The Senior Superintendent and Others vs P.K. Raghavan

P. Subramonian Poti, A.C.J.

This appeal is by the Respondents in the original Petition, they being the Senior Superintendent, R.M.S., Ernakulam Division, the Director of Postal Services, and the Senior Superintendent, R.M.S., Trivandrum Division, Trivandrum. The Respondent herein was a Sorter in the Rail Mail Service, Trivandrum Division. Charges were framed against him and disciplinary action was taken under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as the Rules). Rule 16 is to be invoked in a case where minor penalty is proposed those being the penalties specified in Clauses (i) to (iv) of Rule 11 of the Rules. Where a major penalty falling within Clauses (v) to (ix) of Rule 11 is proposed to be imposed, action is to be initiated under Rule 14. The Petitioner having been told of proceedings in which minor penalty would be imposed submitted his representation. He prayed for an oral hearing. Perhaps because of that prayer Rule 16(1)(b) was invoked which required holding of an enquiry in the manner prescribed in Sub-rules (3) to (23) and Rule 14. A minor penalty was imposed that being postponement of the increment. Thereupon the Respondent filed an appeal before the appellate authority. The appellate authority without notice to the Appellant passed an order enhancing the penalty. The minor penalty was altered into a major penalty, namely, one of reduction of salary. This was challenged by the Petitioner. Ext. P-7 is the order passed by the disciplinary authority and Ext. P-10 is the order passed by the appellate authority.

The learned Judge found no case for successful challenge to Ext. P-7 order. But in regard to Ext. P-10 it was held that it was vitiated for the reason that it was passed without holding an enquiry under Rule 14. It was also vitiated for the reason that the Rules of natural justice had been infringed. The consequence was that Ext. P-10 was quashed and Ext. P-7 was restored. That is challenged by the Respondents in the Original Petition.

We are not called upon to consider the validity of Ext. P-7 as there is no challenge before us to the order of the learned Single Judge upholding Ext. P-7. Naturally the question whether Ext. P-10 is liable to be vacated as has been done. The case of the Appellants before us is that even though disciplinary proceedings were initiated proposing to impose a minor penalty by invoking Rule 16(1), by reason of Rule 16(1)(b) it is open to the disciplinary authority to direct holding of an enquiry in the manner laid down in Sub-rule (3) to (23) and that having been done in this case the enquiry must be found to have been one under Rule 14. Consequently it is said that Clause (v) of the proviso to Rule 27(2) would operate to enable passing such orders as the appellate authority deemed fit to pass. Rule 16(1)(b) no doubt requires holding of an enquiry in accordance with Sub-rule (3) to (23) of Rule 14 where a disciplinary authority is of the opinion that this was to be done. The second clause of proviso to Rule 27(2) to which we have adverted is to the effect that if the enhanced penalty which the appellate authority proposes to impose is one of the major penalties specified in Clauses (v) to (ix) of Rule 11 of the Appellate Authority is to hold on enquiry under Rule 14 or direct such enquiry to be made under Rule 14 if an enquiry under that Rule had not already been made in that case. Whether that had been done in this case by reason of invoking Rule 16(1)(b) is the question here.

The learned Counsel for the Petitioner-Respondent contends that the proviso to Rule 27 contemplates a circumstance different from that arising in this case, a circumstance where Rule 14 has been invoked in the first instance pursuant to proceedings for imposing a major penalty but ultimately on a minor penalty has been imposed. In such a case naturally there is no scope for conducting a fresh enquiry under Rule 14. According to him the said clause of the proviso to Rule 27 should not be read so as to apply it to cases where proceedings were not initiated for imposing a major penalty but only for a minor penalty and that was under Rule 16. Advertence be Sub-rules (3) to (23) of Rule 14 was only in exercise of the power under Rule 16(1)(b). No doubt there is much to say in favour of such an argument. But in the circumstances of the case we do not think we should deal with that question and as suggested before us it is better to leave that question open. Even without that we are of the view that Ext. P-10 is vitiated.

When an employee who is evidently aggrieved by the imposition of a minor penalty files an appeal, if the appellate authority seeks to invoke his powers to alter the punishment into a major penalty necessarily the employee has to be heard as to what he has to say on the proposal for major penalty. That is a fundamental requirement of rules of natural justice. It would be thoroughly unfair to such an employee to be told in his appeal that not only he does not succeed in his appeal but he is visited with the serious consequence of imposition of a major penalty. No doubt the power to enhance penalty is reserved by the rule in the appellate authority. But the exercise of that power must be fair, honest and equitable. The procedure adopted by the authority should not offend principles of natural justice. In fact the second clause to proviso to Rule 27(2) did provide for such an opportunity as it stood at the time Ext. P-7 was passed. But it was amended sometime prior to the passing of Ext. P-10 order. Perhaps that was by reason of the 42nd Amendment of the Constitution taking away the right of second opportunity under Article 311 of the Constitution. We are not really concerned with such an opportunity here. We are not speaking of constitutional guarantee of opportunity. Every rule has to be read as a reasonable and fair rule if such reading will not be opposed to the plain language of the rule. So long as there is no indication that without hearing the party aggrieved the punishment can be changed from a minor to a major notice should read as a requirement of a natural justice inbuilt in the rule. The need for such a construction is more than illustrated by the situation with which we are faced in this case.

It will be certainly unfair for us to hold that an Appellant who evidently feels that he may get some relief by resorting to the appellate authority could be told that he not only gets no relief but he is visited with major penalty. He may have his answer if the proposal was put to him and it is grossly unjust to deny him such an opportunity. We must remember that in the situation in which the Appellant was placed if no notice of the proposal to enhance the penalty was issued to him, there would be no occasion for him to explain his stand in regard to the major penalty, and to tell the appellate authority his own case again on the proposal for a major penalty. We are constrained to agree with the reasoning of the learned Single Judge that in the absence of notice proposing enhancement and consequently giving an opportunity to present his case in reply to order Ext. P-10 must in any case be found to be bad. We agree with the learned Judge that Ext. P-10 is to be vacated. Once it is vacated Ext. P-7 is restored. The appeal is dismissed. No. costs.