **J U D G M E N T** The petitioner's husband Sri.V.C.Unni was appointed as L.D.Investigator in the Economics & Statistics Department by order, dated 4.7.1989. He joined service on 20.7.1989. The petitioner married Sri.V.C.Unni in the year 1994 and a child, Akshay Unni, was born to her in that wed lock. 2. While the petitioner's husband was working as L.D.Investigator in Taluk Statistical Office, Ponnani, he went missing on 30.8.1997. The petitioner thereupon lodged a complaint with the Sub Inspector of Police, Ponnani Police Station. After investigation, the Police submitted a report to the Court of Judicial First Class Magistrate, Ponnani, to the effect that the petitioner's husband could not be traced out and that the case is undetected. Such a report was filed way back on 21.9.2003. Long thereafter, the petitioner submitted an application, dated 23.3.2006, in the prescribed form, claiming compassionate appointment under the dying-in-harness scheme. W.P.(C) No.7816 of 2008 2 The application was submitted to the second respondent who forwarded it to the District Collector, Malappuram, for enquiry. It is stated that after enquiry, the District Collector recommended the application, that thereafter the second respondent forwarded the application to the first respondent; that thereafter the petitioner was informed by Ext.P5 letter, dated 14.8.2007 that her husband was removed from service with effect from 30.8.1997 for unauthorised absence, and therefore, she cannot be appointed under the dying-in-harness scheme. The petitioner states that she thereupon made enquiries with the second respondent who in turn handed over to her a copy of Ext.P6 order, dated 23.10.2001, removing her husband from service with effect from 30.8.1997 for unauthorised absence. She was also told that the said order was published in a newspaper daily. It is stated that though after receipt of Ext.P6 order, the petitioner submitted Ext.P7 representation, dated 24.10.2007 before the Government, W.P.(C) No.7816 of 2008 3 requesting for appointment under the dying-in-harness scheme, the said request was declined and the decision communicated to the petitioner by Ext.P8 letter, dated 14.12.2007. This writ petition is filed contending that the order removing the petitioner's husband from service was not passed after due enquiry; that the procedure prescribed in rule 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960, was not followed before Ext.P6 order was passed, and therefore, the said order is illegal. On these grounds, the petitioner challenges Exts.P5, P6 and P8 orders and seeks a direction to the first respondent to consider the application for compassionate employment submitted by her, as a dependent of her husband, who went missing while in service, by treating him as a deceased employee. It is contended that as the petitioner's husband has not been heard of for seven years by those who would naturally have heard from him, had he been alive, she is entitled for appointment under the compassionate employment scheme. W.P.(C) No.7816 of 2008 4 3. A counter affidavit, dated 29.3.2008, has been filed on behalf of the first respondent. It is contended that the petitioner's husband was unauthorisedly absent with effect from 30.8.1997, following the issuance of a non-bailable arrest warrant against him by the Chief Judicial Magistrate, Manjeri; that he had applied for a day's casual leave on 30.8.1997 and thereafter for five days from 1.9.1997 to 5.9.1997; that thereafter an application for leave for two months from 30.8.1997 to 30.10.1997 was submitted and as the said leave application was not proper, the same was returned with instructions to submit a proper leave application and that nothing has been heard from the petitioner's husband since then. It is stated further that disciplinary action was initiated against the petitioner's husband for unauthorised absence, that a charge memo was issued to him from District Office, Economics and Statistics, Malappuram, on 16.12.1997; that the same was returned with endorsement “addressee left home”; W.P.(C) No.7816 of 2008 5 that Sri.Omanakuttan, Price Supervisory Officer, District Office, Economics and Statistics, Malappuram, was appointed as the Enquiry Officer; that the enquiry was fixed on 16.3.1998; that the petitioner's husband did not attend the enquiry; that the enquiry officer made a local enquiry and submitted a report to the effect that petitioner's husband has not come home for the past one year and his family members are unaware of his whereabouts; that thereupon a charge memo dated 13.12.2000 was sent to the petitioner's husband; that it was returned with endorsement “addressee left home”; that the charge memo was thereafter published in the Chandrika daily on 30.1.2001; that later a show cause notice dated 2.3.2001 was sent by post to the petitioner's husband, that it was also returned undelivered and thereafter it was published in the newspaper on 17.3.2001; that as no reply was received from the petitioner's husband to the memo of charges or the show cause notice, an order removing him from service was issued on 23.10.2001 which was 6 W.P.(C) No.7816 of 2008 also returned undelivered and thereupon it was published in the newspaper on 14.11.2001. Relying on Ext.R1(a) report submitted by the Sub Inspector of Police, Ponnani, to the Taluk Statistical Office, Ponnani, wherein it is stated that a warrant of arrest had been issued against the petitioner's husband in connection with a case registered under section 138 of the Negotiable Instruments Act, it is contended that the petitioner's husband had absconded with a view to evade arrest in the said crime. It is contended that as the petitioner is the dependent of an employee who has been removed from service for unauthorised absence, her claim for employment assistance on compassionate grounds was rightly rejected. 4. I heard Sri.S.Prasanth, learned counsel appearing for the petitioner, and Sri.P.Nandakumar, learned Senior Government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record. The fact that the petitioner's husband was absent from duty with 7 W.P.(C) No.7816 of 2008 effect from 30.8.1997 is not in dispute. In view of the continued absence of the petitioner's husband without leave, a memo of charges, dated 16.12.1997 was issued by the Deputy Director, Economics and Statistics, Malappuram. The said memo of charges which was sent by registered post to the petitioner's husband was returned with the endorsement “addressee left home, present address not known”. The petitioner's husband was at that point of time working as L.D.Investigator in Taluk Statistical Office, Ponnani. After the memo of charges issued to the petitioner's husband was returned with the aforesaid endorsement, the Deputy Director of Economics and Statistics appointed Sri.Omanakuttan, Price Supervisory Officer, as enquiry officer. The enquiry officer thereupon sent a registered letter dated 4.3.1998 to the petitioner's husband requesting him to participate in the enquiry scheduled to be held on 16.3.1998. The said letter was also returned with the endorsement ' _addressee left home_ '. The enquiry officer was therefore not in a W.P.(C) No.7816 of 2008 8 position to conduct an enquiry though he waited in the Taluk Statistical Office, Ponnani, from 10.30 a.m. to 5 p.m. on 16.3.1998. On enquiries made by him in the locality where the petitioner's husband was residing, he came to know that the petitioner's husband has not been heard of for more than one year. The enquiry officer also collected information from the neighbouring residents and thereafter submitted Ext.P9 minutes dated 25.4.1998. Long thereafter, a fresh memo of charges dated 13.12.2000 was issued to the employee and a copy thereof was sent by registered post to the residential address mentioned in Ext.P9 report. The said postal article was returned with the endorsement ' _addressee has not been heard of by his family members for more than three years_ '. The memo of charges was thereafter published in the Chandrika daily dated 30.1.2001. Since no reply was received from the employee to the memo of charges, the Deputy Director issued a show cause notice dated 2.3.2001 which was sent by registered post to the 9 W.P.(C) No.7816 of 2008 employee. It was also returned undelivered with the endorsement ' _addressee left_ '. Thereafter it was published in two newspaper dailies on 17.3.2001. Since no reply was received from the petitioner's husband, Ext.P6 final order removing him from service was issued on 23.10.2001. A copy thereof sent to his residential address by registered post was returned undelivered and thereafter it was published in a newspaper daily on 14.11.2001. The petitioner challenges Ext.P6 order on the ground that before it was issued, the procedure prescribed in rule 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960 was not followed. 5. The short question that arise for consideration is whether the procedure adopted by the disciplinary authority in case on hand satisfies the requirement of rule 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960. Relying on the decision of the Division Bench of this Court in **V.O.Koruthu v. Kerala State Electricity Board** (1971 KLT 10 W.P.(C) No.7816 of 2008 780) and the decision of the Apex Court in **Union of India and others v. Dinanath Shantaram Karekar and others** (AIR 1998 SC 2722), the learned counsel for the petitioner contended that as no formal enquiry into the charges was held and the memo of charges dated 30.1.2001 was not served on the employee, Ext.P6 order removing the employee from service is liable to be set aside. Relying on the decision of the Apex Court in **Dinanath Shantaram Karekar's** case (supra) the learned counsel for the petitioner contended that in the absence of actual service of the memo of charges and the show cause notice on the employee, the entire proceedings is vitiated. It is further contended that the actual service of the memo of charges on the person charge sheeted is required before any punishment is imposed on him. 6. The punishment imposed on the petitioner's husband is one of removal from service which is a major penalty. The procedure for imposing a major penalty is prescribed in rule W.P.(C) No.7816 of 2008 11 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960. Sub-rule (1) of rule 15 reads as follows:- **“15. Procedure for imposing major penalties:-** (1) Without prejudice to the provisions of the Public Servants' (Inquiry) Act, 1850 (Central Act XXXVII of 1850), and the Public Servants' (Inquiries) Act, 1122 (Act XI of 1122), no order imposing on a Government servant any of the penalties specified in items (v) to (ix) of rule II (1) shall be passed except after an inquiry held as far as may be, in the manner hereinafter provided.” Interpreting the said rule, a Division Bench of this Court in **Koruthu's** case (supra) held that rule 15 makes it obligatory that the enquiry officer should conduct an enquiry after notice to the delinquent employee and in his presence and for imposing a major penalty, the delinquent must be informed of the charge and there must be a formal enquiry, unless the delinquent admits the charge. It was held that the words ' **as far as may be** ' in rule 15(1) only indicates that minor or immaterial deviations from the provisions of the rule might not W.P.(C) No.7816 of 2008 12 affect the validity of the proceedings and they do not mean that the enquiry authority can totally dispense with an enquiry when the charge is denied, even if the charge is sought to be made out on the basis of records and documents. 7. In the instant case, it is not in dispute that no enquiry into the charges levelled against the petitioner's husband was held, after the memo or charges dated 30.1.2001 was issued. After the memo of charges sent by registered post to the employee in the last known address was returned, a show cause notice was issued and only thereafter Ext.P6 order removing the petitioner's husband from service was passed. The disciplinary authority did not conduct an enquiry into the charges, evidently, for the reason that no written statement of defence was submitted by the employee denying the charges. As noticed by the Division Bench in **Koruthu's case** (supra) a formal enquiry is required to be conducted only if the delinquent does not admit the charge. In the instant case, it is not in W.P.(C) No.7816 of 2008 13 dispute that the department had taken all possible steps to serve the memo of charges on the delinquent employee by sending a copy by registered post to the address furnished by him. The memo of charges sent by registered post was returned with the endorsement “ _addressee has not been heard of by his family members for more than three years_ ”. Since the memo of charges was returned undelivered, it was published in the news paper daily and thereafter a show cause notice was also issued after a gap of two months. The same was also returned undelivered and it was after the show cause notice was also published in two newspaper dailies that Ext.P6 order removing the petitioner's husband from service was issued. In my opinion, as no written statement had been received from the employee to the memo of charges denying the allegations therein and the employee was admittedly absent since 30.8.1997, the respondents were perfectly right in proceeding on the footing W.P.(C) No.7816 of 2008 14 that the employee has admitted the charge that he is unauthorisedly absent. 8. I shall now consider whether as contended by the learned counsel for the petitioner, the order removing the petitioner's husband from service is bad for the reason that the memo of charges was not personally served on the employee. The petitioner admits the fact that her husband has not been heard of since 30.8.1997. She is not aware of his present whereabouts. In **Union of India and others v. Dinanath Shantaram Karekar and others** (AIR 1998 SC 2722), relied on by the learned counsel for the petitioner to contend for the position that memo of charges should be personally served on the employee, the postal article was returned with the endorsement 'not found'. The Central Administrative Tribunal, Bombay, held that a postal article sent by the registered post can be treated to have been served only when it is established that it was tendered to the addressee. It was held that where W.P.(C) No.7816 of 2008 15 the addressee was not available even to the postal authorities, and the registered cover was returned to the sender with the endorsement 'not found', it cannot be legally treated to have been served, it was held. The Apex Court concurred with the said view holding that actual service of memo of charges on the person charge sheeted has not been proved. 9. In my opinion, the said decision can have no application to the facts of the case on hand. In the case before the Apex Court, the postal article was returned with the endorsement “addressee not found”. In other words, the memo of charges was not tendered to the addressee. In the instant case, the postal articles were tendered at the residence of the employee. But they were returned for the reason that the addressee, viz., the employee had left the address and his whereabouts were not known even to the members of his family. The petitioner and other family members of the employee were aware that notices had been issued to the W.P.(C) No.7816 of 2008 16 employee from the department. In my opinion, the repeated notices sent from the department coupled with the fact that the petitioner and the other family members of the employee were not aware of the whereabouts of the employee should have alerted them about the need to contact the superior officers of the employee and to enquire about the steps being taken by the department. Instead they chose to keep quiet and several years after orders were passed removing the employee from service, they challenge the order removing the employee from service on the ground that it is one issued in violation of the rules. In my opinion, in the absence of any irregularity in the procedure adopted by the disciplinary authority, the challenge to the order removing the petitioner's husband from service cannot be sustained. In that view of the matter, it is not necessary for me to consider the question whether as the dependent of an employee who has not been heard of for the past more than 7 years, the petitioner is entitled to be considered for appointment W.P.(C) No.7816 of 2008 **==> picture [13 x 10] intentionally omitted <==** under the dying-in-harness scheme. The said question does not, in my opinion, really arise for consideration in this case, because the dependent of an employee removed from service cannot seek appointment under the dying-in-harness scheme. I accordingly hold that there is merit in the writ petition. The writ petition fails and is dismissed. **P.N.RAVINDRAN, Judge.** **nj.**