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2011 DIGILAW 276 (KER)

N. J. Ponnamma v. Secretary To Government

2011-03-14

S.SIRI JAGAN

body2011
Judgment : 1. The petitioner retired from the service of the Government of Kerala as a District Educational Officer on 31.1.2006. Prior to her retirement, while working as the District Educational Officer, Pathanamthitta, the petitioner was suspended on 25.5.2005 on three specific allegations of misconduct. That was challenged before this Court by the petitioner, which resulted in Ext.P1 judgment, wherein, after considering the enquiry report, this Court came to the conclusion that the materials on record did not warrant a conclusion of any misconduct on the part of the petitioner. But the respondents were given liberty to proceed with the disciplinary proceedings, if sufficient materials are collected. According to the petitioner, thereafter the petitioner was served with Ext.P2 memo of charges adding two more charges to the charges in the earlier memo of charges without collecting any further materials. The petitioner submitted an explanation to the memo of charges. Subsequently, by Ext.P4 order, the Government found that the charges are very grave in nature and the same was substantiated in evidence warranting a major penalty. But instead of imposing any penalty on the petitioner, the disciplinary proceedings were concluded with the finding that the petitioner's service under Government had not been thoroughly satisfactory, for which, action will be taken separately invoking Rule 59 (b) of Part III of the Kerala Service Rules. Subsequently, Ext.P5 show cause notice was issued to the petitioner directing her to show cause as to why 20% of the pension of the petitioner should not be withheld on the ground that the petitioner's service under the Government had been throughly unsatisfactory, in which the basis for that conclusion was the very same five charges included in Ext.P2. The petitioner filed Ext.P6 reply and approached this Court by filing W.P.(C) No. 36937/2007. Pursuant to directions in Ext.P9 judgment, in that writ petition, Ext.P10 order has been passed confirming the proposal to withhold 20% of the petitioner's pension. The petitioner is challenging Exts.P2, P4, P5 and P10 in this writ petition seeking the following reliefs: a. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibits P2, P4, P5 and P10. b. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to grant all terminal benefits tot he petitioner with interest at the rate of 12% till the amount is actually paid. 2. b. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to grant all terminal benefits tot he petitioner with interest at the rate of 12% till the amount is actually paid. 2. The main contention of the petitioner is that, by Ext.P5 order the petitioner has been found guilty of misconducts warranting major penalty without complying with the procedure under Rule 15 of Kerala Civil Services (Classification, Control and Appeal) Rules. Therefore, Ext.P4 order in the disciplinary proceedings initiated against petitioner is patently against the mandatory procedure prescribed under the rules and is liable to be quashed. Then Ext.P10 under Rule 59 (b) of Part III of Kerala Civil Service Rules, based on the very same allegations, which have never been proved, is also unsustainable, is the contention put forward by petitioner. 3. A counter affidavit has been filed by 1st respondent justifying the impugned decisions. According to the learned Government Pleader, for proceeding under Rule 59 (b) of part III of KSR, no enquiry is contemplated, but only an opportunity of being heard, which has been given to the petitioner before passing Ext.P10 order and, therefore, Ext.P10 order is perfectly valid and proper. It is further submitted that, by Ext.P4 order, no punishment has been imposed on the petitioner pursuant to the disciplinary proceedings and, therefore, the petitioner cannot now hold that the disciplinary proceedings are bad for non-compliance with the procedure under Rule 50 of the Kerala Civil Services (Classification, Control and Appeal) Rules. 4. I have considered the rival contentions in detail. The five charges in Ext.P2 are the following: 1. You, while working as DEO, Pathanamthitta allowed some private candidates to attend the SSLC Examination March 2005 in Govt. VHSS, Elimullamplackal situated in remote area with the bad motive of abetting malpractices. 2. You had posted invigilators to the TTTMVHS, Vadsserikkara to help the students resort to copying and malpractices and thereby committed criminal misconduct. 3. You had issued orders permitting the PFC candidates to write SSLC Examination at schools located at remote places with the connivance of the Section Clerk, Sri. Pushpangadan, without assigning any number, ignoring the Section Superintendent and the P.A. Tot he District Educational Officer, and thereby committed willful misconduct. 4. You had issued orders approving certain appointments during the ban period and thereby you had failed to act as a responsible Government Servant. 5. Pushpangadan, without assigning any number, ignoring the Section Superintendent and the P.A. Tot he District Educational Officer, and thereby committed willful misconduct. 4. You had issued orders approving certain appointments during the ban period and thereby you had failed to act as a responsible Government Servant. 5. You had deliberately delayed orders approving the appointments in some other files with malafide intention and thereby committed criminal misconduct. It is not disputed before me that the first three charges are the very same charges which this Court in Ext.P1 held as unsustainable on the basis of materials already on record. Although brevity is a virtue, in this case I find it necessary to elaborately quote from Ext.P1 judgment, since the findings therein have great bearing on the issues involved in this writ petition. In Ext.P1 judgment this Court has held as follows: "xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx 7. I have gone through the enquiry report. It is seen that as instructed by the Director of public Instruction, the Joint Director conducted a physical inspection of the school premises of GHSS, Elimullamplackal along with the Deputy Director of Education, Pathanamthitta. Enquiry report shows that the officers who had inspected the site were satisfied that the centre is situated in a very remote place, and further, that some irregular and unlawful activities were going on in the centre with the connivance of certain persons including the Chief Superintendent, Clerk and the Full Time Menial. In the main part of this enquiry report, there is absolutely no mention about anything done by the petitioner who was the D.E.O. of that district. Though specific allegations have been made against other persons as also undesirable activities alleged to have taken place in that centre, there is no whisper about the commission or culpable omission by the petitioner. However, towards the end of that report, the following statements are made: "In this connection I may further state that all these have taken place in GHSS, Elimullamplackal at the connivance of the DEO Pathanamthitta as well as Sri. Pushpangadan, Clerk of the section from where action was proceeded for the conduct of the SSLC examination. However, towards the end of that report, the following statements are made: "In this connection I may further state that all these have taken place in GHSS, Elimullamplackal at the connivance of the DEO Pathanamthitta as well as Sri. Pushpangadan, Clerk of the section from where action was proceeded for the conduct of the SSLC examination. I have gone through the connected file in this regard and found that the direction to the Headmaster of Elimullamplackal was given from this section so as to allow the above said private candidates to appear for the examination in this particular school from the far off place of the district who were having examination centres near to their home." Thereafter a recommendation is made by the Joint Director that a detailed enquiry has to be conducted against the DEO and Shri. Pushpangadan and the persons working in GHSS who were already under suspension, for immediate action. A careful reading of the above report would show that statements have been made by the Joint Director without collecting relevant evidence or material in support of the observations made by him against the petitioner. The Joint Director has not recorded any statement from any person before making the observation that the petitioner is guilty of connivance. What he did was, to conduct site inspection on a date far later than the date on which the candidates had appeared for the examination. That physical visit can, at the most, give an idea about the nature of the place and the probability of using that place to commit malpractices. It cannot give any indication regarding the conduct of the DEO or the role played by the DEO, if at all there is any, in relation to the examination conducted on a date earlier than the date of inspection. To put it differently, the report of the Joint Director may, perhaps, be a reliable piece of evidence in respect of the remote and potential nature of the place and the susceptibility of that place for using it as a centre for committing malpractices but it is no a material to be relied on to ascertain what connection the DEO had with the alleged malpractices. On a perusal of the materials now available on record, the only item of documentary evidence or circumstance which could, probably, be used against the DEO to connect her with the alleged malpractice and to justify her suspension, is the office file leading to the permission granted to the concerned private candidates to write SSLC examination at GHSS, Elimullamplackal. The question that emerges is: will the permission thus granted, per se or coupled with other circumstances, if any, amount to a wrongful act or give rise to the inference that there was collusion between the candidates and the DEO. I have no hesitation to hold that mere permission as per rules, without anything more, will not constitute a misconduct on the part of the DEO. It is here that the respondents had a sojourn to the region of surmises. They simply want this Court to assume or believe that there was collusion and connivance on the part of the DEO. Such a subjective approach, in my view, is not proper exercise of the power vested in them. If there are materials or circumstances which considered objectively show, at least prima facie, that the DEO is guilty of connivance or collusion, the authorities are, no doubt, justified in placing the DEO under suspension. Otherwise, it will be arbitrary exercise of power. In answer to a query specifically put by this Court regarding instructions or guidelines issued to the District Educational Officers in connection with the permission to be given to the private candidates who had unsuccessfully appeared in one examination centre but opt to write the next examination in a different centre, Shri. Sugunapalan has brought to the notice of this Court the relevant notifications issued by the General Education Department of the Government of Kerala, titled "SSLC Examination, March, 2005". Learned Senior Counsel invites my attention to paragraph XII(b) and (c) of Notification dated 12.10.2004. I have gone through the said Notification, particularly paragraph XII which speaks about 'Examination Centre'. The same is extracted below for easy reference: "XII Examination Centre. a) A list of Cetres where the examination will be held is appended. b) Candidates presented from a school, which is not a centre, should appear at the centre assigned to the school. c) A private candidate should select the school, which presented him/her first for the SSLC exam. As his/her centre for this examination. a) A list of Cetres where the examination will be held is appended. b) Candidates presented from a school, which is not a centre, should appear at the centre assigned to the school. c) A private candidate should select the school, which presented him/her first for the SSLC exam. As his/her centre for this examination. Orders of the DEOs concerned should be obtained before a candidate selects a different centre. In such cases the candidate should produce identification certificate. d) Change of centre once chosen will not be permitted." I find that the aforesaid instructions, at the maximum, only imposes a duty on the District Educational Officers to verify the identity of the candidates who make such applications and nothing more. The DEO shall insist for the production of identification certificate. No other directions, orders or instructions are there, giving any sort of guidelines on the subject to the DEOs. It appears that the private candidates have got the freedom to choose a different centre provided it is included in the list of centres. That centre need not be one where they had first appeared. If such a freedom is exercised, the DEOs have to allow that request subject to the production of an identification certificate. There is no order by the Government or the DPI to conduct any enquiry into the intention or bonafides behind the change of centre. Shri. P. Nandakumar, learned Senior Government Pleader made an earnest endeavour to justify the impugned action; drew sustenance from the averments in the counter affidavit, as well. There is no case for the respondents that Elimullamplackal GHSS does not find a place in the approved list of examination centres. The list was prepared by the higher authorities and not by the DEO. In that centre, examination were being conducted on previous occasions also. Candidates who had applied for, were allowed to appear for the examination in that centre. May be such a remote place might have been used for committing malpractices by some of the candidates with the connivance of public servants who were on duty in that centre. But there is no material on record, as matters now stand, except the ipsi dixit of the Joint Director and the Director of Public Instruction to show that the malpractice was done with the knowledge or connivance of the DEO. But there is no material on record, as matters now stand, except the ipsi dixit of the Joint Director and the Director of Public Instruction to show that the malpractice was done with the knowledge or connivance of the DEO. Though five months are over from the date of Ext.P3, no fresh or additional material has been collected nor produced before this Court to show that the DEO was aware of such malpractices or that the DEO could have assumed or infered from materials or from other sources that, GHSS Elimullamplackal was chosen by the candidates involved in the incident concerned, for the purpose of committing malpractices. Respondents do not have a case that the above centre was included among the approved examination centres by the DEO. The vulnerable nature of the place ought to have been taken note of by the Government or by the DPI and such places ought to have been excluded from the list of approved centres. It is difficult to appreciate the stand taken by the respondents in allowing a centre of examination at GHSS Elimulamplackal knowing fully well and being fully aware of the 'notoriety' of the place for such unlawful activities and giving almost absolute freedom to the candidates to opt such places as their examination centre. If the place has got such inherent or potential vulnerability it is common knowledge that such facilities can be exploited, not only by those coming from distant places but also by those in the nearby places. Of course, invigilators and supervisors of integrity, courage and commitment would be able to prevent such incidents even in vulnerable areas. The duty of the DEO was to verify the identity of the candidate and not to reject it on any other grounds. There is no case for the respondents that the DEO failed to perform her duties as laid down in the Government Notification. If that is so, the impugned order of suspension cannot be justified. I am of the view that the petitioner was suspended without collecting reliable evidence and without the support of relevant materials to blame her. The order was passed on surmises and not based on materials which would justify the impugned action have, therefore, no hesitation to hold that Ext.P3 is liable to be quashed as far as the petitioner is concerned. I do so. The order was passed on surmises and not based on materials which would justify the impugned action have, therefore, no hesitation to hold that Ext.P3 is liable to be quashed as far as the petitioner is concerned. I do so. There shall be a direction to reinstate the petitioner in service forthwith. It may be noted in this context that the petitioner is due to retire from service on superannuation on 31.1.2006, that is, within a few weeks. I make it clear that I have made the above observations with reference to the materials so far collected and produced before this Court as also the pleadings in this case. If the authorities are able to collect any fresh or additional material, the same can be subjected to scrutiny and made use of, in accordance with law, while proceeding with the disciplinary action, already ordered against the petitioner. I think, the learned Government Pleader is perfectly right in making the submission that the above observation is necessary in the interest of justice. Before parting with this case, I consider it proper to observe that the Government shall do well by refusing to accord sanction to use vulnerable places like GHSS, Elimullaplackal as examination centres, and if at all included in the list of approved centres taking into account the convenience of bonafide candidates, the authorities shall not fail to make foolproof arrangements to prevent malpractices or other unlawful activities. Government may also issue proper instructions to the educational officers to take necessary precautionary measures including rejection of the request made by candidates for chance of the examination centre in doubtful cases, including those coming from far away places. Registry shall send a copy of this judgment to the Chief Secretary, Government of Kerala, for information and necessary action. Writ petition is allowed with the above observations." (underling supplied) 5. From the said judgment, it is abundantly clear that this Court has categorically found that on the basis of the materials already on record, the petitioner could not have been validly found guilty of the misconducts alleged against her. The respondents were given opportunity to proceed further in the disciplinary proceedings on the basis of fresh or additional material to be collected. The respondents have no case that they have collected any fresh or additional material in respect thereof. The respondents were given opportunity to proceed further in the disciplinary proceedings on the basis of fresh or additional material to be collected. The respondents have no case that they have collected any fresh or additional material in respect thereof. In respect of the 3 charges, which were the subject matter of Ext.P1 judgment. Of course, two more additional charges have been included in Ext.P2 memo of charges issued subsequently. Ext.P4 order has been passed in disciplinary proceedings, the operative portion of which reads thus: "Since statement of the accused is not at all satisfactory the same is rejected. Even though the charges are very grave in nature and the same are substantiated in evidence warranting major penalty considering the fact that the accused had already retired from service before finalising the disciplinary proceedings initiated against her Government hereby conclude the disciplinary proceedings with the finding that her service under the Government had not been thoroughly satisfactory for which action will be taken separately invoking Rule 59(b) Part III KSRs." (underlining supplied) From the same, it is abundantly clear that the Government has found the petitioner guilty of the five charges mentioned therein, which are the charges mentioned in Ext.P2. I am of opinion that such findings of guilt could not have been entered by the Government without complying the procedure prescribed under Rule 15 of the Kerala Service Rules. Not even an enquiry report is referred to in Ext. P4. It is not disputed before me that prior to passing of Ext. P4 order no enquiry with opportunity to the petitioner to defend herself was conducted. Not even an enquiry report is on record. As such Ext. P4 order finding the petitioner guilty of the alleged charges levelled against the petitioner is without following the procedure prescribed under KCS (CC&A) Rules. Although no penalty has specifically been imposed, Ext.P4 is unsustainable for that reason. From Ext.P10 it is abundantly clear that the basis for the said order is also the very same five charges in Ext.P2 which culminated in Ext.P4. I shall extract the relevant portion of Ext.P10 to demonstrate the same. Ext.P10 begins thus: "The disciplinary action initiated against Smt. N.J. Ponnamma was finalised by Government as per G.O. Read above with the findings that her service under Government had not been thoroughly satisfactory for which action will be taken separately invoking Rule 59(b) Part III KSRs. I shall extract the relevant portion of Ext.P10 to demonstrate the same. Ext.P10 begins thus: "The disciplinary action initiated against Smt. N.J. Ponnamma was finalised by Government as per G.O. Read above with the findings that her service under Government had not been thoroughly satisfactory for which action will be taken separately invoking Rule 59(b) Part III KSRs. The charges levelled against the petitioner, while working as District Educational Officer, Pathanamthitta are as follows. (i) she had allowed some private candidates to attend the SSLC Examination in March 2005 in the schools situated in remte areas with the ulterior motive of helping the candidates to resort to malpractices during examinations. (ii) she had posted invigilators from TTTMVHS, Vadasserikkara to CMSHS, Kattachira with malafide intention and thereby committed criminal misconduct. (iii) she had issued orders permitting the PFC candidates to attend SSLC examination at schools in remote places with the connivance of the Section Clerk Sri. Pushpangadan, superseding the Section Superintendent and the PA to the District Educational Officer and thereby committed grave misconduct. (iv) she had issued orders approving certain appointments during the period of ban and thereby failed to act as a responsible Government servant and committed grave defiance of authority. (v) she had deliberately issuing order approving certain appointments with malafide intention and thereby made criminal misconduct. Consequently, the finding that the petitioner's service under Government had not been thoroughly satisfactory is also only on the basis of the unsustainable decision finding the petitioner guilty of the five charges of misconducts and is liable to be interfered with. 6. Ext.P10 order although could have been independently passed under Rule 59 (b) of KSR, without a separate enquiry as such, I am of opinion that insofar as, in Ext.P10, the conclusion that the petitioner's services under the Government has not been thoroughly satisfactory, is based purely on the five misconducts for which petitioner has been found guilty in Ext.P4, I am of the opinion Ext.P10 is also vitiated for the same reason. I am of opinion that rule 59(b) is not a short cut for disciplinary proceedings under KCS (CCA) Rules. I am of opinion that rule 59(b) is not a short cut for disciplinary proceedings under KCS (CCA) Rules. The Government cannot without completing the disciplinary proceedings for specific acts of misconducts on the basis of very same misconduct, find an employee guilty and enter a conclusion that the employee's services have not been thoroughly satisfactory based on the very same misconducts for which the government servant could not be found guilty following a valid procedure. In this connection it must be noted that 'reduction of pension' is also a specific penalty imposable on a government servant under Rule II of the Kerala Civil Services (Classification, Control and Appeal) Rules. Having initiated disciplinary proceedings for specific acts of misconducts without finding the government servant by concluding the proceedings as contemplated by law, action under Rule 59(b) of Part III of the KSR can be initiated on the basis of the very same allegations of misconducts. If that be permitted, then unscrupulous superior officers can, knowing well that there is no evidence to sustain disciplinary proceedings, immediately before the retirement of the government servant, after raising allegations unsupported by materials on record, without concluding the disciplinary proceedings, straightaway initiate proceedings under Rule 59(b) for which no separate enquiry and finding of guilt is warranted. Rule 59(b) is intended to be initiated against a government servant whose overall performance in the whole of his/her service has not been thoroughly unsatisfactory. It is not intended as an action against a government servant on the basis of allegations of specific misconduct, which could not be validly proved in disciplinary proceedings under the Kerala Civil Services (Classification, Control and Appeal) Rules. In other words Rule 59(b) is not a short cut to punish a person against whom specific allegations of misconduct could not be validly proved by resort to proceedings under the Kerala Civil Services (Classification, Control and Appeal) Rules. In this case that is exactly what has been done in this case. The charges for which the petitioner has been visited with a decision under Rule 59(b), were the very same charges which have not been proved in valid proceedings under the Kerala Civil Services (Classification, Control and Appeal) Rules. Therefore, I am more than satisfied that the petitioner could not have been proceeded against under Rule 59 (b) solely based on the very same charges. Therefore, I am more than satisfied that the petitioner could not have been proceeded against under Rule 59 (b) solely based on the very same charges. The satisfaction of the government under Rule 59(b) of Part III of KSR, that the service of a government servant were not thoroughly satisfactory should not be a subjective satisfaction of the person passing the order under that Rule, but must be an objective satisfaction on the basis of acceptable materials on record warranting such satisfaction, which must be made known to the government servant with an opportunity to the government servant to prove that the materials cannot be relied upon. Mere allegations or suspicion of misconducts cannot take the place of such materials and the materials should be sufficient for a reasonable man to come to the conclusion that the government servant's service was not thoroughly satisfactory. When ordinarily the government does not find it necessary to take action under Rule 59(b), against government servants who have been punished for misconducts even with compulsory retirement, one fails to understand how they can take action against one on the basis of allegations of misconducts, which have not been validly proved in a disciplinary proceedings. If such unfettered power is conceded to the government it can lead to arbitrariness, discrimination, victimisation, etc., especially in a situation where political vendetta against government servants who do not toe the line of the powers that be are very common these days. In the above circumstances, Ext.P10 is also unsustainable. Accordingly, the impugned orders are quashed. Consequently, there would be a direction to the respondents to disburse the arrears of pension withheld from the petitioner as expeditiously as possible, at any rate within in two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above.