M V ITTICHERIA Vs. STATE

JUDGEMENT

(1.) THIS is a petition under Art. 226 of the Constitution filed by Mr. M. V. Itticheria, Assistant Engineer in the service of the 1st respondent State of Kerala, questioning the validity of certain disciplinary proceedings initiated against him.

(2.) THERE were certain irregularities alleged against the petitioner in connection with the construction of a particular road in trivandrum East Sub-Division within his jurisdiction. Accordingly on 2-7-1957 government placed him under suspension and on 21-11-1957 ordered a formal and public enquiry into the truth of the imputations under the Public Servants enquiry Act, XI of 1122. S. 2 of that Act contemplated only inquiries into imputations of misconduct as distinguished from irregularities. So on a writ motion by Petitioner in O. P. 24 of 1958, the High Court by order dated 19-3-1958 quashed the inquiry. The order of suspension was on 25-6-1958 later quashed by the High court in fresh writ motion by the petitioner in O. P. 185 of 1958. Government since then passed order dated 15-7-1958 directing an enquiry into the irregularities under the provisions of the Kerala Civil Services (Classification, Control and Appeal) R. 1957 and also placed petitioner under suspension with effect from that date pending the enquiry. Copy of this order is filed as Ext. P-1. R. 17 (3) (iv) of the Rules 'provides for the enquiry to be held by a Special Officer or Tribunal appointed by the Government for the purpose. So by notification of the same day 15-7-1958, Government appointed the 2nd respondent Mr. P. D. Nandana Menon, Enquiry Commissioner and Special Judge, trivandrum, to be the Tribunal for the purpose of holding the inquiry. This notification is filed as Ext. P-2. On 23-7-1958, the 2nd respondent, apparently acting under Para. 1 of R. 17 (2), communicated to the Petitioner certain charges along with a statement of the allegations on which each charge was based and asked him to show cause why disciplinary action as contemplated by the Rules should not be taken against him, granting him time till 26-7-1958 to file written statement of his defence and to state whether he desired to have an oral inquiry or only to be heard in person. Petitioner appeared before the 2nd respondent as directed on 26-7-1958 and took objection to his holding of the inquiry in the matter as proposed. The objection was rejected on 5-8-1958 but on 31-7-1958 before yet the rejection was ordered, Petitioner has come with the o. P. herein praying for issue of a writ of certiorari or other appropriate writ or order to quash the proceedings ordering the inquiry as well as suspending the Petitioner and all proceedings pursuant thereto.

(3.) TAKING up the first ground as to the proper construction of Para. 1 of R. 17 (2), that paragraph reads as follows: "in every case where it is proposed to impose on the member of a service any of the penalties specified in items (iv), (vii), (viii)and (ix) of R. 9, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances, which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires an oral inquiry or only to be heard in person. If he so desires or if the authority concerned so directs an inquiry shall be held. " It appears clear from the extract above that the decision to hold the enquiry depends upon either the desire of the delinquent officer or apart from it, on the direction of the authority concerned. Bat in either case it is to be taken after the service on the officer of the charges against him and the receipt by the authority of his written statement of defence along with his statement as to whether he desires an oral inquiry or only to be heard in person It is only after such decision is taken that the question arises as to who among the authorities mentioned in R. 17 (3) is to hold the inquiry. The inquiring authority has as such, therefore, nothing to do with the service of the charges on the officer or the scrutiny of his option in the matter of the holding of inquiry. It is no doubt true that Government's decision to take action under R. 17 (2) stems from a proposal to impose a heavy punishment. But that means nothing more than the charges against the accused officer apparently tested by a preliminary ex-parte inquiry are such, that if unrebutted, call for such imposition. The charges are still unproved and the suggested punishments are merely hypothetical. It may still happen that the written statement of defence submitted by the officer carries such conviction that Government may not hold the inquiry as they first proposed. They may proceed under R. 17 (1) and impose the lesser forms of penalty or even drop action against the officer altogether. As observed by Manohar Pershad, J. in State of Andhra Pradesh v. S. Kameswara Rao, A. I. R. 1957 And. Pra. 794 at 817: "i do not agree with the contention of the learned counsel for the appellant that the object of filing a written statement is only to find out whether the charges framed were admitted or denied. In my view, this is only one of the objects. Another is to give him an opportunity to state the line of his defence; and yet another, in the words of my learned brother bhimasankaran, J. (in the same case) is to enable the authority concerned to see whether the accused officer could not be exonerated straightway on the basis of his explanation if it was satisfactory, or if there was to be an enquiry, to limit its scope to the defence actually set up". That is to say, the mere fact that there is no specific provision in Para. 1 of R. 17 (2) for a possible modification or withdrawal of the proceedings after the defence statement is received from the accused officer, does not mean that the proceedings once started must necessarily continue into the inquiry stage. 5. Learned Government Pleader Mr. V. P. G. Nambiar, appearing before me for the State, did not seek to sustain the plea raised in the State's counter-affidavit that the Government could effectively delegate and have in fact delegated to the 2nd respondent their functions as the concerned authority under Para. 1 to R. 17 (2) in the matter of the service on the petitioner of the charges against him or of the taking ultimately of the decision to hold an inquiry against him. Indeed the nature of the functions, let alone the wording of the paragraph, does not warrant any such delegation nor does Ext. P-2 disclose any factual delegation either. I should also say that no record as to the practice in Madras which it was alleged, had served as a precedent in the matter for Government, was produced before me. It follows, therefore, that the original of Ext. P-1 notification to the extent it commits the enquiry or initiation of proceedings against the Petitioner under R. 17 (2)to the 2nd respondent is ultra vires and has to be struck down. I do not think, however, that notification to the extent it directs an enquiry against the petitioner under R. 17 (2) stands in need of any interference by this Court. Ext. P-2 notification appointing the 2nd respondent as the Tribunal under r. 17 (3) (iv) is, in any event, premature and may also have to go. I am glad to be able to arrive at this conclusion, for it has the merit of giving some assurance to the officer concerned that the competent authority maintains an open mind with regard to him.