## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH**
**THURSDAY, THE 28TH DAY OF NOVEMBER 2013/7TH AGRAHAYANA, 1935**
## **OP(KAT).No. 4172 of 2013 (Z)**
## **---------------------------------------------AGAINST THE ORDER/JUDGMENT IN OA 2282/2013 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 08-10-2013**
## **PETITIONER(S):**
**--------------------------**
**C.V.THOMAS, REVENUE DIVISIONAL OFFICER (RETIRED), CHANDRAVIL HOUSE, EAST KALLADA P.O, KOLLAM 691 502.**
**BY ADVS.SRI.T.A.SHAJI(SR.) SRI.C.E.UNNIKRISHNAN**
## **RESPONDENT(S):**
**----------------------------**
## **1. STATE OF KERALA,**
**REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVT. SECRETARIAT, THIRUVANANTHAPURAM 695 001.**
## **2. THE SECRETARY,**
**KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O, THIRUVANANTHAPURAM 695 004.**
**R BY GOVERNMENT PLEADER R BY SRI.P.C.SASIDHARAN, SC, KPSC**
**THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 28-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**DG**
**OP(KAT).No. 4172 of 2013 (Z)**
**-----------------------------**
## **APPENDIX**
## **PETITIONER(S)' EXHIBITS:**
**-------------------------------------**
**EXHIBIT P1. COPY OF THE ORDER G.O(RT)NO.4621/3/RD DATED 21.8.13 IN WPC 18816/2013.**
**EXHIBIT P2. COPY OF THE MEMO OF ORIGINAL APPLICATION NO.2282/2013 JUDGMENT DATED 22.10.13 IN WPC NO. 24516/2013.**
**EXHIBIT P3. COPY OF THE NOTICE OF THE IST RESPONDENT SENT TO THE IST RESPONDENT DATED 11.11.2013.**
**RESPONDENT(S)' EXHIBITS - NIL**
**-----------------------------------------**
**//TRUE COPY//**
**P.A TO JUDGE**
## **“CR”**
# **THOTTATHIL B.RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ.**
**--------------------------------------------------**
**O.P.(KAT).No.4172 of 2013**
**----------------------------------------------**
**Dated this the 28[th] day of November, 2013**
## **J U D G M E N T**
## **Thottathil B.Radhakrishnan, J.**
We have heard learned Senior Counsel for the petitioner quite in extenso. We have also heard learned Government Pleader and learned Standing Counsel for the Kerala Public Service Commission.
2. Petitioner, while in service, was suspended on 22.07.2005 on being arrested by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, allegedly, while receiving bribe from a person for relieving him from liability of luxury tax for a building. Later he was readmitted to duty. After that, while working as Revenue Divisional Officer, petitioner retired from service on 30.06.2006 on superannuation.
3. The criminal case registered against the petitioner
O.P.(KAT).4172/13
2
was investigated. That led to a final report before the Enquiry Commissioner and Special Judge. Following trial, petitioner was found guilty, and was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.50,000/- with default sentence for three months. He filed an appeal before this Court and obtained an interlocutory order suspending the execution of the sentence on conditions. That appeal is pending.
4. Thereafter, the petitioner was served with a show cause notice proposing to withdraw all pensionary benefits permanently. Rule 2 of Part III KSR was quoted as the source of power for that show cause notice. Petitioner replied to that notice, essentially saying that no such power lies under Rule 2 of Part III KSR. The Government thereafter, issued the order withdrawing all pensionary benefits permanently. The petitioner challenged that decision before the Kerala Administrative Tribunal, fundamentally contending that Rule 2 of Part III KSR does not apply. Rule 2 of Part III KSR applies when the misconduct leading to the finding of guilt is committed after retirement. The Tribunal rightly noted that Rule 2 of Part III KSR might not have applied since the
O.P.(KAT).4172/13
3
incident which has led to the finding of guilt occurred while the petitioner was in service and therefore, it was Rule 3 of Part III KSR that would apply. So much so, the Tribunal examined the contents of the Government decision in the light of the requirements of Rule 3 of Part III KSR and held that in substance, the procedural default is only of misquoting the rule and not as to the propriety in procedure or violation of any rule of hearing etc. The Tribunal held that having regard to the fact that the Government had adverted to and considered relevant materials and also having regard to the undisputed fact that the petitioner stands convicted for an act punishable under the provisions of the Prevention of Corruption Act, 1988, the Government's order impugned stands.
5. Before us, the learned Senior Counsel on behalf of the petitioner argued, firstly, that in the realm of judicial review of administrative action, the fundamental focus ought to be on the decision making process and therefore, when it is shown that Rule 2 of Part III of KSR did not enable the Government to do what it has done, the impugned order ought to have been set aside. This approach does not always hold
O.P.(KAT).4172/13
4
good because, when the resultant situation which is the cause of action for a particular challenge is shown to be otherwise sustainable in judicial review, the visitorial power, be under Article 226 of the Constitution or otherwise would not be extended to erase an administrative proceeding merely on account of the procedural default which does not go to the root of the matter or does not have an impact on the jurisdiction or jurisdictional fact. We say this because, the Government is the repository of power, be it under Rule 2 or Rule 3 of Part III of KSR. The quality and content of Rules 2 and 3 are substantially the same. While Rule 2 governs post retiral conduct of a pensioner, Rule 3 deals with the conduct of a person while in service. Therefore, the mere misquoting of Rule 2 in relation to a case of a person who was in service at the relevant point of time, does not in any manner affect the course of the administrative adjudicating process. This contention, therefore, fails.
6. The second argument advanced on behalf of the petitioner is that the right of a pensioner to receive pension is right to property under the Constitution and hence, there cannot be any deprivation of rights referable to Article 300A
O.P.(KAT).4172/13
5
of the Constitution of India on the basis of the impugned order. The decision rendered by the Honourable Supreme Court of India in **State of Jharkhand v. Jitendra Kumar Srivastava [2013(3) KLT 782 (SC)]** is relied on. We have examined that decision. Their Lordships laid down that principle with reference to the fact that an executive order cannot supplant the statutory rules. In that case, the administrative authority applied an executive decision, the extent and effect of which was beyond the statutory rule. We are unable to accept the submission and apply that precedent to the fact situation here. Article 309 of the Constitution of India gives the authority to make service rules. That read with provisions of the Kerala Public Service Act 1968, is the jurisdictional seat of authority for the legislative piece called the 'Kerala Service Rules'. That being so, there is no question of any conflict between Article 309 and the legislations thereunder, that could be pitted against any rights generating out of Article 300-A of the Constitution of India. In this view of the matter, no right can be referred to Part III of the Constitution as against the impugned action on the basis of the law laid in **Jitendra Kumar Srivastava's case** (supra).
O.P.(KAT).4172/13
6
This argument also, therefore, fails.
7. Next, it is argued on behalf of the petitioner that there are enumerable variables and a deeper examination of the facts of the case by the authority of the first instance would have a different impact on the actual amount that could be fixed for being withdrawn. We see that the impugned order had been issued making specific reference to the order of conviction. Only the execution of the sentence stands suspended by this Court. The Government Order refers to the allegations against the petitioner. Those allegations led to the finding of guilt. Applicability of Rule 3 of Part III KSR does not depend upon the conviction or sentence. It depends essentially on the finding of guilt which stands. The reasons for the finding and the allegations on which that finding has been rendered have, obviously, gained the attention of the Government as is reflected in the Government Order. This ground also, therefore, fails.
8. We may record that the Tribunal has, in the last paragraph of the impugned order, quite rightly, stated that in case petitioner is acquitted by the High Court in the criminal appeal, he can move the Government seeking review of the
O.P.(KAT).4172/13
7
impugned order as the very foundation of that will be lost, if his conviction goes.
9. For the aforesaid reasons, we see no ground to interfere with the impugned order issued by the Tribunal. This petition fails.
In the result, this original petition is dismissed.
Sd/- **(THOTTATHIL B.RADHAKRISHNAN, JUDGE)**
Sd/-
**(BABU MATHEW P. JOSEPH, JUDGE)**
//TRUE COPY//
P.A TO JUDGE
DG
