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HIGH COURT OF KERALA
A.M.SHAFFIQUE, GOPINATH, JJ
STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT – Appellant
Versus
P.M.NOWSHAD – Respondent
OP(KAT)/190/2020
Disciplinary Action - Public Service Commission - Regulation 1957 - Sections 6(1)(c), 6(2)(e) - The court examined the necessity of consulting the Public Service Commission for disciplinary matters, emphasizing correct application and interpretation of the relevant regulations in modifying penalties, influencing its final decision.
Fact of the Case:
The State challenged a tribunal's order setting aside disciplinary action that barred an individual from receiving increments. The individual argued against the necessity of re-consulting the Public Service Commission after a major penalty review.
Finding of the Court:
The court found that the tribunal erred by stating the government need not consult the Commission for a penalty reduction. The court clarified that initial consultation was required for changing from a major penalty to a minor one.
Issues: Whether the government was obligated to consult the Public Service Commission before altering a disciplinary penalty from barring increments to censure.
Ratio Decidendi: The government must consult the Public Service Commission under Clause 6(1)(c) when it proposes changes to previously established disciplinary penalties after initial consultation.
Final Decision: The court upheld the tribunal's order but clarified the necessity of the Commission's consultation on disciplinary action.
JUDGMENT
[ OP(KAT)132/2020, OP(KAT)190/2020 ]
Dated this the 2nd day of December 2020 Shaffique,J These two original petitions have been filed by the State and its officers challenging common order dated 18.7.2019 in O.A.No.376/2018 and O.A.No.481/2019. In O.A.No.376/2018, the applicant sought for a direction to convene a DPC to include him in the Anneuxre-A select list for promotion to the post of Joint Director. In O.A.No.481/2019, the applicant challenged Annexure-A12 order dated 26.2.2019 by which the Government confirmed the order passed by the disciplinary authority barring two increments with cumulative effect.
2. The Tribunal, after considering the respective contentions of the parties, issued the following directions:-
“(a) Annexure A12 order produced in O.A.481 of
2019 is set aside.
The first respondent shall take a decision afresh on the review petition submitted by the applicant in the light of the findings above. Orders shall be passed in the matter within two months of receipt of a copy of this order.
(b) After orders are passed on the review petition submitted by the applicant as directed above, the first respondent shall convene a meeting of the review DPC to consider the applicant's request for inclusion in the select list for promotion as Joint Director. Orders in the matter shall be passed within two months therefrom.”
3. The learned Government Pleader, while impugning the aforesaid order passed by the Tribunal, contended that as far as the disciplinary action against the applicant is concerned, the Tribunal committed serious error and observed that the Public Service Commission (Consultation) Regulations, 1957 (hereinafter referred to as the Regulations) do not envisage consultation with the Commission for imposition of minor penalties such as 'censure'. The learned Government Pleader submits that originally major penalty of barring of two increments with cumulative effect was imposed on the delinquent officer after consultation with Kerala Public Service Commission in terms with the Regulations. A review came to be filed before the Government and on the basis of the recommendation of the Director of Lotteries, Government had decided to reduce the punishment to censure. However, upon consultation with the Public Service Commission, they did not agree with the proposal and therefore, the Government issued Annexure-A12 order. The learned Government Pleader submitted that when a major penalty is imposed on a delinquent officer in terms with clause 6(1)(c) of the Regulations, the Government is bound to consult with the Kerala Public Service Commission.
4. On the other hand, the learned counsel appearing on behalf of the applicant with reference to clause 6(2)(e) of the Regulations would contend that since the Commission had already been consulted while imposing punishment of barring of two increments with cumulative effect, there is no question of again referring the matter to the Commission which alone the Tribunal had considered.
5. Clause 6(1) (c) and Clause 6(2)(e) of the Regulations reads as under:-
"6. (1) It shall not be necessary for the Commission to be consulted on any disciplinary matter affecting a person serving in connection with the affairs of the State, except-
(a) xx xx xx xx xx (b) xx xx xx xx xx (c) where in an appeal or revision from [or review of] an order which has imposed any of the penalties referred to in sub-clause (a) Government propose to pass any order.
(2) Nothing contained in clause (1) shall be deemed to make it necessary for the Government to consult the Commission in any case-
(a) xx xx xx xx xx (b) xx xx xx xx xx (c) xx xx xx xx xx (d) xx xx xx xx xx (e). in which the Commission has, any previous stage given advice in regard to the order to be passed and no fresh question has thereafter arisen for determination.”
On a close reading of the aforesaid Regulations, we are of the view that, in the present set of facts, the Tribunal committed error in observing that the Government need not have
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