IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 37393 of 2007(B) ------------------------------------ PETITIONER(S): ---------------------- K.BALAKRISHNA PILLAI, FIRST GRADE SURVEYOR(RETIRED), OFFICE OF THE SUPERINTENDENT OF SURVEY AND LAND RECORDS, RE-SURVEY, MANANTHAVADY, WYNAD DISTRICT RESIDING AT SREEVISAKH, CHUNAKKARA NADUVIL, CHUNAKKARA P.O., ALAPPUZHA DIS BY ADV. SRI.GOPAKUMAR R.THALIYAL RESPONDENTS: ---------------------- 1. THE DIRECTOR OF SURVEY AND LAND RECORDS, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR. DILIP MOHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37393 of 2007(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF ORDER OF SUSPENSION ISSUED TO THE PETITIONER DATED 28.5.2003. EXT.P2 - TRUE COPY OF THE ENQUIRY REPORT DATED NIL. EXT.P3 - TRUE COPY OF THE MEMO OF CHARGES ALONG WITH THE STATEMENT OF ALLEGATIONS DATED 26.6.2003. EXT.P4 - TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 8.8.2003. EXT.P5 - TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 1ST RESPONDENT DATED 29.12.2003. EXT.P6 -TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 13.9.2004. EXT.P7 - TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 7.10.2004. EXT.P8 - TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 22.12.2004. EXT.P9 - TRUE COPY OF THE REVIEW PETITION FILED BY THE PETITIONER DATED 3.3.2005. EXT.P10 - TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 6.7.2007. EXT.P11 - TRUE COPY OF REPRESENTATION DATED 1.6.2007. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No.37393 of 2007 ................................................. Dated this the 7th day of July, 2009 J U D G M E N T The petitioner was a First Grade surveyor in the office of the Superintendent of Survey and Land Records, Mananthavady. On certain allegations, petitioner was suspended from service by Ext.P1. A preliminary enquiry was conducted and Ext.P2 preliminary enquiry report was submitted wherein the major allegations against the petitioner relating to corruption were found to be unsupported by sufficient evidence. But in respect of loss of 17 files, the preliminary enquiry revealed responsibility on the part of the petitioner. Therefore Ext.P3 memo of charges with statement of allegations were issued to the petitioner in respect of the same. The petitioner submitted Ext.P4 reply stating that the charges are without any basis. By Ext.P5, the director of survey found the petitioner guilty of the misconduct and since in the meanwhile the petitioner had retired from service, it was recommended that the pension of the petitioner be reduced by 20% by invoking Rule 3 of part III of KSR. Subsequently, the Government issued Ext.P6 notice to the W.P(C) No.37393 of 2007 -2- petitioner under Rule 59(b) of part III of KSR directing the petitioner to show cause why the petitioner's pension should not be reduced by 20% by invoking Rule 59(b) Part III since on account of 11 punishments imposed him and the suspension which led to Ext.P5 order, his service was not thoroughly satisfactory. The petitioner submitted Ext.P7 reply, again contending that there is no ground for invoking Rule 59(b) of KSR. Despite the same, by Ext.P8, the Government reduced pension payable to the petitioner by Rs.350/- per month. The petitioner's review petition was also dismissed by Ext.P3. The petitioner is challenging Exts.P5, P8 and P10 in this writ petition. 2. The contention of the petitioner is that the petitioner has not been found guilty of any misconduct in any valid proceedings under Kerala Civil Services (Classification, Control and Appeal) Rules or Rule 3 of Part III of KSR. According to the petitioner, Rule 59(b) cannot be invoked, when the proceedings under Kerala Civil Services (Classification, Control and Appeal) Rules or under Rule 3 of Part III of KSR fails which is what has been done in this case. Therefore, according to the petitioner, W.P(C) No.37393 of 2007 -3- the impugned orders are totally without jurisdiction and unsustainable. 3. The respondents have filed a counter affidavit supporting the orders. 3. I have considered the rival contentions in detail. 4. On the basis of Ext.P2, in respect of the loss of files alone disciplinary proceedings for imposition of major penalty proceedings have been initiated by the disciplinary authority. The proceedings were initiated clearly under the Kerala Civil Services (Classification, Control and Appeal) Rules. By Ext.P5, the penalty recommended is reduction in pension. The penalty of reduction of pension is included as Rule 11(ix). Under Rule 15, for imposition of the penalty of reduction in pension procedure prescribed for imposition of major penalty prescribed under Rule 15 has to be followed. For the same, an enquiry is mandatory. Ext.P5 does not disclose that any enquiry as contemplated in Rule 15 with notice and opportunity to defend to the petitioner has been conducted. That being so, the entire proceedings which culminated in Ext.P5 is clearly vitiated for want of compliance with the procedure prescribed under the W.P(C) No.37393 of 2007 -4- Kerala Civil Services (Classification, Control and Appeal) Rules. Therefore Ext.P5 is liable to be quashed. However, I find that in Ext.P6, only Ext.P1 has been taken into account in respect of the charges which culminated in Ext.P5 and not Ext.P5 itself. In fact, Ext.P6 proceeds on the basis that 11 times in his service, the petitioner has been punished for various misconducts. Out of which twice he was imposed with major punishment of barring of increment with cumulative effect. Rule 59 of Part II 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. 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.” The fact that 11 times the petitioner had been imposed with punishment during his service of which 2 were major punishments itself is more than sufficient to hold that the petitioner's service has not been thoroughly satisfactory. It is W.P(C) No.37393 of 2007 -5- clear that proceedings under Rule 59(b) is not related to Ext.P5. Therefore, I do not find any infirmity in the Government invoking Rule 59(b) for the petitioners case of the punishment imposed on the petitioner which have become final. That being so, such punishments can certainly be a ground for invoking Rule 59(b) of Part III of KSR. Hence, although Ext.P5 is bad for non- compliance with the procedure prescribed under Rule 15 of Kerala Civil Services (Classification, Control and Appeal) Rules, the action of the Government in invoking Rule 59(b) cannot be assailed in view of the various punishments imposed on the petitioner during his period of service. Therefore, while quashing Ext.P5, I uphold the action taken by Exts.P8 and P10. The writ petition is disposed of accordingly. S. SIRI JAGAN, JUDGE rhs