High Court of KeralaDivision BenchDisposed of with observations; relief granted i...

N. Gopi; A.R Dass; T. Bala Ravi v. State of Kerala and Commissioner of Commercial Taxes

Case / Petition Number:OP(KAT) No.35 of 2014 (Z)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Vinod Chandran
  • V. G. Arun
Judgment Date
2019-11-18
Court Decision / Holding
The High Court held that there was a violation of natural justice due to non-supply of the enquiry report and absence of hearing before the punishment; it set aside Annexure A8, A9, and A12; it directed restoration of the increments (with the DA implications) for the three years during which the penalty was in force, and directed that the amounts due be paid within three months. The increments added to the Basic Pay should be treated accordingly for DA calculation. The Original Petition was disposed of with the above observations and with no order as to costs.
Final Disposition
Disposed of with observations; relief granted in part; penalty set aside; compensation to be paid; no costs.

Parties to the Case

Appellants / Petitioners

  • N. Gopi
  • A. R Dass
  • T. Bala Ravi

Respondents

  • State of Kerala represented by the Secretary to Taxes (D) Department, Government of Kerala, Thiruvananthapuram - 695 001
  • The Commissioner of Commercial Taxes, Thiruvananthapuram - 695 001

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. K. Ramakumar (Sr.)
  • • Sri. M. Manoj Kumar
  • • Smti. Asha Babu

Counsels for Respondents

  • • Government Pleader

Case Synopsis & Summary

The Kerala High Court heard OP(KAT) No.35 of 2014 challenging the Kerala Administrative Tribunal's rejection of the petitioners' challenge to a disciplinary punishment imposed on three retired officers of the Commercial Taxes Department, namely barring three increments without cumulative effect. The petitioners contended that the disciplinary proceedings were vitiated for violation of natural justice because the enquiry report was not served on them before the disciplinary authority recorded guilt and imposed punishment. They had raised in their appeal before the Government a specific ground that the enquiry report was never supplied to them, and that such ground was not considered by the Government; the Tribunal did not address this grievance. The petitioners relied on ECIL v. Karunakar (AIR 1994 SC 1074), arguing that there is a mandatory requirement to supply the enquiry report and to afford a reasonable opportunity of hearing before a decision is taken to accept the enquiry report and impose punishment. The Government’s counter arguments were referenced but the petitioners had already retired, limiting the possibility of fresh disciplinary action. The High Court found merit in the argument of procedural irregularity, holding that the absence of service of the enquiry report and of a hearing violates the principles of natural justice, and ordered the impugned orders set aside. It directed restoration of the increments, with appropriate DA implications, and with compensation for the three years of withheld increments, to be paid within three months. The Original Petition was disposed of with these observations and no costs.

Provisions of Law Cited

ECIL v. Karunakar, AIR 1994 SC 1074

Legal Doctrines & Maxims

  • Principles of natural justice

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the disciplinary punishment of barring of three increments without cumulative effect violated the principles of natural justice because the enquiry report was not supplied to them before the disciplinary authority entered into a finding of guilt or imposed punishment. They challenged the penalty on the ground of procedural infirmity, noting that the enquiry report had not been served and that they were not afforded an opportunity of hearing, as required by the principle of natural justice and as articulated in ECIL v. Karunakar. They pointed out that the appeal before the Government included a specific ground that the enquiry report was never supplied, and that this ground was not considered by the Government; the Tribunal did not address this issue either. They argued that since the petitioners had already retired, there was no scope for fresh disciplinary action, and thus the orders were procedurally defective and illegal. They prayed for quashing of Annexures A8, A9 and A12 and for restoration of increments with compensation for the three years of withholding, together with any DA implications.

Contentions of Respondents

The respondents contended that the grounds raised in the petitioners’ appeal were not considered by the Government and that the disciplinary proceedings were in accordance with the established procedures; they asserted that the government’s decision was based on the enquiry report and the officer’s guilt. The arguments regarding the supply of the enquiry report and a prior hearing were not accepted by the Tribunal in its earlier assessment, but the Court ultimately finds that the procedural lapses occurred, particularly because the petitioners had retired, limiting redress through fresh disciplinary action.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
ECIL v. KarunakarAIR 1994 SC 1074PositiveCourt relied on ECIL v. Karunakar to hold that the disciplinary authority must supply the enquiry report and provide a reasonable opportunity of hearing before imposing punishment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** ## **OP(KAT).No.35 OF 2014(Z)** **AGAINST THE ORDER/JUDGMENT IN OA 1682/2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **1 N.GOPI AGED 57 YEARS S/O.R.NARAYANAN, INTELLIGENCE INSPECTOR (I.B) (RETIRED) COMMERCIAL TAXES DEPARTMENT, MINI CIVIL STATION, IDUKKI AT THODUPUZHA. RESIDIGN AT "UTHRADUM NIVAS", H. NO.IX/1159 (A), KURISHINGAL THOMAS ROAD, NEAR AJANTHA TALKIES, MATTANCHERRY P O., KOCHI - 682 002. 2 A.R DASS AGED 51 YEARS S/O. P.RAMAN NAIR, INTELLIGENCE INSPECTOR, SQUAD NO.2, O/O THE INSPECTING ASSISTANT COMMISSIONER (INTELLIGENCE), PANKAJ BUILDING, PADINJAREKKOTTA, THRISSUR, NOW COMMERCIAL TAX OFFICER (WORKS CONTRACT), OFFICE OF THE DEPUTY COMMISSIONER, THRISSUR, RESIDING AT PADICKALKUDIYIL HOUSE, CHERUKUNNAM, ASAMANNOOR PO., PERUMBAVOOR (VIA) - 683 549. 3 T. BALA RAVI AGED 54 YEARS S/O.UNNIAMAN, COMMERCIAL TAX INSPECTOR (NOW COMMERCIAL TAX OFFICER), COMMERCIAL TAX CHECKPOST, WALAYAR, PALAKKAD DISTRICT, RESIDING AT THEKKETHIL HOUSE, PARUTHIPRA, SHORUNUR, PALAKKAD - 679 121.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.M.MANOJ KUMAR SMT.ASHA BABU** **- 2 -** **OP(KAT) No.35 of 2014** **SMT.AMMU CHARLES SRI.S.M.PRASANTH SRI.K.T.SIDHIQ** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO TAXES (D) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.** - **2 THE COMMISSIONER OF COMMERCIAL TAXES THIRUVANANTHAPURAM - 695 001.** ## **R1 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** ## **SR.GP SRI.ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 18.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT) No.35 of 2014** **- 3 -** ## **JUDGMENT** **Dated, this the 18[th] day of November, 2019** ## **Vinod Chandran, J.** **By the original application, petitioners challenged the punishment imposed of barring of three increments without cumulative effect, in a disciplinary proceedings. The compelling argument raised before this Court which was not addressed by the Tribunal while rejecting the challenge, is the procedural violation, specifically pleaded there.** **2. The Tribunal has rejected the claim on the ground that the enquiry report found the delinquents guilty of the misconducts alleged and in any event only a minor penalty was imposed. Before this Court however, it is contended that there is a fundamental infirmity in the order issued, insofar as the enquiry report having not been served on the delinquents before the** **- 4 -** **OP(KAT) No.35 of 2014** **punishment was imposed. The learned Counsel relies heavily on** _**ECIL v B.Karunakar, (AIR 1994 SC 1074)**_ **3. The petitioners had filed an appeal before the Government against the orders of penalty issued as per Annexure A8 and A9. The appeal filed is produced as Annexure A11 and A12. There is a specific ground raised that the enquiry report was never supplied to the delinquent officers before the disciplinary authority entered into a finding of guilt as also the imposition of punishment. Before the Tribunal also the appellant had specifically raised the ground that the grounds raised in the appeal were not considered by the Government. The Tribunal however, did not consider the said ground.** **4. We find from the decision of ECIL Vs. Karunakar, cited above that there is a mandate on the disciplinary authority to supply the enquiry** **- 5 -** **OP(KAT) No.35 of 2014** **report to the delinquent and afford a reasonable opportunity of hearing before a decision is taken to accept the enquiry report and impose a punishment. None of these have been done in the present case.** **5. We see from the orders at Annexure A8 and A9 that there is no reference to a letter enclosing the enquiry report nor is there a recital as to such supply of the enquiry report. There is also no hearing notified to the delinquent employees. We also observe that the counter affidavit filed by the State in the Original Petition also does not speak about any notice of hearing having been issued or the enquiry report having been furnished before the punishment was imposed. In such circumstances normally we would have relegated the matter to the disciplinary authority for furnishing of enquiry report and also hearing the delinquent employees. However, we find that all of the** **- 6 -** **OP(KAT) No.35 of 2014** **petitioners had retired in the meanwhile.** **6. In the circumstances stated above, there is no scope for a fresh consideration by the disciplinary authority and we find that the impugned orders bad for reason of violation of principles of natural justice, which defect at this stage cannot be rectified by reason of the retirement of the delinquent employees. As a result we set aside Annexure A8, A9 and A12. We notice that though the increments would have been restored since the punishment of barring of increments did not have cumulative effect, they lost the benefit of payment of increments with dearness allowance, in the three years when they were under the rigour of punishment. Hence the actual loss would be compensated by paying the amounts due to the petitioners in the three years when the increments were withheld. The same shall be done within a period of three months from today. We make it clear that the increments when** **OP(KAT) No.35 of 2014** **- 7 -** **added to the Basic Pay definitely the DA would have to be consequently worked out.** **Original Petition(KAT) is disposed of with the above observations. No order as to** **costs.** **Sd/K. Vinod Chandran, Judge** **Sd/V.G. Arun, Judge** **jma** **- 8 -** **OP(KAT) No.35 of 2014** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION ALONG WITH ANNEXURES A1 TO A13** **ANNEXURE A13 TRUE COPY OF ORDER NO. GO(RT) 229/12/TD DATED 17.04.2012 ISSUED BY R1** - **ANNEXURE A1 TRUE COPY OF MEMO OF CHARGES DATED 24.10.2009 ISSUED TO THE 1ST APPLICANT BY R2** - **ANNEXURE A2 TRUE COPY OF MEMO OF CHARGES DATED 24.10.2009 ISSUED TO THE 2ND APPLICANT BY R2** **ANNEXURE A3 TRUE COPY OF MEMO OF CHARGES DATED 24.10.2009 ISSUED TO THE 3RD APPLICANT BY R2** - **ANNEXURE A4 TRUE COPY OF THE STATEMENT SUBMITTED BY THE 1ST APPLICANT DATED 12.11.2009 BEFORE R2** - **ANNEXURE A5 TRUE COPY OF THE STATEMENT SUBMITTED BY THE 2ND APPLICANT DATED 10.11.2009 BEFORE R2** - **ANNEXURE A6 TRUE COPY OF THE STATEMENT SUBMITTED BY THE 3RD APPLICANT DATED 10.11.2009 BEFORE R2** - **ANNEXURE A7 TRUE COPY OF THE ENQUIRY REPORT DATED 16.01.2010 SUBMITTED BY THE ENQUIRY OFFICER** - **ANNEXURE A8 TRUE COPY OF THE PROCEEDINGS OF THE JOINT COMMISSIONER 1, COMMERCIAL TAXES, THIRUVANANTHAPURAM, DATED 23.02.2011 ISSUED TO THE 1ST APPLICANT** **ANNEXURE A9 TRUE COPY OF THE PROCEEDINGS OF THE JOINT COMMISSIONER 1, COMMERCIAL** **- 9 -** **OP(KAT) No.35 of 2014** **TAXES, THIRUVANATHAPURAM, DATED 23.02.2011 ISSUED TO APPLICANTS 2 & 3** **ANNEXURE A10 TRUE COPY OF THE APPEAL DATED 28.03.2011 SUBMITTED BY THE 1ST APPLICANT BEFORE THE GOVERNMENT** - **ANNEXURE A11 TRUE COPY OF THE APPEAL DATED 28.03.2011 SUBMITTED BY THE 2ND APPLICANT BEFORE THE GOVERNMENT** ## **ANNEXURE A12** - **TRUE COPY OF THE APPEAL DATED 29.03.2011 SUBMITTED BY THE 3RD APPLICANT BEFORE THE GOVERNMENT** - **EXHIBIT P2 TRUE COPY OF THE CIRCULAR NO.25/2007 DATED 03.07.2007 ISSUED BY THE COMMISSIONER, COMMERCILA TAX DEPARTMENT, THIRUVANANTHAPURAM** - **EXHIBIT P3 TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE RESPONDENTS IN O.A.NO.1682/2012 DATED 04.04.2013** **EXHIBIT P4** **TRUE COPY OF THE ORDER DATED 26.09.2013 IN O.A.NO.1682/2012 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL**