IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WA.No. 2702 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.32309/2009 Dated 12/11/2009 .................... APPELLANT(S): PETITIONER: ------------------------- A.GOPALAN, (FORMER L.D.CLERK, PANDANADU GRAMA PANCHAYAT) DHANYA SADANAM, PANDANAD, CHENGANNUR, ALAPPUZHA DISTRICT. BY ADVS. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF PANCHAYATS, ALAPPUZHA. 4. THE SECRETARY, PANDANAD GRAMA PANCHAYAT, CHENGANNUR, ALAPPUZHA DISTRICT. BY SENIOR GOVT. PLEADER SRI. BENNY GERVASIS -R1, R2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 2702 OF 2009 --------------------------------------------- Dated this the 22nd day of December, 2009 JUDGMENT Ravikumar, J. The appellant/petitioner was a Lower Division Clerk under the Mulakkuzha Panchayat. He filed this appeal aggrieved by the dismissal of W.P.(C) No.32309 of 2009 whereby the learned Single Judge declined to interfere with Exts.P7 and P9 orders passed by the Government. As per the said orders, the request of the appellant/petitioner for compassionate allowance under Rule 5 of Part III of the Kerala Service Rules (for short “KSR) was declined by the Government. The relevant facts necessary for the purpose of deciding this appeal are as follows: 2. While working as Lower Division Clerk under the Mulakkuzha Panchayat, Crime No.4 of 1992 was registered against the appellant alleging misappropriation of Panchayat funds collected as tax. Thereupon, he was indicted under Section 13(2) read with Sections 13(1(c) and 13(1) (d) of the Prevention of Corruption Act and Sections 409, 420, 465, 468, W.A. NO. 2702/2009 2 471 and 477 A in C.C. No.3 of 1994 of the Indian Penal Code before the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. Earlier, pending the vigilance enquiry, the appellant was placed under suspension. Later, he was convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of four months for the offences under the Prevention of Corruption Act. He was also sentenced to undergo simple imprisonment for a period of one year each for the offences under Sections 409, 465, 468, 471 and 477 A I.P.C. He had unsuccessfully filed Crl. Appeal No. 218 of 1996 before this Court. Initially, the sentence imposed on him was suspended. In the meanwhile based on his conviction in C.C. No.3 of 1994, he was removed from service as per Ext.P2 order dated 5.7.1999. The said order of removal from service was challenged before this Court in O.P. No.18684 of 1999 and as per order in C.M.P. No. 30684 of 1999 therein Ext.P2 order was stayed. During the pendency of the said Original Petition, Crl. Appeal No. 218 of 1996 filed by him was dismissed by this Court. Consequently, O.P. No. 18684 of 1999 filed by him was also dismissed by this Court as per Ext.P4 judgment. Against the dismissal of the Crl. Appeal, the appellant/ petitioner had approached the Honourable Apex Court by filing SLP(Crl.) W.A. NO. 2702/2009 3 No.5704 of 2004, but the same was also dismissed. Thereafter, he had remitted the fine imposed on him and had undergone the imprisonment. Subsequently, the appellant had filed a representation before the Government requesting for compassionate allowance, as provided under Rule 5 of Part III of the KSR. After considering his claim, it was rejected as per Ext.P7. The appellant had attempted for a reconsideration of the decision in Ext.P7 by filing Ext.P8 representation. However, that was also dismissed by the Government as per Ext.P9. It was challenging the said orders passed by the Government, viz. Exts.P7 and P9, that the Writ Petition was filed. The learned Single Judge after considering the claims and contentions of the petitioner found that the reasoning assigned by the Government is not perverse or arbitrary warranting interference with Exts.P7 and P9 and accordingly dismissed the Writ Petition. Hence, this appeal. 3. The learned counsel for the appellant reiterated all the contentions which were unsuccessfully urged before the learned Single Judge. It was contended that the discretionary power vested with the Government under Rule 5 of Part III of the KSR was exercised in an arbitrary and perverse manner and, therefore, Exts.P7 and P9 are liable to the set aside. Yet, another contention raised was that the view taken in the W.A. NO. 2702/2009 4 impugned orders is opposed to the principles laid down by this Court in Thankappan Nair v. State of Kerala, reported in 2001(3) K.L.T. 855. 4. For a proper and profitable consideration of the case, it is relevant to refer to Rule 5 of Part III of KSR which in so far as it is relevant reads thus: “5. Misconduct or inefficiency:- (a) No pension may be granted to an employee dismissed or removed for misconduct, insolvency or inefficiency, but to employees so dismissed or removed, compassionate allowances may be granted when they are deserving of special consideration; provided that the allowances granted to any employee shall not exceed two- thirds of the pension which would have been admissible to him if he had retired on the date of dismissal or removal.” (emphasis supplied) A scanning of the above extracted provision would reveal that it confers discretionary power on the authority competent to sanction compassionate allowance to decide whether the concerned dismissed/removed employee deserves special consideration or not. It is a settled position of law that even when such discretion is vested with an authority competent or the Government, it cannot be exercised in an arbitrary or perverse manner. Its fair exercise lies in deciding the deserver according to the rules of reason W.A. NO. 2702/2009 5 and justice. The salutory maxim “Discretio est discernere per legam quid sit justum” (Discretion consists in knowing what is just in law) shall be borne in mind while invoking that power. At any rate, no court will accept or acknowledge the indiscriminate exercise of the said power without due regard to the relevant factors. 5. In this case, the very charge against the appellant was that he had misappropriated the Panchayat funds collected as tax. The Enquiry Commissioner and Special Judge, Thiruvananthapuram convicted and sentenced him to undergo rigorous imprisonment and to pay fine under the provisions of the Prevention of Corruption Act besides convicting and sentencing him to undergo simple imprisonment for the offences punishable under the Indian Penal Code. As held by this Court in Thankappan Nair's Case (supra), the power conferred under Rule 5 of Part III of the Kerala Service Rules is a power coupled with a duty to be exercised fairly according to the rules of reason and justice on an application made by an employee who was dismissed/removed from service. In the light of the same, the first contention raised by the appellant that the discretionary power under Rule 5 was exercised in an arbitrary and perverse manner has to be looked into. W.A. NO. 2702/2009 6 6. It is not the volume of the order that weighs while making such a scrutiny, but the factor as to whether any relevant aspects were omitted to be taken into account or whether irrelevant factors were taken into account. In other words, the question to be considered is whether the power under Rule 5 was exercised fairly while holding the appellant undeserving for compassionate allowance. The appellant is not a person removed from service pursuant to a disciplinary proceeding initiated for a mere misconduct. He has committed misappropriation of Panchayat funds collected as tax. It is the conviction and the sentence imposed on him by the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram for offences punishable under Section 13(2) read with Sections 13(1)(c) and !3(1)(d) of the Prevention of Corruption Act and under Sections 409, 465, 468, 471 and 477 of the Indian Penal Code that culminated in his removal from service. When that fact was taken into consideration for rejecting his request for compassionate allowance, Ext.P7 cannot be considered as an order passed without proper application of mind. When an authority vested with a discretionary power exercised that power with due consideration of the facts in the light of the relevant law, such a decision does not call for any interference. In short, a scanning of Ext.P7 order would reveal that the discretion under Rule 5 of Part III KSR has been exercised fairly and in accordance with the rules of W.A. NO. 2702/2009 7 reason and justice. Since no ground was made out to reconsider the decision in Ext.P7, the request of the appellant/petitioner on that behalf was rejected as per Ext.P9 order. Therefore, Ext.P9 also cannot be said to be smacked of arbitrariness or perversity. A bare reading of Rule 5 of Part III of the Kerala Service Rules would reveal that compassionate allowance cannot be granted for the mere asking. The entitlement for such allowance depends on the satisfaction by the Government that the concerned employee deserves special consideration and, therefore, eligible to get the same. In this case, it is upon such consideration that the appellant was found to be disentitled to get compassionate allowance. 7. The other contention raised by the appellant was that the view taken by the first respondent in Exts.P7 and P9 are opposed to the principles laid down by this Court in Thankappan Nair's Case (supra). We cannot comprehend the said contention. In fact, a scanning of the impugned orders in the light of the said decision would reveal that they are passed in tune with the said decision. The said decision cannot be understood to have laid down a dictum that all Government servants dismissed/removed from service for serious misconducts are entitled to compassionate allowance. It was held therein that “the power under Rule 5 has to be exercised sparingly. Its indiscriminate use can cause great W.A. NO. 2702/2009 8 harm to public interest. It is not to be doled out to every dismissed employee.” It was also held that the power under Rule 5 of Part III KSR is a power coupled with a duty to act when the circumstances warranting the exercise of that power are shown to exist. In short, it is obvious from Thankappan Nair's Case (supra) that emphasis has been given to the necessity of application of mind while exercising the power under the said rule. There cannot be any doubt with respect to that position. In order to decide whether a claim of compassionate allowance deserves special consideration or not, as contemplated under the rule, application of mind is essential with regard to the facts and circumstances obtained in each case. In Thankappan Nair's Case (supra), the appellant was a police constable dismissed from service for accepting an illegal gratification of Rs.43/-. In the case on hand, the appellant was found to have misappropriated Panchayat funds collected as tax. In C.C. No.3 of 1994, the Enquiry Commissioner and Special Judge, Thiruvananthapuram found the appellant/petitioner guilty for offences punishable under the Prevention of Corruption Act and the Indian Penal Code and accordingly convicted and sentenced him as mentioned earlier. He had unsuccessfully taken up the matter before this Court and also before the Honourable Apex Court. He had undergone rigorous imprisonment and had also remitted the fine in terms of the trial court judgment. Therefore, W.A. NO. 2702/2009 9 the said contention also cannot be countenanced. In the circumstances, the judgment of the learned Single Judge calls for no appellate interference. The appeal is, therefore, devoid of merits and it is accordingly dismissed. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 2702/2009 10 C.R. KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.A. NO.2702/2009 JUDGMENT 22nd December, 2009 W.A. NO. 2702/2009 11