KALIDAS v. STATE OF KERALA — 1988 DIGILAW 316 (KER)

Judgment :- 1. This is one of the cases where the obstinancy of the State in refusing to see a reason is likely to cost it too dearly. The Assistant Commissioner of Excise, Palghat, placed the Petitioner, who was a Preventive Officer, under suspension by Ext. P1 order dated 20-1-1970. The allegations against him were serious. They included misappropriation of considerable amounts entrusted to him and falsification of records to cover up such misappropriation. The Assistant Commissioner stated in Ext. P1 order, that a preliminary enquiry was conducted and that disclosed prima facie case against the petitioner. He was prosecuted in C. C. Nos. 96 and 97 of 1972. Petitioner managed to escape conviction on technical grounds and on the basis of benefit of doubt. The Additional First Class Magistrate, Malappuram, however, had occasion to observe that his conduct was not above board and that a disciplinary action was called for. The acquittal was in 1973. 2. Petitioner requested for reinstatement in service after acquittal. But, the second respondent-Board of Revenue, ordered the Deputy Commissioner, Excise, Northern Range, Kozhikode to conduct an enquiry against the petitioner under R.15 (a) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 in its order No. Vig (X)-15655/73 dated 12-11-1975. Nothing much was done by that enquiry officer. The Board of Revenue, thereafter, passed Ext. P12 order dated 20-10-1978, appointing the Deputy Commissioner (Enforcement and Intelligence), Trivandrum to conduct the enquiry, without framing any charge against the petitioner, the enquiry officer examined six witnesses, two each on 17-5-1979,18-5-1979 and 4-10-1979. Thereafter the enquiry officer framed Ext. P2 memo of charges dated 19-11-1979. He required the petitioner to show cause why disciplinary action should not be taken against him under the Classification, Control and Appeal Rules. Petitioner submitted Ext. P3 explanations. He naturally denied the charges. After making his submissions on merits, he stated as follows: "If necessary I may be allowed to produce all the re levant records. The set of the records including the judgment were produced already along with the explanation submitted before the Assistant Excise Commissioner, Malappuram, that may kindly be treated as the records in this proceedings also. I will produce all my records at the time of hearing". No further enquiry into the charges were conducted. No witnesses were examined thereafter. Nor was the petitioner allowed an opportunity of producing any evidence in his defence. I will produce all my records at the time of hearing". No further enquiry into the charges were conducted. No witnesses were examined thereafter. Nor was the petitioner allowed an opportunity of producing any evidence in his defence. The enquiry officer submitted his report, obviously with reference to the evidence as collected prior to the issue of Ext. P2 memo of charges. The Board of Revenue then issued Ext. P4 show cause memo dated 17-5-1981, informing the petitioner that the enquiry officer has reported that though the main charge of misappropriate ion of Government money was not proved, charges Nos: 12 to 16 of temporary misappropriation of Government money and fabrication of Government records were proved. The Board informed the petitioner, that it did not agree with the enquiry officer and also that it had tentatively decided to retire the petitioner from service compulsorily from the date of his suspension. He was allowed 30 days' time to submit his explanations. Petitioner submitted Ext. P5 reply to the show cause notice. He stated specifically that no enquiry was conducted after framing the charge, that all the witnesses were examined prior thereto and that none of them rendered any evidence in support of the charges. He also referred to the inordinate delay in completing the proceedings after his suspension ten years ago. The Board of Revenue, without adverting to the specific contention which the petitioner had raised viz., that no enquiry was conducted after Ext. P2 charges were framed, found him guilty of the charges and imposed on him the penalty of compulsory retirement with effect from the date of suspension. Petitioner " then filed Ext. P7 appeal under R.23 of the Classification, Control and Appeal Rules on 14-7-1982. Since no orders were passed on the appeal, he filed O.P. No. 467 of 1983. That was disposed of by judgment dated 20-1-1983, directing expeditious disposal of the appeal. Government did not comply with that direction and hence the petitioner filed O.P. No. 6269 of 1983. In judgment dated 26-3-1983, disposing of that Original Petition, this Court directed disposal and final orders within three months. Though he was personally heard in 1986, the Government refused to pass any order on the appeal. Petitioner then filed contempt Original Petition, O.P. No. 3161 of 1987. After receipt of notice, in that Original Petition, Government passed Ext. P9 order dated 1-6-1987 dismissing the appeal. Though he was personally heard in 1986, the Government refused to pass any order on the appeal. Petitioner then filed contempt Original Petition, O.P. No. 3161 of 1987. After receipt of notice, in that Original Petition, Government passed Ext. P9 order dated 1-6-1987 dismissing the appeal. The specific objections raised by the petitioner in his appeal, that there was no proper enquiry and there were procedural irregularities, were adverted to by the Government, stating that "This allegation is denied. He was given every opportunity by the enquiry officer to represent against the charges issued against him. The enquiry officer had also taken evidence from a large number of witnesses, The enquiry officer came to the conclusion that even though the charge of misappropriation of Government money was not proved on enquiry, he found that the officer had fabricated Government records"' The specific allegation of the petitioner that all the six witnesses were examined prior to the framing of Ext. P2 charges, that no enquiry was conducted thereafter, that he was not given any opportunity to adduce evidence, were glossed over in the appellate order. Petitioner, therefore, seeks the issue of a writ of certiorari to quash Ext. P6 penalty order and Ext. P9 appellate order. 3. The grounds which he urged are, that there ought to have been an enquiry, after the charges were framed, as is enjoined by R.15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, after the disciplinary authority framed charges against the Government servant. Petitioner submits, that no such enquiry was conducted. The procedural requirements of an enquiry leading to the imposition of a major penalty have not been complied with in this case. He asserts, that there was no presenting officer. The enquiry officer himself assumed the role of the prosecutor and the judge. After examining witnesses, without framing any charge, he framed Ext. P2 memorandum of charges on his own instead of submitting a report of enquiry to the Government. Counsel submits, that the petitioner had requested that he may be given an opportunity of adducing evidence. He had also requested for a personal hearing. Neither was granted, and he submitted his report, assuming that the requirements of the rules were satisfied because he had taken evidence prior to the framing of the charge. 4. Counsel submits, that the petitioner had requested that he may be given an opportunity of adducing evidence. He had also requested for a personal hearing. Neither was granted, and he submitted his report, assuming that the requirements of the rules were satisfied because he had taken evidence prior to the framing of the charge. 4. I would have expected the Government, at least when it received notice in this Original Petition, to examine the assertions of the petitioner carefully and to rectify the defects to the possible extent immediately thereafter. Instead of doing that, the respondents have filed a counter affidavit, justifying Exts.P6 & P9. I do not find a better word to describe this attitude than obstinancy. It should have been 'easy for the respondents to find, that the petitioner was fully justified in his submission that the enquiry was not in compliance with the requirements of R.15 of the Civil Services (Classification, Control and Appeal) Rules. The Board of Revenue had not framed charges against the petitioner when it appointed the enquiry officer. Nor did the enquiry officer commence, the enquiry after framing definite charges against the delinquent. He examined six witnesses on three days without any charge and then issued Ext. P2 memorandum of charges on 19-111975. It should have been evident for a reasonably well-informed bureaucrat in Government, that the enquiry officer went wrong in putting the cart before the horse. He could, of course, have altered or modified the charges, during the course of the enquiry. But, he could have conducted the enquiry only on the basis of specific and definite charges. It should have been obvious to him that the charges had to be proved in the enquiry and that had to be done by production of oral and documentary evidence in the presence of or with notice to the delinquent officer. The enquiry officer should have examined the witnesses in support of the charge only after and not before he framed the charges. Such witnesses ought normally to have been offered for cross-examination. The enquiry officer did not comply with neither of these basic requirements in this case. He ought to have given an opportunity to the petitioner to examine witnesses in his defence. The enquiry officer did not give him any such opportunity of defence. Such witnesses ought normally to have been offered for cross-examination. The enquiry officer did not comply with neither of these basic requirements in this case. He ought to have given an opportunity to the petitioner to examine witnesses in his defence. The enquiry officer did not give him any such opportunity of defence. Sub-rule (10) of R.15 of the Rules discloses, that the record of inquiry shall include "(i) the charges framed against the Government servant and the statement of allegations furnished to him under sub-rule (3); (ii) his written statement of defence if any; (iii) the oral evidence taken in the course of the enquiry; (iv) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry; and (v) the documentary evidence considered in the course of the inquiry; (vi) a report setting out the findings on each charge and the reasons therefor". Admittedly, no oral evidence was taken in the course of the enquiry; nor was any documentary evidence adduced. Sub-rule (12) obliges the disciplinary authority, to furnish a copy of the report to the delinquent officer, inform him of the action proposed to be taken and call upon him to submit his defence. In every case where it is necessary to consult the Commission, the record of the enquiry together with a copy of the show cause notice and the representation made in response there to have to be forwarded to the Public Service Commission. The respondents did not comply with this requirement. In other words, the punishment of compulsory retirement from the service was imposed in total disregard of almost all the procedural requirements of R.15 of the Classification, Control and Appeal Rules. 5. I did not hear the Government Pleader to submit that any evidence, oral or documentary, was adduced during the course of the enquiry after issue of Ext. P2. On the other hand, he asserts that the petitioner was allowed to cross-examine the witnesses, who were examined on 18th/ 19th May 1975 and 14th October, 1975. According to the Government Pleader, that is sufficient compliance with the procedural requirements of R.15 of the Classification, Control and Appeal Rules. I am not persuaded to accept this submission. A preliminary enquiry or investigation may perhaps be conducted before commencement of a formal disciplinary enquiry under R.15 of the Rules. According to the Government Pleader, that is sufficient compliance with the procedural requirements of R.15 of the Classification, Control and Appeal Rules. I am not persuaded to accept this submission. A preliminary enquiry or investigation may perhaps be conducted before commencement of a formal disciplinary enquiry under R.15 of the Rules. It may, perhaps, be that the delinquent officer participates in such enquiry or investigation and cross-examines witnesses. That is no substitute for a formal enquiry, during the course of which evidence, oral and documentary", in support of the charge or charges had to be adduced. R.15 (2) obliges the appointing authority or any other authority empowered by the Government in that behalf to frame "definite charge or charges which shall be communicated to the Government savant 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 in the case. Thereafter the delinquent officer has to be given an opportunity to submit a written statement of defence and also to state whether he desires to be heard in person. Admittedly, these requirements have not been complied with. The disciplinary authority never farmed charges against the petitioner; only the enquiry officer did. Neither the Board of Revenue nor the Government consulted the Public Service Commission as is obligatory for imposition of a major penalty as provided in R.15 (12) of the Classification, Control and Appeal Rules. 6. It should have been evident to the Board of Revenue and the Government, that the entire proceedings, though perhaps belated, and the punishment, though fully merited, did suffer from serious procedural irregularities. They had sufficient opportunity to correct themselves. What stood in their way was their obstinacy to see reason. The consequence is that the entire proceedings must fail. Petitioner, on whom appropriate penalty could have been imposed within a reasonable time, has been kept out of service for about 18 years now. The penalty imposed on him was compulsory retirement from service with effect from 1-2-1970. Cancellation of the proceedings obliges the Government to treat him as in service, unless they pass orders under R.56 of Part I, Kerala Service Rules. Even that must cost them a lot. All only because of the obstinate refusal to see reason, appreciate facts of the case and understand the inherent defects of an improper enquiry. Cancellation of the proceedings obliges the Government to treat him as in service, unless they pass orders under R.56 of Part I, Kerala Service Rules. Even that must cost them a lot. All only because of the obstinate refusal to see reason, appreciate facts of the case and understand the inherent defects of an improper enquiry. If the State loses this case according to me it should it is only because of the refusal to see reason, appreciate its own weakness, an unreasonable righteousness and a belief in its own infallibility. 7. The Government Pleader made a valiant and heroic effort to sustain the impugned proceedings. He said, that the requirements of natural justice . should not be reduced into unnatural ritual or an absolutely formalistic ceremony. Petitioner had enough opportunity to know the evidence against him and had cross-examined all the witnesses. Counsel submits that should be sufficient compliance with the requirements of R.15 of the Classification, Control and Appeal Rules. He proceeded further to state, that the refusal to consult the Public Service Commission is incapable of rendering an order of the Government invalid for that reason. 8. Art.311 (2) of the Constitution of India provenes that no civil servant shall be dismissed, removed or reduced in rank except after (a) conducting an inquiry, (b) in which he is informed about the charges against him, and (c) is given a reasonable opportunity of being heard in respect of those charges. R.15 of the Classification, Control and Appeal Rules only works out the details of these constitutional requirements. The proviso added to the above sub article by the 42nd Amendment Act has the effect of explaining the scope of the terms "opportunity of being heard in respect of those charges". That opportunity now consists only of effective participation in the inquiry. The delinquent officer has no further opportunity to make representations against the proposed penalty. The constitutional requirements therefore are that the delinquent employee must be informed of the charges and he shall be permitted to effectively participate in an inquiry into those charges. Those are the basic requirements of R.15 of the Classification, Control and Appeal Rules as well. The details of procedure are elaborated in R.15. Every such detail is a part of the reasonable opportunity which the Constitution guarantees to the civil servants. Those are the basic requirements of R.15 of the Classification, Control and Appeal Rules as well. The details of procedure are elaborated in R.15. Every such detail is a part of the reasonable opportunity which the Constitution guarantees to the civil servants. One such is the requirement of R.15 (12) of the Rules to consult the Public Service Commission. Non-compliance with any such procedural requirement renders the penalty order less and less efficacious. The effect of non-compliance with the basic requirements is to render the order invalid altogether. I have no doubt in my mind that the undeniable non-compliance with R.15 of the Classification, Control and Appeal Rules invalidates Ext. P6 order. Undeniable, because, neither in Ext. P6 or Ext. P9 order nor in the counter affidavit has any of the respondents a case that the charges were framed prior to the inquiry or that any inquiry was conducted after farming the charges. Added to that is the refusal to consult the Public Service Commission as enjoined by R.15 (12) of the Rules. I have, therefore, no hesitation to hold that Ext. P6 and Ext. P9 orders are invalid and liable to be set aside. 9. I am aware of the position in law that the Public Service Commission is only an advisory body and its advice in matters of public employment may not be finally determinative. But in a case where consultation with the Public Service Commission is prescribed by the rules as a part of the reasonable opportunity given to a public servant before imposing major penalties, different considerations do arise. If consultation with the commission is part of such opportunity, and no consultation was made, the non-compliance is not of a directory provision dealing with the advisory functions of the Commission, but amounts to denial of reasonable opportunity. This is not to say that the opinion of the Commission shall be binding on the Government. It definitely is obligatory to consult the Commission. The Government may perhaps be persuaded by better counsel of an impartial and independent body before it takes the final and irreversible decision. In that sense, the process of consultation is a part of the reasonable opportunity guaranteed by the Constitution to the delinquent public servant. Non-compliance with R.15 (12) of the Classification, Control and Appeal Rules, therefore, renders Exts. P6 and P9 illegal and invalid. 10. In that sense, the process of consultation is a part of the reasonable opportunity guaranteed by the Constitution to the delinquent public servant. Non-compliance with R.15 (12) of the Classification, Control and Appeal Rules, therefore, renders Exts. P6 and P9 illegal and invalid. 10. I have no course open other than to allow this Original Petition. I do so with a heavy heart, because if better counsel had prevailed upon the State much earlier as it should have, the State could have saved a lot of money and much more of embarassment. It ought not to have behaved like a cantankerous litigant aiming to win somehow or the other, even at the cost of the Constitutional rights of a civil servant. Whether the particular civil servant does deserve any sympathy is a matter which depends on the. merits of the case. I am not called upon to consider that in this Original Petition. He cannot, however, be denied the success which he deserves, if his complaint of violation of his constitutional rights is sustainable. If he deserves punishment, it is for the State Government to impose such punishment after a de-no vo inquiry conducted in strict compliance with R.15 of the Classification, Control and Appeal Rules. 11. The Original Petition is, therefore, allowed. Exts. P6 and P9 orders are quashed. It will be open to the respondents to take proceedings under R.13 and 15 of the Classification, Control and Appeal Rules and/or R.56 Part I of Kerala Service Rules as they are advised to. The respondents shall pay the costs of the petitioner including advocate's fee of Rs. 500/-.