Kerala High Court
Secretary To The Government vs Secretary To The Government on 1 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
OP(KAT).No.25 OF 2021
AGAINST THE ORDER/JUDGMENT IN OA (EKM) 954/2015 OF KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS IN O.A:
1 SECRETARY TO THE GOVERNMENT,
TRANSPORT (C) DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 THE TRANSPORT COMMISSIONER,
O/O. THE TRANSPORT COMMISSIONER, VIKASBHAVAN,
THIRUVANANTHAPURAM 695 001
SRI.ANTONY MUKKATH, SR.GOVERNMENT PLEADER
RESPONDENT/APPLICANT IN O.A:
K.P.SADANANDAN
(RETIRED REGIONAL TRANSPORT OFFICER)
S/O. PARAMESWARAN NAIR, RESIDING AT KOTTARATHIL
HOUSE, ERUMELIKKARA P.O, KUMARAPURAM,
PALLIKKARA, ERNAKULAM 683565
BY ADVS.
SRI.O.D.SIVADAS
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 01.02.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P (KAT) No.25/2021
2
(C.R)
ALEXANDER THOMAS & T.R.RAVI, JJ.
------------------------------------
O.P (KAT) No. 25 of 2021
(arising out of the order dated 11-04-2018
in O.A (Ekm) No.954 of 2015 of KAT, Tvm Bench)
------------------------------------
Dated this the 1st day of February, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayer in the afore captioned Original Petition filed under
Articles 226 & 227 of the Constitution of India is as follows (See page
No.13 of the paper book of this O.P) :
".. ..... .to call for records leading to order dated 11-04-2018 in O.A
(Ekm) No.954/2015 on the file of the Kerala Administrative
Tribunal, Thiruvananthapuram Bench and to set aside the same
dismissing the above Original Application."
2. Heard Sri.Antony Mukkath, learned Senior Government
Pleader appearing for the petitioners (Secretary to Government &
Transport Commissioner) in the O.P/respondents in the O.A and
Sri.O.D.Sivadas, learned counsel appearing for the sole respondent in
the O.P/sole applicant in the O.A before the Tribunal.
3. The brief of the facts relating to the issuance of the impugned
Anx.A6 order dated 25-06-2012 issued in purported exercise of the
powers under Rule 59(b) of Part III KSR, as confirmed in the
impugned Anx.A8 order dated 21-10-2014 rejecting the Review
O.P (KAT) No.25/2021
Petition in that regard is as follows:
While the original applicant was working as Regional Transport
Officer (RTO), Kozhikode, in the Transport Department and was also
holding the additional charge of RTO, Wayanad, disciplinary action was
initiated against him as per Anx.A1 Memo of Charges dated 07-01-2020
along with the statement of allegations and imputations attached
thereto, as per Anx.A2. The allegations are to the effect that the applicant
has committed grave negligence and dereliction of duty in having failed
to produce the superior officer's inspection remarks register in spite of
asking for the same and that files were piled in bundles sacked away in
sacks all over the office, without taking any action whatsoever to destroy
the out dated/expired dossiers and that he failed to attend any revenue
recovery (RR) conference convened by the Addl District Magistrate,
Kozhikode. In reply to Anxs.A1 Memo of Charges issued by the competent
authority of the Government and Anx.A2 Statement of allegations, the
original applicant has submitted Anx.A3 reply dated 24-03-2010 to the
competent authority concerned. It appears that no further action was
taken in pursuance of Anx.A1 & Anx.A2 and that the applicant had
thereafter retired from service on 31-01-2011. Much after his retirement,
the competent authority of the State Government in the Transport
Department has issued the impugned Anx.A4 show cause notice dated
30-01-2012 directing the applicant to show cause as to why an amount of
Rs.500/- per month should not be reduced by recourse to the powers
conferred under Rule 59(b) of Part III Kerala Service Rules (KSR), in
view of the allegations raised earlier, which are almost replication of the
allegations dealt with in Anx.A1 Memo of charges & Anx.A2 Statement of
allegations. The applicant had duly submitted Anx.A5 reply dated
02-03-2012 to the competent authority concerned. Thereafter, the
O.P (KAT) No.25/2021
competent authority of the State Government has issued the impugned
Anx.A6 order dated 25-06-2012, ordering that an amount of Rs.500/-
will be withheld/reduced from the monthly pension sanctioned to the
applicant, as his service was found thoroughly not to be satisfactory.
A reading of the impugned Anx.A6 order dated
25-06-2012 would disclose that the main grounds for taking action
thereunder were in relation to the allegations raised in Anx.A4 show
cause notice, which as mentioned hereinabove, is a replication of the
earlier allegations, which found a place in Anx.A1 Memo of Charges &
Anx.A2 Statement of allegations. Being aggrieved by Anx.A6, the
applicant had preferred a review petition in terms of Note 2 of Rule 59
(b) read with Rule 35 of KCS(CC&A) Rules before the competent authority
of the State Government. Thereafter, the competent authority concerned
has dismissed Anx.A7 Review Petition as per the impugned Anx.A8 order
dated 21-10-2014, holding that there are no grounds for reviewing the
matter ordered in Anx.A6. It is these proceedings at Anxs.A6 & A8 that is
being challenged by the applicant before the Tribunal by filing the
aforesaid original application. The Tribunal has allowed the pleas of the
applicant and has quashed the impugned Anxs.A6 & Anx.A8 proceedings
on the ground that, taking recourse to the powers under Rule 59(b) of
part III KSR in respect of the allegations earlier raised in Anxs.A1 & A2
will not be justified in law. The Tribunal has allowed the pleas of the
applicant in Ext.P1 O.A by rendering the impugned Ext.P5 final order
dated 11-04-2018 in the said O.A (Ekm) No.954/2015. It is this final
order at Ext.P5 that is impugned in this petition filed under Articles 226
& 227 of Constitution of India at the instance of the competent authority
of the State Government and department concerned.
4. Heard both sides.
O.P (KAT) No.25/2021
5. The facts are not in any dispute. There is no dispute that
earlier the very same allegations were raised against the applicant by
issuance of Anxs.A1 Memo of Charges & A2 Statement of allegations
purportedly in exercise of the powers under Rule 15 of KCS (CC&A)
Rules for contemplating the initiation of major penalty proceedings.
The applicant had duly submitted Anx.A3 reply thereto. There is no
dispute that no action has been taken thereafter to finalise Anxs.A1 &
A2 in the manner known to law, at any point of time before the
applicant had retired from the service. No proceedings as contemplated
under Rule 3 of Part III KSR has also been initiated against the
petitioner, on the ground that the unfinalised proceedings in terms of
Anxs.A1 & A2 is sought to be duly finalised and completed by the
competent authority of the State Government by taking recourse to the
procedure contemplated in the operative portion of Rule 3 of Part III
KSR in the matter of the proposed withholding of pension after the
retirement of the applicant. On the other hand, the applicant has been
duly allowed to retire from the service on 31-01-2011 and his pension
benefits has also been sanctioned. It is much thereafter that the
competent authority of the State Government has issued the impugned
Anx.A4 show cause notice dated 30-01-2012 purportedly for taking
action under Rule 59 (b) of Part III KSR on the purported ground that,
O.P (KAT) No.25/2021
the service of the applicant cannot be said to be thoroughly
unsatisfactory in view of the allegations raised in Anx.A4, which is a
replication of the allegations in Anxs.A1 & A3. This has resulted in the
impugned Anx.A6 order, which has been confirmed in Anx.8 review
order. The matter raised in this case is no longer res integra and is
covered in favour of the original applicant/ respondent herein by
decisions of this Court as in Joseph v. State of Kerala [(1994) 1
KLT 716] and Ponnamma v. Secretary to Government [2011 (2)
KLT 277]. It will be profitable to refer to para No.14 of the decision
rendered by this Court in Joseph's case supra [(1994) 1 KLT 716
p.724-725], which reads as follows:
"14. Of course, under Rule 59 the Government is
empowered to make such reductions in the amount of pension as
they think proper in case the service of the employee has not
been thoroughly satisfactory. The Rule also declares that full
pension admissible under this Rule is not to be given as a matter of
course. The power conferred under 59 is a power to be exercised
normally at the end of the career of an employee. As such the
question whether service of a Government servant has or has not
been thoroughly satisfactory has to be normally decided taking note
of the service records for the entire period of service to put in by the
employee concerned. It is only reasonable to assume that an action
under Rule 59 normally would be initiated only on the basis of
proposals made by subordinate authorities under whose direct
control the employee might have rendered service and to whom all
the service records of the employee concerned may be
readily available. Of course, as pointed out by the learned
Government Pleader, the Government may suo motu, even without a
proposal from the subordinate authority pass orders in exercise of
the power conferred on it under Rule 59. In this case there is no
contention that any of the subordinate authority has made any
proposal to reduce the pension. To initiate action under Rule 59
against the petitioner, Government has to form a bona fide
O.P (KAT) No.25/2021
opinion that the service of the employee has not been thoroughly
satisfactory after giving the employee concerned an opportunity to
explain and vindicate himself against the proposal to form such an
opinion as the basis for issuing an order under that Rule. There cannot
be much dispute about these aspects of the Rule."
6. Later this Court in the decision in Ponnamma's case supra
[2011 (2) KLT 277] has held categorically that having initiated
disciplinary proceedings for specific acts of misconducts, without
finding any guilty by concluding proceedings as contemplated in law,
no action under Rule 59(b) of Part III of KSR can be initiated on the
basis of the very same allegations of misconducts and that the
satisfaction of the Government under Rule 59 should not be a
subjective satisfaction of a person passing the order but must be an
objective satisfaction on the basis of the acceptable materials
warranting such satisfaction which must be made known to the
Government servant that the service of the beneficiary concerned
cannot be said to thoroughly satisfactory. Further this Court has held
in Joseph's case supra that, Rule 59(b) of Part III of KSR cannot be
taken as a shortcut for the disciplinary proceedings under KCS
(CC&A) Rules and the Government cannot without completing the
disciplinary proceedings for specific acts of misconducts on the basis
of very same alleged misconduct, can find an employee guilty and
O.P (KAT) No.25/2021
enter a conclusion that the employee's services have not been
thoroughly satisfactory based on the very same misconducts for
which the government servant could not be found guilty following a
valid procedure. It will be profitable to refer to Para No.6 of the
decision of this Court in Ponnamma's case supra [2011 (2) KLT
277 pp.284 & 285], which reads as follows:
"6. Ext.P10 order although could have been independently
passed under R.59 (b) of K.S.R., without a separate enquiry as such, I am
of opinion that insofar as, in Ext.P10, the conclusion that the petitioner's
services under the Government has not been thoroughly satisfactory, is
based purely on the five misconducts for which petitioner has been found
guilty in Ext.P4, I am of the opinion Ext.P10 is also vitiated for the same
reason. I am of opinion that R.59(b) is not a short cut for disciplinary
proceedings under KCS (CCA) Rules. The Government cannot without
completing the disciplinary proceedings for specific acts of misconducts on
the basis of very same misconduct, find an employee guilty and enter a
conclusion that the employee's services have not been thoroughly
satisfactory based on the very same misconducts for which the government
servant could not be found guilty following a valid procedure. In this
connection it must be noted that 'reduction of pension' is also a specific
penalty imposable on a government servant under R.11 of the Kerala Civil
Services (Classification, Control and Appeal) Rules. Having initiated
disciplinary proceedings for specific acts of misconducts without finding
the government servant guilty (sic) by concluding the proceedings as
contemplated by law, no (sic) action under R.59(b) of Part III of the K.S.R.
can be initiated on the basis of the very same allegations of misconducts. If
that be permitted, then unscrupulous superior officers can, knowing well
that there is no evidence to sustain disciplinary proceedings, immediately
before the retirement of the government servant, after raising allegations
unsupported by materials on record, without concluding the disciplinary
proceedings, straightaway initiate proceedings under R.59(b) for which no
separate enquiry and finding of guilt is warranted. R.59(b) is intended to
be initiated against a government servant whose overall performance in
the whole of his/her service has not been thoroughly unsatisfactory. It is
not intended as an action against a government servant on the basis of
allegations of specific misconduct, which could not be validly proved in
disciplinary proceedings under the Kerala Civil Services (Classification,
Control and Appeal) Rules. In other words R.59(b) is not a short cut to
punish a person against whom specific allegations of misconduct could not
be validly proved by resort to proceedings under the Kerala Civil Services
(Classification, Control and Appeal) Rules. In this case that is exactly what
has been done in this case. The charges for which the petitioner has been
O.P (KAT) No.25/2021
visited with a decision under R.59(b), were the very same charges which
have not been proved in valid proceedings under the Kerala Civil Services
(Classification, Control and Appeal) Rules. Therefore, I am more than
satisfied that the petitioner could not have been proceeded against under
R.59 (b) solely based on the very same charges. The satisfaction of the
government under R.59(b) of Part III of K.S.R., that the service of a
government servant were not thoroughly satisfactory should not be a
subjective satisfaction of the person passing the order under that Rule, but
must be an objective satisfaction on the basis of acceptable materials on
record warranting such satisfaction, which must be made known to the
government servant with an opportunity to the government servant to
prove that the materials cannot be relied upon. Mere allegations or
suspicion of misconducts cannot take the place of such materials and the
materials should be sufficient for a reasonable man to come to the
conclusion that the government servant's service was not thoroughly
satisfactory. When ordinarily the government does not find it necessary to
take action under R.59(b), against government servants who have been
punished for misconducts even with compulsory retirement, one fails to
understand how they can take action against one on the basis of
allegations of misconducts, which have not been validly proved in a
disciplinary proceedings. If such unfettered power is conceded to the
government it can lead to arbitrariness, discrimination, victimisation, etc.,
especially in a situation where political vendetta against government
servants who do not toe the line of the powers that be are very common
these days. In the above circumstances, Ext.P10 is also unsustainable.
Accordingly, the impugned orders are quashed. Consequently, there would
be a direction to the respondents to disburse the arrears of pension
withheld from the petitioner as expeditiously as possible, at any rate
within in two months from the date of receipt of a copy of this judgment."
7. Rule 59 including the Notes appended thereto of Rule 3 of
Part III KSR provides as follows:
"Rule 59. Award of full pension.-(a) The full pension admissible
under this rule not to be given as a matter of course, or unless the
service rendered has been really approved.
(b) If the service has not been thoroughly satisfactory, the
Government may make such reduction in the amounts as they think
proper.
Note 1.- Government may review their orders if the affected
employee makes a request within a period of three months from the
date of the orders.
Note-2.- This rule does not operate to authorise a reduction of
ordinary pension either to nothing or to a nominal amount."
8. Para No.9 on internal page No.3 of Anx.A6 order dated
25-06-2012 {see page No.47 of the paper book} reads as follows :
O.P (KAT) No.25/2021
"9. Government have examined the matter in detail in the light
of the Vigilance enquiry report, the enquiry report of DTC(NZ), the
explanation furnished by the accused officers and the report of the T.C.
The delinquent officers have failed to furnish satisfactory explanation
for the charges levelled against them. The irregularities committed by
the delinquent officers are clearly proved in Vigilance Enquiry Report
and subsequent enquiry conducted by the Deputy Transport
Commissioner (North Zone). They deserve appropriate punishment
for the same."
9. The last paragraph of the impugned Anx.A8 order dated
21-10-2014 given on internal page No.2 thereof {See page No.54 of
the paper book} reads as follows:
"The review petitioners were imposed with a punishment for
the proven misdemeanor in their part and the punishment imposed
commensurate with the gravity of offence committed and is in
accordance with provisions of KCS (CC & A) Rules. They had failed to
putforth any corroborative evidence or supporting facts to review the
punishment imposed. There exist no cogent grounds to review the
punishment imposed. Since the review petition is devoid of merit, it is
rejected."
10. Thus it can be seen from a mere reading of the impugned
proceedings at Anxs.A6 & A8 that the Governmental authority
themselves have proceeded as if the entire decision making process
in exercise of the powers under Rule 59(b) of Part III of KSR would
amount to infliction of a punishment of penalty. Therefore, this
would clearly show that, the entire process, which culminated in
Anxs.A6 & A8 is nothing but a colourable exercise of power and
cannot be said to be a proper exercise of power in terms of the
provisions included in Rule 59(b) of Part III of KSR. In the instant
O.P (KAT) No.25/2021
case, the very same allegations as per Anx.A4 have found a place in
Anxs.A1 & A2. The Governmental authorities themselves have given
up any action thereunder and had allowed the applicant to retire
from service and had even sanctioned him the beneficiary benefits. It
is long thereafter that, Anx.A4 show cause notice has been issued in
purported exercise of powers under Rule 59 (b) of Part III KSR citing
the very same allegations in Anxs.A1 & A2.
11. Therefore, the entire subject matter of the consideration
which led to the issuance of Anx.A4, which in turn led to the
culmination of Anxs.A6 & A8, is on the basis of the specific
allegations of misconduct raised earlier in Anxs.A1 & A2, which was
later dropped. What is conceived in terms of Rule 59(b) of Part III of
KSR is not to cases of that nature, but should be dealing with rare
cases, where an objective consideration of the service career of the
pensioner would disclose that his or her service cannot be said to be
thoroughly satisfactory. For holding delinquent guilty for specific
alleged misconducts, the power available is as per the regular
provisions contained in KCS (CC&A) Rules, which have been availed
of by the Government by the issuance of Anx.A1 Memo of Charges &
A2 Statement of allegations. Thereafter, if the Governmental
O.P (KAT) No.25/2021
authorities concerned wanted to proceed in a case like this, it is for
them to either finalise the disciplinary proceedings in a proper and
reasonable manner by passing final orders in the disciplinary
proceedings after fulfilling all the procedural formalities. If, for any
valid reason, the same could not have been done before retirement of
the incumbent, in spite of the bonafide and diligent efforts of the
authority concerned, then the option to resort to the proceedings
being continued in terms of the operative portion of Rule 3 of Part III
KSR. The Governmental authorities concerned have no case that
there were any serious impediments for finalising the proceedings
initiated in terms of Anxs.A1 & A2. Having dropped such proceedings
it will not be open to resurrect the same by taking recourse to the
purported exercise of the powers under Rule 59(b) of part III of KSR,
which would be nothing but a colourable exercise of the power. In
administrative law, this is described by jurists as fraud on the power or
colourable exercise of the power. This is clearly legally impermissible
and the same would be illegal or ultra vires. This has been the
consistent view taken by this Court in decisions as in Joseph's case
supra [1994 (1) KLT 716] and Ponnamma's Case supra [2011 (2)
KLT 277]. The Tribunal has considered the factual scenario and has
O.P (KAT) No.25/2021
applied the dictum laid down by this Court in Ponnamma's case
supra [2011 (2) KLT 277]. The Tribunal cannot be faulted with in
any manner for having arrived at the impugned conclusions in the
final order at Ext.P5. In other words, no grounds have been made
out by the petitioners for warranting the interdiction of this Court
with the considered view taken by the Tribunal as per Ext.P5 by
taking recourse to the extraordinary discretionary powers conferred
under Articles 226 & 227 of the Constitution of India.
12. Sri.O.D.Sivadas, learned counsel appearing for the sole
respondent in the O.P/Original applicant would point out that, even
after quashment of the impugned orders at Anxs.A6 & A8 by the
Tribunal as per Ext.P5 final order, the petitioners have not refunded
the due amounts to the applicant unlawfully withheld in terms of
Anxs.A6 & A8. If that be so, the petitioners will ensure that the
amounts so withheld and recovered from the petitioner's pension
should be immediately disbursed to him without any further delay, at
any rate, within a period of six weeks from the date of production of a
certified copy of this judgment. Further the pensionary amounts
should be disbursed to the applicant, without deducting the amounts
covered by Anxs.A6 & A8 as the same has already been quashed by
O.P (KAT) No.25/2021
the Court, correctness of which has been confirmed by this Court
hereinabove.
The petition fails and therefore the same will stand dismissed.
However there will be no order as to costs.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R.RAVI, JUDGE
KAS
O.P (KAT) No.25/2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE O.A(EKM) NO 954/2015
ALONG WITH ANNEXURES.
ANNEXURE (A1) TRUE COPY OF THE MEMO OF CHARGES DATED
07-01-2010 ISSUED TO THE APPLICANT IN
O.A
ANNEXURE (A2) TRUE COPY OF THE STATEMENT OF
ALLEGATIONS DATED 07-01-2010 ISSUED TO
THE APPLICANT
ANNEXURE (A3) TRUE COPY OF THE REPLY DATED 24-03-2010
ISSUED BY THE APPLICANT
ANNEXURE (A4) TRUE COPY OF THE SHOW CAUSE NOTICE
DATED 30-01-2012 ISSUED TO THE
APPLICANT
ANNEXURE (A5) TRUE COPY OF THE REPLY DATED 02-03-2012
SUBMITTED BEFORE THE 1ST RESPONDENT BY
THE APPLICANT
ANNEXURE (A6) TRUE COPY OF THE G.O(RT) NO.
326/2012/TRANS DATED 25-06-2012 ISSUED
BY THE 1ST RESPONDENT
ANNEXURE (A7) TRUE COPY OF THE REVIEW PETITION BEFORE
THE 1ST RESPONDENT DATED 10-08-2012
SUBMITTED BY THE APPLICANT IN O.A.
ANNEXURE (A8) TRUE COPY OF THE G.O(RT) NO.
469/2014 /TRANS DATED 21-10-2014 ISSUED
BY THE 1ST RESPONDENT IN O.A.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED
08-12-2016 OF SECOND PETITIONER.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT DATED
28-12-2016 OF FIRST PETITIONER.
O.P (KAT) No.25/2021
EXHIBIT P4 TRUE COPY OF THE REJOINDER DATED 06-01-
2018 OF THE RESPONDENT
EXHIBIT P5 TRUE COPY OF THE ORDER OF THE KERALA
ADMINISTRATIVE TRIBUNAL DATED 11-04-
RESPONDENT'S/S EXHIBITS: NIL
