State of Kerala and Others v. C. L. Antony (Retired), Circle Inspector of Police

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 OP(KAT) NO. 438 OF 2018** **TA 440/2013 OF KERALA ADMINISTRATIVE TRIBUNAL,** ## **THIRUVANANTHAPURAM** ## **PETITIONER/S:** - 1 STATE OF KERALA,REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. - 2 THE SECRETARY TO GOVERNMENT, VIGILANCE (A) DEPARTMENT, THIRUVANANTHAPURAM. - 3 THE DIRECTOR GENERAL OF POLICE POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. - 4 THE ACCOUNTANT GENERAL ( A AND E) KERALA, THIRUVANANTHAPURAM. SMT. MARY BEENA JOSEPH - SR. GP ## **RESPONDENT/S:** C.L. ANTONY,CIRCLE INSPECTOR OF POLICE (RETIRED) CHIRAKKAL HOUSE, AYROOR P.O., VIA. KURUMASSERY, ERNAKULAM-683 579. BY ADV SRI.T.R.RAJESH ## **OTHER PRESENT:** THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(KAT) NO. 438 OF 2018** -2- ## **S.V.BHATTI & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## **O.P.(KAT) NO. 438 OF 2018** - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## JUDGMENT (Dated this the 8[th ] day of February 2023) ## Basant Balaji J., The order of the KAT in T.A.No.440 of 2013 is under challenge in this Original Petition. T.A. was originally filed before this court and numbered as W.P.(C) No. 2962 of 2010 and the same was transferred and renumbered as ## T.A.No.440 of 2013. 2. The prayers sought for in the petition are as follows:- a) issue a writ of certiorari or other appropriate writ order or direction to quash Exhibit P4 show cause notice and exhibit P7 communication since the same **OP(KAT) NO. 438 OF 2018** were issued illegally. b) issue a writ of certiorari or other appropriate writ order or direction to quash Exhibit P8 order and P12 communication, c)issue a writ of certiorari or other appropriate writ order or direction to quash Exhibit 14 order dated 31.12.2009 since the same was issued against the provisions of law. d) issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to pay the arrears of pension with 12% interest. (e) issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to pay the monthly pension to the petitioner without any reduction. f) to award cost of these proceedings. g) to issue such other and further orders as are deemed just and necessary in the facts and circumstances of the case. ## 3. The applicant entered service as Sub Inspector of **OP(KAT) NO. 438 OF 2018** -4- Police in the year 1976 and thereafter, promoted as Circle Inspector of Police. He was suspended from service as per order dated 6.9.1997. A vigilance enquiry was ordered and the charges were found proved. A show cause notice was issued to which explanation was given, but the punishment of compulsory retirement was imposed. The applicant challenged the imposition of punishment in O.P.No.4826 of 2002 and this court allowed the Original petition. Though Writ Appeal was filed by the Government it was dismissed. The applicant attained superannuation on 28.2.2003. Based on the judgment of this court, the Government cancelled the order of compulsory retirement, but no consequential order regarding the regularisation of period from the date of suspension was issued. Later a **OP(KAT) NO. 438 OF 2018** -5- show cause notice was issued proposing to reduce 50% of monthly pension. The applicant approached this Court by filing WP.(C) No.24248 of 2008 seeking a direction to grant monetory benefits of the 2[nd] and 3[rd] time higher grade promotions and to regularise the period of suspension from 6.9.1997 to 11.10.2001 as duty for all purposes and to grant consequential monetory benefits. A further prayer was also sought for regularisation of the period from 11.10.2001 to 28.2.2003 as duty for all purposes and to grant all benefits. This Court directed consideration of his representation and to pass orders. Thereafter, the first respondent passed an order rejecting the claim of the applicant for regularisation of the period during which he was kept out of the service. **OP(KAT) NO. 438 OF 2018** 4. On 27.3.2008, the Government passed GO(Rt) No.974/2008/Home reducing Rs.500/- from the monthly pension under Rule 59(b) of Part III KSR. This was challenged by the applicant in W.P.(C) No.32206 of 2008. This court by judgment dated 3.11.2008, disposed of the petition giving liberty to the applicant to challenge in appropriate proceedings. Though an appeal was filed the applicant, it was directed to approach the Government by way of a Review petition. The Review petition was dismissed as per order dated 30.1.2009. The said order was challenged in T.A. No.440 of 2013 before the KAT. 5. Rule 59(3) of Part III KSR reads as follows:- **“59. Award of full pension.** - (a) The full pension admissible under this rule is not to be given as a matter of course, or unless the service rendered has been really approved. **OP(KAT) NO. 438 OF 2018** (b) if the service has not been thoroughly satisfactory, the Government may make such reduction in the amounts as they think proper. Note 1.- Government may review their orders if the affected employee makes a request within a period of three months from the date of the orders. Note 2. This rule does not operate to authorise a reduction of ordinary pension either to nothing or to a nominal amount.” 6. The learned counsel for the petitioner/State contends that for attracting the provisions of Rule 59(b), there should be a finding that the service of the employee has not been thoroughly satisfactory. The counsel also relied on the decisions reported in **Joseph v. state of Kerala [1994 (1) KLT 716], Francis v. state of Kerala** **[1997(2) KLT SN 30] and Ponnamma v. Secretary to Government [2011 (2) KLT 277]** . Decision No.2 under **OP(KAT) NO. 438 OF 2018** -8- the Rule 59(b) of Part III KSR makes it more clear that the rules cannot be used directly to effect penal recovery but Government are justified in making proof of a specific instance of fraud or negligence by an employee, the ground for a finding that his service has not been thoroughly satisfactory within the meaning of this Rule for the purpose of reducing his pension. The decision No.2 is an exception but only on fraud and negligence by an employee Rule 59(b) can be invoked. 7. The charge alleged against the respondent/applicant is that he was active in private money lending business with one Jose Perepadan. In the present case, to initiate action under Rule 59(b) of Part III KSR, the Government has to form a definite opinion that the service **OP(KAT) NO. 438 OF 2018** -9- of employee has not been thoroughly satisfactory and after giving the employee concerned, an opportunity to explain against the proposal of forming such an opinion, the monthly pension can be reduced. The counsel also relied on the decision of this court in S **ecretary to the Government v. Sadanandan [2021 (4)KLT SN 56],** wherein this court has held that what is conceived in Rule 59(b) of Part III KSR is rare case, where an objective consideration of the service career of the pensioner would disclose that his or her service cannot be said to be thoroughly satisfactory. In the light of the Rule, the allegation raised against the applicant has to be considered. The allegation is that he was directly engaged in conducting a financial company and video cassette library without obtaining previous **OP(KAT) NO. 438 OF 2018** -10- sanction of the government. The said charges cannot be said to be held to be taken as a justification for holding that his past service was not thoroughly satisfactory. The Tribunal, on facts held that a single instance of engaging in business without obtaining sanction from the Government cannot be used to invoke Rule 59(b) of Part III KSR. Therefore, the Tribunal went on to hold that the order of the Government reducing his monthly pension in compliance with rule 59(b) of Part III KSR, is illegal. As mentioned earlier, for invoking 59(b) of part III KSR, an objective consideration by the Government against the allegation raised and entering into a finding that his service throughout was thoroughly not satisfactory, is lacking. Therefore, we are of the considered opinion that the **OP(KAT) NO. 438 OF 2018** -11- Tribunal was fully justified in setting aside the order passed by the Government reducing Rs.500/- from the monthly pension. The grounds raised by the State are not tenable for a judicial review. Hence, the OP KAT fails and is dismissed. The finding entered by us is limited to the facts and circumstances of the case and shall not operate as a precedent in considering Rule 59(b) or Rule 59(b) Part III KSR. **Sd/-** **S.V.BHATTI, JUDGE** **sd/-** **BASANT BALAJI, JUDGE** _dl/_ ## **OP(KAT) NO. 438 OF 2018** -12- ## **APPENDIX OF OP(KAT) 438/2018** PETITIONER ANNEXURES Annexure A1 A PHOTOCOPY OF THE WRIT PETITION ALONG WITH EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 25.2.2003 IN OP NO.4826/2002. - EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 25.5.2005 IN W.A.NO.1943/2003. - EXHIBIT P3 TRUE COPY OF THE GOVERNMENT ORDER DATED 25.9.2006 G.O.NO.G.O(MS) NO.47/2006/ORG. - EXHIBIT P4 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 9.2.2007. - EXHIBIT P5 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE SHOW CAUSE NOTICE. - EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 12.8.2018 IN WPC NO.24248/2008. - EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 10.9.2008. - EXHIBIT P8 TRUE COPY OF THE ORDER DATED 27.3.2008 GO(RT) NO.974/2008/HOME. EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 3.11.2008. - EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 8.1.2009. **OP(KAT) NO. 438 OF 2018** EXHIBIT P11 TRUE COPY OF THE REVIEW PETITION DATED 30.1.2009 EXHIBIT P12 TRUE COPY OF THE COMMUNICATION DATED 11.5.2009. EXHIBIT P13 TRUE COPY OF THE PETITION DATED 30.3.2009. EXHIBIT P14 TRUE COPY OF G.O. DATED 31.12.2009. Annexure A2 A PHOTOCOPY OF THE ORDER DATED 17.01.2018 IN T.A.NO 440/13