W.A.No.2774 of 2009

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 4TH DAY OF SEPTEMBER 2013/13TH BHADRA, 1935 ## **W.A.No.2774 of 2009** -------------------------------------- AGAINST THE JUDGMENT IN O.P.No.14948/1997-D, DATED 22-09-2009, OF HIGH COURT OF KERALA. ------------------- ## **APPELLANTS/** RESPONDENTS IN THE WP(C):- ------------------------------------------------------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO THE MINISTRY OF SHIPPING AND TRANSPORT, NEW DELHI. 2. THE DIRECTOR GENERAL, BORDER ROADS, KASHMIR HOUSE, DHQ P.O., NEW DELHI - 110 011. 3. THE COMMANDER SE (CIV) 36 BORDER TASKS FORCE, C/O.99 APO. BY CENTRAL GOVERNMENT COUNSEL SRI.T.SANJAY. ## **RESPONDENTS/** PETITIONERS IN THE WP(C):- ---------------------------------------------------------------------------- 1. K.R.VASANTHY, W/O.LATE K.R.JAYADEVAN, ERAPLAVILA VEEDU, KODUVAZHANNOOR, CHIRAYINKEESHU, THIRUVANANTHAPURAM. 2. JAYASEELA, D/O.LATE K.R.JAYADEVAN, ADITHYA BHAVAN, VENJARAMOODU. 3. JAYAKUMAR, S/O.LATE K.R.JAYADEVAN, ERAPLYAVILA VEEDU, KODUVAZHANNOOR, CHIRAYINKEEZHU, THIRUVANANTHAPURAM. 4. JAYA PRABHA, D/O.LATE K.R.JAYADEVAN, ANANDA BHAVAN, KODUVAZHANNOOR, CHIRAYINKEEZHU, THIRUVANANTHAPURAM. R1 TO R4 BY ADV. SRI.P.RAMAKRISHNAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Manjula Chellur, C.J. & K.Vinod Chandran, J. ---------------------------------W.A.No.2774 of 2009 ---------------------------------Dated this, the 4[th] day of September, 2013 ## JUDGMENT ## K.Vinod Chandran,J. The appeal is filed by the official respondents in the writ petition against the judgment of the learned Single Judge, declaring the deceased writ petitioner as deemed to have continued in service till his date of retirement or till his death, whichever is earlier; and also declaring the entitlement of the legal heirs to the terminal benefits due to the deceased. The legal heirs were also found entitled to the family pension. The learned Single Judge also directed that the monetary benefits, if paid to the legal heirs of the deceased, would be recovered from the person who passed Exhibit P8 order, since after repeated directions from this Court, no speaking order was passed. 2. Sri.T.Sanjay, learned Central Government Counsel, would essentially raise two legal issues to assail the judgment of the learned Single Judge. The first challenge is based on the contention that there cannot be any dispute that the writ petitioner was found **- 2 -** W.A.No.2774 of 2009 guilty of one of the charges levelled against him, i.e., absenting from duty and after due Court Martial, he was convicted for 90 days in civil prison. This necessarily would entail consequences as per the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as “Appeal Rules”). It is also the contention that if at all this Court finds any procedural irregularity or an illegality; such as the order not having stated any reasons, as in the instant case, the correct procedure would be to remand it to the competent authority for _de novo_ consideration. In the instant case, the learned Single Judge has overstepped the jurisdiction in so far as setting aside the order of the disciplinary authority and directing the payment of full wages to the dismissed employee, deeming him to have continued in service till retirement or till his death; whichever is earlier. 3. Sri.P.Ramakrishnan, learned counsel appearing for the legal heirs of the deceased employee, however, contends that twice, the said procedure was resorted to by this Court, in the proceedings initiated by the deceased employee and on both these occasions, the defect pointed out by this Court was not rectified and the officers stuck to their guns in passing orders, which evidently did not disclose any application of mind and was vitiated by reason evidently of total lack of reasoning. **- 3 -** W.A.No.2774 of 2009 4. Going by the records, the writ petitioner was issued with a charge-sheet dated 22.12.1982 (Exhibit P1) listing out 3 charges under Section 39(a), 63 and 42(a) of the Army Act, 1950. The writ petitioner was admittedly convicted for 90 days imprisonment in civil prison and Exhibit P4 makes it clear that the conviction was with respect to the finding in respect of charge Nos.(1) and (4) and charge Nos.(2) and (3) were set aside. We immediately notice that the charge-sheet did not contain a 4[th] charge and that was also noticed in the earlier proceedings before this Court. In any event, by Exhibit P3 the writ petitioner was removed from service with effect from 27.03.1983. Again it has to be noticed that Exhibit P3 does not specifically say whether the writ petitioner was dismissed or discharged from service, though the show cause notice proposed a penalty of dismissal from service. The appeal filed against Exhibit P3 was rejected by a cryptic order, produced as Exhibit P5. The writ petitioner challenged Exhibits P3 and P5 in a writ petition before this Court, numbered as O.P.No.4444 of 1989. 5. The judgment in O.P.No.4444 of 1989 has not been produced, but going through the judgment, in a subsequent writ petition, produced as Exhibit P7, we find that the order of the original authority as also the appellate authority were set aside by judgment in W.A.No.2774 of 2009 **- 4 -** O.P.No.4444 of 1989. However, this Court in the said judgment directed the appellate authority to take a fresh decision and pass a speaking order after considering every aspect, including the decision of the Supreme Court reported in _**R.P.Bhatt v. Union of India**_ **[1986 Lab I.C. 790].** It was pursuant to the said judgment that Exhibit P6 was passed. Exhibit P6 was the subject of challenge in O.P.No.947 of 1993, which culminated in Ext. P7. 6. In Exhibit P7, a learned Single Judge of this Court found that it is not clear from the order as to whether the writ petitioner was dismissed from service or removed from service. In any event, noticing that Exhibit P6 order passed by the appellate authority was not in consonance with the specific directions issued by this Court in O.P.No.4444 of 1989 and also taking note of the fact that the earlier judgment had set aside both the original order and the appellate order; directed consideration of the case afresh by the original authority. Exhibit P8 order in pursuance of the said judgment was the subject matter of the present writ petition, the judgment in which gave rise to the present appeal. 7. On a reading of Exhibit P8 it is more than apparent that the judgments of this Court were not perused properly or applied and complied with in its true spirit and tenor. We extract the operative **- 5 -** W.A.No.2774 of 2009 potion of the order: - “1. Whereas in pursuance of the judgment and orders of the Honourable High Court, Kerala dated 9 Sep 96 in the Court Case OP No.947 of 1993-K filed by Ex-GS 78994 Painter KR Jayadevan of 406 RM P1/77 RCC (now 115 RCC), an opportunity was afforded to him for being heard in person on 20th day of December 1996 at HQ 36 BRTF. 2. And whereas the undersigned after having heard the petitioner Shri KR Jayadevan, Ex Painter in person and recorded his statement and on going through the evidence DE-NOVO I hereby order the following:- ## O R D E R Now, therefore, in exercise of the powers conferred by Rule 9 of CCS (CC&A) Rules 1965 read in conjunction with Rule 19(1) of CCS (CC&A) rules 1965, the undersigned order that the penalty imposed on Shri KR Jayadevan for absenting himself without leave is maintained”. There is blatant and obvious lack of reasoning in the above order. 8. During the course of the pendency of the writ petition, the writ petitioner died and his legal heirs were impleaded. We cannot but place our deep anguish at the manner in which the officers of a disciplined force dealt with the case of a **'** Painter **'** and the total disregard such officers had for the orders of this Court. However, despite our deep anguish, exasperation cannot be a ground in adjudication and we restrain ourselves with the above observations. **- 6 -** W.A.No.2774 of 2009 9. Looking at the plea advanced by the official respondents, who are the appellants herein, we cannot but notice that the conviction of the writ petitioner and the resultant punishment in Court Martial has not been disturbed at all. However, in considering the consequences of such an order regarding the services of the employee, we have to necessarily look at the Appeal Rules. 10. As is evidenced from Exhibit P3, the penalty of dismissal is imposed under Rule 19(1) of the Appeal Rules, which is extracted hereunder: ## **“19. Special procedure in certain cases** Notwithstanding anything contained in Rule 14 to Rule 18 - - (i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or - (ii) where the Disciplinary Authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or - (iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit: **- 7 -** W.A.No.2774 of 2009 Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under Clause (i): Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule”. Rule 19 empowers the disciplinary authority with powers to impose any penalty on a Government servant if he has, on the basis of his conduct, been convicted on a criminal charge. However, it is incumbent upon the disciplinary authority to consider the circumstances of the case and make such orders thereon as it deems fit. The word “consider” would definitely import the application of mind of the disciplinary authority to the circumstances of the case. This consideration obviously is lacking in the instant case and despite this Court having repeatedly directed the reasons to be shown; which would only indicate due application of mind and consideration of the circumstances, consistently the officers have failed to comply with the mandate in Rule 19 as also the directions of this Court. 11. We are also conscious of the fact that this Court exercising jurisdiction under Article 226 of the Constitution does not at any point arrogate to itself powers available to the original authority or an appellate authority, if the reasons for upholding the challenge **- 8 -** W.A.No.2774 of 2009 against an order is merely procedural or technical. In the instant case, it is very evident that the total lack of reasons, twice, persuaded this Court to interfere with the orders passed by the original authority and the appellate authority. On both these occasions, the officials under the appellants reiterated the punishment, but failed to provide any reasons for arriving at such a decision. This, as has been noticed, is in total disregard of the earlier directions of this Court. Exhibit P8 order also, as noticed above, is vitiated by total lack of reasons and there is absolutely no application of mind by the authority who imposed the punishment of dismissal. The normal rule that the powers of the original authority cannot be arrogated by the Court exercising jurisdiction under Article 226, we are afraid, would not apply here by reason of the passage of time as also the death of the delinquent employee. We are of the opinion that no purpose would be served in sending back the case to the original authority for consideration of the efficacy of the dismissal of an employee in the year 1983 based on a charge-sheet issued in 1982. It is also very pertinent that the deceased employee, who only was aware of the facts and circumstances of the offences charged against him, is no more and a _de novo_ consideration by the original authority would again serve no purpose, since the delinquent would not be effectively represented by **- 9 -** W.A.No.2774 of 2009 the legal heirs in the said proceedings. The opportunity provided by the 1[st] proviso cannot in any circumstance be given; by reason only of the death of the employee and a remand in the facts and circumstances would be futile and an useless formality. 12. In the circumstances, we are of the opinion that the judgment of the learned Single Judge is to be interfered with only in so far as no penalty having been imposed on the delinquent employee. As has been found above, though this Court does not arrogate to itself the powers of the original authorities, a remand for fresh consideration is practically futile in the facts and circumstances explained above, especially by reason of the death of the delinquent. Though not to be treated as a precedent, considering the consistent failure of the authorities to comply with the judgments of this Court and the mandate in the Appeal Rules, we look at the charge upon which a conviction was entered. A reading of Exhibit P1 would indicate that the delinquent employee was convicted for absenting himself without leave; that the delinquent employee: “while at Dett UMKIANG absented himself from unit lines on 13[th] Jan 82 from 2200 Hrs to 1030 Hrs, 14[t][h] Jan 82”. We also notice from Exhibit P6 that the delinquent employee had **- 10 -** W.A.No.2774 of 2009 been awarded various penalties under Section 80 of the Army Act, 1959 on about 11 occasions and in the present case on the charges alleged and proved, he had been convicted for three months in civil prison. We remind ourselves that the deceased writ petitioner was a member of the disciplined force; but, however, the charge against him was not absence from duty, but from the unit lines without taking leave. We deem it fit in the circumstances that the deceased petitioner be awarded penalty of compulsory retirement from service and he shall be entitled to all retirement benefits, which shall now be disbursed to the family, i.e., the legal heirs who are the respondents herein within a period of three months from today. However, we notice that the direction of the learned Single Judge is to realize the monetary benefits paid to the legal heirs from the officer who passed Exhibit P8. The officers who had passed the earlier orders were also equally responsible for the callous treatment of the issue and disregard to the directions issued by this Court. Hence, we set aside the direction to recover it from the officer who passed Exhibit P8 order, but, however, reserve liberty to the appellants to recover the amounts paid to the legal heirs of the delinquent employee, from such officers who, according to the appellants, were responsible in not discharging their duties properly **- 11 -** W.A.No.2774 of 2009 and acting in total dereliction of the directions issued by this Court; if so advised. The Writ Appeal is partly allowed, leaving the parties to suffer their respective costs. Sd/Manjula Chellur, Chief Justice Sd/K.Vinod Chandran, Judge. vku/- ( true copy )