K. Narayanan Nair v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 3RD DAY OF JUNE 2013/13TH JYAISHTA 1935 WP(C).No. 1857 of 2008 (U) --------------------------- PETITIONER(S): ------------------ K.NARAYANAN NAIR, U.D.CLERK, SREE PARIYANAMPATTA DEVASWOM, KATTUKULAM PALAKKAD DISTRICT. BY ADV. SRI.VINOD MADHAVAN RESPONDENT(S): -------------------- STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, REVENUE (DEVASWOM) DEPARTMENT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.T.R.RAJESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).1857/08 ## APPENDIX PETITIONER's EXHIBITS: P1:TRUE COPY OF ORDER DATED 10.5.2005 ISSUED BY THE RESPONDENT. - P2:TRUE COPY OF ORDER DATED 27.8.2005 ISSUED BY THE MANAGER, PARIYANAMPATTA DEVASWOM, KATTUKULAM. - P3:TRUE COPY OF THE ORDER DATED 28.6.2006 ISSUED BY THE ASSISTANT COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE INSTITUTION, PALAKKAD. - P4:TRUE COPY OF NOTICE DATED 3.6.2007 ISSUED BY THE GOVT.PRL.SECRETARY TO THE PETITIONER. P5:TRUE COPY OF JUDGMENT DATED 18.7.2007 IN W.P.(C).21321/07. P6:TRUE COPY OF ORDER DATED 29.12.2207 ISSUED BY THE RESPONDENT. RESPONDENT'S EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.1857 OF 2008 ==========================** Dated this the 3[rd] day of June, 2013 ## **JUDGMENT** The petitioner was working as the Manager at Pariyanampatta Temple in Palakkad District. While he was in service, disciplinary proceedings were initiated against him and he was placed under suspension with effect from 7.2.2001. Ultimately, the disciplinary proceedings initiated against the petitioner culminated in his removal from service as per order No.A2-5397/ 2004 dated 2.12.2004 of the Commissioner, Hindu Religious Charitable Institutions, on the ground of misappropriation of funds. Against the said order, the petitioner preferred a revision petition before the Government. That petition was disposed of as per Ext.P1 dated 10.5.2005 whereby the penalty of removal from service was interfered with and modified as a punishment of reduction in rank from the post of Manager to the post of U.D Clerk. Long later, the petitioner was served with Ext.P4 notice **W.P.(C).1857/08** 2 dated 30.6.2007 revealing the proposal of the Government to review Ext.P1. Subsequently, the said order passed by the Government was reviewed in and vide Ext.P6 and the petitioner was removed from service. This petition has been filed challenging Exts.P4 and P6 and also seeking for a declaration that the respondent got no jurisdiction to review Ext.P1 order. 2. I have heard the learned counsel for the petitioner and also the learned Government Pleader. No counter affidavit has been filed by the respondent. This writ petition was admitted as early as on 15.1.2008. Despite the lapse of more than 5 years the respondent has not chosen to file counter affidavit and hence, the only option is to decide the case with the available records. Manifold contentions have been raised by the petitioner to assail Exts.P4 and P6. The core contention is that in the absence of conferment of power to review, Ext.P1 order could not have been and should not have been reviewed. **W.P.(C).1857/08** 3 To buttress the said contention, learned counsel for the petitioner relies on the decision in **Dr.(Smt.) Kuntesh Gupta v. Management of Hindu Kanya Maha Vidyalaya, Sitapur (U.P) and others** reported in **1987 (4) SCC 525** . Originally, punishment of removal from service was imposed on the petitioner by the Commissioner, Hindu Religious Charitable Institutions. In the revision petition preferred against the same, Ext.P1 order was passed invoking the power under section 99 of the Hindu Religious and Charitable Endowments Act. There cannot be any dispute with respect to the power of the Government to exercise the power of revision of an order passed by the Commissioner, Hindu Religious Charitable Institutions. Ext.P1 is dated 10.5.2005. A perusal of Ext.P1 would reveal that though the revisional authority found that the petitioner deserved imposition of a penalty in the light of the proven misconduct on his part, on humanitarian consideration, it was found that penalty of dismissal from service should not have been imposed on him and **W.P.(C).1857/08** 4 accordingly, the rank of the petitioner was reduced by reverting him from the post of Manager to the post of U.D.Clerk. Later, Ext.P3 order was passed by the Commissioner, Hindu Religious Charitable Institutions fixing the salary of the petitioner on his reduction to the rank of U.D.Clerk. On 30.6.2007, Ext.P4 notice was issued intimating the petitioner that Ext.P1 order was found not in order and therefore, it was decided to initiate further steps against him and he was required to attend a personal hearing. Raising grievance against Ext.P4, the petitioner approached this Court by filing W.P.(C). No.21321 of 2007. Ext.P5 is the judgment passed thereon. Finding that Ext.P4 is only a notice and the petitioner was granted liberty to raise all his contentions including lack of jurisdiction on the part of the Government to reopen the matter and accordingly, this Court closed writ petition without prejudice to raise all such contentions. Subsequent to Ext.P5 judgment, Ext.P6 order was passed by the Government on 29.12.2007. Virtually, Ext.P1 order was reviewed as **W.P.(C).1857/08** 5 per Ext.P6. The question is whether the respondent is having any power to review Ext.P1. There can be little doubt with respect to the position that the power of review can be invoked only if it is specifically conferred. As already noticed hereinbefore, no counter affidavit has been filed in this case. So also, no provision for exercising the power of review has been brought to my notice by the learned Government Pleader. I am of the considered view that the petitioner is entitled to succeed in this petition on that sole ground. That apart, it is evident from Ext.P6 that the respondent arrived at a finding that reversion ordered as per Ext.P1 is not by way of a punishment. I am at a loss to understand as to what exactly is the basis for arriving at such a conclusion. Ext.P1 itself would debunk the said contention. Rule 15 of Hindu Religious and Charitable Endowment Rules would reveal that reduction to a lower grade is one of the penalties prescribed thereunder. While exercising the revisional power, after arriving at the conclusion that the petitioner deserved **W.P.(C).1857/08** 6 punishment based on the proven misconduct, it was found that on humanitarian grounds an extreme penalty is not called for and accordingly the penalty of removal from service imposed on the petitioner was modified as reduction to a lower grade. Exts.P2 and P3 would reveal that the decision in Ext.P1 was given effect to and indisputably, the petitioner joined in the post of U.D Clerk pursuant to the implementation of Ext.P1 order. It was after two years since Ext.P1 that Ext.P4 notice was issued to the petitioner and Ext.P6 order was passed finding that the reversion ordered as per Ext.P1 was not a punishment. It is to be noted that a perusal of Ext.P1itself would reveal that it is an order of reduction in rank that was imposed on the petitioner and that it is a prescribed penalty. The other reason assigned in Ext.P6 is to the effect that if the petitioner had continued as Manager, he should have retired at the age of 60 and by virtue of the reduction in rank, he could continue up to the age of 65. I am of the considered view that it is an inevitable impact of Ext.P1 as in the **W.P.(C).1857/08** 7 department, the age of retirement is prescribed and it depends admittedly on the post held by the person concerned. In other words, going by the service conditions, the Manager could continue only up to the age of 60 whereas U.D Clerk could continue in service up to 65 years. When a person is reduced to the rank of U.D Clerk on account of imposition of penalty while he was holding the post of Manager, he could not have been shown the door at the age of 60 holding the reason that, if he continued in the post of Manager he would have attained the age of superannuation at the age of 60 years. When the petitioner was given reduction in rank as UD Clerk, he is certainly entitled to all benefits attached to the post to which he was reverted. There is no case for the respondent that the U.D Clerk in the department has to retire at the age of 60. It is a fact that subsequent to giving effect to Ext.P1, the petitioner was allowed to join duty as U.D Clerk at Pariyanampatta Temple and while he was continuing as such, he was removed from service as per Ext.P6. In other words, but for **W.P.(C).1857/08** 8 Ext.P6 the petitioner could have continued in service as U.D Clerk till the attainment of the age of superannuation applicable to the post of U.D.Clerk. Since the revisional power was already exercised and it culminated in Ext.P1 in the absence of specific power to review the same Ext.P6 is liable to be interfered with. Once it is found that Ext.P6 order is passed without any jurisdiction inasmuch as there was absolute absence of any power to review Ext.P1 order ought not to have been issued. Accordingly, Ext.P6 order is set aside. The impact of quashment of Ext.P6 order is restoration of Ext.P1. Whatever be the consequential benefits available to the petitioner by virtue of implementation of Ext.P1 and quashment of Ext.P6, shall be extended to the petitioner expeditiously. It is submitted that the petitioner has now crossed the age of superannuation. If it is so, certainly there can be no reinstatement of the petitioner in service. But all other benefits to which the petitioner is legally entitled, including the retiral benefits if it is a pensionable service shall be computed and disbursed to the **W.P.(C).1857/08** 9 petitioner expeditiously, at any rate, within a period of six months from the date of receipt of a copy of the judgment. The writ petition is disposed of, accordingly. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).1857/08** 10 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **W.P.(C).1857/08** 11