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Krishnaswamy Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 732 of 1958
Judge
Reported inAIR1960Ker224
ActsConstitution of India - Articles 19(1), 226 and 311; Kerala Civil Service (Classification, Control and Appeal) Rules - Rules 13, 25(1) and 33
AppellantKrishnaswamy
RespondentState of Kerala and ors.
Appellant Advocate K.S. Sebastian, Adv.
Respondent Advocate Govt. Pleader for Respondent 1, 2 and 4 and; S. Bhoothalinga Iyer, Adv. for Respondent 3
DispositionPetition dismissed
Excerpt:
.....enquiry as well as the action taken, to the fourth respondent. the second respondent forwarded the punishment roll to the fourth respondent who held or the materials already gathered as well as a representation made to him by the petitioner on 2-5-1957, that the petitioner should be placed under suspension for one year from 12-4-1957, as punishment for misconduct. i may in this connection observe that it is not the failure to adhere strictly to rules relating to enquiries into misconduct that confers tile right on a civil servant to complain against the punishment and that, so long as article 311 is not violated, it is not competent for this court to interfere with the right of the president of the union or the governor of the state as the case may be to punish a civil servant, even..........accountant, under whom he was working. the government sought the opinion of the state public service commission regarding the proposed punishment of reduction in rank. the commissioner's advice was that the petitioner on his admission was guilty of misappropriation of government funds and that he should be dismissed from service. thereupon the government issued afresh notice, ext. p7, dated 9-5-1958, asking the petitioner to show cause why he should not be dismissed from service. the petitioner made a. submission similar to the earlier one, stating that he did the act at the instance of the third respondent and pleading for mercy. after considering his statement, the government passed an order ext. p9, on 14-10- 1958 discharging the petitioner from service. 3. exts. p3, p6, p7 and.....
Judgment:
ORDER

T.K. Kerala, J.

1. The petitioner who was a clerk in the State Transport Department was discharged from service by the first respondent, the State of Kerala, on 14-10-1958, and he has preferred this petition under Article 226 of the Constitution praying that the said order as well as certain earlier orders relating to the matter be quashed.

2. The facts leading to the order of discharge may be stated :

During February and March 1957, while the petitioner was working in the Ticket and Cash section of the Trivandrum City District Office of the Department, some concession tickets were found missing. The second respondent, the District Transport Officer, Trivandrum, reported the matter to the Director of Transport, the fourth respondent. The latter directed the second respondent to enquire into the matter and he also reported to the Government that he was deputing the second respondent to take necessary action. The petitioner was on leave at that time and he was asked to cancel his leave and appear before the second respondent.

The petitioner accordingly appeared before him on 17-4-1957 when he was asked to offer his explanation regarding the charge against him, of which) copy was given to him. He was also placed under suspension pending the enquiry. The petitioner submitted a statement before the second respondent admitting the charges and offering to refund the sum of Rs. 182.03 which was the value of the missing tickets. He remitted Rs. 125/- on l8-4-1957 and the balance was appropriated from his salary for March 1957. The second respondent reported the result of the enquiry as well as the action taken, to the fourth respondent.

The latter directed the second respondent to keep the petitioner under suspension and to forwardthe punishment roll. Pursuant to this, the second respondent gave another personal hearing to the petitioner on 25-4-1957 when also he admitted his guilt. The second respondent forwarded the punishment roll to the fourth respondent who held or the materials already gathered as well as a representation made to him by the petitioner on 2-5-1957, that the petitioner should be placed under suspension for one year from 12-4-1957, as punishment for misconduct. This order is Ext. P. 3 dated 6-7-1957. The fourth respondent reported to the Government regarding the action taken by him. The petitioner also submitted a representation to the Government on 13-11-1957.

The Government felt that the punishment awarded was not proper as suspension was not one of the recognised punishments and that the petitioner's misconduct being a serious one a more deterrent punishment was necessary. Accordingly on 117-1-1958 the Government issued a notice, Ext. P5, to the petitioner asking him to show cause why he should not be reduced in rank by 37 places thereby reducing him as the juniormost clerk in the Department. On receipt of this, the petitioner submitted his explanation stating that in doing the act he was only a too] in the hands of the third respondent, the District Accountant, under whom he was working.

The Government sought the opinion of the State Public Service Commission regarding the proposed punishment of reduction in rank. The commissioner's advice was that the petitioner on his admission was guilty of misappropriation of Government funds and that he should be dismissed from service. Thereupon the Government issued afresh notice, Ext. P7, dated 9-5-1958, asking the petitioner to show cause why he should not be dismissed from service. The petitioner made a. submission similar to the earlier one, stating that he did the act at the instance of the third respondent and pleading for mercy. After considering his statement, the Government passed an order Ext. P9, on 14-10- 1958 discharging the petitioner from service.

3. Exts. P3, P6, P7 and P9 are sought to be quashed. Though the petitioner raised as many as 27 grounds in the petition, the three broad grounds pressed at the hearing were : (1) that the discharge of the petitioner from service contravened Article 311 of the Constitution, (2) that the enquiry was conducted contrary to the provisions of the KeralaCivil Service (Classification, Control and Appeal) Rules, and (3) that some of the Rules of the Kerala Civil Service (Classification, Control and Appeal) Rules were ultra vires of the Constitution.

4. On behalf of respondents 1 and 4, a Superintendent in the Transport section of the Government Secretariat has filed a counter-affidavit supporting the action taken against the petitioner. The second and third respondents have also filed separate affidavits, denying the averments in the petitioner's affidavit.

5. The main point urged on behalf of the petitioner is that the order of discharge violates Article 311 of the Constitution. This Article provides that no person who is a member of the Civil Service of the Union or the State shall be dismissed or removed by an authority subordinate to that by which he was appointed and that no such person shall bedismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The petitioner has no case that he was removed from service by an authority subordinate to that which appointed him, so that the only question is whether he was removed, without givinghim a reasonable opportunity of showing cause against such removal.

The facts stated earlier show that there is no substance in the contention that the provisions of Article 311 of the Constitution were violated in passing the order removing the petitioner from service. During the enquiry by the second respondent, the petitioner was served with a copy of the charges which ho was to answer and he was given an opportunity of proving his innocence. At that stage, he admitted his guilt in unequivocal tennis and pleaded for mercy so that there was no need for an elaborate enquiry regarding the matter of misappropriation of Government funds. When the matter was reported to the fourth respondent, he was again given an opportunity of showing cause, and he submitted an explanation.

The fourth respondent directed that he be placed under suspension for one year as punishment for the misconduct. The matter was reported to the Government by the fourth respondent and the Government felt that suspension was not one of the substantive punishments contemplated by the Rules and further that a more deterrent punishment was necessary. The Government came to a tentative conclusion that reduction in rank would be a proper punishment, and the advice of the Public Service Commission was sought.

The Commission advised the Government that the proper punishment in the circumstances would be one of dismissal from service. Before obtaining the advice of the Public Service Commission the Government had asked the petitioner to show cause why he should not be reduced in rank. He showed cause, but as the punishment suggested by the Public Service Commission was a more serious one, the Government issued another notice to him asking him to show cause why he should not be dismissed. To this also the petitioner made a submission. Thus, it is seen that at every stage the petitioner was given opportunity to prove his innocence or to show that the punishment proposed was not proper. In these circumstances the contention that Article 311 of the Constitution was violated has only to he repelled.

6. Learned counsel for the petitioner raised a contention that principles of natural justice were violated inasmuch as the enquiry was conducted by the second respondent who had ultimate responsibility for the missing tickets and was therefore an interested party. Another ground of attack was that the fourth, respondent who held the petitioner guilty did not himself conduct the enquiry and that he acted on the result of an enquiry conducted by the second respondent. These points were not raised at any stage before this original petition was filed. Apart from this, there is the fact that this is a case in which the petitioner admitted his guilt in unambiguous terms. During the earlier stages his admission of guilt was unqualified while in the later stage he put forward a further plea attaching the blame to the third respondent who is alleged to have induced him to commit this act. In these circumstances it is clear that the enquiry is not vitiated in any manner.

7. Another ground raised by the petitioner is that the enquiry was not conducted in accordance with the Kerala Civil Service (Classification, Control and Appeal) Rules, It was stated that the Government did not give him a copy of the report as required by Rule 17 (5) (ii). However, he admitted that he was given a copy of the report by the fourth respondent. Another alleged contravention of the Rules is that the Government forwarded his explanation also to the Public Service Commission when the advice of the Commission was sought regardingthe proposed punishment and that he was therebyprejudiced.

I have gone through the whole file and there is nothing to support the allegation that at the ear-lice stage the Government sent his explanation to the Commission. Even assuming that it was so Kent, it is not clear how ho was prejudiced. I may in this connection observe that it is not the failure to adhere strictly to Rules relating to enquiries into misconduct that confers tile right on a civil servant to complain against the punishment and that, so long as Article 311 is not violated, it is not competent for this court to interfere with the right of the President of the Union or the Governor of the State as the case may be to punish a civil servant, even though the enquiry may not be strictly in accordance with the Rules.

8. The last point urged is that Rules 25 (1), 13 and 33 of the Kerala Civil Service (Classification, Control and Appeal) Rules are ultra vires of the Constitution. It was contended that Rule 25 which enables the Government to enhance punishment violates Article 19(1)(g) of the Constitution, inasmuch as it operates as an unreasonable restriction on the right of citizen to practise any profession or to carry on any occupation, trade or business. I do not sea how this rule operates as an unreasonable restriction on the right to carry on a profession. This rule 5s amply justified by the facts of this case, since the fourth respondent imposed a punishment which is not warranted by law. Rule 13 (3) provides for enhancement of penalty by a higher authority and Rule 33 relates to the revisional powers of the Government. It cannot be denied that Government has the right to examine every case of disciplinary action to see whether the punishment imposed is proper. This contention must also fail.

9. In the result, the original petition is dismissed. In the circumstances. I make no order asto costs.


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