## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE**
**&**
**THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945 OP(KAT) NO. 116 OF 2016**
**AGAINST THE ORDER DATED 11.08.2016 IN OA 277/2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM**
## **PETITIONER:**
SASEENDRAN N., AGED 60 YEARS, S/O KRISHNAN NAIR, NOW AGED:60 YEARS, (RETIRED COMMERCIAL TAX OFFICER, 111 CIRCLE, DEPARTMENT OF COMMERCIAL TAXES, SALES TAX COMPLEX, JAWAHAR NAGAR, KOZHIKODE) RESIDING AT 'SOPANAM", MOKAVOOR, ERANHIKKAL PO, (VIA) ELATHUR, KOZHIKODE, -673 303
BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.K.N.REMYA SMT.N.SANTHA SRI.V.VARGHESE
## **RESPONDENTS:**
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 COMMISSIONER OF COMMERCIAL TAXES COMMISSIONERATE OF COMMERCIAL TAXES, MUSEUM THIRUVANANTHAPURAM-695 033 3 JOINT COMMISSIONER-1, OFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES, MUSEUM,THIRUVANANTHAPURAM695 033
OP(KAT) NO. 116 OF 2016
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BY ADV GOVERNMENT PLEADER
ADV. VINITHA B SR GP
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 10.01.2024, THE COURT ON 25.01.2024 DELIVERED THE FOLLOWING:
OP(KAT) NO. 116 OF 2016
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A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. --------------------------------------------O.P (KAT) No.116 of 2016
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Dated this the 25[th] day of January, 2024
## J U D G M E N T
## A. Muhamed Mustaque, J.
The question in this original petition is whether imposing major penalty of punishment of withholding two increments with cumulative effect by the disciplinary authority, without consulting Public Service Commission is bad or not. The tribunal by following Deputy Director General, N.C.C. v. K.V. Gopinathan [2006 (3) KLT 247] negatived the challenge. This is how the petitioner approached this Court.
2. It is appropriate to refer Rule 15 (12), II (a), II(b) and III of Kerala Civil Services (classification, Control and Appeal) Rules, 1960.
“12(i) If the Disciplinary Authority, having regard to the findings on the charges, is of the opinion that any of the penalties specified in items (v) to (ix) of mrule 11 (1) should be imposed, it shall,___
- (a) furnish to the Government servant a copy of the report of the Inquiring Authority and where
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the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority; and
(b) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time which may not generally exceed one month such representation as he may wish to make against them proposed action: Provided that such representation shall be based only on the evidence adduced during the inquiry.
(ii) (a) In every case in which it is necessary to consult the Commission, the record of the inquiry together with a copy of the notice given under clause (i) and the representation made in response to such notice, if any, shall be forwarded by the Disciplinary Authority to the Commission for its advice.
(b) On receipt of the advice of the Commission, the Disciplinary Authority shall consider the representation, if any, made by the Government servant as aforesaid, and the advice given by the Commission and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case.
(iii) In any case in which it is not necessary to consult the Commission, the Disciplinary Authority shall consider the representation, if any, made by the Government servant in response to the notice under clause (i) and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case.”
3. It is also appropriate to refer relevant clauses of regulation 6(1) of Kerala Public Service Commission (Consultation) Regulations 1957, which reads thus:
“It shall not be necessary for the Commission to be consulted on any disciplinary matter affecting a person serving in connection with the affairs of the Sate, except-
(a) where the Government propose to pass an original order imposing any of the following punishment, namely:-
(i) reduction to a lower rank in the seniority list or to a lower post or time-scale, or to a lower stage in a time-Scale;
(ii) recovery from pay of the whole or part of any pecuniary loss caused to the Government or to
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the Central Government or to a local authority by negligence or breach of orders;
(iii) compulsory retirement.
Explanation. The retirement under the Service Regulations for the time being in force of an officer on the completion of the age of superannuation or otherwise in accordance with the provisions of the Service Regulations for the time being in force shall not be deemed to be compulsory retirement within the meaning of this sub-clause;
(iv) removal from the civil service of the Government; or
(v) dismissal from the civil service of the Government:
Provided that it shall not be necessary to consult the Commission in cases where orders are passed under proviso (c) to clause (2) of Article 311 of the Constitution of India.
(b) where the Government propose to pass an order in appeal or revision or review imposing any of the penalties referred to in sub-clause (a):
(c) where in an appeal or revision from or review of an order which has imposed any of the penalties referred to in sub-clause (a) Government proposed to pass any order.”
4. The Rule 15(12)(1), II(a), II(b) of the Rules mandates consultation only if it is necessary. The regulation 6 prescribes circumstances under which commission is to be consulted in disciplinary matters. It states that commission need not be consulted except for the enumerated circumstances under regulation 6. Therefore, in the light of regulation 6, barring of increments with cumulative effect does not warrant consultation with the Kerala Public Service Commission.
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5. Assuming that barring of two increments is covered by regulation 6(1)(a), the regulation 6(1)(c) state that such a consultation is not necessary, if the Government in appeal or revision or review impose such penalty. Argument of the learned counsel for the petitioner is that that power under Rule 6(1)(c) is only related to imposition of penalty by the Government on a first occasion and not by way of affirming the order of disciplinary authority. Rule 6(1)(c) refers to the situation where the Government passing an order in appeal or revision as against order of imposing penalty. In this case in appeal, the Government affirmed the order of disciplinary authority. Therefore, this argument is untenable.
We find no merit in this original petition and accordingly, dismissed.
Sd/-
A.MUHAMED MUSTAQUE JUDGE
Sd/SHOBA ANNAMMA EAPEN JUDGE
PR
OP(KAT) NO. 116 OF 2016
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## **APPENDIX OF OP(KAT) 116/2016**
PETITIONER ANNEXURES
|ANNEXURE A6|TRUE COPY OF ORDER NO. A11-|
|---|---|
||19071/2008/CT (1) DATED 14-05-2010 OF|
||THE COMMISSIONER OF COMMERCIAL TAXES,|
||THIRUVANANTHAPURAM|
|ANNEXURE A8|TRUE COPY OF G.O (RT) NO. 228/2011/TD|
||DATED 28-3-2011|
|ANNEXURE A1|TRUE COPY OF MEMO OF CHARGE NO. A11-|
||19071/08/TX DATED 9-7-2008 OF THE|
||COMMISSIONER OF COMMERCIAL TAXES.|
|ANNEXURE A2|TRUE COPY OF THE WRITTEN STATEMENT OF|
||DEFENCE DATED 26-07-2008 SUBMITTED BY|
||THE APPLICANT TO ANNEXURE -A1 MEMO OF|
||CHARGES.|
|ANNEXURE A3|TRUE COPY OF SHOW CAUSE NOTICE NO. A11|
||19071/08/TX DATED 31-12-2009 OF THE|
||JOINT COMMISSIONER-1|
|ANNEXURE A4|TRUE COPY OF ENQUIRY REPORT DATED 16-|
||05-2009 OF THE ENQUIRING AUTHORITY|
|ANNEXURE A5|TRUE COPY OF REPLY DATED 15-1-2010|
||SUBMITTED BY THE APPLICANT TO ANNEXURE|
||-A3 SHOW CAUSE NOTICE|
|ANNEXURE A7|TRUE COPY OF APPEAL DATED 11-06-2010|
||FILED BY THE APPLICANT BEFORE THE|
||GOVERNMENT|
ANNEXURE A9 TRUE COPY OF REVIEW PETITION DATED 2004-2011 SUBMITTED BY THE APPLICANT BEFORE THE GOVERNMENT
OP(KAT) NO. 116 OF 2016
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ANNEXURE R1(A)
A TRUE PHOTOCOPY OF THE CIRCULAR DATED 7-1-1985 ISSUED BY THE GOVERNMENT.
Exhibit P1 TRUE COPY OF THE O.A.NO. 227/2012 FILED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT IN O.A NO. 217/2012
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 11-082016 IN O.A NO. 227/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL
EXHIBIT R1(A) A TRUE PHOTOCOPY OF THE GO(P) NO. 19/2005/P&ARD DATED 13-05-2005 PASSED BY THE GOVERNMENT.
