The Secretary to Government, Public Works & Transport (F) Department, Government of Kerala, Thiruvananthapuram; The Chief Engineer, Administration, Public Works Department, Thiruvananthapuram; State of Kerala represented by the Secretary to Government, Public Works & Transport Department, Government of Kerala v. S.K. Omanakuttan Nair and Addl.R2 to Addl.R6

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937** ## **WA.No. 1430 of 2010 ( )** **-----------------------------------(AGAINST THE JUDGMENT IN OP.NO. 27172/2001 DATED 01-06-2010) --------------------** ## **APPELLANT(S)/RESPONDENTS 1 TO 3:** **--------------------------------------------------------** **1. THE SECRETARY TO GOVERNMENT, PUBLIC WORKS & TRANSPORT (F) DEPARTMENT,** **GOVERNMENT 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, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** ## **BY SPL. GOVERNMENT PLEADER SMT. GIRIJA GOPAL** ## **RESPONDENT(S)/PETITIONER:** **------------------------------------------------** ***S.K.OMANAKUTTAN NAIR, SANTHI BHAVAN, SOUTH P.O., KOTTAYAM DISTRICT. PIN-686 039. (DECEASED)** ## ***ADDL.R2 TO R6 IMPLEADED** ***ADDL.R2: V.S.GIRIJA DEVI, S/O.S.K.OMANAKUTTAN NAIR, SANTHI BHAVAN, MANJOOR SOUTH, KOTTAYAM, PIN-686 603 *ADDL.R3: LAKSHMY.O., D/O. S.K.OMANAKUTTAN NAIR, SANTHI BHAVAN, MANJOOR SOUTH, KOTTAYAM, PIN-686 603** ***ADDL.R4: SHANKER.O., S/O. S.K.OMANAKUTTAN NAIR, SANTHI BHAVAN, MANJOOR SOUTH, KOTTAYAM, PIN-686 603** **2/-** **sts** **-2-** ## **W.A.NO.1430/2010** ***ADDL.R5: PARVATHY.P.O., D/O. S.K.OMANAKUTTAN NAIR, SANTHI BHAVAN, MANJOOR SOUTH, KOTTAYAM, PIN-686 603** ***ADDL.R6: GAYATHRI.O., D/O. S.K.OMANAKUTTAN NAIR, SANTHI BHAVAN, MANJOOR SOUTH, KOTTAYAM, PIN-686 603** ***ADDL.R2 TO R6 IMPLEADED AS PER ORDER DATED 16/12/11 IN IA.NO.938/2011 IN WA.NO.1430/2010.** **ADDL.2 TO R6 BY ADVS. SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **ASHOK BHUSHAN, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.1430 of 2010 ---------------------------------------- Dated this the 26[th] day of February 2016 ## **J U D G M E N T** ## **Ashok Bhushan, CJ** Heard learned counsel for the appellant. 2. This writ appeal has been filed against the judgment dated 01/06/2010 in O.P.No.27172/2001, by which judgment, the original petition filed by the 1[st] respondent who is now represented by his legal heirs was allowed. 1[st] respondent was appointed as Lower Division Clerk (LDC) in the Public Works Department in the year 1971. On account of unauthorised absence, he was dismissed from service as per order dated 18/01/1985 issued by the Superintending Engineer. Petitioner represented to the Government and the Government by order dated 02/03/1996, had set aside the order of dismissal on the ground that the Superintending Engineer was not competent to impose on the petitioner the major punishment of removal from service, and hence directed for initiating fresh disciplinary action against the petitioner. Proceedings were initiated, charge memo W.A.No.1430/2010 2 was issued, to which petitioner had replied. Without holding any formal enquiry, an order of dismissal, Ext.P4 was issued on 26/06/1997. Aggrieved by the same, petitioner filed Ext.P5 review petition and by Ext.P6 order dated 17/04/2011, the review petition was dismissed. Challenging Exts.P4 and P6 orders, the original petition was filed by the petitioner. 3. Ext.P4 order was vitiated on the ground that no enquiry was conducted as required by Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1950 (hereinafter referred to as 'the Rules'). The writ petition was allowed setting aside Ext.P4 order holding that no formal enquiry in terms of Rule 15 of the Rules was held. The learned Single Judge, however, directed the respondents to reckon the period from 15/09/1981 till the writ petitioner attained the age of superannuation as the period spent on duty. However, it was held that the petitioner is not entitled for any payment of salary and other allowances during the said period. It is useful to extract paragraph 4 of the judgment. _“4. The respondents have virtually conceded the fact that before Ext.P4 order was_ W.A.No.1430/2010 3 _passed no formal enquiry in terms of rule 15 of the 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.”_ 4. The learned counsel for the appellant, challenging the order of the learned Single Judge, contends that the words “as far as may be” occurring in Rule 15(1) clearly means that it was not obligatory on the part of the Enquiring Officer to conduct an enquiry and the respondents, being not satisfied with the W.A.No.1430/2010 4 explanation, could have passed the order. We are of the view that the said submission was rightly rejected by the learned Single Judge, relying on the judgment of this Court in **V.O.Koruthu v. KSEB** _[1971 KHC 167]_ wherein Rule 15 of the Rules have been interpreted by the Division Bench in paragraph 7. _“7. The fact that the delinquent officer did not in his written statement claim an opportunity for personal hearing would not dispense with the necessity for an enquiry which is enjoined by Rule l5. In Jagdish Prasad v. State of Madhya Bharat (AIR. 1961 SC. 1070) the Supreme Court said:_ _“The departmental enquiry is not an empty formality; it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence. In the absence of any such enquiry it would not be fair to strain facts against the appellant and to hold that in view of the admissions made by him the enquiry would have served no useful purpose.”_ _That was a case where the High Court thought that the delinquent officer has practically admitted the charges. The Supreme Court said that unless the admission is unambiguous and unconditional, an enquiry cannot be dispensed with. As the delinquent_ W.A.No.1430/2010 5 _officer here did not plead guilty to the charges it was absolutely essential that there must have been a formal enquiry in the presence of the ‘delinquent. We find it difficult to subscribe to the opinion of the learned Judge that the words -as far as may be’ in R.15 (1) do not make it obligatory upon a disciplinary authority to conduct an enquiry when it is proposed to impose a major penalty where no oral evidence is attempted to be aduced on behalf of the disciplinary authority. Those words only indicate that minor or immaterial deviations from the provisions of the rule might not affect the validity of the proceedings. Those words do not mean that an enquiring 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. As already stated the records and documents must be introduced in the evidence in the enquiry in the presence of the delinquent. The object of appointing a presenting officer is to present the case with the materials to prove it. The delinquent officer is entitled to have his case presented with the assistance of any other government servant or under certain circumstances with the assistance of a legal practitioner. In this case the disciplinary authority had directed the Chief Engineer to conduct an enquiry. We think that even if no oral evidence was necessary to prove the charges, the delinquent officer was entitled to have an_ W.A.No.1430/2010 6 _opportunity to explain his case to the enquiring officer with reference to the records with the assistance of another government servant and if necessary to adduce either oral or documentary evidence in rebuttal. We have also no hesitation to find that the appellant was prejudiced by the absence of an enquiry."_ 5. In the present case also, the delinquent had denied the charges by giving an explanation. Present is not a case where the delinquent had admitted the charges so as to dispense with holding of an enquiry. We thus are of the view that non-holding of the enquiry vitiating the statutory provision, the learned Single Judge had rightly allowed the writ petition and passed an order adjusting equities between the parties. We thus do not find any merit in the writ appeal and hence the writ appeal is dismissed. (sd/-) **(ASHOK BHUSHAN, CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** True Copy PA to Judge jsr/26/02/16