W.A.No.1708 of 2015 (WP(C).5708/2014)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 5TH DAY OF JANUARY 2016/15TH POUSHA, 1937 WA.No. 1708 of 2015 () IN WP(C).5708/2014 ------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 5708/2014 of HIGH COURT OF KERALA DATED APPELLANTS/RESPONDENTS 1,3 TO 6: ------------------------------- 1. THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-23. 2. THE EXECUTIVE DIRECTOR (VIGILANCE) KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-23. 3. THE EXECUTIVE DIRECTOR (ADMINISTRATION) KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-23. 4. THE ASSITANT TRANSPORT OFFICER - THE KERALA STATE ROAD TRANSPORT CORPORATION ANGAMALY-683573. BY ADV. SRI.P.C.CHACKO(PARATHANAM) RESPONDENTS/PETITIONER/2ND RESPONDENT: ------------------------------------- 1. P.S. SATYAN PANTHIYAKALATHIL HOUSE, PANAMBUKADU, VALLARPADAM P.O. ERNAKULAM DISTRICT. 2. KERALA STATE ROAD TRANSPORT CORPORATION, APPELLATE TRIBUNAL, THIRUVANANTHAPURAM. R1 BY ADV. SRI.K.P.JUSTINE (KARIPAT) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **ASHOK BHUSHAN, CJ “CR” & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.1708 of 2015 ---------------------------------------Dated this the 5[th] day of January 2016 ## **J U D G M E N T** ## **Ashok Bhushan, CJ** Heard Sri.P.C.Chacko, learned Standing Counsel for the appellant and the learned counsel for the respondent. 2. This writ appeal has been filed against the judgment dated 20/03/2015 in W.P.C.No.5708 of 2014. The appellants were respondents 1, 3, 4 and 5 in the writ petition. The brief facts giving rise to this writ appeal are: The writ petitioner was working as Conductor in the Kerala State Road Transport Corporation (hereinafter referred to as 'the Corporation'). A disciplinary enquiry was initiated against the petitioner and the petitioner was placed under suspension by order dated 19/02/2001. An enquiry report was submitted. Thereafter, a show cause notice was also given to the petitioner. Disciplinary Authority considered the enquiry report, the reply of the petitioner and passed an order dated 25/08/2008 punishing W.A.No.1708/2015 2 the petitioner with barring of increments for three years with cumulative effect. Aggrieved by the order of punishment on 25/08/2008, petitioner filed an appeal before the Chairman and Managing Director of the Corporation. The Chairman and Managing Director of the Corporation, while considering the appeal, issued a show cause notice dated 04/02/2009 for enhancement of the punishment. The appellate authority took the view that the punishment awarded to the petitioner was not commensurate with the proven delinquency and the Disciplinary Authority has shown much leniency in awarding the punishment. The appellate authority proposed the punishment of compulsory retirement by enhancing the punishment. The show cause notice was replied by the petitioner by his reply dated 03/03/2009 (Ext.P6). The appellate authority, after considering the reply of the petitioner, passed an order dated 31/03/2009 by enhancing the punishment as compulsorily retirement from service. The period of suspension was treated as leave period. The revision petition preferred by the petitioner before the Appellate Tribunal was rejected by Ext.P9 order dated 05/10/2013. Aggrieved by the said order passed by the Appellate Tribunal, the writ petition was W.A.No.1708/2015 3 filed by the petitioner praying for the following reliefs: _“i) Call for the records of the case._ _ii) issue a writ of certiorari and to quash Exts.P4, P7 and P9 documents._ _Iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to reinstate the petitioner to duty immediately._ _iv) Declare that Exts.P4, P7 and P9 orders are illegal._ _vi) issue such other writ, order or direction as this Honourable Court may deem fit and proper to grant in the facts and circumstances of this case.”_ 3. The learned Single Judge observed that the punishment could not have been enhanced in an appeal filed by the petitioner. The learned Single Judge further observed that there is no averment in the counter affidavit by the Corporation that any show cause notice was issued for enhancement of the punishment nor any such show cause notice was produced. After making the above observation, the learned Single Judge has quashed Exts.P7 and P9 orders. The appellants, aggrieved by the said judgment, has come up in the appeal. W.A.No.1708/2015 4 4. The learned counsel for the appellants, in support of the appeal, contended that the service conditions of the writ petitioner are governed by Kerala Civil Service (Classification and Control Appeals Rules) 1960 (hereinafter referred to as 'the Rules') and the Rules clearly empower the authority to enhance the punishment on an appeal filed by an employee. It is further submitted that after the appeal was filed by the petitioner, show cause notice, Ext.P5 dated 04/02/2004 was issued, to which, reply was also submitted by the petitioner at Ext.P6. Hence the observation of the learned Single Judge that no show cause notice was given to the petitioner, is not correct. It is further submitted that the Rule, having specifically empowered the appellate authority to enhance the punishment, there is no lack of jurisdiction in the appellate authority. It is further submitted that the charges which were proved against the petitioner is the charge of misappropriation. Hence the punishment awarded by the Disciplinary Authority was inadequate for the Appellate Authority to rightly enhance the punishment. 5. Learned counsel for the writ petitioner, opposing the submission of the learned counsel for the appellants contends W.A.No.1708/2015 5 that, in an appeal filed by the writ petitioner, punishment could not be enhanced. It is also submitted that the Corporation did not file any appeal against the order of the Disciplinary Authority. Hence the Appellate Authority has no jurisdiction to enhance punishment. It is further submitted that the disciplinary proceedings against the petitioner were closed by imposing a punishment of stoppage of three increments, which was sufficient in the facts and circumstances of the case. The learned counsel for the writ petitioner further contended that even the charges were not proved against the petitioner. 6. We have considered the submission of the learned counsel for the parties and perused the records. 7. For appreciating the contentions raised by the parties, it is relevant to refer to the statutory rules governing the service conditions. The Rules admittedly governs the service condition of the petitioner. Rule 11 enumerates the nature of penalties which, for good and sufficient reasons, can be imposed on a Government servant. Withholding of increments and compulsory retirement are included in the penalties which can be imposed under Rule 11. Against the order imposing punishment, an appeal is W.A.No.1708/2015 6 provided under Rule 23. Rule 31 deals with consideration of appeals. Rule 31(2) which is relevant for the present case is as follows: _“_ _**31(2)** : In the case of an appeal against an order imposing any of the penalties specified in rule 11(1) the appellant authority shall consider,-_ _(a) whether the facts on which the order was based have been established._ _(b) whether the facts established afford sufficient ground for taking action;_ _(c) whether the procedure prescribed in these rules has been complied with and if not whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice;_ _(d) whether the findings are justified; and_ _(e) whether the penalty imposed is excessive, adequate or inadequate;_ _and after consultation with the Commission, if such consultation is necessary in the case, pass orders,-_ _(i) setting aside, reducing, confirming or enhancing the penalty; or_ _(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the_ W.A.No.1708/2015 7 _circumstances of the case:_ _Provided that,_ _(i) the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose;_ _(ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty; and_ _(iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in items (v) to (ix) of rule 11(1) and an inquiry under rule 15 had not already been held in the case, the appellate authority shall, subject to the provisions of rule 18, itself hold such inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the appellant an opportunity of making any representation which he may wish to make against such penalty, pass such orders as it may deem fit.”_ 8. A perusal of Rule 31(2) indicates that the appellate authority while considering an appeal has to consider whether the W.A.No.1708/2015 8 penalty imposed is excessive, adequate or inadequate. Further, the appellate authority is specifically empowered to pass an order, setting aside, reducing, confirming or enhancing the penalty. The proviso to Rule 31(2), however, require that no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity for making any representation and further the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose. In the present case, the Disciplinary Authority as well as the Appellate Authority was fully competent to impose the punishment of compulsory retirement and further, before enhancing the punishment, show cause notice, Ext.P5 was issued, which was duly replied by the petitioner. The Rules thus clearly empowers the appellate authority to enhance the punishment on an appeal filed by the petitioner against the order imposing punishment of barring three increments with cumulative effect. 9. The learned counsel for the appellants has relied upon the judgment of the Apex Court in **R.M.Gurjar and Another v. High Court of Gujarat and Others** _[(1992) 4 SCC 10]_ . In the W.A.No.1708/2015 9 above case, the District Judge had imposed a punishment of withholding future promotion of the appellants, who were working as Junior Clerk in the civil courts. The High Court, in exercise of power under Rule 23 of Gujarat Civil Services (Discipline & Appeal) Rules, 1971 had enhanced the penalty and imposed a punishment of removal from service. A writ petition was filed by the appellants in the High Court which was referred to a Full Bench. One of the questions referred was whether the High Court can exercise the power under Article 235 of the Constitution of India with regard to ministerial staff also. The Apex Court has, further, referred to Gujarat Civil Services (Discipline & Appeal) Rules, 1971 in paragraph 5. Rule 21 which was quoted in paragraph 5 of the judgment contains the power of the appellate authority. It is useful to quote paragraph 5 of the judgment to the following effect: _“_ _**5.** Rules 7, 18, 21 and 23 of the Rules are as under: “7. Disciplinary Authority.— (1) * * *_ _(2) * * *_ _(3) Without prejudice to the provisions of sub-rules (1) and (2), Heads of Departments and Heads of Offices may impose any of the penalties mentioned_ W.A.No.1708/2015 10 _in Rule 6 upon any Government servant of subordinate or inferior service serving under them whom they have power to appoint. (4) * * *_ _18. Orders against which appeal lies.— (1) Subject to the provisions of Rule 22, a Government servant may prefer an appeal against all or any of the following orders, namely:—_ _(i) an order of suspension made or deemed to have been made under Rule 5._ _(ii) an order imposing any of the penalties specified in Rule 6 whether made by the Disciplinary Authority or by any appellate or reviewing authority._ _(iii) an order enhancing any penalty, imposed under Rule 6._ _(iv) * * * (a) to (c) * * *_ _(d) has the effect of his non-promotion to a higher post, or_ _* * *_ _(2) An appeal referred to in sub-rule (1) shall lie to an officer immediately superior to the officer who made the order:_ _* * *_ _21. Consideration of appeals.— (1) * * *_ W.A.No.1708/2015 11 _(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 6, or enhancing any penalty imposed under the said rule, the appellate authority shall consider—_ _* * *_ _(d) whether the penalty imposed is excessive, adequate or inadequate, and, after consultation with the Commission, if such consultation is necessary in the case, pass orders—_ _(i) setting aside, reducing, confirming or enhancing the penalty, or_ _(ii) * * * Provided that—_ _(i) * * *_ _(ii) no order for enhancing the penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty, and * * *_ _23. Review of orders in disciplinary cases.— The authority to which an appeal against an order imposing any of the penalties specified in Rule 6 lies may, of its own motion or otherwise, call for the record of any proceeding under these Rules and review any order passed in such a case and, may, after consultation with the Commission where such_ W.A.No.1708/2015 12 _consultation is necessary, pass such order as it deems fit as if the Government servant had preferred an appeal against such order:_ _Provided that no action under this Rule shall be taken after the expiry of a period of more than six months from the date of such order.”_ The Apex Court, referring to the Rules, held that the High Court has rightly enhanced the punishment in exercise of the power under Rule 23. Following was observed in paragraph 6: _**“6.** The District Judge, being the Head of Office and the appointing authority of the appellants, was the disciplinary authority under Rule 7(3) of the Rules. The District Judge imposed the punishment of stoppage of promotion on permanent basis. Reading Rules 18(1) and 18(2) of the Rules together it is obvious that an order imposing the penalty of stoppage of promotion is appealable and the appeal lies before an officer immediately superior to the officer who made the order. In this case the order having been made by the District Judge, the appeal would lie to an officer/authority immediately superior to the District Judge. The District Judge is under the administrative control of the High Court. The nature and extent of control which vests in the High Court under Article 235 of the Constitution of India has_ W.A.No.1708/2015 13 _been authoritatively determined by this Court in State of W.B. v. Nripendra Nath Bagchi. Therefore, undisputably, the High Court is the immediate superior authority to the District Judge and the appeal against the order of the District Judge in this case would lie to the High Court. Rule 23 of the Rules empowers the appellate authority to exercise the power of review. It is, thus, clear on the plain reading of the Rules that the High Court being the appellate authority had the power to review the order of the District Judge. Admittedly, the High Court passed the order enhancing the punishment in exercise of its powers under Rule 23 of the Rules. Therefore, we hold that the High Court was within its jurisdiction on the administrative side to enhance the punishment of the appellants in exercise of its powers under Rule 23 of the Rules.”_ 10. The aforesaid judgment of the Apex Court fully supports the submission of the learned counsel for the appellants that the appellate authority could have enhanced the punishment exercising the power under Rule 31. 11. The learned counsel for the appellants has also relied upon another judgment of the Supreme Court in **Uttar Pradesh State Road Transport Corporation v. Nanhe Lal Kushwaha** W.A.No.1708/2015 14 _[(2009) 8 SCC 772]_ , wherein, while deciding the case of an employee of the Road Transport Corporation, following was laid down in paragraph 10: _“_ _**10.** In Hoti Lal this Court opined: (SCC p. 613, para 9)_ _“9. … It is the responsibility of the bus conductors to collect the correct fare from the passengers and deposit the same with the Corporation. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare.”_ _The learned Judges held: (Hoti Lal case, SCC pp. 613-14, para 10)_ _“10. It needs to be emphasised that the court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court’s order would go to show, no reasons whatsoever have been indicated as to_ W.A.No.1708/2015 15 _why the punishment was considered disproportionate. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. [See Alexander Machinery (Dudley) Ltd. v. Crabtree.] A mere statement that it is disproportionate would not suffice. A party appearing before a court, as to what it is that the court is addressing its mind. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper.”_ _The High Court, in our opinion, committed the same_ W.A.No.1708/2015 16 _error which had been pointed out in the aforesaid decision.”_ 12. In the present case, the Disciplinary Authority himself has found the charges proved and imposed the punishment of barring three increments with cumulative effect. The Appellate Authority was well within its statutory power while enhancing the punishment, in facts and the materials on record, which has been elaborately referred in the show cause notice as well as in the order passed by the Appellate Authority. The Appellate Authority has made the following observations while deciding the appeal. _“I have once again clearly evaluated the case in a larger perspective. The corrections in journey bills were seen made only in higher denomination of combination tickets having face value Rs.40/- and above and hence the amount thus pocketed would be very huge. The manipulation made by him in journey records can hardly be identified at a glance, which showed his skill in forgery. I am of the ardent view that if such a fraudulent conductor is allowed to continue in service, the revenue due to Corporation will be siphoned out considerably. Such elements need extreme punishment. I am conscious and mindful regarding the proportion between offences_ W.A.No.1708/2015 17 _committed and the penalty imposed. An undeserved indulgence or liberal attitude in not awarding adequate punishment in such case would amount to allowing or even encouraging potential offenders. I do not find any mitigating ground to reconsider the proposed punishment. Hence I do confirm the proposed punishment. In the result, I order that Sri.P.S.Sathyan, Conductor is compulsorily retired from the service of the Corporation with immediate effect. The order of Disciplinary Authority read as paper (1) above is modified and the punishment enhanced to the above effect. The period of suspension is treated as leave eligible. The appeal petition is disposed of accordingly.”_ 13. We are thus of the opinion that no error was committed by the Appellate Authority in enhancing the punishment. The learned Single Judge ought not to have set aside the order of the Appellate Authority. The learned Single Judge had observed in paragraph 3 of the judgment that it is not the case of the Corporation that any show cause notice was served on the petitioner to enhance the punishment. However, in the writ petition itself, the writ petitioner has annexed a copy of the show cause notice, Ext.P5 dated 04/02/2009, to which reply W.A.No.1708/2015 18 was also submitted by the petitioner. Thus, it cannot be said that no show cause notice was issued. Learned counsel for the writ petitioner, further submits that even the benefits which flow from the punishment order passed by the Appellate Authority have not yet been given. Writ petitioner has compulsorily retired from service on 31/03/2009. It was noticed by the learned Single Judge that the petitioner had attained the age of superannuation on 30/09/2014. We uphold the order of the Appellate Authority that the writ petitioner stands compulsorily retired on 31/03/2009 and shall be entitled for the benefits which flow from compulsory retirement order. 14. Learned counsel for the Corporation submits that the entire benefits flow from the compulsory retirement order shall be paid to the writ petitioner within a period of two months. In the result, - (i) The writ appeal is allowed. (ii) The judgment of the learned Single Judge is set aside and the writ petition is dismissed. Iii) We, however, direct the appellants to ensure the payment of entire benefits flowing from the order dated W.A.No.1708/2015 19 31/03/2009 within a period of two months from the date of receipt of a copy of this judgment. (sd/-) **(ASHOK BHUSHAN, CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** True Copy PA to Judge jsr/06/01/2016