IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 WP(C).No. 24825 of 2007(E) --------------------------------------- PETITIONER(S): ----------------------- SETHU C., AGED 69, S/O K.CHOKKALINGA MOOTHAN, 47/347, SAKTHI NAGAR, MELAMMURI, PALAKKAD-12. BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE UNDER SECRETARY, REVENUE(D)DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 3. THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM. 4. THE SECRETARY, LAND BOARD, THIRUVANANTHAPURAM. 5. THE DISTRICT COLLECTOR, PALAKKAD. 6. THE ACCOUNTANT GENERAL (A & E) KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.24825/2007 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGMENT DATED 10/3/2005 IN OP NO.6724 OF 1996. P2 COPY OF THE SHOW CAUSE NOTICE DATED 20/4/05 ISSUED TO THE PETITIONER BY R1. P2(A) COPY OF THE EXPLANATION DATED 2/6/05 SUBMITTED BY THE PETITIONER TO EXT.P1. P3 COPY OF THE LETTER DATED 21/6/05 SENT BY THE PETITIONER TO THE PRINCIPAL SECRETARY, GOVERNMENT OF KERALA. P4 COPY OF THE LETTER DATED 21/7/05 SENT BY THE PETITIONER TO THE SECRETARY TO THE GOVERNMENT, REVENUE DEPT. P5 COPY OF THE LETTER DATED 29/8/05 SENT BY THE PETITIONER TO THE LAND BOARD SECRETARY, THIRUVANANTHAPURAM. P6 COPY OF THE LETTER DATED 30/9/05 SENT BY THE PETITIONER TO R1. P7 COPY OF THE REPRESENTATION DATED 8TH DECEMBER 2005 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. P8 COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER TO UNDER SECRETARY TO THE GOVERNMENT, REVENUE DEPARTMENT ON 4TH DECEMBER 2006. P9 COPY OF THE ORDER DATED 27/4/07 ISSUED BY THE 2ND RESPONDENT. P10 COPY OF THE ORDER DATED 4/8/2007 OF THE 2RD RESPONDENT. P11 COPY OF THE ORDER DATED THE ACCOUNTANT GENERAL (A & E)'S OFFICE. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.24825 of 2007 ---------------------------------------------- Dated this the 18th day of October, 2011 JUDGMENT The petitioner retired as Deputy Collector on 30.6.1993. During the year 1990-1991, he functioned as Chairman of the Taluk Land Board, Chittoor, Palakkad District. Certain allegations were raised against him in the matter of not initiating appropriate proceedings under Section 85 (9A) of the Kerala Land Reforms Act, which resulted in orders quashing proceedings for taking possession of excess land due from a declarant. Disciplinary proceedings were initiated against him. It could not be completed before his retirement. After retirement, the punishment of reduction of pension at the rate of Rs.25/- per month was imposed on him. The petitioner challenged the same by filing O.P.No.6724 of 1996. That Original Petition was disposed of by this Court by Ext.P1 judgment, which reads as follows: “Petitioner is challenging Ext.P4 order whereunder the petitioner's pension is reduced by Rs.25/- per W.P.(C)No.24825/07 2 month on account of alleged irregularities committed during service. Though the petitioner was placed under suspension, enquiry could not be completed and no action could be taken prior to his retirement. After retirement, the enquiry was closed and Government proposed to reduce pension of the petitioner by Rs.100/- per month. However, when the petitioner filed reply, it came to the notice of the Government that not only the petitioner, but several others were involved in the alleged irregularities and therefore pension of the petitioner was reduced by Rs.25/- per month instead of Rs.100/- as originally proposed. It is very strange that the Government has taken so lightly serious allegations against a responsible Govt. Officer who while in service permitted encroachers to occupy and knock-off Govt. land meant for distribution among landless and adivasis. Even after finding in Ext.P4 that several others are involved, there is nothing to indicate that any action is taken against others involved. At the time of admission of O.P. stay was granted and the petitioner is drawing full pension eversince retirement. It is seen that even after retirement, the Government took three years to pass Ext.P4 order. It is obvious from the order itself that the Government itself has not taken serious note of the serious irregularities alleged against the petitioner and others. No Government should be contented with Rs.25/- saving per month for irregularities of this nature committed by persons who held responsible positions in Govt. Obviously no details of irregularities are mentioned in the order, and the order as such cannot be sustained. This Court therefore has to order fresh enquiry and even if it is done, the Government probably cannot enhance the punishment and at the maximum it may be able to sustain original border which saves the Govt. just Rs.25/- per month from petitioner's pension. I think it will be only a waste of time of the government in a fresh proceeding without which penalty against the petitioner cannot be sustained. O.P. is therefore allowed cancelling Ext.P4 to the extent of reduction in pension by Rs.25/- per month. However, I make it clear that this judgment should not be interpreted as exonerating the W.P.(C)No.24825/07 3 petitioner from the allegations made against him.” Subsequently, on 20.4.2005, Ext.P2 show cause notice was issued to the petitioner directing him to show cause as to why proceedings should not be initiated against him under Rule 59 (b) of Part III of Kerala Service Rules. Despite the petitioner's objections by Ext.P9 order, 5% of the petitioner's pension was reduced. That is under challenge in this writ petition. 2. The petitioner's contention is that the petitioner is innocent of the allegations raised against him, which, in any event, has been quashed by this Court. According to the petitioner, for one single instance of alleged misconduct cannot be the basis for proceedings under Rule 59(b), unless it is a case of fraud as held by this Court in Joseph v. State of Kerala [1994(1) KLT 716]. The petitioner submits that on account of one instance of alleged negligence, no proceedings under Rule 59(b) can be initiated. He submits that Rule 59(b) is not a substitute for disciplinary proceedings as held by this Court in Ponnamma v. Secretary to Government [2011(2) KLT 277]. The petitioner, therefore, seeks the following reliefs: W.P.(C)No.24825/07 4 “i) To call for the records leading upto Ext. P9 and quash the same by the issuance of a Writ of Certiorari or any other appropriate writ, order or direction. (i)(a) “To call for the records leading upto Exhibit P10 and quash the same by the issuance of a Writ of Certiorari or ahny other appropriate writ, order or direction.” (i)(b)”To call for the records leading upto Exhibit P11 and quash the same by the issuance of a Writ of Certiorari or any other appropriate writ, order or direction.” ii) To declare that Rule 59(b) of Part III KSR is violative of Articles 14, 16, 19 and 21 of the Constitution of India and therefore void and inoperative; iii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to forbear from implementing Ext.P9 order as regards the petitioner”. 3. A counter affidavit has been filed by the 1st respondent supporting the impugned order. The learned Government Pleader submits that in Ext.P1 judgment, although the punishment of reduction of pension by Rs.25/- has been quashed, the guilt of the petitioner has been upheld. Therefore, based on that guilt, the respondents were perfectly justified in initiating proceedings under Rule 59(b) of Part III of the Kerala Service Rules. 4. I have considered the rival contentions in detail. In Joseph's case (supra) a learned Judge of this Court held as follows: W.P.(C)No.24825/07 5 “xxx xxx xxx xxx 11.The further question to be considered is whether Ext.P1 order stated to have been issued under Rule 59 Part III KSR is sustainable in law. Evidently it is an order wholly and solely based upon Ext.P6 report. Ext.P6 report submitted in an enquiry illegally conducted could not have been relied upon legally for the purpose of issuing Ext.P1 order. If the Government cannot legally pass an order specifically under Rule 3 Part III KSR based upon Ext.P6 report, such report could not have been relied upon by the Government for issuing an order under Rule 59 Part III KSR. If that is allowed it will amount to allowing the government to do indirectly what they cannot do directly under Rule 3 Part III KSR. Though in Ext.P1, it has been stated that the Government on considering the report has found the service of the petitioner not thoroughly satisfactory and as such is passing the order under Rule 59; the facts and circumstances would clearly show that what has been done is to accept Ext.P6 report as such and order withholding of pension as recommended by the Tribunal. The question whether the service of the petitioner was thoroughly satisfactory or not was not a matter referred to the Tribunal for its findings. The petitioner was never called upon to meet a case that his service was not thoroughly satisfactory. He was never informed that he was being proceeded against under Rule 59 Part III KSR. The order passed in C.M.P. No.50 of 1986 would show that he was in fact told that the proceedings is being continued under Rule 3 Part III KSR. He was never given an opportunity to defend himself against any action specifically stated to have been initiated under Rule 59 stating the reason for initiation of such action.” I am of opinion that ratio of that decision is squarely applies to a case where this Court held that the punishment need not be imposed on the petitioner in respect of the allegations of W.P.(C)No.24825/07 6 misconduct. Apart from that, in this case, only one single instance is the basis for the proceedings under Rule 51(b). It has been held in the decisions quoted above that only if the service of the employee, as a whole, is not thoroughly satisfactory proceedings under Rule 59(b) can be invoked. As I have already held, apart from the single instance, which does not in any way amount to fraud, there is no other allegation against the petitioner for coming to the conclusion that the petitioner's service is not thoroughly satisfactory, which cannot be the basis of proceedings under Rule 59(b) against the petitioner. Accordingly, the impugned order is quashed. If any amount has been withheld from the petitioner's pension on the basis of Ext.P9 order, the same shall be disbursed to the petitioner, as expeditiously as possible, at any rate, within two months from te date of receipt of a copy of this judgment. Consequential orders Exts.P10 and P11 are also quashed. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.24825/07 7 W.P.(C)No.24825/07 8