OP(KAT) No.52 of 2021, arising out of OA No.2315 of 2017 before the Kerala Administrative Tribunal, Thiruvananthapuram

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** **OP(KAT).No.52 OF 2021** **AGAINST THE ORDER IN OA 2315/2017 DATED 27-11-2019 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN THE O.A.:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOREST AND WILDLIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** - **2 THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD OF FOREST FORCES VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN- 695 014.** **3 THE ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FORESTS(ADMINISTRATION) FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN - 695 014.** **BY GOVERNMENT PLEADER** ## **RESPONDENTS/APPLICANTS IN OA:** **K.A.ABDUL RAHIMAN, AGED 69 YEARS S/O.ABDHU MOULAVI, RETIRED FOREST RANGE OFFICER, RESIDING AT KAROLI VEEDU, ONNAM MILE, PERUMBAVOOR, ERNAKULAM, PIN - 683 542.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH** **SRI.B.VINOD, SR.GOVT.PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No.52 OF 2021** 2 **(CR)** # **ALEXANDER THOMAS & N.ANIL KUMAR, JJ.** # **================================== O.P (KAT) No.52 of 2021** _[arising out of the Order dated 27.11.2019 in O.A.No.2315 of 2017 of KAT, Thiruvananthapuram_ ] **==================================** Dated this the 18[th] day of February, 2021 ## **JUDGMENT** ## _Alexander Thomas, J._ The prayers in the aforecaptioned Original Petition filed under Articles 226 & 227 of the Constitution of India are as follows: (see page Nos.15 & 16 of the paper book of this O.P) : “(i) To set aside the Exhibit P4 Impugned Order of the Kerala Administrative Tribunal in O.A.2315/2017 (ii) To declare that the direction in Annexure A10 Government to conduct fresh enquiry against the Respondent for his dereliction of duty is legal and valid (iii) To declare that the Respondent is not eligible for notional promotion as claimed by him or any consequential revision of pensionary benefits on the basis of the promotions directed to be granted to him, by virtue of the Exhibit P4 impugned order (iv) Any other order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.” 2. Heard Sri.B.Vinod, learned Senior Government Pleader appearing for the petitioners (State of Kerala, Principal Chief Conservator of Forest & another) in the O.P/respondents in the O.A and Sri.P.J.Elvin Peter, learned counsel appearing for the sole respondent in the O.P/sole original applicant in the O.A before the Tribunal . **OP(KAT).No.52 OF 2021** 3 3. The prayers in Ext.P1 Original Application, O.A.No.2315 of 2017 filed before the Kerala Administrative Tribunal, Thiruvananthapuram, by the 4[th] respondent/Original Applicant are as follows: (see page Nos.30 and 31 of the paper book) “(i) Direct the respondent to close all departmental actions against the applicant and drop the further proceedings pursuant to Annexure A10 order dated 05.05.2017 (ii) Direct the respondent to give notional promotion to the applicant to the post of Asst. Conservator of Forests with effect from 12.12.2000 on which date his immediate junior was promoted and direct disbursal of all monetary benefits to the applicant including revision of pension, full pension, gratuity and other dues. (iii) Grant such other relief the Honourable Tribunal may deem fit and proper to grant in the nature of the application.” 4. The Tribunal has now rendered the impugned Ext.P4 final order dated 27.11.2019 in OA No.2315 of 2017, whereby, the following directions have been issued in paragraphs 7 and 8 on internal page 4 and 5 thereof: (see page Nos. 187 and 188 of the paper book) “7. Though the applicant was eligible for promotion as Assistant Conservator of Forests, he was not included in the select list due to the pendency of the above proceedings. Now that the Government themselves have set aside the final order in the disciplinary proceedings, it turns out that the exclusion of the applicant from the select list is unsustainable. The claim of the applicant for promotion has to be considered by the respondents ignoring the fact that he has already retired from service and his eligibility for promotion with effect from the date on which his immediate junior was promoted should be considered in accordance with law. As the applicant has already retired from service he is entitled to the benefit of Rule 28(b)(i) (14) of the KS & SSR and the matter need not go to the Departmental Promotion Committee again. 8. The first respondent is therefore directed to consider the claim of the applicant for promotion as Assistant Conservator of Forests with effect from the date of promotion of his immediate junior. The first respondent shall pass such orders within three months from the date of receipt of a copy of this order. It is also **OP(KAT).No.52 OF 2021** 4 directed that the applicant shall be eligible for consequential pensionary benefits on the basis of the promotions to be granted to him based on the above directions. Applicant may submit an appropriate representation along with a copy of this order before the first respondent for such consideration.” 5. The original applicant had entered service as directly a recruited Forest Range Officer under the Forest Department of the State Government in the year 1985 and except a grade promotion in the same post he has not secured any regular/cadre promotion to any higher post all through his service till his retirement on 31.05.2006 though he had a service of 21 long years. As per Annexure A4 order dated 11.12.1997 the applicant was promoted as Senior Grade Range Officer. It appears that the petitioner was not considered for promotions eventhough his juniors so promoted, in view of pendency of certain disciplinary proceedings against him. Further it appears that the applicant was suspended from service on 19.09.2002 in connection with a case called as the 'Olavakkode strong room theft case' which was then investigated by the Central Bureau of Investigation (CBI). It is common ground that the CBI after exhaustive investigation has found that the Departmental Officers including the original applicant were not guilty of the allegations. Later, the applicant was thus reinstated in service on 20.09.2005, and thereafter departmental action had ensued. A reading of Annexure A3 order dated 01.07.2010 would indicate that a minor penalty of barring of one increment without cumulative effect was imposed on him and **OP(KAT).No.52 OF 2021** 5 the period of suspension period of the above officers as duty for all purpose limiting the pay and allowance to subsistence allowance. Further it appears that a minor penalty of barring of one increment without cumulative effect was imposed on him as per G.O. (Rt)No.247/09/F&WLD dated 23.05.2009, as can be seen from the reading of paragraph 3 on page No.2 of Ext.P4 final order of the Tribunal. 6. Further it is disclosed that as per Annexure A6 minutes of the Department Promotion Committee (Higher) held on 09.05.2007, the applicant was not included in the selection list for the post of Assistant Conservator of Forest (ACF), due to the pendency of the vigilance proceedings and other criminal cases. However, the admitted case is that the applicant's juniors were promoted to the said higher post of Assistant Conservator of Forest (ACF). It is also common case that vigilance case pending against applicant was ultimately closed consequent to the quashing of charge sheet/final report as per Annexure A8 judgment dated 09.10.2015 rendered by this Court in O.P.(Crl).No.302 of 2014. 7. Further it appears that in another disciplinary case, though memo of charge for minor penalty proceedings was issued to the applicant, the proceedings were finalised directing recovery of proportionate amount of Rs.58,478/-, which was found as loss **OP(KAT).No.52 OF 2021** 6 caused to the State. The applicant has then filed a review petition against the said decision and the Government has held as per Annexure A10 dated 05.05.2017 that no proper enquiry has conducted and the entire proceedings were set aside by the Government. However, it has been ordered in Annexure A10 dated 05.05.2017 that the Government has authorised to conduct a proper enquiry as contemplated under Rule 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960 [KCS (CC&A) Rules] since such an enquiry has been not conducted and the 3[rd] respondent in the OA/3[rd] petitioner herein-Additional Principal Chief Conservator of Forest (Administration) has been directed to conduct the said disciplinary enquiry. The petitioner challenges impugned Annexure A10 proceedings dated 05.05.2017 to the limited extent it orders for fresh disciplinary enquiry proceedings in terms of Rule 15 of KCS(CC&A) Rules. 8. It appears that the allegations pertaining to Annexure A10 is in respect of disciplinary proceedings in relation to an allegation of unauthorised cutting and transporting of timber on 08.05.1997. It is admitted in Annexure A10 proceedings dated 05.05.2017 that the order impugned therein has been conducted without conducting any enquity and in blatant violation of principles of natural justice. Hence, it has contended by the applicant that it was highly unreasonable on **OP(KAT).No.52 OF 2021** 7 the part of the Government to order in Annexure A10 that disciplinary proceedings should be re-commenced, in respect of the alleged incident which has occurred on 08.05.1997. The impugned Annexure A10 order itself has been issued on 05.05.2017. Hence, it can be seen that the direction in Annexure A10 is that the allegations which had occurred 20 years ago should be enquired and action should be taken etc. The Tribunal after hearing both sides conclusively held that the impugned Annexure A10 order dated 05.05.2017 to the extent it detrimental to the petitioner by ordering recommencement of the disciplinary enquiry in terms of Rule 15 of KCS (CC&A) Rules is blatant violation of the fair disciplinary proceedings which mandate that disciplinary proceedings will have to be conducted and completed within a fair and reasonable time limit. After hearing both sides, we are of the considered view that the said conclusions arrived at by the Tribunal at Ext.P4 that it was highly unreasonable and blatantly against the elementary principles of fairness and principles of natural justice to order the recommencement of a disciplinary enquiry, in respect of allegations which have occurred 20 years ago, that too after the retirement of the applicant, are proper and correct. In the case in **A.P.Augustine v. Superintendent of Post Office** (1984 KLT 226) it has been held by this Court that no fair and reasonable enquiry can be conducted unless it commences within a reasonable time after **OP(KAT).No.52 OF 2021** 8 the incident and to call upon an employee to defend himself after a long time will put him at considerable peril and deny him the benefit of the fair conduct of the disciplinary proceedings in accordance with the principles of natural justice. The abovesaid view has been reiterated by this Court in a most of decisions as in **Krishnan Nair v. State of Kerala** (1998 KHC 580), wherein, it has been held that the delinquent employee may not be able to defend his case as it would be rather duly impossible to adduce evidence in regard to matters alleged to have occurred 17 years ago therein. Further, this Court has noted that even the witnesses of the employee must have disappeared or his memory would have faded. In the case in **State of Andhra Pradesh v. N. Radhakrishan** (AIR 1998 SC 1833) the Apex Court held that the conduct of disciplinary proceedings after inordinate delay would be illegal and arbitrary. It would be pertinent to refer to paragraph No.19 of the decision of the Apex Court in **State of Andhra Pradesh v. N. Radhakrishan** (AIR 1998 SC 1833), which reads as follows:- “19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously **OP(KAT).No.52 OF 2021** 9 and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.” 9. In the instant case there is no dispute that the alleged incident has happened on 08.05.1997, the authorities themselves had finalised the proceedings directing the recovery of the proportionate amount which was estimated as the alleged loss caused to the State. The said decision to recover the proportionate amount was itself found to be unreasonable and arbitrary and inasmuch as no reasonable opportunity was given to the delinquent. The incident has admittedly happened on 08.05.1997. The applicant has served the Government for long 21 years. The delay in non-finalisation of the disciplinary case cannot be attributed to the applicant. Therefore, at the time of issuance of Annexure A10 on 05.05.2017, the Government should have desisted to give further directions in Annexure A10 on 05.05.2017 to recommence the disciplinary enquiry in terms of Rule **OP(KAT).No.52 OF 2021** 10 15 of the KCS(CC&A) Rules, that too in respect of an incident which has happened more than 20 years ago. The said order at Annexure 10 is ultra vires the parameters of “reasonableness” envisaged in Articles 14 & 16 of the Constitution of India and would amount to deprivation of reasonable opportunity envisaged in Article 311(2) of the Constitution, as it will be virtually impossible for the affected retired employees to defend allegations pertaining to events which have taken place more than 20 years ago. Memories of many witnesses would have faded and the petitioner may find it difficult to recollect old past events so as to defend his case properly0. Further a reading of Annexure A10, the Government knew the applicant had retired from service as early as on 31.05.2006. Annexure A10 is dated 05.05.2017. Therefore, admittedly, the jural relationship of employer and employee has snapped, on account of the retirement of the petitioner on 31.05.2006. At best, in an appropriate case where the employees have already retired, the Government could have only considered as to whether any appropriate action is required in terms of Rule 3 Part III KSR. So the impugned order is ultra vires on that account as well. The heart and soul of the matter is that the action of the Government in ordering as per Annexure A10 on 05.05.2017 to recommence the disciplinary enquiry into allegations that happened 20 years ago, is unreasonable, improper , illegal and ultra vires. **OP(KAT).No.52 OF 2021** 11 12. Taking note of the fact that the petitioner has not secured any single regular cadre promotion through out his long 31 years service and what he had secured was only a grade promotion while holding the post of Forest Range Officer etc. and also taking note of the crucial fact that admittedly the juniors to the petitioner have already been promoted to the next higher category post of Assistant Conservator of Forest and also taking note of the fact that Annexure A6 minutes of the Departmental Promotion Committee (Higher) held on 9.5.2007 had not considered the case of the applicant only on account of the pendency of the disciplinary cases etc., the Tribunal has ordered in para No.7 on internal page 5 of Ext.P4 that the petitioner is entitled to the benefit of Rule 28(b)(i)(14) of the KS & SSR and that the matter need not go to the Departmental Promotion Committee once again. In the light of these aspects the Tribunal has issued the consequential direction as per para 8 of Ext.P4 whereby, the respondents in the OA have been directed to ensure that the case of the petitioner for promotion to the post of Assistant Conservator Forest from date of promotion of the immediate juniors should be considered in accordance with the provisions contained in Rule 28(b) (i)(14) of the KS & SSR and orders in this regard shall be passed by the respondents in the OA within three months etc 13. Clause 14 of Rule 28(b)(i) has been introduced by an **OP(KAT).No.52 OF 2021** 12 amendment in KS & SSR made effective from 23.02.2010. The said provision reads as follows:- “(14) Notwithstanding anything contained under this rule, the Government may by order effect promotion/appointments by transfer, notionally without monetary benefit of pay and allowances but with consequential pensionary benefits, to a pensioner without having to follow the procedures such as preparation, publication and review of select list by convening that Departmental Promotion Committee, if it is found later on after his retirement that he would have become eligible at any rime during the course of his service for being promoted or appointed to such posts, categories or grade in that service had due procedure according to the rule existing at that time or made applicable thereafter been followed at the appropriate time” 14. Since the grievance of the petitioner regarding his nonpromotion, in spite of promotion of his admitted juniors, before and after his retirement, there cannot be any dispute that the said amended provision of Clause (14) of Rule 28(b)(i) of KS & SSR would also regulate the case of the applicant, and the Tribunal is fully justified in issuing the said direction. The said rule has been made to ensure that in cases of this nature, it is adequately considered and remedied even without placing the matter before the DPC and technicalities that are attached thereto. We do not find any fault with the Tribunal in having issued the said direction in para 7 and 8 of Ext.P4. As indicated hereinabove, the Tribunal had strong and good reasons for quashing Annexure A10 to the extent it has adversely affected the petitioner. For these reasons we are of the firm view that the petitioners herein have made out any grounds for interfering with **OP(KAT).No.52 OF 2021** 13 the decision of the Tribunal. However, we note that direction has been issued by the Tribunal as per Ext.P4 as early as on 27.11.2019, and the time limit for compliance thereof, viz., three months, has expired long ago. This OP has been filed before this Court on 08.02.2021. Having regard to the long delay in the matter, it is ordered that the petitioners will immediately comply with the directions of the Tribunal at Ext.P4 without any further delay, at any rate, within the outer time limit of six weeks from the date of receipt of the certified copy of this judgment. Counsel for the original applicant may ensure that the certified copies of the judgment are forwarded by speed post with acknowledgment due to all the three petitioners for necessary information and for immediate compliance. With these observations and directions the above Original Petition stands dismissed. ## **Sd/ALEXANDER THOMAS, JUDGE** **Sd/-** ## **N.ANIL KUMAR, JUDGE** dlk/19.02.2021 **OP(KAT).No.52 OF 2021** 14 ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE O.A.NO.2315/2017 ALONG WITH ANNEXURES.** **ANNEXURE A1 TRUE COPY OF THE HONOUR CERTIFICATE AWARDED FROM SFRC COIMBATORE.** - **ANNEXURE A2 TRUE COPY OF THE COMBINED SENIORITY LIST OF FOREST RANGE OFFICERS DATED 25/06/1992, AS ON 01/01/1992.** - **ANNEXURE A3 TRUE COPY OF THE G.O.(RT) NO.285/10/F&WLD DATED 01/07/2010 REGULARISING THE SUSPENSION PERIOD.** - **ANNEXURE A4 TRUE COPY OF THE PROCEEDINGS NO.E150872/97 DATED 11/12/1997 OF CCF(ADMIN) PROMOTING AS SENIOR GRADE FOREST RANGE OFFICER.** - **ANNEXURE A5 TRUE COPY OF RELEVANT PAGES OF THE SENIORITY LIST OF FOREST RANGE OFFICERS AS ON 01/01/1992, DATED 04/03/1997.** - **ANNEXURE A6 TRUE COPY OF THE MINUTES OF DPC (HIGHER) HELD ON 09/05/2007.** - **ANNEXURE A7 TRUE COPY OF THE FINAL SENIORITY LIST OF FOREST RANGE OFFICERS, VIDE PROCEEDINGS ORDER NO.E1-6549/08 DATED 30/11/2011.** - **ANNEXURE A8 TRUE COPY OF THE JUDGMENT IN OP(CRL) NO.302/2014 DATED 09/10/2015 OF HONOURABLE HIGH COURT.** - **ANNEXURE A9 TRUE COPY OF ORDER IN CC 22/2008 DATED 10/12/2015 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE.** - **ANNEXURE A10 TRUE COPY OF THE G.O.(RT) NO.175/2017/F&WLD DATED 05/05/2017 OF THE** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE FIRST PETITIONER ON 30/01/2019 ALONG WITH ANNEXURES.** **ANNEXURE R1(A) TRUE COPY OF G.O.(RT) NO.247/09/F&WLD** **OP(KAT).No.52 OF 2021** 15 ## **DATED 23/05/2009.** **ANNEXURE R1(B) TRUE COPY OF ORDER NO.B7-14844/04 DATED 07/11/2012. EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT ALONG WITH ANNEXURE. ANNEXURE A11 TRUE COPY OF COVERING LETTER OF FORM II OF OR 19/97 ENDORSED BY DIVISIONAL FOREST OFFICER, NENMARA. EXHIBIT P4 TRUE COPY OF THE IMPUGNED ORDER PASSED BY THE TRIBUNAL ON 27/11/2019 IN O.A.NO.2315/2017.**