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2007 DIGILAW 31 (KER)

G. R. Mohandas v. Govt. of Kerala

2007-01-10

S.SIRI JAGAN

body2007
Judgment :- A Forest Range Officer, who has been subjected to disciplinary proceedings, has approached this court challenging the disciplinary proceedings on various grounds. Since I am inclined to allow this original petition on a legal contention raised by the counsel for the petitioner, I am confining myself to that question and leave the other questions to be agitated by the petitioner in subsequent proceedings, if the petitioner fails to get relief in proceedings after remand consequent to this judgment. 2. The disciplinary proceedings were initiated, concluded and punishment imposed by the Government itself. The petitioner submits that since the Government is the appellate authority, although the Government is competent to impose punishment under the relevant rule, such power shall not be exercised unless the doctrine of necessity applies, in the absence of which the petitioner should not be deprived of his available right of appeal before the Government, by the Government itself taking upon itself the powers of the disciplinary authority to impose punishment. The Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 describes the disciplinary authorities and the powers of the disciplinary authorities to impose punishment on a Government servant. Rules 13(2)(a) and (b) prescribe the authorities which may impose penalties on a government servant. These rules read as under: " Rule 13(2) (a) The authority which may impose the penalties of,- (i) Censure; (ii) Fine; (iii) Withholding of increments; on a member of Subordinate Service shall be his immediate superior Gazetted Officer or any higher authority. (b) The authority which may impose the penalties of,- (i) Recovery from pay; (ii) Withholding of promotion; (iii) Reduction to a lower rank in the seniority list or to a lower grade or post or time - scale, whether in the same service or in another service, or to a lower stage in a time - scale; iv) Compulsory retirement; (v) Removal from the Civil Service of the State Government; and (vi) Dismissal from the Civil Service of the State Government; on a member of a Subordinate Service shall be the appointing authority or any higher authority." (underlining supplied) 3. Since disciplinary proceedings have been initiated for imposition of major penalty, Rule 13(2)(b) is the one that is applicable to the petitioner's case. The either the appointing authority or any higher authority can impose the penalties prescribed in Rule 13(2)(b). Since disciplinary proceedings have been initiated for imposition of major penalty, Rule 13(2)(b) is the one that is applicable to the petitioner's case. The either the appointing authority or any higher authority can impose the penalties prescribed in Rule 13(2)(b). Going by the same, Government being a higher authority to the appointing authority certainly has the power to impose punishment on the petitioner in appropriate cases. However, the question is whether the Government which is the appellate authority also as provided under Rule 23 can take upon itself the jurisdiction to impose the punishment on the petitioner those depriving the petitioner of his valuable right of appeal, without any reasons to do so. 4. Before going into the legal question involved I must note that none of the proceedings copies of which are produced before me in the disciplinary proceedings against the petitioner gives any indication as to the reason why the Government itself has taken upon itself the task of imposing the punishment on the petitioner instead of leaving it to the appointing authority who should have normally passed the order of punishment, with a right of appeal to the Government. Nor was the Government Pleader able to satisfy me as to the reason which necessitated for the Government itself to impose the punishment on the petitioner. 5. I am of the opinion that even when the higher authority which is also the appellate authority has power to invoke the jurisdiction of the appointing authority or disciplinary authority to invoke that jurisdiction, the same shall be done only in rare cases where for sufficient reasons evident from the records the Government finds it necessary to do so, by-passing the normal procedure prescribed for imposition of penalties. I am supported in this view by a Supreme Court decision of Surjit Ghosh Vs. Chairman & Managing Director, United Commercial Bank and others reported in 1995 2 SCC 474. In that case, after the enquiry officer submitted the enquiry report finding the appellant therein guilty of two charges levelled against him, the Deputy General Manager of the Zonal office, who was also the appellate authority, imposed on the appellant the punishment of dismissal from service. In that case, after the enquiry officer submitted the enquiry report finding the appellant therein guilty of two charges levelled against him, the Deputy General Manager of the Zonal office, who was also the appellate authority, imposed on the appellant the punishment of dismissal from service. The appellant in that case took the contention that the appellant was deprived of an opportunity to prefer an appeal provided under the regulations and, therefore, the appellate authority ought not to have passed the order of punishment. Dealing with that question as to whether the appellate authority was justified in passing the original punishment order which should normally have been imposed by the appointing authority or the disciplinary authority the Supreme Court in paragraph 6 of the decision held as follows: "6. The respondent-Bank in its submission contended that although it is true that the Deputy General Manager had acted as the disciplinary authority when he was in fact named under the Regulations as an appellate authority, no prejudice is caused to the appellant because the Deputy General Manager is higher in rank than the disciplinary authority, viz., the Divisional Manager/AGM(Personnel). According to the Bank, it should be held that when the order of punishment is passed by a higher authority, no appeal is available under the Regulations as it is not necessary to provide for the same. It was also contended that there is no right to appeal unless it is provided under the Rules or Regulations. Although the argument looks attractive at first sight, its weakness lies in the fact that it tries to place the Rules/Regulations which provide no appeal on par with the Rules/Regulations where appeal is provided. It is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so when there are no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot savour of legality. Hence we are of the view that the contention advanced on behalf of the respondent - Bank that when an appellate authority chooses to exercise the power of disciplinary authority, it should be held that there is no right of appeal provided under the Regulations cannot be accepted." 6. In view of the said decision, I am satisfied that the order imposing punishment on the petitioner by the Government, which is the appellate authority under the Kerala Civil Services (Classification, Control and Appeal) Rules, in the absence of any cogent reasons necessitating exercise of that jurisdiction by itself is unsustainable and is liable to be quashed. Accordingly, I quash Ext.P5 order and direct the appointing authority or the disciplinary authority of the petitioner to reconsider the matter from the stage of filing of Ext.P4 explanation to the show cause notice and decide the matter afresh after affording an opportunity of being heard to the petitioner. The above exercise shall be completed within two months from the date of receipt of a copy of this judgment. Needless to say the petitioner would be entitled to take up the matter in appeal before the Government if the decision of the appointing authority/disciplinary authority is against him. The original petition is disposed of as above.