State of Kerala & Others v. K.P. Mathew

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 24TH DAY OF SEPTEMBER 2012/2ND ASWINA 1934 WA.No. 1228 of 2012 () IN WP(C) NO.19743/2004 ----------------------------------------AGAINST THE JUDGMENT IN WPC.19743/2004 DATED 02-12-2011 APPELLANTS/RESPONDENTS IN THE W.P.: ----------------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETARIAT THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT (ADMINISTRATION) THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA GOPAL RESPONDENT/PETITIONER IN THE W.P.: ---------------------------------- K.P.MATHEW, SUPERINTENDENT ENGINEER (RETIRED) BUILDING AND LOCAL WORKS, THIRUVANANTHAPURAM NOW RESIDING AT KUNNATH HOUSE, PINDIMANA P.O. KOTHAMANGALAM. BY ADV.MR.GEORGE ABRAHAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MANJULA CHELLUR, Ag.C.J. & A.M.SHAFFIQUE, J. ---------------------------------------------------W.A.No.1228 of 2012 ---------------------------------------------------Dated this the 24[th] day of September, 2012** ## **Judgment** ## **Manjula Chellur, Ag.C. J.** By consent of both, Special Govt. Pleader Smt.Girija Gopal and Mr.George Abraham, we have heard the matter on merits. 2. The respondent admittedly retired from service as Superintending Engineer from the Public Works Department in the year 2004. It is not in dispute that on earlier occasion, when he was in service, Ext.P1 memo of charges dated 11.9.1999 was served on him, which ultimately ended in final order Ext.P2 dated 20.1.2001. Against the said final order, a review was sought and the same came to be disposed of on 26.5.2001 as per Ext.P3. Aggrieved by Exts.P2 and P3, O.P.No.22123 of 2001 came to be filed. By a detailed judgment of more than 20 pages, learned Single Judge quashed Exts.P6 and P15 and held in all other respects the Original Petition stands dismissed. As a matter of fact, by virtue of Ext.P2, one increment without cumulative effect was the penalty imposed. It was also observed in Ext.P4 W.A.1228/12 2 judgment that the chance of promotion of the respondent was lost on account of the departmental enquiry. The fact remains is, there was no modification of the decision rather any positive direction to the department to consider his case for promotion. In that view of the matter, learned Single Judge must have said in all other respects the Original Petition stands dismissed, except for the fact of quashing Exts.P6 and P15. To understand exactly what was the reason to set aside the penalty, it would be better to reproduce paragraphs 15 and 16, the discussion and the result as observed in the earlier judgment at page 4 which led to the second enquiry into the allegations which exhibited in Ext.P7 final order: _“15. Law is trite that the accused employee cannot be found guilty of a charge which is not specifically levelled against him and properly communicated to him. In a case where the procedure followed is that prescribed under Rule 16 of the Rules the opportunity to be afforded to the accused employee is to submit a written statement of defence against the charge and the allegations communicated to him as per the memo of charges and the statement of allegations. If the explanation offered by the employee in answer to the said charge is found unsatisfactory, the disciplinary authority may find him guilty and impose on him a minor penalty. Hence it is_ W.A.1228/12 3 _imperative that the accused employee shall not be found guilty of a charge/allegation which is not framed against him and communicated to him. If the employee has not been given reasonable opportunity to defend his case by submitting a proper and detailed explanation to the charge, no penalty can be validly imposed on the employee. In examining the question whether the petitioner was informed of the allegation that the length of the road was reduced against the proposed length and that there was variation in the area of metalling and the thickness of the road it will be useful rather necessary to go through the statement of allegations that accompanied Ext.P2 memo of charge. The allegations contained therein are: 60 mm and 30 mm metal used was found short, the proposed area of metalling was 345M2 whereas the actual area covered was found to be 395.12 M2, spread thickness found during inspection was 15.66 cm whereas the thickness as per specification was 17.9 cm which means there is shortage of 8.85 M3 of metal than the measured quantity of metal used. There is no allegation that the length of the road to be constructed was arbitrarily reduced. Before finding them guilty of supervisory lapses in relation to the deficiency in work, the fact constituting that allegation should be communicated to them and their explanation sought for. Since no charge or allegation is made in Ext.P2 that the petitioner arbitrarily reduced the length of the road or committed supervisory lapses in relation to the alleged reduction in the proposed length of the road, a finding to that effect made in Ext.P6 cannot be sustained. It shows that irrelevant factors have crept into the area of consideration and that the disciplinary authority was influenced by such irrelevant factors. This_ W.A.1228/12 4 _vitiates the order of penalty. As regards the diference in the actual spread thickness and the proposed thickness of the metal the finding in Ext.P6 is that the Asst. Engineer in-charge of the work is expected to ensure that the work is executed as per specification. The petitioner was the Asst. Executive Engineer and Ext.P6 does not hold the Asst. Exe. Engineer guilty of the charge. Since the petitioner is found guilty of a charge or allegation which is not communicated to him as per Ext.P2 the imposition of the penalty of barring his increment for one year as per Ext.P6 is illegal. I therefore quash Ext.P6. Consequently, Ext.P15 rejecting the review petition against Ext.P6 also is liable to be quashed. I do so._ _16. Petitioner has challenged Ext.P17 Govt. Order approving the select list for the post of Superintending Engineer for the year 2001 on the ground that his name is not included therein in spite of the names of his juniors finding place therein. Ext.P18 is the order rejecting his representation against Ext.P17 on the ground that the penalty imposed on him finding him guilty of misconduct including supervisory lapses led to his exclusion from the select list. Petitioner's counsel contended that imposition of a minor penalty cannot be taken into account in assessing the merit of an officer for promotion to the higher post. There is no dispute about the fact that the post of Superintending Engineer is a selection post and the appointment to that post is not purely based on seniority but also on merit and ability. As allegations of supervisory lapse are proved against him, the petitioner cannot successfully challenge the inclusion of the names of his juniors who are having blemishless record of service. Exts.P17 and P18 are neither illegal nor arbitrary. I also notice that none_ W.A.1228/12 5 _of the juniors who have superseded him in the matter of promotion to the post of Superintending Engineer is a respondent in this O.P. For that reason also the challenge against Exts.P17 and P18 is liable to be repelled.”_ Reading of paragraphs 15 and 16 indicates so far as reduction of length of the road in question, though no imputation or memo of charge was served, the inquiry proceeded regarding said issue and ultimately, though in the final order at Ext.P2, no positive finding regarding this controversy of reduction or otherwise, in the review order Ext.P3 was noticed. Having regard to this, the learned Judge said, without giving an opportunity to the delinquent to defend and answer a particular charge, it would be a handicap to him for active participation in the departmental proceeding to defend himself against the charge which was never part of the articles of charge. In that view of the matter, the learned Judge, because of not following principles of natural justice, opined, Exts.P6 and P15 deserve to be quashed. It is pertinent to note that so far as the articles of charges at Ext.P1 with regard to shortage of material and also thickness of the road, there was a positive finding, but no penalty was imposed. It was not a case where a separate penalty was imposed. The W.A.1228/12 6 misconduct alleged, though manifest in different charges, pertains to formation of one road. Therefore, the learned Judge said, in the absence of an opportunity of being heard with regard to a particular charge, there was no justification in imposing penalty on the composite enquiry of all charges which were not part of memo of charges and also not part of memo of articles. In that view of the matter, on technical grounds Exts.P2 and P3 now referred in the present proceedings were set aside. It is also obvious that no specific direction or liberty was reserved to the department to hold enquiry from the stage where the defect was found in the departmental enquiry. Whether the absence of such direction would come in the way of second enquiry is the challenge raised before us. 3. Learned Single Judge, having regard to the earlier proceedings, opines, there was no justification on the part of the department to proceed again once Ext.P4 judgment pointed out the deficits. Therefore, he proceeded to quash Ext.P7 and further directed to disburse the entire D.C.R.G. and all terminal benefits due to the respondent-petitioner. Learned Special Government Pleader arguing for the State relies on two decisions of the Apex W.A.1228/12 7 Court in support of her contention that if earlier proceedings were terminated with the interference of the court on a technical ground, there is no bar in conducting second enquiry. Therefore, the enquiry now conducted resulting in the present penalty is justified and the learned Judge was not justified in quashing Ext.P7. It is also argued that even for proved misconduct in the earlier proceedings, no separate penalty came to be imposed, as there was a composite penalty for all the charges levelled against the delinquent and so also a charge was not part of the memo of charges. On technical grounds, the entire proceedings were set aside, therefore, according to her, the procedure followed in conducting the departmental enquiry cannot be found fault with and she sought for setting aside the judgment of the learned Single Judge by relying on two decisions of the Apex Court in **Supdt., Central Excise v. Pratap Rai** [ (1978) 3 SCC 113] and **Nand Kumar Verma v. State of Jharkhand** [(2012) 3 SCC 580]. 4. **Pratap Rai's** (supra) was a case under the Customs Act where the Assistant Collector confiscated property and imposed penalty under that enactment. This came to be challenged before W.A.1228/12 8 the appellate authority and the appellate authority vacated the stay order on the ground of failure of lower authority to follow the principles of natural justice. In that context, their Lordships held that when principles of natural justice are violated, it is virtually not leading to any final orders so far as the proceedings are concerned. Therefore, fresh proceedings are left open. According to the learned counsel for the respondent, in this particular case liberty was reserved. In other words, without prejudice to the rights of the parties, the Apex Court observed as stated above. The question is whether there should be a liberty reserved even in a case where on technical deficit or violation of principles of natural justice is found. In the absence of such indication in the orders of the court, it has reached finality. Such contention was raised in the above case. While referring to the words 'without prejudice' their Lordships proceed to quote as under: _“It is necessary for the court interpreting an order of this kind to give full and complete effect to the exact words used by the authorities and not to draw a sweeping conclusion merely from the fact that no explicit direction has been made by the appellate authority. We are unable to agree in this case_ W.A.1228/12 9 _with the High Court that as no express words were used in the order of the Appellate Collector remanding the case the Assistant Collector was not justified in commencing fresh adjudicatory proceedings against the respondent.”_ Then coming to other decision ( **Nand Kumar Verma v. State of Jharkhand)** (supra), at paragraph 26 their Lordships explained what happens if a departmental enquiry which ended in a punishment is set aside on technical grounds. Paragraph 26 reads as under: _“In our opinion, having accepted the explanations and having communicated the same to the appellant, the High Court could not have proceeded to pass the order of initiating departmental proceedings and reverting the appellant from the post of Chief Judicial Magistrate to the post of Munsif. On general principles, there can be only one enquiry in respect of a charge for a particular misconduct and that is also what the rules usually provide. If, for some technical or other good ground, procedural or otherwise, the first enquiry or punishment or exoneration is found bad in law, there is no principle that a second enquiry cannot be initiated. Therefore, when a completed enquiry proceedings is set aside by a competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charges is permissible.”_ 5. By reading these two judgments, one has to see the facts of the present case and then analyse the law laid down by W.A.1228/12 10 the Apex Court in order to come to a right conclusion. Apparently, for the charges established, no separate punishment was indicated. The ground to set aside the penalty of withholding one increment was for not framing a charge in respect of a particular misconduct, that is, reduction in the length of the road. Therefore, only on technical grounds the departmental enquiry which reached finality came to be set aside. Therefore, virtually the law declared in **Nand Kumar Verma's case** (supra) can be relied upon. Then coming to the other judgment in **Pratap Rai's case** (supra), it is a case of violation of principles of natural justice. At Ext.P4 judgment, paragraphs 15 and 16 as stated above, clearly indicate how principles of natural justice was violated in not framing a charge regarding a particular issue. In that view of the matter, we are of the opinion, the facts on record would attract the law laid down by the Apex Court in the above decision. 6. Then coming to the other aspect of the matter, when Ext.P5 fresh memo of charges were served on the respondent, he did raise objection that he cannot be tried again for the same charges. But, however, reading of the reply on charges at Ext.P6 W.A.1228/12 11 indicates that he raised objection to each and every charge mooted against him understanding what was the case proceeded against him and then participated in the departmental enquiry. Therefore, he did have an opportunity to challenge Ext.P5, at the earliest opportunity. Whether approached this court then or now does not make much difference in view of the law laid down by the Apex Court in the above two decisions relied upon by the learned Special Government Pleader. 7. In that view of the matter, we are of the opinion, there is no justification for the learned Single Judge for quashing the order at Ext.P7. Accordingly, we set aside the judgment of the learned Single Judge. The order at Ext.P7 remains as it is. The question is whether learned Single Judge proceeded with regard to the merits, that is, the details of inquiry regarding the charges proved against the respondent. As a matter of fact, Ext.P7 refers to the opinion of the Chief Engineer as well. So far as the reduction in the level of road, the opinion of the Chief Engineer is accepted and so far as other charges at Ext.P7, there is a discussion how the other charges are established. But the learned Judge did not have an opportunity to look into these aspects, W.A.1228/12 12 whether there was justification to come to a positive finding regarding the misconduct or the alleged charges levelled against the respondent. In that view of the matter, we remit back the matter to the learned Single Judge for disposal of the Writ Petition on merits. The Writ Appeal is disposed of as above. **MANJULA CHELLUR Ag. Chief Justice** **A.M.SHAFFIQUE Judge** srd W.A.1228/12 13 W.A.1228/12 14