M. v. Itticheria VS State — 1959 DIGILAW 5 (KER)

Judgment :- 1. This is a petition under Art.226 of the Constitution filed by Mr. M.V. Itticheria, Assistant Engineer in the service of the 1st respondent State of Kerala, questioning the validity of certain disciplinary proceedings initiated against him. 2. There were certain irregularities alleged against the Petitioner in connection with the construction of a particular road in Trivandrum East Sub-Division within his jurisdiction. Accordingly on 2-7-1957 Government placed him under suspension and on 21-11-1957 ordered a formal and public enquiry into the truth of the imputations under the Public Servants Enquiry Act, XI of 1122. S.2 of that Act contemplated only inquiries into imputations of misconduct as distinguished from irregularities. So on a writ motion by Petitioner in O.P. 24 of 1958, the High Court by order dated 19-3-1958 quashed the inquiry. The order of suspension was on 25-6-1958 later quashed by the High court in fresh writ motion by the petitioner in O. P. 185 of 1958. Government since then passed order dated 15-7-1958 directing an enquiry into the irregularities under the provisions of the Kerala Civil Services (Classification, Control and Appeal) R.1957 and also placed petitioner under suspension with effect from that date pending the enquiry. Copy of this order is filed as Ext. P-1. R.17 (3) (iv) of the Rules 'provides for the enquiry to be held by a Special Officer or Tribunal appointed by the Government for the purpose. So by notification of the same day 15-7-1958, Government appointed the 2nd respondent Mr. P.D. Nandana Menon, Enquiry Commissioner and Special Judge, Trivandrum, to be the Tribunal for the purpose of holding the inquiry. This notification is filed as Ext. P-2. On 23-7-1958, the 2nd respondent, apparently acting under Para.1 of R.17(2), communicated to the Petitioner certain charges along with a statement of the allegations on which each charge was based and asked him to show cause why disciplinary action as contemplated by the Rules should not be taken against him, granting him time till 26-7-1958 to file written statement of his defence and to state whether he desired to have an oral inquiry or only to be heard in person. Petitioner appeared before the 2nd respondent as directed on 26-7-1958 and took objection to his holding of the inquiry in the matter as proposed. Petitioner appeared before the 2nd respondent as directed on 26-7-1958 and took objection to his holding of the inquiry in the matter as proposed. The objection was rejected on 5-8-1958 but on 31-7-1958 before yet the rejection was ordered, Petitioner has come with the O.P. herein praying for issue of a writ of certiorari or other appropriate writ or order to quash the proceedings ordering the inquiry as well as suspending the Petitioner and all proceedings pursuant thereto. 3. Various grounds were raised by the Petitioner in his affidavit in support of the petition but the main grounds pressed before me were three-fold, viz., I. That Ext. P-1 order directing the inquiry and placing the Petitioner under suspension pending the same is premature in that Government have not by themselves gone through the preliminary requisites enjoined on them under Para.1 of R.17 (2), viz., (i) Scrutiny of the charges against the Petitioner in the light of the explanation to be obtained from him, and, (ii) Consideration of the statement of Petitioner's option in the matter of oral inquiry or hearing in person. II. That the inquiry as provided under R.17(2) denies 'reasonable opportunity' to the accused officer to defend himself within the meaning of Art.311 (2) of the Constitution, because he is not allowed to (i) Examine his own witnesses, or (ii) Engage counsel III. That the Kerala Civil Services (Classification, Control and Appeal) R.1957 are violative of Art.14 of the Constitution for the reason that they offer accused officers only less privileges than under the Public Servants Enquiry Act, XI of 1122. 4. Government in detailed counter-affidavit sworn by the Superintendent of the Anti-Corruption Department have categorically opposed the contentions raised by the Petitioner. Assertion is thus made that Ext. P-1 order was passed because Government were satisfied that there was a prima facie case against the Petitioner and further by Ext. P-2 notification they had delegated to the 2nd respondent all their functions mentioned in R.17 (2) with respect to the inquiry. However, in leaving the framing of the charges to the 2nd respondent, Government were only adopting the interpretation accepted by the 'neighbouring State of Madras'. Finally it was denied that the Rules under which the inquiry was directed, in any way, violated the Constitution. 5. However, in leaving the framing of the charges to the 2nd respondent, Government were only adopting the interpretation accepted by the 'neighbouring State of Madras'. Finally it was denied that the Rules under which the inquiry was directed, in any way, violated the Constitution. 5. Taking up the first ground as to the proper construction of Para.1 of R.17(2), that paragraph reads as follows: "In every case where it is proposed to impose on the member of a service any of the penalties specified in items (iv), (vii), (viii) and (ix) of R.9, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances, which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires an oral inquiry or only to be heard in person. If he so desires or if the authority concerned so directs an inquiry shall be held." It appears clear from the extract above that the decision to hold the enquiry depends upon either the desire of the delinquent officer or apart from it, on the direction of the authority concerned. Bat in either case it is to be taken after the service on the officer of the charges against him and the receipt by the authority of his written statement of defence along with his statement as to whether he desires an oral inquiry or only to be heard in person It is only after such decision is taken that the question arises as to who among the authorities mentioned in R.17(3) is to hold the inquiry. The inquiring authority has as such, therefore, nothing to do with the service of the charges on the officer or the scrutiny of his option in the matter of the holding of inquiry. It is no doubt true that Government's decision to take action under R.17(2) stems from a proposal to impose a heavy punishment. But that means nothing more than the charges against the accused officer apparently tested by a preliminary ex-parte inquiry are such, that if unrebutted, call for such imposition. It is no doubt true that Government's decision to take action under R.17(2) stems from a proposal to impose a heavy punishment. But that means nothing more than the charges against the accused officer apparently tested by a preliminary ex-parte inquiry are such, that if unrebutted, call for such imposition. The charges are still unproved and the suggested punishments are merely hypothetical. It may still happen that the written statement of defence submitted by the officer carries such conviction that Government may not hold the inquiry as they first proposed. They may proceed under R.17(1) and impose the lesser forms of penalty or even drop action against the officer altogether. As observed by Manohar Pershad, J. in State of Andhra Pradesh v. S. Kameswara Rao, A.I.R. 1957 And. Pra. 794 at 817: "I do not agree with the contention of the learned counsel for the appellant that the object of filing a written statement is only to find out whether the charges framed were admitted or denied. In my view, this is only one of the objects. Another is to give him an opportunity to state the line of his defence; and yet another, in the words of my learned brother Bhimasankaran, J. (in the same case) is to enable the authority concerned to see whether the accused officer could not be exonerated straightway on the basis of his explanation if it was satisfactory, or if there was to be an enquiry, to limit its scope to the defence actually set up". That is to say, the mere fact that there is no specific provision in Para.1 of R.17(2) for a possible modification or withdrawal of the proceedings after the defence statement is received from the accused officer, does not mean that the proceedings once started must necessarily continue into the inquiry stage. 5. Learned Government Pleader Mr. V.P.G. Nambiar, appearing before me for the State, did not seek to sustain the plea raised in the State's counter-affidavit that the Government could effectively delegate and have in fact delegated to the 2nd respondent their functions as the concerned authority under Para.1 to R.17(2) in the matter of the service on the Petitioner of the charges against him or of the taking ultimately of the decision to hold an inquiry against him. Indeed the nature of the functions, let alone the wording of the paragraph, does not warrant any such delegation nor does Ext. P-2 disclose any factual delegation either. I should also say that no record as to the practice in Madras which it was alleged, had served as a precedent in the matter for Government, was produced before me. It follows, therefore, that the original of Ext. P-1 notification to the extent it commits the enquiry or initiation of proceedings against the Petitioner under R.17(2) to the 2nd respondent is ultra vires and has to be struck down. I do not think, however, that notification to the extent it directs an enquiry against the Petitioner under R.17(2) stands in need of any interference by this Court. Ext. P-2 notification appointing the 2nd respondent as the Tribunal under R.17(3)(iv) is, in any event, premature and may also have to go. I am glad to be able to arrive at this conclusion, for it has the merit of giving some assurance to the officer concerned that the competent authority maintains an open mind with regard to him. 6. The question next is whether the suspension of the Petitioner under Ext. P-1 should also be quashed. R.12(1)(a) of the Rules provides for suspension of the officer where, "(a) an inquiry into his conduct is contemplated or is pending." Learned counsel for the Petitioner contends that the suspension here was in terms only "pending the enquiry" by the 2nd respondent and so with the quashing of the committal of the enquiry to the 2nd respondent as above, the suspension order must also be quashed. I think this contention is right and should be accepted. It is unnecessary in the above view to consider the further argument of learned counsel that there can now be no question even of an inquiry contemplated much less pending against the Petitioner within the meaning of the R.12(1) (a) and there is, therefore, no scope for any suspension at all. I, therefore, quash the direction as to Petitioner's suspension contained in Ext. P-1 also. 7. I now come to the second question as to how far the procedure prescribed for the inquiry under Para.2 of R.17(2) is hit by Art.311(2) of the Constitution. I, therefore, quash the direction as to Petitioner's suspension contained in Ext. P-1 also. 7. I now come to the second question as to how far the procedure prescribed for the inquiry under Para.2 of R.17(2) is hit by Art.311(2) of the Constitution. This Para.2 runs as follows: "At that inquiry documentary evidence may be adduced and oral evidence shall be heard as to such of the allegations as are not admitted provided that the officer conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The person charged shall be entitled to cross-examine the witnesses called. After the enquiry has been completed the person charged shall be entitled to put in, if he so desires any further written statement of his defence." It is clear and it is not also contended otherwise that the first item of complaint raised in the matter by the Petitioner, viz., the shutting out of oral evidence on behalf of the accused officer, is fully made out. This is certainly a defect. For Art.311(2) guarantees "a reasonable opportunity" to the accused officer to show cause against the action proposed to be taken in regard to him and no opportunity can be said to be reasonable unless he is enabled fully to present his contentions, by adducing testimony and arguing thereon. See Khemchand's case, A.I.R. 1958 S.C. 300, at 307. It is useful to notice in this connection the provision in S.16 of the Travancore Public Servants (Inquiries) Act, XI of 1122 as follows: "16. The evidence for the defence shall then be produced and the witnesses examined, who shall be liable to cross-examination and re-examination and to examination by the Commissioner according to the like rules as the witnesses for the prosecution." The corresponding Rule in the Madras Service Manual, Vol. I, page 28 R.17 in Cl. (b)(i) also ran as follows: "17(b)(i) At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness" 8. Coming to the second item of complaint raised by the Petitioner, viz. Coming to the second item of complaint raised by the Petitioner, viz. the deprivation of counsel's aid, the provision in R.17(4) is as follows: "17(4) No person who is called upon to defend himself against the charges which form the subject matter of an inquiry against him shall be allowed to engage a counsel." Provided that if a counsel is engaged on behalf of any Department of Government the person against whom the charges are being inquired into shall be entitled to engage a counsel." There is no doubt ordinarily that the right to a hearing has always included the right to the aid of counsel. But as observed by Cooper on Administrative Agencies and the Courts, page 166: "the right is no broader than the need requires Further the right does not apply to cases where the agency is not engaged in the determination of a judicial question but is merely conducting an investigation or taking testimony to aid it in reaching a purely executive decision. After all, beyond the rule that the procedure followed should be subject to the rules of natural justice, there is nothing to fetter the freedom of the authority here in the conduct of the enquiry concerned. I therefore, overrule this contention. 9. Finally on the third question as to discrimination the basis of complaint as raised in the affidavit was rather different, viz., that there was no indication as to when the Civil Services (Classification, Control and Appeal) Rules, 1957 and not the Public Servants Enquiry Act, XI of 1122, now being applied in the Petitioner's case will be resorted to in particular case. There was obviously no point in this contention because the Petitioner had himself obtained immunity from an enquiry under the Act because the imputations against him concerned "irregularities" as contrasted with misconduct. The basis of complaint as now put forward is, on the same test, equally irrelevant. For what does it matter to the Petitioner that more privileges are accorded to an officer proceeded thereunder. The matter would be of importance in case of officers who could be proceeded under the Act or the Rules at the unfettered discretion of the disciplinary authority. See, for example, Direndranath V. State of Orissa, A.I.R. 1958 Orissa 96. For what does it matter to the Petitioner that more privileges are accorded to an officer proceeded thereunder. The matter would be of importance in case of officers who could be proceeded under the Act or the Rules at the unfettered discretion of the disciplinary authority. See, for example, Direndranath V. State of Orissa, A.I.R. 1958 Orissa 96. I may add that during the course of the arguments a still further new basis of discrimination was sought to be developed, viz, as between officer and officer in the matter of subjecting them to enquiries under R.17(2), But I refuse to hear about it. 10. The result is that the original of Ext. P1 order will stand quashed to the extent firstly it commits the enquiry contemplated thereunder to the 2nd respondent and secondly it places the Petitioner under suspension. Ext. P2 notification appointing the 2nd respondent as the Tribunal for purpose of inquiry is also quashed. The Petition is thus allowed. There will be no order for costs however. 11. Before parting with the case 1 should like to say that the basic Rules considered above are, on the whole, very unsatisfactory and may with advantage be replaced, say by adaptation of the Union Government Rules of 28th February 1957 on the subject. Petition allowed.