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Samuel (M.J.) Vs. Chief Conservator of Forests and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1967)ILLJ342Ker
AppellantSamuel (M.J.)
RespondentChief Conservator of Forests and anr.
Cases ReferredIn State of Assam and Anr. v. Bimal Kumar Pandit
Excerpt:
.....of justice in his case, and it is only after reaching conclusions in both these matters provisionally that the dismissing authority issues the second notice. we are not satisfied that there is any force in this..........competent under these rules to impose on him that penalty'.the purpose of the explanation to sub-rule (2), rule 15, is apparently to widen the ambit of that definition by including within the meaning of the expression all authorities competent under the rules to impose any one or more of the penalties specified in items (i) to (iv) of rule 11(1).9. the second contention urged before us is based on ex. p. 6, the notice of the chief conservator of forests, asking the appellant to show cause why he should not be dismissed from service. the contention is that the chief conservator of forests had come to a definite conclusion as regards the guilt of the appellant when he issued ex. p. 6 and that as the appellant was entitled to contend that he was innocent and should not be punished at all.....
Judgment:

M.S. Menon, C.J.

1. This is an appeal by the petitioner in Original Petition No. 438 of 1965. That petition challenged, without success, the validity of Ex. P. 7, an order of the Chief Conservator of Forests, dismissing the petitioner from his post as forester in the service of the State.

2. The enquiry Into the allegations against the appellant was conducted by the Divisional Forest Officer, Malayattur. One of the contentions urged before us is that he was not competent to conduct the enquiry under Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960.

3. Rule 16 provides the procedure for imposing a major penalty like the one imposed in this case. Sub-rule (2)(b) of that rule says that the enquiry may be conducted by

(i) the Government,

(ii) the appointing authority,

(iii) the disciplinary authority,

(iv) the head of the department or any officer of the department empowered by the appointing authority or the head of the department, or

(v) a special officer or tribunal appointed by the Government for the purpose or a tribunal generally appointed for making enquiries into the conduct of Government servants.

The above provisions are followed by an explanation which reads as follows:

Explanation.-In this sub-rule the expression ' the disciplinary authority' shall include the authority competent under these rules to impose upon the Government servant any of the penalties specified in items (i) to (iv) of rule (1).

4. The penalties specified in Items (1) to (iv) of Rule 11(1) of the rules are:

(i) censure;

(ii) fine (in the case of persons on whom such penalty may be imposed under these rules);

(iii) withholding of increments or promotion ; and

(iv)(a) recovery from pay of the whole or part of any pecuniary loss caused to a State Government or the Central Government or to a local authority by negligence ' or breach of orders;

(b) recovery from pay to the extent necessary of the monetary value equivalent to the amount of Increments ordered to be withheld where such an order cannot be given effect to.

The contention of the appellant is that the Divisional Forest Officer, Malayattur, should not be considered as a disciplinary authority as he was not competent to Impose the fourth of the penalties mentioned above; and the contention of the department is that he should be considered as a disciplinary authority as he was competent to Impose the first three of the penalties so mentioned.

5. The point for determination, therefore, is whether the words

competent under these rules to impose upon the Government servant any of the penalties specified in Items (i) to (iv) of Rule 11(1)

in the explanation to Sub-rule (2) of Rule 15 mean:

All-each and every one-the penalties specified in items (i) to (iv) or only any one or more of those penalties. It is common ground that If the meaning of the words is as contended for by the appellant, this appeal should succeed; and that if the meaning of the words is as contended for by the department, the appeal should fall.

6. There is no doubt that the words 'any of' or 'any one of' are ambiguous and are capable of different meanings in different contexts. Under Section 76 of the Mines Act, 1952, where the owner of a mine is a public company, 'any one of the directors thereof' may be prosecuted and punished under that Act for any offence for which the owner of a mine is punishable. That provision came up for consideration before the Supreme Court in Chief Inspector of Mines and Anr. v. Lala Karam Chand Thapar and Ors. 1961-II L.L.J. 148. The Supreme Court said (pp. 156-157):

After giving the matter full and anxious consideration, we have come to the conclusion that the words ' any one of the directors' is ambiguous; in some contexts, it means 'only one of the directors, does not matter which one,' but in other contexts, it is capable of meaning ' every one of the directors.' Which of these two meanings was intended by the legislature In any particular statutory phrase has to be decided by the Courts on a consideration of the context in which the words appear, and In particular, the scheme and object of the legislation.

7. Earlier in the judgment, the Supreme Court said that there is no difference between the phrases ' any of them' and ' any one of them ' and later:

We have come to the conclusion that the words ' any one of the directors' has been used in Section 76 to mean ' every one of the directors' and that the contrary interpretation given by the High Court is not correct.

8. In the context of the explanation before us we agree with the department that the words:

competent under these rules to impose upon the Government servant any of the penalties specified in items (1) to (iv) of Rule 11(1)

mean competent to Impose upon the Government servant any one of the penalties specified in Items (1) to (iv) of Rule 11(1). The expression 'disciplinary authority' is defined in Rule 2(c) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, as follows:

' disciplinary authority' in relation to the Imposition of a penalty on a Government servant means ' the authority competent under these rules to impose on him that penalty'.

The purpose of the explanation to Sub-rule (2), Rule 15, is apparently to widen the ambit of that definition by including within the meaning of the expression all authorities competent under the rules to impose any one or more of the penalties specified in items (i) to (iv) of Rule 11(1).

9. The second contention urged before us is based on Ex. P. 6, the notice of the Chief Conservator of Forests, asking the appellant to show cause why he should not be dismissed from service. The contention is that the Chief Conservator of Forests had come to a definite conclusion as regards the guilt of the appellant when he issued Ex. P. 6 and that as the appellant was entitled to contend that he was Innocent and should not be punished at all In pursuance of that notice, the definiteness of the conclusion reached as to his guilt vitiates Ex. P. 6 and the proceedings subsequent thereto. The emphasis is on Para. 6 of Ex. P. 6 which reads as follows:

The Divisional Forest Officer after completing the enquiry has submitted the enquiry report with his finding on the charges to the disciplinary authority, the Chief Conservator of Forests. On a perusal of the enquiry report and the statements recorded from the witnesses at the time of the enquiry, the disciplinary authority is convinced that the charge of unprovoked and calculated assault on his superior officer, Sri C. S. Madhavan Pillai, Range officer, by the forester, M. J. Samuel, on the night of 29 July 1963 has been proved beyond doubt. The action of the forester, M. J. Samuel, in having resorted to violence against his superior officer is most atrocious criminality one can conceive of and in order to keep the morale and dignity of the staff such criminal action has to be dealt with suitably and the delinquent deserves exemplary punishment.

There is no doubt that by the expression 'disciplinary authority ' in the above extract the Chief Conservator of Forests means himself and not the Divisional Forest Officer, Malayattur. The only question of determination is whether he had closed his mind to all future representations as regards the Innocence of the appellant in pursuance of Ex. P. 6.

10. A definite conclusion is not necessarily a final conclusion impervious to change in the light of a subsequent representation. The following passage in Ex. P. 7 will clearly Indicate that the Chief Conservator of Forests had not closed his mind when he issued Ex. P. 6 and that the question of the appellant's innocence or guilt was still an open question:

The forester has submitted his explanation read as fourth paper above. His explanation has been examined with the connected records of the case. He has not put forth any points to absolve him of the charges.

11. In State of Assam and Anr. v. Bimal Kumar Pandit 1963-I L.L.J. 295 the Supreme Court said at p. 298:

In issuing the second notice, the dismissing authority naturally has to come to a tentative or provisional conclusion about the guilt of the public officer as well as about the punishment which would meet the requirement of justice in his case, and it is only after reaching conclusions in both these matters provisionally that the dismissing authority issues the second notice. There is no doubt that in response to this notice the public officer is entitled to show cause not only against the action proposed to be taken against him but also against the validity or the correctness of the findings recorded by the enquiring officer and provisionally accepted by the dismissing authority. In other words, the second opportunity enables the public officer to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then to urge that if he fails in substantiating his innocence, the action proposed to be taken against him is either unduly severe or not called for.

12. We entertain no doubt that the Chief Conservator of Forests was aware of the fact that the conclusions embodied in the second notice should be of a tentative or provisional character, that he proceeded on that basis, and that he did not deal with the innocence or guilt of the appellant as a closed matter when he passed Ex. P. 7, the order challenged before us.

13. The third and the last submission made before us is that the very detailed explanation submitted by the petitioner in pursuance of the second show-cause notice has not been properly considered by the Chief Conservator of Forests. We are not satisfied that there is any force in this submission. The explanation offered by the appellant appears to have been considered in the light of the connected records and we are not prepared to say that the conclusion of the Chief Conservator of Forests that the explanation was ' neither convincing nor satisfactory,' is not a conclusion that he could not have reached on the evidence before him.

14. It follows that this appeal has to be dismissed and we do so with costs.

15. Advocate's fee Rs. 100.


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