Bharath Kumar v. Administrator — 1990 DIGILAW 130 (KER)

Judgment :- 1. The petitioner is an Upper Division Clerk in the service of the Guruvayoor Devaswom. The administration, control and management of the Devaswom is vested in a committee called "the Guruvayoor Devaswom Managing Committee", constituted under the Guruvayoor Devaswom Act 14 of 1978 (the Act, in brief). 2. An office file was started relating to allotment of rooms belonging to the Devaswom. The petitioner made some obnoxious noting in the file on March 3,1984, making aspersive remarks about the head of the administration, namely the Administrator, and the Superintending Engineer. The remarks were uncalled for, and irrelevant in the file dealt with, apart from the gross impropriety of a minor minion like the petitioner, utilising an office file to cast aspersions on his superiors. Naturally this was treated as an act of indiscipline and insubordination, and the Administrator of the Devaswom charge sheeted the petitioner by his memo of charges Ext.P1 dated March 5,1984, calling upon him to show cause why the penalty of stoppage of increments for two years with cumulative effect should not be imposed on him. The petitioner showed cause by his reply Ext.P2. Far from being contrite, he attempted to justify his noting, at the same time claiming that his action was motivated by the bonafide intention of bringing the "emotions" of the employees of the Devaswom to the notice of the authorities. The Administrator was not however prepared to accept the explanation, and he passed the order Ext.P3. The Administrator took a serious view of the petitioner's irresponsible conduct which, he said, merited imposition of the penalty proposed in the notice to show cause Ext.P1. Still he took a lenient view of the matter, and imposed the lighter penalty of withholding increments for a period of six months with cumulative effect, as against the penalty of withholding increments for two years with cumulative effect, proposed in Ext.P1. 3. Despite the lenience shown, the petitioner challenged the order Ext.P3 in' appeal Ext.P4, before the managing committee of the Devaswom, under Regulation24 of the Guruvayoor Devaswom Employees Regulations, 1983 framed under S.39 of the Act. His attempt in the appeal was to justify his conduct as part of his duty of constructive co-operation from the staff. 3. Despite the lenience shown, the petitioner challenged the order Ext.P3 in' appeal Ext.P4, before the managing committee of the Devaswom, under Regulation24 of the Guruvayoor Devaswom Employees Regulations, 1983 framed under S.39 of the Act. His attempt in the appeal was to justify his conduct as part of his duty of constructive co-operation from the staff. He stated that a right to point out "deficiencies" was necessary for the proper growth of the institution, and that by stifling such right, it was apparent that "constructive co-operation" with the administration was becoming impossible. The service rules have to be interpreted in this "democratic" background. The penalty imposed on the petitioner should therefore be cancelled. 4. It is evident from the appeal that the petitioner was not touched with any degree of remorse for what he had done. On the other hand, it was his view that it was his right and duty to indulge in such behaviour, which according to him constituted "constructive co-operation". 5. The managing committee took the view that the misconduct, of the petitioner did not merit any lenience and that the penalty as proposed in the notice to show cause Ext.P1 should be imposed on him. Accordingly the notice Ext.P5 was issued on July 12,1984 to show cause why the penalty should not be enhanced, and that proposed originally should not be imposed. Since the petitioners explanation Ext.P6 was not satisfactory, the managing committee proceeded to pass the order Ext.P7 holding that the petitioner did not deserve any sympathy or lenience. The penalty was enhanced to one of withholding the increments for a period of two years with cumulative effect. The petitioner sought review of this order, which was not successful, being rejected by the proceedings Ext.P9 dated May 17,1985. The petitioner thereupon filed this original petition challenging Exts.P3, P7 and P9. 6. Though the petitioner has raised the plea that there was no misconduct on his part in making the tell-tale note, I am not inclined to agree. An Upper Division Clerk like the petitioner had absolutely no right to make a noting in the file, casting serious aspersions on the bonafides of the Administrator, and the Superintending Engineer. 6. Though the petitioner has raised the plea that there was no misconduct on his part in making the tell-tale note, I am not inclined to agree. An Upper Division Clerk like the petitioner had absolutely no right to make a noting in the file, casting serious aspersions on the bonafides of the Administrator, and the Superintending Engineer. If really he wanted to ventilate the grievances or emotions, as he calls it - of the employees he should have done so before the Administrator or the managing committee in an appropriate manner consistent with the discipline which an employee is expected to maintain. A file dealt with by him is not the forum for making allegations, even assuming that there was any truth in them. Despite all this, the petitioner was never penitent for what he did, as is evident from the tone of Exts.P2 and P4. He persisted in justifying his stand even when the misdemeanour was pointed out to him. I am therefore of the view that the finding of misconduct was rightly entered by the respondents. The point is not worthy of more elaborate consideration. 7. The petitioner challenges Ext.P7 on another ground as well. He says that the appellate authority, namely the managing committee, has acted without jurisdiction in enhancing the penalty while disposing of an appeal filed by him. It is his case that the appellate authority cannot, on an appeal filed by him, put him to greater detriment than what he would have suffered by not filing the appeal. No such power is vested in the appellate authority. The question therefore turns upon the powers of the appellate authority, namely the managing committee of the Devaswom. 8. The Guruvayoor Devaswom managing committee is a body corporate constituted by the Guruvayoor Devaswom Act, 1978. S.39 of the Act enables the committee, subject to approval of Government, to make regulations, in particular, providing for the conditions of service of the officers and employees of the Devaswom. The managing committee has accordingly framed the Guruvayoor Devaswom Employees Regulations, 1983 with the approval of the Government on December 3,1983. Regulation 23 makes the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (hereinafter referred to as the Civil Services Rules) as amended from time to time applicable to all the employees, of the Devaswom, including those working in temporary posts. Regulation 23 makes the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (hereinafter referred to as the Civil Services Rules) as amended from time to time applicable to all the employees, of the Devaswom, including those working in temporary posts. Regulation 24 entitles every member of the Devaswom service to appeal to the managing committee against any order of the Administrator passed under the provisions of the regulations. Sub-regulation (c) states that while disposing of the appeal, the managing committee shall consider all the circumstances of the case, and pass such orders as it may deem just and equitable. No second appeal or revision lies to any authority against the orders of the managing committee. Since the scope of Regulation 24 arises for consideration, I shall extract it in full. 24. Appeals:- (a) Every member of the Guruvayoor Devaswom service shall be entitled to appeal against any order of the Administrator passed under the provisions of these Regulations to the Guruvayoor Devaswom Managing Committee. (b) No appeal shall be entertained unless it is submitted within a period of two months from the date in which the appellant receives a copy of the order appealed against. Provided that the Managing Committee may entertain an appeal after the expiry of the said period if it is satisfied that the appellant has sufficient cause for not submitting the appeal in time. (c) While disposing of the appeal the Managing Committee shall, consider all the circumstances of the case and pass such orders as it may deem just and equitable. (d) Against the orders passed by the Managing Committee on the appeal no second appeal or revision shall lie to any authority. (e) The Administrator shall give effect to the orders of the Managing Committee on the appeal. 9. The question for consideration is whether the appellate authority, namely the managing committee has the power to enhance the penalty imposed by the disciplinary authority, in an appeal filed by the aggrieved employee. The contention of counsel for the Devaswom is that Regulation 23 attracts all the provisions of the Civil Services Rules to employees of the Devaswom and therefore, the appellate authority is empowered by R.31(2)(e) of those rules, to consider whether the penalty imposed is excessive, adequate or inadequate, and to enhance it in cases where it is necessary. The contention of counsel for the Devaswom is that Regulation 23 attracts all the provisions of the Civil Services Rules to employees of the Devaswom and therefore, the appellate authority is empowered by R.31(2)(e) of those rules, to consider whether the penalty imposed is excessive, adequate or inadequate, and to enhance it in cases where it is necessary. The contention is that when the Civil Services Rules have been bodily incorporated and made applicable to employees of the Devaswom, R.31 of those rules applies in full force to the consideration of the appeal filed by the aggrieved employee, thereby attracting to the appellate authority the power to enhance the penalty imposed by the disciplinary authority. 10. I am unable to agree with this submission so strenuously urged by counsel for the respondents. It is true that Regulation 23 makes applicable the provisions of the Civil Services Rules to employees of the Devaswom. If the matter had stood there, without anything more, but only with appropriate changes regarding the appellate forum, I would have been inclined to accept the contention of the respondents that the managing committee in this case possesses all the powers which the appellate authority functioning under R.31 of the Civil Services Rules possesses. But, that is not the case here. The regulations did not stop with applying the Civil Services Rules to the employees of the Devaswom. They went further with specific provision, namely Regulation 24, regarding the forum of appeal, its contents, the period within which it should be filed and the nature of disposal of the appeal. This is a specific provision relating to employees of the Devaswom. When the regulation specifically provides the mode in which the appeal is to be preferred, and disposed of, including the scope of the appellate power, the appellate authority under the regulations has to exercise its power subject to this regulation and not as provided elsewhere in R.31 of the Civil Services Rules. All the contents of the appellate power, right from the filing to the disposal of the appeal have to be located in, and limited by, by what is contained in Regulation 24. This specific provision overrides and prevails over R.31 of the Civil Services Rules. If this were not the intent, sub-clauses (b) to (d) of Regulation 24 were unnecessary. All the contents of the appellate power, right from the filing to the disposal of the appeal have to be located in, and limited by, by what is contained in Regulation 24. This specific provision overrides and prevails over R.31 of the Civil Services Rules. If this were not the intent, sub-clauses (b) to (d) of Regulation 24 were unnecessary. The whole thing could have been left at large with reference to R.31 after prescribing the managing committee as the appellate authority. When the regulations did not choose to do so, but went further and laid down other details regarding the appeal, the powers of the appellate authority have got to be traced to Regulation 24 and not to R.31. The appeal to R.31 made by counsel for the respondents has therefore to fail. The matter has to be decided with reference only to Regulation24. 11. The question then is whether Regulation 24 enables enhancement of the penalty. Counsel for the Devaswom was at pains to submit that sub-clause (c) of the regulation is wide in its ambit, in that the managing committee is enabled to consider all the circumstances of the case and pass such orders as it may deem just and equitable. Considerable reliance was placed by him on the decision of the Supreme Court in Narendra Singh v. Chhotey Singh, AIR 1983 S.C. 990. 12. An appeal is the resort made by an aggrieved person to a superior forum to review the decision of an interior authority and to set aside, revise or modify to his advantage, the decision of the said authority. The hazard that the appellant runs is limited by the powers of the appellate authority. In an ordinary appeal, therefore the worst that could happen to the appellant is to suffer a dismissal of his appeal. But if the appellate authority is vested expressly with the power of passing a more burdensome order, the appellant runs the risk of having the entire matter open for consideration, with the likelihood of his being placed in a worse situation than what he was before he filed the appeal. The whole thing therefore depends upon the scope of the appellate power. 13. Ordinarily a person who comes before the appellate authority appeals to it to redress a grievance alleged by him. The whole thing therefore depends upon the scope of the appellate power. 13. Ordinarily a person who comes before the appellate authority appeals to it to redress a grievance alleged by him. He is the person dissatisfied with the judgment, or proceeding appealed against, and what he does in filing the appeal is to seek a relief which has been denied to him, or to redress an injury which has been done to him by the subordinate court, tribunal or authority. The appellate authority may support the judgment or proceeding on any other ground, though it may not bring to life an area of enquiry which has been concluded in favour of the appellant and purport to penalise hint upon new findings with respect to that area. In other words, the appellate authority has to deal with an appeal as it is, and either allow the appeal wholly or partly, or dismiss it, but not to put the party in a situation worse than what he was at the time he filed the appeal unless the appellate authority was expressly empowered to do so. 14. In Vijaya Stores v. State of Kerala, 1975 KLT 569, a Division Bench of this court had occasion to consider the powers of the appellate tribunal functioning under the Kerala General Sales-tax Act, 1963 to enhance an assessment while disposing of an appeal filed by the assessee. Inter alia, sub-clause (4) of S.39 of that Act enabled the appellate tribunal to enhance an assessment when disposing of an appeal. The question arose whether in an appeal filed by the assessee where he sought reduction of the assessment, the Tribunal could enhance the assessment to his detriment. This court held that normally an appellate authority dealing with an appeal will not pass an order prejudicial to the party that has appealed against a decision. An aggrieved assessee, when he claims that the assessment must be reduced or cancelled should not be burdened with a higher liability or obligation than that imposed by the orders appealed against. An appeal, as the word indicates, is a request for reduction, and the worst that can happen to the appellant is that his appeal would be dismissed. In stating this, the Bench fortified themselves with reference of the observations of Kania, J. in Motor Union Insurance Co. Ltd. v. Commissioner of Income-tax, AIR 1945 Bom. An appeal, as the word indicates, is a request for reduction, and the worst that can happen to the appellant is that his appeal would be dismissed. In stating this, the Bench fortified themselves with reference of the observations of Kania, J. in Motor Union Insurance Co. Ltd. v. Commissioner of Income-tax, AIR 1945 Bom. 285, and of Chagla, C. J. in New India Life Assurance Co. Ltd. v. Commissioner of Income-tax, 31 I.T.R. 844. 15. This decision of the Division Bench was affirmed by the Supreme Court in State of Kerala v. Vijaya Stores, 1978 KLT 802. Inter alia, the Supreme Court approved the following observations of Kania, J. in the first of the above-mentioned cases, where the learned judge stated: "Apart from statute, it is elementary that if a party appeals, he is the party who comes before the Appellate Tribunal to redress a grievance alleged by him. If the other side has any grievance, he has a right to file a cross-appeal or cross-objections. But if no such thing is done, the other party, in law, is deemed to be satisfied with the decision. He is, of course, entitled to support the judgment of the first officer on any ground open to him, but he is not entitled to raise a ground so as to work adversely to the appellant and in his favour." 16. A Division Bench of the High Court of Rajasthan had occasion to deal with a similar problem in Poonamram v. State of Rajasthan, AIR 1960 Raj. 56. In that case, the Deputy Inspector General of Police imposed a penalty of reducing the petitioner from the post of Head Constable to that of Constable for a period of two years. On the petitioner's appeal, the Inspector General of Police took the view that the punishment awarded was inadequate. After issuing notice to show cause, he disposed of the appeal enhancing the punishment, and discharging the petitioner from service. That order was challenged before the High Court of Rajasthan on various grounds, including the ground that, as an appellate authority, the Inspector General had no jurisdiction to enhance the penalty on an appeal filed by the delinquent Constable. This contention was accepted by the Division Bench. That order was challenged before the High Court of Rajasthan on various grounds, including the ground that, as an appellate authority, the Inspector General had no jurisdiction to enhance the penalty on an appeal filed by the delinquent Constable. This contention was accepted by the Division Bench. After noting that the relevant rules governing the service did not vest the Inspector General with any power to enhance the penalty imposed by the disciplinary authority, the Bench observed: "We should also like to point out that as a matter of principle an appellate authority in an appeal by an aggrieved party may allow the latter's appeal partly or wholly or may dismiss it but it cannot give him higher punishment, and thereby make his position worse than it would be if he had not appealed unless it has been vested with what we may conveniently call revisional jurisdiction by resort whereto the power to award enhanced punishment to the person in default is vouchsafed to it by law. Such power the Inspector General did not have at the time he passed the order which has been impugned in this case. That being so, the conclusion is irresistible that the order passed by the Inspector General of Police enhancing the punishment awarded to the petitioner by the Deputy Inspector General of Police in this case was entirely without jurisdiction and cannot be sustained in law." . 17. The Supreme Court also had occasion to deal with a similar problem in M.N. Srivastava v. State of Bihar, AIR 1971 S.C.1106. Srivastava, an Inspector of Police in the State of Bihar was the appellant before the Supreme Court. The proceedings against him had a chequered career. Disciplinary proceedings were initiated against him alleging misappropriation, and connivance in misappropriation by two other constables. The Inspector General of Police, who examined the findings of the enquiring authority, exonerated him of all the charges, but in view of certain adverse remarks in his confidential records he was ordered to be reverted to his substantive rank of Sub Inspector of Police for a period of one year. R.851(b) of the Bihar and Orissa Police Manual, 1930, provided for appeal against an order, inter alia, of reduction in rank. Srivastava filed appeal to the Government. R.851(b) of the Bihar and Orissa Police Manual, 1930, provided for appeal against an order, inter alia, of reduction in rank. Srivastava filed appeal to the Government. Government set aside the order of reversion on the ground that no opportunity had been given to Srivastava to explain the adverse entries in the confidential records and that therefore the reversion was illegal. The Government did not however stop there, but proceeded to disagree with the findings of the Inspector General of Police on the charges laid against the delinquent. They chose. to agree with the findings rendered by the enquiry officer, found Srivastava guilty and accordingly dismissed him from service. This order was affirmed in appeal by the Governor. Srivastava challenged the dismissal by filing a writ petition in the High Court of Patna. The judgment of the High Court is reported in Makeshwar Nath Srivastava v. State of Bihar, AIR 1962 Patna 276. The High Court held that Government had the power to enhance the punishment imposed on the delinquent in an appeal filed by him against the order of the Inspector General of Police. However and since the power had been exercised without issuing notice to the delinquent of the proposal to inflict a higher penalty and without affording him an opportunity to be heard, the writ petition was allowed, and the impugned order quashed, with liberty to Government to dispose of the appeal in accordance with law. 18. Government thereafter disposed of the appeal, dismissing Srivastava from service. His writ petition challenging the order before the High Court was dismissed in limine, and the matter was taken up in appeal to the Supreme Court. The Supreme Court considered the question whether it was competent for Government, in the appeal filed by Srivastava against the order of revision passed by the Inspector General of Police, to set aside the findings of that officer by which he exonerated the appellant from the charges against him, against which no appeal had been filed by the department and then pass an order of dismissal accepting the findings of the enquiry officer. The Supreme Court stated that in the absence of any provision of law or rule empowering Government to pass an order of dismissal in exercise of a revisional power of general superintendence, the general principle of law must prevail, namely that an appellate authority in an appeal by an aggrieved party may either dismiss the appeal or allow it wholly or partly or to set aside or modify the order challenged in the appeal. They cannot surely impose on the appellant a higher penalty and condemn him to a position worse than the one he would be if he had not hazarded to file an appeal. The order of dismissal passed by Government was therefore quashed as without jurisdiction. 19. In dealing with the appeal, the Supreme Court dealt with a further contention that Government was vested with a power of revision against the orders of the Inspector General of Police and therefore the order of dismissal could be rested on that power. The court negatived this contention on the ground that the power of revision could not be exercised when an appeal was filed. The power of revision was intended to be used only when an appeal could not for some reason be filed, and the appellate authority felt that the order was so unjust and unreasonable that it should act under the revisional power. That was not the case here. 20. It is true that in Srivastava's case the Supreme Court proceeded as if the department had also a right of appeal against the order of the Inspector General of Police. But the ratio of the decision is not influenced by this factor, as the Supreme Court went on the general principle that an appellant should not be placed in a worse position than that he would have occupied had he not hazarded to file an appeal. 21. The position therefore is that no person shall be jeopardised by his venturing to file an appeal to redress his grievances, by the appellate authority placing him in a worse position than what he occupied before he filed the appeal. The power to enhance the penalty is not available to the appellate authority unless such a power is expressly or by necessary implication conferred by the governing provisions. 22. There is no express power of enhancement in Regulation 24(c), nor, in my opinion anything by necessary implication. The power to enhance the penalty is not available to the appellate authority unless such a power is expressly or by necessary implication conferred by the governing provisions. 22. There is no express power of enhancement in Regulation 24(c), nor, in my opinion anything by necessary implication. The fact that the appellate authority is enabled to pass such orders as it may deem just and equitable does not imply a power to enhance the penalty. "Just and equitable" means just and equitable to the appellant who has moved the appellate authority for relief. Enhancement of the penalty to the detriment of the appellant is the very negation of justice and equity to him and is in effect a punishment for daring to file the appeal. The general principles of law set forth above regarding the disposal of an appeal are not in any manner affected by the use of the words, "just and equitable". Such a power of enhancement is not necessarily discernible from the context of the provisions. I do not find any such implication either in the rule in question. 23. It is necessary at this juncture to deal with the decision in Narendra Singh v. Chhotey Singh, AIR 1983 SC 990, where the Supreme Court was dealing with the powers of the Bar Council of India under S.37 of the Advocates' Act, 1961 to enhance the punishment imposed on an advocate. The advocate concerned was suspended from practice for a period of six months by the Bar Council of his State. He challenged the order in appeal before the Bar Council of India. The Bar Council of the State had exonerated the advocate of the third of the three charges levelled against him, but found him guilty of the other two charges. The Bar Council of India reversed the findings on charges 1 and 2; at the same time, they held that the Bar Council of the State had not properly dealt with charge No.3. Accordingly, they remitted the matter back to the Bar Council of the State with a direction to reconsider, and pass appropriate orders on charge No.3. This order of the Bar Council of India was challenged in appeal before the Supreme Court. Accordingly, they remitted the matter back to the Bar Council of the State with a direction to reconsider, and pass appropriate orders on charge No.3. This order of the Bar Council of India was challenged in appeal before the Supreme Court. S.37 of the Advocates Act vests the appellate body, namely the Bar Council of India, to pass such order including an order varying the punishment awarded by the Bar Council of the State, as it deems fit. The Supreme Court examined the provisions of the Act in detail. The Court noted that disciplinary proceedings against a lawyer involve not merely a particular lawyer but the entire profession, and the reputation of the legal profession was the sum total of the reputation of the practitioners. The duty to lay down professional standards and ethics was charged on the Bar Council of India. It had also the duty to safeguard the rights and interests of the advocates and to perform various other functions conferred on it by or under the Act. The appellate body was therefore exercising an appellate power, which had to be exercised keeping in view its functions under the Act. The appellate jurisdiction had therefore to be viewed in a larger perspective. The appellate body enjoyed a very wide jurisdiction, which extended even to vary the punishment imposed by the Bar Council of the State. In that context and having regard to the provisions of the Advocates Act and the role and function assigned to the Bar Council of India under the Act, the Supreme Court upheld the order of remand made by the Bar Council of India. It was also in this context that the decision in Srivastava's case was held "inappropriate" and inapplicable in deciding the scope of the appellate power under the Advocates Act. 24. The decision in Narendra Singh's case has therefore to be limited to the provisions of S.37 of the Advocates Act, read in the context of the role the Bar Council of India has to perform in the discharge of its duties to the legal profession. 25. I am therefore of the opinion that Regulation 24(c) does not enable the managing committee of the Devaswom to enhance the penalty imposed on the petitioner, and that the proceeding Ext. P7 has, to that extent, been passed without jurisdiction. The order Ext.P3 has to be restored. 25. I am therefore of the opinion that Regulation 24(c) does not enable the managing committee of the Devaswom to enhance the penalty imposed on the petitioner, and that the proceeding Ext. P7 has, to that extent, been passed without jurisdiction. The order Ext.P3 has to be restored. It is unnecessary to quash Ext.P9 as the petition Ext.P8 on which it was passed was not a statutory remedy available to the petitioner in relation to Ext. P7. 26. I therefore allow this original petition and quash Ext.P7 to the extent it enhances the penalty imposed on the petitioner. Ext.P3 will stand restored. 27. I must however, confess that I am rather unhappy to allow this original petition. The conduct of the petitioner in casting aspersions on his superiors was reprehensible. There was gross insubordination on his part in attributing such motives on the Administrator and the Superintending Engineer, particularly in a file being handled by him. This was no occasion for him to make any such remarks. He was not repentant, even when this was pointed out to him. On the other hand he attempted to justify his action. A sense of obedience and discipline has to inform the conduct and behaviour of the employees in any institution. The petitioner's action therefore deserves severe condemnation and condign punishment. The managing committee was therefore perfectly justified in desiring to take a stern stand against the petitioner. Their action is set aside only for lack of power. It is true that the jurisdiction under Art.226 is discretionary, but when there is total absence of jurisdiction in the managing committee to enhance the punishment, it will be improper to deny relief to the petitioner regarding that part of the order Ext.P7.