Writ Appeal No. 2652 of 2017 (Against OP No. 38017 of 2001), High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** **WA.No.2652 OF 2017** **AGAINST THE IN OP 38017/2001 DATED 20-09-2016 OF HIGH COURT OF KERALA** ## **APPELLANTS:** |**1**|**HIGH COURT OF KERALA**| |---|---| ||**REPRESENTED BY ITS REGISTRAR, ERNAKULAM,**| ||**COCHIN - 31**| |**2**|**THE CHIEF JUDICIAL MAGISTRATE**| ||**MANJERI - 676 121.**| ||**BY ADV. SRI.ELVIN PETER P.J.**| ## **RESPONDENTS:** |**1**|**C.M.ABDUL JABBAR**| |---|---| ||**CHERUKAD HOUSE, VADAPURAM, MALAPPURAM**| ||**DISTRICT,PIN - 676 542.**| |**2**|**STATE OF KERALA**| ||**REPRESENTED BY THE SECRETARY TO**| ||**GOVERNMENT,HOME (C) DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| ||**R1 BY ADV. SRI.P.C.SASIDHARAN**| ||**R2 BY GOVERNMENT PLEADER(B/O)**| |**OTHER PRESENT**<br>**:**|| **SRI. T. RAJASEKHARAN NAIR- SR. G.P.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-08-2020, THE COURT ON 25-09-2020 DELIVERED THE FOLLOWING:** W.A.No.2652/2017 2 ## **JUDGMENT** ## **Dated this the 25[th] day of August 2020** ## **Gopinath, J.** This Writ Appeal arises out of the judgment of a learned Single Judge of this Court in O.P.No.38017/2001. The appellants are respondents 2 and 3 in that Original Petition filed by the 1[st] respondent herein (hereinafter referred to as the Writ Petitioner). The 2nd respondent herein, the State of Kerala in the Home Department, was the third respondent in the original petition. 2. The writ petitioner, while working as a Peon in the Court of Judicial First Class Magistrate, Malappuram, was proceeded with on a charge of unauthorised absence from duty. The record shows that there were allegations of unauthorised absence from duty, against him, on previous occasions as well however that the proceedings were in respect of a specified instance in September 1996. The Chief Judicial Magistrate, Manjeri initiated an enquiry under the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960 (hereinafter referred to as the ‘KCS (CCA) Rules’) by issuing a Memo of Charges. The enquiry appears to have proceeded on the basis that the writ petitioner had admitted the charges against him and on the basis that he had no evidence to offer. An opportunity of hearing was afforded to W.A.No.2652/2017 3 the Writ Petitioner by the Chief Judicial Magistrate. A notice was issued to the writ petitioner together with a copy of the Enquiry Report proposing the penalty of removal from service. After considering the explanation submitted by the writ petitioner, he was removed from service. An appeal filed before the High Court against the order imposing penalty was rejected. A review petition filed before the Government was also rejected. The learned Single Judge considered the matter extensively and, after perusing the files that were called for, concluded that the procedure prescribed by the KCS (CCA) Rules for imposing a major penalty was not followed in the case of the writ petitioner. The learned Single Judge, therefore, directed that the writ petitioner be reinstated in service with all consequential benefits. It is submitted before us that in compliance with the judgement of the learned single judge the petitioner was reinstated in service and on 3108-2019 he has retired from service on attaining the age of superannuation. 3. We have heard Sri. Elvin Peter P.J., learned counsel appearing for the appellants, Sri. P.C. Sasidharan, learned counsel appearing for the writ petitioner (1[st] respondent) and Sri. T.Rajasekharan Nair, learned Senior Government Pleader appearing for the State of Kerala. The learned counsel for the appellants would contend inter alia that this is a case where no enquiry W.A.No.2652/2017 4 under Rule 15 of the KCS (CCA) Rules was required to be held since the writ petitioner, the delinquent employee, had admitted his guilt in clear terms. He would contend that holding of enquiry is not mandated under such circumstances. He would also contend that considering the nature of the duties of the writ petitioner, there was no scope for a person who is susceptible to mental illness to be employed there. He would further contend that the punishment imposed on the writ petitioner was clearly not disproportionate. In support of this submission, he would refer to various instances of similar misconduct committed by the petitioner. 4. The learned counsel for the writ petitioner/1st respondent would contend that this is not a case where the guilt had been admitted by the delinquent employee. He says that though absence from duty without permission was admitted, the same was admitted along with an explanation that he was suffering from mental illness. He would rely on judgments to suggest that absence from duty, which is not deliberate, cannot amount to misconduct. He would, therefore, urge that the Writ Appeal must be dismissed, 5. We have considered the contentions raised by both sides. The learned Single Judge has exhaustively considered the proceedings initiated against the writ petitioner by the Chief Judicial Magistrate, Manjeri and had also called for the file to see whether a proper procedure had been followed. We have also called for and perused the W.A.No.2652/2017 5 file. It is clear from the file that a memo of charges was issued to the writ petitioner. After his explanation (in which he admitted to being absent from duty without obtaining leave but attributed the same to his mental illness) was received, he was given an opportunity to present his case in person before the Chief Judicial Magistrate. A statement appears to have been recorded. It was found that the writ petitioner had admitted his wrongdoing and had no witnesses etc. to be examined. Thereafter the enquiry report was drawn up. It was sent to the Writ Petitioner together with a notice proposing a penalty of removal from service. In reply to that notice, the Writ Petitioner reiterated his contentions and also clearly objected to the finding that he had no witnesses etc. and even requested that steps may be taken to call for and examine the Doctor under whom he was being treated. Notwithstanding this, an order imposing the penalty of removal from service was issued. An appeal to this Court, on the administrative side and a review petition before the Government were rejected. The Writ Petitioner, therefore, filed O.P 38017/2001 (out of which this appeal arises) challenging the proceedings. When O.P 38017/2001 was pending, he seems to have filed yet another Writ Petition as W.P (C) 6474/2005 challenging the very same proceedings. It is stated before us that the second writ petition itself came to be filed because he had practically forgotten about the filing of the earlier writ petition which again is a course of action attributed to his mental illness. W.A.No.2652/2017 6 W.P (C)No.6474/2005 was later withdrawn permitting the writ petitioner to pursue and prosecute the earlier writ petition. During the proceedings before this Court, a reference was made to a Medical Board to determine the health condition of the writ petitioner. The medical report suggested that the writ petitioner was suffering from some sort of mental illness at the relevant point of time. There is nothing before us to take the view that the finding of the learned Single Judge that a formal enquiry was not held, in the manner contemplated by law, is incorrect in any manner. We have carefully perused the records of the case and we believe that the finding of the learned Single judge that the procedure prescribed under Rule 15 of the KCS (CCA) Rules was required to be followed does not suffer from any legal infirmity. Considering the explanation submitted by the writ petitioner, it was clear that a formal enquiry had to be conducted after affording an opportunity to the writ petitioner. Any failure to do so vitiates the enquiry. The Constitution through Article 311(2) guarantees to a public servant charged with a misdemeanour that he shall not be dismissed, removed or reduced in rank unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken regarding him. The KCS (CCA) Rules embodies the Constitutional protection under Article 311(2). (See _**Union of India v.**_ W.A.No.2652/2017 7 ## _**Tulsiram Patel**_[1] ). In _**Khem Chand v. Union of India**_ **[2]** it was held:- _“18. In our judgment neither of the two views can be accepted as a completely correct exposition of the intendment of the provisions of Section 240(3) of the Government of India Act, 1935, now embodied in Article 311(2) of the Constitution. Indeed the learned Solicitor-General does not contend that this provision is confined to guaranteeing to the government servant an opportunity to be given to him only at the later stage of showing cause against the punishment proposed to be imposed on him. We think that the learned Solicitor-General is entirely right in not pressing for such a limited construction of the provisions under consideration. It is true that the provision does not, in terms, refer to different stages at which opportunity is to be given to the officer concerned. All that it says is that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. He must not only be given an opportunity but such opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is quite obviously necessary that the government servant should have the opportunity, to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and severe than he deserves. Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment. If this is the correct meaning of the clause, as we think it is, what_ 1 (1985) 3 SCC 398 2 AIR 1958 SC 300 W.A.No.2652/2017 8 _consequences follow? If it is open to the government servant under this provision to contend, if that be the fact, that he is not guilty of any misconduct then how can he take that plea unless he is told what misconduct is alleged against him? If the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and the evidence by which it is sought to be established, for it is only then that he will be able to put forward his defence. If the purpose of this provision is to give the government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross-examine the witnesses called against him and to examine himself or any other witness in support of his defence. All this appears to us to be implicit in the language used in the clause, but this does not exhaust his rights. In addition to showing that he has not been guilty of any misconduct so as to merit any punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him. He may say, for instance, that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even of removal or reduction in rank and that any of the lesser punishments ought to be sufficient in his case._ _19. To summarise: the reasonable opportunity envisaged by the provision under consideration includes—_ _(a) An opportunity to deny his guilt and establish his_ W.A.No.2652/2017 9 _innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;_ _(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally_ _(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant.”_ The law after the Constitution (Forty-second Amendment) Act, 1976, is, in essence, no different. The enquiry contemplated under Clause (2) of Article 311 would remain the same. However, the second opportunity to make a representation concerning the penalty proposed to be imposed was no longer available. As noted in the judgment of the learned Single Judge, the sequence of events leading up to the issuance of the order of removal reveals substantial defects in the procedure adopted to impose the penalty on the writ petitioner. We concur with the view of the Learned Single Judge that the writ petitioner was denied a reasonable opportunity to defend himself. Further, even if the procedure had been duly complied with, the punishment imposed on the writ petitioner was W.A.No.2652/2017 10 grossly disproportionate to the charges levelled against him. Though, the petitioner has a case that even the enquiry report was not served on him, the learned single Judge has repelled that contention and we cannot, take a different view in the light of that position as disclosed from the file and also considering the fact that the enquiry report was produced along with the Writ Petition (C)No.6474/2005. That being the position, the learned single Judge had rightly set aside the order imposing penalty and the consequential orders issued in the appeal/review petition by the High Court and by the Government of Kerala. We, therefore, find no reason to interfere with the judgment of the learned single Judge, to the extent that it interferes with the order imposing penalty and the orders in the appeal/review proceedings emanating therefrom. 6. Then, the only question to be considered is whether the writ petitioner should be held entitled to be reinstated with all consequential benefits. The writ petitioner was dismissed from service on 17.6.1999. For more than 17 years i.e. till 16.11.2016, on which date he was reinstated in service following the judgment of the learned Single Judge, he was out of service. The writ petitioner has by now retired from service after attaining the age of superannuation. As noticed by the learned single Judge, a finding that enquiry proceedings were not properly conducted would have normally resulted in an order permitting the conduct of a fresh enquiry under the law. However, considering the fact W.A.No.2652/2017 11 that the writ petitioner has retired from service such an exercise would be extremely harsh on the writ petitioner. We, therefore, feel that the most appropriate course of action would be to restrict the right of the writ petitioner to receive benefits including full emoluments etc. for the entire period during which he was kept out of service. We feel that interest of justice will be served by directing that the pay and allowances due to the writ petitioner for the entire period during which he was kept out of service shall be restricted to 30% of the amounts due to him. We will be justified in doing so on the principle of ‘ _no work no pay’._ Similarly, the Death-cum-retirement gratuity (DCRG) shall also be restricted to 40% of his entitlement because the writ petitioner has not rendered any service for almost the entirety of his career and had worked for only about 5 years before the initiation of disciplinary proceedings and for a short while after his reinstatement. The Supreme Court in _**State of Jharkhand v. Jitendra Kumar Srivastava**_ **[3]** , while holding that pension, gratuity etc. are not bounties also observed “ _**8.** It is an accepted position that gratuity and pension are not bounties. An employee earns these benefits by_ _**dint of his long, continuous, faithful and**_ ” _**unblemished service**_ . (Emphasis is ours). Therefore we are of the view that the writ petitioner is not entitled to the full amount of DCRG. However, the entire service of the writ petitioner including the period during which he was kept out of service shall be counted as qualifying 3 (2013) 12 SCC 210 W.A.No.2652/2017 12 service for pension. The Writ Appeal will stand partly allowed by modifying the judgment of the learned single judge to the extent that it directs the payment of all consequential benefits, on reinstatement. We direct that the pay and allowances due to the writ petitioner for the entire period during which he was kept out of service shall be restricted to 30% of his entitlement. Similarly the Death-cum-retirement gratuity payable to him upon retirement shall be restricted to 40% of his entitlement. However, it is directed that the entire service of the writ petitioner including the period during which he was kept out of service shall be counted as qualifying service for pension. In the facts and circumstances of the case, we make no order as to costs. **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE** **Sd/-** **GOPINATH P.** **JUDGE** **acd**