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2005 DIGILAW 794 (KER)

Dy. Director General, NCC v. Gopinathan

2005-12-16

K.A.ABDUL GAFOOR, K.HEMA

body2005
Judgment :- K.A. Abdul Gafoor, J. W.A.No.1627/04 is filed by the State. The other Writ Appeal is by the Writ Petitioner. 2. The writ petitioner faced disciplinary action. It ended in Ext.P-10 order dated 30-12-1999 imposing the penalty of compulsory retirement from service. This order was passed after due enquiry. Ext.P-11 is the enquiry report. The allegation was that, he assaulted his superior officer, while in office, on 22-5-1996 with a table lamp causing injury on the head of the superior officer. The writ petitioner had his own version that it was the superior officer who made assault on him. But on the basis of the materials placed in record, the enquiry officer found the writ petitioner guilty and this resulted in Ext.P-10 order. Several contentions Were raised in the Writ Petition including the delay in finalisation of the enquiry proceedings. It was also contended that though he had been supplied with a copy of the enquiry report along with the show cause notice proposing a penalty tentatively, he was not served with a copy of the same again, along with final order. This contention was urged relying on the decision of the Supreme Court reported in Managing Director, ECIL v. B. Karunakar, AIR 1994 SC 1074. His further contention was that Ext.P-10 order was illegal in so far as the disciplinary authority did not consult the Public Service Commission as enjoined in R.15(12)(ii)(a) of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960. The learned Single Judge as per the judgment impugned in W.A.No.1627/04 found that enquiry officer had considered the entire materials placed on record during the course of enquiry to arrive at his conclusion that the writ petitioner had assaulted his superior officer as alleged and that the findings of the enquiry officer were justified. When the enquiry officer has found the delinquent guilty based on the evidence on record, no court will interfere under Article 226 unless it is shown that the finding is so perverse or that it was based on no evidence. Examination of Ext.P-11 report by the learned Single Judge as revealed from the judgment impugned disclosed that there were materials before the enquiry officer to arrive at a conclusion of guilty of the Writ Petitioner. 3. Examination of Ext.P-11 report by the learned Single Judge as revealed from the judgment impugned disclosed that there were materials before the enquiry officer to arrive at a conclusion of guilty of the Writ Petitioner. 3. The alleged delay in finalising the disciplinary action in spite of the direction fixing time frame by this court was also not accepted by the learned Single Judge. Ext.P-5 judgment wherein the time frame was fixed was assailed by the writ petitioner himself in W.A. No.1714/98. Moreover pending disciplinary action he had also been reinstated in service. Therefore, the delay did not in any manner prejudice him, even though the enquiry was beyond the time frame fixed by this court. 4. But at the same time the learned Single Judge found that before imposing the penalty of temporary retirement as ordered in Ext.P-10, the Disciplinary Authority did not consult the Public Service Commission. The learned Single Judge therefore found that to that extent the petitioner was entitled to succeed in the Original Petition. The learned Single Judge made it clear that respondent No.1 would be at liberty to fresh orders on the question of penalty to be imposed on the Writ Petitioner in consultation with the P.S.C., if so advised. Thus learned Single Judge did not accept the contentions urged by the writ petitioner except that centered around the consultation aspect. 5. There upon writ petitioner filed W.A.No.995/64 impugning the said judgment. But he later withdrew the Writ Appeal wherein he had urged the challenges against the findings with regard to the furnishing of enquiry report and the delay in finalising the disciplinary action. On withdrawal of the Writ Appeal, he sought review of the judgment contending that the liberty given to the first respondent to pass fresh orders in the disciplinary action after due consultation with the Public Service Commission was not justified, as by the time the Writ Petition was disposed of, he had already retired from service and no employer-employee relationship was subsisting between him and the first respondent, to enable the first respondent to pass an order of penalty. Therefore that part of the judgment shall have to be reviewed, he contended in R.P.No.690/04. The Review Petition was dismissed. It was in the above circumstances W.A.No.359/05 was filed by him impugning the order dated 6-10-2004 passed by the learned Single Judge in the Review Petition. 6. Therefore that part of the judgment shall have to be reviewed, he contended in R.P.No.690/04. The Review Petition was dismissed. It was in the above circumstances W.A.No.359/05 was filed by him impugning the order dated 6-10-2004 passed by the learned Single Judge in the Review Petition. 6. As already mentioned above, all contentions urged by the writ petitioner except that relating to absence of consultation with the Public Service Commission had been turned down by the learned Single Judge and the impugned order was set aside by the learned Single Judge only on the reason that it was passed without consultation with the Public Service Commission. 7. R.15 of the Kerala Civil Services (Classification, Control & Appeal) Rules provides the procedure for imposing major penalty like the one imposed as per Ext.P-10. R.15(12)(ii) and (iii) provides that: "(ii)(a) In every case in which it is necessary to consult the Commission the record of the inquiry together with a copy of the notice given under Clause (i) and the representation made in response to such notice, if any, shall be forwarded by the Disciplinary Authority to the Commission for its advice. (ii)(b) On receipt of the advice of the Commission the Disciplinary Authority shall consider the representation, if any, made by the Government servant as aforesaid, and the advice given by the Commission and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case. (iii) In any case in which it is not necessary to consult the Commission the Disciplinary Authority shall consider the representation, if any made by the Government servant in response to the notice under clause (i) -and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case." 8. Admittedly no consultation has been made with the Public Service Commission before Ext.P-10 was passed. Ext.P-10 was passed by the Deputy Director of N.C.C. the Disciplinary Authority. The aforesaid rule enjoined consultation in every case in which it is necessary to consult the Commission. What are the matters for consultation with the Public Service Commission is contained in the Kerala Public Service Commission (Consultation) Regulations, 1957 framed under Art.320(3) of the Consultation of India. Clause 6 is the relevant provision. It provides that: "6 (1). The aforesaid rule enjoined consultation in every case in which it is necessary to consult the Commission. What are the matters for consultation with the Public Service Commission is contained in the Kerala Public Service Commission (Consultation) Regulations, 1957 framed under Art.320(3) of the Consultation of India. Clause 6 is the relevant provision. It provides that: "6 (1). It shall not be necessary for the Commission to be consulted on any disciplinary matter affecting a person serving in connection with the affairs of the State, except- (a) Where the Government propose to pass an original order imposing any of the following punishments namely: (i) ……………….. (ii) ……………… (iii) compulsory retirement." This provision makes it clear that the Disciplinary Authority need not consult the Commission to impose the penalty of compulsory retirement if the order passed imposing such penalty on a Government servant is one proposed to be passed by an authority other than Government. In other words consultation is required in terms of this provision only where Government proposes to pass an original order imposing penalty of compulsory retirement. In every other case if such penalty is imposed by an authority other than Government, like Deputy Director in this case, R.6 of the Consultation Regulation does not make it obligatory on him to consult with the Commission before such penalty is imposed. 9. As already mentioned above Ext.P-10 is the order imposing penalty. It is an original order imposing penalty of compulsory retirement and it has been passed by the Deputy Director and not by Government. Therefore, it was not a "case in which it is necessary to consult the Commission" before penalty is imposed, as enjoined under R.15(12)(ii)(a). On the other hand, it is a case where consultation is not so required and therefore, the Disciplinary Authority could have directly passed an order as enjoined in R.15(12)(iii). The view taken by the learned single Judge that the Public Service Commission ought to have been consulted before the penalty of compulsory retirement was imposed on the writ petitioner by the Deputy Director, is not therefore justified, based on the rule and regulations extracted supra. Consequently W.A.No.1627/04 filed by the State impugning that part of the judgment shall have to be allowed setting aside the judgment. 10. It is at this juncture the other appeal filed by the petitioner requires consideration. Consequently W.A.No.1627/04 filed by the State impugning that part of the judgment shall have to be allowed setting aside the judgment. 10. It is at this juncture the other appeal filed by the petitioner requires consideration. As already mentioned above, the appeal is directed only against the order in the Review Petition. The review petitioner sought to review that part of the judgment which enabled the Disciplinary Authority to pass an order after consultation with the Public Service Commission, on the ground that as the writ petitioner had already retired from service and as there is no employer-employee relationship, no penalty could have been imposed any more. We have already set aside the judgment and upheld Ext.P-10 finding that no consultation was required. Necessarily that contention urged in the Review Petition and consequently in the appeal against the order in the Review Petition does not any more survive, because Ext.P-10 order which we have sustained allowing the appeal by the State had been passed while the petitioner was in service. Therefore, the vice pointed out in the Review Petition no longer exists. 11. The writ petitioner has a further contention that even though his appeal W.A.No.359/05 is directed only against the order in the Review Petition, he can, to sustain the judgment impugned in the W.A.No.1627/04, reagitate his contention which did not find favour with the learned Single Judge. Normally it ought to have been. 12. But in the given circumstances of the case it cannot be because, impugning that part of the judgment which rejected the petitioner''s contention centered around non-furnishing of the copy of the enquiry report and the delay in finalisation of the disciplinary action in spite of the time frame fixed by this court in earlier proceedings, he had filed W.A.No.995/04, as averred in Para 3 of the appeal memorandum, and that Writ Appeal had been withdrawn. It means that he did not wish to agitate those contentions in the appeal. Necessarily, in the light of withdrawal of the Writ Appeal, the appellant in W.A.No.359/05, who at present impugns only the order in review petition, is disabled from reagitating those question which he himself had pursued and withdrawn in W.A.No.995/04. Therefore, he cannot be heard to urge the arguments centered around such contentions. Consequently, W.A.No.359/05 shall have to be dismissed. Accordingly, W.A.No.1627/04 is allowed setting aside the judgment in O.P.No.2063/00 and W.A.No.359/05 is dismissed.