ABDUL KHADER Vs. DIRECTOR CIVIL SUPPLIES DEPARTMENT

JUDGEMENT

(1.) THE petitioner challenges Exts. P9 and P 11 orders by which punishment of compulsory retirement was imposed on him being found guilty of charges in a departmental enquiry.

(2.) THE petitioner was alleged to have committed grave misconduct while working as U. D. Clerk/rationing Inspector in the Taluk Supply Office, Vythiri during the years 1983-1986. A departmental proceeding was initiated under R. 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 by the Board of Revenue by their letter dated 9. 6. 1989. After observing all the formalities of law, the Enquiry Officer submitted his report with the finding that the petitioner was guilty of grave misconduct. THE Board of Revenue which was the disciplinary authority of the petitioner imposed the penalty of compulsory retirement by Ext. P9 order dated 24. 8. 1990. On appeal preferred by the petitioner the State Government by Ext. P11 order dated 9. 4. 1991 confirmed the order passed by the Board of Revenue by holding that the petitioner was guilty of grave misconduct and the imposition of penalty of compulsory retirement was just and proper.

(3.) ADMITTEDLY neither the Board of Revenue nor the Government consulted the Public Service Commission before passing the impugned orders. The question for consideration is whether the disciplinary proceedings against the petitioner is vitiated due to non-consultation with the Public Service Commission in accordance with Circular No. 145341/sd2/84/gad dated 7. 1. 1985 (Ext. R1 (a) ). The imposition of punishment of compulsory retirement is one of the major penalties prescribed under R. 11 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (for short, CCA Rules ). R. 15 A of the said rules prescribes the procedure for imposing major penalties. Clause (ii) of sub-r. (1-2) of R. 15 lays down that in every case in which it is necessary to consult the Commission the record of the inquiry together with a copy of the notice given under Clause (i) and the representation made in response to such notice, if any, shall be forwarded by the Disciplinary Authority to the Commission for advice. Kerala Public Service Commission (Consultation) Regulations, 1957 have been framed under Art. 320 (3) of the Constitution of India. Part II thereof deals with matters in respect of which it shall not be necessary for the Commission to be consulted. Regulation. 6 (1) thereunder lays down as follows: " It shall not be necessary for the Commission to be consulted on any disciplinary matter affecting a person serving in connection with the affairs of the State, except - (a) where the Government proposes to pass an original order imposing any of the following punishments namely:- (i) reduction to a lower rank in the seniority list or to a lower post or time-scale, or to a lower stage in a time-scale; (ii) recovery from pay of the whole or part of any pecuniary loss caused to the Government or to the Central Government or to a local authority by negligence or breach of orders; (iii) compulsory retirement. Explanations: The retirement under the Service Regulations for the time being in force of an officer on the completion of the age of superannuation or otherwise in accordance with the provisions of the Service Regulations for the time being in force shall not be deemed to be compulsory retirement within the meaning of this sub-clause; (iv) removal from the civil service of the Government; or (v) dismissal from the civil service of the Government; Provided that it shall not be necessary to consult the Commission in cases where orders are passed under proviso (c) to clause (2) of Art. 311 of the Constitution of India. (b) where the Government propose to pass an order in appeal or revision or review imposing any of the penalties referred to in sub-clause (a); or (c) where in an appeal or revision from (or review of) an order which has imposed any of the penalties referred to in sub-clause (a) Government propose to pass any order". Thus consultation as contemplated in clause (ii) of sub-r. (12) of R. 15 of the CCA Rules is necessary only if there is any rule or regulation to do so under the Kerala Public Service Commission (Consultation) Regulations. As has been pointed out above, Regulation. 6 (1) clearly contemplates that only when the Government propose to pass an original order imposing the punishment of compulsory retirement among other punishments that consultation with the Public Service Commission is necessary before the said punishment is imposed. There is no provision in the Public Service Commission (Consultation) Regulations requiring any subordinate authority of the Government to consult the Public Service Commission while imposing a major penalty like compulsory retirement. The Board of Revenue is not a "government". On the other hand, it is subordinate authority of the Government. Thus, the instructions contained in Ext. R1 (a) does not militate against Regulation No. 6 of the aforesaid Regulations. The order under challenge being not an original order of the Government it was not necessary for the Board of Revenue to consult the Public Service Commission. Ext. P 11 is the appellate order. Clause (b) of Regulation No. 6 (1) refers to an order which the Government proposes to pass in appeal or revision or review imposing one of the penalties like compulsory retirement. But, if the Government confirms an order passed by the subordinate authority or the Government do not propose to pass any original order of penalty, either in supersession or in modification of the penalty imposed by the subordinate authority, then also it is not necessary for the Government to consult the Public Service Commission. In the present case, there is no original order of the Government proposing to impose the penalty of compulsory retirement.