V. Balakrishna Eradi, J.
1. The petitioner was a member of the Kerala State Forest Service and was occupying the post of Conservator of Forests which he relinquished on superannuation on 4.8.1967.
2. Certain charges were framed against the petitioner as per a memo dated 11.11.1967 and this was supplemented by an additional statement of allegations furnished along with a letter addressed to him on 1.2.1967. After considering the explanation which the petitioner furnished in answer to those charges, the State Government by its order evidenced by Ext. P-1, dated 13.3.1967. exonerated the petitioner from all those charges.
3. The State Cadre of the Indian Forest Service had been constituted with effect from 1.10.1966 and interviews had been conducted for the selection of officers belonging to the State Service for inclusion in the newly formed Indian Forest Service Cadre. The petitioner who was occupying the 2nd rank in the seniority list amongst the officers in the Kerala State Forest Service was selected by the Special Selection Board and also by the Union Public Service Commission for appointment to the Indian Forest Service; but his appointment was not notified because the State Government had intimated to the Central Government that disciplinary proceedings were then pending against him. In consequence of this the petitioner's name was not included in the notification dated 4th March, 1967 (Ext. P-2), issued under Rule 6 of the Indian Forest Service announcing the appointment of 21 officers belonging to the Kerala State Forest Service as members of the Indian Forest Service on probation.
4. It would appear that pursuant to his exoneration under Ext. P-1, the State Government had addressed a communication to the Home Ministry on 2.3.1967 stating that there was no objection to the petitioner's inclusion in the Indian Forest Service in view of his exoneration from the charges which had been enquired into. In that communication it also appears to have been mentioned that though some allegations against the petitioner were pending enquiry with the Director of Vigilance Investigation, no specific charges had been framed against him in respect of them. It is the petitioner's case that further action in the matter of his appointment to the Indian Forest Service was however prevented as the result of a subsequent communication addressed by the State Government to the Home Ministry requesting that the matter may be kept in abeyance till the remaining allegations against the petitioner were also examined by the Government and be was cleared of those imputations also. The truth of this averment put forward by the petitioner has not been denied either by the State Government or by the Central Government (2nd respondent).
5. On 3.8.1967 the petitioner was served with a memo of charges and he was called upon to show cause why disciplinary action as contemplated under the Kerala Civil Services (Classification. Control and Appeal) Rules, 1960 (hereinafter referred to as the Rules) should not be taken against him. A perusal of Ext. P-3 leaves no room for doubt that it was a notice issued under Rule 15(1)(a)of the Rules. In response to that memo the petitioner filed a detailed statement of defence, a copy of which has been produced along with the original petition and marked as Ext. P-4. The Government, thereafter, by G.O MS. 89/68/Home dated 7.3.1968 referred the case for a detailed enquiry to the Tribunal for disciplinary proceedings under Rule 15 of the Rules. An elaborate enquiry was conducted by the Tribunal in which as many as 15 witnesses were examined (or the prosecution and one witness was called on the defence side and 50 documents were also produced and marked in evidence. After the conclusion of the said enquiry the Tribunal submitted to Government a report dated 15th January, 1969, of which Ext P-5 is a copy. In the said report the Tribunal after a detailed discussion of the evidence adduced in the case and also the contentions urged on both sides exonerated the petitioner from guilt in respect of the charges framed against him. The Tribunal found that there was only some technical violation by the petitioner of the instructions contained in a circular issued by the Chief Conservator of Forests (marked in the enquiry proceedings as Ext. P-15) and even in regard to this the Tribunal held that the petitioner had acted bona fide with a view to getting the work executed within the short period that was available.
6. It may be stated at this juncture that the gravaman of the charges against the petitioner really consisted in the allegation levelled against him that he had deliberately deviated from the practice generally followed in the Department of prohibiting relations of officers having control over the work from joining the auction by deleting from the sale notification relating to the auction to be held on 6.11.1961 Clause (14) and that this had been done with a view to enable a particular firm in which the petitioner's son-in-law was the managing partner to participate in the auction. The charge contained a specific allegation that the petitioner was activated by favouritism and corrupt motives. The Tribunal found that the petitioner was not guilty of this charge.
7. The Government after considering the report of the Tribunal proceeded to pass a final order in the matter as per GO. (M.S.) 194/Home dated 20.6.1969 (Ext. P-6) differing from the conclusion of the Tribunal in respect of charges 1(a) and (b) and holding the petitioner guilty of the former charge and also of a substantial part of the Utter charge and stating that this conclusion warrants the imposition on the petitioner of the penalty of censure. It is further stated in Ext. P-6 that since the petitioner had already retired from service the punishment of censure could not be imposed on him and hence it was placed on record that the said punishment would have been awarded to him had he been still in service. The order Ext. P-6 was communicated to the petitioner together with a copy of the report of the enquiry tribunal and a statement Ext. P-7, containing the Government's reasons for disagreeing with the findings of the Special Tribunal. The petitioner has brought this writ petition seeking to quash Ext. P-6.
8 The petitioner contends that since the disciplinary proceedings had been initiated against him under Rule 15 of the Rules he was entitled to be given an opportunity of making his representations before the Government before the final order was passed in the matter, particularly when the findings entered in his favour by the Tribunal were being dissented from by the Government and observations censuring him were being recorded against him in the final order casting a perpetual stigma against him. It is argued on behalf of the petitioner that it was not open to the Government to suddenly switch over to the procedure under Rule 16 of the Rules at the stage of passing the final order without fully complying with the provisions of either Rule 15 or Rule 16. The petitioner submits that as a result of the denial to him of an opportunity to place his representations before the Government differing from the conclusion of the Tribunal declared him guilty of the charges and imposed the penalty of censure on him, there has been a clear violation of the basic principles of natural justice. In substantiation of this plea and also with a view to high-light the actual prejudice that he has been subjected to on account of the passing of Ext. P-6, the petitioner has averred in the original petition and in the accompanying affidavit that but for the impugned order having been passed by the State Government he would Lave been appointed into the Indian Forest Service for which he had been already selected and that it was as a direct consequence of the impugned action that he has been deprived of the benefit of his selection to the Indian Forest Service and the chances of getting higher emoluments including a better pension.
9. On behalf of the State Government it was not denied that no notice or opportunity to show cause against the action proposed was afforded to the petitioner bet ore the order Ext. P-6 was passed. But it was contended that since the petitioner had been duly informed about the allegations against him as per the charge memo, Ext. P-3, and also allowed to participate in the detailed enquiry which was conducted into those charges by the disciplinary Tribunal, there was no further obligation on the part of the Government under the Service Rules to give him any further notice or opportunely before proceeding to impose on him only a minor penalty. According to the Government Pleader the circumstance that the proceedings were originally commenced under Rule 15, would not entitle the petitioner to the grant of a second opportunity to show cause against punishment if the Government ultimately decided alter its going through the enquiry report that only the imposition of a minor punishment was called for.
10. After a careful consideration of the arguments addressed on both sides I have come to the conclusion that the petitioner is entitled to succeed in his contention that he was entitled to be given a notice and an opportunity to make his representations before Government before any final order was passed by the Government imposing on him even the minor penalty of censure It is true that under Rule 16 it is not obligatory on the part of the disciplinary authority to have any elaborate oral enquiry conducted before imposing a minor penalty. But, in the present case, the Government did not proceed against the petitioner under that Rule. Under Rule 16 a notice ought to have been given to the petitioner in the first instance informing him of the allegations against him and also about the nature of the action proposed to be taken against him and asking him to show cause against such action. If that had been done the petitioner would have had a composite opportunity of showing cause not merely against the charges levelled against him, but also against the particular action proposed to be taken. The Rules clearly contemplate that the disciplinary authority should make up its mind at the initial stage itself whether it would adopt the procedure for the imposition of a major penalty laid down in Rule 15 or whether in the circumstances of the case only the comparatively summary procedure for the imposition of a minor penalty contained in Rule 16 need be followed. It is not permissible for the disciplinary authority to shift over from one procedure to the other at the stage of passing the final order so as to deprive the Government servant concerned of an effective opportunity of showing cause against the action proposed to be taken against him which is guaranteed to him even under Rule 16. I had occasion to deal with this question in my judgment in O.P. 2610 of 1966 in considering the validity of an order passed against a Government servant imposing on him a minor penalty after following the same procedure as has been adopted by the disciplinary authority in the present case. In that judgment the legal position was stated by me in the following terms:
Quite apart from the statutory provisions contained in Rule 17, it is an elementary requirement of natural justice that before the petitioner, who had successfully exonerated himself before two successive Boards of Enquiry, was declared guilty by the 2nd respondent differing from the conclusion of the Boards of Enquiry, the petitioner should certainly have been given an opportunity to state his case and establish his innocence before the disciplinary authority (2nd respondent). To my mind the applicability of this principle is not in any manner affected by the circumstance that the 2nd respondent chose to impose on the petitioner not any one of the major penalties but only a minor penalty of warning because the crucial fact remains that the petitioner had been branded guilty of a very grave misconduct, which undoubtedly does cast a stigma on his fair name and reputation besides constituting a perpetual black mark in his service record which will seriously affect his future prospects of departmental promotion etc.
The same view has been taken by a Division Bench of the Rajasthan High Court in Kishan Singh v. State of Rajasthan 1965 II L.L.J. 335. The following observations from that judgment may be usefully extracted:
Under the circumstances, though the disciplinary authority, when it gave notice, was considerate enough to ask the petitioner to let it know if he wanted a personal hearing and if he wanted any documentary or oral evidence to be produced in his defence, it suddenly adopted a different procedure and proceeded against him under Rule 17 instead of proceeding under Rule 16, without disclosing any reasons for the change arid punished the petitioner without giving him any personal hearing or examining any evidence for or against him in his presence. It is true that for imposing minor penalties, it is open to the disciplinary authority to proceed under Rule 17 instead of Rule 16, but if the disciplinary authority proposes to proceed under Rule 17, that rule requires that the Government servant must be informed in writing of the proposed action to be taken against him and also of the allegations on which action is proposed to be taken. He should be given an opportunity to make a representation which he may wish to make. We find that no intimation was given to the petitioner what action the disciplinary authority proposed to take against him and whether it wanted to proceed under Rule 17. We do not mean to say that it is not permissible for the disciplinary authority to proceed under Rule 17 for imposing minor penalties, simply because it has proceeded initially under Rule 16 but it is certainly necessary that if it proposes to change the procedure from Rule 16 to Rule 17, a clear notice to that effect must be given to the person concerned before proceeding under Rule 17.
Judged in light of the legal position as explained in the aforesaid rulings it has to be held that the order, Ext. P-6, whereunder the petitioner has been held to be guilty of two of the charges of misconduct and has been effectively censured so as to cast an indelible stigma on his fair name and reputation in relation to his official career without affording him any opportunity to make his representations concerning the matter is illegal and void.
11. The petitioner is also entitled to succeed in his contention that the impugned order was passed in clear violation of the principles of natural justice. It is now well settled that before a public authority proceeds to make any order which will visit a person with adverse civil consequences it must afford to the person likely to be so affected an opportunity to show cause against such action. On the facts and circumstances of the present case there cannot be the slightest doubt that the order Ext. P-6 has resulted in very serious prejudice to the petitioner particularly in relation to his chances for appointment into the Indian Forest Services. Over and above that it is certainly a matter of grave consequence to a civil servant to be subjected to a censure by an order passed subsequent to his retirement from service on superannuation thereby casting an indelible stigma on a career which in the case of the petitioner was completely free from any blemish whatever.
12. The petitioner had successfully established his innocence before the Tribunal after having been subjected to a very detailed enquiry. Government have undoubtedly the right to differ from the findings of the Tribunal and to record findings of their own adverse to the petitioner, but justice and fairplay demand that before such decision is finally arrived at the party who will be affected thereby must be given an opportunity to make his representations in order that be may have a chance of proving his innocence to the satisfaction of the Government. Since this basic requirement of natural justice has not been complied with in this case the action taken as per Ext. P-6 is null and void.
13. Inasmuch as I have come to the conclusion that the impugned order Ext. P-6 it void on the ground of contravention of the principles of natural justice and also on account of the non-observance of the procedure laid down in Rules 15 and 16 of the Kerala Civil Services (Classification, Control and Appeal) Rules, it is unnecessary for me to deal with any of the other contentions taken by the petitioner touching the merits of the findings entered by the Government.
14. In the result I quash Ext. P-6 on the ground indicated above, namely, that it is violative of the principles of natural justice and also of the terms of Rule 16 of the Rules. The writ petition is allowed to that extent. The parties will bear their respective costs.