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Anantharaman Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1979)ILLJ438Ker
AppellantAnantharaman
RespondentUnion of India (Uoi)
Cases ReferredK.K. Ramankutty v. State of Kerala
Excerpt:
.....and is violative of rule 10. it is contended that the said rule can be invoked only when disciplinary proceedings against an officer is contemplated or is pending or in the opinion of the authority, the officer has engaged himself in activities prejudicial to the interests of the security of the state or a case against an officer in respect of a criminal offence is under enquiry or trial. thus rule 10 is satisfied. 10. the contention of the petitioner's counsel that the procedure laid down in rule 14 has to be gone through over again has to fail. failure to follow this procedure would render the entire proceedings a nullity. the petitioner does not complain that the procedure laid down for imposing the major penalty was not followed in the earlier proceedings. i hold that the..........14(2) of the rules, the 2nd respondent issued an order on 3-1-1976 by which he directed that an enquiry authority should be appointed to enquire into the charges framed against the petitioner. the enquiry authority submitted his conclusions. the petitioner was asked by the 2nd respondent to show cause against the proivsional conclusions arrived at by the 2nd respondent, agreeing with the enquiry report that the article of charges have been proved against him, and proposing to impose on him the penalty of punishment of removal from service. the petitioner made a representation in september, 1976 to the above notice. the 2nd respondent thereafter passed an order dated 23rd october, 1976 holding that the petitioner had contravened rule 3 of the central civil services (conduct) rules,.....
Judgment:

Khalid, J.

1. The petitioner seeks to quash Ext. P6 order of suspension passed by the 1st respondent in exercise of the powers conferred by Sub-rule (1) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, hereinafter referred to as the Rules, and also Ext. P5 memorandum by which he was asked to show cause against the proposal to impose a penalty of dismissal from service. The first respondent is the Union of India and the 2nd respondent, the Collector of Customs and Central Excise, Cochin. The petitioner entered service as a Lower Division Clerk attached to the Customs House, Madras, on 9-8-1946. On 5-6-1973 he was promoted and appointed as Senior Grade Preventive Officer. From April, 1952 he has been in the Customs House, Cochin. By order dated 24-2-1975, Ext. P1, the Additional Collector of Customs placed the petitioner under suspension with effect from 24-2-1975, in exercise of the powers conferred by Rule 10 of the rules. In October, 1975 an enquiry was ordered by the 2nd respondent against the petitioner under Rule 14 of the Rules. A memo of charges together with statement of articles of charges was given to the petitioner and he was called upon to submit his written statement of defence. The petitioner submitted his explanation. Invoking the provisions of Rule 14(2) of the Rules, the 2nd respondent issued an order on 3-1-1976 by which he directed that an enquiry authority should be appointed to enquire into the charges framed against the petitioner. The enquiry authority submitted his conclusions. The petitioner was asked by the 2nd respondent to show cause against the proivsional conclusions arrived at by the 2nd respondent, agreeing with the enquiry report that the article of charges have been proved against him, and proposing to impose on him the penalty of punishment of removal from service. The petitioner made a representation in September, 1976 to the above notice. The 2nd respondent thereafter passed an order dated 23rd October, 1976 holding that the petitioner had contravened Rule 3 of the Central Civil Services (Conduct) Rules, 1954, and imposed on him the punishment of reduction in rank, to that of Preventive Officer, Grade I, for 6 years from 24-2-1975. It was also directed that the petitioner's pay during the 'period of suspension should be limited to the subsistence allowance drawn. The said order of the 2nd respondent was not challenged and so it became final. The 2nd respondent revoked the order of suspension as per Ext. P2 in October, 1976 under Rule 10(5)(c) of the rules. Pursuant to this order, the petitioner joined duty on the forenoon of 23-10-1976.

2. The first respondent thereafter issued an order Ext. P3 which was served on the petitioner on 7-4-1977 in exercise of the powers under Rule 48 of the Central Civil Services (Pension) Rules, 1972, informing him that having completed 30 years of service qualifying for pension on 9th August, 1976, the petitioner shall retire from service on the forenoon of the day following the date of expiry of three months computed from the date of service of the notice on him. He was further informed that he could make representation, if he wanted, against Ext. P3 within three weeks from the receipt of the letter. The petitioner submitted a representation on 22-4-1977 against Ext. P3 order. Since no orders were passed on the representation made by him, the petitioner approached this Court in O.P. No. 2278 of 1977 for an expeditious disposal of the representation against Ext. P3. This Court directed the Central Board of Excise and Customs to dispose of the petitioner's representation expeditiously and not to retire the petitioner from service till then. Thereafter the petitioner was informed by Ext. P4 that the President of India has decided not to effect his retirement in terms of Ext. P3, However, this was followed by a memo dated 9-12-1977 calling upon the petitioner to submit his representations as required under Rule 29 of the rules against the provisional decision of the President of India to enhance the penalty imposed by the 2nd respondent to that of dismissal from service. This is marked as Ext. P5. A detailed representation was filed against Ext. P5. While the matter was so pending Ext. P6 order was passed by the 1st respondent placing the petitioner under suspension with immediate effect.

3. Exhibit P6 order is attacked on the ground that it is bad in law, without jurisdiction and is violative of Rule 10. It is contended that the said rule can be invoked only when disciplinary proceedings against an officer is contemplated or is pending or in the opinion of the authority, the officer has engaged himself in activities prejudicial to the interests of the security of the State or a case against an officer in respect of a criminal offence is under enquiry or trial. Exhibit P6 does not reveal the existence of any accusation against the petitioner. The only remaining clause under which Rule 10 can be invoked is if disciplinary proceedings are contemplated or are pending. According to the petitioner no disciplinary proceedings are pending against the petitioner. Disciplinary proceedings were originally initiated by issuing Ext. P1 and the same culminated in the order dated 23rd October, 1976. issued by the 2nd respondent imposing the penalty mentioned above. It is further contended that by invoking Rule 29 of the Rules, for imposing an enhanced penalty the disciplinary proceedings which had come to an end, could not be revived. Exhibit P5 memo calls upon the petitioner to show cause why the proposed punishment of dismissal from service should not be imposed upon him. Exhibit P5 according to the petitioner violates the principles of natural justice, has serious adverse civil consequences on him and is passed after inordinate delay. Further it is stated that under the proviso to Rule 29 of the rules, where it is proposed to impose any of the penalties specified in Clause (v) to (ix) of Rule 11 of the appeal rules or enhance the penalty imposed by the order sought to be revived to any of the penalties mentioned above, an enquiry in the manner laid down in Rule 14 after giving a reasonable opportunity of showing cause against the penalty proposed is necessary. Exhibit P5 does not indicate that any such enquiry is proposed to be held. Therefore, Ext. P5 is not in valid exercise of the power conferred under Rule 29 of the Rules.

4. In the counter-affidavit filed by the first respondent, the charges levelled against the petitioner are detailed. It is stated in the counter-affidavit that the petitioner was intercepted by the C.B.I. officers at the Wellingdon Island at about 6 a.m. on 21-2-1975 while he was returning home after duty. Certain foreign made goods illegally obtained from the ships which he had inspected on 20-2-1975/21-2-1975 were found in his possession and, therefore, he was taken to the C.B.I. Office at Ernakulam and the goods were taken into custody. A report was received from the C.B.I, to this effect on 22-2-1975. It was pursuant to this seizure that the petitioner was placed under suspension. It is admitted that the suspension order dated 24-2-1975 was revoked after the final orders were passed in the disciplinary proceedings and also that the petitioner suffered the punishment imposed on him, namely, the reduction in rank for three years from 24-2-1975. However, it is averred that it was in view of the gravity of the charges proved against the petitioner that the President of India tentatively came to the conclusion that the punishment imposed on the petitioner was not commensurate with the gravity of the offences that the notice in question was issued. According to the first respondent, by the issuance of Ext. P5 memo, disciplinary proceedings against the petitioner stood revived. Rule 29 of the rules is wide enough to give jurisdiction to the President of India to call for the records of the enquiry and to review any order made under the rules. It is further contended that when Ext. P6 was passed, disciplinary proceedings should be deemed to be pending. Regarding the attack that the order was in violation of the procedure laid down in the rules, it is stated that power of review under Rule 29 of the Rules is being invoked only in connection with the punishment awarded to the petitioner and, therefore, the procedure in the case of imposing major penalties need not be gone into over again.

5. According to the petitioner's counsel, in view of the fact that the disciplinary proceedings culminated against him with his suffering the penalty imposed on him, the first respondent has no jurisdiction to revive the disciplinary proceedings. In any case, Rule 10 cannot be invoked since there is no disciplinary proceedings contemplated; nor pending. The findings of the disciplinary authority were not appealed against. Therefore, it became final. The petitioner suffered the penalty and hence the matter should be deemed to have been settled once and for all. Under these circumstances, it is contended that neither can the proceedings be revived, nor can fresh life be given to the proceedings by invoking Rule 10.

6. The first submission made by the Central Government Pleader is that the order of suspension is in law a light available to the employer and all that an employee can ask for is the full pay and salary for the period of suspension. In support of this contention, he invited my attention to the two cases reported in B.R. Patel v. State of Maharashtra : (1968)IILLJ700SC and V.P. Gindroniya v. State of M.P. : (1970)IILLJ143SC . I do not think it necessary to refer to these cases as they are not relevant for my purpose.

7. The only question that has to be answered is, whether the order of suspension is valid. I will read Rule 10 for a proper appreciation of the contentions involved:

10 (1). The appointing authority or any authority to which it is subordinate or the disciplinary or any other authority empowered in this behalf by the President by general or special order may place a Government servant under suspension:

(a) where a disciplinary proceeding against him is contemplated or is pending; or

(aa) where in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest or the security of the State; or

(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial '.

I am here concerned with Rule 10(1)(a). The stand taken by the respondents is that a disciplinary proceeding is pending. It was vehemently contended by the petitioner's counsel that neither in Ext. P5 nor in Ext. P6 is there an indication that disciplinary proceedings are either in contemplation or are pending and, therefore, proceedings taken under Rule 10 have to be dropped. The Central Government Pleader took me through the definition of the expression ''disciplinary authority' occurring in Rule 2(g) which reads:

(g) 'Disciplinary authority' means the authority competent under these rules to impose on a Government servant any of the penalties specified in Rule 11.

As per this definition, disciplinary authority is 'any authority who can impose any of the penalties specified in Rule 11'. Rule 11 deals with penalties. There are two classes of penalties: Minor penalties and major penalties. The penalty sought to be imposed as per Ext. P5 is a major penalty. Exhibit P5, therefore, notifies that the President of India proposes to impose a major penalty on the petitioner. The President is an authority who can impose a penalty on the petitioner, and therefore, a disciplinary authority. Proceedings have been initiated by the President and hence it has to be held that disciplinary proceedings are pending. Thus Rule 10 is satisfied. This is how the contention that no disciplinary proceeding is pending before a disciplinary authority, is met.

8. I am inclined to agree with the contention. Exhibit P5 memo marks in law, initiation of proceedings, against the delinquent officer. It cannot be disputed that it is done by a disciplinary authority. The object of the proceedings is to impose enhanced punishment. The petitioner has given a detailed representation to Ext. P5. The proceedings can only be called disciplinary proceedings. They are pending consideration before a disciplinary authority. Therefore, I hold that Ext. P6 is passed, in full compliance with Rule 10(1)(a).

9. Under Rule 29 of the Rules, the President has the power at any time either on his motion or otherwise to call for the records of an enquiry and review any order made under the rules in question and has the power to confirm, reduce or enhance the penalty imposed by the order in question. Rule 29 contains a proviso, which says that no order enhancing any penalty shall be made unless the Government servant concerned has been given a reasonable opportunity of making representation against the penalty proposed and in cases where the penalty proposed is the one specified in Clauses (v) to (ix) of Rule 11, no such penalty shall be imposed except after an enquiry in the manner laid down in Rule 14 and after giving a reasonable opportunity to the Government servant concerned to show cause against the penalty proposed on the evidence adduced during the enquiry, and after consultation with the commission where such consultation is necessary. An argument is built on the interpretation of this rule, that since the proposal in this case is to impose a major penalty mentioned in Clauses (v) to (ix) of the rule, the procedure laid down in Rule 14 should be followed. Rule 14 deals with the procedure for imposing major penalties. The petitioner's contention is that Rule 14 enquiry which was originally conducted cannot cure the defect for Ext. P5 enquiry. The question is whether the same procedure should be followed when a second notice is issued for enhancing the penalty.

10. The contention of the petitioner's counsel that the procedure laid down in Rule 14 has to be gone through over again has to fail. The charges have not changed. They were fully gone into by the authorities concerned on the evidence adduced. Ample opportunity was given to the petitioner to present his case. Nothing more, by way of evidence for a de novo enquiry, was necessary. The offence, its gravity and seriousness were all before the Disciplinary Authority. It was only on the question of punishment that Ext. P5 memo was issued. The petitioner could give his reasons why punishment should not be enhanced. Rule 29, Proviso does not lay down that a de novo enquiry is necessary. All that is stated is that sufficient opportunity should be given to the Government servant, to submit his explanation against the proposed penalty.

11. The petitioner's counsel would contend that the mention of an enquiry in the manner laid down in Rule 14 under the proviso to Rule 29 when a penalty specified in Clauses (v) to (ix) of Rule 11 is sought to be imposed, makes it manifest that the rule intends that a de novo enquiry should be held before punishment is enhanced. A careful reading of this proviso does not lend support to this conclusion. In my view, what the proviso contemplates is cases where the original proposal was to impose a minor penalty and the proposal after review is the imposition of major penalty, because the procedure in the two cases differs. If the original proposal was to impose a minor penalty and the procedure laid down before imposing such a penalty alone was followed by the Disciplinary Authority, it goes without saying that when a second proposal is made after review to impose a major penalty, the procedure laid down under Rule 14 has to be strictly followed and adhered to. Failure to follow this procedure would render the entire proceedings a nullity. The case on hand is not one such. The petitioner does not complain that the procedure laid down for imposing the major penalty was not followed in the earlier proceedings. His case is that the same procedure should be followed after Ext. P5 memo also. I hold that the rules do not contemplate a second procedure on identical lines and, therefore, this ground also has to fail.

12. An identical question was considered by the Delhi High Court in a decision reported in (1974) II S.L.R. 679 (B.L. Kohtti v. Union of India and Ors.). The Delhi High Court held that if a proper enquiry under Rule 14 was conducted by the Disciplinary Authority, a fresh enquiry is not necessary in review proceedings under Rule 29.

13. The third ground urged by the petitioner's counsel is that it is not necessary that the petitioner should be suspended; nor is the accusation against him so serious as to imperil the smooth working of the office if he was not suspended. These are question of fact. It was on the materials available that it was found necessary by the 1st respondent, to suspend the petitioner, which means that the disciplinary authority was satisfied about the need to do so.

14. The learned Counsel for the petitioner invited my attention to a decision of Poti, J. in K.K. Ramankutty v. State of Kerala (1973) LAB. I.C. 496. The learned Judge held in paragraph 28 as follows:.

The order of suspension should not normally depend merely on the gravity of charges but should depend upon a consideration of the question whether it is necessary to keep him away from the post or office that he occupies. The effect of passing an order of suspension is to keep such officer away from his office for the time being and is intended to deprive him of the powers of the office temporarily. Its objective is to remove him from his sphere of influence during the investigation into and trial of the charges against him and this may be necessary to avoid embarrassment to the officer as well as his subordinates and associates in office...

The learned Judge was making a general observation in the portion extracted above. He, however, declined to interfere with the order of suspension. This judgment was confirmed in appeal by a Division Bench of this Court, the judgment in which case is reported in the same volume as K.K. Ramankutty v. State of Kerala (1973) LAB. I.C. 411.

15. These authorities afford little support to the petitioner in this case. Here facts are different. Here we are dealing with an order of suspension on review under Rule 29 of the rules. From the materials available and from the seriousness of the charges, it cannot be said that there was no need to keep the petitioner under suspension. At any rate, the reasons urged are not persuasive enough for interference under Article 226 of the Constitution.

16. Exhibit P6 order, according to me, is validly made and has to be sustained. As regards Ext. P5, it is only a show cause notice. Challenge against Ext. P5 is premature. The petitioner has already filed his representations to Ext. P5. It is for him to satisfy the Disciplinary Authority that he need not be punished again.

17. For the foregoing reasons, the writ petition fails and is dismissed. I make no order as to costs.


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