High Court Has Ample Power Under Article 226 To Issue Directions Not Specifically Sought Before Tribunal: Kerala HC

In the facts of the case,  OP (KAT)'s are filed by the employee as well as the State challenging the order of the Kerala Administrative Tribunal, which ordered that disciplinary proceedings against the employee can be finalised in two months. The disciplinary proceedings were initiated against the employee since a criminal case was registered against him. However, the High Court ordered that the disciplinary authority could wait for the conclusion of the criminal trial before complying with the order of the Tribunal to finalize the disciplinary proceedings. 

Referring to the Supreme Court's decision in L.Chandra Kumar v. Union of India (1997) a Division Bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar said:

“Therefore, this court has ample powers under Article 226 of the Constitution to issue the direction as above, even if it is not specifically sought in the petition filed before the Tribunal, if it is found necessary.”

It thus issued an order directing the disciplinary authority to await the conclusion of the criminal case for concluding the disciplinary proceedings against the employee, even when such reliefs were not sought earlier before the Tribunal. 

Background Facts

As per the facts, a criminal case was registered against the petitioner, who was working as a Junior Superintendent in the office of the District Police Chief. The criminal case was filed alleging the commission of offences punishable under Sections 341, 324,447 read with 34 of the IPC for trespassing into a woman's house and assaulting her. Disciplinary proceedings were initiated and witness statements were recorded. The inquiry officer cancelled the proceedings, ordered a fresh inquiry, and issued a new memo of charges.

The Tribunal set aside the new memo of charges and order directing fresh inquiry by stating that a government servant cannot be subjected to disciplinary action for a second time on the very same charges. The Tribunal ordered the finalising of the proceedings based on the earlier memo of charges within two months. The order of the Tribunal is challenged before the High Court by the State as well as the applicant.

The petitioner has approached the High Court stating that disciplinary proceedings cannot be proceeded against him based on the earlier memo of charges. He also sought to convene an ad hoc Departmental Promotion Committee to consider the suitability of the applicant for promotion.

Observations

The State contended that the disciplinary proceedings were initially set aside for violation of Kerala Civil Services (Classification, Control and Appeal) Rules,1960. It was argued that a fresh inquiry was ordered after the cancellation of the previous inquiry since the inquiry officer did not record the evidence of the witnesses after examination and cross-examination.

The Court found that the disciplinary authority can differ from the findings of the inquiry officer or could also agree with the findings of the Inquiry Officer as per KCS (CC&A) Rules.

In the facts of the case, the Court stated that the disciplinary authority could have issued a specific direction to record the evidence of the witnesses after examination and cross-examination. Further, the Court observed that the order of the Tribunal only states that disciplinary proceedings must be concluded based on the earlier memo of charges and found no reason to interfere with it.

The Court said, “After all, the Tribunal has directed only to finalise the proceedings initiated against the applicant on the basis of Annexure A2 memo of charges within two months. We find no jurisdictional error in the decision taken by the learned Tribunal.”

The Court found that the charges against the petitioner is that he trespassed into the house of a lady and attacked her. The Court stated that there was no reason to set aside the disciplinary proceedings and ordered the disciplinary authority to wait for the conclusion of the criminal trial before finalizing the disciplinary proceedings, as ordered by the Tribunal.

Relying upon L Chandra Kumar v Union of India, the Court observed that the powers under Articles 226 and 227 are wide. It said,

“It is no more res integra that while this court considers the legality of the orders passed by the Tribunals established under the Administrative Tribunals Act, 1985, it can very well exercise its power under Article 226 of the Constitution of India. The Administrative Tribunals Act, 1985 was promulgated by the Parliament in pursuance of the introduction of Article 323 A to the Constitution, through the 42nd amendment to the Constitution of India. As per Article 323A and Section 28 of the said Act, though it was intended to take away the jurisdiction of the High Courts under Article 226, by the seven Judges Bench of the Honourable Supreme Court in the landmark decision in L.Chandra Kumar v. Union of India (AIR 1997 SC 1125), it was held that clause 2(d) of Article 323 A and Section 28 of the said Act, to the extent they exclude the jurisdiction of the High Court under Article 226 and 227 of the Constitution, are unconstitutional.”

The Court also clarified that the pendency of disciplinary proceedings would not act as a hindrance for considering the suitability of the applicant for promotion since the disciplinary authority has not ordered any action so far. It also ordered that the promotion of applicant shall be considered if it is due, without waiting for disposal of the criminal case or disciplinary action.

As such, the appeal of the State was dismissed and the appeal of the applicant was allowed partly to the above extent of considering his promotion.

Case Number: M Shibu v State of Kerala & Connected Case

Case Title: OP(KAT) NO. 431 OF 2024 & Connected Case

Citation: 2024 LiveLaw (Ker) 791