BALAGOPAL Vs. STATE OF KERALA

JUDGEMENT

(1.) Only question that is raised in this appeal under S.5 of the Kerala High Court Act, 1958 (in short 'the Act') is whether penalty that was imposed on appellant is a minor one as observed by learned Single Judge in O. P. 16398 of 1995 and whether an opportunity of being heard was required to be given even if it is considered that penalty was a minor one.

(2.) Background facts need to be noted in brief. Appellant, while continuing as Building Inspector, faced departmental proceedings initiated by Trivandrum Corporation in proceedings No. 772/B3/86(i) dated 16. 2. 1987. He was placed under suspension for alleged grave dereliction of duty, warranting disciplinary action. Commissioner of Trivandrum Corporation (Secretary of the Corporation) relieved appellant of his duties. Suspension was made on the ground that unauthorised construction carried out by owner of building TC 28/2160 in the heart of Trivandrum City in gross violation of Kerala Building Rules, 1984 could not have been done without active connivance of staff and Corporation officials failed to detect and prevent it in time. Assistant Town Planner was also placed under suspension along with appellant, pending disciplinary action. Order inter alia pointed out that both Assistant Town Planner and appellant were jointly and severally liable for unauthorised construction. Aggrieved by order of suspension, appellant moved this Court in O. P. 15865 of 1993. Order of suspension and relief order were set aside directing respondents in that Original Petition to reinstate appellant as Building Inspector. Direction was given to complete disciplinary proceedings within a stipulated time. Consequently, appellant was reinstated in service without prejudice to disciplinary action which was conducted against him. Subsequently appellant was posted as Building Inspector of Paravoor Municipality. He was served with memorandum of charges dated 14.11.1994 bearing several allegations against him. Appellant asked for time to submit his written statement. Written statement of defence was submitted explaining circumstances under which alleged deficiency had occurred. Disciplinary proceeding was completed and a punishment of barring increments for three years with cumulative effect was awarded. Review petition was filed by appellant before State Government. Same was rejected and it was challenged in O. P. 16398 of 1995.

(3.) Before learned single Judge, reliance was placed on a decision of this Court in Sahadevan v. State of Kerala ( 1997 (2) KLT 150 ) to contend that penalty of stoppage of two increments with cumulative effect is a major penalty under R.11 of Kerala Civil Services (Classification, Control & Appeal) Rules, 1960 (in short, 'Rules'). Reliance was also placed on a decision of Apex Court in Union of India v. Mohammed Ramzan Khan ( AIR 1991 SC 471 ). Learned Single Judge observed that a different view had been taken in M. Devaki v. State ( 1994 (2) KLJ 808 ) wherein it was held that imposition of penalty of withholding of increments with cumulative effect did not fail within the category of major penalty. Learned Judge observed that in view of apparent conflict of views, reference to a Division Bench may have been appropriate. But in State of Kerala v. Ranganathan ( 1997 (2) KLT 121 ), a Division Bench, while considering a similar provision contained in Police Departmental Inquiries, Punishment and Appeal Rules observed that it was not necessary to conduct a full fledged enquiry before awarding penalty of barring of increments with or without cumulative effect. Accordingly, appellant's stand was not accepted.