IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 11268 of 2000(N)
1. J.DAMODARAN PILLAY
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :22/10/2010
O R D E R
Thottathil B.Radhakrishnan
&
P.Bhavadasan, JJ.
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O.P.Nos.11268/2000-N & 25919/2000-I
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Dated this the 22nd day of October, 2010.
Judgment
“CR”
Thottathil B.Radhakrishnan, J.
1.These original petitions filed under Article 226
of the Constitution of India come before the
Division Bench on a reference on the question as
to whether, in a case where the proceedings for
imposition of a major penalty were initiated
against a government servant, a minor penalty
could be imposed, without serving the copy of the
report of the enquiry on the delinquent. The
reference was necessitated as the learned Judge
found conflict of opinion in the judgments of
this Court in Janardhanan1 and Shaji Lukose2
OP.11268 & 25919/2000 -: 2 :-
holding that the copy of the enquiry report has
to be served; and Balakrishna Pillai3 and
Eacharan4 being rendered to the contrary.
2.Rule 15 of the Kerala Civil Services
(Classification, Control and Appeal) Rules, 1960,
the “Rules” for short, provides the procedure for
imposing major penalties. Rule 16 of the Rules
provides the procedure for imposing minor
penalties.
3.Appearing for the petitioners, Adv.N.Santha
argued that her clients were not served with the
enquiry reports and therefore, the proceedings
imposing penalty are invalid. She argued that the
totality of the facts and circumstances clearly
indicated that the alleged transaction is not
proved and did not call for the imposition of
any penalty, much less, a minor penalty and that
as the enquiry reports were not furnished to the
delinquents, the imposition of penalty is without
jurisdiction and wholly unfounded.
OP.11268 & 25919/2000 -: 3 :-
4.On behalf of the Government, Senior Government
Pleader Adv.Lakshmi Narayanan argued that the
submissions on behalf of the petitioners do not
merit consideration, having regard to the law
laid by the Apex Court and explained by this
Court in Mohammed Faisal5. He also argued that
the petitioners had no case at any time before
the filing of these original petitions that they
were unaware of the contents of the enquiry
reports or were, in any manner, prejudiced by the
failure to be given the copies of the enquiry
reports. He pointed out that the appeals and
revisions filed by the petitioners contained
specific challenge to the findings as are
contained in the enquiry reports and the show
cause notices issued for imposition of minor
penalty contained the findings entered against
the petitioners in the enquiry reports. He
accordingly argued that the petitioners have
failed to demonstrate any case of prejudice and
there is no scope for interference with the
OP.11268 & 25919/2000 -: 4 :-
disciplinary proceedings, in writ jurisdiction.
5.Disciplinary proceedings were initiated against
the petitioners for imposition of major penalty.
Memos of charges were issued to them. Written
statements of defence were submitted by them.
This was followed by inquiry as enjoined by Rule
15 of the Rules. After receipt of the enquiry
reports, the disciplinary authority, namely, the
District Collector, decided to proceed against
the petitioners for imposition of only a minor
penalty. Therefore, show cause notices, making
reference to the findings in the enquiry reports,
were issued to the petitioners. They replied.
After considering the replies, minor penalties
were imposed on them. They unsuccessfully
challenged such decisions in appeals and
revisions before the Board of Revenue and the
Government respectively. Hence these original
petitions.
6.In terms of the law as it stood before the 42nd
OP.11268 & 25919/2000 -: 5 :-
Amendment to the Constitution in 1976, a
reasonable opportunity of showing cause to the
proposed action in disciplinary proceedings was
found to contain a right to represent against the
proposed penalty also. As noticed by the Division
Bench of this Court in Mohammed Faisal5, this
view which held the field prior to 1976 and was
re-stated in Khem Chand6, does not survive the
addition of the proviso to Article 311(2)
inserted by the 42nd Amendment. The opportunity to
make a representation against the proposed
penalty ceased to be a guaranteed constitutional
safeguard. In Tulsiram Patel7, the validity of
that amendment was upheld. As explained by this
Court in Mohammed Faisal5, the situation came to
be one where, after having filed written
statement to the memo of charges and upon
conclusion of the inquiry after witnesses are
examined and documentary evidence admitted to the
enquiry proceedings, the delinquent remains in
the dark as to the conclusions of the inquiring
authority and the decision that the disciplinary
OP.11268 & 25919/2000 -: 6 :-
authority may take on the conclusions of the
inquiring authority. This situation was sought to
be rectified by the law laid by the Apex Court in
Ram Chander8. In view of that, Mohd. Ramzan Khan9
was rendered by the Apex Court holding that the
enquiry report being an adverse material, the
employee shall be given an opportunity to submit
as to why the report should not be accepted by
the disciplinary authority. Then, the Apex Court
laid down in B.Karunakar10 that even if the
enquiry report is not served, unless prejudice is
shown to have been occasioned to the delinquent,
interference with the disciplinary proceedings is
not warranted. It was also laid down that even if
prejudice is shown, the court should hear on the
objections of the delinquent against enquiry
report and unless the court is impressed with the
objections, the enquiry proceedings should not be
mechanically set aside and the matter remitted as
that would only be an empty formality.
7.The core principle emanating from a proper
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understanding of the precedents referred to above
is that a delinquent does not have a
constitutional right to represent against the
proposed penalty, he having been heard in the
enquiry, and, even if the disciplinary authority
is not the inquiring authority and the punishment
was imposed by the disciplinary authority without
hearing the delinquent on the findings of the
inquiring authority, the courts, in judicial
review, would not interfere with the imposition
of the punishment unless it is proved to its
satisfaction that the absence of hearing on the
correctness of the findings in the enquiry report
and the punishment as imposed, have resulted in
miscarriage of justice.
8.Now, in the context of the Kerala Public Services
Act, 1968 and the Rules, treating them as a
statute and rules framed in terms of the
Constitution, we shall examine whether a
delinquent has the right to be furnished a copy
of the report and be heard on the correctness or
OP.11268 & 25919/2000 -: 8 :-
otherwise of the enquiry report before the
imposition of a minor penalty on the basis of
that report; merely because the employer
commenced the disciplinary proceedings on the
assumption that the delinquent has incurred the
liability, by his misconduct, to suffer a major
penalty in terms of the Rules.
9.Rule 15 of the Rules contains the procedure for
imposing major penalties. Sub-rule (1) of Rule 15
provides that no order imposing any among the
penalties specified in items (v) to (ix) of Rule
11(1) shall be passed except after an inquiry
held as far as may be, in the manner provided in
Rule 15. Those penalties are called the major
penalties. Items (i) to (iv) in Rule 11(1) are
called the minor penalties. Rule 16(1) of the
Rules provides that no order imposing any of the
minor penalties shall be passed except after
following the prescriptions therein. That does
not include the requirement to hold an inquiry as
provided for in Rule 15 or to furnish to the
OP.11268 & 25919/2000 -: 9 :-
delinquent a copy of report of the inquiring
authority. Adverting to Rule 15(12), it can be
seen that where the disciplinary authority is the
inquiring authority, the report of the inquiring
authority; and where the disciplinary authority
is not the inquiring authority, a statement of
the findings of the disciplinary authority with
brief reasons for disagreement, if any, with the
findings of the inquiring authority; has to be
served on the delinquent, if the disciplinary
authority, having regard to the findings on the
charges, is of the opinion that any among the
major penalties should be imposed. The delinquent
is to be given notice stating the action proposed
to be taken and calling upon him to submit such
representation as he may wish to make against the
proposed action. However, Rule 15(13) of the
Rules provides that if the disciplinary
authority, having regard to its findings, is of
the opinion that any of the minor penalties
should be imposed, it shall pass appropriate
orders in the case subject of course, to the
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requirement to consult the Public Service
Commission in every case in which it is necessary
to do so. Sub-rule (13) of Rule 15 is, therefore,
made visualizing the contingency where a
disciplinary authority may, having regard to the
findings following the inquiry, come to the
opinion that it would suffice that a minor
penalty is imposed instead of imposing any among
the major penalties as originally contemplated
without initiating proceedings on the basis of
the allegations. Sub-rules (12) and (13) of Rule
15 of the Rules being statutory, the clear
expressions made therein regarding the respective
procedures to be adopted by the disciplinary
authority depending on the opinion that it
formulates on the basis of the findings in the
inquiry, categorically show that the maker of the
Rules contemplated that there may be cases where
proceedings would commence on the premise that a
major penalty has to be imposed, having regard to
the gravity of the allegations, however that, on
conclusion of the inquiry, the disciplinary
OP.11268 & 25919/2000 -: 11 :-
authority would come to the opinion that the
proved allegations would call for imposition of
only a minor penalty. The clear words of sub-
rules (12) and (13) of Rule 15, therefore,
specifically provide that if the proposal is to
impose a major penalty, however that, the copy of
the enquiry report is to be furnished; there is
no requirement to furnish the copy of the enquiry
report, if the proposal is only to impose a minor
penalty. This principle was discerned and applied
in Balakrishna Pillai3 and in Eacharan4. It is
apposite in this context to quote Eacharan4 as
follows:
“5. The learned counsel for the
petitioner would submit that where the
ultimate penalty imposed is only minor
penalty, if the proceedings had commenced
under Rule 15 and not under Rule 16, it is
incumbent on the disciplinary authority to
supply copy of the inquiry report to the
government servant and to give him an
opportunity to make a representation and
the disciplinary authority has to consider
such representation as contemplated in
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sub-rule (12) of rule 15 of the Rules.
This argument does not stand legal
scrutiny. There is a definite scheme and
pattern behind Rules 15 and 16. Broadly
speaking Rule 15 deals with procedure for
the imposition of major penalty, while
rule 16 deals with procedure for imposing
minor penalties. Reading the two rules
together, there can be no doubt that in a
proceeding commencing under rule 16 only a
minor penalty can be imposed and not a
major penalty. But, in a proceeding
commencing under Rule 15, disciplinary
authority or the Government, as the case
may be, has choice of two course in the
matter of imposition of penalty. It is
open to the authority to follow the
mandate of sub-rule (12) and in
appropriate cases, impose major penalty.
It is also open to the authority to
refrain from following the procedure
provided under sub-rule (12) but to follow
the procedure laid down in sub-rule (13)
of Rule 15 of the Rules and to impose only
a minor penalty. Difference between sub-
rules (12) and (13) of Rule 15 indicate
the difference between the procedures to
be followed in the matter of imposition of
major and minor penalties in a proceeding
commencing under Rule 15 of the Rules. The
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procedure prescribed in sub-rule (13) is
analogous, so to say, to the procedure
prescribed in Rule 16. Rule 16 as well as
sub-rule (13) of Rule 15 contemplate only
grant of one opportunity to the government
servant concerned and that opportunity is
to make a representation in regard to the
charges framed against him of the show-
cause notice. The right of the government
servant in such cases is to ensure that
his representation is considered before
the disciplinary authority imposes minor
penalty. But, where ultimately major
penalty is to be imposed, the government
servant has the right to insist on two
opportunities as the rules stand now. The
rules have not been amended even though
Article 311(2) of the Constitution has
been amended. As the rules stand now,
before a major penalty can be actually
imposed on a government servant, he has to
receive two opportunities, one to submit a
written statement of defence in answer to
the charges and the other to submit
representation in regard to the penalty
proposed to be imposed on him in the light
of the findings in the inquiry report and
he can also insist on being furnished with
a copy of the report.
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5A. Understanding rules 15 and 16 in the
light of the broad scheme as explained
above, it is clear that where a proceeding
for imposition of major penalty is
commenced against a government servant
under Rule 15 of the Rules and an inquiry
report is submitted, if the disciplinary
authority or the government, as the case
may be, is of the opinion that it is a fit
case to impose only a minor penalty and
not a major penalty, that authority is to
follow the procedure prescribed in sub-
rule(13) of Rule 15 and not the procedure
prescribed under sub-rule (12).
Consequently, it must follow that in such
a case the government servant has no right
to insist on being furnished with a copy
of the inquiry report or being given an
opportunity to make representation against
the proposed action on the basis of the
findings in the inquiry report and the
evidence adduced during the inquiry. The
present is the case, where the proceedings
were initiated under Rule 15 as if it was
proposed to impose a major penalty and
after considering the inquiry report and
the other circumstances in the case, the
Government thought it fit to impose only a
minor penalty. That being so, there is no
illegality in the government not
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furnishing a copy of the inquiry report to
the petitioner or in not giving him an
opportunity once again to make a
representation regarding the proposed
action.”
10.We are of the view that the afore-quoted
expression of the principles of law governing the
procedure to be adopted in terms of sub-rules
(12) and (13) of Rule 15 of the Rules, as laid
down in Eacharan4, is in conformity with those
statutory provisions. Similar view in Balakrishna
Pillai3 also lays down the correct position of law
in this regard.
11.We visualize that the precedents of co-equal
jurisdiction rendered earlier by this Court in
Balakrishna Pillai3 and Eacharan4 and those
rendered by the Apex Court, noticed above by us,
were not brought to the notice of this Court
while Janardhanan1 and Shaji Lukose2 were heard
and decided. On the basis of the statutory rules,
the clear position is as laid down in Eacharan4,
to wit, that when the disciplinary authority
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takes recourse to Rule 15(13), it is not
necessary to abide by the requirement of Rule 15
(12), that the delinquent be furnished a copy of
the report of the inquiring authority.
Janardhanan1 and Shaji Lukose2 cannot be treated
as correct in the light of what is stated above.
12.Ultimately, it needs to be re-stated that in
view of B.Karunakar10 and Mohammed Faisal5 and as
found by us in paragraphs 6 and 7 above, the
courts would not interfere in judicial review
merely on the technical contention that the copy
of the enquiry report was not served even in
cases where what is ultimately imposed is a major
penalty and there would be no interference except
in cases where prejudice is demonstrated.
13.Having answered the question of law referred for
decision to the Bench, we may state that the
defence of the petitioners to the impugned
proceedings that the enquiry reports were not
given to them was never a ground either before
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the appellate authority or in the revision before
the Government. That issue was raised for the
first time in jurisdiction under Article 226 of
the Constitution, which essentially is a
discretionary one and would not be exercised
unless injustice is demonstrated. The allegations
against the delinquents were that they, village
officers, were responsible for effecting
irregular mutations, suppressing the real state
of affairs, as regards lands involved in land
acquisition proceedings for the Kallada
Irrigation Project. The allegations were proved
on inquiry and such findings stand confirmed by
the statutory authorities. No sustainable plea of
glaring illegality or irregularity as would
warrant interference with those findings in writ
jurisdiction is pointed out. In fact, the
proceedings before the statutory authorities,
including the appeals and revisions filed by the
petitioners would show that they were aware of
the contents of the enquiry reports and had
agitated before the appellate authority and in
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revision on the correctness of the findings in
the enquiry reports. The petitioners have also
failed to show that the findings in the inquiry
are perverse or that they were based on no
evidence. Therefore, there is no room whatsoever
to interfere with the impugned proceedings, on
the merits either.
For the aforesaid reasons, these original
petitions are dismissed. The petitioners having
retired from government service and one of them
being no more, we desist from imposing any order
of costs against them.
Thottathil B.Radhakrishnan,
Judge.
P.Bhavadasan,
Judge.
1 Janardhanan v. State of Kerala, 2004(1) KLT SN
103(Case No.133)
2 Shaji Lokose v. State of Kerala, 2007(1) KLT
679
OP.11268 & 25919/2000 -: 19 :-
3 Balakrishna Pillai v. State of Kerala, 1978 KLT
928
4 Eacharan v. State of Kerala, 1983 KLT 22
5 High Court of Kerala v. Mohammed Faisal, 2010
(1) KLT 857
6 Khem Chand v. Union of India, AIR 1958 SC 300
7 Union of India v. Tulsiram Patel, AIR 1985 SC
1416
8 Ram Chander v. Union of India, AIR 1986 SC 1173
9 Union of India v. Mohd. Ramzan Khan, AIR 1991
SC 471
10 Managing Director, E.C.I.L. v. B.Karunakar,
(1993) 4 SCC 727.
Sha/2810
P.S.to Judge.
OP.11268 & 25919/2000 -: 20 :-
Thottathil B.Radhakrishnan
&
P.Bhavadasan, JJ.
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O.P.Nos.11268/2000-N
& 25919/2000-I
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Judgment
22nd October, 2010.