IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 OP.No. 9850 of 1999(V) -------------------------------- PETITIONER: ------------------- P.K.M. KOYA, TAHSILDAR (RETIRED), CIVIL HOUSE, CIVIL NAGAR, PALAKKAD -1. BY ADVS. SRI.P.K.YUSUFF ISSUDDIN, SRI. K.A. ABDUL SALAM, SRI. S.P. ARAVINDAKSHAN PILLAY, SMT. SANTHA. RESPONDENTS: ----------------------- 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SMT. K.R. DEEPA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 9850/1999-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE R.1. DTD. 02/12/1994. EXT.P.2: COPY OF THE LETTER DTD. 27/06/1995 SENT BY THE COMMISSIONER & SECRETARY TO GOVT. TO THE PETITIONER. EXT.P.3: COPY OF THE LETTER SENT BY THE PETITIONER TO THE COMMISSIONER & SECRETARY SC/ST DEVT. DEPTT. DTD. 08/07/1995. EXT.P.4: COPY OF THE SUPREME COURT JUDGMENT DTD. 03/12/1993 IN W.P. NO. 12486- 87 OF 1984 (CA NO.4807/84 SLP (C) NO.6457/90 AND SLP (C) NO. 3746/1992). EXT.P.5: COPY OF THE ORDER IN C.C.C. NO. 193/1993 DTD. 23/09/1993 OF THIS HONOURABLE COURT. EXT.P.6: COPY OF THE MEMO OF CHARGE SENT BY THE COLLECTOR OF PALAKKAD TO THE PETITIONER DTD. 24/08/1995 ALONG WITH STATEMENTS OF ALLEGATIONS. EXT.P.7: COPY OF THE EXPLANATION LETTER DTD. 07/09/1995 SENT TO THE COLLECTOR BY THE PETITIONER. EXT.P.8: COPY OF THE MEMO OF CHARGE DTD. 20/07/1995 ISSUED BY THE BOARD OF REVENUE TO THE PETITIONER. EXT.P.9: COPY OF THE EXPLANATION LETTER DTD. 09/09/1995 SENT TO THE R.1. BY THE PETITIONER. EXT.P.10: COPY OF THE SHOW CAUSE NOTICE AND STATEMENT OF ALLEGATIONS DTD. 30/08/1996 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.11: COPY OF THE EXPLANATION LETTER DTD. 18/12/1996 SUBMITTED BY THE PETITIONER TO THE R.1. EXT.P.12: COPY OF THE ORDER OF THE R.1. DT. 05/08/1998. EXT.P.12.A: COPY OF THE ORDER GO (RT).NO.1247/03/RD DTD. 12/05/2003 OF THE R.1. EXT.P.13: COPY OF THE LETTER DTD. 14/10/1994 ISSUED BY THE DIST. COLLECTOR, PALAKKAD TO THE PETITIONER. EXT.P.14: COPY OF THE LETTER DTD. 26/09/1994 ISSUED BY THE STATE SECRETARY OF THE KERALA STATE BHARATH SCOUTS AND GUIDES TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 9850 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 15th December, 2008. J U D G M E N T The petitioner was a Tahsildar in the service of the Government of Kerala, who retired from service on 31-8-1995. He is challenging Exts.P.12 and P12(A), which are the original order and the order in revision passed under Rule 59(b) of Part III of Kerala Service Rules by the respondents, whereby his pension has been reduced by Rs.50/-. His contention is that the proceedings under Rule 59(b) have been initiated mala fide to wreak vengeance on the petitioner. The petitioner's contentions in this regard are as follows: 2. Prior to his retirement on 31-8-1995,, in December, 1994, when disciplinary proceedings were contemplated against him in respect of certain caste certificates issued by the petitioner to members of Thandan community, at a time when the question was current as to whether certain members of the Ezhava/Thiyya communities of Palakkad district known as Thandans were eligible for benefits as scheduled castes, as in the case of the Thandan community appearing in the scheduled caste order, the petitioner submitted Ext. P1 representation requesting to drop the proposed disciplinary action on the ground that he had issued the certificate strictly in accordance with the judgment of the Supreme Court in the judgment in Palghat Jilla Thandan Samudaya Samrakshana Samithi & Anr. v. State of Kerala & Anr., reported in 1993 (6) SC 622 decided on 3-12-1995 and the certificates were issued subject to the views of the State Government. On receipt of Ext. P1, the Commissioner and Secretary to Government issued Ext. P2 communication to the petitioner directing him to submit to the Government the judgment of the High Court or the Supreme Court directing the Tahsildar, Palakkad to issue Thandan certificates to the 14 individuals as per the list attached therewith. That was on 27-6- O.P. No. 9850/1999 -: 2 :- 1995. The petitioner submitted Ext. P3 reply to the same explaining that there was no specific judgment of the High Court or the Supreme Court directing him to issue a certificate, and that he issued the same based on the law declared by the Supreme Court in the judgment referred to above. He has produced that judgment of the Supreme Court as Ext. P4 herein. However, no further proceedings were taken in the matter. 3. In the meantime, this Court initiated proceedings for contempt in C.C.C.No. 199/1993 against the petitioner for not issuing a caste certificate in another case as directed by this Court . He appeared and submitted before this Court that non-implementation of the orders of this Court in respect of the issue of community certificate was in view of certain directions from the Commissioner and Secretary to the Government. As directed by this Court, the petitioner produced the communication from the Commissioner and Secretary to the Government which read thus: “Hence Scheduled Tribes Certificate need not be issued to individual solely based on the judgment in O.P 4014/86.” Consequent thereto, the Commissioner and Secretary to the Government and the Deputy Secretary were directed to appear in person and explain their conduct. Thereafter, by Ext. P6 dated 24-8- 1995, memo of charges were issued to the petitioner in respect of certain irregularities mentioned therein such as non-signing of cash book daily, retaining of cash balance amounting to Rs. 62502/- on 13- 3-1995 without remittance the same in Bank, cash shortage of Rs. 3971/- and retention of Rs. 27,045/- in the form of temporary vouchers. The petitioner submitted Ext. P7 reply dated 7-9-1995. In the meanwhile, he retired from service on 31-8-1995. That memo of O.P. No. 9850/1999 -: 3 :- charges was also not proceeded with. 4. Thereafter, one year after his retirement, the petitioner was served with Ext. P10 show cause notice under Rule 59(b) of Part III of K.S.R directing him to show cause why an amount of Rs. 150/- should not be reduced from his pension as his service was not satisfactory because of the same reasons as mentioned in the earlier two memos of charges. Despite Ext. P11 explanation submitted by the petitioner, Ext. P12 order reducing petitioner's pension by Rs.50/- was passed by the Government. Revision filed by the petitioner also did not meet with success since the same was dismissed by Ext. P12(A). The petitioner is challenging Exts.P12 and P12 (A) orders in this original petition. 5. Petitioner's contention is that obviously, this is an act of vengeance on the part of the Commissioner and Secretary to the Government for having submitted before this Court in the contempt proceedings evidenced by Ext. P5 that it was as per the directions issued by the Commissioner and Secretary to Government that he did not comply with the directions of the High Court in a judgment, which resulted in this Court impleading the Commissioner and the Secretary and Deputy Secretary in the contempt proceedings and issuing directions against them in the contempt case. He would further submit that after having failed to proceed with the disciplinary proceedings as per the memo of charges issued for the same reasons on which Ext. P10 was issued to him, they cannot, after the retirement of the petitioner, take recourse to Rule 59(b) and reduce his pension. According to the petitioner, if the respondents had any intention to continue the disciplinary proceedings as per the memo of charges issued to the petitioner, the charges in which were the only charges on which Ext. P10 show cause notice had been issued to the O.P. No. 9850/1999 -: 4 :- petitioner, the only course of action open to the respondents was to continue the disciplinary proceedings under Rule 3 of Part III of K.S.R. He submits that in view of the Division Bench decision of this Court in Jayarajan v. State of Kerala, 2001 (3) KLT 929 confirmed by a Full Bench of this Court in Raveendran Nair v. State of Kerala, 2007(1) KLT 605 (F.B), Rule 3 proceedings are not confined to recovery of loss caused to the Government on account of the misconduct or negligence during service, but is also applicable for reduction of pension as a punishment. He would therefore submit that Rule 59(b) of K.S.R cannot be invoked as a substitute for Rule 3 thereof. He further submits that Rule 59(b) can be invoked only when, as explained in Ruling No.1, irregularities are detected after retirement and departmental proceedings are not feasible under Rule 3. 6. A counter affidavit has been filed by the 1st respondent justifying the action taken by the respondents, which resulted in Exts.P12 and P12(A). According to the learned Government Pleader, even if the disciplinary proceedings have not been continued pursuant to the memo of charges, nothing prevents the Government from initiating proceedings under Rule 59(b), if, for valid reasons, the Government finds that the service of the petitioner is not thoroughly satisfactory. 7. I have considered the rival contentions in detail. 8. Rule 59 reads thus: “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. (b) If the service has not been thoroughly satisfactory, the Government may make such reduction in the amounts as they think proper. O.P. No. 9850/1999 -: 5 :- 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.” Item (3) under Ruling No. 1, provids thus: “3. Though Rule 59(b) does not provide for an enquiry before taking action, the person affected may be given an opportunity of being heard to satisfy the principles of natural justice. A detailed enquiry is not necessary for reducing the pension, under this rule. But before ordering a reduction of pension the employee concerned may be given an opportunity to explain and vindicate himself as for instance when irregularities are detected after retirement and departmental proceedings are not feasible under Rule 3 abid.” If the Government intends to either proceed with disciplinary proceedings already initiated or to be initiated for misconducts detected within a specified period after retirement, a procedure is prescribed under Rule 3 of K.S.R which reads thus: “3. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service; including service rendered upon re-employment after retirement. Provided that- (a) such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service; O.P. No. 9850/1999 -: 6 :- (b) such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his re-employment; (i) shall not be instituted save with the sanction of the Government; (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the employee during his service; (c) No such judicial proceedings , if not instituted while the employee was in service whether before his retirement or during his re-employment, shall be instituted, save with the sanction of the Government, in respect of a cause of action which arose or an event which took place more than four years before such institution. (d) the Public Service Commission shall be consulted before final orders are passed. Explanation:- For the purpose of this rule- (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the employee or pensioner or if the employee has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted- (i) in the case of a criminal proceeding on the date on which the complaint or report of police officer on which the magistrate takes cognizance is made; and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court.” In Ruling No. 1(3) under Rule 59(b), it is specifically made clear that Rule 59(b) has to be invoked in circumstances such as when irregularities are detected after retirement and departmental proceedings are not feasible under Rule 3 ibid. Therefore, a O.P. No. 9850/1999 -: 7 :- conjoined reading of Rule 59(b) and Ruling 1(3) make it abundantly clear that Rule 59(b) cannot be invoked as substitute for Rule 3. Further, I am of opinion that Rule 59(b) cannot be simply invoked for the purpose of punishing a retired Government servant for any specified act of misconduct. It is only when the general service of the petitioner as a whole had not been thoroughly satisfactory the question of invoking Rule 59(b) arises. In the case of specific instance of misconduct, the Government can initiate disciplinary proceedings and if the same could not be concluded before retirement, Rule 3 can be invoked. It is only when it is not feasible to initiate proceedings under Rule 3, Rule 59(b) can be invoked. In this case, nothing prevented the respondents from continuing the disciplinary proceedings pursuant to the memos of charges already issued, under Rule 3 of Part III of the K.S.R. Therefore, clearly, the proceedings which resulted in Exts.P 12 and P 12(A) could not have been initiated under Rule 59(b) in the petitioner's case. 9. Apart from that, on merits also, I find considerable merit in the contentions of the petitioner that the same has been initiated as an act of vengeance against the petitioner. Exts.P.1 to P5 give credence to the contentions of the petitioner in this regard. 10. Even before the retirement of the petitioner, for the very same specific charges mentioned in Ext. P10 issued under Rule 59(b), two charge memos were earlier issued to the petitioner. First is regarding issue of 14 community certificates to persons belonging to Thandan community. The only allegation against the petitioner in respect of the same is that the petitioner issued those certificates without conducting any local enquiry. There is not even an allegation that the certificates issued to the 14 persons were subsequently found to be invalid since those 14 persons did not belong to the community O.P. No. 9850/1999 -: 8 :- certified in the certificates issued by the petitioner. In this connection, it is pertinent to note that at the relevant time, Ext. P4 judgment of the Supreme Court was in vogue in respect of issue of community certificates to persons belonging to Thandan community of Palakkad area. Going by that judgment, the petitioner had no option but to issue certificates to the persons whose community was known as Thandan. In the present case, admittedly, the petitioner issued community certificates on the basis of earlier community certificates issued to the very same persons. At that time, Act 11 of 1996 had not yet come into force, which provided for procedure to cancel community certificates issued to scheduled castes and scheduled tribes. Even under that Act, without setting aside an earlier community certificate issued to a particular person showing to be a scheduled caste/scheduled tribe member, further proceedings under the Act could not have been taken. In fact, in Ext. P10 show cause notice issued to the petitioner, it has been specifically stated that “it is seen that during the period from 2/94 to 5/94 you in the capacity of Taluk Tahsildar have issued 14 S.C. (Thandan) certificates apparently based on the documents produced by the applicants and on the strength of the Supreme Court judgment.” When a person issues certificates on the strength of a Supreme Court judgment, I do not think that, that can be a reason for invoking Rule 59(b) of the K.S.R. 11. As I said earlier, at the eve of the retirement of the petitioner Ext. P6 show cause notice was issued to the petitioner in respect of certain alleged financial irregularities, which were not continued, which was also included in Ext. P10 show cause notice under Rule 59(b). Ultimately, the findings in Ext. P12 order in respect of the same are as follows: O.P. No. 9850/1999 -: 9 :- “Even though actually there is no shortage of cash balance, there was lack of supervision on his part loading to a suspection of conviction. Hence he is responsible for the above lapse. The delinquent officer has not offered any convincing explanation for the other charges. Hence he is responsible for the above lapses.” I do not think that that also is sufficient justification for invoking Rule 59(b). If that be so, in respect of any Government employee who has been punished for misconduct should also be visited with orders under Rule 59(b) also. For the above reasons, I am satisfied that Exts.P 12 and P 12(A) are not sustainable in law. Accordingly, they are quashed. The respondents are directed to release the arrears of pension due to the petitioner on the quashing of Exts.P 12 and P 12(A), as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The petitioner shall be continued to be paid his due pension without any reduction under Rule 59(b). The original petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/ O.P. No. 9850/1999 -: 10 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 9850 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 15th December, 2008.