RANGANATHAN, T.M. Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is now holding the post of Superintendent of police Crime Branch C. I. D., Kozhikode. He challenges Ext P-7 order dated 26th June 1995 issued by the first respondent imposing a penalty of withholding of increment for one year without cumulative effect for the misconduct proved against him. It was stated that the Vigilance Department conducted a preliminary enquiry on the allegation that the petitioner was formerly working as Deputy Superintendent of Police, Palakkad and has amassed wealth disproportionate to his known source of income and that on scrutiny of the enquiry report it has been revealed that the petitioner has not mentioned certain financial transactions and purchases in his annual property statements during the check period from January 1981 to January 1991 The Government thereby examined the matter in detail and found that there is a prima facie case against the petitioner for violation of R.24 of the Kerala Government Servant's Conduct Rules, 1960. Government issued) an order G.O. (Rt.) No. 180/94/Home, dated 31st January 1994 ordering an oral enquiry under R.6 of the K.P.D.I.P. and A. Rules. 1958 against the petitioner under R.8(i), (iii) of the said rules. On receipt of the above mentioned order, the petitioner submitted a representation dated 22nd March 1994 to the first respondent pointing out that he did not wilfully suppressed any financial transactions and purchases made during 1981 to 1991 from the annual property statement. The petitioner also submitted that he has mentioned all the financial transactions and purchases made during the said period to his knowledge. However, he was served with a communication Ext. P-3 dated! 20th April 1994 stating that the petitioner should apprise the position explained in Ext. P-2 before the enquiry officer. The petitioner later submitted various representations before the authorities

(2.) The main contention raised by the counsel for the petitioner is that there is no legal evidence in the instant case to hold that the petitioner is guilty of the second charge. According to the counsel, the finding is perverse and not supported by any materials Counsel for the petitioner contended that Ext. p-7 order apparently imposes a minor penalty of withholding of increments of the petitioner. It works out to a reduction to a lower stage with cumulative effect, not only to affect the petitioner in his upward march of earning higher scale of pay but also to affect his pension and other retirement benefit perpetually According to the counsel the petitioner has been imposed the penalty of withholding of increment for one year as per Ext. P-7 order dated 26th -Time 1995. Ext. P-7 order would take effect from 1st July 1995 and its operation would come to an end only in June 1996. The petitioner would, retire on superannuation on 31st May 1996. Therefore, the increment withheld will not be restored; on the date of his retirement i e. 31st May 1996. According to the counsel, the consequence is that the petitioner's pay got reduced permanently and consequently his pension would also pet reduced from the amount which he would have otherwise earned. According to the counsel it was in effect imposing a major penalty not warranted under the rules Counsel also submitted that the entire enquiry was also vitiated since no copy of the enquiry report was made available to the delinquent officer.

(3.) Learned counsel for the petitioner relied on the decision reported in Kulwant Singh Gill v. State of Punjab 1991 Supp, (1) SCC 504. In the said case the Supreme Court was considered the question as to whether stoppage of two increments with cumulative effect would amount to a major penalty. The Supreme Court held that withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of R.5(iv) of the Rules. But when penalty was imposed withholding two increments i.e., for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the appellant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years' increments would not be counted in his time scale of pay as a measure of penalty. The Supreme Court also held that the impugned order would come within the meaning of R.5(v) of the Rules; it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal. In the instant case Ext. P-1 order is to take effect from 1st July 1995 and its operation would come to an end only in July 1996. It is the admitted fact that the petitioner is to retire on 31st May 1996. Therefore, the increment withheld will not be restored from the date of his retirement i.e. 31st May 1996. With the result his pay will get reduced permanently and his pension will also be reduced from the amount which he would have been otherwise earned. This will amount to major penalty and not warranted under the Rules. The principle adopted by the Supreme Court is applicable to the instant case as well. The enquiry conducted against the petitioner is also vitiated since no copy of the enquiry report was given to the petitioner. As held by the Supreme Court in Union of India v. Mohd. Ramzan Khan AIR 1991 SC 471 that to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. In the instant case the enquiry report was never served on the petitioner. Even before the issuance of Ext. P-1 order imposing the penalty, the petitioner was not given an opportunity of being heard to file objections to the said imposition of penalty. Therefore, I am of the view that the enquiry proceedings initiated against the petitioner is bad in law. Therefore, the same is liable to be set aside. I, therefore, quash Ext. P-7 Government Order I declare that the petitioner is entitled to get all service benefits as if Ext. P-7 order was not in force.