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P.J. Alexander Vs. State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1971)IILLJ261Ker
AppellantP.J. Alexander
RespondentState of Kerala and anr.
Excerpt:
.....the facts, circumstances and law may permit. 7. can the absence of provisions in the all india services (discipline and appeal) rules enabling the inquiring authority to take coercive steps for compelling appearance of witnesses and production of documents be made good by the concerned state government investing it with such powers? that is precisely what has been done here by ext. joseph, the learned government pleader, submitted that under section 9 of the state act the government could by notification invest any officer deputed by it to make inquiry into the conduct of any public servant with the powers of a civil court while trying a suit under the code of civil procedure, that that act was a perfectly valid one, that ext. when there is such clear demarcation of fields for..........authority and the first respondent in this petition, appointed under rule 8(2) of the all india services (discipline and appeal) rules, 1969 first, shri r. gopala shenoy and later shri p.a. quadir meeran, the second respondent, as the inquiring authority. the presenting officer appointed by the first respondent to present on its behalf the case in support of the articles of charge represented before shri. r. gopala shenoy that it would not be possible to secure the attendance of all witnesses unless coercive steps were issued to them. as the all india services rules did not provide for taking coercive steps against unwilling witnesses to secure their attendance before the inquiring authority shri r. gopala shenoy wrote to the secretary in charge of the vigilance department of.....
Judgment:

P. Naryana Pillai, J.

1. For inquiring into the truth of imputations of misconduct or misbehaviour against the petitioner who is a member of the Indian Police Service, borne on the Kerala cadre, the State Government, which is the disciplinary authority and the first respondent in this petition, appointed under Rule 8(2) of the All India Services (Discipline and Appeal) Rules, 1969 first, Shri R. Gopala Shenoy and later Shri P.A. Quadir Meeran, the second respondent, as the inquiring authority. The presenting officer appointed by the first respondent to present on its behalf the case in support of the articles of charge represented before Shri. R. Gopala Shenoy that it would not be possible to secure the attendance of all witnesses unless coercive steps were issued to them. As the All India Services Rules did not provide for taking coercive steps against unwilling witnesses to secure their attendance before the inquiring authority Shri R. Gopala Shenoy wrote to the Secretary in charge of the Vigilance Department of the first respondent to clothe him with sufficient powers to take coercive steps for examination of witnesses and in that regard suggested investing him under Section 9(2) of the Kerala Enquiries and Summons Act, 24 of 1960, as amended by Act 10 of 1962, for short the State Act, with the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908. The first respondent accepted that suggestion and invested him with those powers. Later when he was succeeded by the second respondent as inquiring authority he also was invested with those powers, Ex. P-2 being a copy of the notification investing him with those powers. It is that notification that is sought to be quashed here.

2. The All India Services Rules are those framed under Section 3 of the All India Services Act, LX1 of 1951. That section can now be read:

3. (1) The Central Government may, after consultation, with the Governments of the States concerned, including the State of Jammu and Kashmir, make rules for the regulation of recruitment, and the conditions of service of persons appointed to an All India Service.

(2) All rules made under this section shall be laid for not less than fourteen days before Parliament as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as Parliament may make on a motion made during the session in which they are so laid.

3. Rule 7 of the All India Services (Discipline and Appeal) Rules has constituted the State Government as the disciplinary authority competent to institute the disciplinary proceeding against and, subject to the provisions of Sub-rule (2) of that Rule, to impose the penalties provided for in Rule 6, on a member of the All India Service if on the date of the commission of the act or omission he was borne on the cadre of the State Government. What Sub-rule (2) of Rule 7 says is that the penalty of dismissal, removal or compulsory retirement should not be imposed except by an order of the Central Government. Rule 8(2) gives a choice to the State Government. It can appoint the inquiring authority either under Rule 8 of the All India Services Rules or under the provisions of the Public Servants (Inquiries) Act, 37 of 1850. Under Sections 8 and 9 of the Public Servants (Inquiries) Act the inquiring authority has the same powers as those given to Courts by the Code of Criminal Procedure for summoning witnesses and compelling production of witnesses and disobedience of lawful process of the inquiring authority is made penal. Such provisions are absent in the All India Services Act and the Rules framed thereunder. In the inquiries conducted under them the provision is that evidence has to be produced before the inquiring authority. Rule 8(12) provides that if the member of the service fails to appear or refuses or omits to plead the inquiring authority should require the presenting officer to produce the evidence by which he proposes to prove the articles of charge. Rule 8(15) provides that on the date fixed for the inquiry the oral and documentary evidence by which the articles of charge are proposed to be proved should be produced by or on behalf of the disciplinary authority. Rule 8(16) provides that before close of the case on behalf of the disciplinary authority the inquiring authority may in its discretion, allow the presenting officer to produce additional evidence not included in the original list of documents and witnesses drawn up by the disciplinary authority or may itself call for new evidence or recall or re-examine any witness. After the case of the disciplinary authority is closed and the statement of defence of the member of the service is recorded Rule 8(18) provides that the member of the service should produce his evidence.

4. There are vital differences between the two kinds of inquiries; inquiry conducted under the Public Servants (Inquiries) Act and the inquiry conducted under the All India Services Act and the All India Services Rules. Whereas the inquiring authority under the Public Servants (Inquiries) Act has power to take coercive steps for compelling the attendance of witnesses the inquiring authority under the All India Services Act and the Rules framed thereunder has no such power. The latter has to be satisfied with production of the witnesses by or on behalf of the disciplinary authority and by the member of the service.

5. In all inquiries evidence is mostly adduced by examination of witnesses and production of documents. That can be done either by the parties producing the witnesses and documents or by the inquiring authority, if power is vested in it for that purpose, taking steps like issue of summons and warrant, for the appearance of witnesses and production of documents. If power is not vested in it to take steps for the appearance of witnesses and production of documents parties to the inquiry have to rest satisfied with witnesses and documents they can manage to produce.

6. The All India Services (Discipline and Appeal) Rules, instead of empowering the inquiring authority to take steps for the appearance of witnesses and production of documents, specifically provide for the witnesses and documents being produced by the disciplinary authority and the member of the service Under Rule 8(13) the inquiring authority is empowered on receipt of notice from the member of service for discovery or production of documents to send requisition to the authority in whose possession they are kept for production of the same. But that has application only to the documents referred to in the previous sub-rule, namely Rule 8(12)(iii) and they are documents in the possession of Government. If a letter of request is sent by the inquiring authority and the authority in custody of the document does not produce it the inquiring authority has to be satisfied with drawing adverse inference from the non-production of the same as it has no power to compel its production. Just like authorisation given to the inquiring authority to send letters of request for production of documents it is also empowered by Rule 8 to recall or reexamine a witness. But that power can be effectively exercised only if the disciplinary authority or the civil servant who had originally produced him produces him again for re-examination. If the inquiring authority orders recall and re-examination of a witness and he is not made available by the person who had originally produced him as the inquiring authority is not empowered to compel his attendance the inquiring authority cannot take coercive steps to compel his attendance but has to be satisfied with drawing whatever adverse inferences the facts, circumstances and law may permit. That is because the All India Services Act and the All India Services Rules are exhaustive regarding the provisions relating to inquiries conducted under them and there is no provision in them enabling the inquiring authority to take coercive steps for the appearance of witnesses and production of documents.

7. Can the absence of provisions in the All India Services (Discipline and Appeal) Rules enabling the inquiring authority to take coercive steps for compelling appearance of witnesses and production of documents be made good by the concerned State Government investing it with such powers? That is precisely what has been done here by Ext. P-2 notification. Mr. M. I. Joseph, the learned Government Pleader, submitted that under Section 9 of the State Act the Government could by notification invest any officer deputed by it to make inquiry into the conduct of any public servant with the powers of a Civil Court while trying a suit under the Code of Civil Procedure, that that Act was a perfectly valid one, that Ext. P-2 notification was one issued in exercise of that provision and that therefore Ext. P-2 had to be taken to be valid. That argument cannot be accepted for reasons to be stated presently. Under Ext. P-2 power is invested with the second respondent for the purpose of the inquiry into the charges against an officer of the All India Service. All India Services and inquiries connected with members of the same come in entries 70 and 94 in the Union List, List No. 1 in the VII Schedule in the Constitution. The All India Services Act and the Rules made thereunder are legislations made by Parliament under those entries. Under Article 246(1) of the Constitution Parliament has exclusive power to legislate about subjects covered by entries in List 1. As the State is incompetent to legislate on those subjects Ext. P-2 is invalid.

8. Mr. M.I. Joseph then argued that by investing the inquiring authority with the powers of a Civil Court by Ext. P-2 the State Government is only aiding or assisting the working of the All India Services Act and the Rules framed under that Act, that Ext. P-2 was therefore complimentary to and not repugnant to that Act and the Rules and that on that ground also Ext. P-2 was valid. I am unable to accept that argument also. The entries in the three Lists in the Seventh Schedule are legislative heads or fields of legislation. They demarcate the area over which the appropriate Legislature can operate. When there is such clear demarcation of fields for operation for the Central and State Legislatures even if the State acts with the best of intentions and the effect of the act is only to aid the working of the Acts and Rules framed by the Centre the nature, character and effect of it is such that it is a clear trespass on the subjects reserved exclusively for the Centre. So far as the inquiry against the petitioner is concerned the effect of Ext. P-2 is to make certain additions to the provisions of the All India Services Rules. That is clearly an invasion by the State into a subject exclusively allotted for the Centre. The All India Services Act and the Rules framed thereunder fully provide for and are exhaustive regarding inquiries conducted under them, The State is incompetent to add provisions to them and that is what it has done by Ext. P-2.

9. It was next contended that the petitioner had waived objections, if any, to the validity of Ext. P-2 as he had not raised this objection at any prior stage. This contention is not raised in the counter-affidavit. Even before the second respondent was appointed as the inquiring authority the petitioner had filed in the inquiry an application in which he had stated that it would be illegal for the inquiring authority to exercise the powers under the State Act. It was disposed of by the second respondent after he assumed charge. He left the objection open reserving the right of the petitioner to challenge the validity of the notification here. Further this is an objection going to the root of the matter. The contention regarding waiver has also no merit.

10. In the result Ext. P-2 notification is quashed. The petitioner is allowed to recover the costs incurred by him in this proceeding from the first respondent.


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