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2005 DIGILAW 272 (KER)

R. Radhakrishnan Nair v. State of Kerala

2005-04-07

K.R.UDAYABHANU, KURIAN JOSEPH

body2005
Judgment :- Kurian Joseph, J. Two questions of general importance arise for consideration in this case; (1) Is it necessary to furnish a copy of the inquiry report and give an opportunity to a delinquent before the inquiry report is accepted and punishment awarded based on the findings in the inquiry report; and (2) whether withholding of increment with cumulative effect is permissible under the Kerala Police Departmental Enquiries, Punishment and Appeal Rules, 1958? If the answer to the second question is in the affirmative, the decision in Damodaran v. State of Kerala, reported in 2004 (2) ILR Kerala 634, has to be overruled. 2. Appellant is the petitioner in O.P.No.14379/1995. The said writ petition was filed aggrieved by the orders passed in the disciplinary proceedings initiated against the petitioner. The Superintendent of Police, Alappuzha initiated departmental action against the petitioner on serving Ext.P1 memo of charges. On denial of the allegations an inquiry was caused to be conducted through the Deputy Superintendent of Police. The Inquiry Officer submitted a report with the finding that the charges were proved. The disciplinary authority accepting the report of the Inquiry Officer imposed the punishment of barring three increments with cumulative effect as per Ext.P4 order. Along with the order petitioner was also served copy of the Punishment Roll – the report of inquiry. He preferred an appeal raising, among other grounds, the ground of violation of the principles of natural justice. The appellate authority reduced the punishment to barring of two increments with cumulative effect. Appellant was unsuccessful before the Government. 3. The learned single Judge elaborately considered the merits of the case and declined to interfere with the matter and hence the writ appeal. 4. Sri. Aravindakshan Pillai, though raised several contentions including those on the procedural irregularities in the conduct of the enquiry, non-application of mind on the part of the appellate authority and the Government while considering the review, we do not think it necessary to refer to those contentions, since the appeal has otherwise to be disposed of by limiting to the two major aspects of the case referred to at the beginning of this judgment. 5. In order to appreciate the contention regarding the first question in the matter of furnishing of inquiry report before imposing the punishment it is necessary to refer to the procedure contemplated under the Rules. 5. In order to appreciate the contention regarding the first question in the matter of furnishing of inquiry report before imposing the punishment it is necessary to refer to the procedure contemplated under the Rules. The Kerala Police Departmental Enquiries, Punishment and Appeal Rules, 1958 made under the proviso to Article 309 of the Constitution of India, (hereinafter referred to as the Rules) deal with the penalties and the procedure to be followed in the matter of departmental inquiries, punishment, appeal etc. Rule 6 provides for the procedure for enquiry. Whenever on a complaint or otherwise it is found necessary to inquire into the conduct of a member of the service, the departmental superior, under whom such member is employed, shall make a preliminary inquiry. However, such preliminary inquiry is not necessary when the superior officer or any other higher authority is satisfied that prima facie grounds exist for the departmental action. Thereafter the charges have to be framed. The same shall be communicated to the delinquent employee together with statement of allegations. The delinquent shall be given an opportunity to submit a written statement of defence and also to state whether he desires to have an oral inquiry or to be heard in person. The Inquiry Officer shall either be the appointing authority or the head of the department or any officer or Tribunal. Sub-rule (9) of Rule 6 provides as follows:- “6(9) The proceedings conducted against a member of the service under the provisions of this rule shall contain a sufficient record of the evidence and a report setting out the findings and the grounds on which they are based. The proceedings shall be submitted by the inquiry officer to the higher authority concerned in all cases where the inquiry was ordered by a higher authority, or where the inquiry officer is not competent to impose the penalty under these rules.” 6. Rule 15 provides for penalties. To the extent relevant the Rule reads as follows:- “15. Penalties. – (1) The following penalties may, for good and sufficient reasons and as provided under these rules, be imposed upon members of the Services, namely:- (a) Petty punishments such as extra drill, extra guard, fatigue duty. (b) Confinement to barracks or camps. (c) Removal from office of distinction or special emoluments, (d) Reprimand, (e) Censure, (f) Black Mark (f) Withholding of increments or promotion including stoppage at an efficiency bar. (b) Confinement to barracks or camps. (c) Removal from office of distinction or special emoluments, (d) Reprimand, (e) Censure, (f) Black Mark (f) Withholding of increments or promotion including stoppage at an efficiency bar. (h) Recovery from pay of the whole or part of any pecuniary loss caused to the State Government or the Central Government or to a local authority by negligence or breach of orders, or recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld where such an order cannot be given effect to. Explanation:- In case of stoppage of increment with cumulative effect the monetary value equivalent to three times the amount of increments ordered to be withheld may be recovered. (i) Reduction of pension. (j) Reduction to a lower rank in the seniority lists or to a lower post or time-scale, whether in the same Service or in another Service or to a lower stage in a time-scale. (k) Compulsory retirement. (l) Removal from the service of the State Government. (m) Dismissal from the service of the State Government.” 7. Under Rule 12, if the punishment to be awarded is only under clauses (a) to (i) of Rule 15(1), there need only be the following procedure:- “(a) On receipt of the complaint or information of the allegation, the inquiry officer shall make such inquiry as he deems necessary and demand an explanation on the basis of the allegations found true. (b) On receipt of the explanation, and on making further inquiries in the light of the explanation if necessary final orders shall be passed in the matter.” It is provided that in respect of punishments mentioned in clauses (e) to (i) of sub-rule (1) of Rule 15 there has to be a Punishment Roll and in respect of punishments referred to in clauses (a) to (c) neither written explanation nor Punishment Roll is necessary. However, the proceedings shall be issued in the form of a written order recording the charge and the penalty awarded. 8. As far as imposition of penalties under clauses (j) to (m) of sub-rule (1) of Rule 15 are concerned, a different procedure is prescribed under Rule 17. However, the proceedings shall be issued in the form of a written order recording the charge and the penalty awarded. 8. As far as imposition of penalties under clauses (j) to (m) of sub-rule (1) of Rule 15 are concerned, a different procedure is prescribed under Rule 17. The delinquent employee has to be given a show cause notice against the penalty proposed to be inflicted, he has to be served with a copy of the inquiry reports together with the findings and his explanation “….shall be taken into consideration before the final order imposing the penalty is passed by the competent authority.” In matters involving conviction in a criminal court or by a court marshal or where a member of the service is absconding or where for other reasons it is not reasonably practicable to communicate with him or in situations involving the interests of the security of the State, the procedure under these rules can be bypassed. 9. The question to be tackled is whether in the instant case, in imposing the punishment of barring of increment, the penalty under Rule 15(1)(g) of the Rules, is it necessary to furnish a copy of the inquiry report. As already stated above, the inquiry is conducted by a person other than the disciplinary authority. The punishment imposed is based on the report of the inquiry officer. True the delinquent participated in the enquiry. But the delinquent employee does not get an opportunity to know what is the report. Once the punishment is based on the report, is it not necessary that the delinquent is given an opportunity to state his views on the report? 10. In the celebrated decision in Union of India v. Mohammed Ramzan Khan, AIR 1991 SC 471, the apex court has elaborately considered this aspect. It is held as follows: “Disciplinary inquiry is quasi-judicial in nature. There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facets do make the matter quasi-judicial and attract the principles of natural justice. With the Forty-Second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiry Officer to come to his conclusions. These facets do make the matter quasi-judicial and attract the principles of natural justice. With the Forty-Second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiry Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusions with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected.” The court further held that:- “For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. xxx xxx Therefore, supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any charge in this position.” The sole exception in this procedure is when the Inquiry Officer is the disciplinary authority himself. To quote:- “Where the disciplinary authority himself is the Inquiry Officer there is no report. He becomes the first assessing authority to consider the evidence directly for finding out whether the delinquent is guilty and liable to be punished. Thus while the delinquent is not entitled to report when the inquiry is conducted by the disciplinary authority, he is entitled to copy of report when inquiry is conducted by the Inquiry Officer.” 11. He becomes the first assessing authority to consider the evidence directly for finding out whether the delinquent is guilty and liable to be punished. Thus while the delinquent is not entitled to report when the inquiry is conducted by the disciplinary authority, he is entitled to copy of report when inquiry is conducted by the Inquiry Officer.” 11. The Constitution Bench in Managing Director, ECIL v. B. Karunakar, AIR 1994 SC 1074, which followed the principles laid down in Ramzan Khan’s case (supra), has gone in further details regarding the requirement of supply of report of inquiry before the same is accepted. To quote from paragraph 7:- “The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it. …….. ……. ….. Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the Inquiry Officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges leveled against him. That right is a part of the employee’s right to defend himself against the charges leveled against him. A denial of the Inquiry Officer’s report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” In the light of the above discussion the Constitution Bench held as follows: (i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject. … …. (iii) Since it is the right of the employee to have the report to defend himself effectively, and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him. (iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan’s case (AIR 1991 SC 471) (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority record its findings on the charges leveled against him. Hence question (iv) is answered accordingly.” 12. B. Karunakar’s supra was followed by the Supreme Court in Punjab National Bank v. Kunji Behari Misra 1998 (7_ SCC 84. It was held “in departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.” The Supreme Court found that a disciplinary is divided into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of evidence, enquiry officer’s report and the delinquent employee’s reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. To quote from paragraph 17 of the judgment. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of evidence, enquiry officer’s report and the delinquent employee’s reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. To quote from paragraph 17 of the judgment. “If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. ….The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer.” The Supreme Court in that decision also held that the principles of natural justice will have to be read into the provisions of the statute in case the same are not specifically provided. 13. In fact such a requirement is discernible from the Rules also. Rule 12(a) dealing with the summary procedure in the case of penalties under clauses (a) to (i) of Rule 15(1), provides for an opportunity for explanation to be given to the delinquent after conducting the inquiry. Rule 11 dealing with departmental punishments on judicial pronouncement, provides as follows:- “11. Departmental punishments on judicial pronouncements. – Departmental action based on adverse remarks passed by a Court on a member of the service shall be taken after sufficient opportunity is given to such member to defend himself against the charges.” These provisions also would give an indication that the delinquent has to be given an opportunity after inquiry and before the punishment. 14. In the case of the petitioner it is not in dispute that the punishment of barring of three increments with cumulative effect was awarded by the Superintendent of Police based on the report of inquiry conducted by the Deputy Superintendent of Police. 14. In the case of the petitioner it is not in dispute that the punishment of barring of three increments with cumulative effect was awarded by the Superintendent of Police based on the report of inquiry conducted by the Deputy Superintendent of Police. It is also not in dispute that the petitioner was not in dispute that the petitioner was not given a copy of the report before imposing the punishment. Thus Ext.P4 order of punishment is vitiated. 15. The next question that arises for consideration is the second point as to whether the punishment of barring of increment with cumulative effect is permitted under the Rules. In Damodaran K.K. v. State of Kerala, 2004 (2) ILR Kerala 634, it has been held that “Rule 15 specifically enumerates the kind of penalties which can be imposed on the members of the Kerala Police found guilty of misconduct. ….. that Rule 15 does not empower the authorities under the rules to impose the penalty of stoppage of increments with cumulative effect.” True, Rule 15(1)(g) deals only with withholding of increments or promotion including stoppage at an efficiency bar. Rule 15(1)(h) dealing with the recovery provides that the same is permitted to the extent of the monetary value equivalent to the amount of increments ordered to be withheld. The explanation to the sub-rule clearly provides that “in case of stoppage of increment with cumulative effect the monetary value equivalent to three times the amount of increments ordered to be withheld may be recovered”. Thus it is not as if the rules do not contemplate the stoppage of increment with cumulative effect. Unfortunately and as rightly observed by the learned single Judge in the reported decision this provision was not brought to the notice of the court. The legislative intention thus being clear from the rule itself, it has to be held that Rule 15(1)(g) providing for withholding of increments read with Rule 15(1)(1) and Explanation thereof, empowers the authorities to withhold the increment with cumulative effect. Hence we overrule the decision in Damodaran’s case. 16. It is seen that the petitioner had preferred an appeal against Ext.P4 order of punishment of barring three increments with cumulative effect and the appellate authority had reduced it to barring of two increments with cumulative effect. Hence we overrule the decision in Damodaran’s case. 16. It is seen that the petitioner had preferred an appeal against Ext.P4 order of punishment of barring three increments with cumulative effect and the appellate authority had reduced it to barring of two increments with cumulative effect. Since Ext.P4 order imposing the punishment has been found to be vitiated, the consequential orders are also to be set aside. Hence the impugned orders are set aside. Since the appellant has already been given the Punishment Roll, it is for him to offer his explanation before the disciplinary authority, namely the Superintendent of Police, Alappuzha. This shall be done within a period of one month from today. Thereafter the said authority shall consider the explanation offered by the appellant and take a fresh decision. However, we make it clear that the punishment shall in no case exceed the barring of two increments with cumulative effect, in case the disciplinary authority proposes to award any punishment, since the appellate authority had already decided to reduce the punishment to that extent. 17. It may not be totally out of context to make an observation that several provisions under the Kerala Police Departmental Inquiries Punishment and Appeal Rules, 1958, require to be amended in view of the subsequent settled legal positions. There are several cases pending before this court for the only reason that the Rule 10 is still on the statute book providing that final orders in a departmental inquiry, which is subjudice, shall be issued only after the matter has been disposed of in court. In fact the law is settled otherwise in quite a few decisions of the Supreme Court. There are several such archaic provisions in the Rules. We hope that the Government will seriously consider and take appropriate expeditious action in the matter. The writ appeal is disposed of as above. Registry will communicate a copy of this judgment to the Chief Secretary and Home Secretary.