K.M. Mohammed vs State of Kerala and Another

Varghese Kalliath, J.—Petitioner before us was a Divisional Forest Officer. He retired on superannuation on 31st May 1988. Ext. P-l charge memo was served on the Petitioner on 30th July 1987. The charge memo was served on the Petitioner on the ground of irregularities noticed in the departmental checking of wind fallen and dead trees. The case against the Petitioner from the charge is that the Petitioner "deliberately organised charging hand dragging in the timber working keeping thereby departmental elephant power under utilised causing heavy loss of Rs. 1,73,000 to the Department with mala fide intentions".

Petitioner submitted his written statement of defence on 29th August 1987. The explanation was found to be not satisfactory. Government, accepting the recommendation of the Chief Conservator of Forests, ordered to conduct an enquiry under Rule 15(2) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (hereinafter referred to as ''the Rules''). Then the enquiry did not proceed further and the Petitioner was allowed to retire on 31st May 1988. Ext. P-2 was issued framing charges and stating clearly that an enquiry under Rule 15(2) of the Rules should be conducted against the Petitioner. Further it is stated in Ext. P-2 that the inquiry authority will complete its enquiry within three months and submit report to the Government.

By Ext. P-3, Petitioner submitted that the charges framed against him are unsustainable. He has also submitted that the authority making the enquiry has got a closed mind and there will not be a proper enquiry. From Ext. P-3, it is seen that his main attack was against the inquiry officer and he said that if the Government deems it necessaiy to conduct a formal enquiry, another officer has to be appointed as the inquiry authority. Ext. P-3 representation was turned down by the Government. It is said that there is absolutely no basis for the fear of the Petitioner that the inquiry authority is likely to be biased against him. Again, Petitioner filed a representation before the Minister for Forests. There also he repeated his complaint against the inquiry officer and submitted that he has got a serious apprehension that he will not be getting justice from the inquiry officer. Further he submitted that he has retired from service on superannuation and so urgent orders in the matter may be passed. The representation before the Minister also failed and the Petitioner was served with a notice on 20th July 1990 stating that for enquiry, he has to appear before the inquiry officer on 1st August 1990 in the office of the Conservator of Forests, Trichur. This notice is Ext. P-7. When he received Ext. P-7, he approached this Court with the Original Petition.

When the Original Petition was heard by a learned Single Judge, the learned Single Judge referred the case for the decision of a Division Bench, observing that the Original Petition involves a question of competence of the Government to order disciplinary enquiry under Rule 15 of the Rules. The learned Single Judge thought that the issue is of great importance and so a decision of the Division Bench is required in the matter.

Before investigating the question of law involved in this case, we think it proper to refer to an exhibit on which the Petitioner has relied on very much. Petitioner submits that on the question of merit of the case, a very competent and important officer has given a report in his favour. He has produced that report, marked Ext. P-8. A perusal of the report shows that what the learned Counsel submitted is partially true. In the report, it is stated thus:

In the context, I have to point out that despite repeated instructions salvaging of wind fallen and dead trees from the natural forests departmentally attempted sparingly by the departmental officers due to the practical difficulties involved in executing the extraction works. Only in some places the departmental elephant power is available. This work has been carried out confining the same to accessible portions. It is also true that the prevailing rates for private elephants is quite higher than the permissible departmental rates for the same. For this reason more often than not the only course left open is to resort to hand dragging the departmental officers usually hesitate to do this work through hand dragging due to the possibilities of the nature of complaints involved in this case. On the whole, I am of the view that the departmental officers should not be persecuted on this score, especially in view of the fact that the department could earn a seizable revenue from the timber and firewood which was lying unexploited. Government may kindly take a decision to be taken.

We are not much concerned about the merit of the case and we cannot find whether the Petitioner is guilty or not of the misconduct alleged against him. The serious question we have to consider is whether the enquiry under Rule 15 of the Rules is permissible after the retirement of the delinquent Government servant. We have to decide the question whether the enquiry proceedings initiated under the Rules can be continued or not, since in this case before the retirement of the delinquent Government servant proceedings were initiated under Rule 15 of the Rules. We do not think that this is a question which has not been considered by this Court on similar occasions.

A Division Bench of this Court had occasion to consider this question in the decision reported in 1978 KLT 696 (Somasekhara Menon v. State of Kerala). This decision of the Division Bench was approved by a Full Bench in 1979 KLT 80 (Xavier v. Kerala State Electricity Board). There are two earlier Supreme Court decisions on the point State of Punjab Vs. Khemi Ram, and V.P. Gidroniya Vs. The State of Madhya Pradesh and Another, . These decisions have been referred to in 1978 KLT 696 and almost the identical question was considered in 1978 KLT 696. Of course, in that case the proceedings were initiated after the superannuation of the delinquent officer. While considering that question, the Division Bench observed thus:

Relying on the pronouncements of the Supreme Court laying down that disciplinary proceedings for the imposition of any penalty cannot be initiated or even continued against a Government servant after he has ceased to be in Government service by reason of his having been permitted to retire therefrom, Counsel for the Petitioner argued that the action taken by the Government as per Exts. P-l, P-3 and P-5 is wholly without jurisdiction.

The abovesaid contention was answered by the Division Bench thus:

It has to be remembered that what was ordered under Ext. P-3 was the conduct of a formal disciplinary enquiry against the Petitioner under Rule 15 of the Rules for the imposition of a major penalty on the basis of the charges referred to therein. The continuance of such an enquiry under Rule 15 against a retired officer is certainly not warranted in law. (see State of Punjab Vs. Khemi Ram, and V.P. Gidroniya Vs. The State of Madhya Pradesh and Another, ).

Holding so, the enquiry proceedings were quashed by the Division Bench.

A Full Bench of this Court in 1979 KLT 80 also considered this question, though the question was with reference to the State Electricity Board (Employees'' Disciplinary Proceedings Tribunal) Regulations 1969 (Kerala), Rule 6(b) and (c). The Full Bench also considered Rule 3, Part III of Service Rules (Kerala). The Full Bench approved the decision reported in 1978 KLT 696 . In State of Punjab Vs. Khemi Ram, and also in V.P. Gidroniya Vs. The State of Madhya Pradesh and Another, the Supreme Court had occasion to state the principle that if a disciplinary action is to be taken against a delinquent officer, it must be taken before he retires from service and that the proper course to follow is to suspend the employee before his retirement and refuse to permit him to retire so as to complete the disciplinary proceedings. In State of Punjab Vs. Khemi Ram, the Supreme Court observed: "There can be no doubt that if disciplinary action is sought to be taken against a Government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein". Again, the Supreme Court had occasion to consider this question in the decision reported in AIR 1978 S.C. 1109 (B.J. Shelat v. Slate of Gujarat and Ors.) wherein the Supreme Court held that the appointing authority has no jurisdiction to take disciplinary proceedings against a Government servant (a Magistrate in this case) who had effectively retired. The question as to whether the disciplinary authority had sufficient grounds for dismissing him does not arise in such a case. In that case, the Supreme Court had referred to State of Punjab Vs. Khemi Ram, In view of the fact that the Supreme Court and the Full Bench of this Court have made the point of law very clear, we do not want to make an independent consideration the question and we feel that it is beyond our power in so far as the principles of law has been plainly stated by the apex court of law.

In this view, we have to quash the disciplinary proceedings taken against the Petitioner in Ext. P-2 and P-7 and we prohibit the authorities to proceed with the enquiry under Rule 15 of the Rules. But before parting with the case, we must make it clear that though we have now prohibited the authorities to continue the disciplinary proceedings initiated against the delinquent officer under Rule 15 of the Rules, we feel that it is our obligation to make it clear that nothing contained in this judgment will operate to preclude the Respondents from taxing any action against the Petitioner, under Rule 3 of Part III of the Kerala Service Rules, if such a course is considered necessary.

Counsel for the Petitioner submitted that this Court must make an observation that the Government must consider before deciding to initiate proceedings under Rule 3 of Part III of the Kerala Service Rules, the Government should take note of the distance of time of the alleged commission of the misconduct and also the report given by the principal Chief Conservator of Forests, Trivandrum, which is marked as Ext. P-8. We are certain that the Government will take a decision only in accordance with law, considering all the aspects of the matter involved in the case.

Original Petition is disposed of as above.