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T.V. Ali Vs. the State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 212 of 1975
Judge
Reported inAIR1976Ker42
ActsKerala Civil Services (Classification, Control and Appeal) Rules, 1960 - Rule 34
AppellantT.V. Ali
RespondentThe State of Kerala and ors.
Appellant AdvocateT.C. Mohandas and ;P.K. Suresh, Advs.
Respondent AdvocateGovt. Pleader
DispositionAppeal allowed
Excerpt:
- .....case to the director of public instruction for de novo action as per rule 34 (c) of the c. c. a, rules'.rule 34 of the civil services (classification, control and appeal) rules, in so far as the same is relevant reads as follows:'34. state government's power to review.-- notwithstanding anything contained in these rules, the state government may, on their own motion or otherwise, after calling for the records of the case, review any order passed by the high court as appellate authority under these rules in disciplinary proceedings initiated against a member of the kerala judicial service or the kerala subordinate magisterial service or the kerala judicial ministerial service or the kerala last grade service referred to in the note to rule 23 of these rules or a subordinate authority.....
Judgment:

Gopalan Nambiyar J.

1. The appellant was the Headmaster of the Government Lower Primary School, Kokkur. Certain charges were levelled against kirn for tampering with the entries in regard to the dates of birth of three pupils to whom transfer certificates were issued. It was found that the appellant was guilty of the charge of having tampered with the entries in the certificates and he was censored by the 3rd Respondent viz. the District Educational Officer, Malapuram, by Ext. PG order. In exercise of their power of review, under Rule 34 of the Kerala Civil Services (Classification, Control and Appeal) Rules 1960, the Government by Ext. PS order Stated as follows:

'Government have reviewed the case in exercise of the powers vested with them under Rule 34 (c) of the K. C. S. (C. C, and A) Rules. They find that the charges against Sri. T. V. Ali one of the serious nature and that the punishment awarded to him by the District Educational Officer is inadequate when the nature and gravity of the offence are considered. Government therefore set aside the order of the District Educational Officer (No. 81. 10368/70 dated 23-11-1971)and remit the case to the Director of Public Instruction for de novo action as per Rule 34 (c) of the C. C. A, Rules'.

Rule 34 of the Civil Services (Classification, Control and Appeal) Rules, in so far as the same is relevant reads as follows:

'34. State Government's power to review.-- Notwithstanding anything contained in these rules, the State Government may, on their own motion or otherwise, after calling for the records of the case, review any order passed by the High Court as appellate authority under these rules in disciplinary proceedings initiated against a member of the Kerala Judicial Service or the Kerala Subordinate Magisterial service or the Kerala Judicial Ministerial Service or the Kerala Last Grade Service referred to in the Note to Rule 23 of these rules or a subordinate authority which is made or is appealable under these rules or the rules repealed by Rule 39, and, after consultation with the Commission where such consultation is necessary-

(a) confirm, modify or set aside theorder;

(b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order;

(c) remit the case to the authority which made the order or to any other authority directing such further action or inquiry as they consider proper in the circumstances of the case; or

(d) pass such other order as they deem fit.

X X X X X.'

Under Clause (b), the Government themselves have power to enhance the penalty, of course, after issuing a show-cause notice to the person concerned. Under Clause (c) they have the right to remit the case to the lower authority directing such further action or enquiry. We doubt whether under Clause (c) a remittal back can be ordered for the limited purpose of giving the authority one more chance to pass a higher sentence which the Government feel, is called for in the case, in view of the power to enhance the sentence which is given under Clause (b). Whatever it is, if this limited power were to be exercised under Clause (c), the finding of guilt recorded by the authority should stand and the remittal back should be for the only purpose of passing an enhanced sentence. But in this case, we notice that the Government have set aside the order of the District Educational Officer and remitted the whole case back to him for de novo action with the observation that the charge is of a serious nature and that the punishment awarded is inadequate. We can easily visualise the serious effect and nature of such observation made by the Government which is the appellate or revisional authority in respect of the order of the subordinate authority to whom the matter is remitted It was improper for the Government to have made those observations. It might be open to it to deal withthe matter itself under Clause (b) and enhance the penalty if so felt necessary; or to set aside the order if it was disagreeing with the finding of guilt and then remit back the entire case.

2. We allow this appeal and quash Ex. P8 order and Ex. P7 memo issued to the petitioner in pursuance of Ex. P8 order. O. P. No. 4880 of 1972 will stand allowed as above. There will be no order as to costs.

3. We make it clear that the Government will be at liberty to exercise their power of review under Rule 34 of the Civil Services (Classification, Control and Appeal) Rules, in accordance with law.


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