B. Indrabalan Pillai v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 28TH DAY OF FEBRUARY 2017/9TH PHALGUNA, 1938 OP(KAT).No. 64 of 2017 (Z) --------------------------AGAINST THE ORDER IN TA 835/2013 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 15-11-2016 PETITIONER(S): ------------- B. INDRABALAN PILLAI. S/O.LATE BHASKARAN PILLAI AGED 60 YEARS, RESIDING AT 'GOURI', KOTTAKKAKAM, (NEAR ARATTUKULAM), KADAVOOR, PERINAD P.O., KOLLAM-691601 BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD RESPONDENT(S): -------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO LOCAL SELF GOVERNMENT (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN-695001 2. THE DIRECTOR OF URBAN AFFAIRS, THIRUVANANTHAPURAM, KERALA, PIN:695001 3. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM, KERALA, PIN:695001 R1,2 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER R3 BY SRI.P.C.SASIDHARAN, SC, KPSC THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP FOR ADMISSION ON 28-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(KAT).64/2017 ## APPENDIX ## PETITIONER'S EXHIBITS: ANNEXURE A1:TRUE COPY OF T.A.NO.835/2013 (W.P.(C).NO.17272/2007) WITH EXHIBITS ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 5.6.2007. ANNEXURE A2:TRUE COPY OF THE PETITION TO RECEIVE ADDITIONAL EXHIBITS DATED 15.6.2012. ANNEXURE A3:TRUE COPY OF THE ORDER IN T.A.NO.835/2013 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 15.11.20136. RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR & ANIL K.NARENDRAN, JJ. ========================== O.P. (KAT) No.64 OF 2017** **==========================** Dated this the 28[th] day of February, 2017 ## **JUDGMENT** ## _Ravikumar, J._ The unsuccessful applicant before the Kerala Administrative Tribunal in T.A.No.835 of 2013 filed this original petition challenging the order passed thereon. Evidently, the petitioner filed W.P. (C).No.17272 of 2007 before this Court challenging Ext.P9 order whereby a penalty of reduction of rank in the seniority list by five positions was imposed on him, permanently. The said writ petition was transferred to the Kerala Administrative Tribunal pursuant to its constitution and it was re-numbered as T.A.835 of 2013. The Tribunal, after considering the rival contentions, dismissed the transfer application as per the impugned order. 2. We have heard the learned counsel for the petitioner, the learned standing counsel appearing for the Kerala Public Service **O.P.(KAT).64/2017** 2 Commission and also the learned Government Pleader. 3.The facts in brief, that led to the filing of W.P.(C).No.17272 of 2007 which was later numbered as T.A.835 of 2013, require narration for a proper disposal of the original petition. While the petitioner was working as Municipal Secretary at Palakkad Municipality, he was placed under suspension as per Ext.P1 order dated 10.3.2000 pending disciplinary proceedings. Later, he was issued with Ext.P2 memo of charges accompanied by statement of allegations. Thereupon, he filed a written statement and an additional written statement. Dissatisfied with the explanation offered by the petitioner, a formal enquiry in terms of Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (for short 'KCS (CC &A) Rules) was ordered. The Director of Urban Affairs was appointed the enquiry officer. On culmination of the enquiry, the disciplinary authority issued Ext.P7 dated 22.4.2003 proposing to impose a penalty of reduction in rank in the seniority list by five positions, for a period of six months. As per Ext.P7, the petitioner was asked to show cause why the said penalty should not be imposed on him. On its receipt, the petitioner submitted Ext.P8 explanation. **O.P.(KAT).64/2017** 3 Thereafter, the first respondent passed Ext.P9 order dated 2.12.2006 imposing a penalty of reduction in rank in the seniority list by five positions permanently in accordance with the proviso (i) to note 1 of sub rule V of Rule 11 of KCS (CC &A) Rules. Aggrieved by the said order, the petitioner filed Ext.P10 review petition before the Government. Shortly thereafter, he moved this Court by filing W.P. (C).No.879 of 2007 seeking a direction to the Government to pass orders on Ext.P10 review petition expeditiously, after affording him an opportunity of being heard. The said writ petition was disposed of as per Ext.P11 judgment. Vide said judgment, this Court directed consideration of Ext.P10 on merits after affording him an opportunity of being heard, within the time limit fixed thereunder. Ext.P14 is the order passed by the first respondent in tune with the directions in Ext.P11 judgment. It is in the said circumstances that the above mentioned writ petition which ultimately culminated in the impugned order was filed. 4.The nub of the contentions of the petitioner in the transferred application was that the penalty proposed as per Ext.P7 was virtually modified at the time of passing the final order viz., Ext.P9 which was **O.P.(KAT).64/2017** 4 confirmed by the Government vide Ext.P14 order. It was his contention that as per Ext.P7, the penalty of reduction in rank in the seniority list by five positions was limited to six months and at the same time, as per Ext.P14 order, it was imposed permanently. The contention of the petitioner was that the said modification is illegal and the entire proceedings got vitiated and therefore, he sought for quashment of Ext.P14 and consequential direction to the respondents to restore his original position in the seniority list and consequential promotion with retrospective effect. The further prayer was to direct the respondents to treat the period of suspension as duty for all purposes and to disburse all consequential monetary benefits. The petitioner also sought for a declaration that the punishment originally proposed could not have been enhanced on consultation with the third respondent without affording him an opportunity of being heard. 5. A scrutiny of the impugned order passed by the Tribunal would reveal that the contentions advanced by the petitioner were considered with reference to the relevant provisions of law. The Tribunal virtually found that the penalty which was proposed as per Ext.P7 was imposition of penalty of reduction in rank in the seniority **O.P.(KAT).64/2017** 5 list and in the light of Rule 11 (1)(v) of KCS (CC &A) Rules, it could not have been limited to six months and the said penalty can be imposed only permanently. The contention of the petitioner was that actually, imposition of penalty was not warranted. Based on such consideration, Annexure-A3 order was passed by the Tribunal. 6. It is evident that the petitioner was imposed with penalty after conducting disciplinary proceedings in accordance with law. The pleadings in Annexure-A1 as also in the writ petition would reveal that no serious challenge was made against the procedures adopted in the disciplinary proceedings. The main contention of the petitioner is that the penalty proposed as per Ext.P7 is different from the penalty imposed as per Ext.P9 which was confirmed as per Ext.P14 order by the Government. Therefore, essentially, the question is whether what was imposed under Ext.P9 is the penalty which was actually proposed under Ext.P7. We are of the view that no volume of argument is required to realise the fact that the penalty proposed under Ext.P7 and what was imposed under Ext.P9, is one and the same. Evidently, the penalty proposed was reduction in rank in the seniority list by five positions and that exactly was the penalty **O.P.(KAT).64/2017** 6 imposed as per Ext.P9 and on consideration of the review petition, it was confirmed by the Government. The contention of the petitioner is that as per Ext.P7, the said penalty was proposed to be imposed only for a period of six months and therefore, on expiry of the said period he was entitled to get restored the seniority position but for the modification as per Ext.P9. The question is whether the said contention is sustainable. 7. There cannot be any doubt with respect to the position that the said penalty could not have been imposed without consultation with the PSC. At the time of consultation, virtually, the PSC advised, rather, brought to the notice of the disciplinary authority that imposition of penalty of reduction in rank in the seniority list in terms of the provisions under Note 1 of sub rule V of Rule 11 of KCS (CC &A) Rules could not be limited to any particular period and it could be imposed only permanently. It is thereafter that the said penalty was imposed on the petitioner in accordance with law. In this context, it is to be noted that after the imposition of penalty under Ext.P9, the petitioner moved this Court by filing W.P.(C).No.879 of 2007. It is relevant to note that in the said writ petition, the prayer of the **O.P.(KAT).64/2017** 7 petitioner was only for a direction to the Government to pass early orders on Ext.P9, after affording him an opportunity of being heard. In other words, it would reveal that the petitioner had not taken up any such contentions, as has been now raised. It is also to be noted that what was actually taken up as contention in Ext.P10 review petition on merits was as follows:- "The enhancement of punishment as advised by the KPSC is extremely exorbitant and unilateral and unreasonable and it does not tally or balance with the alleged wrong. The enhancement of quantum of punishment is imposed without giving me any opportunity of being heard and hence it is violation of natural justice." As noticed hereinbefore, he did not take up any such contention in W.P.(C).879 of 2007 and if at all any such contention was taken, Ext.P11 would reveal that they were not pressed into service at the time of its disposal, rather, he confined his prayer only for a direction to the Government for an early disposal of the review petition with an opportunity of being heard. The said prayer was virtually granted by this Court as per Ext.P11 judgment. 8. Now, the question is whether the understanding of the **O.P.(KAT).64/2017** 8 provision by the petitioner as can be seen from the above extracted portion in Ext.P10 review petition is true to the position of law. How can it be said that the penalty proposed was enhanced? We are afraid the said contention cannot be countenanced. As noticed hereinbefore, as per Ext.P7, the penalty of reduction in rank in the seniority list by five positions for a period of six months was proposed. But on realising that imposition of the said penalty cannot be limited to any particular period, it was imposed on him as per Ext.P9 strictly in accordance with law. True that as per Paragraph 9 of the review petition, he had also raised another grievance that the said penalty was imposed without affording him an opportunity of being heard. In that context, it is to be noted that after Ext.P11 judgment, he was offered with an opportunity of being heard and he availed that opportunity and raised his contentions before the authority. In such circumstances, the said contention would not survive any further. According to us, in view of the position of law as is discernible from the proviso to Rule 11(1)(v) of the KCS (CC&A) Rules, when the decision was to impose the aforesaid penalty, virtually, the scope of argument in the review petition was only with respect to the tenability **O.P.(KAT).64/2017** 9 of the decision to impose the penalty of reduction in rank in the seniority list by five positions and no argument could have been made to the effect that if at all it was to be imposed it should have been restricted to six months as originally proposed. This is because the provision is very clear on that aspect. On specific terms what is provided under the aforesaid provision is that such penalty could be imposed only on permanent basis. When that be so, upon failure on the part of the petitioner to convince the authorities that imposition of the aforesaid penalty of reduction in rank in the seniority by five positions is not at all required and when the authority after hearing the petitioner took the decision to impose the said penalty, it could not have been imposed on him in any different manner than statutorily prescribed. In other words, it could have been imposed only in the manner specifically provided under Rule 11(1)(v) of the KCS (CC&A) Rules. Evidently, as per Ext.P9 order and after hearing him on Ext.P10 review petition, the Government had confirmed the said penalty imposed strictly in conformity with the relevant rules. Though the learned counsel for the petitioner attempted to canvass the position that it is a case where imposition of penalty was absolutely **O.P.(KAT).64/2017** 10 unwarranted, we do not think it proper for us to go into that question at all. It is a case where after conducting disciplinary proceedings and based on the enquiry report, and after hearing the petitioner, the disciplinary authority imposed the penalty on the petitioner. Thereafter, the petitioner attempted to get it reviewed by filing Ext.P10 review petition. The said review petition was rejected by the Government as per Ext.P14. Thereafter, the challenge against those procedures and orders were considered by the Tribunal. After such procedures, what is left to be done by this Court, at the instance of the petitioner, is only judicial review of the order passed by the Tribunal, in the light of the decision of the Hon'ble Apex Court in **L. Chandra Kumar v. Union of India [AIR 1997 SC 1125]** in exercise of the power of judicial review under Articles 226 and 227 of the Constitution. Certainly, unless the petitioner is able to establish any permissible ground for judicial review, there would be no scope for any interference. The contention that there was no necessity to impose the aforesaid penalty without showing the penalty imposed is shockingly disproportionate to the charges levelled also calls for no consideration. It is to be noted that the proven charge is that he was **O.P.(KAT).64/2017** 11 responsible for the illegal felling of six old Anjili and other trees that stood on revenue puramboke, flouting all existing rules and procedures which ultimately resulted in loss of around two lakhs rupees. There is no merit in the original petition and it is liable to fail. Accordingly it is dismissed. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K.NARENDRAN (JUDGE)** **spc/** **O.P.(KAT).64/2017** 12 **O.P.(KAT).64/2017** 13