Kerala High Court
The Thuruthipuppuram Service ... vs V.R.Antony on 3 August, 2023
(CR)
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
Thursday, the 3rd day of August 2023 / 12th Sravana, 1945
WA NO. 1308 OF 2022
AGAINST JUDGMENT DATED 25/07/2022 IN WP(C) 8330/2020 OF THIS COURT
APPELLANTS/RESPONDENTS 1 TO 3 IN WP(C):
1. THE THURUTHIPUPPURAM SERVICE CO-OPERATIVE BANK LTD. NO. 1789,
THURUTHIPURAM P.O., ERNAKULAM - 680 667, REPRESENTED BY ITS
SECRETARY.
2. THE BOARD OF DIRECTORS OF THE THURUTHIPPURAM SERVICE CO-OPERATIVE
BANK LTD.NO.1789, THURUTHIPURAM P.O., ERNAKULAM - 680 667,
REPRESENTED BY ITS PRESIDENT.
3. THE CHAIRMAN, DISCIPLINARY COMMITTEE, THURUTHIPPURAM SERVICE CO-
OPERATIVE BANK LTD.NO.1789, THURUTHIPURAM P.O., ERNAKULAM - 680 667.
BY SENIOR ADVOCATE SRI.GEORGE POONTHOTTAM AND
ADV.SMT. NISHA GEORGE
RESPONDENTS/WRIT PETITIONER & RESPONDENTS 4 & 5 IN W.P.(C):
1. V.R.ANTONY ,VADAKKEDATH HOUSE, THURUTHIPURAM P.O., NORTH PARAVOOR,
VELLOTTUMPURAM, ERNAKULAM DISTRICT - 680 667.
2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), NORTH
PARAVOOR, ERNAKULAM DISTRICT - 680 667.
3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ERNAKULAM CIVIL
STATION, B-2 BLOCK, 5TH FLOOR, KAKKANADU, ERNAKULAM DISTRICT - 682
030.
BY ADV.SRI. P.P.JACOB FOR R1
ADDL. ADVOCATE GENERAL SRI.ASOK M.CHERIAN,
GOVERNMENT PLEADER SMT.SABEENA P. ISMAIL,
SENIOR GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY AND
SPECIAL GOVERNMENT PLEADER SRI.P.P.THAJUDEEN FOR R2 & R3
This Writ Appeal again coming on for orders along with connected
cases on 03/08/2023 upon perusing the appeal memorandum and this court's
order dated 08/06/2023, the court on the same day passed the following:
P.T.O.
(CR)
ALEXANDER THOMAS, J.,
C.JAYACHANDRAN, J. & SHOBA ANNAMMA EAPEN, J.
==================
W.A.No. 934 of 2022,
[arising out of (a/o) judgment dated 8.6.2022 in W.P.(C).No.7268/2022]
W.A.No. 975 of 2022,
[a/o judgment dated 8.6.2022 in W.P.(C).No.9927/2022]
W.A.No. 1022 of 2022,
[a/o judgment dated 18.7.2022 in W.P.(C).No.17719/2022]
W.A.No. 1041 of 2022,
[a/o judgment dated 8.6.2022 in W.P.(C).No.5373/2022]
W.A.No. 1047 of 2022,
[a/o judgment dated 27.7.2022 in W.P.(C).No.29403/2021]
W.A.No. 1243 of 2022,
[a/o judgment dated 27.7.2022 in W.P.(C).No.23134/2022]
W.A.No. 757 of 2023,
[a/o judgment dated 3.3.2023 in W.P.(C).No.1440/2023]
W.A.No. 965 of 2022,
[a/o judgment dated 8.6.2022 in W.P.(C).No.3639/2022]
W.A.No. 1043 of 2020,
[a/o judgment dated 14.7.2020 in W.P.(C).No.5627/2016]
W.A.No. 1045 of 2020,
[a/o judgment dated 14.7.2020 in W.P.(C).No.720/2016]
W.A.No. 938 of 2022,
[a/o judgment dated 8.6.2022 in W.P.(C).No.7252/2022]
W.A.No. 1305 of 2022,
[a/o judgment dated 25.7.2022 in W.P.(C).No.5747/2021]
W.A.No. 1308 of 2022,
[a/o judgment dated 25.07.2022 in W.P.(C).No.8330/2020]
&
W.A.No. 1503 of 2022
[a/o judgment dated 16.08.2022 in W.P.(C).No.24370/2022]
==================
Dated this the 3rd day of August, 2023
ORDER
Alexander Thomas, J.
The aforecaptioned cases have been placed before this Full Bench on
the basis of the order dated 12.4.2023 rendered by a Division Bench of this
Court in those cases, whereby it has been held that the view taken by an
earlier Division Bench in Kodanchery Service Co-operative Bank
W.A No.934/2022 & connected cases
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Ltd. v. Joshy Varghese [2020(4) KLT 129 (DB) = 2020 KHC 5394 =
2020 (3) KLJ 474], requires serious re-consideration and hence these cases
have been referred to the Full Bench for an authoritative determination of
the issues mentioned in the said reference order, in exercise of the powers
under Sec. 7 of the Kerala High Court Act. In Kodanchery's case supra
[2020(4) KLT 129 (DB)], rendered on 13.1.2020, the Division Bench has
considered the provisions contained in Rule 198 of the Kerala Co-operative
Societies (KCS) Rules, framed under the Kerala Co-operative Societies
(KCS) Act, in the matter of disciplinary action affecting the employees of
co-operative societies, more particularly sub rules (2A) and (2B) of Rule
198 and it has been held therein, more particularly in para No.5 thereof,
that the said provisions, more particularly Rule (2B) does not empower the
disciplinary sub committee mentioned therein to frame memo of charges
against the delinquent employee and that the said power to frame memo of
charges is exclusively vested with the appointing authority (viz., managing
committee of the co-operative society). The referring Division Bench, in the
afore reference order dated 12.4.2023, after considering the various sub
rules of Rule 198 and case laws has held that Kodanchery's case supra
[2020(4) KLT 129 (DB)] has rightly held that there is a distinction between
the words, "charges" and "charge sheet/ memo of charges" and that the
words appearing in Rule 198 (2B), after the words, "inquire into", are "the
W.A No.934/2022 & connected cases
- : 3 :-
charges" and not "charge sheet/ memo of charges" and that "charges"
means alleged specific acts or omission said to have been committed by an
employee, whereas "charge sheet/ memo of charges" is the memorandum
of charges drawn up which delineates the specific allegations of acts or
omission, which the delinquent will have to defend. Hence, the referring
Division Bench has taken the view that the power conferred on the
disciplinary sub committee, as per Rule 198(2B), is the power to "inquire
into the charges" and that therefore, the said power would also include the
power to take into account the various allegations against the delinquent
and then draw up a specific memorandum of charges/memo of charges/
charge sheet against the delinquent, so that he is apprised, in clear terms,
as to what are the specific allegations which he has to defend in the said
inquiry process. It is on this premise that the referring bench has held that
the decision in Kodanchery's case supra [2020(4) KLT 129 (DB)],
taking the view that the disciplinary sub committee has no power even to
issue memo of charges and that it can only conduct inquiry into the memo
of charges issued by the appointing authority, etc., would require serious
reconsideration. Hence, these matters have been referred to this Full
Bench for determination.
2. The issue to be decided by the Full Bench is essentially a
question of law. For the sake of factual clarity, the facts in one of the cases,
W.A No.934/2022 & connected cases
- : 4 :-
as referred to in para 2 of the reference order, would be pertinent.
3. The basic facts in W.A.No. 934/2022 are that the impugned
order in the said writ proceedings is Ext.P-10 order therein, which was
rendered by the Co-operative Arbitration Court. The said Arbitration
Court, by placing reliance on the decision of the Division Bench in
Kodanchery's case supra [2020(4) KLT 129 (DB)], has held that the
impugned Ext.P-10 therein would stand interdicted, as the memorandum
of charges was issued by the disciplinary sub committee, constituted under
Rule 198(2A) and that, as held in Kodanchery's case supra [2020(4)
KLT 129 (DB)], only the managing committee/appointing authority has the
jurisdictional competence to issue charge sheet. The writ petition,
challenging the verdict of the Arbitration Court, was dismissed. It is in this
back ground that the aforesaid writ appeal has been instituted, which is
one of the cases included in the reference order. The facts in the other cases
need not be dealt with in detail. This is so, as we are of the opinion that, in
the light of the fact scenarios involved in these cases, and in view of the
provisions contained in Sec.7 of the Kerala High Court Act, we intend to
answer the question of law referred for consideration and related issues,
and then return the cases for final adjudication by the Division Bench
concerned.
4. We have heard the learned Advocates concerned appearing for
W.A No.934/2022 & connected cases
- : 5 :-
the various co-operative societies' employers concerned in these cases,
Advocates concerned who appeared for co-operative societies' employees
concerned, Sri.Ashok M.Cherian, learned Addl. Advocate General,
appearing for the respondent State assisted by Sri.P.P.Thajudeen, learned
special Government Pleader (Co-operation) and Sri.Saigi Jacob Palatty,
learned Senior Govt. Pleader.
5. Now, we would proceed to make a brief scan of the relevant
provisions contained in the KCS Act and the KCS Rules, more particularly
Rule 198 and then deal with various case laws on the general issue of
competence of authorities to issue memo of charges to the delinquent
employees and other allied case laws and then would proceed to answer the
reference.
A brief overview of the relevant provisions of the KCS Act
and the KCS Rules.
6. Sec.2(e) of the Act defines "committee" to mean "the
governing body of a co-operative society by whatever name called, to
which the management of the affairs of the society is entrusted." There
are no specific provisions in the KCS Act, which deals with scenario of
disciplinary action affecting the employees of the co-operative society,
except Sec. 80, which generally deals with establishment, consisting of the
officials and employees of the co-operative societies concerned. Sec. 80 (3)
W.A No.934/2022 & connected cases
- : 6 :-
empowers the Government to make rules either prospectively or
retrospectively, regulating the qualification, remuneration, allowances, etc.
and other conditions of service of the officers and servants of the different
classes of societies, etc. Sub section (9) of Sec. 80 stipulates that
suspension and disciplinary action in relation to an officer, employee or
servant of a co-operative society shall be such, as may be prescribed. Sub
section (8) of Sec. 80 stipulates that Government shall, by order, frame
uniform Service Rules and Conduct Rules for the employees of any or all
classes of co-operative societies. The word, "prescribed" has been defined
as per Sec. 2(o) of the Act to mean "prescribed by rules made under the
said Act.". Sec. 109 deals with power to make rules. Clause (xxxviii) of sub
section (2) of Sec. 109 inter alia stipulates that, in particular and without
prejudice to the generality of the power under Sec. 109, the said rules may
provide for, "any other matter required or allowed by the said Act to be
prescribed".
7. Chapter XV of the KCS Rules deals with Establishment. Rules
182 to 201 are included in Chapter XV. Rule 182(2) of the KCS Rules
stipulates that the committee shall be the authority competent to appoint
employees in the co-operative society. In other words, the committee, as
defined in Sec. 2(e) of the KCS Act, as given supra, shall be the competent
appointing authority of all employees in a co-operative society. Rule 198
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thereof deals with disciplinary action. Amendment has been carried to
Rule 198 inserting sub rules (2A) and (2B) and the sole proviso to sub rule
(5) and also introducing sub rules (7) and (8) thereof, as per SRO
No.1005/2010 published in Kerala Gazette dated 2.11.2010. Rule 198, prior
to the said amendment made effective from 2.11.2010, consisted of six sub
rules, viz, sub rules (1) to (6) thereof.
8. Rule 198, as it stood prior to the amendment effective from
2.11.2010 reads as follows:
"Rule 198. Disciplinary action.-- (1) Any member of the establishment of a co-
operative Society may, for good and sufficient reasons, be punished by imposing any of the
following penalties, namely:
(a) Censure;
(b) Fine (in the case of employees in the last grade);
(c) Withholding of increments with or without cumulative effect.
(d) Withholding of promotion;
(e) Recovery from pay of the whole or part of any pecuniary loss caused to the society, by
negligences or breach of orders or otherwise;
(f) Reduction to a lower rank;
(g) Compulsory retirement;
(h) Dismissal from service.
(2) No kind of punishment shall be awarded to an employee unless he has been
informed in writing of the grounds on which it is proposed to take action against and he has
been afforded an opportunity including a personal hearing to defend himself. Every order
awarding punishment shall be communicated to the employee concerned in writing stating the
grounds on which the punishment has been awarded:
(3) The authority competent to impose the various penalties on different
categories of employees shall be as shown in the table below:
Authority competent to impose
Rank of the employee Penalties under (a) to (c) Penalties under (d) to (h)
Secretary/Manager or other President/Chairman Sub-Committee/ Executive
Chief Executive Officer and all Committee
employees holding posts higher
than that of Sr. Clerk/ Sr.
Assistant/ I Grade Assistant/
Equivalent other employees with
same or identical scale of pay
All other employees Secretary/Manager or other
Chief Executive Officer. President
W.A No.934/2022 & connected cases
- : 8 :-
(4) An appeal shall lie against every order imposing a penalty to the competent appellate
authority, shown in the table below:-
Secretary/Manager or other Executive Committee or Board of Management
Chief Executive Officer and all Board of Management
employees holding posts higher
than that of Sr. Clerk/ Sr.
Assistant/ I Grade Assistant/
Equivalent other employees with
same or identical scale of pay
Executive Committee/
All other employees President Board of Management
(5) No appeal shall be entertained if it is not preferred within a period of
three months from the date of the order imposing the penalty.
(6) An authority competent to appoint an employee may suspend him
pending enquiry into serious charges against such employee. No employee shall however be
kept under suspension for a period exceeding six months at a time. In no case an employee
shall be kept under suspension for a continuous period exceeding one year without the prior
approval of the Registrar. An employee under suspension shall be entitled to subsistence
allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972 (27 of
1973).
Provided that an employee not coming under the purview of the Kerala Payment of
Subsistence Allowance Act, 1972 (27 of 1973) shall be entitled to subsistence allowance at
the rate admissible to State Government Employees as prescribed under the Kerala Service
Rules."
9. It appears that in very many cases, the managing committee of
the society as the appointing authority used to not only initiate and
commence disciplinary action, but also finalise the same by imposition of
penalty, including dismissal, compulsory retirement, etc. This was
challenged mainly on the ground that the managing committee is also the
appellate authority, in terms of Rule 198(4) and therefore, if the managing
committee also imposes the penalty in question, then the precious
statutory and vested right to institute appeal to impugn the penalty order
will be completely obliterated, etc. A Division Bench of this Court in the
case President, Pudupariyaram Service Co-operative Society v.
Rukmini Amma & Ors. [1996 (1) KLT 100] (rendered on 14.11.1995)
W.A No.934/2022 & connected cases
- : 9 :-
has held, in para 9 thereof, that as per sub rule (3) of Rule 198, the
authority competent to impose various penalties on different categories of
employees shall be as shown in the table provided therein. That, if the
employee is the Secretary and the penalty proposed is either compulsory
retirement or dismissal from service, the table shows that the authority
competent to impose the penalty is "the sub committee or executive
committee". Sub rule (4) provides an appeal against the decision of the sub
committee to the executive committee/Board of management.
10. In para 10 thereof, it was held that if the first decision is taken
by the Board of management for imposing major penalty, like dismissal or
compulsory retirement from service, the statutory appellate provision,
mandated in terms of Rule 198(4), becomes otiose and if a sub-committee,
as envisaged in sub rule (3), is not formed to take a decision, the resultant
position is negation of the appeal provision prescribed in the Rules. It was
held that a right of appeal is a valuable right and when a statute has
provided such a right, it should not be scuttled or frustrated by not forming
such a sub-committee, as envisaged in sub rule (3). It was, inter alia, held
that the advantages of an appeal provision are that the aggrieved party can
focus on the points missed by the original authority taking the decision and
the delinquent would be in a better position to project different angles and
a reappraisal of materials for reaching different findings can be made by
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the appellate body and normally, the appellate authority has co-extensive
power with the original authority to reach conclusions. Thus, it can be seen
that the Division Bench, in Pudupariyaram's case supra [1996 (1) KLT
100], has categorically held that the managing committee/ Board of
management, etc., though is the appointing authority, cannot adorn the
role of disciplinary authority in the matter of imposing penalties as above
and that the penalties in question should be imposed by the sub
committee/designated authority as per Rule 198(3) and the decision of the
original disciplinary authority could be challenged by the delinquent by
filing appeal under Rule 198(4) before the managing committee/ board of
management, etc.
11. The Division Bench has also, inter alia, held in para 13, etc.
that failure of the co-operative society concerned to constitute a sub
committee, as envisaged in Rule 198(3), to take decisions, as the
disciplinary authority to impose penalties, is contrary to the provisions of
the Rules. There are certain other issues dealt with in Pudupariyaram's
case supra, on which there has been some divergence of opinion and we
need not get into those matters, as they are not relevant and necessary for
our present purposes.
12. We have been apprised by Sri. Asok M.Cherian, learned Addl.
Advocate General appearing for the respondent State and departmental
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authorities, that it is to effectuate and clarify the abovesaid legal position,
declared by the Division Bench of this Court in Puduparyiaram's case
supra [1996 (1) KLT 100], that the rule making authority has made specific
amendments to Rule 198, that is the provisions contained in sub rules (2A)
and (2B) thereof. Rule 198, as it stands after the amendment made
effective from 2.11.2010, reads as follows:
"Rule 198. Disciplinary action.-- (1) Any member of the establishment of a co-
operative Society may, for good and sufficient reasons, be punished by imposing any of the
following penalties, namely:
(a) Censure;
(b) Fine (in the case of employees in the last grade);
(c) Withholding of increments with or without cumulative effect.
(d) Withholding of promotion;
(e) Recovery from pay of the whole or part of any pecuniary loss caused to the society, by negligences or
breach of orders or otherwise;
(f) Reduction to a lower rank;
(g) Compulsory retirement;
(h) Dismissal from service.
(2) No kind of punishment shall be awarded to an employee unless he has been
informed in writing of the grounds on which it is proposed to take action against and he has
been afforded an opportunity including a personal hearing to defend himself. Every order
awarding punishment shall be communicated to the employee concerned in writing stating the
grounds on which the punishment has been awarded:
(2A) The committee of a society shall constitute a disciplinary sub-committee
consisting of not more than three of its members, of whom one shall be designated as
Chairman, but the President of the committee of the society shall not be a member in the
disciplinary sub-committee.
(2B) The disciplinary sub-committee so constituted shall inquire into the charges
against the employee either by themselves or by engaging an external agency.
(3) The authority competent to impose the various penalties on different
categories of employees shall be as shown in the table below:
Authority competent to impose
Rank of the employee Penalties under (a) to (c) Penalties under (d) to (h)
Secretary/Manager or other President/Chairman Sub-Committee/ Executive
Chief Executive Officer and all Committee
employees holding posts higher
than that of Sr. Clerk/ Sr.
Assistant/ I Grade Assistant/
Equivalent other employees with
same or identical scale of pay
All other employees Secretary/Manager or other
Chief Executive Officer. President
W.A No.934/2022 & connected cases
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(4) An appeal shall lie against every order imposing a penalty to the
competent appellate authority, shown in the table below:-
Secretary/Manager or other Executive Committee or Board of Management
Chief Executive Officer and all Board of Management
employees holding posts higher
than that of Sr. Clerk/ Sr.
Assistant/ I Grade Assistant/
Equivalent other employees
with same or identical scale of
pay Executive Committee/
President Board of Management
All other employees
(5) No appeal shall be entertained if it is not preferred within a period of
three months from the date of the order imposing the penalty.
Provided that where the penalties are imposed on employee by an administrator or
an administrative committee, such employees can file appeal before the forthcoming elected
committee and in such cases the restriction of three months shall not be applicable.
(6) An authority competent to appoint an employee may suspend him
pending enquiry into serious charges against such employee. No employee shall however be
kept under suspension for a period exceeding six months at a time. In no case an employee
shall be kept under suspension for a continuous period exceeding one year without the prior
approval of the Registrar. An employee under suspension shall be entitled to subsistence
allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972 (27 of
1973).
Provided that an employee not coming under the purview of the Kerala Payment of
Subsistence Allowance Act, 1972 (27 of 1973) shall be entitled to subsistence allowance at
the rate admissible to State Government Employees as prescribed under the Kerala Service
Rules.
(7) In the event of any pendancy of disciplinary proceedings against any
employee of a co-operative society or any co-operative institution pursuant to any charge of
grave misconduct, irregularity, corruption or other charge involving moral turpitude, no
retirement benefits shall be sanctioned to such employee or retired employee and in case of
sanctioning of any retirement benefits to any such employee or retired employee, the name
and designation of the sanctioning authority together with the reason for such sanctioning
shall be recorded by the sanctioning authority by himself and such authority shall be held
responsible for any loss to the society owing to such sanctioning of retirement benefits if
found that such sanctioning was unwarranted.
(8) In respect of all employees save the Chief Executive Officer of a society, no
retirement benefits shall be sanctioned and disbursed until after the due issuance of a non-
liability certificate by the Chief Executive Officer and approval of the same by the committee
of the society within thirty days from the date of retirement of such employee. In the event
of the retirement of the Chief Executive Officer, the non-liability certificate shall be issued
by the committee of the Society. For any loss to the society due to the non-adherence of the
forgoing procedure, the Chief Executive Officer along with the committee of the society shall
be held responsible collectively and severally in respect of the issuance of Non-liability
Certificate to any employee other than the Chief Executive Officer and the members of the
committee shall be held collectively and severally responsible for the issuance of Non-
liability Certificate to the Chief Executive Officer."
13. It can be seen that, in the light of the legal position settled by
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the Division Bench of this Court in Pudupariyaram's case supra
[1996 (1) KLT 100], the managing committee/ board of management,
which is the appointing authority as envisaged in Rule 198(2), and is also
the appellate authority, in terms of Rule 198(4), as far as delinquents have
to suffer penalties concerned mentioned in Rule 198(3), then going by the
scheme and structure of the KCS Rules, the appointing authority
(managing committee) is prohibited from adorning the role of disciplinary
authority, which is to impose penalties. This is so, as the managing
committee/ appointing authority has to mainly fulfill its obligations, as the
appellate authority, in terms of Rule 198(4) and therefore, the managing
authority/ appointing authority is prohibited from imposing the requisite
penalties. In other words, going by the scheme and structure of the KCS
Rules, the power to impose the penalties concerned are exclusively
conferred on the disciplinary sub committee in the case of employees of
higher level, covered by the first item of the table appended to Rule 198(3)
and the President of the co-operative society is the competent disciplinary
authority to impose requisite major penalties in the case of lower level
employees, as mentioned in the said table. Major penalties are covered by
clauses (d) to (h) of sub rule (1) [Clauses (d) to (h) of Rule 198(1) are
penalties of withholding of promotion, recovery from pay, reduction to a
lower rank and compulsory retirement and dismissal from service]. So
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also, the exclusive authority to impose such penalties as per Clauses (d) to
(h) of Rule 198(1) in the case of other employees mentioned in the table is
the President of the society concerned. So, at the outset, it has to be borne
in mind that the scheme and structure of Rule 198, in the matter of the
competence of the appointing authority to impose penalties, is
substantially different from the scheme envisaged in Art.311 and
Government service rules applicable to Government employees. In Rule
198, applicable to co-operative society employees, the appointing authority
is prohibited from exercising the powers to impose the aforesaid penalties,
as, otherwise, the precious statutory and vested right of the aggrieved
employee, to avail the appellate remedy, would be obliterated. Whereas,
under Art.311 of the Constitution of India, applicable to employees in civil
capacities under the Union or a State, it is mandated, as per clause (1)
thereof, that no such person shall be dismissed or removed by an authority
subordinate to that by which he was appointed.
Various relevant case laws:
(i) Surath Chandra Chakrabarty v. State of W.B.
("Surath Chandra Chakrabarty's case" for short) [(1970) 3 SCC 548]
14. The main plea taken up by the delinquent employee in the
above case is that the memorandum of charges was very vague and no
material particulars and other necessary details, giving proper clarity to the
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memo of charges, were mentioned in the memo of charges / charge sheet
and hence, it was contended that such a charge sheet, issued in the said
disciplinary proceedings, would result in non compliance of the
requirements under the then Rule 55 of the then Civil Services
(Classification, Control and Appeal) Rules.
15. The aforesaid Rule 55, as given in para 5 of the aforesaid
judgment, provided, inter alia, that "without prejudice to the provisions of
the Public Servants Enquiry Act, 1850, no order of dismissal, removal or
reduction shall be passed on a member of service unless he is informed in
writing of the grounds on which it is proposed to take action and has been
afforded an adequate opportunity of defending himself. The grounds on
which it is proposed to take action have to be reduced to the form of a
definite charge or charges which have to be communicated to the person
charged together with a statement of the allegations on which each
charge is based and any other circumstance which it is proposed to be
taken into consideration in passing orders has also to be stated."
Construing this provision, the 3-Judge Bench of the Apex Court in the
afore Surath Chandra Chakrabarty's case supra [(1970) 3 SCC
548], has held, in para 5 thereof, that the afore said rule embodies a
principle, which is one of the basic contents of a reasonable or adequate
W.A No.934/2022 & connected cases
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opportunity for defending oneself and if a delinquent is not told clearly and
definitely, what the allegations are, on which the charges preferred against
him are founded, he cannot possibly, by projecting his own imagination,
discover all the facts and circumstances that may be in the contemplation
of the authorities to be established against him. By analysing the facts
disclosed in the impugned charges therein, the Apex Court held, in para
No.6 thereof, that in that facts of that case, each charge was so bare that it
was not capable of being intelligently understood and was not sufficiently
definite to furnish materials to the appellant to defend himself. That, it is
precisely for this reason, that the aforesaid Rule 55 provides that the
charge should be accompanied by a statement of allegations. The whole
object of furnishing the statement of allegations is to give all the necessary
particulars and details which would satisfy the requirement of giving a
reasonable opportunity to put up defence. At every stage, the appellant had
brought it to the notice of the authorities concerned that he had not been
supplied the statement of allegations and that the charges were extremely
vague and indefinite. That, in spite of all this, no one cared to inform him
of the facts, circumstances and particulars relevant to the charges. So, it
was held that the entire proceedings were in complete disregard of the
aforesaid Rule 55, insofar as it lays down, in almost mandatory terms, that
the charges must be accompanied by a statement of allegations. Hence,
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Their Lordships of the Supreme Court held that they have no manner of
doubt that the appellant therein was denied a proper and reasonable
opportunity of defending himself by reason of the charges being altogether
vague and indefinite and the statement of allegations, containing the
material facts and particulars, not having been supplied to him.
Accordingly, the Apex Court, in para No.8 thereof, allowed the appeal and
set aside the impugned judgment.
(ii) State of M.P. & Ors. v. Shardul Singh ("Shardul Singh's
case" for short) [(1970) 1 SCC 108]
16. Herein, the Apex Court dealt with the correctness of the
impugned judgment therein, rendered by the Madhya Pradesh High Court,
wherein it was held that the power of dismissal and removal, referred to in
Art.311(1) of the Constitution, implies that the authorities mentioned in
that Article must alone initiate and conduct the disciplinary proceeding
culminating in the dismissal or removal of the delinquent officer. The
delinquent therein was an officer of the rank of Sub Inspector of Police.
Therein, the appointing authority of the employee concerned, as Sub
Inspector of Police, was the Inspector General of Police. Regulation 228,
framed under the Central Provinces and Bihar Police Regulations, framed
on the basis of the Government of India Act, 1935, envisages that "in every
case of dismissal, reduction in rank, grade or pay, or withholding of
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increment, etc. for a period in excess of one year, a formal proceeding
must be recorded, by the District Superintendent in the prescribed form,
setting forth: (a) the charge; (b) the evidence on which the charge is
based; (c) the defence of the accused; (d) the statements of his witnesses
(if any) (e) the finding of the District Superintendent, with the reasons on
which it is based; and (f) the District Superintendent's final order or
recommendation, as the case may be." However, Regulation 229
prescribed that, in cases where the District Superintendent is not
empowered to pass a final order, he should forward his proposals for the
dismissal, removal or compulsory retirement of an officer of, and above the
rank of Sub-Inspector, to the proper authority, etc. In that case, though the
Inspector General of Police, was the appointing authority of the delinquent,
the above proceedings were conducted by the Superintendent of Police, in
view of Rule 228 and in terms of Rule 229 and the matter was forwarded
by the Superintendent of Police to the Inspector General who was the
appointing authority. After securing the explanation of the delinquent, the
Inspector General of Police issued the order, dismissing him from service.
The delinquent's appeal to the Government against the order of dismissal
was also rejected. Before the High Court, the dismissal order was
challenged mainly on the ground that the Superintendent was not
competent to initiate or conduct inquiry held against the delinquent, as he
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had been appointed by the Inspector General of Police and that the
disciplinary proceedings, conducted in terms of Regulation 228, was
against the mandate of Art.311 (1).
17. On a reading of para No.5 thereof, the main question that
arose for consideration was whether the power conferred on the
Superintendent of Police, under Regulations 228 & 229 is ultra vires
Art.311(1).
18. Article 311(1) provides that no person, who is a member of
Civil Service of the Union or of an All-India Service or Civil Service of a
State or who holds civil post under the Union or State, shall be dismissed
or removed by an authority subordinate to that by which he was appointed.
It was held therein that Article 311 does not in terms require that the
authority empowered under that provision to dismiss or remove an official,
should itself initiate or conduct the enquiry preceding, the dismissal or
removal of the officer or even that enquiry should be done at its instance.
That the only right guaranteed to a civil servant under that provision is that
he shall not be dismissed or removed by an authority subordinate to that
by which he was appointed. It was contended by the delinquent that the
guarantee under Art.311(1) also includes within itself the guarantee that
the relevant disciplinary inquiry should be initiated and conducted by the
authorities mentioned in the Article. The said plea was accepted by the
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High Court. The Apex Court held, in para No.10 thereof, that, but for the
incorporation of Article 311 in the Constitution, even in respect of matters
provided therein, rules could have been framed under Article 309. It was
held that the provisions in Article 311 confer additional rights on the civil
servants and their Lordships of the Apex Court are unable to agree with
the High Court that the guarantee given under Article 311(1) includes
within itself a further guarantee that the disciplinary proceedings, resulting
in dismissal or removal of a civil servant should also be initiated and
conducted by the authorities mentioned in that Article. Accordingly, the
Apex Court set aside the impugned judgment of the High Court and the
Writ Petition was dismissed. Paras 6 and 10 of the decision in Shardul
Singh's case supra [(1970) 1 SCC 108, p.p.110 & 112] read as follows:
"6. Article 311(1) provides that no person who is a member of Civil
Service of the Union or of an All-India Service or Civil Service of a State or
holds civil post under the Union or State shall be dismissed or removed by
an authority subordinate to that by which he was appointed. This Article
does not in terms require that the authority empowered under that
provision to dismiss or remove an official, should itself initiate or conduct
the enquiry preceding the dismissal or removal of the officer or even that
that enquiry should be done at its instance. The only right guaranteed to a
civil servant under that provision is that he shall not be dismissed or
removed by an authority subordinate to that by which he was appointed.
But it is said on behalf of the respondent that that guarantee includes
within itself the guarantee that the relevant disciplinary inquiry should be
initiated and conducted by the authorities mentioned in the Article. The
High Court has accepted this contention. We have now to see whether the
view taken by the High Court is correct.
xxx xxx xxx
10. But for the incorporation of Article 311 in the Constitution
even in respect of matters provided therein, rules could have been framed
under Article 309. The provisions in Article 311 confer additional rights on
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the civil servants. Hence we are unable to agree with the High Court that
the guarantee given under Article 311(1) includes within itself a further
guarantee that the disciplinary proceedings resulting in dismissal or
removal of a civil servant should also be initiated and conducted by the
authorities mentioned in that Article."
(iii) P.V. Srinivasa Sastry & Ors. v. Comptroller & Auditor
General & Ors. ("P.V. Srinivasa Sastry's case" for short) [(1993) 1
SCC 419]
19. The main plea put up in the above case by the delinquent was
that the disciplinary proceedings as well as the final order of penalty were
vitiated, as the disciplinary proceedings have been initiated in that case by
the Senior Deputy Accountant General instead of the Accountant General,
who was the appointing authority concerned. Hence, it was urged that the
impugned action is violative of Art.311. As can be seen from para 4 thereof,
the main issue decided therein was whether the guarantee in Art.311(1),
that no person coming within its ambit shall be dismissed or removed by
an authority subordinate to that by which he was appointed, would also
include the guarantee that even the disciplinary proceeding should be
initiated only by the appointing authority. It was held therein that Art.
311(1) does not say that even the departmental proceeding must be
initiated only by the appointing authority and that it is open to the Union
Government or the State Government to make any rule, prescribing that
even the proceedings against any delinquent officer shall be initiated by an
officer not subordinate to the appointing authority. Such a rule will amount
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to providing an additional safeguard or protection to the holder of a civil
post. But that, in the absence of any such rule, such a right or guarantee,
that even disciplinary proceedings can be only by the appointing authority,
does not flow from Article 311. Crucially, it has been held therein that
initiation of a departmental proceeding, per se, does not visit the officer
concerned with any evil consequences, and the framers of the Constitution
did not consider it necessary to guarantee even that to holders of civil posts
under the Union of India or under the State Government. It was also held,
in para 4 thereof, that, at the same time, this will not give right to
authorities, having the same rank as that of the officer against whom
proceeding is to be initiated, to take a decision whether any such
proceeding should be initiated and in absence of a rule, any superior
authority, viz., an authority superior to the delinquent, who can be held to
be the controlling authority, can initiate such proceeding. In para No.5,
P.V.Srinivasa Sastry's case supra [(1993) 1 SCC 419], the Apex Court
has referred to the afore cited Shardul Singh's case supra [(1970) 1
SCC 108], wherein it was held that the Apex Court cannot agree with the
finding of the High Court therein that the guarantee given under Article
311(1) includes within itself a further guarantee that the disciplinary
proceedings, resulting in dismissal or removal of a civil servant, should also
be initiated and conducted by the authorities mentioned in that Article. In
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the latter part of para 6 of the decision in P.V.Srinivasa Sastry's case
supra [(1993) 1 SCC 419], the Apex Court has held that Article 311 of the
Constitution does not speak as to who shall initiate the disciplinary
proceedings but that the same be provided and prescribed by the rules. But
if no rules have been framed, saying as to who shall initiate the
departmental proceedings, then, on the basis of Article 311 of the
Constitution, it cannot be urged that it is only the appointing authority and
no officer subordinate to such authority can initiate the departmental
proceeding. It was further observed that it was not brought to the notice of
the Apex Court that any rule prescribes that the Accountant General, who
is the appointing authority, alone could have initiated a departmental
proceeding. It will be pertinent to refer to paras 5 and 6 of P.V.Srinivasa
Sastry's case supra [(1993) 1 SCC 419, pp.422-423], which read as
follows:
"5. In the case of State of M.P. v. Shardul Singh [(1970) 1 SCC
108] the departmental enquiry had been initiated against the Sub-Inspector
of Police by the Superintendent of Police, who sent his enquiry report to the
Inspector-General, who was the appointing authority. The Inspector-
General of Police dismissed the officer concerned from the service of the
State Government. That order was challenged on the ground that the
initiation of the departmental enquiry by the Superintendent of Police was
against the mandate of Article 311(1) of the Constitution. This contention
was accepted by the High Court. But this Court said: (SCC p. 112, para 10)
"... we are unable to agree with the High Court that the guarantee
given under Article 311(1) includes within itself a further guarantee that
the disciplinary proceedings resulting in dismissal or removal of a civil
servant should also be initiated and conducted by the authorities
mentioned in that Article."
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6............
Although Article 311 of the Constitution does not speak as to who
shall initiate the disciplinary proceedings but, as already stated above, that
can be provided and prescribed by the rules. But if no rules have been
framed, saying as to who shall initiate the departmental proceedings, then
on the basis of Article 311 of the Constitution it cannot be urged that it is
only the appointing authority and no officer subordinate to such authority
can initiate the departmental proceeding. In the present case, it was not
brought to our notice that any rule prescribes that the Accountant General,
who is the appointing authority, alone could have initiated a departmental
proceeding."
(iv) Transport Commr., Madras-5 v. A. Radha Krishna
Moorthy, (1995) 1 SCC 332 ["Radha Krishna Moorthy's case" for
short].
20. One of the main pleas raised in this case, as can be seen from a
reading of para 5(2) thereof is that the disciplinary proceedings are liable
for interdiction, as it has been initiated by an authority lower than the
appointing authority of the delinquent employee and that hence, an
incompetent authority has initiated the disciplinary proceedings. In para
No.8 thereof, the Apex Court held that, insofar as the plea as regards the
initiation of enquiry by an officer subordinate to the appointing authority is
concerned, it is well settled that it is unobjectionable and that initiation can
be by an officer subordinate to the appointing authority. Only the
dismissal/removal shall not be by an authority subordinate to the
appointing authority. Accordingly, it was held by the Apex Court that the
same was not a permissible ground for quashing of charges.
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(v) Inspector General of Police & Anr. v. Thavasiappan , (1996)
2 SCC 145 ["Thavasiappan's case" for short]
21. A reading of para 2 of the above case would indicate that the
delinquent employee was an official of the rank of Sub Inspector of Police.
The Deputy Superintendent of Police was competent to award penalty of
compulsory retirement involved in that case. An officer of the rank of
Deputy Superintendent of Police was appointed as the enquiry officer, who
framed the charges and served the same to the delinquent. The Deputy
Superintendent of Police conducted the enquiry and submitted report to
the Deputy Inspector General of Police (DIG), who was competent to
award the penalty of compulsory retirement. DIG of Police agreed with the
findings recorded by the enquiry officer and imposed the penalty of
compulsory retirement. The appeal against the same was also dismissed by
the Inspector General of Police. A reading of para 9 thereof would indicate
that, in the facts of that case, Rules were silent, as to who shall initiate and
conduct a disciplinary proceedings. Though Rule 2-A provided that the
Governor or any other authority empowered by him may institute
disciplinary proceedings, the same was held to be an enabling provision
and it was held that, from the wordings of the Rule, it is not possible to
infer that the rule-making authority intended to take away the power of
otherwise competent authorities, like the appointing authority, disciplinary
W.A No.934/2022 & connected cases
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authority or controlling authority and confine it only to the authorities
mentioned in Rule 2-A thereof. Further that, the Rule was completely
silent as regards the person who should conduct the various proceedings
mentioned in Rule 3(b)(i), except that the report of the enquiry has to be
prepared by the authority holding the enquiry. It was held in para No.9
thereof that, if it was intended by the rule-making authority that the
disciplinary authority should itself frame the memo of charges and hold the
enquiry, then, it would not have provided that a report of the enquiry shall
be prepared by the authority holding the enquiry, whether or not such
authority is competent to impose the penalty. The Apex Court therein has
placed reliance on the afore cited decisions in Shardul Singh's case
supra [(1970) 1 SCC 108], P.V.Srinivasa Sastry's case supra
[(1993) 1 SCC 419] and Radha Krishna Moorthy's case supra,
(1995) 1 SCC 332. The Apex Court, in para 8 of the decision in Radha
Krishna Moorthy's case supra [(1995) 1 SCC 332], has held that
initiation of disciplinary enquiry can be by an officer subordinate to the
appointing authority. Hence, it was held, in para 8 of the decision in
Thavasiappan's case supra [(1996) 2 SCC 145] that the aforecited
decisions fully support the position that initiation of a departmental
proceeding and conducting an enquiry can be by an authority other than
the authority competent to impose the proposed penalty. It was thus held
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in the latter part of para No.9 of Thavasiappan's case supra [(1996) 2
SCC 145], that, generally speaking, it is not necessary that the charges
should be framed by the authority competent to award the proposed
penalty or that the enquiry should be conducted by such authority. It was
held by the Apex Court that the view taken by the Tribunal, that in a case
falling under Rule 3(b) therein, the charge memo should be issued by the
disciplinary authority empowered to impose the penalties referred to
therein and if the charge memo is issued by any lower authority, then only
that penalty can be imposed which that lower authority is competent to
award, etc. is clearly erroneous. The appeal was allowed and the impugned
decision of the Tribunal was set aside and the case was remitted back to the
Tribunal, etc. Para 8 and the latter part of Para 9 of Thavasiappan's
case supra [(1996) 2 SCC 145] read as follows:
"8. The learned counsel also drew our attention to P.V.
Srinivasa Sastryv.Comptroller and Auditor General [(1993) 1 SCC 419 : 1993
SCC (L&S) 206 : (1993) 23 ATC 645] wherein this Court in the context of Article
311(1) has held that in absence of a rule any superior authority who can be
held to be the controlling authority can initiate a departmental proceeding and
that initiation of a departmental proceeding per se does not visit the officer
concerned with any evil consequences. Transport Commr. v. A. Radha Krishna
Moorthy [(1995) 1 SCC 332 : 1995 SCC (L&S) 313 : (1995) 29 ATC 113] was
next relied upon. Therein also this Court has held that initiation of disciplinary
enquiry can be by an officer subordinate to the appointing authority. These
decisions fully support the contention of the learned counsel for the appellants
that initiation of a departmental proceeding and conducting an enquiry can be
by an authority other than the authority competent to impose the proposed
penalty.
9. ......... ....... Generally speaking, it is not necessary that the charges
should be framed by the authority competent to award the proposed penalty or
that the enquiry should be conducted by such authority. We do not find
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anything in the rules which would induce us to read in Rule 3(b)(i) such a
requirement. In our opinion, the view taken by the Tribunal that in a case
falling under Rule 3(b) the charge memo should be issued by the
disciplinary authority empowered to impose the penalties referred to therein
and if the charge memo is issued by any lower authority then only that
penalty can be imposed which that lower authority is competent to award,
is clearly erroneous. ......."
(vi) Commissioner of Police v. Jayasurian & Anr. [(1997) 6 SCC
75] ["Jayasurian's case" for short]
22. As can be seen from para 5 of the abovesaid decision, the
Tribunal therein has set aside the order of removal passed by the
Commissioner of Police. The main grounds on which the Tribunal has set
aside the order of removal, imposed on the Police Constable by the
Commissioner of Police, was that the latter was not the appointing
authority of the former. As regards that, the Apex Court has held, in para
No.7 thereof, that, in view of the previous decisions, in cases as in
Thavasiappan's case supra [(1996) 2 SCC 145], any superior authority,
viz., authority superior to the delinquent, who can be said to be the
controlling authority, can initiate departmenal proceedings and issue the
charge memo and initiation of departmental proceedings and conducting
an inquiry can be by an authority other than the authority competent to
impose the proposed penalty.
(vii) Registrar of Co-op. Societies, Madras & Anr. v.
F.X. Fernando [(1994) 2 SCC 746] ["Fernando's case" for short]
23. The above decision was rendered by a three-Judge Bench of
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the Apex Court. The respondent delinquent employee therein had joined
the co-operative department as Deputy Registrar and was later promoted
as the Joint Registrar. During his tenure as Joint Registrar/Special Officer,
complaints were received by the Director of Vigilance & Anti Corruption
Department and the said Department was requested to complete the
inquiry. On examination of the detailed report by the Vigilance and Anti
Corruption Department, the Government issued an order directing the
Registrar to take disciplinary proceedings against the respondent,
whereupon the Registrar issued the charge memo. The Registrar
(Marketing, Planning & Development), was appointed as the Enquiry
Officer and the Registrar who called upon the respondent to appear before
the Enquiry Officer, which order was challenged by the delinquent before
the Tamil Nadu Administrative Tribunal. The Tribunal held that the
impugned proceedings, under Rule 17(b), were liable to be set aside, on the
ground that the Registrar of Co-operative Societies was not empowered to
impose even minor penalty, but that it was open to the Government, as the
Disciplinary Authority, to initiate fresh action, by issuing a charge memo
and conclude the proceedings within a period of six months. Aggrieved
thereby, the Department preferred civil appeal before the Apex Court. The
Apex Court specifically held that the Registrar had not taken disciplinary
action on his own volition and it was done only on the basis of the
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directions issued by the Government by a GO, where it was directed to do
so. Moreover, the Apex Court also held that the finding of the Tribunal is
wrong, since it had not noted the amendment to Rule 12 of the Tamil Nadu
Civil Service (CCA) Rules, whereunder even heads of the Department were
enabled to impose penalty. The Three-Judge Bench of the Apex Court, in
Fernando's case supra [(1994) 2 SCC 746], more particularly in para
No.16, has placed reliance on paras 4, 5 and 6 of the 2 Judge's Bench
decision in P.V.Srinivasa Sastry's case supra [(1993) 1 SCC 419].
Thus, it can be seen that the three-Judge Bench of the Apex Court in
Fernando's case supra (1994) 2 SCC 746, has also confirmed the legal
position that Art.311(1) does not mandate that even departmental
proceedings must be initiated only by the appointing authority. But that,
those aspects can be regulated by rules and if such special provisions are
made by the rules, then it will amount to providing additional safeguards
over and above Art.311. But, in the absence of any such rule, such a right
does not flow from Art.311. Further that, initiation of a departmental
proceeding per se does not visit the officer concerned with any evil
consequences, and the framers of the Constitution did not consider it
necessary to guarantee even that to holders of civil posts under the Union
of India or under the State Government. This will not give right to
authorities having the same rank, as that of the officer against whom
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proceeding is to be initiated, to take a decision whether any such
proceeding should be initiated. That, in the absence of a rule, any superior
authority, viz., authority superior to delinquent, who can be held to be the
controlling authority, can initiate such proceeding.
(viii) State of U.P. & Anr. v. Chandrapal Singh [(2003) 4 SCC 670]
["Chandrapal Singh's case" for short]
24. A reading of para 4 of the above decision would indicate that
the Apex Court has dealt with the case, wherein, as per the then prevailing
Government orders, the District Agriculture Officer was competent to
initiate disciplinary proceedings, as an appointing authority. The
delinquent, who was actually appointed to the post by the Director of
Agriculture, was imposed with the order of dismissal by the said Director.
Before the Tribunal, the delinquent contended that the District Agriculture
Officer was lower in rank than the appointing authority, viz., Director of
Agriculture and therefore, the District Officer could not have initiated
disciplinary proceedings, nor could he have taken action on the
disciplinary proceedings so initiated, due to incompetency. The Tribunal
and the High Court allowed the said plea. The State challenged the same
before the Apex Court. Before the Apex Court, the delinquent urged that
since, as per the then norms, the District Agriculture Officer was the
appointing authority at the time of his appointment, the Director of
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Agriculture could not have appointed him and that, therefore, the
impugned action of the Director was incompetent. The Apex Court
overruled this objection and held that the said plea ignores the basic fact
that, if this order of appointment was incompetent, the very appointment
of the delinquent would go away. On the issues decided by the Tribunal
and the High Court, the Apex Court held that the order of dismissal, passed
by the Director of Agriculture, was intra vires Art.311. The plea of the
delinquent, that the District Agriculture Officer was incompetent to initaite
the disciplinary proceedings, was repelled by the Apex Court by placing
reliance on the aforesaid decisions in Shardul Singh's case supra
[(1970) 1 SCC 108], P.V.Srinivasa Sastry's case supra [(1993) 1 SCC
419], Fernando's case supra [(1994) 2 SCC 746], etc., as can be seen
from a reading of paras 5, 6 and 7 of Chandrapal Singh's case supra
[(2003) 4 SCC 670]. In para 7 of Chandrapal Singh's case supra
[(2003) 4 SCC 670], the Apex Court has placed reliance on paras 16 of
Fernando's case supra [(1994) 2 SCC 746] as well as paras 4, 5 and 6
of P.V.Srinivasa Sastry's case supra [(1993) 1 SCC 419].
Accordingly, the Apex Court held, in para 8 of the decision in
Chandrapal Singh's case supra [(2003) 4 SCC 670], that, going by
the terms and content of Article 311(1) of the Constitution, it does not
follow that even initiation or conduct of inquiry proceedings should be by
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that authority itself, which is empowered to dismiss or remove an official
under the said article, unless there is an express rule governing the official
requiring it to be so. Para 8 of Chandrapal Singh's case supra
[(2003) 4 SCC 670] reads as follows:
"8. Thus, looking to the terms and content of Article 311(1) of the
Constitution, it does not follow that even initiation or conduct of inquiry
proceedings should be by that authority itself, which is empowered to
dismiss or remove an official under the said article, unless there is an
express rule governing the official requiring it to be so."
(ix) Secretary, Ministry of Defence & Ors. v. Prabhash
Chandra Mirdha [(2012) 11 SCC 565] ["Prabhash Chandra
Mirdha's case" for short]
25. A reading of para 2 of the above decision would indicate that
the Tribunal mainly interfered on the ground that the memo of charges
had been issued to the respondent therein by an authority not competent
to do so, being subordinate to his appointing authority. The Apex Court has
held, in para 4 thereof, that the legal proposition has been laid down by
this Court while interpreting the provisions of Article 311, that the removal
and dismissal of a delinquent on misconduct must be by the authority not
below the appointing authority. However, it does not mean that
disciplinary proceedings may not be initiated against the delinquent by the
authority lower than the appointing authority. In para 5 thereof it was
observed that it was permissible for an authority, higher than the
appointing authority to initiate the proceedings and impose punishment, in
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case the said authority is not the appellate authority so that the delinquent
may not lose the right of appeal. In other case, the delinquent has to prove
as to what prejudice has been caused to him. Paras 4 and 5 of the decision
in Prabhash Chandra Mirdha's case supra [(2012) 11 SCC 565,
p.570] read as follows:
"4. The legal proposition has been laid down by this Court while
interpreting the provisions of Article 311 of the Constitution of India that the removal
and dismissal of a delinquent on misconduct must be by the authority not below the
appointing authority. However, it does not mean that disciplinary proceedings may not
be initiated against the delinquent by the authority lower than the appointing authority.
5. It is permissible for an authority, higher than the appointing authority
to initiate the proceedings and impose punishment, in case he is not the appellate
authority so that the delinquent may not lose the right of appeal. In other case, the
delinquent has to prove as to what prejudice has been caused to him. (Vide Sampuran
Singh v. State of Punjab [(1982) 3 SCC 200 : 1983 SCC (L&S) 1 : 1982 SCC (Cri) 686 : AIR
1982 SC 1407] , Surjit Ghosh v. United Commercial Bank [(1995) 2 SCC 474 : 1995 SCC
(L&S) 529 : (1995) 29 ATC 373] , Balbir Chand v. Food Corporation of India Ltd. [(1997) 3
SCC 371 : 1997 SCC (L&S) 808 : AIR 1997 SC 2229] and A. Sudhakar v. Postmaster
General [(2006) 4 SCC 348 : 2006 SCC (L&S) 817] .)"
26. Further, the Apex Court, in paras 6 and 7 of Prabhash
Chandra Mirdha's case supra [(2012) 11 SCC 565], has placed
reliance on the afore cited Thavasiappan's case supra [(1996) 2 SCC
145], Chandrapal Singh's case supra [(2003) 4 SCC 670], and A.
Radha Krishna Moorthy's case supra, [(1995) 1 SCC 332], wherein
it was held that the initiation of inquiry proceedings, by an officer
subordinate to the appointing authority, is unobjectionable and the
initiation can be by an officer subordinate to the appointing authority, but
that only the dismissal and removal shall not be by an authority
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subordinate to the appointing authority, in view of Article 311, etc. Further,
it has been held, in para No.8 of Prabhash Chandra Mirdha's case
supra [(2012) 11 SCC 565], that the law does not permit quashment of
charge sheet or memo of charges in a routine manner and in case the
delinquent employee has any grievance, in respect of the charge-sheet, he
must raise the issue by filing a representation and await the decision of the
disciplinary authority thereon, etc. Further that, interference on the
ground of delay, etc. should be considered by the court after assessing the
gravity of the charge and all relevant factors involved in the case, weighing
all the facts, both for and against the delinquent employee and must reach
the conclusion, which is just and proper, in the circumstance.
(x) Steel Authority of India, Successor of Bokaro Steel Ltd. vs.
Presiding Officer, Labour Court at Bokaro, Steel City, Dhanbad
& Anr. [(1980) 3 SCC 734] ("SAIL's case" for short).
27. The respondent delinquent was employed as Registration
Assistant in the Medical Department of the appellant company by its
Personal Manager. The Chief Medical Officer of the hospital served two
charge sheets on him, for alleged acts of misconduct and also constituted a
Committee to inquire into the charges. The Personal Manager of the
company found him guilty of the charges, and dismissed him from service.
Application was made on behalf of the appellant company before the
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Labour Court, under Sec.33(2)(b) of the Industrial Disputes Act, seeking
approval of the penal action taken against the employee. The respondent
employee objected, contending that the appointing authority is the
Disciplinary Authority for the alleged misconduct and that Personal
Manager of the Company, being his appointing authority, was the only
authority, according to the Rules competent to issue charge sheets and
constitute the Inquiry Committee and that therefore, framing of charge
sheets by the Chief Medical Officer (CMO) and the constitution of the
Inquiry Committee by him were without jurisdiction. The Labour Court
held that the CMO was incompetent under the Rules to frame charges
against the respondent and to constitute the Inquiry Committee and
accordingly, held that the Domestic Inquiry was defective and invalid, but
also held that the Company's case could not be dismissed at that stage and
that the appellant company should be given an opportunity to adduce
evidence, in support of the action it had taken against the respondent.
28. Two writ petitions were filed before the Patna High Court, one
by the respondent employee for quashing that part of the order which
permitted the appellant company to lead evidence in support of its action
in dismissing him and the other by the Company questioning the finding
that the CMO was not competent to frame the charges and to constitute the
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Inquiry Committee. The High Court dismissed both the Writ Petitions and
SLP was filed by the company challenging the finding made by the Labour
Court and approved by the High Court.
29. The Apex Court noted that the Board of Directors had
approved the Discipline and Appeal rules, which contained provisions
concerning misconduct, nature of penalties and authorities competent to
impose the penalties, the procedure for imposing minor and major
penalties etc. However, it was contended that certain changes were brought
in by some resolutions passed by the Board of Directors, which enabled the
Chairman/Managing Director to authorize to sub-delegate his powers with
the heads of Office under him and the subsequent resolution abolished the
title of Senior Executive Medical Officer and the new post of CMO was
created in its place as the Head of the Department. However, the Apex
Court held that those resolutions have not formed the part of the service
rules approved by the Board of Directors. It is on this ground that the Apex
Court agreed with the concurrent findings of the High Court and the
Labour court and held that Discipline and Appeal rules of the Company,
which have been approved by the Board of Directors, did not authorise the
CMO to frame charges against the employee or to constitute the Inquiry
Committee. A reading of SAIL's decision would show that the previous
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decision of the Apex Court in Shardul Singh's case supra [(1970) 1 SCC
108] has not been considered.
(xi) Union of India (UOI) & Ors. v. K.V.Jankiraman & Ors.
("K.V.Jankiraman's case" for short) [(1991) 4 SCC 109= AIR 1991 SC
2010]
30. A reading of paragraph 8 of the aforecited celebrated 3 Judge
Bench decision of the Apex Court in K.V.Jankiraman's case supra,
would indicate that the first question considered therein is as to what is the
date from which it can be said that disciplinary proceedings/criminal
proceedings are pending against an employee. In paragraph 16 thereof, it
has been observed that, on the first question, as to when the disciplinary
proceedings can be said to have commenced, the Full Bench of the Tribunal
in the impugned order therein has held that it is only when a charge memo
in a disciplinary proceedings is issued to the employee that it can be said
that Departmental proceedings is initiated against the employee. The Apex
Court has further held, in paragraph 16 thereof, that mere pendency of
preliminary investigation, prior to that stage, will not be sufficient and that
their Lordships of the Apex Court are in agreement with the Tribunal on
this point. Hence, it can be seen that the Apex Court has held that a
disciplinary proceedings can be said to be pending against an employee,
only when a charge memo or charge sheet in a disciplinary proceedings is
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issued to the employee concerned. A reading of para 16 would indicate that
the words "when the disciplinary proceedings is said to have commenced"
and "when the disciplinary proceedings is initiated" against the employee
etc, have been used interchangeably. A reading of the said decision, more
particularly para Nos.8 & 16 thereof, would indicate that the Apex Court
has used the words "when the disciplinary proceedings is said to be
pending", whereas the Tribunal, in the impugned order, has used the
words, "when the disciplinary proceedings is initiated." But, going by the
question raised for consideration, as stated in paragraph 8 thereof, it is
clear that the ratio decidendi of the decision of the Apex Court in
K.V.Jankiraman's case supra, is that a disciplinary proceedings is said
to have commenced against a delinquent employee, only when memo of
charges or charge sheet in the disciplinary proceedings is issued to him.
Various other issues, as to the parameters for denial of promotion, have
also been dealt with in the said decision, about which, we are not
concerned in this case.
(xii)Union of India & Ors vs. Anil Kumar Sarkar ("Anil Kumar
Sarkar's case" for short) [(2013) 4 SCC 161]
31. The Apex Court, in Anil Kumar Sarkar's case supra, has
placed reliance on paragraph 16 of the dictum laid down by the 3 Judge
Bench of the Apex Court in K.V.Jankiraman's case supra. Further,
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the Apex Court, in paragraph 21 of Anil Kumar Sarkar's case supra,
has categorically laid down that disciplinary proceedings can be said to
have commenced only when a charge sheet is issued. Further, it is also
observed in paragraph 21 that Departmental proceedings is normally said
to be initiated only when a charge sheet is issued. Paragraph 21 thereof
reads as follows:
"21. We also reiterate that the disciplinary proceedings commence
only when a charge-sheet is issued. Departmental proceeding is normally
said to be initiated only when a charge-sheet is issued."
32. A reading of para 21 would also indicate that the words
"commencement of disciplinary proceedings" and "initiation of disciplinary
proceeding" have been interchangeably used, but the essence and
substance of the ratio of the said decision is that in view of the dictum laid
down in K.V.Jankiraman's case supra, that disciplinary proceedings
can be said to have commenced, only when a memo of charge or charge
sheet in a disciplinary proceedings is issued to the employee concerned.
(xiii) Delhi Development Authority v. H.C. Khurana,
[(1993) 3 SCC 196] ("H.C. Khurana's case" for short)
33. The 2 Judge's Bench of the Apex Court, in paragraph 9 of H.C.
Khurana's case supra, had considered the different stages of decision
taken to initiate disciplinary proceedings and the stage of commencement
of the disciplinary proceedings by the issuance of charge sheet. The said
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issue arose in the factual context of that case, whereby paragraph 2 of OM
dated 12th January 1988, which was the guideline applicable at the material
time, provided for categories of Government servants in whose case, sealed
cover procedure could be adopted. Clause II of paragraph 2 of OM dated
12.01.1988 provided:
"Government servants in respect of whom disciplinary
proceedings are pending or a decision has been taken to initiate
disciplinary proceedings" .
OM dated 14th September 1992 substituted a new clause (ii), which
provided thus :
"Government servants in respect of whom, a charge sheet has been issued
and disciplinary proceedings are pending;.."
(see paragraphs 4 & 5 thereof)
34. A reading of paragraph 16 would indicate that the decision to
initiate disciplinary proceedings against the respondent employee therein
had not been taken or the charge sheet had also not been issued to him
prior to the day on which the DPC had adopted the sealed cover procedure.
The Apex Court had held, in paragraph no.9 thereof, as to what is the stage
when it can be said that a decision has been taken to initiate disciplinary
proceedings. It was held therein that the decision to initiate disciplinary
proceedings cannot be subsequent to the issuance of charge sheet, since the
issue of the charge sheet is a consequence of the decision to initiate
disciplinary proceedings. Framing the charge sheet is the first step taken
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for holding the inquiry into the allegations, consequent to the decision
taken to initiate the disciplinary proceedings. It was thus, held that service
of charge sheet on the employee follows the decision to initiate disciplinary
proceedings and it does not proceed or coincide with that decision.
Paragraph no.9 of HC Khurana's case supra reads as follows:
"The question now, is : What is the stage, when it can be said, that
'a decision has been taken to initiate disciplinary proceedings'? We have
no doubt that the decision to initiate disciplinary proceedings cannot be
subsequent to the issuance of the charge-sheet, since issue of the charge-
sheet is a consequence of the decision to initiate disciplinary proceedings.
Framing the charge-sheet, is the first step taken for holding the enquiry
into the allegations, on the decision taken to initiate disciplinary
proceedings. The charge-sheet is framed on the basis of the allegations
made against the government servant; the charge-sheet is then served on
him to enable him to give his explanation; if the explanation is
satisfactory, the proceedings are closed, otherwise, an enquiry is held
into the charges; if the charges are not proved, the proceedings are closed
and the government servant exonerated; but if the charges are proved,
the penalty follows. Thus, the service of the charge-sheet on the
government servant follows the decision to initiate disciplinary
proceedings, and it does not precede or coincide with that decision. The
delay, if any, in service of the charge-sheet to the government servant,
after it has been framed and despatched, does not have the effect of
delaying initiation of the disciplinary proceedings, inasmuch as
information to the government servant of the charges framed against
him, by service of the charge-sheet, is not a part of the decision-making
process of the authorities for initiating the disciplinary proceedings. "
(emphasis supplied)
(xiv) State of Andhra Pradesh & Ors. v. Ch.Gandhi ("Gandhi's
case" for short) (2013 (5) SCC 111)
35. In para 18 of Gandhi's case supra, the Apex Court has relied
on paragraph 9 of H.C. Khurana's case supra, regarding the different
stages of decision to initiate disciplinary proceedings and the stage of
commencement of the disciplinary proceedings by the issuance of the
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charge sheet. So, it can be seen that in Gandhi's case supra, the Apex Court
has again re-iterated the position that framing the charge sheet is the first
step taken for holding the inquiry in the allegations, consequent to the
decisions taken to initiate the disciplinary proceedings.
(xv) Union of India & Ors. vs. B.V.Gopinath ("B.V.Gopinath's
case" for short) [(2014) 1 SCC 351]
36. In the afore cited two Judge Bench decision, the Apex Court
dealt with a case wherein the delinquent was a member of the Indian
Revenue Service (IRS), in which he had joined in the year 1987 as the
Assistant Commissioner of Income Tax. He has secured various higher
promotions and was Additional Commissioner of Income Tax in the year
2000. The Apex Court has considered the provisions of Rule 14(2) and
Rule 14(3) of the Central Civil Services (Classification, Control and Appeal
Rules), 1965, viz, the CCS (CCA) Rules. This was so examined in the
context of the issue as to the different stages of the disciplinary
proceedings, viz the initiation of disciplinary proceedings at Rule 14(2) and
the stage of commencement of the disciplinary proceedings by issuance of
charge sheet at Rule 14(3). Rule 14(2) provided as follows:
"(2) Whenever the disciplinary authority is of the opinion
that there are grounds for inquiring into the truth of any
imputation of misconduct or misbehavior against a Government
Servant, it may itself inquire into or appoint under this Rule or
under the provisions of the Public Servants (Inquiries)Act, 1850 as
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the case may be, an authority to inquire into the truth thereof."
[Explanation omitted]
37. Rule 14(3) of the CCS (CCA) Rules provided as follows:
"(3)Where it is proposed to hold an inquiry against a
Government servant under this Rule and Rule 15, the disciplinary
authority shall draw or cause to be drawn up -
(i) the substance of the imputations of misconduct or
misbehavior into definite and distinct articles of charge ;
(ii) The statement of the imputations of misconduct or
misbehavior in support of each article or charge shall contain - (a) a
statement of all relevant facts including any admission or confession
made by the Government servants; (b) a list of documents by which a
list of witnesses by whom the articles of charge are proposed to be
sustained.
Rule 14(4) stipulates that:
"(4) Disciplinary authority shall deliver or cause to be delivered to the
Government servant, a copy of the articles of charge, the statement of
imputations of misconduct or misbehavior and a list of documents
and witnesses by which each article or charge is proposed to be
sustained and shall require the Government servant to submit within
such time as may be specified, a written statement of his defence and
state whether he desires to be heard in person."
38. In para 27 thereof, the Apex Court has referred to the plea that
the employee belongs to the Indian Revenue Service and that the President
of India is the appointing authority and that the said power of the
President has been delegated, under Article 77(3) of the Constitution of
India and by an order of the President dated 14.01.1961 under the
Government of India (Allocation of Business) Rules, to the Finance
Minister. That, thus, the Finance Minister is to act as the disciplinary
authority for the purpose of Article 311 of the Constitution of India and
Rule 14 of the CCS (CCA) Rules etc. Paragraphs 10, 12, 23, 42, 43, 44, 45
W.A No.934/2022 & connected cases
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etc deals with the Office Order No.205/2005 dated 19.07.2005, setting out
the levels of the decision making authorities depending on the gravity of
the consequences that would have to be faced by a delinquent public
servant, in case decision is taken to proceed against him. Paragraphs 23 &
43 mentions about Clause 8 of the Office Order No.205/2005, dated
19.07.2005, which mandates that approval of charge sheet has to be
granted by the Finance Minister in such a case involving a member of the
Indian Revenue Service. Clause 9 of the Office order required that, if there
has to be any dropping/modification/amendment of the memo of charges,
after receiving the written submission of defence, then also the file has to
be put up to the Finance Minister.
39. In para 30 of B.V.Gopinath's case supra, the Apex Court
has considered the issue as to whether the stage of initiation of disciplinary
proceedings is the same as issuing a charge sheet/charge memo. It was
held therein that, a plain reading of Rule 14(2) and Rule 14(3) of CCS
(CCA) Rules would make it amply clear that the only interpretation
possible is that the stage of disciplinary proceedings under Rule 14(2) is
distinct and separate from the stage of issuing a charge memo under Rule
14(3) and it is not a continuing act because, it is not necessary that every
disciplinary proceedings initiated would definitely result in issuing a
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charge memo because after initiating disciplinary proceedings, it may be
found from materials on record that the memo of charge need not be
served because the charges may not be made out or a lesser charge could be
made out. Mind has to be applied to the evidence and materials on record,
pursuant to the initiation of disciplinary proceedings to again come to a
fresh decision as to whether now, a charge memo deserves to be issued.
Thus, the Apex Court has dealt with the difference in the stages of initiation
of disciplinary proceedings at Rule 14(2) and commencement of
disciplinary proceedings by the issuance of charge sheet at Rule 14(3). In
paragraph 50, the Apex Court found that the records reveal that the file
was put up to the Finance Minister by the Director General of Income Tax
(Vigilance), seeking approval of the Finance Minister for sanctioning
prosecution and for initiation of major penalty proceedings. But,
ultimately, it appeared that the charge memo was not put up for the
approval by the Finance Minister. Hence, the Apex Court has held that the
mandatory provisions in Clause 8 of Office Order No.205/2005, which
required the approval of the charge sheet/charge memo to be granted by
the Finance Minister, has not been fulfilled in the said case and hence, it
was held that the disciplinary proceedings against the delinquent, who was
a member of the Indian Revenue Service, without obtaining the mandatory
approval of the competent authority of the Finance Minister to the memo
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of charges/charge sheet is illegal and ultra vires. In para 41 thereof, the
Apex Court has overruled the plea of the Additional Solicitor General that,
once the disciplinary authority approves the initiation of disciplinary
proceedings, the charge sheet can be drawn up by an authority, other than
the disciplinary authority. In that regard, the Apex Court has incidentally
observed, in paragraph 41, that this would destroy the underlying
protection guaranteed under Article 311(1) of the Constitution of India,
which provision ensures that no public servant is dismissed, removed,
suspended without following a fair procedure in which he/she has been
given a reasonable opportunity to meet the allegations contained in the
charge sheet. That, such a charge sheet can only be issued upon approval.
That, in the facts of that case, it was held, that such a charge sheet can be
issued only upon approval by the appointing authority, ie, the Finance
Minister, going by the abovesaid norms. However, the Apex Court, in para
52 of B.V.Gopinath's case supra, has relied on the dictum laid down in
P.V.Srinivasa Sastry's case supra [(1993) 1 SCC 419], wherein it was
held that Article 311(1) does not say that even departmental proceedings
must be initiated only by the appointing authority and that it has been held
in para 4 of Srinivasa Sastry's case supra that it is open to the
Government to make any Rule prescribing that even the proceedings
against the delinquent officer shall be initiated by an officer not
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subordinate to the appointing authority and that any such protective rule is
not inconsistent with Article 311, but it only amounts to providing an
additional safeguard or protection to the holders of a civil post, over and
above the protection guaranteed under Article 311. It is also to be noted
that the dictum laid down in P.V.Srinivasa Sastry's case supra [(1993)
1 SCC 419] has been fully relied on and approved by a 3 Judge Bench of the
Apex Court in F.X.Fernando's case supra, 1994 (2) SCC 746). So, a
reading of the 2 Judge Bench's decision of the Apex Court in
B.V.Gopinath's case supra, more particularly, paragraph 52, in the light
of the various other Rulings of the Apex Court mentioned herein above,
more particularly P.V.Srinivasa Sastry's case supra and
F.X.Fernando's case supra, would really lead to the legal position that,
ordinarily, in the absence of any rule, Article 311, by itself, does not
guarantee that disciplinary proceedings should be initiated only by an
officer who is not subordinate to the appointing authority. However, if the
rule so prescribes, as to the authority who has to initiate and commence the
disciplinary proceedings etc, then the same would amount to an additional
safeguard to the public servant, over and above the minimal protection
guaranteed by Article 311. In B.V.Gopinath's case supra, there was a
specific provision in Clause (8) of the Office Order No.205 of 2005 dated
19.07.2005, that in the case of the members of the Indian Revenue Service,
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the approval of the competent authority, viz the Finance Minister was
required to be granted for the issuance of charge sheet and since the said
mandatory stipulation was contravened, the said additional safe guard was
violated, whereby the impugned action became illegal and ultra vires.
(xvi) State of Tamil Nadu vs. Pramod Kumar IPS & Anr.
("Pramod Kumar's case" for short) [(2018) 17 SCC 677]
40. The delinquent employee involved in this case was a member
of the Indian Police Service (IPS), which is comprised in the All India
Service. A reading of paragraph 16 would indicate that the Apex Court has
noted that Rule 14 of the CCS(CCA) Rules, considered in B.V.Gopinath's
case supra, in the case of members of IRS are almost pari materia to the
provisions contained in Rule 8 of the All India Services (Discipline and
Appeal) Rules, 1969, which is applicable to the members of the All India
Service, like IPS etc. Rule 7 of the aforesaid All India Service (Discipline
and Appeal) Rules mandated that the authority to institute proceedings
and to impose penalty on a member of the All India Service is the State
Government, if he is serving in connection with the affairs of the State. The
competent authority to act on behalf of the State Government, as per the
rules of business framed, as per the provisions of the Constitution, was the
Minister for Home Department, which portfolio, at the relevant time, was
held by the Chief Minister. Further, matters relating to disciplinary action
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against members of All India Services, like IPS, IAS, IFS, officers, have to
be dealt with by the Chief Minister. Further, a reading of paragraph 19
would indicate that matters relating to disciplinary action against IPS, IAS
& IFS officers have to be dealt with by the Chief Minister as per standing
order no.2 dated 09.01.1992 issued under Rule 35(4) of the Business Rules.
In paras 20 & 21 thereof, the Apex Court has found that approval of the
competent disciplinary authority, namely the Hon'ble Chief Minister, was
taken for initiation of the disciplinary action, but it was revealed that no
approval was sought for from the said competent disciplinary authority at
the time when charge memo was issued to the delinquent officer. The
argument of the State was that the approval of the disciplinary authority,
for initiation of disciplinary proceedings, was sufficient and there was no
need for another approval for issuance of the charge memo. The Apex
Court held that, in the light of the dictum laid down in B.V.Gopinath's
case supra, though, approval of the competent authority was obtained for
initiation of disciplinary proceedings, such approval was not obtained from
the said authority at the time of issuance of the memo of charges under
Rule 14(3) of the CCS(CCA) Rules and hence, the impugned disciplinary
proceedings were quashed. It was also noted that, in B.V.Gopinath's
case supra, the Apex Court held that the step of even drawing up or
causing to draw up the memo of charges, as per Rule 14(3) of the CCA
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Rules, would require the approval of the competent authority. Accordingly,
in paragraph 22 of Pramod Kumar's case supra, the Apex Court held
that the impugned action, in not securing approval of the competent
disciplinary authority, at the stage of issuance of the charge memo, was
illegal and ultra vires.
(xvii) M.C.Vasudevan vs. SNDP Yogam [(1958) KLT 48 (DB) =(1958)
KLJ 538) = (AIR 1958 Ker. 164)]
41. In para 4 of the aforesaid decision, rendered by a Division
Bench comprising of M.S.Menon,J, (as his Lordship then was) and
P.T.Raman Nair, J, (as his Lordship then was), it has been, interalia, held
that the Court cannot accept the argument that the impugned notices
should not be ignored because they do not purport to be issued by or on
behalf of the Board concerned and that no decision has been cited in
support of the proposition that the charge and the demand for explanation
must proceed from the very same authority competent to inflict the
punishment and on principle, their Lordships see no reason why this
should not proceed from some subordinate authority. It was held that, it is
not as if the Council and the General Secretaries, who issued Exts.P3 & P7
therein, were outsiders, having no right to question the petitioner with
regard to their alleged misconduct and that the said persons are persons in
authority etc. So, this Division Bench Judgment is an authority for the
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general proposition that the memorandum of charges and the demand for
explanation need not necessarily proceed from the very same authority
competent to inflict the punishment and on principle, such proceedings,
regarding charge and demand for explanation could proceed from some
authority subordinate to the punishing authority, so long as the said
subordinate authorities, are not outsiders and they can be treated as
persons in authority as per the norms.
(xviii) Madhavan Nair Vs. Commissioner for Hindu Religious
and Charitable Endowments (HR&CE) & Ors. (1963 KLT 480)=
(1963 KHC 129).
42. This case was concerned with the suspension from service of a
manager of a Hindu Religious Institution, ordered at the behest of the
Commissioner of the HR&CE Department. Paragraph No.5 would indicate
that the petitioner, though designated as a Manager, has satisfied the
definition of "Executive Officer". Rule 15 empowered the appointing
authority (Commissioner) to impose penalties, ranging from censure to
dismissal of Executive Officers. The last sentence of 1 st paragraph of Rule
16 prescribed the procedure to be followed and it said that "an Executive
Officer may be placed under suspension, pending inquiry into grave
charges, where such suspension is necessary in public interest and in the
interest of religious institutions concerned." This Court held that, although
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the rule does not say as to who may make an order of suspension, it is
obvious that atleast the authority competent to dismiss must have that
power and therefore, it is clear that the rule confers power on the
Commissioner, the power to suspend the petitioner, pending inquiry into
grave charges. This Court held that the word "charges", appearing in the
aforesaid Rule 16, would only mean "accusations" and has no reference to
the formal charges, namely the memo of charges, which under the earlier
part of the Rule have to be framed in the course of an inquiry, so that the
rule does not mean that suspension can be ordered only after formal memo
of charges have been framed, where such suspension is necessary in the
public interest.
(xix) Mathew Joseph vs. Registrar of Co-operative Societies
[2022 (6) KLT Online 1187 = ILR 2022 (4) Ker. 555]
43. The Division Bench of this Court, in para 9 in the aforecited
decision in Mathew Joseph's case supra, has held that an order of
suspension from service, in terms of Rule 198(6) of the KCS Rules, cannot
exist independent of a charge memo, whether issued simultaneously or
within a reasonable time thereafter etc. In other words, an order
suspending an incumbent from service ,as per Rule 198(6) of the KCS
Rules, can be issued before or after the issuance of the memo of charges,
but where in the latter case of the charge memo being issued after the
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suspension order, then the charge memo will have to be issued within a
reasonable time, after the issuance of memo of charges.
(xx) Pattanakkad Coir Mats & Matting Co-operative Society
Ltd. v. Project Officer (Coir) ["Coir Mats Society's case" for short]
[1998 (1) KLT 570 = 1998 KHC 107 = 1998 (1) KLJ 506 = ILR 1998 (3) Ker.
303]
44. In this case, the delinquent employee was suspended from
service, in order to facilitate a detailed enquiry into the allegations against
him, by invoking the power under Rule 198(6) of the KCS Rules. At the
time of suspension, no formal memo of charges was issued to him.
However, the specific case of the co-operative society employer was that
they had materials to disclose that there were serious allegations of
irregularities and misconduct committed by the delinquent and that, to
facilitate an enquiry into those allegations, the employer found it necessary
to suspend the employee from service. The suspension order was
challenged by the employee before the notified Registrar, by initiating
proceedings under Rule 176 of the KCS Rules. The notified Registrar held,
as per the impugned order, that the word "charge", appearing in Rule 198
(6), should be a precise formulation of definite acquisitions and that before
invoking the power to suspend an employee, there should have been not
only materials disclosing allegations against the employee, but the
competent authority should have issued a memo of charges to him. That,
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the employer should have issued and served the memo of charges and
statement of allegations to the employee and after getting his explanation,
should have considered whether enquiry is to be conducted or not, etc.
Hence, the notified Registrar took the stand that the impugned order or
suspension therein, is ultra vires the provisions contained in Rule 198(6)
of the KCS Rules, inasmuch as there was no memo of charges issued
against the employee. Accordingly, the notified Registrar had rescinded
the resolution of the employer-Society, which decided to suspend the
employee from service. Being aggrieved thereby, the employer-Society had
preferred the writ proceedings in that case before this Court. After
construing the provisions contained in Rule 198(6), this Court held, in para
4 of the said decision, that the word "charge", appearing in Rule 198(6),
need not necessarily be the definite memo of charges and statement of
allegations issued to the delinquent. That normally, an employee is
suspended from service, in order to facilitate an enquiry against him and
for this purpose, at the time of ordering the suspension, there should have
been some materials in the possession of the employer, which compels him
to make a detailed enquiry against the delinquent employee. That, it is
after collecting all materials that formal charges should be served on the
delinquent employee. That, if the interpretation given by the Registrar in
that case is accepted, then an employee cannot be suspended, even if there
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are prima facie materials to show that the employee has committed
misconduct. Hence, this Court held that the word "charge", appearing in
Rule 198(6), does not mean that, formal charges should have been
necessarily framed against the delinquent employee, prior to the issuance
of the suspension order.
45. In that case, this Court had also placed reliance on the decision
of the Apex Court in S.Partap Singh v. State of Punjab
[AIR 1964 SC 72 para 54]. Para 4 of Coir Mats Co-operative Society's
case supra [1998 (1) KLT 570], pp.571-572, reads as follows:
"4. Now, let us examine Ext. P8 order and the grounds on which the resolution
was rescinded. In paragraph 12 of Ext P8 order it is stated thus:
"no charge memo has been issued to Sri. V.R. Retnappan by the Society...... A
charge is a precise formulation of a definite accusation................Therefore, in my
opinion nothing worth being called a charge has been raised or formulated
against Sri. V.R. Retnappan. Only suspension pending enquiry into the serious
charges is authorised by R. 198(6). The usual procedure of preparing a charge
memo and statement of allegations serving it on the employee, getting his
explanation, considering it and deciding whether an enquiry is to be conducted or
not and appointing an Enquiry Officer if the explanation is found unsatisfactory is
not seen followed in this case. In such circumstances, I find that the order of
suspension is violative of R. 198(6) of the Kerala Co-operative Societies Rules
1969".
Thereafter, in paragraph 13 of the order, it is stated thus:
"On a perusal of the entire records of the case, I find that the Board of Directors
of the Society had arrived at the decision to place Sri. V.R. Retnappan under
suspension without proper application of mind to the relevant materials".
The Registrar supports her view in paragraph 14 by stating thus :
"It is needless to state that the resolution of the Board of Directors of the Society
to place an employee under suspension illegally is one which is calculated to
disturb the peaceful and orderly working of the Society. It is also contrary to the
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better interest of the Society. It will have a demoralising effect of the members of
the staff of the Society as a whole".
In the above order, the first ground for rescinding the resolution is that
no formal charges have been made. According to the first respondent, to
suspend an employee under R. 198(6) it is necessary that a formal memo of
charges should have been issued to the delinquent employee. R. 198(6) only
states that serious charges should have been levelled against the delinquent
employee. I don't think that the word 'charge' is used to mean that a definite
memo of charges should have been issued to the delinquent employee.
Normally, an employee is, suspended in order to facilitate an enquiry against
that employee. For this purpose, at the time of ordering suspension, there
should have been some materials in the possession of the employer, which
compels him to make a detailed enquiry against the delinquent employee. It is
after collecting all the materials that formal charges should be served on the
delinquent employee. If the interpretation given by the Registrar is accepted,
the employee cannot be suspended even if there are prima facie materials to
show that the employee has committed misconduct. Hence, according to me, the
word 'charge' occurring in R.198(6) of the Rules does not mean that formal
charges should have been framed against the delinquent employees."
(xxi) S.Partap Singh v. State of Punjab [AIR 1964 SC 72]
("Partap Singh's case" for short)
46. This decision has been rendered by a Constitution Bench of
five Judges of the Apex Court. In that case, the contention of the appellant
was that Rule 3.26(d) of the Punjab Civil Service Rules, 1959, is not
applicable to him and even if it be applicable, his case is not covered by the
terms of that Rule. The second contention was that the impugned order is
vitiated by malafides (see para 34).
47. The Government had ordered the suspension of the appellant
from service with immediate effect, as the Government had decided that a
departmental enquiry be instituted against him under the Rules. The
Governor further passed an order under Rule 3.26(d). Rule 3.26(d)
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provided as follows (see para 51):
"A Government servant under suspension on a charge of misconduct shall
not be required or permitted to retire on his reaching the date of
compulsory retirement but should be retained in service until the enquiry
into the charge is concluded and a final order is passed thereon."
48. The majority view of 3 Judges has held, in para 30 thereof,
that the appellant has failed to make out that the impugned orders were
contrary to the Service Rules. However, the majority view has found that
the plea of malafide is made out and thus, the majority view of three judges
has interfered in favour of the appellant, by setting aside the impugned
proceedings and allowing the appeals. The minority view of 2 Judges, also
found that the impugned proceedings is within the terms and conditions of
the aforesaid Rule 3.26(d), but that the plea of malafide is also not made
out. Hence, the minority view has held that the appeal is to be dismissed.
The reasonings for holding that the impugned action is within the purview
of Rule 3.26(d) supra, are mainly contained in para 54. The specific
contention of the appellant in that regard was that, even if the Rule applies
to a Government servant under suspension on a charge of misconduct, it
can apply only to a Government servant against whom formal
departmental enquiry has been instituted for enquiring into the charges of
misconduct framed against him and that, in that case, no such formal
charges being framed and as a departmental enquiry was instituted prior to
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the suspension order, the order of suspension cannot be said to be within
the purview of Rule 3.26(d). This plea was overruled by holding, in para 54
thereof, that the said Rule 3.26 (d) comes into play only after a prima facie
case is made out against a Government servant and not at the stage of
preliminary investigation into accusations against a Government servant.
But, it does not follow that suspension is not permissible till the stage of
making a formal charge arrives. Rule 3.26(d) was held to be of general
application and therefore, the expression "charge of misconduct"
appearing in that Rule, is not to be interpreted narrowly, as to mean
"charges formally framed and communicated to the Government servant
concerned", with the intimation that formal departmental enquiry had
been initiated against him on those charges. It was held that the abovesaid
contention does not find any support from the last portion of Rule 3.26(d),
which reads ".......... until the enquiry into the charge is concluded and a
final order is passed thereon". It was held that the enquiry, contemplated
in that Rule, would be into the charges of misconduct, on account of which
the Government servant has been suspended from service and the
suspension will continue till a final order is passed on those charges. It was
held that, whenever a charge of misconduct is under enquiry by the
Government, be it informally or formally, the Government is competent to
suspend the Government servant and if the requirements of the case
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require to take action under Rule 3.26(d). Para 54 of Partap Singh's
case supra [AIR 1964 SC 72], reads as follows :
"54. This rule comes into play only after a prima facie case is made out
against a Government servant and not at the stage of a preliminary
investigation into accusations made against a Government servant. But it
does not follow that suspension is not permissible till this stage of making a
formal charge arrives. Rule 3.26(d) is of general application and therefore the
expression 'charge of misconduct' in this rule is not to be interpreted narrowly
as meaning 'the charges formally framed and communicated to the
government servant concerned' with the intimation that a format
departmental enquiry had been initiated against him on those charges. The
appellant's contention does not find any support, as urged, from the last
portion of this rule which reads "until the enquiry into the charge is concluded
and a final order is passed thereon". Of course, the enquiry would be into the
charges of misconduct on account of which the Government servant has been
suspended and the suspension will continue till a final order is passed on
those charges. The requirements of the last portion of this rule do not in any
way lead to the conclusion that the enquiry into the charges refers to a formal
departmental enquiry into the charges framed and communicated to the
Government servant in accordance with Rule 7 of the Punishment and Appeal
rules. We are of opinion that whenever any charge of misconduct is under
enquiry by the Government, be it informally or formally, the Government is
competent to suspend the Government servant and if the requirements of the
case require to take action under Section 3.26(d)."
49. So, it can be seen that it has been held by the Apex Court in the
aforesaid decision that the word "charge", appearing in Rule 3.26(d) supra,
is not confined merely to the scenario of issuance of formal memo of
charges/charge sheet, but would also be inclusive of cases where there are
prima facie materials with the employer which discloses serious
allegations of misconduct against the employee concerned.
(xxii) Kodanchery Service Co-operative Bank Ltd. v. Joshy
Varghese ("Kodanchery's case" for short) [2020 (4) KLT 129 (DB) =
2020 KHC 5394 = 2020 (3) KLJ 474]
50. In this case, the writ petitioner, who was a Branch Manager of
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the appellant-Society, was suspended from service on 16.06.2017. The
disciplinary sub-committee issued the memo of charges. The writ
petitioner submitted reply and on finding that the reply was unsatisfactory,
an Enquiry Officer was appointed by the disciplinary sub-committee. The
Enquiry Officer conducted enquiry and submitted enquiry report. On the
basis of the enquiry report, the disciplinary sub-committee imposed order
dated 12.09.2018 (Ext.P-8 therein), dismissing him from service. The
delinquent preferred statutory appeal, which was dismissed by the
appellate authority (Managing Committee), as per order dated 11.06.2019
(Ext.P-9 therein).
51. The learned Single Judge, as per judgment dated 21.11.2019 in
W.P(C) No.22228/2019 filed by the delinquent, has held that the
disciplinary proceedings are invalid and vitiated, as the power to issue
memo of charges is solely vested with the appointing authority (managing
committee), whereas in the said case, the memo of charges was issued by
the disciplinary sub-committee.
52. W.A No.11/2020 was preferred by the co-operative society
employer, for impugning the afore judgment of the Single Bench. The
Division Bench in the aforecited Kodanchery's case supra
[2020 (4) KLT 129 (DB)], has also held that, going by the scheme under
Rule 198, memo of charges could have been issued only by the appointing
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authority (Managing Committee). In that case, the memo of charges was
actually issued by the disciplinary sub-committee, constituted as per Rule
198(2A). That, the purpose of constituting a disciplinary sub-committee,
as per Rule 198(2A), was to enquire into the memo of charges already
framed by the appointing authority, etc. The main reasonings of the
Division Bench in Kodanchery's case supra, for arriving at the
abovesaid conclusion, are contained in para 5 of that decision [2020 (4)
KLT 129 (DB), p.p. 133 - 135], which reads as follows :
" 5. ........
Rule 198(2) of KCS Rules mandates that no kind of punishment shall be
awarded to an employee unless he has been informed in writing of the
grounds on which it is proposed to take action against and he has been
afforded an opportunity including a personal hearing to defend himself.
Going by Rule 198(2A) evidently, the power to constitute a disciplinary sub-
committee, consisting of not more than three of its members, of whom one
shall be designated as Chairman, vests with the 'committee of the society'.
Rule 198(2B) of the KCS Rules provides that the disciplinary committee so
constituted under Rule (2A) shall inquire into the charges against the
employee, either by themselves or by engaging an external agency. Before
proceeding further it is only appropriate to consider the meaning of the words
'charge' and 'chargesheet'. Charge means any specific act/acts,
omission/omissions alleged to have committed by an employee and
'chargesheet' is a memorandum of charges which carry allegations of acts or
omissions alleged to have been committed by him. In other words, it is one
which carries allegations of misconduct, misbehaviour, indiscipline,
negligence etc. The very objective of issuance of memo of charges is to inform
the delinquent employee what he is supposed to defend or what he is alleged to
have done. Thus, a conjoint reading of S.2(e) of the KCS Act and Rules 182(2)
and 198(2) of the KCS Rules the committee of the society concerned which is
the authority competent to appoint employees in a Co-operative Society, is
bound to inform the delinquent employee in writing, of the grounds on which
it is proposed to take action against him/her. At this juncture, it is only
worthwhile to refer to the decisions of the Hon'ble Apex Court in Union of
India v. K.V.Jankiraman (1991 (2) KLT OnLine 1024 (SC) = AIR 1991 SC
2010), Union of India & Ors. v. Anil Kumar Sarkar (2013 (2) KLT SN 29
(C.No.33) SC = (2013) 4 SCC 161) and in Government of Andhra Pradesh v.
Gandhi (2013 (1) KLT SN 121 (C.No.106) SC). In Jankiraman's case (supra)
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the Apex Court held that disciplinary proceedings can be said to be
commenced only when memorandum of charges is laid. Same view was taken
in Anil Kumar Sarkar's case (supra) wherein it was held that departmental
proceedings commence only when charge sheet is issued to the delinquent
employee. In Gandhi's case (supra) the Apex Court held that decision to
initiate disciplinary proceedings could not be subsequent to the issuance of
charge sheet. If we analyse the provision under Rule 198(2A) and (2B) of the
KCS Rules in the light of the decisions in Jankiraman's case, Anil Kumar
Sarkar's case and Gandhi's case (supra) and the indisputable and
unambiguous position from Rule 198(2B) that it only mandates that the
disciplinary sub-committee constituted by the Managing Committee of a
society concerned shall inquire into the charges against employee concerned
either by themselves or by engaging an external agency the scope of the
provision under Rule 198(2B) would be revealed. It would reveal that the
provision under Rule 198(2A) only mandates the committee of a society,
which is the appointing authority of its employees, to constitute a disciplinary
sub-committee and the provision under Rule 198(2B) empowers the
disciplinary sub-committee so constituted, statutorily, only to inquire into the
charges against the employee, either by themselves or by engaging an
external agency. The constitution of a disciplinary sub-committee pre-
supposes two things viz., a decision has been taken to initiate disciplinary
proceedings against an employee or employees in respect of a misconduct and
secondly, in pursuance of the said decision a memorandum of charges has
been framed and issued. We are holding thus, as in view of the decision in
Gandhi's case (supra) decision to initiate disciplinary proceedings cannot be
subsequent to issuance of charge sheet and in view of the decision in
Jankiraman's case (supra) and Anil Kumar Sarkar's case (supra) disciplinary
proceedings commence only when charge sheet is issued to the delinquent
employee. When the statute empowers under Rule 198(2B) of the KCS Rules
only to inquire into the charges against an employee, either by themselves or
by engaging an external agency if prior to the constitution of the disciplinary
sub-committee charges are not framed what would be there for the
disciplinary sub-committee to inquire into. In other words, when the very
purpose of constituting a disciplinary sub-committee is to inquire into charges
against the employee concerned and at the same time Rule 198(2B) does not
specifically empowers the said disciplinary sub-committee to frame definite
charges against an employee of a society, according to us, a different
construction of the said provision is not permissible in the light of the
aforesaid decisions. In this situation it pertinent to refer to the decisions of the
Hon'ble Apex Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd. &
Ors. reported in (2003 (1) KLT OnLine 1111 (SC) = (2003) 2 SCC 111) and in
Union of India & Ors. v. B.V.Gopinath reported in (2013 (4) KLT Suppl. 38
(SC) = (2014) 1 SCC 351). In Bhavnagar University's case (supra) the Apex
Court held that the charge memo drawn by an officer other than the specified
authority would be wholly without jurisdiction and hence, would vitiate the
whole disciplinary enquiry and that when a statutory authority is required to
do a thing in a particular manner, the same must be done in that manner or
not at all. Further, it was held therein that the State and other authorities
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while acting under the statute are only creature of statute and therefore, they
must act within the four corners thereof. In B.V.Gopinath's case (supra) the
Apex Court was dealing with disciplinary proceedings initiated under the
Central Civil Services (Classification, Control and Appeal) Rules 1965. Going
by the provisions thereunder to hold an enquiry against a Government
servant either under Rule 14 or 16 the disciplinary authority shall draw or
cause to draw the chargesheet. Ultimately the Apex Court held that charge
memo drawn by an officer other than the specified authority is wholly
without jurisdiction and therefore, it would vitiate the whole disciplinary
inquiry conducted against the employee concerned. In the case on hand,
admittedly, Ext.P1 memo of charges was issued and it was framed and issued
by the Chairman of the disciplinary sub-committee constituted for conducting
disciplinary proceedings against the first respondent herein."
(xxiii) Kochurani Jose v. Joint Registrar of Co-operative
Societies (General) ("Kochurani's case" for short) [2020 (6) KLT
Online 1035 = ILR 2021 (1) Ker. 589 = 2021 (4) KLT SN.25 (C.No.19)]
53. That, in a co-operative society, which is under the
management of an Administrator/Administrative Committee, in the
absence of an elected managing committee in power, there can be no
question of strict compliance of the requirements of Sub-Rules (2A) & (2B)
of Rule 198 of the KCS Rules. The main issue decided in this case was as to
the manner of taking disciplinary action against employees of co-operative
societies, at a time where the elected Managing Committee is not in office
and when it is under the management of a Administrator or Administrative
Committee, consequent to their appointment, after the super-session of the
elected Managing Committee of the society. It was also held that the
appointment of an Administrator/Administrative Committee is meant for
avoidance of the vacuum in the matter of administration of a society and
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thus, the Administrator, so appointed, has got a bounden duty to manage
the affairs of the society, during the said period, to protect the interest of
the society. It was thus, held that the Administrator/Administrative
Committee could take appropriate disciplinary action, if warranted, in
exercise of the powers and functions of the Committee or that of any officer
of the society (see para 10).
54. It was also held that, in view of the insertion of the Proviso to
Rule 198(5), as per the amended provisions, if a delinquent employee is
aggrieved by an order of the Administrator, imposing penalty, then the
appeal could be filed by the aggrieved party before the forthcoming elected
committee, without restriction of the three months' period of limitation for
filing appeal, prescribed in the operative portion of sub-rule (5) of Rule
198.
55. The aforesaid aspects, dealt with in Kochurani's case supra
[2020 (6) KLT Online 1035], may not be very relevant for our present
purpose. It has also been held by the Division Bench in para 12 of
Kochurani's case supra [2020 (6) KLT Online 1035], after placing
reliance on Kodanchery's case supra [2020 (4) KLT 129 (DB)], that if
the delinquent employee denies the charge and explains his conduct, in a
satisfactory manner, the employer may accept the explanation and drop
further proceedings and then, there is no need to conduct an enquiry.
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That, initiation of disciplinary proceedings would arise when the
delinquent employee refutes the charges in his explanation and the
employer considers the explanation unsatisfactory and arrives at the
decision to proceed with.
56. It was also held that the stage of constitution of a disciplinary
sub-committee, to inquire into the charges, as envisaged in sub-rule (2A) of
Rule 198, would arise only if the explanation of the delinquent, is found not
satisfactory and it is found that the disciplinary action is called for.
57. It was also thus, observed that viewing the sequence of
disciplinary action, as envisaged in Rule 198, it cannot be said that the
disciplinary sub-committee, which is supposed to inquire into the charges,
is the authority to frame the charges. Hence, it is only to be held that it is
for the Managing Committee of a society to initiate disciplinary
proceedings, by issuing memo of charges and the disciplinary sub-
committee, constituted by the Committee of the society, could only inquire
into such charges, either by itself or through an external agency, etc.
58. The relevant part of para 12 of Kochurani's case supra
[2020 (6) KLT Online 1035] reads as follows :
"..................... We have no hesitation to hold that the said contention is
nothing but a cavil and if accepted, would work out detrimental to the
interests of the society concerned. The contention that the disciplinary sub-
committee alone could initiate disciplinary proceedings cannot be accepted,
even in a case where elected committee is in power, in view of the provision
under sub-rule (2B) of Rule 198 of the KCS Rules as also the decision in
Kodanchery Service Co-operative Bank Ltd. v. Joshy Varghese (2020 (4)
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KLT 129). The said decision was rendered after referring to the provisions
under Rule 198 of KCS Rules. In the decision it was held that a committee of
a society has to initiate disciplinary action by issuing memo of charges and
the disciplinary sub-committee constituted by it could only enquire into such
charges by itself or through an external agency and then impose
appropriate penalty in case the delinquent is held as guilty. Going by sub-
rule (2A) extracted above the Committee of a society shall constitute 'a
disciplinary committee' and going by sub-rule (2B) the disciplinary sub-
committee so constituted shall inquire into the charges against the employee,
either by themselves or by engaging an external agency. If the contention of
the appellant is accepted it would suggest that firstly, a 'disciplinary sub-
committee' is to be constituted and then the task of framing the charge
should be left to the 'disciplinary sub-committee'. We are unable to accept the
said contention. The charge-sheet is an allegation of misconduct,
misbehaviour, indiscipline, lack of interest in work, negligence etc., issued
with the object to inform the delinquent employee what he is supposed or
alleged to have done. Normally, he will be asked thereunder to give his
explanation within a specified time. If the delinquent employee denies the
charge and explains his conduct in a satisfactory manner the employer may
accept the explanation and drop further proceedings. Then, there is no need
to conduct an enquiry. Initiation of disciplinary proceedings would arise
when the delinquent employee refutes the charges in his explanation and the
employer considers the explanation unsatisfactorily and arrives at the
decision to proceed with. In the decision in Union of India & Ors. v. Anil
Kumar Sarkar (2013 (2) KLT SN 29 (C.No.33) SC = (2013) 4 SCC 161) the
Hon'ble Apex Court held that departmental proceedings would commence
only when the charge sheet is issued to delinquent employee. That is why
when the explanation of the delinquent employee is found satisfactory
decision is being taken to drop disciplinary proceedings. In the decision in
Government of Andhra Pradesh v. Gandhi reported in (2013 (1) KLT SN 121
(C.No.106) SC) the Apex Court held that decision to initiate disciplinary
proceedings could not be subsequent to issuance of charge-sheet. Sub-rule
(2B) of Rule 198 of KCS Rules would go to show that the disciplinary sub-
committee constituted under sub-rule (2A) thereof, shall inquire into the
charges against the employee. We have already taken note of the fact that
the committee of a society could drop the disciplinary proceedings. In such
circumstances, one can only say that the stage of constitution of a
'disciplinary sub-committee' to enquire into the charges need be constituted
by the committee of a society invoking the power under sub-rule (2A) of Rule
198 only if the explanation of the delinquent employee is found unnecessary
and it is found that disciplinary action is called for. Viewing the sequence of
disciplinary action in the aforesaid manner how can it be said that the
'disciplinary sub-committee' which is supposed to inquire into the charges is
the authority to frame the charges. Taking into account the said aspects it
can only be held that it is for the committee of a society to initiate
disciplinary proceedings by issuing a memo of charges and the 'disciplinary
sub-committee' constituted by the committee of the society could only inquire
into such charges either by itself or through an external agency."
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Reference Issues :
59. Now, we would proceed to deal with the determination of the
issues raised in this reference. Going by the unamended provisions of Rule
198, as it stood prior to the amendment, as per S.R.O No.1005/2010,
notified in the Gazette on 02.11.2010, the following aspects would be
discernible.
60. Sub-rule (3) of Rule 198 gives powers to the designated
authorities, mentioned in the tabular column thereunder, to impose
various penalties. President/Chairman is the authority competent to
impose penalties (a) to (c) [censure, fine, withholding of increments] on
officials of the rank of Secretary/Manager or other chief executive officer
and all employees, holding posts higher than that of
Sr.Clerk/Sr.Assistant/1st grade Assistant/equivalent other employees with
same or identical scale of pay. Whereas, in the case of such employees, the
sub-committee/executive committee is competent to impose penalties (d)
to (h) [withholding of promotion, recovery from pay, reduction to lower
rank, compulsory retirement, dismissal] on such officials. In the case of all
other employees, the competent authority to impose penalties (a) to (c), is
the Secretary/ Manager/other Chief Executive Officers and the President is
the authority to impose penalties, as per penalties (d) to (h) on such
employees. A statutory appellate remedy is conferred on the aggrieved
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employees, as per Rule 198 (4). The tabular column, appended thereunder,
deals with the designated appellate authority, to deal with the appeals of
the various categories of employees mentioned therein. It appears that, in
many cases, the Managing Committee [who is the appointing authority, as
per Rule 182 (2)], used to impose the penalties, including the aforesaid
major penalties. Going by the provisions contained in Rule 198(4), the
Managing Committee/Board of Management, etc., happens to be the
appellate authority as well. It is in this context that the Division Bench of
this Court in Pudupariyaram's case supra [1996 (1) KLT 100 (DB)],
has held, inter alia, in paras 9 & 10 thereof, that the said practice is illegal
and ultra vires, inasmuch as a statutorily vested and accrued right of
appeal will be obliterated and nullified, inasmuch as the appeal will have to
be dealt with by the same authority (Managing Committee), which has
imposed the penalty. Hence, the Division Bench ordered that, failure to
constitute a sub-committee, as envisaged in Rule 198(3), to take the
decision regarding penalties, is contrary to the provisions of the Rules, etc.
So, in other words, the penalties are to be imposed by the designated
authority concerned, which, in the case of penalties (d) to (h), for the first
category of employees, is the sub-committee, etc. From the submissions of
the respondent-State authorities, it is discernible that it is strictly to
enforce these norms in Rule 198(3) and also not to obliterate the appellate
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remedy under Rule 198(4), that the rule making authority has brought in
the amendments to insert sub-rules (2A) & (2B) of Rule 198, as per S.R.O
No.1005/2010, published in Kerala Gazette, Extraordinary, Vol. No.55,
No.2427 dated 02.11.2010.
61. A comparative reading of the provisions of Rule 198, as it
stood prior to 02.11.2010 and as it stood on or after 02.11.2010, would
make it clear that sub-rules (2A) & (2B) have been inserted only for clarity
and focus, for enforcing the pre-existing norms, particularly those
contained in sub-rules (3) & (4) thereof, so that, penalties are to be
imposed only by the designated authority concerned, so as to ensure that
the appellate right under sub-rule (4) is made meaningful, and so as not to
obliterate or nullify the appellate remedy. True that, the wordings in sub-
rule (2A) & (2B), in regard to the sub-committee, is the disciplinary sub-
committee, whereas the word "sub-committee", as it stood prior to the
amendment, has been retained in sub-rule (3). But, a proper reading of the
abovesaid Rules, in the light of the legislative intention for the aforesaid
amendment and taking into account the legal principles laid down by the
Division Bench of this Court in Pudupariyaram's case supra [1996 (1)
KLT 100 (DB)], it is only to be held that the disciplinary sub-committee,
envisaged in sub-rules (2A) & (2B), is the same as the sub-committee
envisaged in sub-rule (3) thereof. So, in other words, it is very clear that
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the statutory scheme, as it stood prior to the amendment, is retained even
after the amendment. What has been effectuated by the said amendment,
as per S.R.O No.1005/2010, published in the Gazette dated 02.11.2010, is
only to ensure the proper and lawful enforcement of the pre-existing
statutory scheme contained in sub-rules (3) & (4). So, we are of the view
that sub-rules (2A) & (2B), inserted as per the amendment, have been
made only to provide fine-tuned procedural norms for ensuring that the
sub-committee, envisaged in sub-rule (3) is constituted by the co-operative
societies concerned. The Division Bench, in para 13 of
Pudupariyaram's case supra [1996 (1) KLT 100 (DB)], had declared
the legal position that the failure of the co-operative societies, to constitute
a sub-committee, envisaged in sub-rule (3), to take decision on the issue of
penalty, is contrary to the statutory rules. Prior to the amendment, many
of the co-operative societies were under the impression that there is no
necessity to constitute such a sub-committee, even though it is mentioned
in sub-rule (3) and many a time, the penalties, which could have been
imposed only by the designated authority mentioned in sub-rule (3), were
imposed by the Managing Committee/Board of Management, which is the
appellate authority. This resulted in the obliteration of the appellate
remedy, provided as per sub-rule (4), inasmuch as the penalty authority
and the appellant authority happened to be same authority.
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62. Sub-rule (2A) stipulates that the committee of a co-operative
society is under the mandatory duty to constitute a disciplinary sub-
committee for the abovesaid purpose, which is to consist of not more than
three of its members, of whom one shall be designated as Chairman, but
the President of the Committee of the society, shall not be a member of the
disciplinary sub-committee. Further, sub-rule (2B) has also provided that
the disciplinary sub-committee, so constituted, shall inquire into the
charges against the employee, either by themselves or by engaging an
external agency. So, the combined effect of sub-rule (2B) and sub-rule (3)
is that, where the designated penalty authority is the disciplinary sub-
committee, then the said sub-committee is empowered, not only to inquire
into the charges either by themselves or by engaging an external agency,
but thereafter, if penalty is found to be imposed, then the said disciplinary
sub-committee is also authorised to impose the requisite penalties, as
envisaged in sub-rule (3). So, the disciplinary sub-committee, envisaged in
terms of sub-rules (2A), (2B) & (3), is competent to inquire into the
charges, either by themselves or by engaging an external agency, and is
also the penalty imposing authority in the category of cases mentioned in
the tabular column appended under sub-rule (3). So, in such cases, the
disciplinary sub-committee is not only the inquiry authority but also the
penalty authority. Further, as mentioned earlier, going by the special
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structure and scheme of the statutory provisions contained in Rule 198, the
Managing Committee/Board of Management, though the appointing
authority, is prohibited from adorning the role of a penalty authority, as it
is the appellate committee. Therefore, the jurisdictional competence to
impose penalties is only on the designated authorities mentioned in sub-
rule (3), including the disciplinary sub-committee, subject to the categories
of cases mentioned in sub-rule (3). Whereas, the Managing Committee
(appointing authority), being the appellate authority, is prohibited from
adorning the role of the original penalty authority. In this regard, it is also
pertinent to note that the scheme for Government service, as enshrined in
Article 311 of the Constitution of India, is that the major penalties of
dismissal, removal, etc., is that, no person employed in civil capacities
under the Union of the State, shall be dismissed or removed by an
authority subordinate to the appointing authority.
63. Whereas, going by the statutory scheme and structure of Rule
198 and its various sub-rules, the Managing Committee, which is the
appointing authority, cannot impose the penalties and it can only adorn
the role of the appellate body and the power to impose the penalties is to be
exercised only by the designated penalty authorities mentioned in sub-rule
(3). Needless to say, in cases where the disciplinary sub-committee is the
designated penalty authority, as per sub-rule (3), such members of the
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disciplinary sub-committee, who would otherwise be a part of the
Managing Committee, may not partake as members of the appellate
authority, when it deals with appeals from such penalty orders under Rule
198(4).
64. We are fully in respectful concurrence with the considered
views of the Division bench in para 5 of Kodanchery's case supra [2020
(4) KLT 129], that the word "charge" means any specific act/acts,
omission/omissions alleged to have been committed by an employee and
that whereas, the word "charge sheet", is the memorandum of charges,
which carry the allegations of acts or omissions, alleged to have been
committed by the delinquent. In other words, as observed in
Kodanchery's case supra [2020 (4) KLT 129], the word "charge sheet"
is one which carries the allegations of misconduct, misbehaviour,
indiscipline, negligence, etc., which formulates in precise terms, regarding
the allegations of misconduct, misbehaviour, indiscipline, negligence, etc.
So in other words, the words "charge" and "charge sheet/memo of
charges", cannot have identical connotations and meaning. The word
"charge" is having wider scope and ambit. Whereas, the word "memo of
charges/charge sheet", is much more narrower and is mainly used in the
context of disciplinary proceedings of employees. In other words, the word
"charge" can be taken as a genus. Whereas, the word "charge sheet/memo
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of charges" can be taken as a species thereof. After dealing with the
distinction in the meaning of the words "charge" and "memo of charges",
the Division Bench, in Kodanchery's case supra [2020 (4) KLT 129],
has thereafter straightaway proceeded on the premise, as if the general
proposition of law is that the appointing authority alone can issue and
frame memo of charges. In that regard, reliance is also placed on the
aforecited decisions of the Apex Court in K.V.Jankiraman's case supra
[(1991) 4 SCC 109] & Anil Kumar Sarkar's case supra [(2013) 4 SCC
161], etc. Those decisions have not laid down any general proposition of
law, that in the context of employer-employee relationship, the general law
is that the power to issue and frame memo of charges against a delinquent
employee is vested solely with the appointing authority. Whereas, the
aforecited decisions in K.V.Jankiraman's case supra [(1991) 4 SCC
109] & Anil Kumar Sarkar's case supra [(2013) 4 SCC 161], have dealt
with the issue, as to when a disciplinary proceedings can be said to have
commenced or can be said to be pending and it was held that the
disciplinary proceedings can be said to be pending or is said to have
commenced, only when the memo of charges is issued. Those decisions are
not, in any manner, authority for the general proposition that the power to
issue and frame memo of charges is solely and exclusively vested in the
appointing authority.
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65. Whereas, the decisions of the Apex Court, in cases as in
Shardul Singh's case supra [(1970) 1 SCC 108 (paras 6 & 10)],
P.V.Srinivasa Sastry's case supra [(1993) 1 SCC 419 (paras 4, 5 & 6)],
Radha Krishna Moorthy's case supra [(1995) 1 SCC 332 (para 8)],
Thavasiappan's case supra [(1996) 2 SCC 145 (para 8)],
F.X.Fernando's case supra [(1994) 2 SCC 746 (para 16)],
Jayasurian's case supra [(1997) 6 SCC 75 (para 7)], Chandrapal
Singh's case supra [(2003) 4 SCC 670 (paras 7 & 8)], would clearly show
that the Apex Court has taken the view that, in the absence of any specific
prescriptions in the rules and norms, as to who can issue and frame the
memo of charges, even an authority subordinate to the disciplinary
authority, competent to issue the major penalty, etc., can issue the memo
of charges. It has also been held by the Apex Court, in cases as in
B.V.Gopinath's case supra [(2014) 1 SCC 351], Pramod Kumar's
case supra [(2018) 17 SCC 677], etc., that where the Rules specifically
provides that the memo of charges/charge sheet, is to be approved by a
designated authority, then the disciplinary action will be vitiated, in case
the said mandatory procedure of approval of the charge sheet is not
obtained from such designated authority concerned. It has also been held
that any superior authority, i.e., the authority superior to the delinquent
and who is a controlling authority vested with some authority, can issue
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memo of charges, so as to set in motion the disciplinary action. Where,
provisions in Article 311 of the Constitution of India come into play, then
no such person employed in civil capacities can be imposed with
punishment of major penalties of dismissal or removal, etc., by an
authority, who is subordinate to the appointing authority. In the instant
case, the protection in Article 311 is not available to the employees of the
co-operative societies. There are no provisions, either in the Kerala Co-
operative Societies Act or in the Kerala Co-operative Societies Rules, which
prescribe, with specific clarity, as to who can frame and issue the memo of
charges. Hence, the approach made by the Division Bench in
Kodanchery's case supra [2020 (4) KLT 129], as if the appointing
authority (Managing Committee) of the co-operative society, is the sole and
exclusive authority to frame and issue memo of charges, does not reflect
the correct legal position.
66. A reading of Rule 198 and its various sub-rules would clearly
show that the rule making authority has not explicitly stated anywhere in
those rules, as to who can issue the memo of charges to a delinquent
employee and this is clear from a reading of Rule 198, especially Rule
198(2) as well as Rule 198 (2B). In that regard, it is relevant to note that the
expression, "appointing authority" finds a place in Rule 198 only in sub
rule (6) thereof, which deals with suspension of employees and in no other
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sub rules, especially in those provisions which deal with disciplinary
proceedings. That is a clear indication that the rule making authority has
not intended that the appointing authority shall be the sole and exclusive
authority to frame and issue memo of charges to the delinquents.
67. Further, the Division Bench, in para 5 of Kodanchery's
case supra [2020 (4) KLT 129], has also proceeded on the premise, as if
the disciplinary sub-committee is not a standing sub-committee and is to
be constituted on a case to case basis, when actual cases of misconduct
arise. In other words, the approach made in Kodanchery's case supra
[2020 (4) KLT 129] is that the disciplinary sub-committee, envisaged in
terms of sub-rule (2A), is to be constituted only as and when individual
cases of misconduct are disclosed and that it can never be a standing sub-
committee.
68. Sub-rule (2A) reads as follows :
"The committee of a society shall constitute a disciplinary sub-
committee consisting of not more than three of its members, of whom one
shall be designated as Chairman, but the President of the committee of the
society shall not be a member in the disciplinary sub-committee"
69. The wordings of the various sub-rules in Rule 198, including
sub-rule (2A) thereof, does not in any manner necessarily lead to the
conclusion, as if the disciplinary sub-committee is to be constituted only on
a case to case basis and as and when individual cases of misconduct or
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delinquencies are disclosed. On the other hand, a reading of the decision
of the Division Bench in Pudupariyaram's case supra [1996 (1) KLT
100 (DB)], more particularly paras 9, 10 & 13, would make it clear that the
Division Bench has unequivocally declared that failure to constitute a sub-
committee to take decision on issues of penalty is in plain violation of the
statutory mandate contained in the said Rule.
70. The learned Addl.Advocate General, appearing for the
respondent - state authorities, has also submitted that such an
interpretation, as if the disciplinary sub-committee is to be constituted,
only on a case to case basis, etc., is not correct and that to effectuate the
statutory mandate, it may be only in the fitness of things that immediately
after an elected managing committee assumes office, then they may also
constitute a disciplinary sub-committee, in compliance with sub-rule (2A),
so that it functions as a standing body, which could ordinarily be co-
terminus with the term of the elected committee. It has also been
submitted, on behalf of the respondent-State, that it does not mean that a
disciplinary sub-committee once constituted, cannot be re-constituted
during the term of the elected Managing Committee and that, for
appropriate and good reasons, the elected committee, if it thinks fit and
proper, can change the composition of the disciplinary sub-committee and
that, ordinarily, it is expected to function as a standing sub-committee, so
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that there is an effective and efficient body to deal with cases of
delinquencies and misconducts. We are in full agreement with the
abovesaid submissions made on behalf of the respondent-State. Even
dehors the abovesaid submission, we are of the view that the legislative
mandate will be fully and properly effectuated, if, after assumption of
power by the elected managing committee, they constitute a disciplinary
sub-committee, in terms of sub-rule (2A), immediately after they assume
office, so that there is a standing body, which could effectively and
efficiently deal with cases of allegations of misconduct, etc. Of course, the
elected committee would be at liberty to change the composition of the
sub-committee, if it thinks fit and proper and ordinarily, the disciplinary
sub-committee could be conceived as a standing body, which would
function co-terminus with the term of the elected committee. But, that
does not mean that if the disciplinary sub-committee has been constituted
only on a case to case basis, that by itself would invalidate the decision
making process of that body in disciplinary proceedings. All what we are
holding is that the premise relied on by the Division Bench in
Kodanchery's case supra [2020 (4) KLT 129] as well as in para 12 of
Kochurani's case supra [2020 (6) KLT Online 1035], as if the
disciplinary sub-committee is to be constituted only on a case to case basis,
as if it can never be a standing body, does not reflect the correct legal
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perspective. One of the main reasoning adopted by the Division Bench
Kodanchery's case supra [2020 (4) KLT 129], to hold that the
disciplinary sub-committee can never be said to have the power to frame
charges, is that the said body will come into being, only after a serious case
of misconduct is revealed and the managing committee thereafter initiates
the disciplinary action, etc.
71. Very crucially, it has to be borne in mind that there is
substantial difference in the scope and ambit of the expressions "charge"
and "memo of charge". Rule 198 (2B) uses the expression "charges". Rule
198 (6), which deals with suspension, also uses the expression "charges".
This Court in the decision in Coir Mats Society's case supra [1998 (1)
KLT 570, para 4], has clearly held that the word "charges" appearing in
Rule 198 (6), is not confined only to memo of charges or charge sheet and
that, if there are some materials with the authority concerned, which
prima facie discloses allegations of misconduct and irregularities, etc.,
then the power under Rule 198 (6), to suspend an employee from service,
would be invoked, even if, at that time, memo of charges has not been
framed and issued to the delinquent employee. Similar view has also been
rendered by this Court, in para 5 of the decision in Madhavan Nair's
case supra [1963 KLT 480 = 1963 KHC 129], while dealing with the scope
and ambit of Rule 16 of the rules framed under the Hindu Religious
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Endowments Act, 1926, which empowered suspension from service,
pending enquiry into the grave charges. Therein, this Court held that the
word "charges", appearing in Rule 16 supra, can only mean accusations
and cannot be confined only to scenario of issuance of formal charge
memo, etc.
72. In that regard, it has to be borne in mind that, whenever the
rule making authority has intended that the proceedings mentioned in the
Rule is one in relation to the stage after the issuance of the memo of
charges, then it has provided clear and unambiguous guidance in that
regard. For instance, in Rule 198(7) of the KCS Rules, it is stipulated that
no retirement benefits need be sanctioned to an employee or to a retired
employee, in the event of any pendency of disciplinary proceedings against
the said employee, pursuant to any charge of grave misconduct, irregularity
or corruption, etc. Rule 198 (7) reads as follows:-
"Rule 198.(7) In the event of any pendancy of disciplinary proceedings
against any employee of a co-operative society or any co-operative
institution pursuant to any charge of grave misconduct, irregularity,
corruption or other charge involving moral turpitude, no retirement
benefits shall be sanctioned to such employee or retired employee and in
case of sanctioning of any retirement benefits to any such employee or
retired employee, the name and designation of the sanctioning authority
together with the reason for such sanctioning shall be recorded by the
sanctioning authority by himself and such authority shall be held
responsible for any loss to the society owing to such sanctioning of
retirement benefits if found that such sanctioning was unwarranted."
73. Sub-Rule 7 of Rule 198 uses both the expressions "pendency of
disciplinary proceedings" as well as "charge of grave misconduct," etc.
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The power to withhold retirement benefits, as envisaged in that sub-Rule,
can be invoked only in the event of any pendency of any disciplinary
proceedings against the employee, in pursuance of any charge of grave
misconduct, etc. So, it can be seen that, in that scenario, the said sub-Rule
(7) has clearly mandated that the jurisdictional facts required are not
merely charge of misconduct but also pendency of disciplinary
proceedings. It is well settled that disciplinary proceedings can be said to
be commenced only on issuance of the memo of charges. So, to invoke the
said sub-Rule, the Rule making authority has made it clear that, retirement
benefits can be withheld, in the case of an employee or a retired employee,
only in the case of pendency of any disciplinary proceedings, in pursuance
of any charge of misconduct. In other words, there should not only be
charges of grave misconduct, i.e., allegations of grave misconduct, in the
generic sense but also a memo of charges should have been issued, on or
before the date of retirement of the employee concerned. Only then, the
disciplinary proceedings could have been said to be pending, as understood
in that Rules. This aspect of the matter has been dealt with in detail in
decisions of the Division Bench of this Court in Mohanan Nair v.
Omallur Service Co-operative Bank Ltd. [2022 (3) KLT Online 1055
= ILR 2022 (2) Ker. 1123] & Yadava v. Kerala State Co-operative
Bank Ltd. [2022 (5) KLT 630 (DB)]. In contradiction to the expressions
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used in Sub-Rule (7), Sub-Rule (6) and Sub-Rule (2B) uses only the
expression "charges" and expressions like 'pendency of disciplinary
proceedings' or 'issuance of memo of charges/charge sheet' are
conspicuously absent. In other words, expressions like 'pendency of
disciplinary proceedings' are conspicuously absent in both Sub-Rule (2B)
and Sub-Rule (6) of Rule 198.
74. Further, Sri.P.N.Mohanan, learned counsel appearing for the
delinquent employees in some of the cases has also apprised us that the
Malayalam version of Rule 198(2B), as follows:-
"അങന ര പ കര കന ട അചടക ഉപസമ ത ജ വ ക
രന ത നര ഉള ക റ രര പണങൾ ഒന ക ൽ സ!യരമരയ അന#
ങ ൽ ഒര ബ ഹ' ഏജൻസ നയരയ ഏർന ട ത അര !ഷ കണ-."
75. Rule 198 (2B) as in the Statute Book provides as follows:-
"Rule 198 (2B) The disciplinary sub-committee so constituted shall
inquire into the charges against the employee either by themselves or by
engaging an external agency."
76. We are told that the Government/Rule making authority has
not published any official Malayalam translated version of the KCS Rules.
77. Sri.P.N. Mohanan, learned Advocate, is a renowned Editor and
author of published books relating to the Kerala Co-operative Societies Act
and the Kerala Co-operative Societies Rules. Hence, we have carefully
perused through the Malayalam version, as given by him. Even going by
the said version, it can be seen that, the expression used is
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"ക റ രര പണങൾ", i.e., allegations of misconduct.
78. Therefore, both the said Malayalam version as well as the
original English version, as in the Statute Book, uses the general expression
"charges" and not "memo of charges", which means charges of misconduct
or allegations of misconduct. According to us, that would be in the realm
of the genus of allegations of misconduct and not merely a species thereof,
in relation to memo of charges or charge sheet, as understood in the
perspective of disciplinary proceedings.
79. Further, it has been held by the Apex Court in decisions as in
para 9 of H.C.Khurana's case supra [(1993) 3 SCC 196] and
para 18 of Gandhi's case supra [(2013) 5 SCC 111] that, framing of charge
sheet is the first step to be taken for holding the enquiry into the
allegations on the decisions taken to initiate the disciplinary proceedings.
True that, the Apex Court has also held that there was a distinction
between the stages of "initiation of disciplinary proceedings" and
"commencement of disciplinary proceedings", as can be seen from a
reading of the decisions as in B.V.Gopinath's case supra [(2014) 1 SCC
351] and Pramod Kumar's case supra [(2018) 17 SCC 677]. The Apex
Court has also held in H.C.Khurana's case supra [(1993) 3 SCC 196],
that the issuance of charge sheet/memo of charges on the employees
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follows the decision to initiate the disciplinary proceedings and it does not
precede or coincide with that decision. However, the crucial aspect of the
matter is that, as held by the Apex Court in H.C.Khurana's case supra
[(1993) 3 SCC 196], Gandhi's case supra [(2013) 5 SCC 111], etc., that
"framing of the charge sheet, is the first step taken for holding the enquiry
into the allegations on the decision taken to initiate disciplinary
proceedings." Ordinarily, when there are materials which, prima facie,
show cases of misconduct, irregularities, negligence, etc., on the part of
employees of co-operative societies, the managing committee could refer
the matter to the disciplinary sub-committee. Once the disciplinary sub-
committee is convinced that there are materials, which discloses cases of
misconduct, delinquency, etc., then those materials, disclosing the
allegations, could be considered as "charges", as envisaged in Rule
198(2B), especially when understood in the context of the abovesaid legal
position settled in various case laws cited hereinabove.
80. We have already held that there is a substantial distinction in
the scope and ambit of the expressions "charges" vis-a-vis "memo of
charges/charge sheet" and that the former could be taken as a genus and
the latter could be taken as a species of the former. When the matters reach
that stage, then the disciplinary sub-committee is confronted with the
"charges", as understood in the general sense and if it is convinced that the
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matter should be proceeded further, then framing of the charge sheet is the
first step to be taken for holding the enquiry into the allegations. It has also
to be borne in mind that the appointing authority (Managing Committee),
is prohibited from adorning the role of a penalty imposing authority, for
the abovesaid reasons. Hence, in the light of these aspects, to trigger the
first step, the disciplinary sub-committee will also have the power to issue
the formal memo of charges/charge sheet to the delinquent employee,
taking note of the overall charges disclosed from the materials dealing with
allegations of misconduct, delinquency, etc.
81. Further, it has to be borne in mind that the memo of
charges/charge sheet issued to a delinquent, is only for the purpose of
advancing the elementary or rudimentary principles of natural justice and
fairness. The delinquent should be specifically and precisely told and
apprised, as to what are the specific acts of misconduct or allegations that
he has to defend in the disciplinary enquiry proceedings. So, in the light of
these aspects, we are of the considered view that the disciplinary sub-
committee will also have the power to frame and issue the memo of charges
to the delinquent employee and then proceed with the other steps in the
disciplinary enquiry proceedings, whereby they may either conduct the
enquiry themselves or can entrust that responsibility to an enquiry officer.
82. The matter can be viewed from another perspective as well.
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Sri.P.N.Mohanan, learned counsel appearing for the employees concerned
in some of the aforesaid cases placed reliance on the provisions contained
in Rule 198(2) and has argued, by citing the decision of the Apex Court in
Surath Chandra Chakrabarty's case supra [(1970) 3 SCC 548], that,
the formal memo of charges/charge sheet can be issued only by the
Managing Committee (appointing authority) and that the view taken by the
Division Bench in Kodanchery's case supra [2020 (4) KLT 129] that the
managing committee/appointing authority is the sole authority to issue
memo of charges, is fully correct. It is true that there is a broad similarity
between the provisions contained in Rule 55 of the then C.C.A Rules,
considered by the Apex Court in para 5 of Surath Chandra
Chakrabarty's case supra [(1970) 3 SCC 548], in comparison to Rule
198(2) of the KCS Rules. It is stated in para 5 of Surath Chandra
Chakrabarty's case supra [(1970) 3 SCC 548] that the abovesaid Rule
55 considered therein, provided, inter alia, that, "without prejudice to the
provisions of the Public Servants Enquiry Act, no order of dismissal,
removal or reduction, shall be passed on a member of the service, unless he
is informed in writing of the grounds on which it is proposed to take action
and has been afforded an adequate opportunity of defending himself". The
grounds on which it is proposed to take action, is to be reduced to the form
of definite charge or charges, which have to be communicated to the person
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charged together with the statement of allegations, on which each charge is
based and any other circumstances, which it is proposed to be taken into
consideration in passing the orders, are also to be stated, etc. Whereas,
Rule 198(2) of the KCS Rules,provides that "no kind of punishment shall
be awarded to an employee unless he has been informed in writing, on
the grounds on which it is proposed to take action and he has been
afforded an opportunity, including personal hearing to defend himself.
Every order awarding punishment shall be communicated to the
employee concerned in writing, stating the grounds on which the
punishment has been awarded." Even though the abovesaid two different
rules are not identical, there is a broad similarity in the wordings of the
initial part of Rule 55, cited in Surath Chandra Chakrabarty's case
supra [(1970) 3 SCC 548], vis-a-vis the first part of Rule 198(2) of the KCS
Rules. The Apex Court in Surath Chandra Chakrabarty's case supra
[(1970) 3 SCC 548], held that in view of the abovesaid provisions contained
in Rule 55 of those Rules, the said rule embodies a principle, which is one
of the basic contents of reasonable or adequate opportunity for defending
oneself and that if the delinquent is not told clearly and definitely, as to
what are the allegations on which the charges preferred against him are
founded, he cannot possibly, by projecting his own imagination, discover
all the facts and circumstances, that may be in the contemplation of the
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authorities to be established against him. In other words, the Apex Court
held that the abovesaid provisions of Rule 55 considered therein, will lead
to the position that the memo of charges should be precise and fully clear,
so that the delinquent can know the material particulars on the basis of
which he has to defend his case and also to know, as to what exactly are the
precise allegations that he has to meet, in the course of the disciplinary
enquiry proceedings.
83. The admonition flowing out from Rule 55 of the aforesaid rules
as well as Rule 198(2) of the KCS Rules, is directed against the authority,
who is competent to impose the penalty concerned. In our case, the
appointing authority (managing committee) is prohibited from imposing
any penalty, for the abovesaid reasons, in view of the statutory scheme and
structure of Rule 198(2) of the KCS Rules. Therefore, the admonition in
Rule 198(2), to be understood is that the authority concerned could issue
and frame precise and unambiguous memo of charges, then the said
admonition or obligation is on the authority competent to impose the
penalty concerned. Therefore, the said admonition, flowing out from Rule
198(2) of the KCS Rules, cannot be said to be addressed to the managing
committee (appointing authority), in the case of co-operative societies
employees, covered by Rule 198, as the said appointing authority is
prohibited from imposing any of the penalties, as it has to fulfill the role of
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an effective and fair appellate authority. So, the abovesaid plea taken on
behalf of the employers in these cases, is not tenable. On the other hand,
on viewing the admonition in Rule 198(2) of the KCS Rules, in the light of
the dictum laid down in para 5 of the Apex Court decision in Surath
Chandra Chakrabarty's case supra [(1970) 3 SCC 548], it can be
easily seen that the authority competent to impose the penalty is also
having the power to issue the memo of charges. In other words, even the
disciplinary sub-committee is also having the power to frame and issue the
memo of charges. It is also to be borne in mind that the consistent view,
rendered by the Apex Court in the aforecited decisions, as in
P.V.Srinivasa Sastry's case supra [(1993) 1 SCC 419], is that as per the
general law, so long as the rules are silent, as to who can issue the memo of
charges, then even an authority subordinate to the disciplinary
authority/appointing authority can issue the memo of charges to the
delinquent employee. The decisions of the Apex Court, in cases as in
B.V.Gopinath's case supra [(2014) 1 SCC 351], Pramod Kumar's case
supra [(2018) 17 SCC 677] deals with the exceptional scenario, whereby if
the Rules explicitly and clearly mandate that the memo of charges/charge
sheet, is to be approved by a designated authority, then issuance of a
charge sheet, without such approval of the designated authority, would
invalidate the disciplinary action. In the present case, Rule 198 does not
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provide any explicit provision, as to which are the authorities who can
frame and issue the memo of charges to the delinquent employee.
Moreover, the general law is also to the effect that if the rules are silent,
then any superior authority, that is an authority superior to the delinquent,
but who can be seen as a controlling authority vested with some authority,
can also issue the memo of charges. Moreover, it can be seen from a
reading of the various provisions in the CCS (CCA) Rules, more particularly
Rule (2)(t), Rule (12), Rule (14) etc., thereof and the provisions of the KCS
(CCA) Rules, more particularly, Rule 13 & Rule 15 thereof, that, even in
those Rules, the disciplinary authorities competent to impose the penalites
concerned, need not, necessarily be the appointing authority, but in those
Rules, care has been made to ensure that, since Government service
personnel are entitled for the protection of 311, the disciplinary authorities,
competent to impose major penalty, like dismissal/removal, etc., are not
authorities, who are subordinate to the appointing authority. So also, Rule
14(3) of the CCS (CCA) Rules empowers such a disciplinary authority,
which need not be the appointing authority, to frame and issue memo of
charges to the delinquents. Rule 15(2) of the KCS (CCA) Rules empowers
the disciplinary authority, which is not an appointing authority, to issue
memo of charges to the delinquents. So, it can be seen that, even in Rules
framed to regulate the conditions of services of Government personnel,
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who are even entitled for protection of Article 311, the disciplinary
authority could be different from the appointing authority and such
disciplinary authority, which has been empowered to issue memo of
charges, etc. So, it is not as if the general law is that the appointing
authority alone has the jurisdictional competence to issue memo of
charges. These aspects are discernible not only from the case laws
mentioned herein above, but also by virtue of the afore illustrative
provisions in the aforesaid CCA Rules. Whether the disciplinary sub-
committee has the jurisdictional competence to even initiate disciplinary
proceedings, is a matter that we are not examining now. Ordinarily, it is
expected that when a serious case of delinquency is made out, the
Managing Committee may refer the matter, with the requisite materials, to
the disciplinary sub-committee for its consideration. Even in a case where
the matter is referred by the Managing Committee to the disciplinary Sub-
committee without adequate materials, the disciplinary sub-committee will
have the incidental and ancillary powers to collect some materials, to form
an opinion, to enable it to decide as to whether the matter should be
seriously proceeded as to whether memo of charges is to be issued or not.
In other words, the issue as to whether the Disciplinary sub-committee also
has the power to initiate disciplinary proceedings, apart from commencing
disciplinary proceedings, is not very relevant to the present reference issue
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and hence, we are not inclined to deal with the same.
84. In the light of all the above aspects, it is to be held that the
view taken by the Division Bench in Kodanchery's case supra [2020 (4)
KLT 129], as if the appointing authority (Managing Committee) is the sole
and exclusive authority for framing and issuing memo of charges to the
delinquent employees, covered by Rule 198 of the KCS Rules, does not
reflect the correct legal position.
85. Other incidental issues:
(A)(i) Sri.A.L.Navaneeth Krishnan, learned counsel appearing for the
co-operative society employees in some of these cases, has submitted that
Rule 198(2) will operate only at the stage of submission of the enquiry
report and it deals with the necessity for giving reasonable opportunity to
the delinquent, after the submission of the enquiry report, in cases where
disciplinary and enquiry authorities are two different functionaries, as
envisaged in the Constitution Bench decision of the Apex Court in
Managing Director (MD), Electronic Corporation of India Ltd.
(ECIL), Hyderabad & Ors. v. B. Karunakar & Ors. [(1993) 4 SCC
727]. He would further contend that Rule 198(2) can never operate at the
stage of issuance of memo of charges, etc.
(ii) We need not get into the nitty-gritty of those aspects. This we
say so, as, even if, we proceed on the premise that the first part of Rule
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198(2) is operating in the stage prior to and at the time of issuance of the
memo of charge, we have already held that the disciplinary sub committee
will also have the jurisdiction to issue the memo of charges, for the reasons
stated supra. Further, Rule 198(2) can operate even not only at the stage of
issuance of memo of charges but also at the stage after the submission of
the enquiry report and just before the stage of the decision as to whether
penalty is to be imposed and if so, what shall be the penalty, etc.
(iii) It is by now well established, by the decision of the Constitution
Bench of the Apex Court in B. Karunakar's case supra [(1993) 4 SCC
727], that where the enquiry authority and the disciplinary authority are
two distinct functionaries, then, even if the delinquent has been afforded
reasonable opportunity by the enquiry authority, but still after the enquiry
report, since the decision as to whether the delinquent is found to be guilty
or not, on the basis of the enquiry report, is to be taken by the disciplinary
authority, the said authority will also have the obligation to grant
reasonable opportunity to the delinquent on the issues of guilt. Hence,
Rule 198(2) could also operate subsequently at the stage after the
submission of the enquiry report by the enquiry officer appointed by the
disciplinary authority and before the disciplinary authority takes a decision
as to whether the delinquent is guilty of the allegations of memo of charges,
based on the enquiry report. In the light of these aspects, the view taken by
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the Division Bench, in para 12 of Kochurani's case supra, as if the
disciplinary sub committee is to be actually constituted only if the
explanation of the delinquent to the memo of charges is not satisfactory,
also will not reflect the correct legal position.
(iv) Further, Sri.P.N.Mohanan, learned counsel appearing for the
employees in some of these cases, has also urged that if it is held that the
disciplinary sub committee has the jurisdiction to issue memo of charges,
then it would lead to a real and substantial case of reasonable likelihood of
bias or even actual bias, inasmuch as in cases where the disciplinary sub
committee is the penalty authority.
(v) After due consideration, we are afraid that we are not in a
position to countenance the abovesaid plea of the afore learned counsel.
(vi) If that be so, the same argument can be pressed into service
even against the Managing Committee (appointing authority) and it would
be argued that if the Managing Committee (appointing authority) can issue
memo of charges, then it would lead to bias by the said authority in its role
as appellate body.
(vii) It is elementary that memo of charges/charge sheet are issued
only for the purpose of advancing the rudimentary principles of natural
justice and fairness. The delinquent/accused employee should be told in
clear, specific and unambiguous terms as to what are the allegations that
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he has to meet in the course of the enquiry proceedings.
(viii) Even in a criminal trial, the power to frame charges is solely
vested with the criminal court and not to the prosecution agency. The role
of the prosecution agency is to prosecute the case, after submission of the
final report/charge sheet. If the abovesaid argument of the counsel is
accepted, then it could even be argued that a criminal court, which is to
adjudicate on the trial, will be biased, if it is given the power to frame
charges. Framing of charges by the criminal court or by a competent
authority in disciplinary proceedings is only to specifically apprise the
accused/delinquent, in clear and unambiguous terms, as to what are the
allegations that he has to meet, in the course of that proceedings. If the
charges are vague, ambiguous and without material particulars, then, it
would be in violation of the rudimentary principles of natural justice. So,
when the role of the competent authority to frame charges is for advancing
the principles of natural justice and the proceedings is to be conducted by
the said authority, the plea that the said authority would be biased in
conducting the proceedings, merely because it has framed the memo of
charges, is completely misconceived.
(B)(i) Sri.P.K.Ravishankar, learned counsel appearing for the
respondent employee in W.A.No.1041/2022 has submitted that the facts of
that case is solely different from the other appeals and that, in the instant
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case the delinquent employee was holding the post of Junior Clerk, which
does not come within the first category of employees covered by the tabular
column appended to Rule 198(3) and it comes within the second category
of post called "other employees" and hence the disciplinary authority
competent to impose the major penalty, like dismissal from service, is the
president of the society and not the disciplinary sub committee. Whereas,
in the instant case, the memo of charges have been issued to him by the
disciplinary sub committee and not by the president. That, the disciplinary
sub committee may be competent to issue memo of charges, in cases where
it is the competent disciplinary authority for imposing punishment. But, in
the instant case, the disciplinary authority of the respondent employee is
the President, who alone is competent to impose the major penalty of
dismissal and therefore, the impugned action on the part of the
disciplinary sub committee to have issued the memo of charges to the
respondent employee is illegal and ultra vires and without jurisdiction.
This submission is totally contested by Sri.M.Sasindran, learned counsel
appearing for the appellant co-operative society/employer.
(ii) It is to be noted, as mentioned hereinabove, that the KCS
Rules are silent as to which is the authority competent to issue memo of
charges/charge sheet. Therefore, going by the general law, even an
authority subordinate to the disciplinary authority can issue memo of
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charges.
(iii) Further, it has also been held that, in such cases, where the
Rules are silent and not explicit in that regard, then any superior authority,
namely authority which is superior to the delinquent but which can be
seen as a controlling authority vested with some power or authority, can
also issue memo of charges. In the instant case, taking a broad view, it can
be appreciated that the disciplinary sub committee could be treated as
higher to the President, going by the hierarchy of disciplinary authorities
mentioned in Rule 198(3). Moreover, the disciplinary sub committee in
such cases will get the competence to issue Memo of Charges, as in the
process of "inquiring into the charges", the first step is to issue Memo of
Charges as envisaged in H.C.Khurana's case supra [(1993) 3 SCC 196]
and Gandhi's case supra [(2013) 5 SCC 111]
(iv) The general law is that where the Rules are silent, then even an
authority subordinate to the disciplinary authority could issue memo of
charges. So, we are not in a position to hold that the disciplinary sub
committee is completely denuded of any power to issue even a memo of
charges to a lower level employee, like the respondent employee herein.
Further, the exceptional scenarios covered in the decisions of the Apex
Court, in cases as in B.V.Gopinath's case supra and Pramod
Kumar's case supra, does not arise in the instant case.
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(v) Hence, we are of the view that, in the light of the abovesaid
aspects, the disciplinary sub committee can also issue memo of charges to a
lower level employee covered by the second category of employees,
mentioned in Rule 198(3), in whose case the penalty authority is the
President.
(C) Another issue raised by Sri.P.C.Sasidharan, the learned
counsel appearing for the appellant in W.A. No.757/2023 is that the
employer in question in the abovesaid case is the Kerala State Co-operative
Bank and hence, certain specific rules are applicable to their functioning.
However, we are not inclined to go into those matters, as they are not
relevant to the referred issue herein.
(D)(i) Yet another incidental issue that we may have to address is
as to whether the Managing Committee (appointing authority) has the
jurisdictional competence to issue memo of charges, to employees covered
by Rule 198. Some of the advocates appearing for the co-operative society
employees as well as the Additional Advocate General, representing the
State, had submitted that the said incidental issue may also be addressed
by this Court. We are inclined to get into this issue, as it is necessary. This
we say so, as in the decision rendered by the Division Bench on 13.1.2020
in Kodanchery's case supra, it was held that the appointing authority is the
sole and exclusive authority having jurisdictional competence to issue
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memo of charges to employees covered by Rule 198. Now that we are
inclined to overrule the said legal position, it is only in the interest of
justice that we address this issue, as many of the co-operative societies
have followed the abovesaid dictum as if the Managing Committee
(appointing authority) is the sole and exclusive authority in the matter of
issue of charge memo.
(ii) True, that the admonition and obligation, addressed in Rule
198(2), may be directed as against the disciplinary authority competent to
impose the penalty. But the Rules are silent and not explicit as to which are
the authorities who can issue memo of charges.
(iii) When the general law is that, in the absence of explicit
provisions in the Rules, even an authority subordinate to the disciplinary
authority can issue memo of charges and any authority superior to the
delinquent and who can be seen as a controlling authority, vested with
some colour of authority, can also issue memo of charges and when the
Managing Committee is the appointing authority of the employees of the
co-operative societies, it does not stand to reason to hold that the
Managing Committee (appointing authority) has no jurisdictional
competence at all to issue memo of charges.
(iv) It has also to be borne in mind that the function of issuance of
memo of charges is mainly to comply with the requirements of natural
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justice, in order to notify the delinquent as to the specific nature of the
allegations that he has to meet.
(v) There are no explicit or implicit provisions in the Rules,
disabling the Managing Committee (which is the appointing authority) to
issue memo of charges to delinquents. Merely because the Managing
Committee (appointing authority) is also the appellate body, it cannot be
said that the Managing Committee will be biased in its role as the appellate
body, if the Managing Committee can also issue the memo of charges.
(vi) We have already referred to the scenario of criminal trials,
where the criminal court is solely empowered to frame charges, and merely
because the court is framing the charges, it does not mean that the Court
would be biased in the conduct of the trial adjudication.
(vii) So, in the light of these aspects, we are of the considered view
that the Managing Committee/Board of Management (appointing
authority) also has the jurisdictional competence to frame/issue memo of
charges to delinquents, eventhough the said body is also to carry out the
appellate functions.
(E)(i) Yet another issue would be as to whether the President has
competence to issue memo of charges, in cases where the disciplinary
authority/penalty authority is the disciplinary sub-committee, in the case
of higher level officials, covered by the first category of employees,
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mentioned in the tabular column appended to Rule 198(3).
(ii) Prima facie, it may appear that, in the absence of explicit
provisions in the Rules, any authority, who is subordinate to the
disciplinary authority, can also issue memo of charges. So also, any
authority, which is superior to the delinquent and who is vested with some
authority of power can also issue memo of charges. So, prima facie, it
appears that the President may also have the jurisdictional competence to
issue memo of charges, in the case of employees covered by the first
category, supra, whose penalty authority is the disciplinary sub-committee.
However, since none of the cases before us discloses the factual scenario of
that nature, it is not necessary for us to render any final opinion on that
issue.
(iii) We make it clear that the said issue may be decided in
appropriate cases, where the said factual issue arises, by the Single Bench
or the Division Bench concerned, in accordance with law and in the light of
the legal principles mentioned hereinabove.
(F) Further, the Registrar of Co-0perative Society and the other
notified Registrars, in respect of other categories of Co-operative Societies,
after getting advice from the learned Advocate General/Additional
Advocate General, may issue necessary circular, instructing the Co-
operative societies concerned, that the disciplinary sub committee,
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envisaged under Rule 198(2A), is ordinarily to be constituted as a standing
body, immediately after the elected management committee gets into the
power and its term could ordinarily be coterminus with the term of the
elected committee and that this will not preclude the elected committee to
change the constitution of the disciplinary sub-committee, before the
expiry of the term of the Managing Committee, if it thinks fit and proper
and that, this may be done by the Co-operative Societies to ensure the
effective and sufficient function of the disciplinary sub-committees, to deal
with cases of misconducts and delinquencies of employees and co-
operative societies.
(G) Now that, we have overruled the legal position earlier settled
by the Division Bench in Kodanchery's case supra [2020 (4) KLT 129],
it may be pertinent to make a few observations. It is trite that when
constitutional courts, like the High Courts and the Apex Court, makes
declaration of a new legal position or overrules a settled legal position and
lays down a new legal position, etc., then the declaration of law will
ordinarily affect not only new cases that arise on or after the date of
declaration by the Court in the said judgment, but will also affect all cases
pending as on that day. However, it is also trite that the Apex Court alone
is empowered to invoke the doctrine of prospective overruling in such
scenarios [see C. Golak Nath & Ors. v. State of Punjab & Anr.,
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(1967) 2 SCR 762 = AIR 1967 SC 1643] and the said power of prospective
overruling is not vested with the High Courts. But, at the same time, it is
also well-settled that when High Courts make new declaration of the legal
position, as in the instant case, then no doubt, it will affect not only new
cases arising on or after the date of this decision, but will also affect cases
pending as on that day. However, past cases, already settled and finalized
by adjudication, etc., will not be affected, in view of the issues of res
judicata and constructive res judicata. So also, past cases barred by delay,
laches, time bar, estoppel, acquiescence, etc., also cannot be re-opened, by
virtue of the new declaration of law in the judgment, as above.
SUMMING UP:
86. The upshot of the above discussion may be summed up as
follows:
(i) The view rendered by the Division Bench of this Court in
Kodanchery's case supra [2020(4) KLT 129 (DB)], more
particularly paragraph No.5 thereof, to the effect that the
Appointing Authority (Managing Committee) is the sole exclusive
authority to issue memo of charges to the delinquent employees
covered by Rule 198 of the KCS Rules, does not reflect the correct
legal position and to that extent, the said position will stand
overruled.
(ii) Disciplinary sub-committee, as per sub rules (2A) & (2B) is the
same as the sub-committee referred to in sub rule (3) of Rule 198.
Disciplinary sub-committee, envisaged in terms of Sub-Rule (2A)
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of Rule 198 of the KCS Rules, which is designated as the penalty
authority, in terms of the tabular column appended under Rule
198(3), will also have the jurisdictional competence to issue memo
of charges to delinquent employees, in the process of carrying out
its duties and responsibilities of inquiring into the charges, as
envisaged in Sub-Rule (2B) of Rule 198.
(iii) The Managing Committee (appointing authority) of a co-operative
Society also will have the jurisdictional competence to issue memo
of charges, in cases covered under Rule 198. The Disciplinary sub-
committee will also have the jurisdiction to issue memo of charges,
even in cases of employees covered by the second category
mentioned in Rule 198 (3) for whom, the penalty authority is the
President.
(iv) Final opinion on the issue, as to whether the President of a co-
operative society has the jurisdictional competence to issue memo
of charges to employees ,who come within the first category of
employees, appended under Rule 198(3), for whom the penalty
authority is the disciplinary sub-committee, is left open to be raised
and decided in appropriate cases.
(v) For the aforesaid reasons, it is also held that the legal position,
settled by the Division Bench in paragraph No.12 in Kochurani
Jose's case supra [2020 (6) KLT Online 1035=ILR 2021(1) Ker.
589], as if the disciplinary sub-committee is to be constituted only
on a case-to-case basis and that the disciplinary sub-committee is
to be constituted in terms of Rule 198(2A) only after the Managing
Committee finds that the explanation of the memo of charges given
by the delinquent is unsatisfactory, etc., also does not reflect the
correct legal position and the said position, to that extent, will
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stand over-ruled. As the other issues in the afore cited Kochurani
Jose's case supra are not relevant to the point of reference, we
need not get into those issues.
(vi) As already mentioned hereinabove, the Apex Court alone is
empowered to invoke the doctrine of prospective overruling [see
Golak Nath's case supra, (1967) 2 SCR 762 = AIR 1967 SC 1643],
and the said power of prospective overruling is not vested with the
High Courts. Hence, it is clarified that the legal position settled in
the instant cases, shall affect both new cases arising on or after the
date of this decision as well as cases pending as on this day.
However, past cases, which have already been settled and finalized
by adjudication, in view of the issues of res judicata and
constructive res judicata cannot be reopened on the basis of this.
So also, past cases barred by delay, laches, time bar, estoppel,
acquiescence, etc., also cannot be re-opened, by virtue of the new
declaration of law in this decision.
(vii) The Registrar of Co-operative Societies and other Notified
Registrars of other categories of Co-operative Society will issue
circulars instructing the co-operative societies to ensure that
immediately after the elected managing committee takes charge,
the said managing committee will constitute disciplinary sub
committee which could ordinarily be having term, co-terminus
with the managing committee, for the effective and efficient
handling of disciplinary process as per Rule 198. However, the
managing committee will be at liberty to re-constitute such
disciplinary sub committee even before expiry of the term, if it is
so found necessary and proper.
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CONCLUSION
87. So, in answer to the issue referred to this Full Bench by the
referring Bench, it is held that the view rendered by the Division Bench of
this Court in Kodanchery's case supra [2020(4) KLT 129 (DB)], more
particularly in para No.5 thereof, to the effect that the Managing
Committee (appointing authority of a co-operative society) is the sole and
exclusive authority to issue memo of charges to employees covered by Rule
198 of the KCS Rules and that the disciplinary sub-committee has no
jurisdictional competence at all in that regard, does not reflect the correct
legal position.
88. Before parting with these cases, we are obliged to place on
record our high appreciation for the valuable service rendered by all the
Advocates concerned, who have appeared and made submissions in these
cases, more particularly Sri.Ashok M.Cherian, learned Additional Advocate
General, Sri.P.N.Mohanan, learned Counsel, Sri.M.Sasindran, learned
Counsel, Sri.P.K.Ravi Sankar, learned Counsel, Sri.P.P.Thajudeen, Special
Government Pleader (Co-operation), Sri.Saigi Jacob Palatty, learned
Senior Government Pleader, Sri.A.L.Navaneeth Krishnan, learned
Advocate, etc., in their assistance to us for resolving the issues involved
herein.
89. Further, in exercise of the powers under Sec.7 of the Kerala
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High Court Act, it is ordered that, the Registry will return back the
aforesaid writ appeals to the Division Bench concerned for disposal, in
accordance with law and in the light of the legal principles mentioned
hereinabove.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
C.JAYACHANDRAN, JUDGE
Sd/-
SHOBA ANNAMMA EAPEN, JUDGE
sdk+, vgd
skk, MMG
Nsd
03-08-2023 /True Copy/ Assistant Registrar
