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P.M. Sethu Madhavan Nair Vs. Commissioner for Government Examinations and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1979)ILLJ111Ker
AppellantP.M. Sethu Madhavan Nair
RespondentCommissioner for Government Examinations and anr.
Cases ReferredK.P.B. Nair v. The Director of Civilian Personnel
Excerpt:
- - on information received that there were leakage of question papers, it was on enquiry and investigation found out that one purushothaman who was the peon of the aforesaid government high school at the material time opened the steel safe (almirah) kept in the headmaster's room in the said high school by using duplicate key which he took from the drawer of a table and pilfered one s. 394 of 1971, i said--it appears to me that the principle stated in the aforesaid decisions would govern cases where successive enquiries in respect of the same charge are made by quasi-judicial authorities and other tribunals as well......that thereafter shri n. viswambharan, deputy director of public instruction had been appointed enquiry officer to make a detailed enquiry on the allegations levelled against the petitioner. this is evident from ext. p4 order dated 5-7-1971. the said proceedings stated that the petitioner was being kept under suspension by the manager of the school in connection with the leakage of question papers of the s.s.l.c. examination, of march, 1969. it further states that the preliminary enquiries disclosed a prima facie case of dereliction of duties and disobedience of departmental orders calling for disciplinary proceedings against him. it further states that under section 12a of the kerala education act, 1958 the action against the petitioner has to be initiated by the manager. in ext. p4.....
Judgment:

George Vadakkal, J.

1. The petitioner was appointed as the Deputy Chief Superintendent of S.S.L.C. and other public examinations conducted in March/April, 1969 at Centre No. 137, Government High School, Kalpakanchery. The Chief Superintendent was the Headmaster of that High School. On information received that there were leakage of question papers, it was on enquiry and investigation found out that one Purushothaman who was the peon of the aforesaid Government High School at the material time opened the steel safe (Almirah) kept in the Headmaster's room in the said High School by using duplicate key which he took from the drawer of a table and pilfered one S.S.L.C. question paper from each packet intended for the examination to be held in March, 1969, which was to start on 19-3-1969. By Ext. P1 communication dated 6-5-1969, the Manager, pursuant to the directions received by him from the District Educational Officer, placed the petitioner under suspension until further orders with immediate effect. The said proceedings show that the suspension as aforesaid was in connection with the serious irregularities in the conduct of the S.S.L.C. Examination of March, 1969 at the Government High School, Kalpakanchery Centre where the petitioner was the Deputy Chief Superintendent (the petitioner is a First Grade Graduate Assistant of an aided school under the management of the second respondent herein). Long thereafter the Director of Public Instruction who is also the Commissioner for Government Examinations issued Ext. P2 memo of charges calling upon the petitioner to show cause within 15 days from the date of receipt of that communication as to why disciplinary proceedings should not be initiated against him and the petitioner be punished for the charges levelled against him. The petitioner submitted Ext. P3 explanation wherein he submitted that as per certain circulars and orders it was not his duty to see that the irregularities made mention of in Ext. P2 memo of charges not to take place, but that of the Chief Superintendent. It appears that thereafter Shri N. Viswambharan, Deputy Director of Public Instruction had been appointed enquiry officer to make a detailed enquiry on the allegations levelled against the petitioner. This is evident from Ext. P4 order dated 5-7-1971. The said proceedings stated that the petitioner was being kept under suspension by the manager of the school in connection with the leakage of question papers of the S.S.L.C. Examination, of March, 1969. It further states that the preliminary enquiries disclosed a prima facie case of dereliction of duties and disobedience of departmental orders calling for disciplinary proceedings against him. It further states that under Section 12A of the Kerala Education Act, 1958 the action against the petitioner has to be initiated by the manager. In Ext. P4 proceedings reference is made to the manager's letter dated 31-7-1970 whereby the manager appears to have requested that the contemplated disciplinary proceedings and enquiry connected with the case may be taken up by the department since the petitioner was appointed as the Deputy Chief Superintendent by the District Educational Officer. Referring to Ext. P2 memo of charges, by Ext. P4 order the Director of Public Instructions appointed Shri N. Viswambharan, Deputy Director of Public Instruction as the enquiry officer. The enquiry officer was directed to conduct the enquiry according to the rules under the Kerala Education Rules, 1959 and submit his report with his findings and recommendations within one month.

2. The enquiry officer, as is averred in the counter-affidavit filed on behalf of the first respondent submitted his report before the first respondent, the Commissioner for Government Examinations on 12-8-1971. Thereafter, it is seen from the averments contained in the counter-affidavit sworn on behalf of the first respondent, he sent all the records regarding the enquiry to the manager for awarding appropriate punishment and also directing him to reinstate the petitioner. The petitioner was reinstated with effect from 8-9-1971. The manager imposed the punishment of censure by 'warning him to be more careful and duty minded hereafter and that any violation of rules and procedure or disobedience of instructions from him superiors in future will be very seriously dealt with'. The manager, as is evident from Ext. P8 letter, sent by him to the first respondent communicated the factum of imposition of punishment on the petitioner as aforesaid.

3. By Ext. P5 memo dated 18-6-1972 the first respondent required the petitioner to show cause why his increment for two years should not be barred with cumulative effect. This notice does not anywhere refer to the award of punishment by the manager. The petitioner submitted Ext. P6 explanation again reiterating his contention that it was not he who was mainly responsible for the conduct of the S.S.L.C. Examination, but the Chief Superintendent. After receipt of Ext. P6 explanation the first respondent passed Ext. P7 proceedings dated 16-8-1973, The said proceedings refer to Ext. P2 memo of charges, Ext. P3 explanation, the report of the enquiry officer, the petitioner's explanation, Ext, P5 show cause notice and Ext. P6 explanation, but not to the fact that the enquiry report and the proceedings were already sent over to the manager and that the manager has imposed the punishment of censure. Discussing the papers mentioned above the first respondent awarded the punishment of barring of two increments temporarily without cumulative effect for a period of two years. The said order stated that separate orders will be issued as regards the period during which the petitioner was kept under suspension. This order was communicated by the first respondent through the manager directing the manager to take necessary steps to implement the punishment awarded as aforesaid to the petitioner. By Ext. P8 reply, already adverted to the manager pointed out the fact that he had already imposed the punishment of censure and that, therefore, his conscience does not permit him to award a more severe punishment than what he has imposed He, therefore, said that the department may itself impose the punishment. Thereafter by Ext. P9 report the first respondent required the petitioner to show cause as to why the period of suspension from 7-5-1969 to 8-9-1971 be not treated as eligible leave. To this the petitioner by Ext. P10 replied protesting the course proposed. He also therein sought that the periods spent by him under suspension be treated as on duty for all purposes as per Sub-rule (2) of Rule 56 in Chapter VII, Part I of the Kerala Service. Rules. By Ext. P11 order the Director said that there was no reason to treat the period of absence by the petitioner under suspension as period spent on duty. For that reason the first respondent ordered that the said period would be treated as eligible leave. The District Educational Officer, Tirur was directed by the first respondent to implement Ext. P7 order imposing the punishment of barring two increments temporarily (without cumulative effect) for a period of two years on the petitioner. Exhibits P7 and P11 orders are impugned before me on the ground that the first respondent has no jurisdiction to pass the said orders at any rate after the second respondent-manager already, pursuant to the direction given by the first respondent, imposed the punishment of warning or censure. In this connection according to the learned Counsel for the petitioner it has to be noticed that though Ext. P4 proceedings contemplated an enquiry according to the Rules in the Kerala Education Rules, 1959 and the first respondent as per those proceedings directed the enquiry officer to submit a report with his findings and recommendations, and though such an enquiry appears to have been conducted, in that the enquiry officer is stated to have submitted a report, the enquiry report has not been communicated to the petitioner as required by Rule 75(11) in Chapter XIV-A of the Kerala Education Rules, 1959. The submission is that as is evident from Ext. P4 proceedings appointing the enquiry officer and the fact that after the receipt of the enquiry report the said report together with all the records were submitted to the manager for imposition of punishment, the proceedings contemplated against the petitioner was one that contemplated by Rule 75 aforesaid. Shortly the submission is that the first respondent contemplated imposition of punishment by the manager as contemplated by Rule 75 and that is why Ext. P4 proceedings directed the enquiry officer to conduct the enquiry and submit the report in accordance with the rules and the said report together with the records were transmitted to the manager. It is further contended that as required by the rules when the manager (second respondent herein) received the report of enquiry he imposed the punishment of censure or warning and that, therefore, there remained nothing for the first respondent to proceed with and that Ext. P7 order was without jurisdiction. At any rate it is submitted that the second respondent is not competent to enhance the punishment as the first respondent is not the appellate authority as has been attempted to be suggested in the counter-affidavit sworn on behalf of that respondent. The learned Counsel for the petitioner drew my attention to the fact that Ext. P5 show cause notice and Ext. P7 order were, according to the averments of the first respondent in the counter-affidavit, the result of the view taken by the first respondent that the punishment imposed by the manager was not adequate and that the manager did not, despite the request in that behalf, impose a more deterrent punishment. It appears to me that there is force in the submissions made on behalf of the petitioner. As is evident from the sequence of events narrated above and the contentions advanced on behalf of the first respondent at the Bar and the averments contained in the counter-affidavit sworn on his behalf it appears to me that the first respondent issued Ext. P5 show-cause notice, called for Ext. P6 explanation and passed Ext. P7 order solely on account of the fact that since, according to him, the punishment imposed by the manager was not adequate. The first respondent having, as he has sworn in the counter-affidavit, remitted the enquiry report together with the request to the manager for awarding appropriate punishment and the manager having imposed the punishment it is my view that the petitioner is not liable to be punished once again; the learned Government Pleader was not able to bring to my notice any provision which would constitute the first respondent an appellate authority over the award of punishment by the manager; though the learned Government Pleader referred me to Clause (b) of the proviso to Section 12A of the Kerala Education Act, 1958 read along with Clause (a) of the proviso, I do not think that clause confers on the first respondent any appellate authority.

4. With reference to departmental enquiry in respect of same charges and exoneration of those charges this Court in K.P.B. Nair v. The Director of Civilian Personnel (1970) K.L.J. 1041, pointed out that--

The principle that a person shall not be called upon to face the same charge again when once acquitted is a principle held to be applicable even in regard to disciplinary proceedings. There is no justification to hold an enquiry against a person who has faced the same charges once and has been found innocent of the charges .

* * * * Such a procedure would be abhorrent to all cannons of civilised procedure.

That principle was applied by me in O.P. No. 4990 of 1974 where after imposition of the penalty of cancelling the authorisation issued to a distributor under the provisions of the Kerala Rationing Order, 1966, sometime thereafter another punishment, namely, forfeiture of the security and certain other amounts was sought to be imposed on the said authorized distributor. It appears to me that the principle is not dependent upon whether the person against whom the charges are levelled against has been acquitted or convicted. K.P.B. Nair v. The Director of Civilian Personnel, (supra), is really an instance of the application of the rule against double jeopardy which according to that decision would govern not only criminal proceedings, but also disciplinary proceedings. In that view in O.P. No. 4990 of 1974 following the decision of my learned brother Poti, J., in O.P. No. 394 of 1971, I said--

It appears to me that the principle stated in the aforesaid decisions would govern cases where successive enquiries in respect of the same charge are made by quasi-judicial authorities and other Tribunals as well. The learned Government Pleader on behalf of the respondents sought to distinguish the decision aforesaid on the ground that on the facts of the case considered by my learned brother Poti, J., on the earlier occasion the Government servant against whom successive proceedings were initiated in respect of the same charge was found innocent of the charge. I do not think that it is of any consequence so far as the rule in question is concerned which is founded on the principle as stated in K.P.B. Nair v. The Director of Civilian Personnel (1970) K.L.J. 1041, that it would be improper to subject a Government servant to successive departmental enquiry in respect of the same charge.

It appears to me that this is what has happened so far as the case on hand is concerned. As already stated it has not been shown to me that the first respondent has got any appellate power over the punishment imposed by the second respondent, manager. At any rate, Ext. P7 does not advert to the punishment imposed by the manager nor does it appear that the first respondent purported to function as an appellate authority. If that be so the proceedings evidenced by Ext. P7 have to be construed as independent of the punishment validly imposed by the manager pursuant to the fact that the enquiry report and other records were remitted to him for that purpose.

5. So far as Ext, P11 order is concerned it appears to me that the first respondent was mostly carried away by the fact that by Ext, P7 order the punishment was enhanced to withholding of two increments without cumulative effect. It is now necessary to direct the first respondent to consider the question as to how the period of the petitioner's suspension from 7-5-1969 to 8-9-1971 has to be treated with reference to the punishment imposed by the second respondent-manager. I quash Ext, P7 order. I also quash Ext. P11 order. So far as the question as to how the period spent by the petitioner under suspension from 7-5-1969 to 8-9-1971 is to be treated the first respondent shall decide the question afresh with reference to the request made by the petitioner as per Ext. P10 explanation after giving him an effective and sufficient opportunity to susbtantiate his case.

6. The learned Government Pleader relying on Rule 92 of Chapter XIV-A of the Kerala Education Rules contended for the proposition that this original petition has abated in view of Section 58 of the Constitution (Forty-second) Amendment Act, 1976. I am not prepared to say that the petitioner can of right to take up the matter in revision and to seek redress of the injury in that manner. In that view I hold that the original petition is not abated.

7. The original petition is allowed to the above extent. There will be no order as to costs.


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