Rajesh R. v. The State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** ## **OP(KAT).No.428 OF 2020** **AGAINST THE ORDER IN OA (EKM) 556/2020 DATED 02-11-2020 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/ADDITIONAL 8TH RESPONDENT:** **RAJESH.R AGED 43 YEARS SON OF K.N.RADHAKRISHNAN, SENIOR CLERK, OFFICE OF THE STATE TAX OFFICER, III CIRCLE, KANNUR, STATE GOODS AND SERVICE TAX DEPARTMENT, IV FLOOR, BSNL BHAVAN, SOUTH BAZAR, KANNUR 670 002,PRESENTLY WORKING AS HEAD CLERK, RESIDING AT NIKUNJAM,KODOLIPRAM, PATTANNUR P.O., KANNUR 670 595, ADDITIONAL R8 IS IMPLEADED AS PER ORDER DATED 5.10.2020 IN MA 1140/2020), KERALA** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND SRI.G.RENJITH** **O.P.(KAT).428/2020** 2 ## **RESPONDENTS/APPLICANTS & RESPONDENTS 1 TO 7:** - **1 JAYA GOPINATHAN AGED 39 YEARS** **D/O.P.N.GOPINATHAN, UPPER DIVISION TYPIST SELECTION GRADE, OFFICE OF DEPUTY COMMISSIONER, SPECIAL CIRCLE I, STATE GST DEPARTMENT, 5TH FLOOR, GST COMPLEX, JAWAHAR NAGAR COLONY, ERANHIPALAM, KOZHIKODE 673 571, RESIDING AT LOVE SHORE, KNOT P.O., POLOORPARAMBIL BAZAR, KOZHIKODE, KERALA 673 571** **2 SANDEEP K. AGED 39 YEARS, SON OF SANKARAN, UPPER DIVISION TYPIST SELECTION GRADE, OFFICE OF JOINT COMMISSIONER, 3RD FLOOR, GST COMPLEX, JAWAHAR NAGAR COLONY, ERANHIPALAM, KOZHIKODE 673 006,** **RESIDING AT NEDIYRAMBATH HOUSE, CHELAVOOR, CHELAVOOR P.O., KOZHIKODE 673 571, KERALA** **3 THE STATE OF KERALA REP.BY THE PRINCIPAL SECRETARY, KERALA GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM 695 001, KERALA** **4 THE COMMISSIONER OF COMMERCIAL TAXES TAX TOWER, KERALA GOODS AND SERVICE TAX DEPARTMENT, KARAMANA, THIRUVANANTHAPURAM 695 001, KERALA** **5 THE JOINT COMMISSIONER OF COMMERCIAL TAXES OFFICE OF THE DEPUTY COMMERCIAL TAXES, TAX TOWER, KERALA GOODS AND SERVICE TAX DEPARTMENT,KARAMANA,THIRUVANANTHAPURAM 695 002, KERALA** **O.P.(KAT).428/2020** 3 **6 RANJITH T. AGED 41 YEARS SON OF K.THANKAPPAN, SENIOR CLERK, OFFICE OF THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE II, STATE GOODS AND SERVICE TAX DEPARTMENT, TAX COMPLEX, THEVARA, PERUMANOOR P.O., ERNAKULAM DISTRICT 682 015, RESIDING AT RANJITH BHAVAN, POTHY, MIDAYIKKUNNU P.O., KOTTAYAM 686 605, KERALA** **7 AFSAR R. SON OF LATE RASHEED H., AGED 36 YEARS, SENIOR CLERK, OFFICE OF THE STATE TAX OFFICER, FIRST CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, MATTANCHERRY, ERNAKULAM 682 002, RESIDING AT HOUSE 20/719D, KALLUCHIRA, PALLURUTHY, KOCHI 682 002, KERALA 8 RAGESH D. SON OF DAMODARAN T.K., AGED 36 YEARS, HEAD CLERK, OFFICE OF THE STATE TAX OFFICER, ANGAMALY, STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM 683 572, RESIDING AT KADINAPOIKAVEEDU, MULAVANA, KUNDARA, KOLLAM 691 503 (ADDL.R4, R5 AND R6 ARE IMPLEADED AS PER ORDER DATED 9.7.2020 IN MA(EKM) 774/2020), KERALA 9 BIJI P.M. D/O.MADHAVAN, AGED 40 YEARS, PAMBOORAMPARAMBIL HOUSE, KUMARAMANGALAM KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT 685 608, WORKING AS UPPER DIVISION CLERK, STATE GOODS AND SERVICE TAX (SGST) OFFICE, KOTHAMANGALAM, ERNAKULAM 686 691 (ADDL.R7 IS IMPLEADED AS PER ORDER DATED 9.7.2020 IN MA 775/2020) KERALA** **R1-2 BY ADV. SRI.U.BALAGANGADHARAN** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 17.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(KAT).428/2020** 4 ## **JUDGMENT** _Ravikumar, J._ This original petition is filed against order dated 2.11.2020 in O.A.(EKM)No.556 of 2020 passed by the Kerala Administrative Tribunal. The original application was filed by respondents 1 and 2 herein. They are working as Upper Division Selection Grade Typists in the Commercial Taxes Department. They filed the original application seeking the following reliefs:- 1. Call for the records leading to Annexure A.9 and set aside the same as legally and factually unsustainable. 2. Direct the 2[nd] respondent to draft/send the applicants for training as U.D.C in the department as per Special Rules and grant them appointment as Commercial Tax Inspector by transfer on the successful completion of training. 3. Declare that the applicants are entitled to be drafted for training as U.D.C in the department immediately untramelled by Annexure A.9 and they are further entitled to be appointed as Inspectors on the successful completion of training. **O.P.(KAT).428/2020** 5 - 2.Various contentions were raised by the applicants/respondents 1 and 2 herein in support of their claim for the aforesaid reliefs. The fact is that the Tribunal did not enter into any finding on merits taking into account the pendency of Annexure A11 representation before the Government. The Tribunal disposed of the original application with a direction to the first respondent therein to consider and pass appropriate orders on Annexure A11 representation within a period of two months from the date of receipt of copy of the order. 3. The learned counsel for the petitioner submitted that the grievance of the petitioner is against the direction in the impugned order to continue the interim order passed by the Tribunal in the O.A on 6.5.2020 staying operation of Annexure A9, till orders are passed by the first respondent. The learned counsel further submitted that virtually, the petitioner viz., additional 8[th] respondent was not heard at the time of disposal of the original application. That apart, it is contended that the copy of M.A (EKM) No.1470 of 2020 for acceptance of additional documents was not served on the petitioner. **O.P.(KAT).428/2020** 6 The fact is that the said application was filed by respondents 1 and 2 herein seeking for a direction to consider and pass orders on Annexure A11 pending disposal of the original application. Obviously, the Tribunal thought it fit to dispose of the original application itself, with such direction. As noticed hereinbefore, while doing so, the Tribunal did not make any observation touching the merits of the contentions. If the petitioner was not heard at the time of passing of an order and copy of the aforesaid M.A was not served on him, the petitioner could not have filed a review petition, if he is actually aggrieved. Taking note of the fact that the order in the O.A was passed on 2.11.2020 and in the light of the judgment of the Hon'ble Apex Court in Civil Appeal No.6213 of 2018 in Union of India & others v. Chitra Lekha Chakraborthy holding that the Administrative Tribunals got no power to condone the delay in filing review application, no purpose could be served by relegating the petitioner to file review application. Even otherwise, we do not think it necessary to consider such aspects as the impugned order would reveal that the Tribunal only directed for **O.P.(KAT).428/2020** 7 consideration of Annexure A11 representation without touching the merits. In such circumstances, we are of the view that the matter requires no material interference. 4. True that as per the impugned order, while ordering for consideration of Annexure A11, no opportunity of being heard is directed to be provided either to the applicant or to the respondents. In such circumstances, what is now before the first respondentGovernment is only the representation submitted by the applicants. Since the applicants were not ordered to be given an opportunity of being heard and what is directed is only consideration of Annexure A11 representation, we do not think it necessary to issue a direction to confer opportunity of hearing to the petitioner or to other party respondents before the Tribunal. However, we are of the view that an opportunity to the petitioner as also the other party respondents to bring in their response to Annexure A11 representation in the form of an objection ought to be given before a decision is taken on Annexure A11. This is because, now what is before the first respondent in the **O.P.(KAT).428/2020** 8 O.A and for a proper and fair disposal of Annexure-A11, the response to the same, of the party respondents before the Tribunal, must also be there before the first respondent. In that view of the matter, this original petition is disposed of leaving liberty to the petitioner herein as also to party respondents 6 to 9 herein, who were party respondents 4 to 7 therein to file objection, if any, against Annexure A11 within a period of ten days from today, with copy of such objection to respondents 1 and 2 who were applicants before the Tribunal. Subject to the above, this original petition is disposed of. **Sd/-** **C.T.RAVIKUMAR JUDGE Sd/K.HARIPAL JUDGE** **O.P.(KAT).428/2020** 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF ORDER DT. 2.11.2020 IN O.A.(EKM) NO.556 OF 2020 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (ERNAKULAM BENCH)** ## **EXHIBIT P2** **TRUE COPY OF ORIGINAL APPLICATION (EKM) No.556 OF 2020 FILED BY RESPONDENTS 1 AND 2 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM, ADDITIONAL BENCH AT ERNAKULAM** **spc/**