AI Structured Summary
Not yet generated for this judgment
Judgment
P.R. Ramachandra Menon, J.—The disciplinary action finalized once by imposing a ''minor penalty'', has now been sought to be altered by subsequent proceedings, imposing a ''major penalty'' by way of Ext. P8, which is under challenge in this writ petition. The petitioner who was working as H.S.A. (Malayalam), came to be suspended from service on 25.05.2009 for having gone abroad during vacation without obtaining prior permission. It was also in respect of a misconduct that she entrusted promotion list to one of her colleagues to be submitted before the Management, instead of presenting the same in person, that too, without any information to the Manager. It is seen that the petitioner was subsequently reinstated in service on 09.06.2009 and disciplinary action was proceeded with. Pursuant to the notice issued by the Manager, the petitioner explained the sequence of events and after considering the facts and figures Ext. P5 order was passed by the 5th respondent on 01.07.2009, whereby a finding on guilt was arrived at, however, taking a lenient view whereby the punishment was confined to a ''censure'' which was ordered to be endorsed in the Service Register, simultaneously ordering to treat the period of suspension as ''eligible leave'' and thus to have it regularized.
Subsequently, it appears that the departmental authorities did not concur with the course and proceedings finalized by the 5th respondent Manager, which led to issuance of Ext. P7 show-cause notice to the petitioner on 04.11.2009 in respect of the very same misconduct and proposing to conduct a statutory formal enquiry for imposing major punishment. Petitioner submitted a detailed reply, however, without considering properly the Manager passed Ext. P8 order on 30.11.2009, whereby a major penalty was imposed barring two increments with cumulative effect, which in turn is under challenge, raising many a ground, particularly that the disciplinary proceedings in respect of the misconduct having been finalized by imposing Ext. P5 punishment, it is no more open to re-open and revive the matter by the 5th respondent issuing Ext. P6 notice and substituting punishment by way of Ext. P8. It is also pointed out that Ext. P8 order was passed without completing the statutory formality and hence per se wrong and illegal.
The 4th respondent has filed a detailed counter affidavit, wherein it has been stated that 5th respondent Manager imposed Ext. P8 punishment without conducting formal enquiry under Rule 75 of Chapter XIV A of KER and hence approval sought for in respect of the proposed punishment was rejected; which in turn was subjected to challenge by filing a revision by the 5th respondent Manager under Rule 92 of Chapter XIV A KER and that the same is pending before the Government. It is because of the said turn of events, that the increments due to be paid to the petitioner could not be released by passing appropriate order. The 4th respondent/DEO has also asserted in paragraph 4 of the said counter affidavit that the course pursued by the Manager is not in conformity with Rule 75 of Chapter XIV A of KER and that the second penalty imposed by the petitioner is illegal, however, adding in the next paragraph that Ext. P5 is not a penalty vide Rule 65 of Chapter XIV A of KER.
The learned counsel appearing for the 5th respondent Manager submits that Ext. P7 show cause notice was issued to the petitioner in view of the stand taken by the departmental authorities, also in view of the show cause notice issued to the Manager. It was taking note of the serious nature of misconduct that the proceedings were pursued further, leading to Exts. P7 and P8 and that the Manager cannot be found fault with.
The fact remains that the 4th respondent DEO himself has come with the counter affidavit stating that the course pursued by the 5th respondent Manager by imposing second punishment by way of Ext. P8 is wrong and not sustainable. After hearing both the sides, this Court finds that the misconduct levelled against the petitioner has attained finality by imposing punishment by way of ''Censure'' as per Ext. P5. The 5th respondent Manager who is the competent authority, being the disciplinary authority, found that imposition of such punishment, taking note of the gravity offence, was sufficient to meet the situation. Having attained finality, it was no more open for the 5th respondent to have it re-opened by way of conducting any further proceedings by way of Ext. P7 or to have issued Ext. P8 order which by itself is in contravention of the relevant provisions of law, for not having complied with the statutory formalities.
In the above circumstances, this Court finds that the petitioner is entitled to succeed. Ext. P8 is set aside and the concerned respondents are directed to consider the claim of the petitioner for periodical increments from 2006 onwards, pass appropriate order and cause disbursement of the due amount at the earliest, at any rate, within three months from the date of receipt of copy of this judgment.
The Writ Petition is allowed to the said extent. No cost.