Union of India & Others v. N.R. Kanakam

## **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** **TUESDAY, THE 31ST DAY OF JULY 2012/9TH SRAVANA 1934** ## **WP(C).No. 13868 of 2009 (Z)** ## **---------------------------** **PETITIONER(S):** **---------------------------** **1. UNION OF INDIA,REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,MINISTRY OF COMMUNICATIONS,DEPARTMENT OF POSTS,NEW DELHI.** **2. THE SENIOR SUPERINTENDENT OF POST OFFICES,ERNAKULAM DIVISION, KOCHI-682 011.** **3. THE DIRECTOR OF POSTAL SERVICES,CENTRAL REGION (KERALA CIRCLE),KOCHI-682 018.** **BY ADV. SRI.S.KRISHNAMOORTHY, CGC** **RESPONDENT(S):** - **--------------------------** **N.R.KANAKAM,W/O.M.B.RADHAKRISHNAN, POSTAL ASSISTANT,KAKKANAD RESIDING AT MADAPPALLIL HOUSE, KUREEKKAD.P.O,THIRUVAMKULAM, ERNAKULAM DISTRICT.** **BY ADV. SRI.T.C.GOVINDA SWAMY SRI.G.SHYAM RAJ SRIT.R.MOHANAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-06-2012, THE COURT ON 31-07-2012 DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.13868/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE O.A.NO.441/2007 FILED BY THE RESPONDENT BEFORE THE C.A.T., ERNAKULAM** - **P2 COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT** - **P3 COPY OF THE REJOINDER FILED BY THE RESPONDENT/APPLICANT** - **P4 COPY OF THE ADDL.REPLY STATEMENT FILED BY THE PETITIONERS** - **P5 COPY OF THE ORDER IN O.A.NO.441/2007 DATED 17/8/2008 OF THE C.A.T., ERNAKULAM BENCH.** ## **RESPONDENT'S EXHIBITS:** ## **NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **MANJULA CHELLUR (Ag.CJ) & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.P.C.No.13868 of 2009 ---------------------------------------Dated this the 31[st] day of July 2012 ## **J U D G M E N T** ## **SHAFFIQUE, J.** The writ petition is filed challenging the order passed by the Central Administrative Tribunal (CAT) in O.A.No.441/2007. The respondents in the O.A are the petitioners. The applicant in the O.A is the respondent who challenged the proceedings initiated against him in pursuance of Annexure A1 charge sheet and Annexure A2 order passed by the revisional authority directing further enquiry from the stage of issue of fresh charge sheet. 2. The facts involved in the application disclose that the applicant, while working as Postal Assistant at Vyttila, was issued with the memorandum of charges under Rule 14 of the CCS (CCA) Rules 1965 (hereinafter referred as 'the Rules') on certain allegations of misconduct and after an enquiry it was found that there were some latches on the part of the applicant in relation to the charges leveled against him and a penalty was W.P.C.No.13868/2009 2 imposed reducing his pay by one stage from Rs.5,000/- to Rs.4,900/- for a period of six months from 01/05/2006 without any cumulative effect. Annexure A3 is the said order. This is followed by a corrigendum by which the earlier order was clarified reducing the salary from Rs.5,200/- to Rs.5,100/-. 3. While so, the petitioner was served with Annexure A1 memo stating that by virtue of power conferred under Rule 29(1) (v) of the Rules it was proposed to remit the case to the Senior Superintendent of Post Offices, Ernakulam Division to make further enquiry from the stage of issue of fresh charge sheet. 4. According to the applicant, Annexures A1 and A2 are ultra vires Rule 29 of the said Rules and there is no provision to remit the case to the disciplinary authority to proceed further from the stage of issuance of fresh charge memo. It was the case of the applicant that once an enquiry had been conducted and a penalty imposed, a fresh enquiry in respect of fresh charges was not contemplated. 5. The Tribunal, after having considered the case on merits, found that though there is power for the appellate authority under Rule 29(1) (v) to remit the case for further W.P.C.No.13868/2009 3 enquiry, the same cannot be stretched to mean issuance of a new charge sheet. In that view of the matter, the Tribunal quashed and set aside Annexure A2 order dated 30/05/2007, but giving liberty to the 3[rd] respondent to issue a fresh order remitting the matter to the Disciplinary Authority to resume the proceedings from any stage after the issuance of the charge sheet. 6. This order is impugned by the petitioners. It is the contention of the learned Standing Counsel appearing for the petitioners that Rule 29(1) of the Rules enables the appellate authority to remit the matter to the disciplinary authority which can include issuance of new charge sheet as well when it is found that the original charge sheet itself was defective. 7. On the other hand, learned counsel for the respondent contended that there is no provision in the Rule to order a de novo enquiry after wiping out the enquiry already conducted. It is their contention that when the respondent was already imposed with a punishment, it is not open for the revisional or appellate authority to have directed fresh framing of charges in respect of the very same alleged misconduct. The learned counsel also placed reliance on the judgment of the Supreme W.P.C.No.13868/2009 4 Court in **Nanda Kumar Verma v. State of Jharkhand and Others** [(2012) 1 Supreme Court Cases (L&S) 663] and judgment of this Court in **Kesavan Namboodiri v. State of Kerala** [1982 KLT 512] and **Baby v. State of Kerala** [1999(1) KLT 676]. 8. The question that arises for consideration would be whether by virtue of the Rules the revisional authority can direct a fresh enquiry to be conducted in the matter after framing fresh charges. As per Rule 29 revisional powers can be exercised for the following purposes: (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit: 9. We are concerned with Clauses (c) and (d) which gives the revisional authority the power to remit the case to the W.P.C.No.13868/2009 5 authority which made the order or any other authority directing the authority to make such further enquiry as it may consider proper in the circumstances of the case and Clause (d) enables the authority to pass such other orders as it may deem fit. 10. In this case, the factual circumstances as evident from Annexure A2 would show that while setting aside the punishment against the concerned employee, the matter is remitted back to the disciplinary authority for further enquiry from the stage of issue of fresh charge sheet. When this decision was taken by the revisional authority it is found that : “The articles of charges I, II and III framed against the CO was examined in the light of the misconduct or misbehaviour that came to notice on perusal of the records of inquiry and other connected documents and it is found that the Disciplinary Authority had failed to draw up the substance of the imputations or misconduct or misbehaviour of the CO to definite and distinct articles of charges. The articles of charges I, II and III were therefore found to be defective. Interest of justice will not be served if the penalty imposed on the CO on culmination of inquiry held on a defective charge sheet is not W.P.C.No.13868/2009 6 set aside. At the same time an official, who committed offences of such a severe nature cannot be let off scot free. It was in these circumstances the undersigned proposed to remit the case to the Senior Superintendent of Post Office, Ernakulam Division, Kochi-68211 to make further enquiry from the stage of issue of fresh charge sheet.” 11. It is also found by the revisional authority that it is bound to see that the disciplinary proceedings initiated against the Government servant was processed and finalised according to Rules and procedures in force and in view of the fact that the charge sheet itself was defective, all proceedings based on the defective charge sheet were liable to be set aside. It is in the said circumstances that the revisional authority, in exercise of power under Rule 29(1), remitted the case to the authority which made the order. 12. Therefore this is not a case where a de novo enquiry is being done in respect of certain acts which are complained of. This is a case in which the very charge sheet issued against the employee concerned was defective which is taken note of by the W.P.C.No.13868/2009 7 revisional authority. The only point that requires to be considered is whether Rule 29(1)(vi)(c) and 29(1)(vi)(d) gives such a power to the revisional authority. We are of the view that sub Rules (c) and (d) give ample power for the revisional authority to pass any order while remitting the matter back to the disciplinary authority. The Rule does not limit the power of the authority in any manner to say that an enquiry should be conducted only from the stage of issuance of the charge sheet. When it is brought to the notice of the revisional authority that the charge sheet is defective, it is open for the revisional authority to direct the disciplinary authority to frame proper charges and then conduct fresh enquiry. An Officer of the Government should not be permitted to escape the Rule of Law merely for the reason that the charges leveled against him happened to be defective. When the revisional authority has, after considering the material and evidence on record, come to a finding that there was defect in the charges issued, it is open for the said authority to pass Annexure A2 order and for that reason Annexure A1 is in accordance with law. W.P.C.No.13868/2009 8 13. Now coming to the judgments relied upon by the learned counsel for the respondent, it is seen that in **Kesavan Namboodiri's** case (Supra) what was considered was whether the Director of Public Instruction has jurisdiction to completely wipe out the enquiry conducted by the Regional Deputy Director of Education and directed a de novo enquiry by another Officer. It is said that he has no jurisdiction to do so, based on the judgment of the Supreme Court in **K.R.Deb V. The Collector of Central Excise, Shillong [AIR 1971 SC 1447].** In the Supreme Court judgment, Rule 15 of the CCS(CCA) Rules 1957 was being considered in which it is stated that in Rule 15 there is no provision of completely setting aside previous enquiries on the ground that the report of the Enquiry Officer or Officer does not appeal to the disciplinary authority. We do not think that the proposition in the above case applies to the factual circumstances involved in the present case. This is a case where substantially wide power had been granted to the revisional authority and it is found by the revisional authority that there was defect in the charges made against the delinquent officer which goes to the root of the matter and therefore a direction is W.P.C.No.13868/2009 9 issued to conduct an enquiry after framing fresh charges which is not prohibited by the Rules. As such, we do not think that the above judgments have any application to the facts on hand. 14. In **Baby'** s case (Supra) again the question was whether direction for conducting a de novo oral enquiry against the petitioner could be done in the matter. That was a case where the disciplinary authority directed to conduct a de novo enquiry in which later a punishment had been imposed on the delinquent. Relying on the judgment in **Kesavan Namboodiri** 's case (Supra) the learned Single Judge of this Court had set aside the direction to conduct fresh enquiry in the matter. The consequential orders were also quashed. As already indicated, the factual circumstances in the present case is different from what is stated in the above judgment and therefore this judgment also does not apply. 15. In **Nandakumar Verma** (Supra), the Supreme Court held in paragraphs 25 and 26 as follows: “25. The charge memo was replied to by the appellant and in that he had specifically contended that the Standing Committee of the High Court, after accepting the explanation, had W.P.C.No.13868/2009 10 informed him that his explanation is accepted and all the allegations made against him are closed. This aspect of the matter, though noticed by the inquiry officer, he does not give any finding. He, however, has observed that the charges alleged against the appellant are proved. Based on this, the High Court has passed the order of reversion whereby the appellant was reverted from the post of Chief Judicial Magistrate to that of Munsif and the same was notified by the State Government also. **26.** 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 W.P.C.No.13868/2009 11 competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charges is permissible.” 16. Therefore it is a question of fact as to whether a fresh enquiry is to be conducted in the matter relating to the same allegations. In the present case, the power is there for directing disciplinary authority to conduct a fresh enquiry in the matter. And when it is brought to the notice of the revisional authority regarding the defective charge apparently, such charge requires to be corrected and an enquiry has to follow. It is not a case where there was a proper charge, an enquiry followed, a punishment imposed and then a de novo enquiry has been conducted in the matter. The entire enquiry conducted earlier was defective on account of a defective charge. 17. That being the situation, even going by the exceptional circumstance mentioned in **Nandakumar Verma's** case (Supra) i.e “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 “ we are of the opinion that the Tribunal went wrong in setting aside Annexure A2 order and W.P.C.No.13868/2009 12 directing the enquiry to be continued from the stage of issuance of charges. Hence we set aside the impugned order of Central Administrative Tribunal (CAT) in O.A.No.441/2007 dismissing the application filed by the respondent. It is open for the authorities to proceed in accordance with Annexures A1 and A2, in accordance with law. The proceedings against the respondent may be completed as early as possible and not later than one year from the date of receipt of a copy of this judgment. Writ petition is therefore allowed as above. (sd/-) **(MANJULA CHELLUR, ACTING CHIEF JUSTICE)** (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.13868/2009 13 W.P.C.No.13868/2009 14