Devaki, M. vs State of Kerala and Another

K.T. Thomas, J.—Petitioner was working as Taluk Panchayat Officer. She was appointed as Returning Officer in the Panchayat Elections held in 1988. Disciplinary proceedings were initiated against her alleging that as a Returning Officer she had committed serious electoral delinquency. As per Ext. P-5 order, 2nd Respondent, the Director of Panchayat ordered withholding of her one year''s increment with cumulative effect. She filed an appeal before the Government challenging Ext. P-5, but the Government dismissed the appeal as per Ext. P-7. The Original Petition is in challenge of Exts. P-5 and P-7 orders.

The main contention of the Petitioner in this Original Petition is that the punishment imposed on her is a major penalty and such a penalty could not have been imposed without conducting a formal enquiry into the allegations.

Ext. P-1 is the memo of charges issued to her, to which she gave Ext. P-2 explanation. As the explanation was not satisfactory, the authority has given Ext. P-3 show cause notice to her asking her to show cause why the increment for one year should not be withheld with cumulative effect. She gave reply to it (Ext. P-4).

Under Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 a formal enquiry is made compulsory before an order is passed imposing any of the penalties specified in items (v) to (ix) of Rule 11(1). The penalty of withholding of increment falls within item (iii) of Rule 11(1). A note added thereunder states thus:

Withholding of increments may either be permanent or temporary for a specified period. But withholding of promotion shall be only temporary for a specified period.

It is clear from the note that the rule-making authority has intended permanent withholding of increment to be made part of item (iii) to Rule 11(1).

Learned Counsel for the Petitioner contended that notwithstanding the said note, the penalty imposed will fall within item (v) to Rule 11(1), which reads thus:

Reduction to a lower rank in the seniority list or to a lower grade or post or time-scale whether in the same service or in an other service, State or Subordinate, or to a lower stage in a time-scale;

In support of the said contentions, learned Counsel invited my attention to the decision in Kulwant Singh Gill Vs. State of Punjab, .

Learned Government Pleader met the said contentions from two different angles. First is that the Petitioner has not raised this contention before the Government when she filed Ext. P-6 appeal. There is no dispute that Petitioner has not taken up this before the Government when Ext. P-6 appeal was filed.

The second line of approch of the Government Pleader is that the Supreme Court decision is not applicable as the Supreme Court decision considered the Rule framed by the Punjab Government [Punjab Civil Services (Punishment and appeal) Rules, 1970]. There is a seeming distinction between the Rules framed by the Punjab Government and the relevant Rules of the Kerala Government. The note added by G.O. (Ms.) 70/P.D. as amended by S.R.O. No. 378/80 is obviously absent in the Punjab Rules. By that note it is made clear that withholding of increments even on a permanent basis would fall within the category described in item No. (iii) of Rule 11(1). The premise on which the Supreme Court decision was rendered was that the need to conduct regular enquiry can be dispensed with if the penalty is a minor one. Rule 5 of the Punjab Rules vivisected the penalties into two segments, one under the heading ''minor penalties'' and the other under ''major penalties''. Under the Kerala Rules, formal enquiry is contemplated only in regard to the penalties prescribed under item (v) onwards. When the penalty imposed on the Petitioner would clearly fall under item (iii) there is no scope for contending that a formal enquiry was sine qua non before the penalty was imposed.

Hence on the merits also, Petitioner has not made out a case for interference under Article 226 of the Constitution of India.

Original Petition is accordingly dismissed.