IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 WA.No. 1990 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.9364/2000 Dated 19/03/2008 .................... APPELLANTS/RESPONDENTS ------------------------------------ 1. THE SECRETARY TO GOVERNMENT REVENUE DEPT. SECRETARIAT, THIRUVANANTHAPURAM 2. THE DISTRICT COLLECTOR, THRISSUR 3. THE REVENUE DIVISIONAL OFFICER, THRISSUR 4. THE TAHSILDAR, CHAVAKKAD, THRISSUR DISTRICT. BY SR. GOVT. PLEADER SRI. BENNY GERVASIS RESPONDENT/PETITIONER ---------------------------------- V.C.KUNJUMON, S/O. CHATHAN AGED 48 YEARS, VILLAGEMAN VILLAGE OFFICE, PUNNAYOOR P.O. EDAKKARA. ADV. SRI.RAJIT FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. -------------------------------------------------------------- W.A.No. 1990 of 2008 -------------------------------- Dated this the 9th day of February, 2010. JUDGMENT Balakrishnan Nair , J. Respondents in the original petition are the appellants. The respondent herein was the original petitioner. The brief facts of the case are the following. 2. The respondent was a Villageman of Manathala Village Office in Thrissur District. He was unauthroisedly absent from 11.5.1990 to 1.11.1990. He also abstained from census duty on 14.5.1990. During the above period, he was arrested as an accused in crime No.86/90 of Chavakkad Police Station. It was a case registered under sections 381 and 468 of the Indian Penal Code. The allegations against him were that he had stolen a cheque from the Tahsildar's office and forged the signature of the Tahsildar and tried to encash it. C C No.422 of 1990 arising out of the said crime was tried by Judicial First Class Magistrate Court, Kunnamkulam. 3. In the meantime, the respondent was served with annexure A1 memo of charges dated 28.7.1990. The allegations were that he remained unauthrorisedly absent for the aforementioned period and also stole a W.A. No. 1990 of 2008 2 cheque from the Tahsildar's office, Chavakkad and forged the signature of the Tahsildar and tried to encash it. The respondent filed his written statement on 4.9.90. On finding that the explanation was not satisfactory, he was suspended from service on 20.9.1990 by Ext.P1 order. Still later, on 7.6.1993, he was reinstated in service by Ext.P2 without prejudice to the disciplinary proceedings against him which were to be considered after the disposal of the criminal case. Later, as per Ext.P3, the trial court acquitted the respondent as the prosecution was not able to adduce any evidence against him. 4. Later, the disciplinary authority Revenue Divisional Officer passed annexure A1(a) order ordering to treat the period of suspension of the respondent, after excluding the period for which the respondent has applied for leave, as duty. When the District Collector pointed out that there was some ambiguity in annexure A1(a), the RDO issued Ext.P4 clarificatory order. Since there was no leave in his credit, leave without allowance has to be sanctioned, which could be done only by the Government. Therefore, the District Collector forwarded the file to the Government as per Ext.P5 covering letter for appropriate orders. The Government, on going through the files, realised that the charge against the W.A. No. 1990 of 2008 3 respondent for unauthorised absence was not properly dealt with by the disciplinary authority. Therefore, the District Collector was directed to take action in the matter in accordance with law. Thereupon, the District Collector served Ext.P6 memo of charges dated 5.8.1999 proposing to take action for unauthorised absence. The respondent submitted Ext.P7 reply. While so, the District Collector realised that unless annexure A1(a) order and Ext.P4 order are set aside, further proceedings against the respondent cannot be taken successfully. So, the District Collector issued Ext.P8 show cause notice proposing to cancel those orders. The respondent submitted Ext.P9 reply. But, overruling the objections in Ext.P9, the District Collector passed Ext.P10 order cancelling annexure A1(a) order and Ext.P4 order. The original petition was filed challenging Ext.P10 order and seeking consequential reliefs. During the pendency of the original petition, the proceedings were finalised and a punishment of barring of two increments with cumulative effect was imposed on the respondent. 5. The respondent contended before the learned Single Judge that the action taken by the District Collector was unauthorised and without jurisdiction. The appellants herein supported the said order relying on Rule 37 of the Kerala Civil Services (Control, Classification and Appeal) Rules. W.A. No. 1990 of 2008 4 The learned Single Judge found that though the District Collector has appellate powers over the disciplinary orders passed by the Revenue Divisional Officer, the appellate authority can review the order suo motu only within one year of the order of the disciplinary authority. Since, the time limit is already over, it was found that action of the District Collector in reviewing annexure A1(a) order and Ext.P4 order was unauthorised and therefore quashed Ext.P10 order. Annexure A1(a) order and Ext.P4 order were thus resurrected. Therefore, the charge memo was also quashed treating it as dependent proceeding. 6. The respondents in the original petition have preferred this appeal stating that the Government have taken a decision to review annexure A1(a) order and Ext.P4 order invoking its power under Rule 34 of the Kerala Civil Services (Control, Classification and Appeal) Rules and a letter to that effect has been issued to the District Collector on 3.11.1997. For exercise of the review power under Rule 34 of the Kerala Civil Services (Control, Classification and Appeal) Rules, there is no time limit. Therefore, the appellants prayed for reversing the judgment of the learned Single Judge. Though a copy of the aforementioned order is referred to in the counter affidavit filed by the appellants, in the original petition it is not part of the W.A. No. 1990 of 2008 5 records. If the Government have reviewed the orders in favour of the respondent, invoking its powers under Rule 34, that order is ab inito void as one passed without hearing the first respondent. If the Government have only directed the District Collector to take action in accordance with law, then the District Collector cannot take any action under Rule 37 after the one year time limit prescribed therein. In any view of the matter, the action taken by the District Collector cannot be supported. In view of the above position, we find no reason to interfere with the judgment under appeal. Accordingly, the writ appeal is dismissed. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge vps W.A. No. 1990 of 2008 6