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Macki Fernandez Vs. State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1961)IILLJ486Ker
AppellantMacki Fernandez
RespondentState of Kerala and anr.
Cases ReferredMayuranathan v. State of Kerala and
Excerpt:
- - 27. the state further represents that this report was considered, and after consulting the chief engineer (general and projects), government was satisfied that there was a prima facie case against the three officers including the petitioner and therefore the government passed the order on 20 october 1960, viz. 1 is one in respect of which the petitioner can well be proceeded against. the state refers to certain survey reports 41 to 46 of 1958-59 to show that the materials included in those reports were inspected by the petitioner on 28 october 1958, 30-october 1958 and 1 november 1958 and the state also contends that the dates of inspection by the junior engineer as well as by the petitioner, in survey numbers 43 to 46 are found to be tampered with. whereas in the particular case,.....c.a. vaidialingam, j.1. in these proceedings under article 226 of the constitution, sri t.n. subramania iyer, learned counsel for the petitioner seeks to have the order of respondent 1, ex.p. 1, dated 20 october 1960 quashed by the issue of a writ of certiorari or other appropriate writ, direction or order. 2. the order ex.p. 1 itself is to the effect that investigations conducted into allegations against the three officers mentioned therein, one of whom is the petitioner, have disclosed prima facie that the officers have committed the two irregularities stated therein. ex.p. 1 also states that the allegations referred to therein, for which there is prima facie evidence are of a serious nature warranting disciplinary action and the government consider that the case against the three.....
Judgment:

C.A. Vaidialingam, J.

1. In these proceedings under Article 226 of the Constitution, Sri T.N. Subramania Iyer, learned Counsel for the petitioner seeks to have the order of respondent 1, Ex.P. 1, dated 20 October 1960 quashed by the issue of a writ of certiorari or other appropriate writ, direction or order.

2. The order Ex.P. 1 itself is to the effect that investigations conducted into allegations against the three officers mentioned therein, one of whom is the petitioner, have disclosed prima facie that the officers have committed the two irregularities stated therein. Ex.P. 1 also states that the allegations referred to therein, for which there is prima facie evidence are of a serious nature warranting disciplinary action and the Government consider that the case against the three officers mentioned therein should be proceeded with and enquired into under the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules, 1960 and the Government order accordingly.

3. Ex.P. 1 is also to the effect that the tribunal for disciplinary proceedings is to conduct the enquiry according to the rules referred to earlier and forward its report to the Government with its findings and recommendations.

4. The three officers referred to therein; including the petitioner, are also, by the same order, placed under suspension forthwith pending completion of the disciplinary proceedings against them.

5. The name of the petitioner is given in Ex.P. 1 as 'Sri J.M. Varghese Fernandez', but there is no controversy that the correct name of the petitioner as 'J. Macky Fernandez' has been given by the State, by an amendment to Ex.P. 1 made on 21 October 1960. Therefore, there cannot be any doubt that the action proposed to be taken by the Government was as against the petitioner.

6. It will be seen that Ex.P. 1, which is sought to be quashed, directs an inquiry as against the three officers mentioned therein, including the petitioner, and places all the three officers under suspension pending inquiry.

7. In this writ application, this Court is concerned with Ex.P. 1 only in so far as it relates to the petitioner.

8. The circumstances under which this writ petition has been filed, could be gathered from the various allegations made in the affidavit filed by the petitioner in support of this application.

9. The petitioner is an assistant engineer in the Kerala State Engineering Service, and was the subdivision officer, at the time of filing the writ petition, in charge of the Ernakulam subdivision in the buildings and roads wing of the State public works department.

10. After setting out the matters referred to in Ex.P. 1, the petitioner states that the order Ex.P. 1. is vitiated by errors apparent on the face of the record and it is also illegal and one passed without jurisdiction. The petitioner himself admits that his correct name has been given by a memorandum issued by the Government on 21 October 1960.

11. The petitioner alleges that the basis of the order is an assumed fact that he was the assistant engineer having the control and supervision of the construction of ceramic factory building at Kundara and on that assumption the petitioner is alleged to have committed the two irregularities stated in Ex.P. 1.

12. The petitioner states that the construction of the said building was over before 1956, as will be seen by Ex.P. 2, a copy of the letter sent from the section on 12 January 1958 regarding the final bill in the work. Another copy of a letter, dated 10 March 1956, sent by the subdivision officer submitting his final bill is also relied upon as Ex.P. 3, and it is further stated that another assistant engineer K. Narayanan Nair, signed Ex. P. 3 and submitted the final bill.

13. It is further alleged that the petitioner assumed charge of the Quilon subdivision only on 29 May 1957 and the petitioner actually took charge under Ex.P. 4 off 29 May 1957.

14. Therefore, the petitioner further states that he had no control or supervision regarding the said construction and that he had not issued any iron materials to the contractors and that he was not and could not also be interested in any way to cover up any loss by the contractor not returning the surplus materials. Nor could he be held responsible for preparing false survey reports and fabricating records.

15. The petitioner further states that no loss could have also been caused to Government, as there was ample provision safeguarding the interest of the Government against any such loss provided in the agreement with the contractor himself.

16. It is farther alleged that the survey reports regarding the surplus materials returned by the contractor were prepared by the section-officer (supervisor) under orders of the executive engineer and that the petitioner had nothing to do with the preparation of the survey reports or the auctions held thereunder.

17. The petitioner attacks Rule 4 of the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules, 1960 enabling the Government to refer any case to be dealt with by the tribunal, as offending Article 14 of the Constitution. It is his contention that the said rule confers an uncontrolled and unregulated power on the executive Government which is capable of being exercised with discrimination and that one officer might be dealt With under the Travancore Public Servants (Inquiries) Act, 1122 or Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, which are more advantageous to the 'officer, while in Identical circumstances another officer might be dealt with under the more disadvantageous and more drastic Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules, 1960.

18. The further attack made is that the reference of the case to the tribunal is illegal under Para. 2 of Rule 8(13) of the Tribunal's Rules as the inquiry has started long before the publication of the rules.

19. The order placing the petitioner under suspension is also attacked as being illegal on the ground that Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, under which the power has been exercised is also violative of Article 14 of the Constitution.

20. The petitioner also contends that the Tribunal Rules are violative of the principles of natural justice, as no opportunity is afforded to the officer to explain matters before his case is referred to the tribunal for inquiry.

21. The petitioner also alleges that there is an Initial lack of jurisdiction inasmuch as there is no statement in Ex.P. 1 about the Government's satisfaction for taking action against the petitioner.

22. On these grounds, the petitioner, as I mentioned earlier, seeks to have the order Ex.P. 1 quashed.

23. The respondent 1, the State, in its counter-affidavit, controverts the various contentions taken by the petitioner in his affidavit.

24. It is stated that in February 1959, Government received an anonymous petition containing very serious allegations against one Vikraman Nair, the then executive engineer, P.W.D., Quilon. There was an allegation that large quantities of iron and other materials were given to the contractor in connexion with the construction of the ceramic factory building at Kundara and that after the completion of the work, the contractor, instead of returning the excess materials, returned only some cut pieces purchased from scrap dealers. There was also an allegation that in respect of these cut pieces the executive engineer had directed the junior engineer to prepare survey reports limiting the value of the articles covered by each of the reports to less than Rs. 200 and that it was so done, as the executive engineer could not sanction an auction if the value of the articles exceeded Rs. 200. Survey reports were prepared accordingly assessing the value of the articles at 3 or 5 naye paise per pound when they would have really fetched nearly 8 annas per pound. These reports were sanctioned by the executive engineer and thereafter false records of public auctions stated to have been held; were caused to be prepared when in reality, there was no auction at all and huge loss has been caused to Government as a result of all these.

25. It is further represented' by the State that the anonymous petition was forwarded by the Government to the superintendent of police, X Branch, Trivandrum, for preliminary inquiry and report and the report submitted by that officer showed a prima facie case against

(a) Vikrama Nair, executive engineer,

(b) the petitioner, and

(c) the junior engineer.

26. An extract from the report of the superintendent of police is given in Para. 3 of the State's counter-affidavit.

27. The State further represents that this report was considered, and after consulting the Chief Engineer (General and Projects), Government was satisfied that there was a prima facie case against the three officers including the petitioner and therefore the Government passed the order on 20 October 1960, viz., Ex.P. 1 which is under attack. The Government further states that as the name of the petitioner was not correctly given in Ex.P. 1, it was subsequently amended by a memorandum, dated 21 October 1960.

28. The State further contends that the order Ex.P. 1 is not liable to be quashed on any of the grounds stated by the petitioner. Though the petitioner assumed charge of the Quilon subdivision only on 29 May 1957 and the construction of the ceramic factory building was completed in December 1955, the State contends, it is not correct to say that the two irregularities mentioned in Ex.P. 1 applied jointly to all the three officers. Ex.P. 1, according to the State, does not and was not intended to specify the particular irregularity committed by each officer and the question of specifying the irregularities as against each officer will arise only at the stage when charges are to be framed against them.

29. The State further alleges that the second irregularity referred to in Ex.P. 1 is one in respect of which the petitioner can well be proceeded against. The State refers to certain survey reports 41 to 46 of 1958-59 to show that the materials included in those reports were Inspected by the petitioner on 28 October 1958, 30-October 1958 and 1 November 1958 and the State also contends that the dates of inspection by the junior engineer as well as by the petitioner, in survey numbers 43 to 46 are found to be tampered with.

30. The State further alleges that when all the materials were available at one time, one survey report should have been prepared; whereas in the particular case, separate reports were prepared by the junior engineer and it was the duty of the petitioner to have insisted upon the preparation of one single survey report and that he has failed to do so. The petitioner also did not take any action regarding the low rate fixed for the materials, which was quite patent even on the face of it.

31. The State further contends that it is no longer possible for them to claim the value from the contractor.

32. The State further controverts the contention that Rule 4 of the Tribunal Rules, 1960, offends Article 14 of the Constitution. The State takes the stand that the only right which a civil servant has in such circumstances, is the right to be given a reasonable opportunity, as provided in Article 311 of the Constitution and so long as this opportunity is given, it is not open to the petitioner to question the mode of inquiry which may be decided upon by the Government. The State also controverts the contention that the reference to the tribunal is illegal under Para. 2 of Rule 8(13) of the Tribunal Rules, The State also contends that the preliminary inquiry conducted by the superintendent of police is not the enquiry referred to in the said rule and a regular inquiry was ordered only under Ex.P. 1, dated 20 October 1960.

33. The State also challenges the contention of the petitioner that Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 offends Article 14 of the Constitution.

34. The State further reiterates that because it was satisfied of the need for taking action in public interest that the order Ex.P. 1 was passed and the further order of suspension was also passed by virtue of powers vested in the Government.

35. The petitioner has filed a reply-affidavit more or less reiterating the position taken up by him in the original affidavit. He also states that the second irregularity referred to in Ex.P. 1 has nothing to do with him. The petitioner also disputes the statement of the State that one survey report should have been prepared when all the materials are available and he sets up another practice in Para. 4 of the reply-affidavit and gives an explanation as to why he could not insist upon the preparation of a single survey report. The petitioner also states in the said reply-affidavit that such splitting of survey report is invariably resorted to in the department in the interest of speedy disposal of unserviceable material. He also denies the statement that the rate fixed for the materials in the survey report was low.

36. The petitioner in his reply-affidavit refers to action taken against one or two other officers and that there has been no suspension in those oases and therefore, the order suspending the petitioner is discriminatory of the powers conferred under Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. The petitioner also refers to certain other matters on the merits, namely, his liability or otherwise.

37. This Court is not concerned, at this stage, as to whether the petitioner is in any way liable or if he is liable at all, to what extent. Those are all matters, which do not arise at the present stage, because the petitioner has come up to this Court, even when an order was passed by the Government directing an inquiry into his conduct and placed him under suspension pending inquiry. Therefore, the petitioner's contention regarding the legality of the order Ex.P. 1 alone arises for consideration in this proceeding. Even charges have not been framed.

38. Before I deal with the various contentions of Sri T.N. Subramania Iyer, learned Counsel for the petitioner and the learned Government Pleader on behalf of the respondent 1, State, it may be stated, that, in this judgment reference to the Travancore Public Servants (Inquiries) Act, 1122 (Act XI of 1122) will be made as the Act; the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, as Services Rules; and the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules, I960, as Tribunal Rules.

39. The first contention of Sri T.N. Subramania Iyer, learned Counsel for the petitioner is that Rule 4 of the Tribunal Rules is violative of the provisions of the Article 14 of the Constitution, inasmuch as it confers an uncontrolled and unregulated power on the executive with a. potentiality of being exercised by discrimination. According to Sri T.N. Subramania Iyer, one officer might be dealt with cinder the Act or the Services Rules, which he urges are more advantageous and less onerous to an officer; while another officer similarly situated in identical circumstances might be dealt with by the Government under the more disadvantageous and more onerous Tribunal Rules. The learned Counsel has drawn my attention to certain provisions of the Act and the two sets of rules to show that the procedure to be adopted under the Tribunal Rules, in the conduct of an inquiry, is less advantageous and more onerous to an officer.

40. The learned Counsel has also shown certain aspects, which, according to him, will ultimately support his contention, that the procedure under the Tribunal Rules is certainly less advantageous to the officer.

41. Therefore, Sri T.N. Subramania Iyer's contention is that Rule 4 of the Tribunal Rules which gives an uncontrolled power to the Government, without any guidance being furnished under the rules, has to be struck down.

42. On the other hand, the learned Government Pleader has contended that Rule 4 of the Tribunal Rules is not in any way violative of the provisions of Article 14. The learned Government Pleader also contended that the only right which a civil servant has, is a right to be given a reasonable opportunity, as provided under Article 311 of the Constitution. The learned Government Pleader also contends so long as this reasonable opportunity is given to an officer, it is not open to the latter to question the mode of inquiry which may be decided upon by the State. The learned Government Pleader, also in turn, took me through the various provisions of the Act and in the two sets of rules to show that even under the Disciplinary Proceeding Tribunal Rules under which the petitioner is sought to be proceeded against the petitioner is given the reasonable opportunity guaranteed to him under Article 311 of the Constitution.

43. The Tribunal Rules have been issued by the State Government by virtue of powers conferred by the proviso to Article 309 of the Constitution and they have come into force on 1 January 1960. Rule 4 of the Tribunal Rules is to the effect:

The Government may refer to the tribunal any case or class of cases, which they consider, should be dealt with by the tribunal.

44. This is the rule which is strenuously attacked by the learned Counsel, Sri T.N. Subramania Iyer.

45. Before I consider the scheme of the Act and the two sets of rules, it may be worthwhile to refer to the observations of their lordships of the Supreme Court in Pannalal Binjraj v. Union of India : [1957]1SCR233 . At page 408 Justice Sri Bhagwati observes as follows:

Even if there is a possibility of discriminatory treatment of persons falling within the same group or category, such possibility cannot necessarily invalidate the piece of legislation.

It may also be remembered that this power is vested not in the minor officials but in top ranking authorities like the Commissioner of Income-tax and Central Board of Revenue of income-tax and Central Board of Revenue who act on the information supplied to them by the income-tax officers concerned. This power is discriminatory and abuse of power cannot be easily assumed where the discretion is vested in such high officials--vide Matojog Dobey v. H.C. Bari : [1955]28ITR941(SC) . There is moreover a presumption that public officials will discharge their duties honestly and in accordance with the rules of law (vide people of the State of New York v. John E. Van De Carr, etc. (1905) 199 U.S. 552-50 Law edn. 305. It has also been observed by this Court in A. Thangal Kunju Musaliar v. Venkatachalam Potti : [1956]29ITR349(SC) with reference to the possibility of discrimination between assessees in the matter of the reference of their case to the Income-Tax Investigation Commission that--

It is to be presumed, unless the contrary were shown, that the administration of a particular law would be done--not with an evil eye and unequal hand and the selection made by the Government of the cases of persons to be referred for investigation by the Commission would not be discriminatory.

46. Again, in the decision reported in in Re. Kerala Education Bill A.I.R. 1958 S.C. 956 the learned Chief Justice observed at p. 976 as follows:

In this connexion, we must bear in mind what has been laid down by this Court in more decisions than one, namely, the discretionary power and the abuse of power by the Government will not be lightly assumed.

47. In this case, there is absolutely no allegation by the petitioner that the Government have in any way acted mala fide when they referred his case for inquiry by the tribunal. Nor is there any allegation that there has been, as a fact, an improper or unjust exercise of power directed against the petitioner alone. Therefore, the tall contention that Rule 4 of the tribunal rules has to be struck down by itself, does not at all appeal to me; especially when there is absolutely no such allegations made by the petitioner as have been referred to by me earlier. The possibility of a discriminatory treatment cannot necessarily invalidate the rule itself and if an abuse of such power is alleged and established, the parties aggrieved have adequate remedies available under law. Even in those oases what will be struck down is not the provision itself, which invests the authorities with such power, but the abuse of the power itself.

48. It is also worthwhile to bear in mind in this connexion, the following observations of their lordships of the Supreme Court in Pradyat Kumar v. Chief Justice of Calcutta : [1955]2SCR1331 at p. 291:

But the exercise of the power to appoint or dismiss an officer is the exercise not of a Judicial power but of an administrative power. It is nonetheless so, by reason of the fact that an opportunity to show cause and an enquiry simulating judicial standards have to precede the exercise thereof.

49. In O. PS. 1371 and 1417 of 1959, one of the grounds of attack made against, Section 49A of the Banking Companies Act, 1949 was that the power given to the Central Government to issue a notification enabling any other banking institution to accept from the public deposits of money withdrawals by cheque, was discriminatory and violative of the provisions of Article 14 of the Constitution.

50. Based upon the decision of the Supreme Court referred to earlier, I have to reject that contention.

51. Sri Subramania Iyer has contended that under more or less similar circumstances, a rule has been held to be arbitrary and violative of the provisions of Article 14 and in support of this contention, the learned Counsel placed reliance upon the decision of the Orissa High Court in Dhirendranath Das v. State of Orissa A.I.R. 1958 Orissa 96 which has been confirmed on appeal by their lordships of the Supreme Court in Civil Appeal No. 103 of 1959, not yet reported.

52. That is, according to Sri T.N. Subramania Iyer, the latest decision of the Supreme Court is to the effect that when unguided and and uncontrolled power is given to an authority to refer the cases of persons identically situated to different sets of authorities, functioning under different rules and if the case of one such officer is referred for enquiry under rules which are more onerous and less advantageous to an officer, such a provision has to be struck down and in fact has been struck down by the Supreme Court. I will have to advert to these decisions a little later and before I go into that aspect, it is desirable to state the legal position as to what exactly is the right guaranteed to a Government servant under Article 311 of the Constitution. Having this in mind, it may be necessary to find out' how far the provisions of the Tribunal Rules can be considered to be more onerous and less advantageous to the officer concerned. For this purpose it is necessary to refer to the scheme of the Act and the two sets of rules.

53. I will first consider the scheme of the Act. The preamble is to the effect that it is found expedient to enact a law for regulating inquiries into the conduct of public servants, who are not removable from their appointments 'with the sanction, of our Government.'

54. Section 2 provides for the Government ordering a formal and public enquiry into the truth of any imputation of misconduct by any person if the Government are of opinion after the preliminary inquiry or otherwise that there are sufficient grounds for ordering such inquiry. The same section provides for the Government drawing up the substance of the imputations into distinct articles of charges and directing a formal inquiry to be made into the truth of those charges.

55. Under Section 3 the provision is made for the inquiry being committed either to the Court, board or other authority to which the accused person is subordinate, or to any other person especially appointed as Commissioner and for giving notice of such appointment of commission to the accused person.

56. Section 4 provides for the Government nominating some persons to conduct the prosecution.

57. Sections 5, 6 and 7 are not material for the present purpose excepting to note that under Section 7, if the Government decide to abandon the prosecution, power is given to the Government to allow the complainant or accuser to continue the prosecution.

58. Section 8 gives power to the Commissioner to summon witnesses and for compelling production of documents.

59. Section 10 provides for a copy of the articles of charge and the list of the documents and witnesses by which each charge is to be sustained being delivered to the accused person at least three days before the beginning of the Inquiry.

60. Section 11 describes the procedure to be followed at the inquiry, namely, of the prosecutor delivering articles of charge to the Commissioner and the accused person being required to plead guilty or not guilty. There la also a provision in Section 11 that if the accused person refuses, or without reasonable cause neglects to appear to answer the charge either personally or by his counsel or agent, he would be taken to admit the truth of the articles of charge.

61. Section 12 deals with the right of prosecutor to address the Commissioner regarding the charges as well as the evidence on the basis of which those charges are sought to be proved.

62. Under Section 13 provision is made for oral and documentary evidence being tendered by the prosecution and witnesses being examined by the prosecutor and a right of cross-examination by or on behalf of the accused person being also vouchsafed. The prosecutor is also given a right to re-examine witnesses on points on which cross-examination has been directed with the leave of the Commissioner on other matters also.

63. Under Section 14, power is given to the Commissioner to permit the prosecutor to produce evidence, not included in the list given to the accused person or to call any new evidence independently. In those cases, a right is given to the accused, to have an adjournment for the period mentioned therein before the new evidence could be adduced by the prosecution or examined by the Commissioner.

64. Section 15 deals with the recording of the defence of the accused if made in writing.

65. Section 16 gives a right to the defence to adduce defence evidence and to examine witnesses, who could be cross-examined by the prosecutor and a right of re-examination is also reserved to the accused.

66. Section 17 deals with the notes of evidence being recorded.

67. Section 18 gives a right to the prosecution to produce evidence to contradict any evidence produced by the defence and the accused shall not be entitled to an adjournment on this ground.

68. Section 19 gives power to the Commissioner to amend the articles of charge. Power is also given to adjourn the inquiry from time to time.

69. Section 20 enjoins the Commissioner, after the close of the enquiry, to forthwith report to the Government his proceedings under the Commission and also send along with the records his opinion on each of the articles of charge separately with such observations as he thinks fit on the whole case.

70. Under Section 21, power is given to the Government on consideration of the report, to direct the Commissioner to take further evidence or give further explanation of his opinion. Power is also given to the Government to have an inquiry conducted into any additional charges that may be framed and in cases where a Special Commissioner has been appointed, power is given to the Government, if they think fit, to refer the report to the Court or other authority, to which the person accused is subordinate for their opinion and the Government is to pass the final orders as they consider just and proper.

71. Section 22 saves the right of the Government to suspend or remove any public servant for any cause without any inquiry under the Act.

72. I will now advert to the salient features of the Tribunal Rules, 1960. These rules are framed by the Government in exercise of powers conferred by the proviso to Article 309 of the Constitution.

73. Rule 1(b) states that the rules are to come into force on 1 January 1960 and under Clause (c) the rules apply to all officers under the rulemaking control of the State Government other than those referred to in Article 314 of the Constitution.

74. Clause (c) of Rule 2 defines 'Tribunal' as the tribunal for disciplinary proceedings. Clause (d) again states that expressions used, but not defined in the rules are to have the meanings assigned to them under the Services Rules, 1960.

75. Rule 3(a) states that the tribunal shall consist of a judicial officer who has worked or is eligible to be appointed as District and Sessions Judge and under Clause (b) appointment to the tribunal is to be made by the Government.

76. Rule 4 provides for the Government referring to the tribunal any case or class of oases, which, they consider, should be dealt with by the tribunal.

77. Rule 5(a) provides for the authorities mentioned therein being satisfied about there being a prima facie case for taking action against an officer before the tribunal. Those authorities are to forward to Government the records. Clause (6) provides for the Government after examining such records and after making such consultations as may be necessary to decide whether the case shall be proceeded with and if so, whether it shall be tried by the tribunal. Clause (c) of Rule 5 provides for all departments of Government assisting the tribunal in the production of witnesses and in securing the necessary documents and in other ways when the tribunal is seized of the case. Clause (f) provides for the Government appointing an appropriate authority to present the case against an accused Government servant before the tribunal and it further provides that where the authority is so designated by the Government is a legal practitioner, the accused Government servant concerned shall be allowed on request, to be represented by counsel.

78. Rule 6 is not very material.

79. Rule 7(a) provides for the sitting of the tribunal in convenient places, having due regard to the convenience of the parties concerned. Clause (b) of Rule 7 provides that the proceedings of the tribunal shall be in camera.

80. Clause (2) of Rule 8 provides for the tribunal framing appropriate charges along with the statement of facts on which each of the charges are based, and to communicate them to the person charged together with the list of witnesses likely to be examined. Clause (3) makes it obligatory on the part of the tribunal to inform the accused Government servant of the date, time and place of inquiry and as to whether the accused Government servant may be represented by legal practitioner, if he so desires. Clause (4) provides for the commencement of the inquiry and letting of oral and documentary evidence on behalf of the prosecution with a right to the Government servant or his representative including a legal practitioner to cross-examine those witnesses. After that, under Clause (5) a right is given to the accused to file a written statement along with the list of witnesses whom he wishes to examine. Clause (6) deals with the adducing of the oral and documentary evidence by the accused and the prosecution being given a right to cross-examine the defence witnesses including the Government servant if the latter gives evidence. Clause (7) gives a right to the tribunal to put questions to. the witnesses and also to examine any witness of its own accord. Clause (8) provides for the statement of the witnesses being reduced to writing and Clause 9 deals with the right of the accused after the evidence is closed, to advance the necessary arguments either orally pr in writing or both. Clause (10) provides for the tribunal recording its findings in respect of each charge and also to recommend to Government the punishment to be imposed, if the accused Government servant is held guilty. There is also another consequential provision made under Clause (10). Clause (11) makes provision for the Government considering the report of the tribunal and after examining the records of the case, to record its provisional conclusions on each of the charges and where the accused Government servant is found guilty, the Government is also to state about the penalty proposed to be imposed. But where the Government differs from the findings of the tribunal, the Government is to set out its reasons for differing from the finding of the tribunal. In cases under Clause (12) where the Government comes to the provisional conclusion that a punishment of reduction, removal, dismissal, or compulsory retirement should be imposed it shall furnish the accused Government servant with a copy of the findings of the tribunal and its reasons therefor, the provisional conclusions arrived at by the Government with reasons therefor and the punishment proposed to be imposed and there is a further provision for asking the Government servant to show cause within a reasonable time not exceeding fifteen days against the particular penalty proposed to be inflicted. Clause (13) provides for the Government passing final orders on receipt of the reply by the Government servant or where no such reply is received after the period for giving the reply is over. In cases where the Public Service Commission is to be consulted, the Government is to send records along with the Government servant's reply to the Commission and its advice is to be taken into consideration before a final decision is taken. Clause (14) provides for an inquiry being proceeded with in the absence of the Government servant as far as possible, in accordance with the procedure mentioned in the rules in cases where the Government servant has absconded or where the tribunal is satisfied that it is impracticable to communicate with the Government servant.

81. For the present, I will leave out Rule 9 as I will have to consider that rule in connexion with another contention raised by Sri T.N. Subramania Iyer and which will be dealt with later in the judgment.

82. Now coming to the Services Rules, they are also framed by the Government by virtue of the powers conferred by the proviso to Article 309 of the Constitution.

83. Clause (a) of Rule 2 defines 'Appointing authority' and Clause (c) defines 'Disciplinary authority' and Clause (d) defines 'Government servant.'

84. Rule 3 makes the rule applicable to all Government servants except those excluded therein.

85. Rule 6 classifies the members of the services into (a) State service: and (6) subordinate service.

86. Rule 9 is to the effect that all appointments to State and Subordinate Services shall he made by the Government and power is given to the Government to delegate to any other authority the power to make such appointments.

87. At this stage it may be mentioned that the appointing authority of persons like the petitioner is the Government.

88. Rule 10 gives power to the appropriate authorities mentioned therein to place an officer under suspension in the circumstances stated therein. Rule 10 also makes provision for certain other incidental matters.

89. Rule 11 provides for the nature of penalties that may be imposed on a Government servant.

90. Rule 13 gives power to the Government to impose any of the penalties specified in items (i) and (iii) to (viii) of Rule 11(i) on members of the State services. There are also certain other incidental matters provided as to the other appropriate authorities who could impose certain other penalties mentioned therein.

91. Rule 15 provided for the procedure for imposing major penalties and in particular Sub-rule (1) of Rule 15 is to the following effect:

Without prejudice to the provisions of the Public Servants' (Inquiry) Act, 1850 (Central Act XXXVII of 1850). and the Public Servants' Act, 1122 (Act XI of 1122), no order imposing on a Government servant any of the penalties specified in items (v) to (viii) of Rule 11(1) shall be passed except after ah inquiry held as far as may be, in the manner hereinafter provided.

92. Sub-rule (2)(a) provides for the directing Of a formal inquiry into the conduct of the Government servant under the circumstances stated therein and Clause (6) of Sub-rule (2) provides for the conduct of the inquiry by the authorities mentioned therein. Sub-rule (3) of Rule 15 makes it obligatory on the part of the inquiring authority to frame definite charges on the basis of allegations on which the inquiry is proposed to be held and make provision for such charges together with the statement of the allegation on which they are based, to be communicated in writing to the Government servant and for the latter being required to submit within the time fixed a written statement of his defence and also to indicate whether the Government servant desires to be heard in person. Sub-rule (4) gives a right to the Government servant for the purpose of preparing his defence to inspect and take extracts from such official records as he may specify and also gives power to the authority concerned to refuse permission, if the authority is of the view that those records are not relevant or that it will be against public interest to allow the Government servant access thereto. The same Sub-rule also makes it obligatory on the part of the authority to record its reasons in writing if permission is refused. Sub-rule (5) provides for the inquiring authority to inquire into the charges. Sub-rule (6) makes provision for the disciplinary authority if it is not the inquiring authority to nominate any person to present the case in support of the charges. The Government servant is also given freedom to represent his case with the assistance of any other Government servant approved by the inquiring authority, but the Government servant may not engage a legal practitioner unless the person nominated by the disciplinary authority is a legal practitioner or unless the inquiring authority permits. Sub-rule (7) provides, for the receiving of documentary and oral evidence and gives a right to the Government servant , to cross-examine witnesses examined by the prosecution and also to give evidence in person and also examine witnesses in support of his defence. The person conducting the prosecution is also given a right to cross-examine the Government servant as also his witnesses. Sub-rule (8) makes provision for the Government servant filing a list of witnesses whom he desires to examine, and it also provides that the authority will normally request these witnesses to appear before him and if they are Government servants the inquiring authority is also to normally try to secure their presence. But if any non-official is sought to be examined by the Government servant, there is no obligation on the part of the inquiring authority to summon and examine him unless the Government servant himself produces him for examination. Sub-rule (9) provides for the inquiring authority to prepare a report of the inquiry regarding its findings on each of the charges giving reasons therefor. Sub-rule (1) provides for what all matters should be included in the record of the inquiry. Sub-rule (11) makes provision for the consideration of the record of inquiry and to record its finding on each charge by the disciplinary authority. If the disciplinary authority is Government, the Government is to consider the records of the inquiry and record its provisional findings on each charge together with its reasons. Sub-rule (12) makes provision for the disciplinary authority to follow the procedure indicated therein, if it is of the opinion that the penalties specified in items (v) to (viii) of Sub-rule (1) of Rule 11 is to be imposed, such as furnishing to the Government servant a copy of the report of the inquiring authority, a statement of its findings together with brief reasons for disagreement, if any, and for giving notice to the Government servant about the action proposed to be taken and to call upon him to submit his representation against the proposed action within a specified time which is generally not to exceed one month and it also makes provision for consulting the Public Service Commission in oases where it is so necessary to consult. After receipt of the advice of the Commission, the disciplinary authority is to consider the representation, if any, made by the Government servant and the advice given by the Commission and to determine what penalty is to be imposed on the Government servant and it is to pass appropriate orders. In cases where it is not necessary to consult the Commission, the disciplinary authority is to pass appropriate orders after considering the representations made by the Government servant. Sub-rule (14) makes provision for orders passed by the disciplinary authority to be communicated to the Government servant along with a copy of the report of the inquiring authority and also a statement of its findings with brief reasons for disagreement, if any, with the findings of the inquiring authority and also a copy of the advice given by the Commission.

93. Rule 16 prescribed the procedure for imposing minor penalties and it also says that those penalties cannot be imposed except after the Government servant is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity to make any representations that he may desire and unless such representations have been considered by the authority.

94. Rules 17 to 20 do not require to be noticed in this connexion.

95. Rule 21 states that there shall be no appeal against an order passed under the provisions of the rules except as provided in the rules themselves.

96. Rule 22 provides for the appropriate authority to whom an appeal can be filed against an order of suspension.

97. Rule 23 gives a right to the Government servant, State or subordinate, to file an appeal against the imposition of any penalties mentioned in Sub-rule (1) of Rule 11 to the authority to which the authority Imposing penalty is immediately subordinate. But there is a proviso to the effect that provided that where an order is passed by Government, there shall be no appeal.

98. Rule 24 provides for an appeal being filed against certain other orders referred to therein.

99. Rules 25 to 29 provide for the period of limitation for filing of appeals, the form and contents of appeal, submission of appeals, withholding, and transmission of appeals, etc.

100. Rule 31 enables the appellate authority to consider the appeal in the light of various matters referred to therein and to exercise its powers in the various manner indicated therein.

101. Rules 34 and 35 provide for review of previous orders.

102. As I have mentioned earlier, the appointing authority to appoint officers like the petitioner is the State Government and where an order imposing any penalty is passed by the State Government, the officers concerned will have no right of appeal by virtue of the proviso to Rule 23 of the Services Rules.

103. I have rather elaborately given the various provisions of the Act and the two sets of rules in order to consider the contentions of Sri T.N. Subramania Iyer that the procedure under the Tribunal Rules is more disadvantageous and more drastic than the procedure under the Act or the Services Rules.

104. In this connexion, it is desirable to note as to what exactly is the right that is guaranteed or safeguarded to an officer under Article 311 of the Constitution when proceedings are sought to be taken as against him.

105. Considering the scope of Article 311 of the Constitution, the learned Chief Justice, who spoke in the Court, observes in the decision reported in Khem Chand v. Union of India : (1959)ILLJ167SC at p. 307 as follows:

To summarize: the reasonable opportunity envisaged by the provision under consideration includes

(a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.

106. In short, the substance of the prosecution provided by rules, like Rule 55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in Section 240(3) of the Government of India Act, 1935, so as to give a statutory protection to the Government servants and has now been incorporated in Article 311(2) so as to convert the protection into a Constitutional safeguard.

107. The principles laid down and extracted above, were again reiterated by their lord- ships of the Supreme Court in a later decision reported in Kapur Singh v. Union of India : [1960]2SCR569 , No doubt, that case related to an inquiry conducted as against an officer of the Indian Civil Service. One of the grounds taken before the Supreme Court was that the inquiry conducted against the officer in question under the Public Servants (Inquiries) Act, 1950, was illegal and that the conduct of the public servant should have been inquired into only under Rule 55 of the Civil Services (Classification, Control and Appeal; Rules. Therefore, it was urged that the inquiry not having been held under the said rule, the order passed as against the Government servant based upon proceedings taken under the Act referred to above, was without jurisdiction. Another contention that was raised before the Supreme Court was to the effect that the inquiry under the Public Servants (Inquiries) Act, 1850 violated the equal protection clause of the Constitution and therefore void.

108. More or less, similar contentions are raised by Sri T.N. Subramania Iyer, in this proceeding also, as indicated earlier. Justice Sri Shah, delivering the judgment of the Court, observes as follows at p. 498:

Does the holding of an enquiry against a public servant under the Public Servants (Inquiries) Act, 1850, violates the equal protection clause of the Constitution? The appellant submits that the Government is invested with authority to direct an enquiry in one of two alternative modes and by directing an enquiry under the, Public Servants (Inquiries) Act, which Act, it is submitted, contains more stringent provisions when against another public servant similarly circumstanced an enquiry under Rule 55 may be directed. Article 14 of the Constitution is infringed. The Constitution by Article 311(2) guaranteed to a public servant charged with misdemeanour that he shall not be dismissed, removed or reduced in rank unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The content of that guarantee was explained in Khem Chand v. Union of India 1959--I L.L.J. 167, It was observed that:

the reasonable opportunity envisaged by the provision under consideration includes:

(a) An opportunity to deny MB guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based:

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflct one of the three punishments and communicates the same to the Government servant.

By the Constitution, to the public servants who are not members of the Indian Civil Service charged with misdemeanour, a guarantee to fair enquiry into their conduct is given, i.e., the public servant must be afforded a reasonable opportunity of defending himself against the charges by demonstrating that the evidence on which the charges are sought to be founded is untrue or unreliable, and also by leading evidence of himself and his witnesses to that end; he must besides, be afforded an opportunity of showing cause against the proposed punishment. The Constitution, however, does not guarantee an enquiry directed in exercise of any specific statutory powers or administrative rules.

109. After making the above observations, his lordship considers the position of the members of the Indian Civil Service and ultimately holds:

But the guarantee being one of an enquiry directed under one of two alternative powers, the exercise of authority under one of the two alternatives is not prima facie illegal.

110. In my view, the position taken up by Sri T.N. Subramania Iyer that when there is the Act, the Services Rules and the Tribunal Rules, the order of the Government in directing an inquiry under the Tribunal Rules is arbitrary and violative of the equal protection clause of the Constitution, is almost concluded against him by the principles laid down by Justice Sri Shah in the decision referred to earlier. But Sri T.N. Subramania Iyer relied upon the recent decision of the Supreme Court in Civil Appeal No. 103 of 1959 (unreported) and according to the learned Counsel, the position is either modified or stands considerably altered. That is the aspect I will have to deal with later in the Judgment.

111. In the view that I take about the decision in Kapur Singh v. Union of India : [1960]2SCR569 it may not really be necessary for me to consider whether as a matter of fact, the Tribunal Rules are less advantageous and more drastic than the procedure under the Act or the Services Rules.

112. I have referred to the various provisions contained in the Act, the Services Rules and the Tribunal Rules very exhaustively. Though no doubt, there may be very slight differences here and there, in my view, the right guaranteed to a Government servant under Article 311 of the Constitution is amply provided for in the rules in question, namely, the Tribunal Rules. The Act does not provide for any right of appeal; the officers like the petitioner, for whom the appointing authority is the Government, do not have also a right of appeal under the Services Rules either.

113. The Tribunal Rules provide for the accused Government servant being informed of the charges and also the allegations on which those charges are based. The accused officer is also to be supplied with a list of witnesses, who are likely to be-examined by the prosecution. The tribunal is to be a judicial officer who has worked or is eligible to be appointed as a District and Sessions Judge. The accused Government servant is given an opportunity to defend himself by cross-examining the witnesses produced against him and he is also given a right to adduce oral and documentary evidence in support of his defence. The Tribunal Rules also provide for the accused officer being given an opportunity to make his representations as to why the proposed punishment should not be inflicted. The reasonable opportunity envisaged under Article 311 of the Constitution and as laid down by their lordships of the Supreme Court in the decision referred to earlier. In my view, are amply provided for in the Tribunal Rules under which the petitioner is sought to be proceeded against.

114. The fact that the Government have directed an inquiry under the Tribunal Rules, does not by itself violate Article 14 of the Constitution. As observed by their lordships of the Supreme Court:

The Constitution, however, does not guarantee an inquiry directed in exercise of any specific statutory powers or administrative rules.

115. No doubt, Sri T.N. Subramania Iyer tried to rely on certain minor differences, that no doubt exist in the procedure that may be adopted either under the Act or the two sets of rules. For example, Sri T.N. Subramania Iyer urged that under the Act, it is the Government that has to frame the articles of charges and then order an inquiry; whereas under the Tribunal Rules, it is the tribunal that is given power to frame charges after a case has been referred to it. More or less, the same is the position under the Services Rules where the inquiring authority frames charges. Again, Sri T.N. Subramania Iyer contended that under the Tribunal Rules, a Government servant has no right to be represented by a legal practitioner unless the prosecutor is himself a legal practitioner. Then again, Sri T.N. Subramania Iyer urged that there is provision under Section 21 of the Act for the Government referring the report of a Commissioner to a Court or other authority to which the accused person is subordinate for their opinion before passing final orders. No such provision is available under the Tribunal Rules. Then again Sri T.N. Subramania Iyer urged that under Sub-rule (12) of Rule 8 of the Tribunal Rules, the time given for a Government servant to show cause against the action proposed is limited to fifteen days.

116. These and certain other matters emphasized by Sri T.N. Subramania Iyer, in my view, do not in any way, advance his contention that the procedure under the Tribunal Rules are more drastic and less advantageous to an officer. So far as the rights safeguarded to an officer under Article 311 of the Constitution are to be substantially found in the Tribunal Rules, the fact that there may be a slight hardship one way or other does not make the procedure under the Tribunal Rules in any way violative of Article 14 of the Constitution.

117. Sri T.N. Subramania Iyer, as I mentioned earlier, has relied upon the decision of the Orissa High Court reported in Dhirendranath v. State of Orissa A.I.R. 1958 Orissa 96 which has been later affirmed by the Supreme Court in the unreported decision in Civil Appeal No. 103 of 1959, a copy of the judgment which has been furnished to me in blue-print. According to Sri T.N. Subramania Iyer, there is the Act and the two sets of rules governing the inquiries. The Tribunal Rules are less advantageous to an officer. Among two public servants, who are similarly situated, under Rule 4 of the Tribunal Rules it is open to the Government to refer the case of one such officer under the Tribunal Rules which is less advantageous. It will be open to the Government to refer the case of the other officer who is similarly situated, to be proceeded with either under the Act or the Services Rules, which according to the learned Counsel, are more advantageous to an officer. According to the learned Counsel, such a power vested in the authorities has been held by the Supreme Court in its recent Judgment to be arbitrary and violative of the equal protection clause of the Constitution in my view, a close study of the judgment of the Orissa High Court, which was affirmed by the Supreme Court will ultimately show that their lordships do not intend in any way, to modify the view already expressed in the earlier decisions in Khem Chand v. Union of India 1959--I L.L.J. 169 and Kapur Singh v. Union of India : [1960]2SCR569 . The decision in the Orissa High Court was mainly in view of the denial of a right which according to the learned Judges, existed under an earlier Service Rule and it is this aspect that has weighed very much with the learned Judges in striking down the proceedings taken against the particular non-gazetted officer in that and this view was accepted by the Supreme Court in appeal. In that case, it will be seen that there was originally one set of rules, namely, the Classification Rules applicable to both gazetted and non-gazetted Government servants. Under the Classification Rules, both sets of Government servants had a right of appeal against the orders imposing punishment or penalty. Later on, another set of rules were framed, namely, the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951, which were also made applicable to both sets of Government servants. But the later rules gave a right of option to gazetted officers alone to choose as to whether they want to be proceeded with either under the old Classification Rules or the new Disciplinary Rules. No such right of option was given to a non-gazetted officer. Further the Disciplinary Rules barred all rights of appeal. These were the major points of difference in the two sets of rules. Under those circumstances, the Government in that case, referred for inquiry the conduct of non-gazetted office under the 1951 Disciplinary Rules and he was ultimately found guilty.

118. The contention was raised before the High Court on behalf of the non-gazetted officer that his being proceeded with under the more drastic and less advantageous 1951 rules was violative of the provisions of Article 14 of the Constitution. The right that he had under the Classification Rules for filing appeal which was denied under the Disciplinary Rules, was emphasized. The right given to a gazetted officer to choose the. rules under which he would like to be inquired into and the denial of such a right to a non-gazetted officer was also pressed before the High Court. These aspects appealed to the learned Judges who in Dhirendranath v. State of Orissa A.I.R. 1958 Orissa 96 observed at p. 100 as follows:

I must therefore hold that so far as non-gazetted Government servants are concerned the provisions of the Tribunal Rules are less advantageous and more drastic than those of the Classification Rules and the conferment of an unfettered discretion on the executive to apply either of these rules for the purpose of taking disciplinary action against a non-gazetted Government servant would offend Article 14 of the Constitution.

119. Therefore, it will be Been on an examination Of the two rules in question, the learned Judges were of the view that the provisions of the Tribunal Rules were far less advantageous and more drastic so far as a non-gazetted officer was concerned and it is under those circumstances the learned Judges set aside the proceedings started as against the non-gazetted officer.

120. This matter was taken up on appeal before the Supreme Court in Civil Appeal No. 103 of 1959. Justice Sri Shah has delivered the leading judgment of the Court. Their lordships agreed with the view of the High Court that the Tribunal Rules were less advantageous and more drastic than the Service Rules so far as a non-gazetted officer was concerned and in consequence, their lordships also held that the confirment of an unfettered discretion on the executive to apply either set of rules as against such a Government servant would offend Article 14 of the Constitution. Under those circumstance, their lordships observed:

If against two public servants similarly circumstanced, enquiries may be directed according to procedures substantially different at the discretion of the executive authority, exercise whereof is not governed by any principles having any rational relation to the purpose to be achieved by the enquiry, the order selecting a prejudicial procedure, out of the two open for selection, is hit by Article 14 of the Constitution.

121. It should be remembered that Justice Sri Shah reiterated the reasonable opportunity envisaged under the Constitution in the decision reported in Kapur Singh v. Union of India : [1960]2SCR569 already referred to. ' His lordship has held that the Constitution does not guarantee an inquiry directed in exercise of any specific statutory powers or administrative rules and the learned Judges also held that the adoption of one of the two alternative powers cannot be said to be prima facie illegal.

122. Justice Sri Shah has again delivered the leading judgment in the recent decision of the Supreme Court in Civil Appeal No. 103 of 1959.

123. It is not possible for me to accept the contention of the learned Counsel that the learned Judge has, in any way, intended to modify the views already expressed in the earlier decision in Kapur Singh v. Union of India : [1960]2SCR569 . In the case before me, the question of 'selecting a prejudicial procedure' as pointed out by their lordships of the Supreme Court, does not at all arise because I have already pointed out that the procedure under the Tribunal Rules so far as the petitioner is concerned, is not in any way less advantageous and more drastic than either the Services Rules, or the Act. Therefore, the reliance placed by Sri T.N. Subramania Iyer on the judgment of the Orissa High Court as confirmed by the Supreme , Court, does not in any way, advance his contentions.

124. The learned Counsel further contended that there has been no prima facie satisfaction arrived at as required under Rule 5(a) of the Tribunal Rules. It is the contention of Sri T.N. Subramania Iyer that only if there is a prima facie satisfaction arrived at by the authorities mentioned under Rule 5(a) of the Tribunal Rules that jurisdiction is given to the Government to act under Clause (6) of Rule 5 for deciding whether the case is to be tried by the tribunal.

125. In this case, the appointing authority for the officers in the position of the petitionsr is the Government and the power is given to the Government under Rule 4 to refer to the tribunal any case or class of cases which they consider, should be dealt with by the tribunal. Even otherwise, it has been stated in the counter-affidavit that the Government received an anonymous petition regarding certain irregularities connected with the construction of the ceramic factory buildings. It is also stated that the anonymous petition was forwarded by Government to the superintendent of police, X Branch, Trivandrum for a preliminary enquiry and report, and after the consideration of that report and after consulting the Chief Engineer, Government were satisfied that there was a prima facie case for the conduot of the officer being inquired into. The report of the superintendent of police, X Branch, Trivandrum extracted in the counter-affidavit of the State, clearly shows that he is also of the view that departmental action can be taken as against the officers mentioned therein including the petitioner. According to Ex. P. 1, the various allegations referred to therein will show that there is prima facie evidence warranting disciplinary action being taken according to the Government. The quantum of materials available before the Government before they decide to proceed against an officer is not for this Court to investigate. It is a matter of subjective satisfaction of the Government and it cannot be stated that the Government have acted either arbitrarily or capriciously.

126. The learned Counsel raised another contention that there is a factual error committed by the Government in proceeding on the basis that the petitioner had control and supervision of the construction of the factory at Kundara. In this connexion, the counsel relied upon certain statements made by the State in the counter-affidavit. In fairness to the officer, I must state that those are all matters to be considered not by this Court at this stage even when charges have not yet been framed. Those are all aspects to be urged by the petitioner in other appropriate proceedings.

127. The learned Counsel then contended that the placing of the petitioner under suspension by virtue of powers given under Rule 10 of the Services Rules is also arbitrary and discriminatory. The learned Counsel urged that there have been instances of other' officers who have not been placed under suspension by the Government. The learned Counsel has attempted to bring the instance of certain other officers in C.M.P. No. 5305 of 1960. I am not inclined to accept his contention so long as no attack has been made by the petitioner that the order of the Government is mala fide or actuated by vindictiveness as against the petitioner alone. There cannot be any doubt that Rule 10 of the Services Rules gives power to the appropriate authority to place a Government servant under suspension in the circumstances mentioned therein. An order of suspension as such under the same rule was attacked before a Division Bench of this Court consisting of the learned Chief Justice and Justice Sri Madhavan Nair in the decision in Mayuranathan v. State of Kerala and another 1960-II L.L.J. 1287. The learned Chief Justice rejected the contention and held that such an order could not be interfered with when the tribunal has exercised its discretion entrusted to it bona fide not influenced by extraneous or irrelevant consideration, and not arbitrarily or illegally. The same is the case before me. The petitioner has not, in any way, challenged the bona fides of the Government in exercising its powers under Rule l0 of the Services Rules. Therefore, I do not see any merit in this contention of Sri T.N. Subramania Ayyar either.

128. The last contention of Sri T.N. Subramania Ayyar is that the inquiry in this case having started before the publication of the Tribunal Rules, 1960, the inquiry should really be conducted not under the Tribunal Rules, 1960, but only under the rules as they stood originally, namely, the Kerala Civil Services (Classification, Control and Appeal) Rules, 1957.

129. In Para. 13 of the petitioner's affidavit it is stated that the reference of the case to the tribunal is illegal under Para. 2 of Rule 8(13) of the Tribunal Rules, as the inquiry started long before the publication of the rules.

130. Again, in the counter-affidavit filed by the State, it is mentioned in Para. 10 that the petitioner's contention that the reference to the tribunal is illegal in view of Para. 2 of Rule 8(13) of the Tribunal Rules, is not correct.

131. Though both the petitioner and the Government have referred to Para. 2 or Rule 8(13) of the Tribunal Rules, It must be stated that the said paragraph in the Tribunal Rules is really Rule 9 as the Tribunal Rules now stand.

132. By a notification, dated 10 February 1960, G.O. (P) No. 168, Public (Services D) there has been an amendment to Rule 8 of the Tribunal Rules. Sub-rules (1) to (13) of the original rules are to re-numbered as Sub-rules (2) to (14) and a new rule as Sub-rule (1) has been incorporated. That Sub-rule (1) is not material. Clause (2) of the said notification is to the effect:

the last rule beginning with ' Notwithstanding anything contained' and ending with 'as if these rules have not come into force' shall be numbered as ' Rule 9'.

133. Therefore, as Rule 8 stands, there are 14 sub-rules and Para. 2 of old Sub-rule (13) which has now become Sub-rule (14), has been separated and given a new number as Rule 9 as follows:

Notwithstanding anything contained in these rules, any enquiry started before the publication of these rules shall be conducted as if these rules have not come into force.

134. It is this Rule 9 that is referred to by both the petitioner and the Government as Para. 2 of Sub-rule (13) of Rule 8 of the Tribunal Rules. That is not strictly correct. In fact, 'when dealing with the various clauses of Rule 8 of the Tribunal Rules earlier, I have given only the new numbering to the Sub-rules as they ought to bear after the notification, dated 10 February 1960.

135. The question is whether Rule 9 of the Tribunal Rules is in any way a bar to the petitioner's case being referred for enquiry under the Tribunal Rules of 1960. The order of the Government Ex. P. 1 is dated 20 October 1960 and admittedly, the Tribunal Rules have been published much earlier.

136. In this connexion, Sri T.N. Subramania Iyer referred to the statements in the counter-affidavit of the State in Para. 3 to the effect that the anonymous petition received by the Government, was sent to the superin' tendent of police, X Branch, Trivandrum, for preliminary enquiry and report. Therefore Sri T.N. Subramania Iyer contends, when such a preliminary enquiry has started long before the publication of the rules, the petitioner, if at all, would be governed by the provisions of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1957.

137. Sri T.N. Subramania Iyer had to advance this contention in order to show also that under the 1957 Services Rules, a suspension pending enquiry can be only if the charge to be inquired into or the criminal offence as the case may be, is grave and that such suspension is deemed necessary in the public interest. Therefore, Sri T.N. Subramania Iyer also contended that if the petitioner is governed by the 1957 Services Rules, the order of suspension disregarding the provisions of the rules, namely, Rule 12 is also illegal and ultra vires.

138. The acceptance of the contention of Sri T.N. Subramania Iyer in this respect will really depend upon the question as to when the enquiry in this case can be said to have started. I am not able to accept the contention of Sri T.N. Subramania Iyer that the inquiry referred to in Rule 9 of the Tribunal Rules has anything to do with what happened before a case is referred to the tribunal by the Government. It may be that the State calls the investigation made by the superintendent of police as preliminary enquiry. That is only for the purpose of enabling the Government to consider whether further action has to be taken by referring the matter to the tribunal for enquiring into the conduct of a Government servant. The inquiry that is referred to in Rule 9 of the Tribunal Rules, can have relation only and refer only to the inquiry that is conducted by the tribunal. The matter in my opinion, is placed beyond all doubt when some of the provisions in the rules themselves are referred to. Sub-rule (2) of Rule 8 is to the effect that the tribunal should inform the accused Government servant of the date, time and place of 'inquiry'. Again, Sub-rule (3) of Rule 8 is to the effect that at the appointed time and place, or on such other date to which the proceedings may be adjourned, the 'inquiry' shall commence. It further provides that at the 'inquiry ', oral and documentary evidence on behalf of the prosecution is to be adduced and also refers to other matters.

139. Therefore, it is clear that the ' inquiry ' referred to in Rule 9 and which should have started before the publication of the 1960 rules, can have and should have reference only to the inquiry by the tribunal. Again; by a reference to some of the material provisions in the 1957 Services Rules. the position also becomes clear. Rule 17 refers to several places to an inquiry to be held by the disciplinary authority. It refers to giving an opportunity to the accused person to say whether he desires an oral inquiry and Sub-rule (2) provides that if the accused person so desires, an inquiry shall be held. Then it is also provided in Sub-rule (2) that at 'inquiry' evidence is to be adduced. Again; Sub-rule (2) provides that if no Inquiry is held, a personal hearing shall be given to the officer, if the latter has made such a request.

140. Even the 1957 rules clearly show that the inquiry is an inquiry before the appropriate authority who is enquiring into the conduct of a Government servant under the provisions of 1957 Services Rules.

141. Therefore, the fact that an investigation was made by the superintendent of police in this case on the basis of which ultimately the Government decided to refer the case of the petitioner to the tribunal, cannot certainly be considered to be the inquiry as contemplated under Rule 9 of the Tribunal Rules, 1960.

142. In the result all the contentions of the learned Counsel fail and the Original Petition is dismissed with coats of respondent 1, State.


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