RAGHAVAN v. SENIOR SUPERINTENDENT, R. M. S — 1980 DIGILAW 112 (KER)

Judgment :- 1. The petitioner, while he was working as a Sorter, SRO Cannanore, was served with a memorandum dated 16-2-1971 issued by the 1st respondent, the Senior Superintendent, R MS, Ernakulam Division, copy of which is Ext. P1, informing him that it was proposed to take action against him under R.16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (the Rules); it was alleged in the statement of imputations of misconduct or misbehaviour enclosed, that the petitioner while working as Head Sorter, Cannanore Sorting/2 on 15-12-1970, had exhibited utter indifference, gross negligence and lack of devotion to his duties in that (i) he had furnished incorrect information in his daily report suppressing facts; (ii) he had failed to maintain discipline inside the office; (in) he had furnished false information to the police; and (iv) he had demanded false reasons from Sri. Karunakaran for being relieved for getting medical aid. Ext. P2 is the copy of the representation dated 27-2-1971, denying the charges levelled against him, submitted by the petitioner. Ext. P3 is the copy of the memorandum dated 26-3-1973 issued by the 1st respondent informing the petitioner that an enquiry was proposed to be held to go into the articles of charge stated in Annexure-I thereto. Ext. P3(a) is the copy of the addendum dated 27-4-1973 adding the following to Ext. P3 memorandum dated 26-3-1973: "This memo is issued in pursuance of Sub Rules (3) to (23) of R.14 of the CCS. (CC&A) Rules. 1965 as laid down in R.16 (b) of the said Rules, in respect of the charge sheet issued in this office memo of even No. dated 16-2-1971." Exts. P4, P5 and P6 dated respectively 1-5-1973,1-5-1973 and 1-9-1975 are copies of proceedings relating to the appointment of the enquiry officer, and the officer presenting the case before the enquiry officer. Ext. P7 is the copy of the proceedings of the 1st respondent dated 29-6-1978 imposing on the petitioner the "penalty of postponement of his next increment due on 1-6-1979 for a period of thirty months without cumulative effect", accepting, after having discussed the evidence on record, the finding entered in the enquiry proceedings dated 1-3-1978, a copy of which is Ext. P8, submitted by the enquiry officer appointed as per Ext P5 proceeding. Ext. P8, submitted by the enquiry officer appointed as per Ext P5 proceeding. Ext. P9 is the copy of the appeal filed by the petitioner before the 2nd respondent, the Appellate Authority, (the Director of Postal Services, Kerala Circle, Trivandrum); and Ext. P10 is the copy of the order dated 30-3-1979 by which the 2nd respondent disposed of Ext. P9 appeal filed by the petitioner. After having discussed in Para.3 to 7 of Ext. P.10 order the grounds raised in Ext. P 9 appeal, the 2nd respondent towards the end of Para.7 held as follows: "...Judging from the available evidence I have no hesitation in coming to the conclusion that all the articles of charge framed against the appellant are fully established and that the disciplinary authority was quite correct in coming to the finding, based on the evidence adduced in the enquiry, that the charges against the appellant were all proved." Thereafter, in Para.8 of Ext. P 10, the 2nd respondent has discussed whether the penalty inflicted by the Ist respondent in and by Ext. P 7 proceedings was adequate, inadequate or excessive; towards the end of the paragraph he has recorded his conclusion as follows: "I am of the view that a major statutory penalty is fully justified to be imposed on the appellant. In as much as an oral enquiry in accordance with the provisions of Sub-rules (3) to (23) of R.14 of the CCS (CCA) Rules, 1965 has been held in the disciplinary proceedings taken against the appellant it is quite clear that the appellant has been given adequate and reasonable opportunity, and for imposing a major penalty it is not necessary to hold any further enquiry. It may also be mentioned that in view of the amendment of R.15 (4) of the CCS (CCA) Rules, 1965 by a notification as issued in Memo No. 1102/ 77-Ests. A dated19-8-1978 of the Government of India in the Department of Personal and Administrative Reforms, a show cause notice is not required to be given to the appellant before imposing a major penalty on him." Ultimately in Para.9 of Ext. P10 the 2nd respondent ordered enhancement of the penalty and prescribed the imposition of the following penalty on the petitioner (appellant before the 2nd respondent): "The pay of Sri. P. K. Raghavan, Sorter, Cannanore, shall be reduced from the present stage of Rs. P10 the 2nd respondent ordered enhancement of the penalty and prescribed the imposition of the following penalty on the petitioner (appellant before the 2nd respondent): "The pay of Sri. P. K. Raghavan, Sorter, Cannanore, shall be reduced from the present stage of Rs. 384/-in the Time Scale of Pay of Sorters of RMS to the stage of Rs. 340/-with effect from 1-4-79 for a period of two years. Further, during the period of such reduction Sri. P K: Raghavan shall not earn increments of pay; and further on the expiry of the period of reduction, the reduction shall have the effect of postponing the future increments of pay of Sri. P. K. Raghavan." 2. Though in the writ petition the petitioner has prayed for the issue of a writ of certiorari quashing both Exts. P7 and P 10, the attack during the course of his argument by Shri O.V. Radhakrishnan, the counsel for the petitioner, was confined to Ext. P 10 order, which, he submitted, was not sustainable in law. His main argument is that the reduction to a lower stage in the time scale of pay for a specified period, being a major penalty as provided in clause (v) of R.11 of the Rules, in proceedings initiated under R.16 of the rules for inflicting one of the minor punishments falling within clauses (i) to (iv) of the said rule (Rule 11), it could not be inflicted by the 2nd respondent while disposing of an appeal filed by the petitioner. 3. R.11 of the Rules at the beginning states: Penalties: The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely ", the penalties specified in clauses (i) to (iv) thereunder being minor penalties, and those specified in clauses (v) to (ix) thereunder being major penalties. R.14 of the Rules deals with the procedure for imposing major penalties; and sub-rule (1) thereof is categorical that "no order imposing any of the penalties specified in clauses (v) to (ix) of R.11 shall be made except after an enquiry held, as far as may be, in the manner provided in this Rule and R.14, " The very caption of R.16 is: "Procedure for imposing minor penalties". There could, therefore, be no doubt that disciplinary proceedings initiated under R.16 following the procedure for imposing minor penalties could not culminate at the hands of the disciplinary authority in the infliction of any one of the major penalties specified in clauses (v) to (ix) of R.11. This position is not only clear from the language of the Rules, but also is well-settled by the dictum laid down by this Court in Narayanan Nair v. State of Kerala & Another (1970 KLJ. 1069); Surendra Sen v. Director of Survey & Land Records (1975 KLT. 582); and Enos Jeevakumar v. State of Kerala (1977 KLT. 733 D.B.) 4. What, however, assumes importance in this case is the fact that the appellate authority while disposing of an appeal filed by a Government servant (the petitioner) who was proceeded against under R.16 of the Rules, and on whom the disciplinary authority had imposed one of the minor penalties specified in clauses (i) to (iv) of R.11, imposed one of the major penalties specified in clauses (v) to (ix) of R.11. The question is, whether, without holding or causing to be held an inquiry under R.14, following the procedure for imposing major penalties, it was competent for the appellate authority to order such enhancement. 5. Sri. T. R. Govinda Warrier, the Standing Counsel to the Central Government, drew my attention to the relevant provisions of R.27 of the Rules dealing with the "consideration of appeal". His submission is that under sub-rule 2(c) of that rule it is both the right and the duty of the appellate authority to consider whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and the power of the appellate authority under that sub-rule extends to the act of confirming, enhancing, reducing or setting aside the penalty According to him it is not as though in act appeal filed by the Government servant against the order imposing any of the penalties specified in R.11 the appellate authority's power is restricted to that of confirming or reducing the penalty imposed by the disciplinary authority. Sri. Radhakrishnan did not dispute the Correctness of this proposition, evidently for the reason that in the face of the clear language of sub-Rule 2(c) of R.27 of the Rules he could not have done it. Sri. Radhakrishnan did not dispute the Correctness of this proposition, evidently for the reason that in the face of the clear language of sub-Rule 2(c) of R.27 of the Rules he could not have done it. While conceding that the power of the appellate authority extends to that extent, what he would stress is that neither the disciplinary authority nor the appellate authority would be competent to impose any of the major penalties where the proceedings initiated were under R.16, following the procedure for imposition of a minor penalty. In this context Sri. Warrier has drawn my attention to proviso (ii) of sub-rule (2) of R.27 of the Rules which reads as follows: (ii) 'if such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of R.11 and an inquiry under R.14 has not already been held in the case, the appellate authority shall, subject to the provisions of R.19, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of R.14 and thereafter, on a consideration of the proceedings of such inquiry and after giving the appellant a reasonable opportunity, as far as may be, in accordance with the provisions of sub-rule (4) of R.15, of making a representation against the penalty proposed on the basis of the evidence adduced during such inquiry, make such orders as it may deem fit;" It is in this context what the appellate authority stated towards the end of Para.8 of Ext. P10 order, which has already been extracted in Para.1 of this judgment, becomes relevant Therein the appellate" authority has stated inter alia that in as much as an oral enquiry in accordance with the provisions of sub-rules (3) to (23) of R.14 of the Rules had been held in the disciplinary proceedings taken against the petitioner, it was quite clear that he had been given adequate and reasonable opportunity; and for imposing a major penalty it was not necessary to hold any further enquiry. 6. I am afraid, the appellate authority has mistaken the correct procedure to be adopted when, in the opinion of that authority, the facts and' circumstances of the case deserve the imposition of one of the major penalties instead of a minor penalty imposed by the disciplinary authority. 6. I am afraid, the appellate authority has mistaken the correct procedure to be adopted when, in the opinion of that authority, the facts and' circumstances of the case deserve the imposition of one of the major penalties instead of a minor penalty imposed by the disciplinary authority. It is to be borne in mind that the appellate authority was dealing with an appeal filed by a Government employee who felt aggrieved even in regard to the minor penalty imposed on him. The appellate authority, no doubt, has the power to enhance the penalty to one of the major penalties specified in clauses (v) to (ix), in appropriate cases; but that certainly cannot be done without strictly following the procedure prescribed in that behalf in the proviso (ii) to R.27 (2) read with R.14 of the rules. In such a situation, the minimum that was expected of the appellate authority is to hold or cause to be held an enquiry under R.14, following the procedure prescribed for imposition of major penalties, the appellant government servant having been made aware of the fact that the enquiry was such as might or would end in the imposition of one of the major penalties specified in clauses (v) to (ix) of R.11 of the Rules. In Exts. P 3 (a), P4, P5 and P6 the disciplinary authority had made it clear that the proceedings were initiated under R.16; and the implication was that even if it comes to the worst for the government servant, it could end up only in the imposition of a minor penalty, not in the imposition of a major penalty. Sri. Warrier drew my attention to Para.2 of Ext. P 10 order passed by the 2nd respondent. For the sake of convenience that paragraph is reproduced: "The appeal has been given the due consideration. During this consideration. I have also critically read all the papers of the disciplinary proceedings which resulted in' the imposition of the impugned penalty. It may be recalled that the appellant was proceeded against under R.16 of the CCS (CCA) Rules, 1965 by the disciplinary authority on 16-2-71. During this consideration. I have also critically read all the papers of the disciplinary proceedings which resulted in' the imposition of the impugned penalty. It may be recalled that the appellant was proceeded against under R.16 of the CCS (CCA) Rules, 1965 by the disciplinary authority on 16-2-71. At the request of the appellant the disciplinary authority arranged for an oral enquiry to be held in accordance with the provisions of Sub-Rules (3) to (23) of R.14 of the CCS (CCA) Rules, 1965 The records of the proceedings of the disciplinary proceedings were all done in keeping with the disciplinary rules." The procedure contemplated in R.16 (1) (b) would not remove the limitation placed on the power of the disciplinary authority in regard to the nature of the penalty that could be imposed on the basis of the finding of such an enquiry, namely, that it would enable the disciplinary authority to impose only one of the minor penalties specified in clauses (i) to (iv) of R.11, not any of the major penalties specified in clauses (v) to (ix) of R.11 of the Rules. The fact remains that neither the disciplinary authority nor the appellate authority had ever cautioned the petitioner that the enquiry that was being conducted into the charges levelled against him might end in the imposition of one of the major penalties specified in clauses (v) to (ix) of R.11. Even for the purpose of imposing one of the minor penalties specified in clauses (i) to (iv) of Rule H, holding of an enquiry in the manner laid down in sub-rules (3) to (23) of R.14 is imperative in every case in which the disciplinary authority is of the opinion that such enquiry is necessary as contemplated by clause (b)- of sub-rule (1) of R.16. It would, therefore, be absolutely wrong to take the stand that though the proceedings were initiated under R.16, as "at the request of the government servant the disciplinary authority had arranged for an oral enquiry to be held in accordance with the provisions of sub-rules (3) to (23) of R.14 of the Rules", the appellate authority would be competent or justified in imposing one of the major penalties provided in clauses (v) to (ix) of R.11. That cannot be done without doing grave violence to the provisions contained in R.14 and the second proviso to sub-rule (2) of R.27 of the Rules. That cannot be done without doing grave violence to the provisions contained in R.14 and the second proviso to sub-rule (2) of R.27 of the Rules. The mandate of R.14(1) is that no order imposing any of the penalties specified in clauses (v) to (ix) of R.11 shall be made except after an enquiry held, as far as may be, in the manner provided in that rule and R.15; and the second proviso to sub-rule (2) of R.27 clearly lays down that if an enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of R.11 and an enquiry under R.14 has not already been held in the case, the appellate authority, shall, subject to the provisions of R.19, itself hold such an enquiry or direct such enquiry be held in accordance with the provisions of R.14 and thereafter, on a consideration of the proceedings of such enquiry, make such order as it may deem fit. The appellate authority has no case that an enquiry following the procedure prescribed under R.14 was held by the disciplinary authority. No enquiry following the procedure prescribed under that rule is seen to have been held by the appellate authority also. Therefore, the petitioner never had notice of a disciplinary action which might culminate in the imposition of one of the major penalties provided in clauses (v) to (ix) of R.11. Probably, the degree of care the petitioner would have taken during the course of the enquiry would have been different had he a warning that the enquiry might ultimately terminate in the imposition of one of the major penalties specified in clauses (v) to (ix) of R.11. The major penalty imposed by the 2nd respondent in Ext. P10 order is clearly the result of an illegal exercise of the jurisdiction of the appellate authority in terms of R.27 of the Rules. Ext. P10 is liable to be quashed for this reason alone. 7. Sri. Radhakrishnan has a further argument that before enhancing the punishment the petitioner ought to have been given a reasonable opportunity for making a representation against the penalty proposed on the basis of the evidence adduced during the enquiry in terms of the second proviso to sub-rule (2) of R.27 of the Rules. Sri. 7. Sri. Radhakrishnan has a further argument that before enhancing the punishment the petitioner ought to have been given a reasonable opportunity for making a representation against the penalty proposed on the basis of the evidence adduced during the enquiry in terms of the second proviso to sub-rule (2) of R.27 of the Rules. Sri. Warrier, on the other hand, contended that consequent to the amendment of Art 311(2) of the Constitution, R.15(4) and provisos 2 and 3 of sub-rule (2) of R.27 of the Rules have undergone corresponding changes as per notifications No. 11012/2/77-Estt. (A) dated 18-8-1978 and 1012/11/78-Estt. (A) dated 2-3-1979 so much so that "and after giving the appellant a reasonable opportunity, as far as may be, in accordance with the provisions of sub-rule (4) of R.15, of making a representation against the penalty proposed on the basis of the evidence adduced during such enquiry," have been left out, from proviso (ii) to R.27(2) of the Rules; and therefore, even without giving such an opportunity to the government servant the appellate authority is competent to enhance the punishment, if on a consideration of the material before that authority, it finds that such an enhancement is warranted For one thing, it is not provided in the amended rule expressly or by necessary implication that the amendment has retrospective effect. We have noticed that the disciplinary proceedings in this case was initiated in the year 1971, whereas the amended provision relied by the respondents came into existence only on 18-8-1978 and 2-3-1979. Even otherwise, it is of fundamental importance that no punishment could be imposed or enhanced without following the principles of natural justice. In that view also, it is only just and fair that the petitioner who has appealed against the imposition of a minor penalty should be told by the appellate authority that not only his appeal would not be allowed, but also that it was proposed to impose an enhanced penalty on the basis of the material on record before enhancing the penalty to major penalty. This very elementary thing is not seen to have been done in this case. For these reasons also the impugned order is bad. 8. The enquiry proceedings were initiated ten years ago. This very elementary thing is not seen to have been done in this case. For these reasons also the impugned order is bad. 8. The enquiry proceedings were initiated ten years ago. The appellate authority did not choose either to hold an enquiry by itself or to direct an enquiry to be held under R.14 of the Rules; and at this distance of time I find no justification to remand the matter to the appellate authority for holding or causing to be held an enquiry under R.14 of the Rules. The result, therefore, is that the writ petition is allowed; Ext. P10 order of the 2nd respondent is quashed and Ext. P7 order of the 1st respondent is restored. There will be no order as to costs. Allowed.