IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 31ST DAY OF MAY 2018 / 10TH JYAISHTA, 1940 **OP(KAT).No. 130 of 2018**
AGAINST THE ORDER IN OA 2090/2017 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
## **PETITIONERS/RESPONDENT 4 AND 5:**
1 KALLARA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KALLARA POST, THIRUVANANTHAPURAM DISTRICT - 695 608.
2 THE SECRETARY, KALLARA GRAMA PANCHAYAT, KALLARA POST, THIRUVANANTHAPURAM DISTRICT - 695 608.
BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR
## RESPONDENTS/APPLICANT & RESPONDENTS 1 TO 3 & 6:
1. RENJI S. AGED 37 YEARS, D/O. SAROJINI AMMA. V., RESIDING AT RENJI VILASAM, K.T. KUNNU POST, THENGINCODE WARD, KALLARA GRAMA PANCHAYAT, THIRUVANANTHAPURAM DISTRICT - 695 608. FORMER TEACHER, SHISHU VIHAR KALLARA GRAMA PANCHAYAT, (NOW STANDS TERMINATED FROM THE SERVICES OF THE KALLARA GRAMA PANCHAYAT, THIRUVANANTHAPURAM - 695 608)
2. STATE OF KERALA, REPRESENTED BY THE GOVERNMENT SECRETARY, LOCAL SELF GOVERNMENT (E.P.B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3. DIRECTOR OF PANCHAYATS, DIRECTORATE OF PANCHAYATS, PUBLIC OFFICE BUILDING, MUSEUM POST, THIRUVANANTHAPURAM - 695 033.
4. DEPUTY DIRECTOR OF PANCHAYATS, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATS, CIVIL STATION, KUDAPPANNAKKUNU, THIRUVANANTHAPURAM - 695 043. 5. K. SANTHA KUMAR, PRESIDENT, KALLARA GRAMA PANCHAYAT, KALLARA POST, THIRUVANANTHAPURAM DISTRICT - 695 608.
R1 BY ADV. SRI.P.MURALEEDHARAN (THIRUVANANTHAPURAM) R1 BY ADV. SRI.V.P.PRASAD
R2 TO R4 BY SR. GOVERNMENT PLEADER SHRI A.J. VARGHESE.
THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD ON 31-052018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No. 130 of 2018 (Z)
## **APPENDIX**
## PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE MEMORANDUM OF OA NO. 2090/2017 PREFERRED BY THE 1ST RESPONDENT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM. EXHIBIT P2 A TRUE COPY OF THE LETTER SENT BY THE ICDS SUPERVISOR TO THE KERALA STATE AUDIT DEPARTMENT. EXHIBIT P3 A TRUE PHOTOCOPY OF THE LETTER DATED 09.06.2017 PREFERRED BY THE ICDS SUPERVISOR BEFORE THE PRESIDENT OF KALLARA PANCHAYAT. EXHIBIT P4 A TRUE PHOTOCOPY OF THE REPORT DATED 19.10.2017 SUBMITTED BY THE SECRETARY BEFORE THE DIRECTOR OF PANCHAYATS. EXHIBIT P5 A TRUE COPY OF THE REPORT DATED 15.02.2018 SUBMITTED BY THE SECRETARY BEFORE THE ADDITIONAL CHIEF SECRETARY. EXHIBIT P6 A TRUE PHOTOCOPY OF THE ORDER DATED 06.02.2018 IN O.A.NO.2090/2017 OF THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS:
EXT.R1(a) : TRUE COPY(CITIZEN COPY) OF FIR IN CR.NO.545/2017 OF PANGODU PS. EXT.R1(b) : TRUE COPY OF ORDER DATED 15.11.2017 OF KERALA STATE HUMAN RIGHTS COMMISSION IN HRMP No.7623/2017
/true copy/
P.S. TO JUDGE.
## **P.R. RAMACHANDRA MENON**
## **& DEVAN RAMACHANDRAN, JJ.**
.............................................................................. **O.P.(KAT)No.130 OF 2018** ......................................................................... **Dated this the 31[st] May, 2018**
## **J U D G M E N T**
## **P.R. Ramachandra Menon, J.**
Ext.P6 interim order passed by the Tribunal is under challenge at the instance of the respondents 4 and 5 in the O.A. The issue is with regard to payment of subsistence allowance to the first respondent/applicant in the O.A. and also with regard to the enhanced honorarium payable as per Annexure A14.
2. The sequence of events reveals that the applicant was engaged in the Kallara Grama Panchayath as a Teacher at Shishu Vihar on honorarium basis. While in service, as above, she committed certain serious misconducts, which led to issuance of Annexure A2 order dated 02.05.2017, whereby she was suspended from service in terms of the Kerala Panchayath Raj (Control over Employees) Rules, 1997. This was followed by issuance of Annexure A3 Charge Memo and later, on conclusion of the disciplinary proceedings, she was removed from the service as per Annexure A5 order dated 15.07.2017 issued by the
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competent authority.
3. The above order was taken up in the appeal before the Dy. Director of Panchayat, but interference was declined and the punishment was upheld, as per Annexure A-30 order dated 11.10.2017. At the same time, the second appellant/5[th] respondent was directed to submit a report as to the instance/circumstance under which the applicant was appointed as a permanent contingent employee. Met with the situation, the applicant approached the Tribunal by filing O.A. with the following prayers:
_“i. To declare that the entire disciplinary proceedings taken by the 6[th] respondent or by the Panchayath against the applicant are vitiated_
_ii. Annexure A2, A3, A5 , A22, A23 and A30 may be quashed and the applicant be directed to be reinstated to service as part time contingent employee in the 4[th] respondent Panchayath._
_Iii. To direct the 4[th] respondent to release the arrears of honorarium of the applicant for the period from 01.01.2017 till 01.05.2017 at the enhanced rate of Rs.12000/- as ordered in Annexure A14 GO and also at that enhanced rate for the period from 02.05.2017 till her reinstatement to service, treating the suspension period as duty._
_iv. Issue any other order or direction as this Hon'ble Tribunal may deem fit in the nature and circumstances of the case.”_
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An interim relief was also sought for so as to direct the 4[th] respondent to disburse the subsistence allowance for the period from 02.05.2017 till 15.07.2017 (the date of Annexure A5 order) and also to release the arrears of honorarium at the enhanced rate, (as per Annexure A14), for the period from 01.01.2017 to 01.05.2017.
4. When the matter came up for consideration, instruction was sought to be obtained and after hearing both the sides, the Tribunal passed Ext.P6 order dated 06.02.2018, as mentioned above, directing to cause disbursement of subsistence allowance as well as enhanced honorarium to the extent as specified therein, which in turn is under challenge at the instance of the Panchayat.
5. The learned counsel appearing for the Panchayath submits that the order under challenge is per se wrong and unsustainable in all respects, in so far as the OA itself was not maintainable, the applicant being a part-time contingent employee. It is stated that the factum of engagement as a part time contingent employee is virtually conceded in the pleadings
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and proceedings and as such, no relief could have been sought for by approaching the Tribunal, as she is outside the purview of the provisions of the Administrative Tribunals Act. Reliance is sought to be placed on the verdict passed by a Division Bench of this Court in **Santhosh Kumar A vs. Director of Panchayaths [2013 (2) KLT 548]**
6. The learned counsel for the first respondent/applicant submits that the Panchayat is not justified in raising such a contention in so far as no such challenge was ever made before the Tribunal. That apart, all the proceedings issued to the first respondent/applicant were with reference to the relevant provisions of the Kerala Panchayath Raj (Control over Employees)Rules, 1997, treating the applicant as an employee of the Panchayat, who very much comes within the purview of the jurisdiction of the Tribunal.
7. The primary question to be considered and decided is whether the applicant comes within the purview of the Tribunal. The Tribunal did not have an opportunity to have it considered before passing the order under challenge, i.e., Ext.P6, as admittedly, no such pleading was ever raised by the appellants
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before the Tribunal.
8. The learned counsel for the Panchayat however submits that this is only a question of law, which could be raised at any stage and hence submits that this aspect might be considered by this Court.
9. Though a question of law can be raised at any stage of the proceedings, it is conceded by both the sides that the O.A. is still pending. Appropriate pleadings can be raised before the Tribunal with liberty to the parties to produce sufficient materials to substantiate their respective contentions. Though the second prayer of the applicant is to cause reinstatement as a part-time contingent employee and there is a pleading in the O.A. that she was continuing as a part-time contingent employee, the circumstances, under which Annexure A2 order of suspension was issued and also whether further proceedings were caused to be pursued with reference to the **Kerala Panchayath Raj (Control over Employees)Rules, 1997** , virtually taking the applicant as an employee of the Panchayat, are not discernible. Since the OA. is pending, we find it appropriate to relegate the parties to raise the above plea before the Tribunal, to have it
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considered by the Tribunal at the first instance, before the matter is dealt with by this Court, in exercise of jurisdiction under Article 227 of the Constitution of India.
10. In the said circumstances, we relegate the parties to move the Tribunal. We grant liberty to supplement the pleadings, leaving all the issues open. The interim order of stay granted by this Court will continue only for a period of 'one month' and it will be for the parties to approach the Tribunal and get appropriate orders. Implementation of Ext.P6 order shall be kept in abeyance for one month and it will be subject to appropriate orders to be passed by the Tribunal, as aforesaid.
Original Petition stands dismissed.
## **P.R. RAMACHANDRA MENON, JUDGE**
## **DEVAN RAMACHANDRAN, JUDGE**
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