1. This writ petition came up before us on reference by one of us (Bhaskaran, J.) who, when the matter was before the single Bench, thought that the contention raised by the petitioner that the publication of guides for the public Service Commission examinations by an employee of the Kerala Public Service Commission (the Commission) would not attract the Bar under Rules 48 and 58A of the Kerala Government Servants Conduct Rules, 1960 (the Conduct Rules), requires to be decided by a Division Bench.
2. The fact briefly stated are as follows: The petitioner, while he was holding the post of Senior Grade Assistant in the office of the Commission (1st respondent) was placed under suspension pending disciplinary action against him as per its order No. SS IW/4/73 dated 10-10-1973, a true copy of which is Ext. P-1 Exhibit P-2 is the copy of the memo of charges dated 17-6-1974 issued to the petitioner by the Deputy Secretary, Vigilance (B) Department, Government of Kerala. Exhibit P-3 is the copy of the written statement filed by the petitioner in answer to the allegations levelled against him in Ext. P.2 memo of charges.
3. The 2nd respondent, Government of Kerala, after having got an investigation conducted by the Crime Branch into the charges levelled against the petitioner, decided as per G.O. Rt. No 69/75/Vig., Vigilance(B) Department dated 1-4-1975, a true copy of which is Ext. P4 that the charges against the petitioner and the other officers whose names were mentioned in paragraph 1 of that order, should been uired into in detail under the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules, 1960 (the Tribunal Rules) and passed necessary orders in that behalf. Exhibit P-5 is the copy of the additional written statement of defence submitted by the petitioner in the enquiry conducted by the Disciplinary Proceedings Tribunal in enquiry case No. 2 of 1975. On completion of the enquiry, the Tribunal in its proceedings dated 3-2-1977, a true copy of which is Ext. P-6. gave a finding that the petitioner was guilty of charge No. III and recommended that he should be compulsorily retired from service with effect from the date of suspension. Exhibit. P-6 was followed by a show - cause notice dated 15-5-1977 a true copy of which is Ext. P-7, issued by the Commission to the petitioner; and Ext. P-9 is the copy of the explanation submitted by the petitioner. Ultimately the Commission by its order No S.S 42/74 dated 22-9-1977, a true copy of which is Ext. P-9, decided to confirm its provisional decision to compulsorily retire the petitioner from service with effect from the date of his Suspension, i.e., 10-10-1973. It is aggrieved by the proceedings culminating in Ext. P-9 order of Commission that this writ petition has been filed by the petitioner for quashing Ex's P-2, P-4. P-6 and P-9. Charge No. III in Ext. P. 2 memo of charges, found to have been proved against the petitioner by the Disciplinary Tribunal in Ext. P-6 proceedings reads as follows :
III. That you compiled, printed, published and sold guides for the examination of Kerala Public Service Commission in the years 1972-73, and thereby engaged in private trade, violating Rules 48 and 58(a) of the Kerala Government Servants Conduct Rules, 1960.
4. Sri N. Sugathan, the counsel for the petitioner, at the outset drew our attention to the following contention raised in paragraph 2 of the Ext. P-3 written statement submitted by the petitioner in answer to Ext. P-2 memo of charges dated 19-6-1974.
The memo referred to above framing charges against me is issued by the Vigilance Department, Government of Kerala. Since I am a member of the staff of the Public Service Commission, which is not under the administrative control of the Government, it may be examined whether the issue of the said memo is in order.
Under Clause 12 of the Kerala Public Service Commission (Composition and Conditions of Service of Members and Staff) Regulations, 1957 (the Staff Regulations; it is for the Commission to employ the staff specified in Annexure I to these Regulations; the Commission being the appointing authority, and also the disciplinary authority, it was only the Commission that could have framed the charge. It is not disputed that Ext. P-2 memo of charges was framed by a Deputy Secretary to the Government, and Ext. P-4 order for causing an enquiry into the charges mentioned in Ext. P-2 by the Disciplinary Tribunal was passed by the Government, not by the Commission. We have not been shown any authority vested in the Government to initiate disciplinary proceeding against a member of the staff of the Commission; and, as such, the framing of the memo of charges (Ext. P-2) by an officer under the control of the Government and the issue of an order in the nature of But. P-4, by the Government are absolutely without jurisdiction; in our view the fact that the memo of charges framed by the Government was communicated to the petitioner through the Commission would not cure the defect touching the very jurisdiction of the authority that framed the memo of charges in that behalf. The memo of charges having been drawn up by an authority not competent in that behalf, the entire proceedings based on such charge memo deserve to be quashed.
5. Sri. Sugathan raised yet another contention; and that was concerning the authority of the Disciplinary Tribunal to conduct the enquiry into the charges levelled against the petitioner, assuming without conceding that Ext. P-2 memo of charges was validly issued. Rule I (c) of the Tribunal Rules lays down:
They shall apply to all officers under the rule-making control of the State Government other than those referred to in Article 314 of the Constitution of India.
In terms of this rule the Tribunal Rules are to apply to officers under the rule-making control of the State Government, not to members and staff of the Commission who fall beyond the rule-making control of the State Government. We have not been shown any provision in the Start Regulations by which the Disciplinary Tribunal's jurisdiction has been extended to disciplinary proceedings against the members and staff of the Commission. In the light of these facts we are inclined to uphold the contention of the petitioner that the inquiry conducted by the Disciplinary Tribunal into the charges levelled against him pursuant to Ext. P-2 memo of charges and Ext. P.4 order of the Government is without jurisdiction
6. Now that we have already expressed our view that Ext. P-2 memo of charges Ext. P-4 Government order directing the Disciplinary Tribunal to hold inquiry into the charges levelled against the petitioner, and Ext. P-6 proceedings of the Disciplinary Tribunal finding the petitioner guilty of charge No. III framed against him, are liable to be quashed, we do not consider that we are called upon to answer the question of law whether the compiling, printing, publishing or selling of guides for the examination to be held by the Commission would he violative of Rules 48 and 58-A of the Conduct Rules though it was for deciding that question of law the matter has been referred to the Division Bench. Once Exts. P-2, P-4 and P-6 are held to be invalid, it would follow that Ext. P-9 order passed by the Commission to compulsorily retire the petitioner from service on the basis of the finding in Ext. P-6 proceedings of the Disciplinary Tribunal would also be liable to be quashed. This being the position we would decline to consider or express our views on the above question of law referred to the Division Bench for its decision.
7. Two other contentions pressed before us by Sri Sugathan on behalf of the petitioner are ; (1) Sri M.K. Abdulkhader who constituted the Tribunal and rendered Ext. P-6 order had been both the Prosecutor and Judge inasmuch as he himself had, before being appointed the Tribunal, in his capacity as the Legal Adviser to the Vigilance Department aided the investigation and collection of material by the respondents in the very same case against the petitioner; and (2) though in the last paragraph of Ext. P-6. under the heading 'Racommendation', it has been stated as follows .'
'Normally violation of Rules 48 and 58(A) of the Kerala Government Servants' Conduct Rules, 1960 would not have called for major penalties.
The petitioner had been singled out for severe punishment of compulsory retirement from service. Now that we have already indicated that Ext. P-2 memorandum of charges, Ext. P-4 Government order and Ext. P-6 proceedings of the Disciplinary Tribunal are liable to be quashed, it would follow that Ext. P-9 proceedings of the Commission based on them also would have to be quashed; and therefore, the two contentions noticed above have no relevance in the present context.
8. For the foregoing reasons we allow the writ petition quashing Exts. P-2 memo of charges, P-4 Government Order, P-6 proceedings of the Disciplinary Tribunal and P-9 order of the Commission. We make no order as to costs.