VISWANATHAN NAIR Vs. STATE OF KERALA
LAWS(KER)-1974-8-20
HIGH COURT OF KERALA
Decided on August 21,1974

VISWANATHAN NAIR Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

GEORGE ABRAHAM VADAKKEL,J. - (1.) IN this petition the petitioner prays for certiorari quashing Exts.P -2 memo of charges and P -7 summons besides Exts.P -9 order and P -10 notification;the learned counsel for the petitioner,however,confined his case to Exts.P -9 and P -10.
(2.) THE attack on Ext.P -9 order is that the 2nd respondent Board abandoning half -way an enquiry which was being held under the Kerala State Electricity Board Employees ™( Classification,Control and Appeal)Regulations(briefly C.C.A.Regulations ),and,invoking the Kerala State Electricity Board(Employees ™Disciplinary Proceedings Tribunal)Regulations,1969(shortly,Tribunal Regula­tions)caused the 3rd respondent to hold the enquiry afresh in respect of the same delinquency.The submission is that,the 2nd respondent once decides upon one or the other of the authorities mentioned in regulation 16(2 )(b)of the C.C.A.Regulations as the authority to conduct a formal enquiry,the 2nd respondent is not competent to go back upon that decision and choose another authority as the enquiring authority.On the facts of this case,it is argued that the Board appointed its Chief Vigilance and Security Officer as Special Officer to conduct the formal enquiry as is evident from the order Ext.P -4,but,after the enquiry began the Board decided to have the enquiry conducted by Tribunal set up by the State(1st respondent)for disciplinary proceedings,and that the Board,as required by regulation 6(c)of the Tribunal Regulations,requested the 1st respondent to refer the case to the Tribunal,whereupon the 1st respondent referred the case to the Tribunal(3rd respondent)as per Ext.P -9 order.( The Special Officer and the Tribunal are authorities mentioned in regulation 16(2 )(b )(v)of the C.C.A.Regulations ).Relying on regulation 16(2 )(a)of the C.C.A.Regulations,the learned counsel for the petitioner urged that,after the preliminary investigation contemplated by that clause is over,the investigating authority has to take a decision as to whether a formal enquiry is to be conducted or not,and if he decides to conduct such an enquiry,he has to forward the records of the case to one or the other of the several authorities or officers mentioned in clause(b)and ˜order that a formal enquiry be conducted &rsquo ;.The gist of the argument is that thereafter,and at any rate,after the authority directed or ˜ordered ™to hold the formal enquiry has started function­ing,the Board has no power to drop the proceedings and ˜order ™a fresh enquiry by another authority. The submissions are ingenious and attractive,but,I am afraid that they are devoid of merit.The proposition,if correct,should govern all cases and whatever be the stage at which the second enquiry authority is constituted;whether the first authority has started functioning or not is an irrelevant consideration;it is also immaterial as to who the first authority is:and equally so,as to who is chosen as the second authority.Acceptance of the proposition can,in my view,create a stalemate,at least in a case where the person who is constituted as the authority,by supervening disqualification,like bias or prejudice for whatsoever reason it be(and there can be innumerable reasons such as relationship,financial transactions,etc.) is unable to continue as the enquiry authority,but is not disqualified to hold the office by virtue of which he happens to be so constituted,( for example Head of the Department,Appointing Authority)so that there is no question of a successor -in -office coming in;the authority constituted cannot continue the proceedings and no other authority can be constituted.It would defeat the very purpose of the regulations.The regulations are framed under section 7(c)of the Electricity(Supply)Act,1948,and are there­fore statutory in character.They are to be construed so as to further the purpose for which they are framed.The office of the Judge is to make such construction as will suppress the mischief and advance the remedy,and to suppress all evasions for the continuance of the mischief.( Maxwell on Interpretation of Statutes,12th Edn,pp.96 and 137 ).No precedent was cited before me.Nor does the Act prohibit such a course.I am not prepared to hold that the Board is incompetent to withdraw the proceedings from one authority,and direct another authority to hold the enquiry afresh.There may be instances when this Court can and may come to the aid of a person against whom an enquiry afresh by another authority is ordered mala fide or in colourable exercise of jurisdiction,or for victimisation or harassment.But that is a different aspect altogether.No such case was argued before me nor was any material placed before me,to come to any such conclusion.Colourable exercise of a power has to be established by the party pleading it.The attack on Ext.P -9 order fails.
(3.) UNDER section 9(2)of the Kerala Enquiries and Summonses Act,1960,as amended in 1962,the 1 st respondent is enabled to confer on officers like the 3rd respondent power to issue summonses for appearance,for production of documents,etc.Ext.P -10 is such a notifica­tion issued under section 9(2 ).According to the petitioner the enquiry directed to be held by the 3rd respondent does not concern the conduct of a ˜public servant &rsquo ;,a condition necessary to attract section 9(2 ).;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.