Abdul Hakeem.M. Vs. the Administration of the Union Territory of Lakshadweep - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW THURSDAY, THE30H DAY OF JANUARY201410TH MAGHA, 1935 OP(KAT).No. 2628 of 2013 (Z) ----------------------------- AGAINST THE ORDER

/JUDGMENT

IN OA3742012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONER(S): -------------- 1. STATE OF KERALA REP.BY SECRETARY, TAXES DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM, PIN695001.

2. COMMISSIONER OF COMMERCIAL TAXES, MUSEUM, THIRUVANANTHAPURAM695033.

3. JOINT COMMISSIONER MUSEUM, COMMERCIAL TAXES, THIRUVANANTHAPURAM695033.

4. ACCOUNTANT GENERAL OFFICE OF THE ACCOUNTANT GENERAL THIRUVANANTHAPURAM695039. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW RESPONDENT(S): -------------- P. ABDUL MAJEED, S/O.MOHAMMED, PARAKKAL HOUSE, VADAKKAMANNA, PO KODUR MALAPPURAM676504. R1 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.AMMU PILLAI SMT.L.ANNAPOORNA THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON3001-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 2628 of 2013 (Z) ----------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1 A TRUE COPY OF THE ORDER

NO.A11.17328/2007/TX, DATED274/2007 EXHIBIT P2 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED312/2009 EXHIBIT P3 A TRUE COPY OF THE REPLY FILED BY THE RESPONDENT DATED123/2010 EXHIBIT P4 A TRUE COPY OF THE ANNEXURE A-1 IN OA NO.374/12, DATED31/2012 EXHIBIT P5 TRUE COPY OF THE NON-LIABILITY CERTIFICATE DATED281/2012 AND LETTER ISSUED BY THE3D PETITIONER FORWARDING THE DEPARTMENTAL LIABILITY CERTIFICATE DATED281/2012 EXHIBIT P6 TRUE COPY OF THE OA NO.374/2012 ANNEXURES IN OA ANNEXURE A1 TRUE COPY OF THE ORDER

G.O.(RT) NO.07/12/TD, DATED0301.2012 ISSUED BY THE1T RESPONDENT. (PAGES1720 IS SAME AS FOR PAGES2841 FOR ANNEXURE A1) ANNEXURE A2 COPY OF THE SUSPENSION ORDER

NO.A11, 17328/07/PX, DATED2704.2007 ISSUED BY THE2D RESPONDENT. ANNEXURE A3 COPY OF THE SHOW CAUSE NOTICE NO.324/D3/09/TD, DATED0312.2009 ISSUED BY THE1T RESPONDENT. ANNEXURE A4 COPY OF THE REPRESENTATION DATED1203.2010 SUBMITTED BY THE APPLICANT TO THE1T RESPONDENT. EXT.P7 COPY OF THE REPLY STATEMENT FILED BY THE1T PETITIONER AS1T RESPONDENT IN THE OA, DATED10H JULY, 2012. EXT.P8 COPY OF THE REJOINDER FILED BY THE RESPONDENT AS APPLICANT DATED4H OCTOBER, 2012. EXT.P9 COPY OF THE ORDER

IN OA NO.374/2012, DATED2811.2012 PASSED BY THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUMULLAVARAM. RESPONDENT(S)' EXHIBITS : NIL ----------------------- /TRUE COPY/ P. A. TO JUDGE Pn T.R.RAMACHANDRAN NAIR & K. ABRAHAM MATHEW, JJ.

------------------------------------ O.P.(KAT).No.2628 of 2013 ----------------------------------- Dated this the 30th day of January, 2014

JUDGMENT

T.R.Ramachandran Nair, J.

The respondents in O.A.No.374/2012 of the Kerala Administrative Tribunal has filed this O.P challenging the order passed by the Tribunal.

2. We heard Sr.Government Pleader for the State Sri.Noble Mathew and the learned counsel appearing for the respondent, Sri.S.P.Aravindakshan Pillai. Learned Government Pleader submitted that the finding by the Learned Tribunal that there was no proper disciplinary action is not correct. In this context, a reference is made to Ext.P4 order dated 03.01.2012 of the Government whereby the disciplinary action against the respondent was finalised. It is submitted that item 2 therein shows that show cause notice was issued and he had filed a written statement of defence also. It is therefore contended that the same will satisfy the provisions of Rule 3 of Part III KSR.

3. The respondent was suspended from service pending disciplinary enquiry on 27.04.2007 and he attained O.P.(KAT).No.2628 of 2013 2 superannuation on 30.11.2007. The date of Ext.P4 is 03.01.2012, long after the date of superannuation.

4. The disciplinary action is finalised by recovering the entire DCRG and reducing the pension of the respondent to the minimum i.e. `2,400/- under Rule 3 of Part III KSR.

5. Learned counsel for the respondent submitted that the legal principles on the basis of which learned Tribunal has interfered with the order are well settled by various decisions of this Court.

6. We have perused the order passed by the Learned Tribunal. It is observed in paragraph 3 that in this case no memo of charges or statement of allegations were served on the applicant. It is found further that "the allegation that he had knowledge was the one concerning the correction of the Shop Inspection Report as the same was mentioned in the order of suspension. Thereafter the applicant was called upon to explain why the proposed punishment should not be imposed on him, by serving Annexure A3. The same does not satisfy the requirements of the opening paragraph of Rule 3 of Part III KSR, it is submitted. Therefore, the applicant prays for quashing Annexure A1." 7. The legal provisions have been discussed from O.P.(KAT).No.2628 of 2013 3 paragraph 6 onwards. It was found that the three year limit fixed in Note 3 was over on 30.11.2010 and final order was passed only on 03.01.2012. Accordingly, it was held that withholding of DCRG of the applicant is unauthorised by the Rules. Finally it is observed that the order will not affect the powers of the Government to recover the loss caused to it by filing a civil suit or by other methods as available in law as held by this Court in Pappachan v. State of Kerala [2008(4) KLT676.

8. As regards the reduction of pension, in para 8 it has been found that in the light of the fact that no memo of charges was served, the procedure followed by the Government, falls foul of the provisions of Rule 3. The materials collected and mentioned in the impugned order Ext.P4 was found to be behind the back of the applicant. Finally it is observed that the provisions of Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules have not been followed also. No other fair procedure was resorted to also.

9. Even though the learned Senior Government Pleader submitted that the view taken may not be supportable in the light of show cause notice issued and the written defence O.P.(KAT).No.2628 of 2013 4 mentioned in the impugned order, Annexure A1, produced before the Tribunal, we fail to understand as to how the same can be termed as a result of the disciplinary proceedings in the absence of any memo of charges. As rightly pointed out by the learned counsel for the respondent Sri.S.P.Aravindakshan Pillai the show cause notice was one for recovering the entire DCRG and reducing the pension. By any stretch of imagination, the same cannot be termed as a valid order issued on finalisation of proceedings under the relevant Rules of Kerala Civil Services (Classification, Control and Appeal) Rules.

10. Therefore, we find no reason to accept the contention of the learned Senior Government Pleader and the order passed by the Learned Tribunal do not call for any interference. The original petition is thus dismissed. No costs. Sd/- T.R.RAMACHANDRAN NAIR, JUDGE Sd/- K. ABRAHAM MATHEW, JUDGE AV