IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12122 of 2009(I)
1. S.RADHAKRISHNAN NAIR
... Petitioner
Vs
1. THE COMMISSIONER OF LAND REVENUE
... Respondent
2. DISTRICT COLLECTOR, THIRUVANANTHAPURAM.
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent : No Appearance
The Hon'ble MR. Justice V.GIRI
Dated :05/10/2009
O R D E R
V.GIRI, J.
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W.P.(C) Nos.12122 & 12144 of 2009
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Dated this the 5th day of October, 2009
JUDGMENT
Identical contentions have been raised in these
writ petitions. Therefore, they have been heard together
and are being disposed of by this common judgment. I
will refer to the facts in W.P.(C) No.12122 of 2009, which
will govern the other writ petition also.
2. The petitioner, while functioning as Deputy
Tahsildar in Survey and Land Records Department, was
served with Ext.P1 memo of charges to which, he
submitted Ext.P2 explanation. The department decided to
conduct an enquiry against the petitioner. The
proceedings were delayed and the petitioner had
approached this court in W.P.(C) No.37565 of 2007,
which was disposed of directing an expeditious
finalisation of the disciplinary proceedings. The Deputy
Collector(LR), Thiruvananthapuram was appointed as the
Enquiry Officer as per Ext.P6 and by Ext.P7, the Enquiry
Officer concluded that the petitioner had not committed
W.P.(C)Nos.12122 & 12144 of 2009
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any misconduct, nor had done any act warranting any
punishment as such. But, by Ext.P8 an order of
punishment of barring of three increments with
cumulative effect, a major punishment was imposed by
the 2nd respondent, the disciplinary authority. It seems
that Ext.P8 was not preceded by any notice, intimating
the petitioner that the disciplinary authority proposes to
disagree with the Enquiry Officer.
3. Apparently, aggrieved by Ext.P8 order,
Ext.P9 appeal dated 8.8.2008 was preferred before the
appellate authority, the 1st respondent. By Ext.P11, the
appellate authority set aside the order passed by the
original authority and required the District Collector to
hear the matter afresh and pass fresh orders. It was
found that the requisite procedure had not been followed
by the District Collector.
4. Pursuant to Ext.P11, the disciplinary
authority proceeded to pass a fresh order, Ext.P12. The
operative portion of the same reads as follows:
W.P.(C)Nos.12122 & 12144 of 2009
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“While considering the Appeal petition,
the Commissioner of Land Revenue has
observed that the Enquiry Officer had
recommended to acquit the delinquent
officer from the charges levelled against
him. Even though the District Collector has
imposed major penalty without adhering
the formal enquiry report and considering
the statement of defense filed by the
delinquent officer.
In the circumstances, Sri.K.Biju, Sub
Collector, Thiruvananthapuram is hereby
appointed as Enquiry Officer under Rule 15
of K.C.S. (CC&A) Rules, 1960 to conduct a
detailed in this case. Since, the
Commissioner of Land Revenue has
remanded the case for fresh disposal, you
are strictly directed to adhere the
provisions contained in Rule 15 of K.C.S.
(CC&A) Rules, 1960. The Enquiry Officer
will submit the report within one month
without fail. The connected file
S5/63433/2006 (1 to 236 pages) is also
enclosed herewith for further necessary
action. The receipt of the records may
please be acknowledged.”
5. The disciplinary authority has, in the
course of passing fresh orders, on remand, proceeded to
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direct a fresh enquiry to be conducted. This has been
challenged in the writ petition.
6. Similar facts are involved in W.P.(C)
No.12144 of 2009 and Ext.P11 is the order passed in the
said case by the disciplinary authority, subsequent to the
remand made by the Commissioner for Land Revenue.
7. I heard Mr.Pirappancode V.S.Sudheer,
learned counsel for the petitioner and the learned
Government Pleader Sri.Antony Mukkath.
8. Though the order of remand by the
Commissioner of Land Revenue, in these cases, have also
been challenged, learned counsel for the petitioner, at
this stage, limited the challenge to the orders passed by
the District Collector, directing a fresh enquiry to be
conducted, which alone need be considered and I have
considered the same.
9. By Ext.P7 in W.P.(C)No.12122 of 2009,
the enquiring authority had submitted a report,
exonerating the petitioner. This was then forwarded to
W.P.(C)Nos.12122 & 12144 of 2009
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the disciplinary authority. No doubt, as per the K.C.S.
(CC&A) Rules, 1960, it might be open to the disciplinary
authority to take a different view from that of the Enquiry
Officer. In such a case, the delinquent officer must be
given an opportunity to show cause against the proposal.
He must also be put on notice, the basis on which the
disagreement was arrived at. That was not done in this
case, prior to the passing of Ext.P8 order. This, among
others, was taken note of by the 1st respondent-appellate
authority when he directed the disciplinary authority to
pass fresh orders. At no point of time did the appellate
authority contemplate or provide for any fresh enquiry,
nor is there any finding anywhere by the appellate
authority that the enquiry report is not acceptable. The
enquiry report has also not been set aside.
10. All that the appellate authority did was to
remand the matter to the District Collector, requiring the
latter to pass fresh orders, in accordance with law. It is
necessary for the disciplinary authority to consider the
W.P.(C)Nos.12122 & 12144 of 2009
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enquiry report, though the disciplinary authority need
not follow or accept the enquiry report. But, as stated
above, there are circumstances where he may disagree
with the enquiry report. Such disagreement obviously
cannot be capricious. It must be based on materials
available and the proposal to disagree with the findings of
the enquiring authority must be communicated by the
disciplinary authority to the delinquent officer. This is
not only part of the prescribed procedure, but it is
required for complying with the principles of natural
justice.
11. Apart from that, it is not open to the 2nd
respondent, after the remand effected under Ext.P11, to
direct a fresh enquiry to be conducted. This has been
done without there being even a stray observation
regarding the acceptability or otherwise of the Enquiry
Report, let alone reference to any materials, on the basis
of which the disciplinary authority can legitimately
propose to disagree with the conclusions and findings in
W.P.(C)Nos.12122 & 12144 of 2009
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the Enquiry Report. But, what has been done by the
disciplinary authority, in the present case, is not only to
proceed to disagree with the Enquiring Authority, but to
direct a fresh enquiry to be conducted. This is clearly
impermissible, for more than one reason. Firstly, the
disciplinary authority has not set aside the original
Enquiry Report. There cannot be any second enquiry,
unless the first report is set aside. Secondly, as stated
above, the grounds of disagreement have not been
referred to by the disciplinary authority, let alone
communicated to the delinquent officer. Thirdly, the
powers of the disciplinary authority, in the instant case,
are circumscribed by the terms contained in the order of
remand, which is only to pass a fresh order and does not,
as such, contemplate a fresh enquiry.
For all these reasons, I am of the view that the
petitioner is entitled to succeed. Ext.P12 in W.P.(C)
No.12122 of 2009 and Ext.P11 in W.P.(C)No.12144 of
2009 are quashed. The 2nd respondent shall proceed to
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pass fresh orders, as directed by the appellate authority,
within three months from the date of receipt of a copy of
this judgment.
Writ petitions are disposed of as above.
Sd/-
(V.GIRI)
Judge
sk/
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