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Veervunni Mooppan Vs. State - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 620 of 1958
Judge
Reported inAIR1960Ker294
ActsConstitution of India - Article 311
AppellantVeervunni Mooppan
RespondentState
Appellant Advocate T.K. Narayana Pillai and; D.Narayanan Potti, Advs.
Respondent Advocate C.M. Kuruvilla, Govt. Pleader
Cases ReferredPadmanabha Pillai v. State of Kerala
Excerpt:
.....- in case enquiry vitiated or not held in consonance with principles of natural justice a fresh enquiry may be asked for by civil servant - on account of patent error or defect of different kind if enquiry is bad or vitiated it is open to punishing authority to set aside enquiry and to move for fresh enquiry - government has jurisdiction to order a re-enquiry or fresh enquiry. - - 3. two contentions alone were pressed on behalf of the petitioner, firstly, that the second enquiry was vitiated by a failure to comply with the rules of natural justice, witnesses having been examined without notice to and in the absence of the petitioner, and secondly, that a second enquiry into the same subject-matter is not contemplated by law and is therefore void and without jurisdiction. in..........not on others including the charge of bribery. on considering ext. p10, the government ordered a fresh enquiry into the charges, to be held by the second member of the board of revenue, who reported by ext. p16 on 6-7-1955, that the petitioner is guilty also of bribery. it was upon this report, that finally, ext. p-1 came to be passed.3. two contentions alone were pressed on behalf of the petitioner, firstly, that the second enquiry was vitiated by a failure to comply with the rules of natural justice, witnesses having been examined without notice to and in the absence of the petitioner, and secondly, that a second enquiry into the same subject-matter is not contemplated by law and is therefore void and without jurisdiction. in my view, the petitioner must succeed on the first.....
Judgment:
ORDER

S. Velu Pillai, J.

1. The petitioner, who had been a Range Officer in the former Travancore-Cochin State service, has tiled this petition under Article 226 of the Constitution, to set aside the order Ext. P1, passed by the respondent, the State of Kerala, on 4-7-1958, reducing him in rank and barring his promotion for a period of two years, He had been ordered to be punished on the same allegations against him by an earlier order Ext. P2, passed by the Government of Travancore-Cochin; but at the hearing of Original Petition 310 of 1956, which had been preferred by him to this court to quash Ext. P2, counsel for the contending parties agreed, that the case against the petitioner might be examined by the Government after consulting the Public Service Commission and that the petitioner might move again under Article 226, should the need arise; the contentions raised were left undecided. Now that the second order also has gone against the petitioner, he has filed this petition.

2. Having received complaints against the petitioner, the Government of Travancore-Cochin ordered on 18-2-1953, that the Chief Conservator of Forests may hold an enquiry against him and report to the Government; he held an enquiry and reported to the Government by Ext. P10 dated 12-11-1953. that the petitioner is guilty on some of the charges, but not on others including the charge of bribery. On considering Ext. P10, the Government ordered a fresh enquiry into the charges, to be held by the Second Member of the Board of Revenue, who reported by Ext. P16 on 6-7-1955, that the petitioner is guilty also of bribery. It was upon this report, that finally, Ext. P-1 came to be passed.

3. Two contentions alone were pressed on behalf of the petitioner, firstly, that the second enquiry was vitiated by a failure to comply with the rules of natural justice, witnesses having been examined without notice to and in the absence of the petitioner, and secondly, that a second enquiry into the same subject-matter is not contemplated by law and is therefore void and without jurisdiction. In my view, the petitioner must succeed on the first contention, but has to fail on the second. On the first, the petitioner's complaint was, that he was not served with notice of that part of the enquiry which was held at Peermade, when about eleven witnesses were examined and he could not be present to cross-examine them, and that he received notice of the enquiry held at Kottayam, only after the date of that enquiry.

There is a controversy as to the truth of the latter part of the complaint, but there is justification for the former part, for, as seen from Ext. P16 itself, notice of the enquiry which was held at Peermade on 25-5-1955, though issued to the petitioner by registered post on 7-5-1955, was returned unserved on 81-5-1955. On this short ground, Ext. P1. has to be quashed and the learned Government Pleader had no further argument upon it. But counsel for both parties pressed me for a decision on the second contention of the petitioner, in order that, the further steps which may be taken, may be clarified.

4. According to the petitioner, these steps could only be based upon Ext. P 10, while according to the respondent the second enquiry held was competent and could be repeated, if it violated the rules of natural justice, or even a fresh enquiry could be ordered. The disciplinary action against the petitioner was initiated by proceedings of the Government of Travancore-Cochin. Ext. P6 dated 18-2-1953. which directed the Chief Conservator of Forests 'to conduct a thorough enquiry into the matter and to draw up proceedings with definite charges specifying dismissal from service, hear in accordance with rules and submit report of enquiry together with records of enquiry and evidence to Government with his recommendations'.

It has therefore to be noted, that the authority, which proposed to punish the petitioner, was Government, and that the only duty of the Chief Conservator of Forests was to enquire and to report. In my judgment, this is a point of such vital significance, as to take this case out of the rule, on which considerable reliance was placed, in Dwarkachand v. State of Rajasthan, AIR 1958 Raj 38, decided by a bench of the Rajasthan High Court, which consisted of Wanchoo, C. J., as he then was and Dave, J. In that case, the Collector, after suspending the civil servant, a clerk in his department, from service, held a departmental enquiry into the allegations of bribery made against mm, came to the conclusion that no case had been made out, reinstated him in service, and also refused sanction for prosecution asked for by the Deputy Superintendent of Police, Anti-Corruption Branch.

But the matter was pursued by the Anti-Corruption Branch and as remarked in the judgment 'the Collector was asked for various reasons into which, we need not go, to reopen the matter and hold a fresh departmental enquiry'. The clerk then moved the High Court for the issue of a writ of prohibition. The learned Chief Justice prefaced the discussion by the following observations in paragraph 4 of his judgment, to limit, as I understand, the operation of the rule against the competency of a second departmental, enquiry:

'Before we consider the point raised, we should like to make it clear that there is no dispute that the Collector who held the first departmental enquiry had complete authority to do so. The full power to appoint and dismiss public servants of the class to which the applicant belongs has been delegated to all Collectors by the rules. It is in this background that the point raised has to be considered.

The rule itself was evolved in these terms, at page 41

of the report :

'.....once a departmental enquiry is over and a public servant has been exonerated, no second departmental enquiry on the same facts can be ordered unless there is a specific provision for reviewing an order of exoneration of this kind in the Service Rules or any law to that effect.'

In the above case, the enquiry was held by the very authority which set in motion the disciplinary proceedings against the public servant and was competent to punish him, and that authority, after finding the charge against him to be unsustainable, took final action by exonerating him and reinstating him in service. The facts here are different. The Chief Conservator of Forests, was only an Inquiry Officer and was not himself the punishing authority, and did not purport to act as such, and the petitioner had not been 'exonerated' and no final action had been taken with respect to him.

It was urged, that the charge of bribery having been found against, the petitioner had been 'exonerated'' to that extent, and the rule relied on is therefore attracted; I do not understand this to be the import of the word 'exonerated' which, in my view means and implies, the exculpation of the civil servant of all the charges against him, by the authority which, is competent to take final action as to the punishment or otherwise of the civil servant, resulting in the restoration to him of the terms and conditions of his service if he had been deprived of them, pending the proceedings against him, and corresponds more or less to an acquittal under the Criminal Procedure Code.

The rule, as I understand, is that where the punishing authority has decided to 'exonerate' the civil servant, using the word in the above sense, and its decision is not amenable to review by it, or open to appeal to a superior authority, the finality attaching to the decision of the former, cannot be taken away or destroyed by the latter by making a direction for a reinquiry or a fresh inquiry. It seems to me, that the rule is founded on the principle of competency and finality, of competency on the part of the authority to punish the civil servant for that of which he is guilty or to absolve him of blame, and of finality, which is an attribute of its decision; when both these cannot be posited, in my judgment the rule cannot apply.

No doubt, as contended, a part of the reasoning of the learned Chief Justice in the case cited could be relied on for the petitioner; but that reason, must be 'considered' in the background delineated in the judgment and adverted to above. Where the enquiry is held by the punishing authority, there is only one integrated process from the commencement of the disciplinary proceedings till their end. but where it is delegated, as can be, to another and is found to be bad or defective, in my view, it is open to the punishing authority, who has to take action upon it, to supersede it, by a direction for a reinquiry or a fresh enquiry.

After all, the purpose of a departmental enquiry is only to help the punishing authority to come to a conclusion regarding the conduct of the civil servant, and to decide what penalty, if any, should be imposed on him, as pointed out in K. R. Sharma v. Punjab State, AIR 1958 Punj 27. The enquiring officer is not a court, but only an agency created as part of a machinery to provide a reasonable opportunity to the civil servant to show cause against the punishment proposed to be inflicted on him, as held in Joga Rao v. State, (S) AIR 1957 Andh Pra 197; his mission is essentially a fact-finding one, of the collection of materials, and his report is only tentative and is in no way binding on the punishing authority.

It has also been decided, that if the enquiry is found to be vitiated or was not held in consonance with the principles of natural justice, a fresh, enquiry may be asked for by the civil servant, in (S) AIR, 1957 Andh Pra 197 cited earlier, and Kapur Singh v. Union of India, (S) AIR 1956 Punj 58. The Supreme Court observed in Venkataraman v. Union of India, AIR 1954 SC 375 that the enquiry need not be held in accordance with the Public Servants' Inquiries Act, 1950; but that it is open to the Government to adopt any other method of enquiry, if they so choose.

The learned counsel for the petitioner conceded, that if the enquiry officer was not competent under law to hold the enquiry, or that if the enquiry was held in violation of the rules of natural justice, a fresh enquiry may be held, but not on other grounds. I do not think that the grounds mentioned by him are exhaustive; if say, on account of a patent error or defect of a different kind, the enquiry is bad or is vitiated, it must, in my view, be open to the punishing authority which is to take final action upon it to set aside the enquiry, as it must equally be, to the civil servant himself, to move for a fresh enquiry.

The learned counsel for the petitioner also referred me in passing to the decision of T. K. Joseph, T. in Padmanabha Pillai v. State of Kerala, O. P. 334 of 1958 (1960 Ker LT 197) but he did not rely much upon it, for, in that case, the point decided was that the civil servant having been acquitted by the Mayor of the Corporation of the City of Trivandrum, and his decision having become final, there was no power for the Government under the City Municipal Act, Act IV of 1116 to direct the Mayor to hold a fresh enquiry. This decision, I consider has no application and is distinguishable. I therefore come to the conclusion, that the Government have jurisdiction to order a re-enquiry or a fresh enquiry. It was agreed before me by the petitioner's learned counsel and by the learned Government Pleader, that if a further enquiry is to be held, it must be in accordance with me Kerala Civil Services (Classification, Control and Appeal) Rules, 1957 and must also conform to the requirements of the rule of 'reasonable opportunity' in Article 311(2).

5. Ext. P-1 is hereby quashed; no costs.


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