IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 OP.No. 9364 of 2000(M) --------------------------------- PETITIONER: ------------------- V.C. KUNJUMON, S/O. CHATHAN, AGED 46 YEARS, VILLAGEMAN, VILLAGE OFFICE, PUNNAYOOR.P.O., EDAKKARA. BY ADV. SRI.N.J.JOHNSON. RESPONDENTS: ------------------------ 1. THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, THRISSUR. 3. THE REVENUE DIVISIONAL OFFICER, THRISSUR. 4. THE TAHSILDAR, CHAVAKKAD, THRISSUR DISTRICT. BY GOVERNMENT PLEADER SMT. SMITHA BABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 15624/2000 IN O.P. NO. 9364/2000-M DISMISSED 19/03/2008. SD/- T.R.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE SUSPENSION ORDER DTD. 20/09/1990 ISSUED BY THE R.3. EXT.P.2: COPY OF THE REINSTATEMENT ORDER ISSUED BY THE R.3. DTD. 07/06/1993. EXT.P.3: COPY OF THE JUDGMENT IN C.C. NO. 422/1990 DTD. 11TH NOVEMBER 1994 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM. EXT.P.4: COPY OF THE ORDER NO. 4075/96 A1 DTD. 21/06/1996 ISSUED BY THE R.3. EXT.P.5: COPY OF THE LETTER BEARING NO. A2.3085/96 DTD. 02/07/1996 OF THE R.2. ADDRESSED TO R.1. EXT.P.6: COPY OF THE MEMO OF CHARGES DTD. 05/08/1999 ISSUED TO THE PETITIONER BY THE R.2. EXT.P.6.A: COPY OF THE STATEMENT OF ALLEGATIONS DTD. 05/08/1999 ISSUED TO THE PETITIONER BY THE R.2. EXT.P.7: COPY OF THE REPLY SUBMITTED BEFORE THE R.2. ON 28/08/1999 BY THE PETITIONER. EXT.P.8: COPY OF THE SHOW CAUSE NOTICE DTD. 06/11/1999 ISSUED BY THE R.2. TO THE PETITIONER. EXT.P.9: COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE R.2. DTD. 26/11/1999. EXT.P.10: COPY OF THE ORDER DTD. 31/12/1999 ISSUED BY THE R.2. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. T.R.RAMACHANDRAN NAIR, J. ========================= O.P.No.9364 of 2000-M. ========================= Dated this the 19th day of March, 2008. J U D G M E N T The petitioner is working as Villageman and is due to retire from service within a few months. The subject matter of the writ petition is the challenge against Exts.P8 and P10 orders whereby the disciplinary proceedings dropped earlier have been directed to be started afresh. 2. The petitioner was placed under suspension as per Ext.P1 order dated 20.9.1990. Apart from the disciplinary proceedings taken, a criminal complaint was registered against him. By Ext.P2 he was reinstated in service without prejudice to the disciplinary proceedings. After the criminal court by judgment dated 11.11.1994 in CC.No.422/1990 acquitted him by Ext.P3 judgment, the 3rd respondent issued orders treating the period of O.P.No.9364 of 2000-M. -: 2 :- unauthorised absence as leave and to treat the period of suspension as duty. This was done after dropping the disciplinary proceedings. Accordingly, half pay leave from 11.5.1990 to 19.6.1990 was sanctioned and to sanction as leave without allowance the period from 20.6.1990 to 1.11.1990, application was forwarded to the Secretary, Board of Revenue by the District Collector as per Ext.P5. Three years later, he was issued with a memo of charges containing two charges. The petitioner filed an explanation by way of Ext.P7. Thereafter by Ext.P8 the District Collector issued a show cause notice proposing to cancel the proceedings dated 30.6.1995 and 21.6.1996 whereby the disciplinary proceedings were dropped and consequential orders were passed by the Revenue Divisional Officer. To the above notice he submitted explanation Ext.P9 and now by Ext.P10 the District Collector has cancelled those proceedings and allowed him to continue in service without prejudice to the disciplinary proceedings. The petitioner is challenging the said orders on various grounds. O.P.No.9364 of 2000-M. -: 3 :- 3. Heard the learned counsel for the petitioner and the learned Government Pleader for the respondents. 4. Learned Counsel for the petitioner submitted that the disciplinary proceedings having been finalised as per Ext.P4 and as the two periods namely, 11.5.1990 to 19.6.1990 and the later period of 135 days was also sought to be regularised by appropriate orders, the action taken by the District Collector, based on a letter from the Government, three years after the disciplinary proceedings were dropped cannot be sustained. Relying on Rule 37 of the Kerala Civil Services (Classification, Control & Appeal) Rules it is submitted that the maximum period within which an order passed by the disciplinary authority can be reviewed is only one year and the present order has been issued after three years and therefore the same is not sustainable. 5. In the counter affidavit filed by the 2nd respondent it is admitted in para.3 that the RDO as per proceedings dated 30.6.1995 ordered to sanction the leave applied for by the incumbent and to treat the remaining period of suspension as duty. O.P.No.9364 of 2000-M. -: 4 :- After passing Ext.P4 the matter was taken up with the Government for regularizing the period for which leave without allowance applied for namely, 20.6.1990 to 1.11.1990 as per Rule 88(ii), Part I, KSR. When the matter was examined by the Government, the Government found that the dropping of the disciplinary proceedings is irregular and accordingly by Ext.R2(a) letter dated 3.11.1997 the District Collector was directed to invoke further steps in this regard. Since the action taken by the RDO is only on the basis of the judgment in the criminal proceedings, the other charges could be proceeded with and thereafter the memo of charges was issued. Thereafter subsequent proceedings were passed and finally as per order dated 10.6.2000 punishment has been imposed. 6. It is clear from the averments of the counter affidavit that Ext.P4 has been passed by the RDO after dropping the disciplinary proceedings. A reading of Ext.P4 would show that the RDO has passed the said order by proceedings dated 30.6.1995 numbered as A1-6882/90. Actually Ext.P4 is only a modification of O.P.No.9364 of 2000-M. -: 5 :- the said order since in the first order the relevant periods to be regularised were omitted to be mentioned. Therefore, the order dropping the disciplinary action against the petitioner is dated 30.6.1995. The memo of charges is dated 5.8.1999 (Ext.P6). Ext.P8 show cause notice proposing to cancel the proceedings of the RDO is dated 6.11.1999 and Ext.P10 is dated 31.12.1999. These proceedings are issued after four years evidently. 7. Rule 37 of the Kerala Civil Services (Classification, Control & Appeal) Rules reads as follows: “Review of orders by appellate authorities:- The authority to which an appeal against an order imposing any of the penalties specified in rule 11(1) lies may, of its own motion or otherwise, call for the records of the case in a disciplinary proceedings, review any order passed in such a case and after consultation with the Commission where such consultation is necessary, pass such orders as it deems fit, as if the Government servant had preferred an appeal against such order: Provided that no application for review shall be entertained after the expiry of a period of one month from the date of passing the order: Provided further that no action under this rule shall be initiated more than one year after the date of the order to be reviewed.” O.P.No.9364 of 2000-M. -: 6 :- 8. Under the second proviso, no action can be taken for reviewing an order more than one year after that order. Apart from Rule 37 there is no other provision by which a review can be made by the appellate authority which is entitled to consider the validity of the orders passed by the disciplinary authority. Rule 37 specifically says that the appellate authority is entitled to review “any order” passed. An order dropping the disciplinary proceedings will also come within the ambit of “any order”. It is clear from Rule 37 that time limit provided under the second proviso is mandatory in nature and in that sense any action beyond one year cannot be supported. Therefore, it is unnecessary to consider the averments in the counter affidavit to justify the charges against the petitioner. The proceedings will evidently show that the action to revive the disciplinary action on the part of the competent authority was taken after reviewing the order passed by the RDO, only after the expiry of four years. No other rules or orders have been pointed out to justify the said proceedings. O.P.No.9364 of 2000-M. -: 7 :- 9. In that view of the matter Exts.P6, P8 and P10 and the order dated 10.6.2000 cannot survive. The order dated 10.6.2000 is a dependent order only. Further the said order has been passed in spite of the interim stay ordered in this writ petition. Therefore the said proceedings are hereby quashed. The competent authority shall pass consequential orders and grant consequential benefits including eligible increments from 1990, benefit of pay revisions 1992 and 1997 and also re-fixation of pay if they are yet to be sanctioned. Appropriate orders shall be passed within two months from the date of production of a copy of this judgment. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/-