Kerala High Court
Jacob John vs Secretary To Government on 1 January, 1800
Equivalent citations: (1997)IIILLJ156KER
JUDGMENT K.A. Abdul Gafoor, J.
1. Petitioner is an Inspecting Assistant Commissioner. He challenges Ext. P4 memo of charges and Ext. P6 Order issued finalising the action against the petitioner. In reply to Ext. P4 memo of charges, petitioner submitted detailed explanation. Government considered his contentions and passed Ext. P6 order imposing a minor penalty of barring 2 increments with cumulative effect, after having considered the whole matter in detail and findings that the charges raised against the petitioner had been proved. The allegation contained in Ext. P4 memo of charges is that the petitioner acted against the interest of the revenue and he failed to discharge his duties honestly and sincerely. While discharging the duties as an Appellate Assistant Commissioner, certain irregularities were committed by the petitioner. This was detected by the Deputy Commissioner. The irregularities were of grave nature. The order passed by the petitioner was set aside in the second appeal. It was alleged that the petitioner failed to carry out the directions of the Board of Revenue and denied the legitimate right of the Department to defend the case decided by him. He had failed to discharge his official duties honestly. It was based on such allegations that the petitioner was proceeded against. In Ext. P6 it was found that the allegations were proved. Consequently, a minor penalty was imposed. All the necessary procedure to impose a minor penalty had been followed.
2. The petitioner challenges Ext. P6 mainly on the reason that he was acting in a quasi judicial capacity and therefore, following the decision in Kesavan v. State of Kerala (1989-I-LLJ-404) (Ker) quasi judicial authority shall not be subjected to disciplinary proceedings for any error or irregularity on their part. Therefore, Ext. P6 is unsustainable in law. He submits that it is opposed to the principles of natural justice. He has a further contention that withholding of two increments with cumulative effect, has the effect of reducing him to a lower stage in the time scale. Therefore, before imposing such penalty, Public Service Commission should have been consulted.
3. It is true that the petitioner was acting in a quasi judicial capacity. But that does not clothe him with immunity from disciplinary action. This decision in Kesavan v. State of Kerala (supra) was with respect to order by Government to realise the loss caused to Government. It was held in that case as follows at P. 406:
"As Deputy Commissioner (Appeals) the petitioner was invested with Appellate Jurisdiction over orders passed by assessing authorities. In exercise of that judicial function he might have reserved the order passed by the assessing authority. If the order passed in appeal has gone against the interest of the Government the only course that was open to the Government was to challenge the order passed by the Appellate Authority before the higher forums as per the provisions contained in the Kerala Agricultural Income Tax and Sales Tax Act. Without recourse to such a step the Government cannot proceed against the Deputy Commissioner (Appeals) and recover the loss from him. Officers invested with quasi judicial powers are to discharge their functions without fear of disciplinary action on account of their free exercise of that power. If the officers in vested with such powers are under the threat of the disciplinary action on account of orders passed against the interest of the Government, it will interfere with their judicial discretion. It will result in a travesty of justice."
In this case, the order passed by the petitioner was reversed in further appeal. The action of the petitioner in not issuing notice to the Revenue to defend the case amounts to dereliction of duty enjoined on the petitioner, even as a quasi judicial functionary. He cannot escape from such allegations based on this decision.
3A. In the decision in V.R. Katarki v. State of Karnataka 1991 Supp. (1) SCC 267 the Supreme Court observed as follows:
"We would like to make a special mention of the position that even if the assessment of valuation is modified or affirmed in appeal as a part of the judicial process, the conduct of the Judicial Officer drawable from an overall picture of the matter would yet be available to be looked into. In appropriate cases it may be open to draw inferences."
Extracting this passage Supreme Court in Periyar and Pareekanni Rubbers Ltd, v. State of Kerala AIR 1990 SC 2192 held that "The rule of conduct spurned by this Court squarely put the nail on the official act as a refuge to fix arbitrary and unreasonable market value and the persons concerned shall not camouflage the official act to a hidden conduct in the function of fixing arbitrary or unreasonable compensation to the acquired land."
Referring to these two cases the Supreme Court in Union of India v. Ajay Kumar Patnaik 1995 6 SCC 442 held as follows:
"It would thus be clear that an officer though performs official quasi-judicial functions, his conduct in the discharge of the quasi-judicial act or omission relates to the activity in the course of the discharge of his duties as a servant of the Government and bears reasonable relation or nexus with the nature and conduct of the service and when it casts reflection upon his reputation, integrity or devotion to duty as a public servant, that would be squarely referable to the conduct of the public servant amenable to disciplinary proceeding."
4. On the basis of these principles enunciated by Supreme Court, the petitioner cannot any longer contend that the misconduct arisen out of the function enjoined on him as a quasi judicial authority is not amenable for disciplinary action. So, challenge against Ext. P6 thus falls.
5. The penalty imposed is withholding of two increments. So, increment to be earned is withheld. The increment that had already been earned are not taken away. There will not be any reduction in the existing emoluments earned by the petitioner nor his pay will be brought down to a lower stage. The effect of the punishment in barring increments is that the pay will not have any increase for the specified period. Therefore, the punishment imposed will not result in bringing down his pay to a lower stage, or reduction in pay. In such case no consultation with the Public Service Commission is necessary, for imposing the penalty of withholding the increments. The contention raised by the petitioner has no basis.
6. By Ext. P6 only a minor penalty is imposed. The petitioner has been notified of the charges as per Ext. P4. He had been given opportunity to explain his case. His explanation had been considered while passing the impugned order. Thus, all the opportunities in terms of Rule 16 of the Kerala Civil Services (CC & A) Rules have been afforded before issuing Ext. P6. Therefore, the petitioner cannot contend any violation of the principles of natural justice.
7. There is no merit in the further contention of the petitioner that there was no case for the respondents that any loss had been sustained on account of the action of the petitioner, and therefore, it is actuated by malafides. A misconduct need not result in actual loss to Government. The misconduct itself is sufficient to proceed against a delinquent. Even an attempt to commit an irregularity is sufficient to be proceeded against. When a misconduct is revealed and the delinquent is proceeded against, he cannot contend that the proceedings are actuated by malafides.
8. By Ext. P6 order, only a minor penalty is imposed. The penalty was imposed after considering the contentions raised by the petitioner and after having found that the charges against the delinquent stood proved. In such situation there is no reason to interfere with Exts. P4 and P6. Accordingly original petition is dismissed.
There will be no order as to costs.