V.S. Abdussamad v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 OP.No. 269 of 2002(F) --------------------- PETITIONER(S): --------------- V.S.ABDUSSAMAD,UPPER DIVISION TYPIST, BLOCK DEVELOPMENT OFFICER,PATTANAKKAD BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.SANKARANARAYANA IYER RESPONDENT(S): - --------------- 1. STATE OF KERALA,REPRESENTED BY ITS CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM. 2. COMMISSIONER FOR RURAL DEVELOPMENT, THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR,ALAPPUZHA. GOVERNMENT PLEADER DTI. K.J. MOHAMMED ANZAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 269/2002. -----------------------------------------------------------EXT.P1 TRUE COPY OF ORDER DT. 8-12-1997. EXT.P2 MEMO OF CHARGES DT. 26-1-1998. EXT.P3 XPLANATION TO EXT. P2. EXT.P4 WRITTEN SUBMISSION. EXT.P5 NOTICE DT. 21-11-1998. EXT.P6 ORDERR DT. 26-12-1998 EXT.P7 MEMORANDUM OF APPEAL DT. 24-2-1999. EXT.P8 ORDER DT. 2-8-2000. EXT.P9 NOTICE DT. 17-11-2000. EXT.P10 REPLY DT. 30-11-2000. EXT.P11 REVIEW PETITION DT. 23-11-2000. EXT.P12 ORDER DT. 27-4-2001. EXT.P13 NOTICE DT. 31-7-2001. EXT.P14 REPLY TO EXT. P13. EXT.P15 LETTER DT. 25-9-2001. EXT.P16 REPLY TO EXT. P15. EXT.P17 ORDER DT. 30-10-2001. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. **==> picture [255 x 21] intentionally omitted <==** **==> picture [255 x 24] intentionally omitted <==** **==> picture [102 x 12] intentionally omitted <==** The petitioner, while working as a L.D. Typist in the Block Development Office, Thycattusserry, was proceeded against in disciplinary proceedings . A notice was issued to the petitioner. He filed his explanation. After considering the matter, the District Collector, who is the disciplinary authority, passed Ext. P6 order imposing on the petitioner the punishment of censure. Petitioner's appeal was dismissed by Ext. P8 order. A revision was filed by the petitioner, which also was dismissed by Ext. P12. In the meanwhile, the petitioner was directed to show cause why the period during which the petitioner was under suspension pending disciplinary proceedings should not be treated as eligible leave. That ended in Ext. P17 order, whereby the period was treated as duty but only with 75% pay and allowances. The petitioner is challenging Exts.P.6, P8, P12 and P17 orders in this original petition. 2. The petitioner's contention is that in this case, no enquiry whatsoever was conducted to find the petitioner guilty of the alleged misconduct. The only misconduct alleged against the petitioner was that he misbehaved with the Block Panchayat President on 27-111997. He had categorically denied the charges and even taken the contention that he had not even met the Block Panchayat President on 27-11-1997 and the petitioner met the Block Panchayat President only on 20-11-1997. According to the petitioner, the requirement of conducting an enquiry is not alien to Rule 16 of Kerala Civil Services (C.C & A) Rules, 1960 although Rule 16 does not provide for such enquiry. In appropriate cases where the guilt of a delinquent can be found only on conducting an enquiry, an enquiry is a must even in a minor penalty proceedings under Rule 16, is the contention raised by the petitioner. The petitioner relies on the decision of this Court in O.P.No. 269/2002. -: 2 :- **Kunhikannan Nambiar** v. **Government of Kerala** , 2002(1) KLT 420 in support of the proposition. The petitioner therefore submits that the entire proceedings are vitiated for violation of principles of natural justice in so far as the petitioner has been found guilty of an alleged misconduct practically without any acceptable material on record. 3. No counter affidavit has been filed by the respondents in this case. However, the learned Government Pleader referred to the documents produced by the petitioner submits that the petitioner has been found guilty on the basis of cogent materials and therefore the requirement of Rule 16 for imposition of minor penalty having been fully complied with, no interference is called for in the impugned orders. 4. I have considered the rival contentions in detail. 5. In **Kunhikannan Nambiar's case** (supra), a learned Judge of this Court had considered the question as to whether the requirement of an enquiry has to be totally excluded in proceedings under Rule 16 in all cases. The learned Judge held thus in that decision: “11. As per R. 16 read with R. 11 of the Kerala Civil Services (C.C. & A.) Rules, 1960, punishment of barring of increments with cumulative effect is a minor penalty. To impose a minor penalty, the procedure prescribed under R. 16 alone need be followed. R. 16(1) of the said Rules reads: ## “ **16. Procedure for imposing minor penalties:-** (1) No order imposing any of the penalties specified in items (i) to (iv) of R. 11(1) shall be passed except after, (a) the Government servant is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given opportunity to make O.P.No. 269/2002. ## -: 3 :- any representation he may wish to make; (b) such representation, if any, is taken into consideration by the Disciplinary Authority; and (c) the Commission is consulted in cases where such consultation is necessary.” Under R.16 of the KCS (C.C & A) Rules, a formal enquiry is not a must. The procedure prescribed under R.15 for imposing major penalty contemplates a formal enquiry necessitating the examination of witnesses and production of documents with opportunity to the accused employee to cross examine witnesses and adducing his own evidence. But this does not mean that a minor penalty can be inflicted on the accused employee irrespective of the nature of the allegations and the evidence required to prove those allegations. There may arise, in minor penalty proceedings also, the necessity to adduce evidence; without such evidence the charges cannot be held to have been established against the employee. The need to adduce evidence arises in the peculiar facts and circumstances of the case, the nature of the allegations levelled against the delinquent employee and the defence pleaded in his written statement. It cannot be said as an absolute rule in all cases, where a minor penalty alone is proposed to be imposed on the delinquent employee, that the ordeal of an enquiry can be done away with. It is true that the penalty to be imposed is a relevant factor but equally important is the nature of the allegations as also the facts to be established to substantiate the charges. When charges are found on complicated facts or those involving serious allegations, it will be arbitrary to find the employee guilty, without holding an enquiry. A meaningful application of the principles of natural justice and the doctrine of reasonable opportunity to the accused employee come into play on such occasions. 12. Assuming for a moment that 70 cents of land was fraudulently or dishonestly omitted to be measured from the total extent of land on the false explanation that third persons claimed possession of that portion of the land, one fails to understand as to why the revenue authorities including the Tahsildar and the Sub Collector did not immediately arrange for an inspection of the property, re-measure it without delay and take that extent of land also into possession. What is, however, seen is that the respondents took into possession an equal extent of land belonging to the declarant from another survey number. Whether the petitioner acted bona fide or malafide, honestly or dishonestly and what were the ground realities available on the date of preparation of the sketch, mahazar etc., are matters to be proved by adducing O.P.No. 269/2002. -: 4 :- evidence and not by a mere perusal of records prepared by superior officers behind the back of the accused employee. The contention of the petitioner that the decision to impose penalty on him was taken merely on the basis of the allegations which are not based on any evidence or reliable material, cannot be rejected as untenable.” I am in respectful agreement with the findings of the learned Judge in that case. Simply because unlike in the case of imposition of major penalty stipulated in Rule 15, Rule 16 does not contemplate conduct of an enquiry mandatorily, the requirement of an enquiry is not totally excluded under Rule 16 also. Certainly, in a case where the guilt of a delinquent can be proved on the basis of documents, without conducting an enquiry the procedure under Rule 16 can be completed without an enquiry after giving the delinquent an opportunity to controvert those materials. But, a case is not beyond comprehension where even in proceedings under Rule 16, an enquiry would be necessary to comply with the principles of natural justice. For example, when the guilt has to be proved solely on the basis of oral evidence, the only way a delinquent can answer the charges would be by discrediting the statements by an appropriate course known to law. In such cases, the delinquent can do that only if the petitioner is given an opportunity to contradict the oral evidence, which is sought to be relied upon against him by cross-examining those persons whose statements are sought to be relied upon. That being so, the question as to whether an enquiry has to be conducted in proceedings under Rule 16 also depends on the facts and circumstances of each case. In this case, certainly, the guilt of the petitioner cannot be decided on the basis of any documents since the allegation is that the petitioner has misbehaved with the Block Panchayat President. In fact, in none of the documents made available to the petitioner, it is stated as to O.P.No. 269/2002. -: 5 :- what the misbehaviour was, except a bald statement that the petitioner has misbehaved with the Block Panchayat President. In none of the documents, either in the charge memo or in the allegations, it is stated as to what was the evidence in support of the allegations against the petitioner except a statement that the Project Officer, DRDA , Alappuzha has, by letter dated 3-12-1997, reported that the facts reported by the Block Panchayat President are true. However, in Ext. P6 order, the Collector relies on the statements of four witnesses. The petitioner has never been made aware that disciplinary authority intends to take into account the statements of any witnesses. The petitioner further submits that as stated by the petitioner in the appeal memorandum and the memorandum of revision petition, the petitioner has never been made aware of the statements and therefore he had no occasion to seek copies of those statements to controvert them. I am also satisfied that without informing the petitioner that the materials sought to be relied upon by the disciplinary authority against the petitioner includes statements of witnesses also, the petitioner could not have been found guilty on the basis of those statements. There is absolutely no mention about any such statement in the memo of charges or the statement of allegations. Further, when the entire findings are purely based on oral evidence, I am of opinion that the petitioner should have been given an opportunity to controvert that oral evidence by a process known to law, which can only be in an enquiry where the petitioner could have been cross examined those witnesses to disprove their statements. Therefore, I am satisfied that this is a case where the proceedings under Rule 16 call for an enquiry without which the petitioner could not have even made an attempt to prove his O.P.No. 269/2002. -: 6 :- innocence, which is a necessary requirement of the principles of natural justice. Accordingly, Exts.P6, P8, P12 and P17 are quashed. If respondents still wish to proceed further against the petitioner, they may do so after affording the petitioner a reasonable opportunity to controvert the evidence sought to be relied upon to prove the petitioner's guilt. The original petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/