S.K. Omanakuttan Nair v. State of Kerala and Others (O.P. No. 27172/2001-I)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932** **OP.No. 27172 of 2001(I)** **----------------------------------** ## **PETITIONER(S):** - **------------------------** **S.K. OMANAKUTTAN NAIR, SANTHI BHAVAN, SOUTH P.O., KOTTAYAM DIST., PIN-686 603.** **BY ADV. SRI.MURALI PURUSHOTHAMAN** ## **RESPONDENT(S):** **---------------------------** **1. THE SECRETARY TO GOVERNMENT, PUBLIC WORKS & TRANSPORT (F) DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM.** **2. THE CHIEF ENGINEER, ADMINISTRATION, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM.** **3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS & TRANSPORT DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM.** **R1 TO R3 BY GOVT. PLEADER SMT.SMITHA SUKUMAR.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P. NO. 27172/2001-I** ## **ORDER ON C.M.P. NO.44172/2001 IN O.P. NO. 27172/2001.** ## **DISMISSED** ## **01/06/2010.** **SD/- P.N.RAVINDRAN, JUDGE** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ORDER G.O.(RT)NO.467/95/PW & T DATED 02/03/1996 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** **EXT.P2: COPY OF THE JUDGMENT DATED 17/12/1996 IN O.P. NO. 17478/1996 OF THIS HONOURABLE COURT.** **EXT.P3: COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS NO.VIG.2/21365/96 DATED 21/03/1997 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **EXT.P4: COPY OF THE ORDER NO.21365/VIG. (2)/96 DATED 26/06/1997 PASSED BY THE 2ND RESPONDENT AGAINST THE PETITIONER.** **EXT.P5: COPY OF THE REVIEW PETITION DATED 21/02/2000 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXT.P6: COPY OF THE ORDER G.O.(RT)NO.469/2001/PWD DATED 17/04/2001 ISSUED BY THE 3RD RESPONDENT TO PETITIONER.** **EXT.P7: COPY OF THE JUDGMENT DATED 25/08/1998 IN O.P. NO. 14447/98 OF THIS HONOURABLE COURT.** ## **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** ## **P.N.RAVINDRAN, J. ----------------------------------------O.P.No.27172 of 2001 ----------------------------------------Dated this the 1[st] day of June, 2010** ## **JUDGMENT** The petitioner entered service as Lower Division Clerk in the Public Works Department in the year 1971. While he was working as Lower Division Clerk in Bridges Sub Division, Alappuzha he was removed from service for unauthorised absence as per order dated 18- 1-1985 issued by the Superintending Engineer, Public Works Department (Bridges and Roads) Southern Circle, Alappuzha. The petitioner thereupon moved the Government by filing a review petition. The Government noticed that the Superintending Engineer was not competent to impose the major punishment of removal from service on the petitioner. The Government accordingly passed Ext.P1 order dated 2-3-1996 remitting the case to the Chief Engineer, P.W.D., (Administration) for _de novo_ action. After Ext.P1 order was passed, the Chief Engineer, P.W.D. (Administration) issued Ext.P3 memo of charges and a statement of allegations dated 21.3.1997. The petitioner submitted a written statement on defence. Thereafter, the Chief Engineer passed Ext.P4 order dated 26-6-1997 removing the petitioner from service with effect from 15-9-1981. Aggrieved by Ext.P4 the petitioner filed Ext.P5 review petition before the **O.P.No.27172 of 2001** ## -:2:- Government. By Ext.P6 order passed on 17-4-2001 the review petition was dismissed. Hence this writ petition challenging Exts.P4 and P6 orders. The petitioner also seeks a direction to the respondents to treat him as having continued in service with all attendant and consequential service benefits. 2. The petitioner contends that the punishment of removal from service, being a major punishment, could have been imposed only after an enquiry was held as provided under Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. It is also contended that as the order of removal from service has been passed without conducting an enquiry, it is liable to be set aside. The respondents have filed a counter affidavit justifying the action taken by the Chief Engineer. It is contended that holding of an enquiry is only optional and that an enquiry need be held only if the disciplinary authority is satisfied that a formal enquiry should be held into the conduct of the government servant. 3. The respondents do not dispute the fact that before Ext.P4 order was passed no formal enquiry was conducted under Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. They however, contend that it is not mandatory that in every case an enquiry should be held before a major penalty is imposed. It **O.P.No.27172 of 2001** ## -:3:- is contended that it is for the disciplinary authority to decide whether an enquiry should be held or not and that in a given case having regard to the defence put forward by the delinquent employee the disciplinary authority can justifiably come to the conclusion that a formal enquiry is not called for. I am afraid there is no merit in the said contention. The scope and ambit of sub rule (1) of rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 was considered by a Division Bench of this Court in _**Koruthu v. Kerala State Electricity Board**_ , 1971 KLT 780. Overruling the decision of a learned single Judge it was held that the words “as far as may be” occurring in rule 15(1) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 cannot be interpreted to mean that it is not obligatory on the disciplinary authority to conduct an enquiry when it proposes to impose a major penalty even in cases where no oral evidence is attempted to be adduced on behalf of the disciplinary authority. The Division Bench held that no major punishment can be imposed on a delinquent employee except after an enquiry is held in the manner provided in rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. 4. The respondents have virtually conceded the fact that before Ext.P4 order was passed no formal enquiry in terms of rule 15 of the **O.P.No.27172 of 2001** -:4:- Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 was held. Therefore, Ext.P4 order and consequently Ext.P6 order upholding it are liable to be set aside on that short ground. The petitioner attained the age of superannuation even before this original petition was filed. Therefore, even if the orders impugned are to be set aside, he cannot claim reinstatement in service. He can at best only claim that the period between the date of removal from service and the date on which he would have normally retired from service should be reckoned as duty for the purpose of grant of pension. He cannot, in my opinion, claim that he should be given salary and allowances for the period during which he remained out of service for the reason that disciplinary action was taken against him for unauthorised absence. In the result I allow the original petition, quash Exts.P4 and P6 and direct the respondents to reckon the period from 15-9-1981 (the date from which the petitioner was removed from service) till the date on which he attained the age of superannuation as period spent on duty for the purpose of computation of pensionary benefits. It is clarified that the petitioner will not be entitled to payment of salary and other allowances during the said period. The competent authority shall take steps to fix the terminal benefits of the petitioner on the ## **O.P.No.27172 of 2001** ## -:5:- above basis and disburse the same within three months from the date on which the petitioner produces a certified copy of the judgment before the second respondent. **P.N.RAVINDRAN, Judge.** ## **ahg.** **P.N.RAVINDRAN, J. --------------------------O.P.No.27172 of 2001 ----------------------------** ## **JUDGMENT** **1[st] June, 2010**