State of Kerala represented by Addl. Chief Secretary to Government, Taxes (F) Department, Government Secretariat, Thiruvananthapuram-695001 v. R. Rajesh S/o Ragahavan Pillai, Excise Circle Inspector, Nedumangad, Thiruvananthapuram-695541

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942** **OP(KAT).No.35 OF 2021** **ARISING OUT OF THE ORDER DATED 31-10-2018 IN OA (EKM) 1295/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM, (ADDL.BENCH,EKM)** ## **PETITIONER/RESPONDENT IN O.A.:** **STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, TAXES (F) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **BY GOVERNMENT PLEADER SRI.ANTOY MUKKATH, SR.G.P.** **RESPONDENT/APPLICANT IN O.A.:** **R.RAJESH S/O.RAGHAVAN PILLAI, EXCISE CIRCLE INSPECTOR, EXCISE CIRCLE OFFICE, NEDUMANGAD, THIRUVANANTHAPURAM-695541 (RESIDING AT RADHALAYAM, ODANAVATTOM, KOLLAM-691512, PH-9496102000.** **BY ADV.** **SRI.P.MOHANDAS** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No.35 OF 2021** **2** ## **C.R.** # **ALEXANDER THOMAS & T.R. RAVI, JJ.** ======================================= O.P.(KAT) No.35 of 2021 _[arising out of the final order dated 31.10.2018 in O.A. (E) No.1295 of 2017 of the KAT, TVM (Addl. Bench, EKM)]_ ======================================= Dated this the 3[rd] day of February, 2021 ## **JUDGMENT** ## **ALEXANDER THOMAS, J.** The prayer in the afore-captioned original petition filed under Articles 226 and 227 of the Constitution of India is as follows (see page No.8 of the paper book of the Original Petition): _“...to set aside Exhibit P4 Order dated 31.10.2018 in O.A.(E) No.1295/2017 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram, by allowing this Original Petition.”_ 2. Heard Sri.Antony Mukkath, learned Senior Government Pleader appearing for the petitioner – State of Kerala in the O.P./sole respondent in the O.A. and Sri.P.Mohandas, learned counsel appearing for the sole respondent in the O.P./sole applicant in the O.A. before the Tribunal. 3. The prayers in Ext.P1 original application, O.A.(E) No.1295 of 2017 filed by R1 herein before the Tribunal are as follows (see page Nos.19 and 20 of the paper book of the OP): _“i) to set aside Annexure-A5 order G.O.(Rt)No.414/2017/TD dated 22-05-2017 issued by the respondent as it is_ **OP(KAT).No.35 OF 2021** **3** _arbitrary, illegal and void;_ - _ii) to set aside Annexure-A6 show cause notice No.1036/F2/2014/TD dated 3-5-2017 issued by the respondent deciding to inflict a major penalty of barring one increment with cumulative effect;_ - _iii) to declare that the proceedings initiated pursuant to the registration of crime No.45/2006 of Karunagappally Excise Range is treated as closed as far as the applicant is concerned in the light of Annexure-A3 order G.O. (Rt)No.276/2016/TD dated 31.03.2016;_ - _iv) to issue such other order or direction as this Hon'ble Tribunal may be deem fit and proper in the facts and circumstances of the case.”_ ## 4. The original applicant (R1 herein) while holding the post of Excise Inspector, in the Excise Department of the State Government was served with the impugned Annexure A1 memo of charges dated 09.05.2014 along with statement of allegations thereto. The applicant thereupon submitted Annexure A2 reply dated 05.08.2014 in that regard. This resulted in Annexure A3 enquiry report dated 03.10.2015 submitted by the enquiry officer, whereby the enquiry officer has exonerated the applicant of the major charges in the abovesaid charge memo and held that the applicant could only be found guilty of supervisory lapses. That pursuant to the said Annexure A3 enquiry report, the respondent in the O.A./competent authority of the State Government in the Taxes Department has issued Annexure A4 G.O. (Rt) No.276/2016/TD dated 31.03.2016, whereby the petitioner has been imposed only the penalty of censure in the said disciplinary **OP(KAT).No.35 OF 2021** **4** proceedings. After the lapse of more than 14 long months from the date of issuance of Annexure A4, the Government has issued Annexure A5 G.O.(Rt) No.414/2017/TD dated 22.05.2017 in purported exercise of the powers under Rule 35 of KCS (CCA) Rules 1960, wherein it has been noted that some of the grave offences noticed in the abovesaid proceedings were not taken into account while finalising the disciplinary case and that therefore, the Government have decided to review the matter covered by Annexure A4 and by purported exercise of the powers under Rule 35 of KCS (CCA) Rules 1960, the disciplinary action finalised in the case of the petitioner as per Annexure A4 dated 31.03.2016 stands thereby cancelled and that fresh orders in the disciplinary proceedings should be issued after considering the facts and circumstances of the case. 5. Thereafter, the competent authority of the Government has issued Annexure A6 show cause notice dated 03.05.2017. There are references in Annexure A6 show cause notice dated 03.05.2017. First reference therein is Annexure A1 memo of charges dated 09.05.2014. The second reference therein is the petitioner's explanation/written statement as per Annexure A2 dated 05.08.2014. The third and the last reference therein is Annexure A4 G.O. dated 31.03.2016. There is not even a reference to Annexure A5 G.O. dated 22.05.2017 in **OP(KAT).No.35 OF 2021** **5** Annexure A6 show cause notice dated 03.05.2017. In the operative portion of paragraph No.1 of Annexure A6 show cause notice dated 03.05.2017, it is stated that the Government has now decided to review the matter as per the powers vested in them in terms of Rule 34 of KCS (CCA) Rules, etc. and that the applicant shall show cause as to why the penalty of barring of one annual increment under the KCS (CCA) Rules 1960 should not be imposed on him and that to give reply in that regard within 15 days thereafter, etc. Hence a comparison of Annexure A5 G.O. dated 22.05.2017 and Annexure A6 show cause notice dated 03.05.2017 would make it clear that not even the existence Annexure A5 G.O. dated 22.05.2017 is referred to in Annexure A6. Further Annexure A5 is stated to be issued in purported exercise of the powers under Rule 35 of CCA Rules. Whereas Annexure A6 show cause notice is stated to be issued in purported exercise the powers under Rule 34 of CCA Rules. The Tribunal after hearing both sides has held that the power under Rule 34 of KCS (CCA) Rules will be applicable only as against the original or appellate orders passed by authorities subordinate to Government or by authority other than the State Government. Further that the power of review under Rule 35 of KCS (CCA) will be available only at the instance of an application filed by an aggrieved party so as to seek **OP(KAT).No.35 OF 2021** **6** review of original orders passed by the Government and that too, such application of review should be made within a period of two months from the date of the order impugned therein and subject to the power to condone delay. The Tribunal has found that it is well settled that power of review under Rule 34 can be invoked not to seek review of original order passed by the Government. That Rule 34 does not confer power on the Government to seek review of orders passed by the Government, but only it enables the Government to review orders passed by authorities subordinate to the Government or authority other than the Government. Further that power of review under Rule 35 can be invoked only on the basis of an application filed by a party concerned and not on the basis of _suo motu_ power of the Government and further that it has be seen that such application should be filed within two months subject to power to condone delay. The Tribunal has found that both the vital jurisdictional facts required for the invocation of either the power under Rule 34 or 35 are not satisfied in this case and that therefore, the proposed actions in terms of both Annexure A5 and Annexure A6 are illegal and ultra vires and quashed the said impugned orders and thereby, have restored the original penalty order of cenusre as per Annexure A4. 6. The operative portion of Rule 34 of the KSC (CCA) Rules **OP(KAT).No.35 OF 2021** **7** ## reads as follows: _“34._ _**State Government's power to review.** ___ Notwithstanding anything contained in these rules, the State Government may, on their own motion or otherwise after calling for the records of the case, review any order passed by the High Court as appellate authority under these rules in disciplinary proceedings initiated against a member of the Kerala Civil Judicial Service or the Kerala Criminal Judicial Service or the Kerala Judicial Ministerial Service or the Kerala Last Grade Service referred to in the Note to Rule 23 of these rules or any original order or order on appeal passed by a subordinate authority under these rules or the rules repealed by rule 39 and, after consultation with the Commission where such consultation is necessary, ____ _(a) confirm, modify or set aside the order;_ _(b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order;_ _(c) remit the case to the authority which made the order or to any other authority directing such further action or inquiry as they consider proper in the circumstances of the case; or_ _(d) pass such other order as they deem fit:_ _Provided that, -_ - _(i) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty;_ - _(ii) if the State Government propose to impose any of the penalties specified in items (v) to (ix) of rule 11 (1) on a case where an inquiry under rule 15 has not been held, they shall, subject to the provisions of rule 18, direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the person concerned an opportunity of making any representation which he may wish to make against such penalty, pass such orders as they may deem fit.”_ 7. A reading of Rule 34 of KSC (CCA) Rules would make it clear like in day light that the said power is conferred on the State Government to review orders passed by authorities either subordinate to the Government or authority like the High Court, which is separate from the Government. In the instant case, what is sought to be reviewed by Annexure A5 is the original order of punishment of **OP(KAT).No.35 OF 2021** **8** penalty imposed on the applicant delinquent as per Annexure A4 dated 31.03.2016, issued by the Government. Therefore, there is no question of invoking the power of review under Rule 34 so as to disturb Annexure A4 order and hence Annexure A5 proposing to invoke the power under Rule 35 is absolutely illegal and _ultra vires_ . In that r egard it is also to be borne in mind that a Division Bench of this Court has clearly held in cases as in **Sethu Jayasree Bhasker v. Travancore Devaswom Board** [1993(1) KLT 920 (DB)] that Rule 34 could be invoked by the Government only to review orders issued by authority other than the Government, etc. and it does not enable the Government to review its own original orders. Hence the said finding of the Tribunal is right and proper and does not deserve any interference. ## 8. Rule 35 of the KCS (CCA) Rules reads as follows: _“35. Review of original orders. ___ There shall be a review of original orders on application of party, by Government. There shall be only one review and application for review shall be made within a period of two months from the date of the order:_ _Provided that Government may entertain an application made after the expiry of the said period of two months, if they are satisfied that the applicant had sufficient cause for not making the application within the period.”_ 9. A mere reading of Rule 35 of CCA Rules would make it clear like day light that the said power of review can be invoked by the Government only on the basis of an application filed by a party and it **OP(KAT).No.35 OF 2021** **9** does not confer any power to the Government to _suo motu_ exercise the power of review and further the said application should have been filed by the party concerned within a period of two months from the date of original order of the Government, which is sought to be reviewed. Of course, there is power to condone delay as per the proviso thereto. In the instant case, Annexure A6 proposes to review the original order of penalty imposed by the Government as per Annexure A4, but in terms of Rule 35. The Government does not have any case that any aggrieved person has filed any application to seek review of Annexure A4 order. Rule 35 does not confer any power on the Government to _suo motu_ resorted to any such review. One of the primary requirements for satisfying the jurisdictional facts required for invoking the power of review under Rule 35 is that the same could have been only on the basis of an application filed by a party seeking review of the original order passed by the Government. In the instant case no such application has been filed by any party. Hence no _suo motu_ power is conferred on the Government as per the said Rule to resort to any such review. So the proposed action to seek review of Annexure A4 penalty order, on the basis of Annexure A6 in purported exercise of the powers under Rule 35 of the CCA Rules is also without jurisdiction. 10. Hence, it is only to be held that the Tribunal has rightly set **OP(KAT).No.35 OF 2021** **10** aside both Annexures A5 and A6, which have led the restoration of Annexure A4 penalty order of censure. In the light of these aspects, this Court is constrained to hold that no valid grounds of judicial review are made out in the instant case. In that view of the matter, it is ordered that the original petition is bereft of any merit and the same will stand dismissed. **Sd/ALEXANDER THOMAS JUDGE** **Sd/T.R.RAVI JUDGE** **scs** **OP(KAT).No.35 OF 2021** **11** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A PHOTOCOPY OF THE O.A.(EKM)NO.1295/2017 ALONG WITH ANNEXURES.** **ANNEXURES** **ANNEXURE A1 TRUE COPY OF THE MEMO OF CHARGES ALONG WITH THE STATEMENT OF ALLEGATIONS GIVEN TO THE APPLICANT AS NO.1036/F2/2014/TD DATED 09.05.2014. ANNEXURE A2 TRUE COPY OF THE WRITTEN STATEMENT OF DEFENCE SUBMITTED BY THE APPLICANT DATED 05.08.2014. ANNEXURE A3 TRUE COPY OF THE RELEVANT PAGES OF THE ENQUIRY REPORT (PAGE NO.1,73,74 AND 75) DATED 03.10.2015.** **ANNEXURE A4 TRUE COPY OF THE ORDER GO(RT)NO.276/2016/TD DATED 31.03.2016. ANNEXURE A5 TRUE COPY OF THE ORDER GO(RT)NO.414/2017/TD DATED 22.05.2017. ANNEXURE A6 TRUE COPY OF THE SHOW CAUSE NOTICE NO.1036/F2/2014/TD DATED 03.05.2017. EXHIBIT P2 A PHOTOCOPY OF THE REPLY STATEMENT OF THE RESPONDENT. EXHIBIT P3 A PHOTOCOPY OF THE REJOINDER STATEMENT OF THE APPLICANT. EXHIBIT P4 A PHOTOCOPY OF THE ABOVE ORDER DATED 31.10.2018 IN OA(EKM)NO.1295/2017.**