A. M. Pavithran v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933** **WP(C).No. 11040 of 2007(L)** **---------------------------------------** **PETITIONER(S):** **-------------------------** **A.M.PAVITHRAN, RESIDING AT NAVYASREE, CHUNGAM P.O., ERANJOLI, THALASSERY, KANNUR-670 107, (SENIOR SUPERINTENDENT (RETIRED) (DRF, KOLLAM).** **BY ADV. SRI.P.M.PAREETH** ## **RESPONDENT(S):** **---------------------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, FOOD CIVIL SUPPLIES & CONSUMER OFFICERS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM.** **3. DIRECTOR OF CIVIL SUPPLIES, THIRUVANANTHAPURAM.** **4. DIRECTOR OF VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM.** **5. SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, KANNUR.** **BY GOVERNMENT PLEADER SRI.NOBLE MATHEW** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.11040/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS ISSUED UNDER KERALA CIVIL SERVICES (C.C & A) RULES DATED 8/5/06.** - **P2 COPY OF THE WRITTEN STATEMENT DATED 18/5/06 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT.** - **P3 COPY OF THE LETTER DATED 2/12/03 ISSUED BY THE DY.SP VIGILANCE AND ANTI CORRUPTION BUREAU, KANNUR TO THE FOURTH RESPONDENT AND COPIED TO THE TALUK SUPPLY OFFICER, KANNUR.** - **P4 COPY OF THE PROCEEDINGS NO.J.7.2877/05 DATED 11/7/05 ISSUED BY THE THIRD RESPONDENT.** - **P5 COPY OF THE SHOW CAUSE NOTICE DATED 24/1/07 ISSUED BY THE FIRST RESPONDENT.** - **P6 COPY OF THE REPLY DATED 9/2/07 SUBMITTED BY THE PETITIONER.** - **P7 COPY OF THE G.O(RT)NO.105/07/FCS & CAD DATED 14/3/07.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** S.SIRI JAGAN, J. ================== W.P.(C).No. 11040 of 2007 ================== Dated this the 30[th] day of November, 2011 J U D G M E N T The petitioner was a Supply Officer in the Food and Civil Supplies Department of the Government of Kerala. He retired from service on 30.4.2005. On 11.7.2005, provisional pension was sanctioned to him. On 7.4.2006, under the the proviso to Rule 3(b) of Part III of Kerala Service Rules, the Government granted sanction for proceeding against the petitioner on certain allegations of misconducts. Ext.P1 memo of charges was issued. The petitioner submitted reply denying the charges. The petitioner was afforded an opportunity of being heard. By Ext.P5, the petitioner was issued with a show cause notice proposing to withhold the entire pension and gratuity due to the petitioner and to recover the provisional pension already paid. The petitioner submitted Ext.P6 reply to the show cause notice. The petitioner was served with Ext.P7 order dated 14.3.2007 by the Government, whereby the Government ordered reduction of the petitioner's monthly pension permanently at the rate of ` 50/- per month under Rule 59(b) of Part III of KSR. The petitioner is challenging the same seeking the following reliefs: - “1) A writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext.P7 and quash the same. - 2). A writ of mandamus or other appropriate writ, direction or order - : 2 :- w.p.c.11040/07 commanding the first respondent to disburse the pension (with arrears from 1.5.05) DCRG and commuted value of pension of the petitioner without any further delay. - 3) A direction to the first respondent to release to the petitioner an amount of Rs. 4,485/- recovered from the petitioner on 1.9.02 during the vigilance inspection at taluk supply office, Kannur and remitted to government treasury as per Ext.P3, forthwith.” 2. The petitioner raises two contentions. The first is that proceedings under Rule 3 of Part III of KSR were not completed as prescribed by the said rule, insofar as, for the same, the respondents were bound to comply with the procedure prescribed under Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules. No such procedure was completed by conducting an enquiry, in which, the petitioner was given an opportunity to defend himself, supplying a copy of the enquiry report, giving the petitioner notices to show cause as to why the findings of the enquiry officer should not be accepted and the proposed punishment should not be imposed. The second contention is that Ext.P5 show cause notice was not under Rule 59(b) of Part III of KSR, but, by Ext.P7 order, pension has been reduced invoking Rule 59(b). Therefore, according to the petitioner, the proceedings under Rule 3 of Part III were never completed and no proceedings were initiated under Rule 59(b) except passing an order under Rule 59(b). Therefore, according to the petitioner, Ext.P7 cannot be sustained neither under Rule 3 or under Rule 59(b) of Part III of KSR. The petitioner would contend that for imposing a punishment under Rule 3 of the Part III of KSR, consultation with the w.p.c.11040/07 - : 3 :- Public Service Commission is mandatory, which has not been done. 3. A counter affidavit has been filed by the 1[st] respondent supporting Ext.P7 order. 4. I have heard the learned Government Pleader also. 5. Admittedly proceedings were initiated against the petitioner under Rule 3 of Part III of KSR. Rule 3 of Part III of KSR reads thus; “3. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permenantaly or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement: ## Provided that- (a) such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service; (b) such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his re-employment,(i) shall not be instituted save with the sanction of the Government; - (ii) shall not be in respect of any event which took place more than four years before such institution; and - (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the employee during his service; (c) no such judicial proceedings, if not instituted while the employee was in service whether before his retirement or during his re-employment, shall be instituted, save with the sanction of the Government, in respect of a cause of action which arose or an event which took place more than four years before such institution; and w.p.c.11040/07 - : 4 :- (d) the Public Service Commission shall be consulted before final orders are passed.” Going by the same, an order withholding pension under Rule 3 should be preceded by the procedure applicable to departmental proceedings, in which, an order of dismissal from service could be made in relation to the employee during his service. Procedure for such departmental proceedings is the one contemplated by Rule 15 of the K.C.S. (C.C & A.) Rules. The same contemplates issue of memo of charges, appointment of an enquiry officer, collection of evidence in the enquiry with opportunity to the delinquent to defend himself, obtaining an enquiry report, supply of copy of enquiry report, issue of show cause notices as to why findings in the enquiry should not be accepted and as to why the proposed punishment should not be imposed on the delinquent, and passing an order of punishment. In this case, except issue of a charge sheet, no further proceedings as contemplated under Rule 15 of K.C.S. (C.C & A.) Rules have been conducted. No enquiry officer was appointed, no enquiry was conducted, no enquiry report was obtained and no show cause notice was issued to the petitioner. Therefore, Ext.P7 certainly cannot be sustained as the culmination of proceedings under Rule 3 of Part III of KSR. 6. Now let us examine as to whether Ext.P7 order can be sustained under Rule 59(b) of Part III of KSR. Rule 59(b) and Ruling 1 under the same, read thus: - : 5 :- w.p.c.11040/07 “59. **Award of full pension** .- (a) ....... (b) if the service has not been thoroughly satisfactory, the Government may make such reduction in the amounts as they think proper. ## **Ruling No.I** 1. The power to reduce the pension under this rule has not been delegated by Government to subordinate authorities. 2. If a subordinate authority considers that it is open to question whether the full pension admissible under rules should be granted to an employee owing to his unsatisfactory character and conduct, the pension application shall be submitted to the Government for orders with a concise statement of the unfavourable circumstances appearing against that employee and a sufficient explanation thereof to enable the Government to form an opinion as to the propriety of reducing the pension. 3. Though Rule 59(b) does not provide for an enquiry before taking action, the person affected may be given an opportunity of being heard to satisfy the principles of natural justice. A detailed enquiry is not necessary for reducing the pension, under this rule. But before ordering reduction of pension the employee concerned may be given an opportunity to explain and vindicate himself as for instance when irregularities are detected after retirement and departmental proceedings are not feasible under Rule 3 _ibid.”_ For passing an order under Rule 59(b), the procedure prescribed in Ruling 1 has to be completed. The respondents could not satisfy me that the procedure prescribed under paragraph 2 of Ruling 1 had been complied with in this case. In fact, in Ext.P5 show cause notice, there is absolutely no whisper that the same has been issued for action under Rule 59(b). In fact Ext.P5 show cause notice proceeds on the basis that the petitioner has been found guilty of certain misconducts in a vigilance enquiry report, which has neither been issued to the petitioner, nor produced in this Court. the enquiry report. There is absolutely no statement in Ext.P5 show cause notice that the petitioner's service has not been thoroughly satisfactory, on finding w.p.c.11040/07 - : 6 :- which alone, the Government can initiate proceedings under Rule 59 (b). In fact in Ext.P7 order also upto the last paragraph everything is on the basis that the petitioner has been found guilty of certain misconducts in a proceeding initiated for that purpose. _**In Ponnamma**_ _**v. Secretary to Government**_ , 2011 (2) KLT 277, I had held that having initiated disciplinary proceedings for specific acts of misconducts, without finding a government servant guilty by concluding the proceedings as contemplated by law, no action under Rule 59(b) can be initiated on the basis of very same allegations of misconducts. I have also held that Rule 59(b) is not a short cut to punish a person against whom specific allegations of misconducts could not be validly proved by resort to proceedings under the K.C.S. (C.C & A.) Rules. Ext.P7 is directly contrary to the ratio of that decision. The petitioner has not been validly found guilty in the disciplinary proceedings. But Ext.P7 order has been passed on the premise that he has been found guilty of certain misconducts. In fact, neither Ext.P5 nor Ext.P7 states that the petitioner's services have not been thoroughly satisfactory so as to initiate proceedings under Rule 59(b). Therefore, I am satisfied that Ext.P7 order cannot be justifiable either under Rule 3 or Rule 59(b) of Part III of KSR. Consequently, Ext.P7 order is clearly unsustainable. Accordingly, the same is quashed. In the result, the petitioner will be entitled to all retirement benefits as if no order under Rule 59(b) or under Rule 3 has been passed against w.p.c.11040/07 - : 7 :- the petitioner. Orders in this regard shall be passed and all arrears of monetary benefits due to the petitioner pursuant to quashing of Ext.P7 order, shall be paid to the petitioner, as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. Needless to say, if any amount has been recovered from the petitioner pursuant to Ext.P7, the same shall be refunded to the petitioner. The writ petition is disposed of as above. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge