Bhagaval Das v. State of Kerala — 1993 DIGILAW 545 (KER)

Judgment :- 1. A. Abdul Kaffar, the Petitioner in O.P. 14255 of 1993 and C.K. Bhagaval Das, the petitioner in O.P.No. 15625 of 1993 were holding the posts of the Sales tax Officer, Agricultural Income tax and Sales tax, Kollam and Additional Appellate Tribunal, Agricultural Income tax and Sales tax, Kozhikode respectively. Upon conviction for the offences under Ss.5(2) read with 5(1)(c) of the Prevention of Corruption Act, each of them was sentenced to suffer imprisonment for six months, A. Abdul Kaffar, the Petitioner in O.P.14255/93 filed Criminal Appeal 281/93 and C.K. Bhagaval Das, the petitioner in O.P.15625/93 filed Criminal Appeal 299/93, before this court. On interlocutory applications made by them, the sentences imposed on them were suspended and they were released on bail. The State of Kerala, the Respondent No.1 herein by order Nos. A8.49754/93/TX dated 5-8-1993 and G.O.(MS) No.122/93/TD dated August 4,1993 dismissed A. Abdul Kaffar and C.K. Bhagaval Das respectively. The petitioners impugn these orders. 2. The question is whether the Government in exercise of its authority under the second proviso to sub-article (2) of Art.311 of the Constitution of India and R.18 of the Kerala Civil Services (Classification, Control and appeal) Rules, 1960 is bound (i) to follow the principles of natural justice and (ii) consult the Public Service Commission before dismissing a government servant. 3. Article 311 of the Constitution of India enjoins that no member of a civil service of a State shall be dismissed, removed or reduced in rank except after an inquiry i n which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. But, the first proviso stipulates that it shall not be necessary to give a second opportunity of making a representation against the penalty imposed. The second proviso to sub-article (2) of Art.311 of the Constitution of India lays down that the provision as to the inquiry and reasonable opportunity of being heard, in respect of the charges shall not apply, inter alia, where a person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. The present case falls under clause (a) of the second proviso to sub-Art.(2) of Art.311 of the Constitution. The present case falls under clause (a) of the second proviso to sub-Art.(2) of Art.311 of the Constitution. The Government was therefore right in proceeding under R.18 of the Kerala Civil Services (Classification, Control and appeal) Rules which, consistently with the second proviso to sub-article (2) of Art.311, lays down that the procedure under Rr.15,16 and 17 which prescribe the procedure for imposing the penalties need not be followed. 4. Learned Government Pleader Smt. Hemalata very strongly urged that in view of the conviction of the petitioners, the Government was within its authority in making the impugned orders. She rightly urged that the suspension of the sentences did not alter the petitioners' status as convicts. No doubt, the petitioners cannot be heard on the question whether they are guilty of the charge and as the learned Government Pleader Mrs. Hemalata urged, I must proceed on the basis that the petitioners are convicted for criminal charges. But, the question still remains whether even in cases falling under R.18, which does away with inquiry into the charges, the State Government is bound to observe principles of natural justice before imposing the penalty. 5. The thrust of the argument of Mrs. Hemalata is that in view of the undisputed conviction of the petitioners, such opportunity would make no difference to the result. This argument cannot be accepted. The argument that a man could not complain of the failure of natural justice unless he could show that he has been prejudiced by it or that an opportunity of being heard would have led to the same result, has been rejected by a long series of judicial opinions. In S.I. Kapoor v. Jagmohan and others (AIR 1981 SC 136), it has been held that "the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed". The non-observance of the natural justice is itself a prejudice and proof of prejudice independently of the proof of denial of natural justice is unnecessary. Therefore, in my opinion, the Respondents were in error in not hearing the petitioners on the question whether they should be dismissed. 6. The submission that the government servant subjected to the procedure under R.18 has no defence or that the observance of the natural justice was a futile, technical or formal exercise is not correct. Therefore, in my opinion, the Respondents were in error in not hearing the petitioners on the question whether they should be dismissed. 6. The submission that the government servant subjected to the procedure under R.18 has no defence or that the observance of the natural justice was a futile, technical or formal exercise is not correct. Under R.18, the disciplinary authority or the Governor is empowered to "pass such orders thereon as he deems fit". The words "pass such orders thereon as he deems fit" are qualified by the preceding clause "may consider the circumstances of the case and". These qualifying words necessarily imply that an officer convicted of a crime may have circumstances in his possession which he may bring to the notice of the disciplinary authority or the Governor, as the case may be. The authorities are enjoined to "consider" "such circumstances". The word "consider" necessarily implies a mental process in which the pros and cons of the proposed action have to be considered in the light of the circumstances to which the delinquent officer may draw attention. The obligation to observe principles of natural justice is inherent in the duty to "consider the circumstances of the case". The disciplinary authority or the Governor is not, under R.18 obliged to dismiss a government servant. That is why the words "pass such orders as he deems fit" have been used. There are a number of alternatives to consider. Firstly, he may choose to postpone the action until the appellate court confirms the conviction. Secondly, he may not dismiss but remove such employee. Thirdly, upon consideration of the circumstances in which the crime was committed, the nature of the evidence, the mitigating circumstances and so on, he may choose to impose a penalty different from dismissal. The existence of these alternatives from which the disciplinary authority or the Governor may choose "such order as he deems fit", means the observance of the principles of natural justice is not an empty formality. 7. In view of what I have said in the foregoing paragraphs, I hold that in cases governed by R.18, the principles of natural justice have to be followed. 8. Admittedly, the petitioners had not been given an opportunity to show cause why the proposed penalty should not be imposed. 7. In view of what I have said in the foregoing paragraphs, I hold that in cases governed by R.18, the principles of natural justice have to be followed. 8. Admittedly, the petitioners had not been given an opportunity to show cause why the proposed penalty should not be imposed. The petitioners could have pointed out the circumstances which would have persuaded the authorities to take a view different from the one they have taken. In my opinion, the impugned orders are void, for non-observance of the principles of natural justice. 9. Then the question is whether the impugned orders violate the prescription which requires consultation with the Public Service Commission. Admittedly, the Public Service Commission has not been consulted before the Petitioners were dismissed. The proviso to R.18 enjoins the disciplinary authority or the Governor as the case may be, to consult the Public Service Commission "in cases where such consultation is necessary under the rules". Then, the question is whether such consultation is necessary under the rules. R.11 of the Kerala Civil Services (Classification, Control and appeal) Rules occurs under Part V under the caption "Discipline". It deals with "the nature of penalty". Penalty No. (viii) under sub-rule (1) of R.11 is "dismissal from the Civil Services of the State Government which shall ordinarily be a disqualification from a future employment". R.16 which deals with procedure for imposing minor penalties, lays down that no order imposing any of the penalties specified in (i) to (iv) of R.11(1) shall be passed except after, inter alia, the Commission is consulted "in cases where such consultation is necessary". Items (i) to (iv) of R.11(1) do not include the punishment of dismissal. Consultation with the Public Service Commission is specifically excluded in the case of penalties at SI.No. (i) to (iv) under sub-rule (1) of R.11. It is R.15 which deals with "procedure for imposing major penalties". There is no provision in this rule which excludes consultation with the Public Service Commission, in respect of dismissal. The specific provision in R.16 and R.11(1) which does away with consultation with the Public Service Commission in the case of minor penalties, may be contrasted with the absence of a similar exclusionary clause in R.15. The differential treatment of the penalties referred to in item Nos. The specific provision in R.16 and R.11(1) which does away with consultation with the Public Service Commission in the case of minor penalties, may be contrasted with the absence of a similar exclusionary clause in R.15. The differential treatment of the penalties referred to in item Nos. (i) to (iv) in sub-rule (1) of R.11 and the penalty of dismissal referred to in item (viii) of the same rule, in the matter of consultation with the Public Service Commission, leads to the only conclusion that in the case of dismissal the Public Service Commission must be consulted. 10. The Kerala Public Service Commission (Consultation) Regulations, 1957 are regulations made under Art.320(3) of the Constitution of India. Regulation No. 6 lays down that it shall not be necessary to consult the Public Service Commission in cases except those set out therein. Dismissal from the civil service of the State is one of the subjects on which such consultation with the Public Service Commission is necessary. It is only in cases of dismissal from service under clause (c) of the second proviso to sub-article (2) of Art.311 that such consultation is not necessary. The dismissal of the petitioners does not fall under clause (c) of the second proviso to sub-article (2) of Art.311 of the Constitution of India. Therefore, upon the analysis of the rules stated above and Art.311 of the Constitution of India, consultation with the Public Service Commission is absolutely necessary in this case. The impugned order is illegal, as it has not been made after consultation with the Public Service Commission. 11. I therefore allow these petitions and make the following order: (i) The Order No. A8.49754/93/TX dated 5-8-1993 (Ext. P2 in O.P.No.142557 93) is quashed. (ii) The Order NO.G.O.(Ms) No.122/93/TD dated August 4,1993 (Ext. P2 in O.P.No.15625/93) is quashed. (iii) The Petitioners herein shall be reinstated in service forthwith with effect from the date on which the impugned orders were made. The reinstatement shall take effect as if the impugned orders were not made. No costs.