Research › Search › Judgment

Kerala High Court · body

2000 DIGILAW 624 (KER)

Meeran Rawther v. State of Kerala

2000-11-24

G.SASIDHARAN, K.S.RADHAKRISHNAN

body2000
JUDGMENT K.S. Radhakrishnan, J. 1. Appellant is a Member (Departmental) of the Sales tax Appellate Tribunal, Thiruvananthapuram. He is in the cadre of Higher Grade Deputy Commissioner in the Commercial Taxes Department. The writ petition was preferred by him seeking to issue a writ of certiorari to quash Ext. P1 memo of charges dated 18.1.2000 which amounts to misconduct, dereliction of duty, falsification of records etc. The charges, according to the appellant, is vitiated by malafides, ill motive and victimisation. The appellant submits that disciplinary proceedings have been initiated against him to deny promotion to the post of Joint Commissioner. The learned single judge did not grant the reliefs prayed for and dismissed the original petition. Aggrieved by the same this appeal has been preferred. 2. The short facts which are necessary for the disposal of the appeal are as follows: Appellant while working as Deputy Commissioner, Commercial Taxes, was suspended from service on 21.4.1998 relying on a complaint preferred by Sri P.K.Kumaran, M.L.A. before the Hon'ble Minister for Finance and Excise alleging that the appellant had used abusive language against him at a conference held on 23.2.1998. Since the action of the officer amounts to disrespect towards the Member of the Legislative Assembly and was unbecoming on the part of a senior government Servant, Government decided to place him under suspension. Consequently order dated 24.4.1988 was passed by the Government keeping the appellant under suspension pending enquiry. Appellant challenged the order of suspension by filing O.P.No 8037 of 1998 before this court. Original petition was dismissed by the learned judge with a direction to complete the disciplinary proceedings within a specified period. Judgment was appealed against by the State by filing W.A.No 1064 of 1998. Writ Appeal was disposed of with a direction to the authorities to complete the disciplinary proceedings within two months failing which appellant was directed to be re-instated. Disciplinary proceedings could not be completed within the time stipulated by this court. Petitioner was therefore re-instated in service on 11.8.1998. 3. Appellant was later served with a memo of charges dated 15.10.1998 alleging that he had used foul language against the M.L.A. and conduct of the officer had tarnished the image and prestige of the office of the Deputy Commissioner and likely to be a breach of privilege of the State Legislative Assembly. 3. Appellant was later served with a memo of charges dated 15.10.1998 alleging that he had used foul language against the M.L.A. and conduct of the officer had tarnished the image and prestige of the office of the Deputy Commissioner and likely to be a breach of privilege of the State Legislative Assembly. While disciplinary proceedings were pending against him, his junior was promoted as Joint Commissioner. Appellant preferred O.P.No 18054 of 1998 seeking a direction to the authorities to promote him to the cadre of Joint. Commissioner in the Commercial Taxes Department. The learned Judge gave a direction to the Government to promote him to the post of Joint Commissioner if he is the seniormost. On appeal by the Government the Division Bench stayed the interim order in W.A. No 1667 of 1999. Before the Division Bench the Government took up the stand that while disciplinary proceedings are pending against the appellant he could not be promoted. 4. Appellant in the meantime filed his written statement dated 26.2.1999 against the memo of charges dated 15.10.1998. After perusing the written statement Government found it necessary to conduct an enquiry under R.15 of the K.C.S. (C.C.& A) Rules, 1960 and an enquiry officer was appointed as per order dated 10.11.1999. The enquiry officer conducted the enquiry and submitted his report dated 29.11.1999. Enquiry Officer found that none of the charges levelled against the appellant was proved. Government did not take any further had tarnished the image and prestige of the office of the Deputy Commissioner and likely to be a breach of privilege of the State Legislative Assembly. While disciplinary proceedings were pending against him, his junior was promoted as Joint Commissioner. Appellant preferred O.P.No. 18054 of 1998 seeking a direction to the authorities to promote him to the cadre of Joint. Commissioner in the Commercial Taxes Department. The learned Judge gave a direction to the Government to promote him to the post of Joint Commissioner if he is the seniormost. On appeal by the Government the Division Bench stayed the interim order in W.A. No 1667 of 1999. Before the Division Bench the Government took up the stand that while disciplinary proceedings are pending against the appellant he could not be promoted. 5. Appellant in the meantime filed his written statement dated 26.2.1999 against the memo of charges dated 15.10.1998. On appeal by the Government the Division Bench stayed the interim order in W.A. No 1667 of 1999. Before the Division Bench the Government took up the stand that while disciplinary proceedings are pending against the appellant he could not be promoted. 5. Appellant in the meantime filed his written statement dated 26.2.1999 against the memo of charges dated 15.10.1998. After perusing the written statement Government found it necessary to conduct an enquiry under R.15 of the K.C.S. (C.C.& A) Rules, 1960 and an enquiry officer was appointed as per . order dated 10.11.1999. The enquiry officer conducted the enquiry and submitted his report dated 29.11.1999. Enquiry Officer found that none of the charges levelled against the appellant was proved. Government did not take any further action on the enquiry report and let off the appellant with a warning. An order was passed to that effect on 30.11.1999. Relevant portion of the order is extracted below: "Government examined the enquiry report. It was an enquiry completed expeditiously to enable the Government to finalise the disciplinary case by 30.11.1999. The veracity of the complaint could not be proved by examining the officer/officers who had conveyed to the MLA the information that Sri Shaik Meeran Rawther used foul languages against the M.L.A. in a departmental conference. The enquiry officer heard Sri Shaik Meeran Rawther and on the basis of the evidence before her held that none of the charges against Mr. Shaik Meeran Rawther is proved. The M.L.A. had stated in the first enquiry made by Government that he came to know that the Deputy Commissioner was insulting him and on enquiry, it was confirmed by other people also. This pained him a lot and he brought this to the notice of Government. Though the charges against Sri Shaik Meeran Rawther were not proved in the enquiry, Government have reason to believe that the conduct of the delinquent officer has definitely given scope for such avoidable confusion and embarrassment. As a responsible senior officer of the department, the officer must have been more discreet in his behaviour and remarks even if he was interacting with his colleagues and subordinates in a purely official forum. However Government have decided to let off Sri S.Shaik Meeran Rawther with a 'warning' to be more careful in future. Disciplinary action initiated against Sri. As a responsible senior officer of the department, the officer must have been more discreet in his behaviour and remarks even if he was interacting with his colleagues and subordinates in a purely official forum. However Government have decided to let off Sri S.Shaik Meeran Rawther with a 'warning' to be more careful in future. Disciplinary action initiated against Sri. Shaik Meeran Rawther formerly Deputy Commissioner, Pathanamthitta and now Member (Departmental) KAIT & STAT, Additional Bench,Thiruvananthapuram in this case is finalised as above. Suspension period of the officer will be regularised as provided under R.56B (5), Part I, Kerala Service Rules." 6. The above mentioned facts would reveal that the charges levelled against the appellant as such could not be proved. Appellant was let off with a warning. The period of suspension was also ordered to be regularised as provided under R.56 B(5) of Part I of the Kerala Service Rules. 7. We have to appreciate the present memo of charges dated 18.1.2000 impugned in this case in the light of the above mentioned facts. 8. Counsel for the appellant, Sri V.P.Sukumar contended that the memo of charges dated 18.1.2000 was issued due to extraneous reasons and due to the reason that the charges levelled against the appellant in the memo of charges dated 15.10.1998 could not be proved. Counsel submitted that the attempt of the Government is only to deny him promotion to the post of Joint Commissioner and to harass him. 9. Learned Government Pleader however tried to sustain the action of the Government in issuing the memo of charges dated 18.1.2000. Further, learned Government Pleader submitted that appellant had already filed his written statement dated 17.5.2000 which was rejected by the Government. A request was made to drop further proceedings. The same was not acceded to by the Government and appellant directed to file written statement by letter dated 25.5.2000. Appellant then sought four months' time to file his written statement. Government by letter dated 19.7.2000 granted a month's time. However written statement was not filed. Hence the writ petition was filed challenging the memo of charges. Learned Government Pleader also submitted that even though the Board of Revenue had initiated disciplinary proceedings in respect of the same incident it was not finalised, but referred the matter to the Government, vide Board of Revenue letter dated 10.11.1992. However written statement was not filed. Hence the writ petition was filed challenging the memo of charges. Learned Government Pleader also submitted that even though the Board of Revenue had initiated disciplinary proceedings in respect of the same incident it was not finalised, but referred the matter to the Government, vide Board of Revenue letter dated 10.11.1992. The Board of Revenue by letter dated 1.1.1999 forwarded certain particulars to the Government. Thereafter memo of charges dated 18.1.2000 was issued to the appellant. Learned Government Pleader also challenged the maintainability of the writ petition under Art.226 of the Constitution of India so as to quash the memo of charges. 10. We may in this connection extract the memo of charges. "i) That you Sri S. Shaik Meeran Rawther while holding the post of Inspecting Assistant Commissioner, Kottarakkara have transported 3 bags of cement in departmental vehicle No. KLV 2438 on 10.10.1986 from Kunnikode to Pathanapuram for your own use at the expense of Government. ii) That you have accepted 3 bags of cement from M/s Punnavanam Chettiar, Merchant, Kunnicode as bride. iii) That you have abetted your subordinates by misusing your official position as a controlling and supervisory officer to manipulate Government records and to fabricate false evidence so as to wilfully escape from the clutches of disciplinary action. iv) That you have failed to bring to the notice of the higher authorities the damages caused to the departmental jeep 2438 on 10.10.1986 by the unruly mob, at Kunnicode. v) Your above action tantamounts to gross negligence, grave dereliction of duty and serious official misconduct. 11. The charge now levelled against the appellant was that while he was holding the post of Inspecting Assistant Commissioner he had transported 3 bags of cement in departmental vehicle for his own use at the expense of the Government and that he had accepted three bags of cement from M/s Punnavanam Chettiar, Cement Merchant at Kunnicode as bride and that he had abetted his subordinates by misusing his official position as a controlling and supervisory officer to manipulate government records and to fabricate false evidence so as to wilfully escape from the clutches of disciplinary action. We may indicate that with regard to the incident mentioned in the memo of charges, disciplinary proceedings were initiated against the appellant by issuing memo of charges in the year 1987. We may indicate that with regard to the incident mentioned in the memo of charges, disciplinary proceedings were initiated against the appellant by issuing memo of charges in the year 1987. After perusing the memo of charges, Secretary (Taxes-I) to the Board of Revenue had written a note on the file on 3.9.1992, which reads as follows: "The report indicated that there was a bill No.478 dated 10.10.1986 (P.25 of the report) to prove that it was a purchase. Moreover there was no damage noticed to the vehicle. Under the circumstances, it would be difficult to pursue the case legally. So we censure/warn the officer not to create such situate in future as the officer involved, as in the rank of A.C. of this dept." 12. We notice with the above mentioned findings of the Secretary (Taxes I), Board of Revenue forwarded report to the Government. No action was taken by the Government for eight years even though letter of the Board of Revenue was received by the Government in the year 1992. Now on the basis of a letter of the Board of Revenue dated 1.1.1999 memo of charges dated 18.1.2000 has been issued. We are inclined to take the view that the present memo of charges dated 18.1.2000 was an off shoot of the proceedings which led to the issuance of memo of charges dated 15.10.1998. We notice that for the last 14 years Government kept quiet and did not take any action with regard to an incident that happened in 1986. Facts would reveal that in 1987 memo of charges was issued to the appellant and a preliminary enquiry was conducted and Secretary (Taxes I), Board of Revenue had made a note that it would be difficult to proceed with the case legally. Government did not find it necessary to proceed with the matter. We are satisfied in the facts and circumstances of this case that the present memo of charges dated 18.1.2000 is ill motivated and vitiated due to extraneous reasons. 13. We are unable to understand why the Government all on a sudden issued the memo of charges dated 18.1.2000 with regard to certain incidents happened 14 years ago on which the Secretary (Taxes I), Board of Revenue, had opined that it would be difficult to prove the charges legally as early as in 1992. 13. We are unable to understand why the Government all on a sudden issued the memo of charges dated 18.1.2000 with regard to certain incidents happened 14 years ago on which the Secretary (Taxes I), Board of Revenue, had opined that it would be difficult to prove the charges legally as early as in 1992. Matter rested there for years but resurrected all on a sudden. If the Government had any intention to take action with regard to an incident happened in 1986 it would have taken then and there. The precipitated action by the Government by issuing the memo of charges dated 18.1.2000 was not called for or could be justified at this distance of time. In the facts and circumstances of this case we are satisfied that the motive induced by the Government to take action against the appellant was not to take disciplinary proceedings against him for misconduct which is bona fide believed he had committed, but to wreak vengeance on him for incurring the wrath of the member of the Legislative Assembly. 14. We may in this connection refer to some of the decisions of the apex court wherein the court had quashed disciplinary proceedings on the ground of delay, in State of Madhya Pradesh v. Bani Singh and another ( AIR 1990 SC 1308 ). That was a case where departmental proceedings were initiated against an officer by issuing charge sheet dated 22.4.1987 in respect of certain instances that happened in 1975-76 and when the said officer was posted as Commandant, 14th Battalion. Memo of charges was quashed by the Tribunal on the ground of inordinate delay in initiating disciplinary proceedings. The matter was taken up before the apex court. The court held as follows: "The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so,it is unreasonable to think that they would have taken proceedings as stated by the Tribunal. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so,it is unreasonable to think that they would have taken proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage." In A.R.Antulay and another v. R.S.Nayak and another ( 1992 (1) SCC 225 ) the apex court was dealing with criminal prosecution. The court held that undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non availability of witnesses or otherwise. Later the apex court in State of Punjab v. Chaman Lal Goyal ( 1995 (2) SCC 570 ) held: "The principles to be borne in mind in this behalf have been set out by a Constitution Bench of this court in A.R.Antulay v. R.A.Nayak. Though the said case pertained to criminal prosecution, the principles enunciated therein are broadly applicable to a plea of delay in taking the disciplinary proceedings as well. In Para.86 of the judgment, this court mentioned the propositions emerging from the several decisions considered therein and observed that ultimately the court has to balance and weigh the several relevant factors balancing test or balancing process - and determine in each case whether the right to speedy trial has been denied in a given case. It has also been held that, ordinarily speaking, where the court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges or the conviction, as the case may be, will be quashed." The court also held that wherever delay is put forward as a ground for quashing the charges, the court has to weigh all the factors, both for and against the delinquent officer and come to a conclusion which is just and proper in the circumstances. In this connection we also refer to the decision of the Gujarat High Court in Mohanbhai Dungarbhai parmar v. Y.B.Zala and others (1980 (1) SLR 324) wherein the court held that delay in initiating proceedings must be held to constitute a denial of reasonable opportunity to defend himself for one cannot reasonably expect an employee to have a computer like memory or to maintain a day-to-day diary in which every small matter is meticulously recorded in anticipation of future eventualities of which he cannot have a pre-vision. Nor can he be expected to adduce evidence to establish his innocence for after inordinate delay he would not recall the identity of the witness who could support him. Delay by itself therefore, will constitute denial of reasonable opportunity to show cause and that would amount to violation of the principles of natural justice. 15. We may also refer to the decision of the Mysore High Court in Andrews v. Dist. Educational Officer, Bangalore (1968 Lab I.C. 756). In that case certain charges were framed against the government servant in the year 1961 to which we sent his explanation. Later in March 1964 charges were again framed against him. The charges were substantially the same as those that were framed against him in 1961. The courts held as follows: "If after the production of this explanation, the disciplinary proceeding was not continued, what should reasonably follow is that the disciplinary authority was satisfied with the explanation and dropped the charges. The strength of that inference receives reinforcement from the fact that it was only after a period of 31/2 years that the charges were once again revived. The great and inordinate delay in the revival of those charges and the antecedent discontinuance of the earlier disciplinary proceeding over along tract of time can have no other meaning than that the disciplinary authority was satisfied with the explanation offered by the petitioner on October 1961, and that in consequence the proceedings against him were discontinued and abandoned. If that was how the earlier disciplinary proceeding terminated, it was not within the competence of the disciplinary authority to exhume those charges and to make them subject matter of another disciplinary proceeding, as late as in the year 1964." The above mentioned principle was followed by the Madras High Court in E.S.Athithyaraman v. The Commissioner, Hindu Religious and Charitable Endowments (Administration) Department (AIR 1970 Madras 170). In that case the departmental officer, on framing charges against the delinquent called upon him to submit explanation and on receiving explanation again asked him whether he desired oral enquiry or only to be heard in person. That letter was acknowledged but not replied by the delinquent. Thereupon the enquiry officer went through the files and explanation and, without conducting actual enquiry, held that the charges were established and proposed punishment. That was a case where enquiry was ordered after seven years. The court held that the failure to hold actual enquiry, orders regarding delinquent's promotion and long lapse of period in passing final order, were circumstances from which him whether he desired oral enquiry or only to be heard in person. That letter was acknowledged but not replied by the delinquent. Thereupon the enquiry officer went through the files and explanation and, without conducting actual enquiry, held that the charges were established and proposed punishment. That was a case where enquiry was ordered after seven years. The court held that the failure to hold actual enquiry, orders regarding delinquent's promotion and long lapse of period in passing final order, were circumstances from which reasonable inference could be drawn that delinquent's explanation was accepted and proceedings were dropped. 16. We may in this case notice that the charges were levelled against the appellant with regard to an incident happened in 1986. We also notice in 1987 memo of charges was issued to him on the basis of which enquiry was conducted by the Secretary who made a note on 3.9.1992 that it would be difficult to pursue the case legally. We must take it that the said opinion has been accepted by Government. Government have issued the present memo of charges with regard to an incident which happened 14 years ago. There is no acceptable explanation for the delay. In the facts and circumstances of the case, we hold that the present memo of charges has been issued since the charges levelled against him in the memo of charges dated 15.10.1998 could not be proved. We also hold that the present memo of charges were vitiated by malafide and is ill motivated and issued for improper purpose. We therefore quash Ext. P1 memo of charges against the petitioner. Consequently the judgment of the learned single judge stands set aside.