K. Sivadas v Union of India & others (O.P.(CAT) No. 79/2021)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 6[TH] DAY OF APRIL 2022/16TH CHAITHRA, 1944 O.P.(CAT) NO. 79 OF 2021** **AGAINST THE ORDER IN O.A.NO.836/2017 OF THE CENTRAL** **ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/APPLICANT:** **K.SIVADAS, S/O LATE R.GOPALAN NAIR, AGED 72 YEARS, ASSISTANT (GENERAL)(RETD), REGIONAL RESEARCH LABORATORY, NOW KNOWN AS NATIONAL INSTITUTE FOR INTER DISCIPLINARY SCIENCE AND TECHNOLOGY (NIIST), THIRUVANANTHAPURAM, RESIDING AT HOUSE NO 128 A, KOONAMCHATH HOUSE, P.S.P.ROAD, KIDANGOOR, MARATHAMCODE P.O.THRISSUR DIST-680 604.** **BY ADVS. M/S. C.S.GOPALAKRISHNAN NAIR, T.VENUGOPAL & RASHMI K.R.** ## **RESPONDENTS/RESPONDENTS:** **1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF SCIENCE AND TECHNOLOGY, TECHNOLOGY BHAVAN, NEW MEHAURLI ROAD, NEW DELHI-110 016.** **2 DIRECTOR GENERAL, COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH, ANUSANDHAN BHAWAN, RAFI AHMED KIDWAI MARG, NEW DELHI-110 001.** O.P. (CAT) No. 79/2021 ..2.. **3 DIRECTOR, NATIONAL INSTITUTE FOR INTER-DISCIPLINARY SCIENCE AND TECHNOLOGY (NIIST), INDUSTRIAL ESTATE P.O., THIRUVANANTHAPURAM-695 019.** **4 ADMINISTRATIVE OFFICER, NATIONAL INSTITUTE FOR INTER-DISCIPLINARY, SCIENCE AND TECHNOLOGY(NIIST), INDUSTRIAL ESTATE P.O., THIRUVANANTHPAURAM-695 019.** **SRI.S.MANU, ASSISTANT SOLICITOR GENERAL OF INDIA FOR R1 SRI.A.D.RAVENDRA PRASAD, CENTRAL GOVERNMENT COUNSEL FOR R2 TO R4** **THIS O.P.(CAT) HAVING BEEN FINALLY HEARD ON** **2.12.2021, THE COURT ON 06.04.2022, DELIVERED THE FOLLOWING:** O.P. (CAT) No. 79/2021 ..3.. ## ALEXANDER THOMAS & VIJU ABRAHAM, JJ. **=======================================** O.P. (CAT) No. 79 of 2021 [ _arising out of the impugned final order dated 9.4.2021 in O.A. No. 836 of 2017 on the file of the CAT, Ekm Bench]_ **=======================================** Dated this the 6[th] day of April, 2022 ## J U D G M E N T ## ALEXANDER THOMAS, J. The unsuccessful applicant in the instant Original Application O.A. No. 836/2017 on the file of the Central Administrative Tribunal, Ernakulam Bench, is before us in the instant Original Petition (CAT) filed under Articles 226 & 227 of the Constitution of India with the following prayers: **“** _i. Issue appropriate order or direction calling for the records leading upto the issue of Exhibit P9 order and quash the same. ii. Issue appropriate direction or order and quash Annexure A1 in Exhibit. P1, Exhibit P5 and Exhibit P6._ _iii. Issue appropriate direction or order directing the 3rd respondent to sanction payment of salary from 16.10.2001 onwards till the date of superannuation i.e., 30.11.2009._ _iv. Issue appropriate direction or order directing the 3[rd] respondent to disburse the retirement benefits including leave salary taking into account the increments that would have been earned from 2002 till 2009, had he continued in service, within a time frame._ _v. Issue appropriate direction or order directing the_ O.P. (CAT) No. 79/2021 ..4.. _respondent to grant interest @12% for the entire arrears of salary, pension gratuity, leave salary etc., within a stipulated period._ _vi. Issue such direction or order which this Hon'ble Court deems fit, just and necessary in the nature and circumstances of the case._ _vii. Award costs of this Original Petition.”_ 2. The petitioner in the O.P. is the sole applicant in the O.A. and the respondents in the O.P. are the respondents in the O.A. The petitioner in the O.P. will be referred for convenience as original applicant/applicant. 3. Heard Sri.C.S.Gopalakrishnan Nair, learned counsel appearing for the petitioner in the O.P./sole applicant in the O.A., Sri.S.Manu, learned Assistant Solicitor General of India, appearing for the 1[st] respondent and Sri.A.D.Raveendra Prasad, learned counsel appearing for respondents 2 to 4. 4. The prayers in the instant Ext.P-1 Original Application O.A.No.836/2017 are as follows: “ i. _Quash Annexure A1 office memorandum of compulsory retirement issued to this applicant by the 2[nd] respondent and Annexure A6 order passed by the 4[th] respondent._ ii. _Direct the 3[rd] respondent to disburse the full salary for the period from 15-10-2001 till superannuation._ iii. _Direct the 3[rd] respondent to disburse full pensionary benefits right from the date of superannuation (date), less the pension amount including gratuity, PF and other terminal benefits already sanctioned and disbursed._ O.P. (CAT) No. 79/2021 ..5.. _iv. To grant 12% interest from the dates from which the amount became due till disbursement of the same to the applicant._ _v. Pass such other Orders or direction which this Honorable Tribunal may deem fit and proper in the circumstances of the case.”_ 5. The Tribunal, after hearing both sides, has rendered the impugned Ext.P-9 final order on 9.4.2021 dismissing O.A.No.836/2017 stating that no grounds are made out for granting relief in the present O.A. 6. A reference to the factual details in the case would be relevant. The applicant had joined as Lower Division Clerk (LDC) in the erstwhile Regional Research Laboratory (RRL), Thiruvananthapuram, in the year 1979. The Regional Research Laboratory (RRL) has been subsequently re-nomenclatured as the National Institute for Interdisciplinary Science and Technology (NIIST). The 3[rd] respondent RRL/NIIST comes under the 2[nd] respondent Council of Scientific & Industrial Research (CSIR). During his service under the 3[rd] respondent NIIST/RRL, the applicant was involved with the activities of the RRL Employees Co-operative Society, which is a co-operative society registered as per the provisions contained in the Kerala Co-operative Societies O.P. (CAT) No. 79/2021 ..6.. Act, 1969 and the rules framed thereunder, and he was also appointed as the Secretary of the said Employees Co-operative Society on 13.9.1993 and had continued till 16.12.1999 on a second term. He had contested in the next election conducted in the year 1999 and was elected. The Board of Directors of the said Cooperative Society had appointed another staff member of the RRL as the General Secretary of the said Employees Co-operative Society, to whom the applicant had given charges. The Board of Directors of the said Co-operative Society had taken the stand that on examination of records, it was found that the applicant had committed grave financial irregularities and misappropriation of the funds of the Society by printing duplicate books, etc. Further, it appears that the applicant had given a letter to the new Secretary of the Co-operative Society enclosing therewith Cheque No.006798 of the State Bank of Travancore dated 13.3.2000 for Rs.12,50,000/- towards the amount of shortfall found in the preliminary audit of the Society, and he had also undertaken to refund any further shortfall, if any. He had also requested that if the shortfall is less than the cheque amount given, then the excess O.P. (CAT) No. 79/2021 ..7.. amount may be refunded. Later, the applicant had given instructions to his bank to stop payment of said cheque amount to the Co-operative Society, and the cheque was bounced. 7. The Secretary of the RRL Co-operative Society had forwarded letter dated 1.2.2000 to the 3[rd] respondent Director, NIIST/RRL, intimating about the case of financial misappropriation and discrepancies, and also intimating about the communication earlier sent by the Society to the Registrar of Co-operative Societies, requesting for vigilance enquiry. Based on these materials, the 3[rd] respondent Director, NIIST/RRL, had appointed a Fact Finding Committee, who furnished a report on 1.6.2000 finding gross misappropriation and mismanagement of the funds of the Co-operative Society by the applicant. The Committee also reported that the applicant did not denied the charges against him in his reply. Further, it was also apprised that the Joint Registrar of Co-operative Societies, Kerala, had also ordered for a vigilance enquiry. Further that, the Assistant Registrar (Vigilance) of the Co-operative Societies, in his report dated 1.4.2000 had also reported about lot of malpractices and O.P. (CAT) No. 79/2021 ..8.. financial misappropriation at the instance of the applicant, and also about the factum of the applicant handing over a cheque of Rs.12,50,000/-. 8. Taking into consideration these factual materials, the competent disciplinary authority among the respondents had passed an order on 18.10.2000 placing the applicant under suspension of service. Anx.R-8 memo of charges dated 15.12.2000 was also issued to the applicant. Further, according to the respondents in the O.A., an enquiry was also conducted after due procedure as envisaged in Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 _[hereinafter referred to as “The CCS (CCA) Rules”]_ and according to the respondents in the O.A., the applicant had practically pleaded guilty to all the charges. The enquiry authority had furnished Anx.R-10 enquiry report stating that all the charges levelled against the applicant were proved. Further that, the applicant had made a request to the disciplinary authority to allow him to clear the dues within 2 months as per his letter dated 14.6.2001, and he had made several requests for extension of time till 11.10.2001 for O.P. (CAT) No. 79/2021 ..9.. enabling him to deposit the misappropriated amounts, and that copies of said request of the applicant have been produced at Anxs.R-12 to R-15, which according to the respondents in the O.A. would reveal that the applicant had, in fact, admitted about the misappropriation of funds. Later, the disciplinary authority had afforded a reasonable opportunity of being heard to the applicant and after considering his written explanation, Anx.A-1 proceedings dated 15.10.2001 was issued by the 3[rd] respondent Director, NIIST/RRL (disciplinary authority) ordering that the major penalty of compulsory retirement from service w.e.f. 15.10.2001 will stand imposed on the applicant. However, it has been stated in Anx.A-1 dated 15.10.2001 that the said order has been issued in exercise of the powers conferred under Rule 19(i) of the CCS (CCA) Rules. The respondents in the O.A have taken the stand that the recital of Rule 19(i) in Anx.A-1 was a mistake inasmuch as no criminal case was involved in the instant case, and that as a matter of fact, detailed enquiry under Rule 14 of the CCS (CCA) Rules was conducted in the instant case, and that therefore, the said major penalty has, in fact, been imposed with reference to that Rule and O.P. (CAT) No. 79/2021 ..10.. not under Rule 19(i) thereof. 9. The contents of Ext.P-6 herein would indicate that the applicant had preferred an appeal dated 24.12.2001 to impugn the major penalty imposed as per Anx.A-1 dated 15.10.2001 and the 2[nd] respondent Director General, CSIR, in his capacity as the appellate authority, has rejected the said appeal dated 24.12.2001 as per appellate order dated 9.5.2002, and thus confirming Anx.A-1 major penalty order dated 15.10.2001. Later, it appears that the 3[rd] respondent NIIST/RRL had issued Ext.P-5 order dated 22.5.2002 by invoking the provisions contained in Rule 40 of the CCS (Pension) Rules, 1972, ordering that in consequence of major penalty of compulsory retirement ordered as per Anx.A-1, the applicant will be sanctioned pension at the rate of 70% of the Compensation Pension plus gratuity, etc. Being aggrieved by Ext.P-5 order dated 22.5.2002, the applicant had preferred appeal dated 30.11.2002 and the appellate authority (2[nd] respondent, Director, CSIR) has dismissed the said appeal as per Ext.P-6 appellate order dated 16.1.2003. 10. Earlier, the applicant had filed a Writ Petition (Civil) as O.P. (CAT) No. 79/2021 ..11.. ## WP(C).No.38611/2003 before this Court on 5.12.2003 with the following prayers: _“A) A writ of certiorari, or any other appropriate writ, or order quashing Exhibits P-2, P-4 and P-5 orders issued by the 2[nd] respondent,_ _B) A writ of mandamus, or any other appropriate writ, or order directing the 2[nd] respondent to grant full pensionary benefits including gratuity, DCRG and commuted pension to the petitioner and disburse the same in accordance with law,_ _C) Such other writ, order or direction as this Honourable Court may deem fit and proper under the circumstances of the above case.”_ 11. It will be relevant to note that the impugned orders at Exts.P-2, P-4 & P-5 in the said WP(C).No.38611/2003 are order dated 22.5.2002 (Ext.P-5 herein), order dated 21.10.2002 and appellate order dated 16.1.2003 (Ext.P-6 herein). The said WP(C).No.38611/2003 was dismissed by this Court as per judgment dated 17.6.2010 on the ground that it is not maintainable inasmuch as, the respondent authorities have been notified within the ambit of the Administrative Tribunals Act, 1985, and therefore, the applicant will have to approach the Central Administrative Tribunal. It may also be relevant to note that no prayer has been made out by the petitioner in above WP(C).No.38611/2003 to O.P. (CAT) No. 79/2021 ..12.. challenge Anx.A-1 herein (which is the basic major penalty order of compulsory retirement from service imposed on 15.10.2001) as well as the appellate order dated 9.5.2002 confirming Anx.A-1 major penalty order. On the other hand, what was challenged in WP(C).No.38611/2003 are Exts.P-5 & P-6 herein, which are the consequential orders passed under Rule 40 of the CCS (Pension) Rules, for sanction of reduced pension in the light of the basic major penalty order at Anx.A-1. 12. Further, it appears that the applicant had preferred yet another Writ Petition (Civil) as WP(C).No.2109/2005 wherein this Court had rendered Anx.A-2 judgment dated 18.12.2008 disposing of said WP(C).No.2109/2005, giving liberty to the applicant to approach R-2 therein (The Director, RRL) and R-3 therein (The Registrar of Co-operative Societies, Kerala). A reading of Anx.A-2 judgment would indicate that the petitioner therein was primarily aggrieved by the disciplinary proceedings initiated against him pursuant to Ext.P-1 charge sheet dated 1.2.2001. The petitioner has not stated about the prayers in Anx.A-2 WP(C).No.2109/2005 in his pleadings in the present case. O.P. (CAT) No. 79/2021 ..13.. However, all what is clear from a reading of Anx.A-2 and its index given on page 31 of the paper book of this O.P. is that only 4 documents have been produced therein and that Ext.P-1 therein is the memo of charges dated 1.2.2001 issued to the petitioner presumably in the abovesaid disciplinary proceedings and Ext.P-4 therein, is a letter dated 30.7.2002 issued by R-2 therein (The Director, RRL), Ext.P-2 therein is the audit report dated 7.8.2000, presumably issued by the Co-operative Department of the State Government and Ext.P-3 therein is letter dated nil issued by the Secretary of abovesaid RRL Employees Co-operative Society. All what we can infer from the limited materials given at Anx.A-2 is that the applicant had raised grievances therein both R-2 therein (The Director, RRL) and R-3 therein (The Registrar of Co-operative Societies), and he has been given liberty to approach those authorities with his grievances or to workout his remedies before the appropriate forum. It appears from a reading of Anx.A-2 that no challenge has been made by the applicant in Anx.A-2 Writ Petition as against Anx.A-1 major penalty order dated 15.10.2001 and appellate order dated 9.5.2002. O.P. (CAT) No. 79/2021 ..14.. 13. From a reading of para 8 on page 8 of Ext.P-9 verdict of the Tribunal in this case, it appears that the charge sheet/memo of charges issued to the applicant is stated to be Anx.R-8 issued on 15.12.2000, whereas the charge sheet mentioned as Ext.P-1 in Anx.A-2 Writ Petition is said to have been issued on 1.2.2001. So, whether the charge sheet dated 1.2.2001 referred to as Ext.P-1 in Anx.A-2 WP(C).No.2109/2005 is in relation to the present disciplinary action, finalized as per Anx.A-1 herein, appears to be doubtful. It can be more or less inferred that no challenge has been made by the applicant in Anx.A-2 WP(C) as against the memo of charges dated 15.12.2000 (Anx.R-8 herein), the major penalty at Anx.A-1 and the appellate order issued on 9.5.2002, etc. Later, it appears that the applicant had filed a petition as Arbitration Reference Case A.R.C.No.426/2012 before the Assistant Registrar (General) of the Co-operative Societies under Sec.69 of the Kerala Co-operative Societies Act, 1969, for orders of said statutory authority that the proceedings taken against him by the Employees Co-operative Society for alleged misappropriation etc, is factually and legally wrong and has been taken behind his back, etc. O.P. (CAT) No. 79/2021 ..15.. Anx.A-3 would indicate that the respondent arrayed in A.R.C.No.426/2012 is the Secretary of the RRL Employees Co-operative Society. 14. The respondents in the present O.A have a specific case that the post of the Secretary of the RRL Employees Co-operative Society, was vacant for a long time, and at the relevant time, it was under an Administrator, and that the applicant had never impleaded the Administrator of the Society, with the result that none could appear on behalf of the said Co-operative Society, etc. 15. Be that as it may, it appears that the respondent therein never appeared before the Arbitrator (Assistant Registrar) who has passed an _ex parte_ order at Anx.A-3 dated 16.4.2014, the operative portion of which reads as follows: _“As the respondent failed to produce any documents or witnesses for proving the allegations the petitioner who was holding the post of Honorary Secretary RRL Employees Cooperative Society Ltd.No.T860, the petitioner found not guilty. Hence the proceedings taken against the petitioner by respondent cannot sustain. Hence the petition is allowed._ _As this Forum has no jurisdiction in matters regarding Service, the petitioner is at liberty to approach appropriate forum to redress his grievance to that effect.”_ 16. Thereafter, the applicant has filed Ext.P-11 O.A. No.713/2016 before the Central Administrative Tribunal, O.P. (CAT) No. 79/2021 ..16.. Ernakulam Bench, on 28.6.2016 with the following prayers: _“_ _i. Quash Annexure A1 office memorandum of compulsory retirement issued to this applicant by the 2[nd] respondent. ii. Issue writ of mandamus to the 3[rd] respondent to disburse the full salary for the period from 15-10-2001 till superannuation._ _iii. date of Issue writ of mandamus to the 3[rd] respondent to disburse full pensionary benefits right from the date of superannuation (date), less the pension amount including gratuity, PF and other terminal benefits already sanctioned and disbursed._ _iv. To grant 12 % interest from the dates from which the amount became due till disbursement of the same to the applicant._ _v. Pass such other Orders or direction which this Honorable Tribunal may deem fit and proper in the circumstances of the case.”_ 17. The impugned Anx.A-1 in Ext.P-11 O.A. No.713/2016 is the major penalty order of compulsory retirement from service w.e.f. 15.10.2001. So, it appears that for the first time, the applicant has challenged the impugned penalty at Anx.A-1 herein, only when he has filed Ext.P-11 O.A. No.713/2016 on 28.6.2016. It is also relevant to note that there is no prayer in Ext.P-11 O.A. No.713/2016 for quashment of the appellate order dated 24.12.2001, confirming Anx.A-1 herein as well as the consequential orders of fixing the reduced pension on compulsory retirement as per Ext.P-5 herein, which was confirmed by appellate order as per O.P. (CAT) No. 79/2021 ..17.. Ext.P-6 herein. The Tribunal, has finally disposed of Ext.P-11 O.A. No.713/2016 as per Anx.A-5 final order dated 23.8.2016 in that O.A. A reading of Anx.A-5 would indicate that the condition put forward to the applicant therein was the impugned penalty proceedings taken against the applicant have been held to be not maintainable as per Anx.A-3 therein (which is Anx.A-3 herein issued by the Assistant Registrar of Co-operative Societies, Kerala), and therefore the charges will not sustain and hence, he is entitled to get full pension and other retirement benefits, and he has already filed representation dated 12.2.2016 before the 3[rd] respondent disciplinary authority (Anx.A-4 therein which is Anx.A-4 herein), etc. The Tribunal, without getting into the merits of the controversy in any manner, has directed that R-3 therein/R-3 herein will dispose of the representation dated 12.2.2016 (Anx.A-4 therein which is Anx.A-4 herein) in the light of the proceedings dated 16.4.2014 issued by the Assistant Registrar of Co-operative Societies, Kerala, as per Anx.A-3 therein/Anx.A-3 herein and orders maybe passed in two months, etc. 18. Thereafter, in compliance with Anx.A-5 order of the O.P. (CAT) No. 79/2021 ..18.. Tribunal, the 3[rd] respondent disciplinary authority has passed Anx.A-6 order dated 17.1.2017 rejecting Anx.A-4 representation dated 12.2.2016. It is thereafter that the applicant has filed the instant Ext.P-1 Original Application, O.A. No. 836/2017 before the Central Administrative Tribunal, Ernakulam Bench. 19. The prayers in the instant Ext.P-1 Original Application, O.A. No. 836/2017 are for quashment of the major penalty order at Anx.A-1 herein, and also quashment of Anx.A-6 order dated 23.8.2016, and for direction to R-3 to disburse the full salary for the period from 15.10.2001 till superannuation, and for a direction to disburse all pensionary benefits from the date of superannuation, less the pension amount including gratuity, PF and other terminal benefits already sanctioned and disbursed, and to grant that the said amounts should carry interest at the rate of 12% p.a. from due date till actual disbursal, etc. 20. The instant Ext.P-1 Original Application, O.A. No. 836/2017 filed on 9.10.2017 has been dismissed by the Tribunal, as per the present impugned final verdict of the Tribunal rendered as per Ext.P-9 on 9.4.2021. It is later that the applicant has filed the O.P. (CAT) No. 79/2021 ..19.. present original petition, O.P.(CAT) No.79/2021 before this Court on 10.11.2021. 21. The prayers in the present O.P. are for quashment of the impugned Ext.P-9 verdict of the Tribunal dismissing the instant O.A.No. 836/2017, and for quashment of the major penalty order at Anx.A-1 in Ext.P-1 herein, and also for quashment of Exts.P-5 & P-6 herein. It may be relevant to note that in the instant Ext.P-1 O.A.No.836/2017, the applicant has not sought for any prayers for quashment of the impugned proceedings at Exts.P-5 & P-6 herein which consequentially orders for grant of reduced pension in terms of Rule 40 of the CCS (Pension) Rules, in pursuance of the major penalty order at Anx.A-1 herein. It is the abovesaid verdict of the Tribunal at Ext.P-9 dismissing the instant O.A. No.836/2017, that is under challenge in the present original petition. 22. We have heard both sides _in extenso,_ and have gone through the documents, and we have also called for the original case papers in relation to the abovesaid disposed WP(C).No. 38611/2003, etc. At the outset it has to be noted that Anx.A-1 O.P. (CAT) No. 79/2021 ..20.. major penalty order has been issued by the 3[rd] respondent as early as on 15.10.2001, and the appeal preferred by the applicant against Anx.A-1 herein has also been dismissed as per appellate order dated 9.5.2002 issued by the 2[nd] respondent Director General, CSIR. 23. The applicant has earlier filed WP(C).No. 38611/2003 before this Court on 5.12.2003, wherein the prayers therein were only for quashment of Ext.P-2 therein (Ext.P-5 herein), Ext.P-5 therein (Ext.P-6 herein) and an order dated 21.10.2002 issued by the 3[rd] respondent NIIST/RRL rejecting representations dated 31.5.2002, 29.7.2002, 10.9.2002 submitted by the applicant. Ext.P-4 therein has been _inter alia_ rejected the representation dated 29.7.2002, which has been produced as Ext.P-3 therein, and the main plea therein was for enhancing the pension sanctioned as per Ext.P-5 herein (Ext.P-2 therein) from 70% to 100 %. Thus, it can be seen from a reading of the prayers in WP(C).No. 38611/2003 that the applicant has not chosen to challenge the basic penalty order at Anx.A-1 herein, as well as the confirmatory appellate order dated 9.5.2002. The petitioner has chosen to O.P. (CAT) No. 79/2021 ..21.. challenge only the consequential pension sanctioning orders at Exts.P-5 & Ext.P-6 herein, and the pleadings in the representation was for grant of full pension instead of the reduced pension at the rate of 70% sanctioned by Ext.P-5 herein. As mentioned earlier, this Court was then apprised that the jurisdiction for adjudicating the dispute raised in that WP(C) was vested with the Central Administrative Tribunal in view of the notification issued under the Administrative Tribunals Act, 1985, and hence this Court has passed the judgment dated 17.6.2010 dismissing WP(C).No.38611/2003 as not maintainable, with liberty to the petitioner to approach the Central Administrative Tribunal. 24. After filing of the earlier WP(C).No.38611/2003, the applicant has chosen to file Anx.A-2 WP(C).No.2109/2005 before this Court and as mentioned herein above, though a charge sheet dated 1.2.2001 has been produced as Ext.P-1 therein, the charge sheet in the instant case referred to in the present impugned verdict of the Tribunal, as Anx.R-8 dated 15.12.2000 has not been produced and challenged therein, and the challenge was also sought to be made against the audit report of the Co-Operative O.P. (CAT) No. 79/2021 ..22.. Department of the State Government, etc. This Court, without getting into the merits of the matter in any manner has passed Anx.A-2 judgment on 18.12.2008 disposing WP(C).No.2109/2005 with liberty to the petitioner to either approach R-2 therein (disciplinary authority) and R-3 therein (The Registrar of Co-operative societies) or to workout remedy before the appropriate adjudicative forum. Suffice to say, that even from the materials made available to this Court, it can be inferred that even in Anx.A-2 WP(C).No.2109/2005, no challenge was made by the applicant as against the basic penalty order at Anx.A-1 herein and its confirmatory order, and not even a formal challenge has been mounted as against Exts.P-5 & Ext.P-6 herein. 25. So, from the pleadings and materials on record, it appears that for the first time the applicant has chosen to challenge the basic penalty order at Anx.A-1 herein, issued as early as on 15.10.2001, by filing Ext.P-11 O.A. No. 713/2016 before the Tribunal on 28.6.2016, wherein a challenge was made against the penalty order at Anx.A-1 therein, but not as against any of the consequential orders. A prayer is also made in the instant Ext.P-1 O.P. (CAT) No. 79/2021 ..23.. O.A. No.836/2017 for quashment of the penalty order at Axn.A-1 herein. So, from the abovesaid facts, it is indisputable that the applicant has chosen to challenge the penalty order at Anx.A-1 herein issued as early as on 15.10.2001 only by the filing of Ext.P-11 O.A. No. 713/2016 on 28.6.2016. Not even the appellate order confirming Anx.A-1 herein has been challenged in Ext.P-11 O.A. 26. So, we have no hesitation to hold that the plea of the applicant against the legality and correctness of the basic penalty order at Anx.A-1 herein dated 15.10.2001 is highly belated, and is only to be thrown out on the ground of inordinate delay and laches. Moreover, such a plea would also be barred by a period of limitation prescribed in the Administrative Tribunals Act, 1985. Since the challenge as against Anx.A-1 penalty order was made only belatedly on 28.6.2016 by the filing of Ext.P-11 O.A. No. 713/2016, consequently it is only to be held that the subsequent challenge made in the instant Ext.P-1 O.A. No. 836/2017 as against Anx.A-1 penalty order is also barred by inordinate delay and laches, and also barred by period of limitation prescribed in O.P. (CAT) No. 79/2021 ..24.. Administrative Tribunals Act. Moreover, in the first litigative proceedings set in motion by the applicant as per WP(C).No.38611/2003, the applicant has never chosen to challenge the basic penalty order at Anx.A-1 herein, and its appellate confirmatory order, and the only challenge in that WP(C) was against Exts.P-5 & P-6 herein, and the rejection of representations for enhancing the pension from 70% to 100%. Hence, it can be seen that even in WP(C).No.38611/2003 filed by the applicant on 5.12.2003, no prayers have been made as against Anx.A-1 herein. True, that the challenge as against Exts.P-5 & P-6 herein, have been made in WP(C).No.38611/2003 filed on 5.12.2003. No prayer was made by the applicant for quashment of Exts.P-5 & P-6 herein in the subsequent Anx.A-2 WP(C).No.2109/2005. Since the challenge as against the basic penalty order at Anx.A-1 herein is barred by inordinate delay and laches, and is also barred by limitation, the challenge as against Exts.P-5 & P-6 herein should also fail. However, the merits of those aspects could be considered later. 27. The 3[rd] respondent disciplinary authority has taken the O.P. (CAT) No. 79/2021 ..25.. clear stand in the impugned Anx.A-6 order dated 17.1.2017 rejecting Anx.A-4 representation in compliance with Anx.A-5 verdict of the Tribunal in O.A. No. 713/2016, that merely because the Assistant Registrar of Co-operative Societies has passed an _ex-parte_ order at Anx.A-3 dated 16.4.2014, will not in any manner detrimentally affect the disciplinary proceedings duly initiated and finalized against the applicant as per Anx.A-1 herein. It has to be noted that from the pleadings and materials on record, the Tribunal has made detailed reference to the disciplinary proceedings initiated against the applicant, especially the suspension order, the memo of charges and the enquiry report, and it is thereafter that the disciplinary authority has passed Anx.A-1 order dated 15.10.2001 ordering the imposition of major penalty of compulsory retirement on the applicant, w.e.f 15.10.2001. The statutory appeal has also been rejected as early as on 9.5.2002. Of course, the applicant has raised a technical ground that the recital of the provision contained in Rule 19(i) CCS (CCA) Rules, as a source of power for issuing Anx.A-1 penalty order, is clearly wrong, inasmuch as no criminal proceedings was initiated O.P. (CAT) No. 79/2021 ..26.. against the applicant. The Tribunal has rightly held that the recital of Rule 19(i) of the CCS (CCA) Rules in Anx.A-1 penalty order is an error. The respondents in the O.A. have explained that the same was a mistake, and that detailed enquiry proceedings in terms of Rule 14 of the CCS (CCA) Rules was taken against the applicant, and it is thereafter that the same has been culminated in Anx.A-1 major penalty order and so, the proper source of power for the imposition of major penalty at Anx.A-1 is Rule 14 of the CCS (CCA) Rules. 28. It is well settled that the mere recital of the wrong legal provision in an impugned proceedings by itself cannot be a ground for holding the same as illegal and _ultra vires_ , and if in substance, the source of power be traced to some other provision and the order is otherwise not vitiated, then interdiction, merely on the ground of mistaken recital of a rule, is not a proper approach in judicial review proceedings. Hence, we fully agree with the said view taken by the Tribunal that Anx.A-1 cannot be successfully challenged merely on account of the recital of the wrong provision of rule therein. As regards Anx.A-3 it can be seen that the same is O.P. (CAT) No. 79/2021 ..27.. an _ex parte_ order passed by the Assistant Registrar of Co-operative Societies, Kerala, in terms of Sec.70 of the Kerala Co-operative Societies Act, 1969. The Tribunal has taken note of the specific plea taken by the respondents in the O.A. that at the relevant time, there was no Secretary for the RRL Employees Co-Operative Society, and only an Administrator was appointed, and that the applicant was in the know of things, and he has chosen to implead only the Secretary in Anx.A-3 proceedings, and since the Administrator was not impleaded, none had appeared before the Assistant Registrar, which resulted in Anx.A-3 _ex parte_ award. A reading of Anx.A-3 would make it clear like daylight that, all what has been stated therein is that since, none had appeared on behalf of the defendant therein/respondent therein, the plaint averments were admitted as true and hence, the _ex parte_ order in the nature of Anx.A-3 was passed. Therefore, we are of the view that the Tribunal was fully right in holding that mere issuance of Anx.A-3 order, cannot be the basis for, in any manner, disturbing a disciplinary proceedings concluded and finalized in the manner known to law, at Anx.A-1 herein. O.P. (CAT) No. 79/2021 ..28.. 29. Detailed factual aspects are dealt with in the impugned verdict of the Tribunal at Ext.P-9, about the materials adduced in the enquiry proceedings as well as the consistent conduct of the applicant in even acknowledging the liability and even tendering a cheque for more than Rs.12,50,000/- and then making cheque bounce, etc. Further, it is also stated that even after the issuance of the memo of charges, the applicant had undertaken before the disciplinary authority that the alleged misappropriated amount would be refunded by him, etc. Taking note of all these aspects, the impugned proceedings at Anx.A-1 herein as well Exts.P-5 & P-6 herein, cannot be faulted. Ext.P-5 herein has been issued under Rule 40 of the CCS (Pension) Rules in consequence to the major penalty of compulsory retirement imposed as per Anx.A-1 herein. 30. Rule 40 of the CCS (Pension) Rules, 1972, provides as follows: ## _“_ _**40. Compulsory retirement pension**_ _(1) A Government servant compulsorily retired from service as a penalty may be granted, by the authority competent to impose such penalty, pension or gratuity or both at a rate not less than two-thirds and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement._ _(2) Whenever in the case of a Government servant the President passes an order (whether original, appellate or in exercise of power of review) awarding a pension less than the_ O.P. (CAT) No. 79/2021 ..29.. _full compensation pension admissible under these rules, the Union Public Service Commission shall be consulted before such order is passed._ _EXPLANATION. In this sub-rule, the expression "pension" includes gratuity._ _(3) A pension granted or awarded under sub-rule (1) or, as the case may be, under sub-rule (2), shall not be less than the amount of Rupees three thousand five hundred per mensem.”_ 31. It is taking note of the proved charges and misdemeanor of the applicant/delinquent that the competent authority has passed Ext.P-5 herein in pursuance of Anx.A-1 penalty order, whereby pension has been sanctioned at the rate of 70%. Further, it has been noted that Exts.P-5 & P-6 herein have not been challenged in the instant Ext.P-1 O.A. Exts.P-5 & P-6 herein have been challenged only in the present O.P. Without challenging Exts.P-5 & P-6 herein in the O.A., there is no question of any litigant directly challenging such impugned proceedings in the Original Petition filed before this Court under Articles 226 & 227 of the Constitution of India inasmuch as, such challenge can be made only as against the verdict of the Tribunal and its decision making process. Since, no challenge has been made as against Exts.P-5 & P-6 herein in the Ext.P-1 O.A., there is no question of raising any challenge as against those proceedings in the present O.P. (CAT) No. 79/2021 ..30.. O.P. Moreover, the main ground urged by the applicant is on the basis of Anx.A-3 _ex parte_ award passed by the Assistant Registrar of Co-operative Societies, Kerala, as if the order holding that he is not responsible for the liability, by itself, would automatically cut the very root of the disciplinary proceedings at Anx.A-1 herein. The Arbitration Reference proceedings under Sec.69 of the Kerala Co-operative Societies Act, which culminated in Anx.A-3 and the disciplinary proceedings initiated under the CCS (CCA) Rules, which has culminated in Anx.A-1 herein, are two different, distinct and independent processes. Independent evidence have been adduced in the disciplinary enquiry proceedings which culminated in Anx.A-1, which later led to the consequential orders at Exts.P-5 & P-6. Therefore, it is only to be held that the main arguments raised by the applicant based on Anx.A-3 are untenable and unsustainable. 32. Sri.C.S.Gopalakrishnan Nair, learned counsel appearing for the petitioner in the O.P./original applicant has pointed out that the applicant had about 7 years to retire at the time of the imposition of Anx.A-1 compulsory retirement order on O.P. (CAT) No. 79/2021 ..31.. 15.10.2001, and that the reduction of pension at the rate of 70% as per Ext.P-5 is unjust and unfair, etc. 33. We are told that the date of birth of the applicant is 15.11.1949, and if that be so, at the time of issuance of Anx.A-5 penalty order on 15.10.2001, he was 51 years, 11 months or so. Yet another ground is also raised by the applicant that Ext.P-5 dated 22.5.2002 is illegal inasmuch as, the same has not been issued simultaneously along with Anx.A-1 penalty order dated 15.10.2001. 34. The Assistant Solicitor General of India has pointed out that the Division Bench of this Court in the case in _**Union of India, Rep. by General Manager, Southern Railway & Ors. v. P.Rajagopalan [2011 KHC 391 = ILR 2011 (3) Ker. 4]**_ has held that there is no stipulation or mandate that the grant of compulsory retirement pension should be simultaneous with the order of compulsory retirement, and what is postulated in the rules is only that the pension or gratuity or both admissible to the employee on the date of his compulsory retirement shall be granted to him, and there is no mandate O.P. (CAT) No. 79/2021 ..32.. whatsoever in the rule that it should be sanctioned and granted to the delinquent on the same day. It will be pertinent to refer to the contents of paras 9 & 10 of the decision of the Division Bench of this Court in _**P.Rajagopalan's**_ case supra [ _**2011 KHC 391**_ ], which read as follows: _“9. A perusal of the provisions contained in the above rule will unambiguously show that there is no stipulation or mandate that grant of compulsory retirement pension should be simultaneous with the order of compulsory retirement._ _10. It is seen from the order of the Tribunal that it has relied on a judgment rendered by a Division Bench of this Court in Writ Petition No. 24260/06 by which the order passed by the Tribunal in OA No. 814/2004 had been upheld. It appears that in the said Original Application which was the subject matter of the writ petition referred to above, the authority concerned had failed to grant compulsory retirement pension for more than seven years though several requests were made by the retired employee in this regard. Therefore he had approached the Tribunal for appropriate reliefs and consequently the Tribunal directed the authorities to pay the pension and gratuity with interest. It is true that the Division Bench while confirming the order passed by the Tribunal has observed that R.64 postulates that "reduction of pension should be imposed on the date of compulsory retirement" itself. But as has been noticed already R.64 does not contain such a mandate or stipulation. What is postulated in the rule is only that the pension or gratuity, or both, admissible to the employee on the date of his compulsory retirement shall be granted to him. There is no mandate whatsoever in the rule that it should be granted to him on the same date. Sub-rule (2) will further show that such a procedure will not be practicable. In that view of the matter the observation made by the Division Bench in Writ Petition No. 24260/06 dated 01/03/07 has to be treated only per incuriam.”_ 35. Therefore, we are not in a position to agree to the O.P. (CAT) No. 79/2021 ..33.. abovesaid contention of the applicant in view of the abovesaid dictum laid down by the Division Bench. In the light of all these aspects, we are of the view that no grounds are made out for interfering with the verdict of the Tribunal, dismissing the instant O.A. No.836/2017. The petition fails and accordingly, the Original Petition will stand dismissed. Sd/- ALEXANDER THOMAS, JUDGE Sd/- VIJU ABRAHAM, JUDGE MMG O.P. (CAT) No. 79/2021 ..34.. ## **APPENDIX OF OP(CAT).NO.79/2021** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**PHOTO COPY OF ORIGINAL APPLICATION NO**| |---|---| ||**836/2017**| |**ANNEXURE A1**|**TRUE COPY OF THE OFFICE MEMORANDUM**| ||**BEARING NO 3 ADMN(144) 79 ESTT DATED**| ||**15.10.2001 ISSUED BY THE 3RD RESPONDENT**| |**ANNEXURE A6**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**<br>**NO**| ||**NIIST/COA/KS/2016 DATED 23.8.2016**| |**ANNEXURE A2**|**TRUE COPY OF THE JUDGMENT PASSED BY THE**| ||**HON'BLE HIGH COURT IN WPC NO 2109/2005**| ||**DATED 18.12.2008**| |**ANNEXURE A3**|**TRUE COPY OF THE ORDER DATED 16.4.2014**| ||**PASSED BY THE ARBITRATION AND EXECUTION**| ||**INSPECTOR, OFFICE OF HE ASSISTANT**| ||**REGISTRAR OF CO-OPERATIVE SOCIETIES,**| ||**THIRUVANANTHAPURAM**<br>**WITH**<br>**ENGLISH**| ||**TRANSLATION**| |**ANNEXURE A4**|**TRUE COPY OF THE REPRESENTATION GIVEN BY**| ||**THE APPLICANT TO THE 3RD RESPONDENT DARED**| ||**12.2.2016**| |**ANNEXURE A5**|**TRUE COPY OF THE ORDER IN OA NO**| ||**180/713/2016 DATED 23.8.2016**| |**EXHIBIT P2**|**TRUE COPY OF THE CHARGE MEMO NO**| ||**RRL/COA/COS/2K DATED 15.12.2000 ISSUED BY**| ||**THE 3RD RESPONDENT**| |**EXHIBIT P3**|**TRUE COPY OF THE INQUIRY REPORT NO**| ||**2(6)/INQ/2001 DATED 24.5.2001 IN THE**| ||**DISCIPLINARY PROCEEDINGS**| |**EXHIBIT P4**|**TRUE COPY OF THE REPLY BY THE PETITIONER**| ||**TO THE SCN ISSUED PURSUANT TO THE INQUIRY**| ||**REPORT DATED 14.6.2001**| |**EXHIBIT P5**|**TRUE COPY OF THE OM NO.3 ADMN (144)/79-**| ||**ESTT DATED 22.5.2002 ISSUED BY THE**| ||**ADMINISTRATIVE OFFICER (4TH RESPONDENT**| ||**HEREIN)**| O.P. (CAT) No. 79/2021 ..35.. |**EXHIBIT P6**|**TRUE COPY OF THE APPELLATE ORDER ISSUED**| |---|---| ||**BY THE CHIEF VIGILANCE OFFICER NO 15-**| ||**41(4) 2001 VIG DATED 16.1.2003**| |**EXHIBIT P7**|**TRUE COPY OF THE REPLY STATEMENT FILED BY**| ||**THE RESPONDENTS**| |**ANNEXURE R1**|**TRUE COPY OF THE LETTER DATED 1.2.2000**| ||**ISSUED BY THE SECRETARY OF THE SOCIETY TO**| ||**THE 3RD RESPONDENT ENCLOSING THE COPY OF**| ||**THE MEMORANDUM DATED 31.1.2000**| |**ANNEXURE R2**|**TRUE COPY OF THE ENGLISH TRANSLATION OF**| ||**THE MEMORANDUM DATED 31.1.2000**| |**ANNEXURE R3**|**TRUE COPY OF THE ORDER APPOINTING THE**| ||**COMMITTEE DATED 6.4.2000**| |**ANNEXURE R4**|**TRUE COPY OF THE REPORT SUBMITTED BY THE**| ||**COMMITTEE DATED 1.6.2000**| |**ANENXURE R5**|**TRUE COPY OF THE REPORT OF THE ASSISTANT**| ||**REGISTRAR (VIGILANCE 11) CO-OPERATIVE**| ||**SOCIETY DATED 17.4.2000**| |**ANNEXURE R6**|**TRUE COPY OF THE ENGLISH TRANSLATION OF**| ||**THE REPORT OF THE ASSISTANT REGISTRAR**| ||**(VIGILANCE 11) CO-OPERATIVE SOCIETY DATED**| ||**17.4.20000**| |**ANNEXURE R7**|**TRUE COPY OF THE ORDER OF SUSPENSION OF**| ||**THE APPLICANT DATED 18.10.2000**| |**ANNEXURE R8**|**TRUE COPY OF THE CHARGE SHEET ISSUED TO**| ||**THE APPLICANT DATED 15.12.2000**| |**ANNEXURE R9**|**TRUE COPY OF THE ORDER OF THE**| ||**DISCIPLINARY AUTHORITY DATED 18.1.2001**| |**ANNEXURE R10**|**TRUE COPY OF THE ENQUIRY REPORT DATED**| ||**24.5.2001 SUBMITTED BY SHRI K.R.SHARMA**| |**ANNEXURE R11**|**TRUE COPY OF THE REQUEST LETTER DATED**| ||**14.6.2001 OF THE APPLICANT**| |**ANNEXURE R12**|**TRUE COPY OF THE REQUEST MADE BY THE**| ||**APPLICANT DATED 25.6.2001**| |**ANNEXURE R13**|**TRUE COPY OF THE REQUEST MADE BY THE**| ||**APPLICANT DATED 10.9.2001**| |**ANNEXURE R14**|**TRUE COPY OF THE LETTER DATED 8.10.2001**| ||**OF THE APPLICANT**| |**ANNEXURE R15**|**TRUE COPY OF THE REQUEST MADE BY THE**| ||**APPLICANT DATED 10.10.2001**| O.P. (CAT) No. 79/2021 ..36.. **ANNEXURE R16 TRUE COPY OF THE ORDER NO 3-ADM (144)/79ESTT DATED 22.5.2002** **EXHIBIT P8 TRUE COPY OF THE REJOINDER BY THE PETITIONER** **ANNEXURE A7 OM NO.11012/11/85-ESTT DATED 11TH NOVEMBER, 1985 ISSUED BY THE DEPARTMENT OF PERSONNEL & TRAINING** **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 9.4.2021 IN OA NO 836/2017** **EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN WPC NO.38611/2003 DT.17/6/2010** - **EXHIBIT P11 TRUE COPY OF THE OA NO.713/2016 BEFORE THE HON'BLE CAT ERNAKULAM BENCH WITHOUT ANNEXURES** **EXHIBIT P12 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.24260/2006 DATED 12.3.2007** **EXHIBIT P13 TRUE COPY OF THE ORDER DT.16/8/2007 IN O.A 814/2006 OF THE CAT, ERNAKULAM BENCH. EXHIBIT P14 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF JAMMU AND KASHMIR SWP NO.437/2006 DT. 28/9/2016**