K. Gopalan v. State of Kerala & District Collector, Malappuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 10[TH] DAY OF JULY 2023 / 19TH ASHADHA, 1945 OP(KAT) NO. 43 OF 2023** **AGAINST THE ORDER DTD.12.12.2022 IN OA 301/2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT IN OA:** K. GOPALAN, AGED 59 YEARS, DEPUTY COLLECTOR (HG) RETIRED, GOKULAM, NEAR THENKURISSY, VILAYANCHATHANNUR, VILAYANUR P.O., PALAKKAD DISTRICT, PIN - 678 671. BY ADVS. ASOK KUMAR K.P. ALEXANDER K.C. ## **RESPONDENTS/RESPONDENTS IN OA:** 1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001. 2 DISTRICT COLLECTOR, COLLECTORATE ROAD, UPHILL, CIVIL STATION, MALAPPURAM DISTRICT, PIN 676505. **OTHER PRESENT:** SRI. K.P. HARISH-SR. GP THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 10.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ALEXANDER THOMAS & C. JAYACHANDRAN, JJ. --------------------------------------------------------------------O.P.(KAT)No.43 of 2023** **--------------------------------------------------------------------Dated this the 10[th] day of July, 2023** ## **JUDGMENT** ## **C. Jayachandran, J.** Whether Rule 59(b) of Part III KSR, which provides for reduction from pension on the event of the service not being thoroughly satisfactory, can be pressed into service based on a single instance, in respect of which no disciplinary action has been initiated and no finding of guilt has been arrived at, is the question involved in this original petition. The petitioner was issued with Annexure-A3 show cause notice dated 17.3.2015 under Rule 59(b) on the allegation that, while serving as the Revenue Divisional Officer, Tirur, he directed illegal acceptance of land lax in respect of 3.72 acres of land. At the time of issuance of Annexure-A3 show cause notice, the petitioner stood retired from service on superannuation on 31.12.2014. Being not satisfied with Annexure-A4 reply/explanation, the respondent State issued Annexure-A5 G.O. dated 14.6.2017 reducing the petitioner's monthly pension by Rs.500/-. Annexure-A6 review petition was dismissed vide Annexure-A7 G.O. dated 11.12.2017. Annexures-A5 and A7 G.Os. were challenged by the petitioner before the Kerala O.P.(KAT).No.43/2023 2 Administrative Tribunal, Thiruvananthapuram. However, as per the impugned order dated 12.12.2022, the original application (O.A.No.301/2018) was dismissed, without adverting to the above question whether Rule 59(b) of Part III KSR can be invoked in the attendant facts and circumstances. ## - **2.** Brief facts: In the year 2013, when the petitioner was working as Revenue Divisional Officer, Tirur, the legal heirs of one Syed Muhammed Mustafa Idrose Attakoya Thangal submitted an application to accept basic tax in respect of 3.72 cents of land under their possession in Re.Sy.Nos.83/2, 113, 123/1A, 1B of Purathur Village, Tirur Taluk. The application was forwarded to the Tahsildar for enquiry and report, who in turn forwarded the matter to the Village Officer, Purathur. The Village Officer gave Annexure-A1 report dated 21.10.2013, based upon which the Tahsildar gave Annexure-A2 report dated 2.12.2013. On 28.3.2014, the petitioner issued an order directing acceptance of the basic tax. On the basis of a complaint, the 2[nd] respondent/Collector preferred a report to the 1[st] respondent Additional Chief Secretary, alleging that the petitioner O.P.(KAT).No.43/2023 3 issued order dated 28.3.2014 without satisfying himself of the genuineness of the claim and requested for a detailed enquiry in the matter. Nothing transpired for a period of about one year and as indicated earlier, the petitioner retired from service on 31.12.2014. While so, the applicant was issued with Annexure-A3 show cause notice dated 17.3.2015 under Rule 59(b) of Part-III of the KSR, alleging that the conduct of the petitioner in directing acceptance of the basic tax is a serious misconduct, wherefore, his service is not fully satisfactory. Annexure-A3 proposed a reduction of Rs.500/- from the monthly pension of the petitioner. Although the petitioner preferred a detailed reply vide Annexure-A4, the 1[st] respondent Additional Chief Secretary issued Annexure-A5 order dated 14.6.2017, confirming the proposal to reduce Rs.500/- from the monthly pension of the petitioner. As already indicated, Annexure-A6 review petition was dismissed vide Annexure-A7. **3.** Before the Tribunal, the petitioner urged that the factual ingredients to invoke Rule 59(b) are not made out and that Annexures-A5 and A7 do not even state that the service of the applicant O.P.(KAT).No.43/2023 4 has not been thoroughly satisfactory. It was also urged that the applicant had unblemished service and that he was issued with Annexure-A8 letter of appreciation dated 1.6.2011 by the Principal Secretary to the Government (Election) for his hard work. Further, it was pointed out that no action was taken against the Village Officer, Purathur, that the disciplinary action against the Tahsildar concerned was dropped by the Government as per Annexure-A9 order dated 26.7.2016 and that the petitioner alone is sought to be victimised. On such premise, the petitioner sought for quashment of Annexures-A5 and A7 orders. **4.** On behalf of the 1[st] respondent, a reply/counter statement was filed contending that the Tahsildar has not recommended acceptance of land tax, but only sought for a direction from the higher authority vide Annexure-A2 report and that the petitioner - instead of giving proper direction to the Tahsildar, who is the authority to assess basic tax - issued order dated 28.3.2014 directing acceptance of the basic tax. It was further alleged that the petitioner, being an officer of high authority and responsibility, ought to have considered and ascertained whether the O.P.(KAT).No.43/2023 5 claim for accepting basic tax would come under the purview of the Kerala Escheats and Forfeitures Act, 1964 for the purpose of resuming the land as a Government property. Since the petitioner retired from service on superannuation on 31.12.2014, the Land Revenue Commissioner reported to the Government to initiate action under Rule 59(b) of the KSR Part III. It is accordingly that Annexure-A5 order was passed, after affording an opportunity to the petitioner to show-cause vide Annexure-A3 notice. On such premise, the 1[st] respondent sought for dismissal of the O.A. **5.** The Tribunal found that the impugned action was issued in strict compliance of the procedure laid down in Rule 59(b) of Part III KSR. The Tribunal noticed that as per Annexure-A2 report of the Tahsildar, the applicant seeking acceptance of basic tax had not produced any document showing their possession over the property. The Tribunal also took stock of the fact that the Tahsildar had not reported in favour of acceptance of tax, but only sought for a direction from the Revenue Divisional Officer as to whether tax could be accepted or not. On the strength of such findings, the action impugned vide Annexures-A5 and O.P.(KAT).No.43/2023 6 A7 were confirmed by the Tribunal and the O.A. was dismissed. **6.** Heard Sri.Asok Kumar, learned counsel for the petitioner/applicant and Sri.K.P.Harish, learned Senior Government Pleader on behalf of the respondents. Perused the records. **7.** Learned counsel for the petitioner argued that based on a single instance, where the petitioner/applicant had issued an order for acceptance of basic tax, one cannot arrive at a conclusion that the service of the petitioner/applicant has not been thoroughly satisfactory, especially so, when the petitioner/applicant had an unblemished service, but for the present instance alleged by the respondents. It was further urged that Rule 59(b) cannot be resorted to as a short cut, without proving any allegation of misconduct, that too after the petitioner had retired from service. It was further urged that the satisfaction as to whether the service of an employee has been or has not been thoroughly satisfactory is an exercise which should be done ordinarily at the end of the career of an employee, taking into account the service records of the entire period of service, and not on the basis of a single instance, as has O.P.(KAT).No.43/2023 7 been done in the present case. Learned counsel would conclude that the legal requirements to invoke Rule 59(b) are not satisfied in the instant facts. **8.** Per contra, the learned Government Pleader argued to sustain Annexures-A5 and A7 orders, maintaining that they are perfectly legal and justified. **9.** Having heard the learned counsel appearing on both sides, we find considerable force in the contentions raised by the learned counsel for the petitioner/applicant that the requirements of Rule 59(b) of Part III KSR has not been satisfied to invoke the said provision so as to reduce the monthly pension of the applicant. Rule 59, as it stood prior to the introduction of sub rules (c) and (d) inserted as per G.O.(P) 192/2018/Fin dated 11.12.2018, reads as follows: _“_ _**59. Award of full pension** .-(a) The full pension admissible under this rule is 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.”_ O.P.(KAT).No.43/2023 8 Sub-rules (c) and (d) were introduced as per G.O.(P) dated 11.12.2018 afore referred, enabling the Government's right to withdraw pension on the event of a pensioner being found guilty after retirement and in respect of an employee who had committed offence while in service, but against whom disciplinary action was not initiated while in service. We are not concerned with sub rules (c) and (d) in the given facts, for, Annexure-A3 show-cause notice proposing action under Rule 59(b) is dated 17.3.2015, much earlier to the date on which the amendment came into force. **10.** We notice that the action of the respondents vide Annexure-A5, reiterated by virtue of Annexure-A7, is squarely in the teeth of a Bench decision of this Court authored by one among us [Alexander Thomas, J.] in **Secretary to the Government v. Sadanandan** [2021 (1) KLT OnLine 1055 : 2021 (2) KHC 497], in which decision two other judgments, namely, **Joseph v. State of Kerala** [1994 (1) KLT 716] and **Ponnamma v. Secretary to Government** [2011 (2) KLT 277] were taken stock of and relied upon. In **Joseph** (supra), a Single Judge of O.P.(KAT).No.43/2023 9 this Court held, in paragraph no.10, that in the absence of a specific charge that the Government has suffered any loss on account of the act/omission of the Government servant, there is no justification for an enquiry under Rule 3 Part III KSR. If such an enquiry is found to be non-feasible, an action under Rule 59(b) Part III KSR based on the same cannot withstand the test of law. Further findings in paragraph nos.14 and 15 of the judgment are extracted here below:- “ _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 put in by the employee concerned. …....................... To initiate action under Rule 59 against the petitioner, Government has to form a bona fide opinion that the service of the employee has not been thoroughly satisfactory after giving the employee concerned an_ O.P.(KAT).No.43/2023 10 _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._ _15...…......................................................................................._ _The above Government decisions, especially decision No. 2(b) would clearly show that the employee's service as a whole should be taken note of to form an opinion that his service as a whole failed to reach thoroughly satisfactory standard as a condition precedent for the exercise of power under the Rule. …......................................................._ _Normally the failure of standard of service on a particular instance cannot safely be relied upon as the basis for forming an opinion that employee's service as a whole has failed to reach thoroughly satisfactory standard. Of course, as indicated in Government decision 2(a) even a specific instance may be sufficient to reach a conclusion that the service of an employee has failed to reach thoroughly satisfactory standard. In such cases even if during the entire period one might have performed satisfactorily the fraud and negligence established on one occasion may be sufficient to hold that his service as a whole has failed to reach thoroughly satisfactory standard._ _(underlined by us for emphasis)_ O.P.(KAT).No.43/2023 11 ## **11.** In **Ponnamma** (supra), another learned Single Judge held in paragraph no.6 as follows:- _“6. …........................................... 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. …..............................._ _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. …............................................... The satisfaction of the government under R. 59(b) of Part III of K.S.R., that the service_ O.P.(KAT).No.43/2023 12 _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. “_ ## **12.** Both these judgments were quoted with approval by the Division Bench in **Sadanandan** (supra). The relevant findings in paragraph no.10 are as follows:- _“10. ….......................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 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. …..........................................................................................._ O.P.(KAT).No.43/2023 13 _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. …...........................................”_ **13.** The Division Bench went on to hold that in respect of specified misconducts alleged, the power available is as per the regular provisions contained in the KCS (CC&A) Rules, in which case, the Governmental authorities have to finalize the disciplinary proceedings in a fair and reasonable manner, after fulfilling all the procedural formalities and that, if such proceedings could not have been initiated before the retirement of the incumbent, despite _bona fide_ and diligent efforts, then the option is to continue the proceedings in terms of Rule 3 Part III KSR. The Division Bench in Sadanandan (supra) concluded by holding that the purported exercise of the powers under Rule 59(b) in such a case of specified misconduct, instead of resorting to Rule 3 of Part III KSR, would be nothing but a colourable exercise of power. **14.** Coming to the facts at hand, we notice that recourse to Rule 59(b) of Part III KSR has been made based on a single instance alleging O.P.(KAT).No.43/2023 14 illegality in the matter of acceptance of land tax. There is no allegation that the Government had suffered any loss as a consequence of the above referred objectionable conduct of the petitioner. Per contra, the petitioner would maintain that the Government only stood to gain by collecting the land tax legitimately due to it. The only allegation raised is that the petitioner did not insist for the supporting documents showing possession and title and had also failed to consider the applicability of the Kerala Escheats and Forfeitures Act, 1964. We are not, in any way, undermining the seriousness of the allegation levelled. However, on the basis of a solitary instance constituting the allegation, the subjective satisfaction under Rule 59(b) of Part III KSR to the effect that the whole service of the petitioner was not thoroughly satisfactory cannot be arrived, more so in the nature of the allegations levelled in the instant facts, which cannot be characterised as a grave one, shocking the conscience and shaking the public confidence in the system. **15.** Going by the dictum laid down in **Sadanandan** (supra), which followed **Joseph** and **Ponnamma** (supra), we are not in a position to sustain the action of the respondents of reducing Rs.500/- from the O.P.(KAT).No.43/2023 15 monthly pension of the petitioner by placing purported reliance upon Rule 59(b) of Part III KSR. In these circumstances, this O.P. is allowed, quashing Annexure-A5 and A7 orders and directing the respondents to grant full pension to the petitioner/applicant. The amounts, if any, deducted pursuant to Annexure-A5 order, shall be paid to the petitioner/applicant within a period of three months from the date of receipt of a copy of this judgment. We make it clear that we have considered only the impact of the unamended provisions of Rule 59 supra. This Original Petition is disposed of as above. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- skj **C. JAYACHANDRAN, JUDGE** O.P.(KAT).No.43/2023 16 ## **APPENDIX OF OP(KAT) 43/2023** PETITIONER'S ANNEXURES: |Exhibit P-1|A TRUE COPY OF THE O.A. NO. 301/2018 WITH| |---|---| ||ANNEXURES| |Annexure A-1|TRUE COPY OF THE REPORT NO. 205/13 OF THE| ||VILLAGE OFFICER, PURATHUR DATED 21.10.2013 IN| ||OA| |Annexure A-2|TRUE COPY OF THE REPORT NO. B6-14548/13 OF| ||TAHSILDAR, TIRUR DATED 02.12.2013 IN OA| |Annexure A-3|TRUE COPY OF SHOW CAUSE NOTICE NO.| ||56246/D3/14/RD DATED 17.03.2015 ISSUED BY THE| ||1ST RESPONDENT IN OA| |Annexure A-4|TRUE COPY OF THE REPLY DATED 30.04.2015| ||SUBMITTED BY THE APPLICANT BEFORE THE 1ST| ||RESPONDENT| |Annexure A-5|TRUE COPY OF G.O.(Rt) NO.2683/2017/Rev| ||DATED 14.06.2017 ISSUED BY THE 1ST RESPONDENT| ||IN OA| |Annexure A-6|TRUE COPY OF THE REVIEW PETITION DATED| ||10.07.2017 SUBMITTED BY THE APPLICANT BEFORE| ||THE 1ST RESPONDENT IN OA| |Annexure A-7|TRUE COPY OF GO(R)5284/2017/Rev| ||DATED 11.12.2017 ISSUED BY THE 1ST RESPONDENT| ||IN OA| |Annexure A-8|TRUE COPY OF THE LETTER DATED 01.06.2011| ||ISSUED BY THE PRINCIPAL SECRETARY TO| ||GOVERNMENT (ELECTION) IN OA| |Annexure A-9|TRUE COPY OF THE GO(Rt) NO.3032/2016/Rev| ||DATED 26.7.2016 ISSUED BY THE 1ST RESPONDENT| ||IN OA| |Exhibit P-2|A TRUE COPY OF THE REPLY STATEMENT| |Exhibit P-3|CERTIFIED COPY OF THE OA 301/2018| ||DATED 12.12.2022| |Exhibit P4|TRUE COPY OF THE ORDER NO. E-15165/2013/KDis| ||DATED 28.03.2014 PASSED BY THE PETITIONER AS| ||REVENUE DIVISIONAL OFFICER, TIRUR| |Exhibit P5|TRUE COPY OF THE ORDER NO.B3/34546/2014| ||DATED 05.07.2014 OF THE DISTRICT COLLECTOR| ||MALAPPURAM REVOKING EXT.P4| |Exhibit P6|TRUE COPY OF THE REJOINDER|