IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

&

THE HONOURABLE MR.JUSTICE K. BABU

FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942

OP(KAT).No.389 OF 2020

AGAINST THE ORDER DATED 12.12.2018 IN TA 6062/2012 OF KERALA

ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

PETITIONER/RESPONDENT IN THE T.A :

STATE OF KERALA

REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE

DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, KERALA

SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER

RESPONDENT/APPLICANT IN THE T.A :

P.RAJAN

AGED 59 YEARS

S/O. GOPALAN NAIR, GOVIND, PARIYARAMKUNNU,

MANATHAWADY POST, WAYANAD,PIN-670 645

R1 BY ADV. SRI.M.SASINDRAN

THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY

HEARD ON 26.02.2021, ALONG WITH OP(KAT).57/2021, THE COURT ON THE

SAME DAY DELIVERED THE FOLLOWING:

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&

O.P (KAT) No.57 of 2021

2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

&

THE HONOURABLE MR.JUSTICE K. BABU

FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942

OP(KAT).No.57 OF 2021

AGAINST THE ORDER DATED 12.12.2018 IN TA 6071/2012 OF

KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

PETITIONERS/RESPONDENTS IN THE T.A :

1STATE OF KERALA

REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT,

SECRETARIAT, THIRUVANANTHAPURAM, KERALA

2THE ADDITIONAL SECRETARY TO GOVERNMENT,

REVENUE DEPARTMENT, SECRETARIAT,

THIRUVANANTHAPURAM, KERALA.

SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER

RESPONDENT/APPLICANT IN THE T.A :

K.M.DIVAKARAN,

TAHSILDAR (RETD), RESIDING AT SUDINAM HOUSE,

MUNDERI, KALPETTA, WAYANAD, KERALA-673 121.

R1 BY ADV. SRI.M.SASINDRAN

THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN

FINALLY HEARD ON 26.02.2021, ALONG WITH OP(KAT).389/2020,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

2021/KER/10680

O.P (KAT) No.389 of 2020

&

O.P (KAT) No.57 of 2021

3

(CR)

ALEXANDER THOMAS & K.BABU, JJ.

===========================

O.P (KAT) No.389 of 2020

[arising out of the order dated 12.12.2018.

in T.A No.6062/2012 on the file of the KAT, Tvm. Bench]

&

O.P (KAT) No.57 of 2021

[arising out of the order dated 12.12.2018.

in T.A No.6071/2012 on the file of the KAT, Tvm. Bench]

===========================

Dated this the 26

th

day of February, 2021

JUDGMENT

ALEXANDER THOMAS, J.

The prayers in O.P (KAT) No.389/2020 are as follows (See

page No.8 of the paper book of that O.P):

“(i)To set aside Anx.A3 order of the Kerala Administrative

Tribunal Order 12-12-2018 in T.A No.6062/2012.

(ii)Any other order or direction as this Honourable Court may

deem fit and proper in the facts and circumstances of the

case.”

The prayers in Transferred Application, T.A No.6062/2012 on the file

of KAT, Thiruvananthapuram Bench are as follows [See page No.25

of the paper book of O.P (KAT) No.389/2020.]:

“(i) Issue a writ of certiorari or any other writ order or direction to

quash Ext.P6 in so far as it imposes punishment on the

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petitioner;

(ii) To declare that the entire proceedings pursuant to Ext.P1 are

invalid; since the allegations pertains to the function as a quasi

judicial authority.

(iii)To command the 1

st

respondent to disburse the DCRG and other

terminal benefits due to the petitioner and re-fix the pension,

regularize the period of suspension;

(iv) To issue any other writ order or direction as this Hon’ble Court

may deem fit in the facts and circumstances of the case.”

2. The prayers in O.P(KAT) No.57/2021 are as follows (See

page No.8 of the paper book of that O.P):

“(i)To set aside Anx.A4 order of the Kerala Administrative

Tribunal Order 12-12-2018 in T.A No.6071/2012.

(ii)Any other order or direction as this Honourable Court may

deem fit and proper in the facts and circumstances of the

case.”

The prayers in Transferred Application T.A No.6071/2012 are as

follows (See page No.23 of the paper book of O.P(KAT) No.57/2021).

“(i) Issue a writ of certiorari or any other writ, order or direction to

quash Ext.P9 in so far as it imposing punishment on the

petitioner.

(ii) To issue any other writ, order or direction as this Hon’ble Court

may deem fit in the facts and circumstances of the case.”

3. Heard Sri.B.Unnikrishna Kaimal, learned Government

Pleader appearing for the petitioners (State of Kerala & another) in

these O.Ps,/respondent/s in the T.As and Sri.M.Sasindran, learned

advocate appearing for the sole respondent in both these O.Ps/sole

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applicant concerned in the respective T.As before the Tribunal.

4. The facts in both these cases are broadly similar in nature

and the order impugned in both these cases before the Tribunal is a

common Government Order covering these applicants as well as

certain other alleged delinquents. However for sake of convenience

and easy reference, the case in O.P(KAT) No.389/2020, which

arising out of T.A No.6062/2012, could be taken as the lead case.

5. The applicants were holding the rank of Tahsiladar (Land

Reforms) and they had also functioned in a statutory quasi judicial

capacity as the Land Tribunal at Mananthavady, Wayanad in

accordance with the provisions contained in the Kerala Land Reforms

Act during the period from 1998 to 2000. Both of them were ordered

to be placed under suspension from service sometime in the year

2000 in connection with the allegations regarding the alleged illicit

felling of trees in the area concerned. Memos of Charges along with

the statement of allegations issued by the Government were served

on them in that regard. The allegations are to the effect that, the

applicants had issued statutory purchase certificates in respect of

certain land which was declared as surplus land, without proper

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verification of the land records and all other documents and it is the

admitted case that the issuance of the said statutory purchase

certificates was on account of the discharge of their statutory

quasi-judicial functions and duties as the Land Tribunal functioning

in terms of the provisions contained in Kerala Land Reforms Act. It

was thus alleged that the applicants had committed misconduct and

dereliction of duty and also failed to maintain absolute integrity and

devotion of duty, etc. During the pendency of the abovesaid

proceedings both the applicants have retired from service some time

in the year 2003. Thereafter, Ext.P1 show cause notice was issued to

each of them along with the statement of allegations therein, which

appears to be a reiteration of the very same allegations covered by

earlier Memo of Charges and directing them to show cause as to why

disciplinary action as contemplated under Rule 3(a) Part III KSR

should not be taken against them in spite of the retirement from

service. The applicants had submitted their respective replies to the

same requesting that proceedings may be dropped as they had been

discharging their statutory quasi-judicial functions as the Land

Tribunal constituted in terms of Kerala Land Reforms Act and one of

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the parties in such suo motu cases considered by the Tribunal

concerned. Further that there are no allegations that the abovesaid

applicants discharged their statutory quasi-judicial duties maliciously

or with corrupt motive and that the only allegation being that they

have discharged their quasi-judicial functions in a wrong manner. It

will not enable the authorities concerned in initiating disciplinary

action for improper or wrong exercise of quasi-judicial functions in

view of the well settled legal principles in that regard.

6. From the pleadings and materials on record, it appears

that the preliminary enquiry was conducted by then

Secretary/Principal Secretary to Government in the Revenue

Department and the memo of charges and the statement of

allegations referred to hereinabove were issued on the basis of said

enquiry report. Further the case of the respondents in the O.A is also

to the effect that, on account of the directions issued by the Division

Bench of this Court in a public interest litigation petition, an enquiry

by the CBI was conducted, who recommended the departmental

action for major penalty proceedings against the officials concerned.

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7. As far as present post retiral disciplinary action taken on

the basis of Rule 3(a) Part III KSR, it appears that the Government

had appointed the former Additional Chief Secretary to Government,

to conduct enquiry in the said proceedings and the said enquiry

officer has stated in his report that the applicants had committed the

irregularities as alleged in the show cause notice. It was on the basis

of the said report of the said enquiry officer that the Government

have issued a notice stating that they had provisionally decided to

reduce 1/3

rd

of the monthly pension of each of the applicants and

show cause notices were issued to them. Further it is the case of

respondents in O.A, that the matter was also referred to Public

Service Commission for their considered views as required in Clause

(b) of Rule 3(a) Part III KSR and that the Public Service Commission

had also apprised that they are agreeable to the provisional decision

suggested by the Government. It is on those basis that the impugned

G.O(Rt)No.5097/07/RD dated 28-12-2007 [marked as Ext.P6 in the

proceedings before the Tribunal in the matter in

O.P(KAT)No.389/2020 and as Ext.P9 in the matter in O.P(KAT)

No.57/2021] was issued by the competent authority of the State

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Government in the Revenue Department, which is a common order

covering the delinquents concerned including the applicants.

The competent authority of the State Government as per the

abovesaid impugned order dated 28.12.2007 has noted the abovesaid

allegations and has also noted the findings made by the enquiry

officer referred to herinabove in the said enquiry report as well as

the provisional decision of the Government which proposed to

re

duce

1/3rd of the monthly pension and also taken note of the views of the

Public Service Commission and thereafter passed the said order

dated 28-12-2007 orderin

g

that 1/3rd of the monthly pension of each

of the applicants will stand withheld or reduced as envisaged in Rule

3 Part III KSR. Hence the case of the respondents in the O.A is that

the said impugned G.O(Rt)No.5097/07/RD dated 28-12-2007 is the

final order passed by the competent authority of the State

Government in the Revenue Department finalising the proceedings

proposed in terms of the operative portion of Rule 3 Part III KSR.

8. The main grounds urged by both the applicants are to the

effect that it is categorically mandated in clause (a) of the proviso to

Rule 3 Part III KSR that if such departmental proceedings, was

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instituted while the employee was in service, then though at the

discretion of the authority it could be deemed to be a proceedings

under Rule 3 after the retirement of the employee, but then such a

case shall be continued and concluded by the authority by which it

was commenced in the same manner as if the employee had

continued in service. In that regard, it is urged that the proposal in

Ext.P1 is for withholding or reduction of pension and if that be so, the

employee had been in service, what is involved is a major penalty of

reduction of pension covered by Clause (ix) of Rule 11 of KCS (CC&A)

Rules in which case, it is further mandated in the said Rule 11 thereof

that such a major penalty of reduction of pension can be considered

for imposition only after conducting a detailed disciplinary/

departmental enquiry as envisaged in the mandatory provisions

contained in Rule 15 of the KCS (CC&A) Rules, which regulates the

scenario of imposition of major penalties.

9. Further it is also pointed out that, even if the proceedings

in question is stated to be one covered by Clause (b) of Rule 3 of Part

III KSR and even if it is assumed that the factual incidents are not

covered by the embargo of four years mentioned therein, still it is

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clearly mandated in Sub Clause (iii) of Clause (d) of the proviso to

Rule 3 Part III KSR that in such cases, the procedure applicable to

departmental enquiries, in which an order of dismissal from service

could be made in relation to the employee should be strictly and

meticulously observed. That the impact of both the abovesaid

relevant provisions going out from Clause (a) of the proviso to Rule 3

as well as Clause (b)(iii) of proviso to Rule 3 is that, for proposing the

action of withholding of pension as envisaged in Rule 3, then the

detailed departmental enquiry envisaged in Rule 15 of the KCS

(CC&A) Rules is mandatory and obligatory inasmuch as it should be

treated at par with a major penalty as envisaged in Rule 11 of KCS

(CC&A) Rules. The cardinal argument placed by the respondents

herein/original applicants is to the effect that, it is indisputable that

such a detailed disciplinary/departmental enquiry as envisaged in

Rule 15 of KCS (CC&A) Rules has not been conducted in the present

cases. That therefore, the impugned orders passed by the

Government ordering the withholding of the pension of each

applicants to the extent of 1/3

rd

of their monthly pension, etc. is

absolutely illegal or ultra vires and is liable for interdiction. Further

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that at this stage, it will be highly improper and unlawful to even

re-commence such detailed enquiry at this long distance of time in

respect of the events which have taken place sometime in late 90’s

which is more than about 23 years ago. It will be pertinent to refer to

the main ground enumerated by the applicants in both these cases.

The present ground is almost identical in both these cases. It will be

pertinent to refer to ground Nos.A & B of T.A No.6062/2012 (See

page Nos.21 & 22 of the paper book of O.P(KAT) No.389/2020),

which read as follows:

“A. The Ext.P6 order is absolutely illegal and arbitrary. By Ext.P6 order, a

punishment of reduction of pension has been awarded. The punishment

of reduction of pension is a major penalty as it is included as Rule 11(ix).

Rule 15 of the Kerala Civil Service (CC&A) Rules says that no order

imposing on a government servant any of the penalties specified in items

(v) to (ix) of Rule 11(1) shall be passed except after enquiry held in the

manner provided therein. The sub Rule 2 to 8 elaborates the procedure

for conducting enquiry. Sub rules it says thus:

"The Disciplinary Authority if it is not the Inquiring Authority may

nominate any person to present the case in support of the

charges before the Inquiring Authority. The Government servant

may present his case with the assistance of any other

Government servant (or a Government Servant retired from the

service under the Kerala State who is not a legal practitioner)

approved by the Inquiring Authority, but may not engage a legal

practitioner for the purpose unless the person nominated by the

Disciplinary Authority as aforesaid is a legal practitioner or unless

the person nominated by the Disciplinary Authority as aforesaid is

a legal practitioner or unless the Inquiring Authority having regard

to the circumstances of the case, so permits.

The Inquiring Authority shall, in the course of the Inquiry, consider

such documentary evidence and take such oral evidence as may

be relevant or material in regard to the charges. The Government

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servant shall be entitled to cross-examine witnesses examined in

support of the charges and to give evidence in person and to

have such witnesses, as may be produced, examined in his

defence. The person presenting the case in support of the

charges shall be entitled to cross-examine the Government

servant and the witnesses examined in his defence. If the

Inquiring Authority declines to examine any witnesses on the

ground that his evidence is not relevant or material it shall record

its reasons in writing.

It is clear from the above provisions that presenting officer should

present the case of the employer before the enquiring authority on

behalf of the Government or the Department and that the Government

servants shall be entitled to cross examine the witnesses examined in

support of the charges and to give evidence in person and to have such

witnesses examined in his defence. None of these procedures have

been complied with by the enquiry officer and there is absolutely no

evidence before the enquiring Authority since no witnesses were

present before the Enquiry Authority to prove the case of the

prosecution. In short no enquiry as contemplated in Rule 15 has been

conducted at all and the report and the order based on such report are

unsustainable in the eye of law and liable to be interfered with by this

Hon'ble Court.

B. It is well settled in that even in the case of awarding of minor penalty,

conducting of enquiry is necessary. In the case on hand what has been

awarded is major penalty and inspite of that no enquiry was conducted.

The Enquiry Officer has called the petitioner to his office and compelled

to give a statement, which is not at all permitted to be done by an

Enquiry Officer. The petitioner is delinquent officer and the charges are

to be proved by the department through the presenting Officer before the

enquiry authority. The Enquiry Authority should be unbiased and

inpartial and in the case on hand, the enquiry officer has taken the role

of the presenting officer and hence the enquiry officer was biased. Hence

the entire proceedings are liable to be interfered with.”

The same ground urged in the first Transferred Application is also

urged in Ground A & Ground B of the latter Transferred Application,

which is the subject matter of the latter O.P.

10. To the abovesaid specific contentions raised by these

applicants, it will be relevant to note that the stand of the petitioners

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herein/respondents therein as contained in para No.10 of Anx.2

Reply Statement dated 18-05-2018 filed by the respondents in T.A

No.6062/2012 (see page No.148 of the paper book of the O.P(KAT)

No389/2020, which reads as follows:

“It is a fact that disciplinary proceedings against the

applicant were initiated and concluded under Rule 3 of Part III

of KSR. To initiate and conclude action under Rule 3 Part III

KSR, a formal enquiry was envisaged under Rule 15 of Kerala

Civil Service (Classification, Control & Appeal) Rules, 1960 need

not be resorted to. However, in order to meet the ends of justice

and the principles of natural justice an enquiry was conducted

in this matter by the Additional Chief Secretary and all the

reasonable opportunities were given to the applicant to defend

his case. The provisions of Kerala Civil Service (Classification,

Control & Appeal) Rules, 1960 are not binding to the legal

proceedings initiated under Rule 3 of Part III KSR. It may also

be noted that a discreet enquiry by the CBI was also conducted

before initiating action against the applicant.”

So also it will be pertinent to refer to the stand of the respondents in

the other T.A as contained in para No.9 as well as para No.13 of

Anx.A2 reply statement dated 23-07-2018 filed by the respondents in

T.A No.6071/2012 (See pages 75, 77-78 of the paper book of

O.P(KAT) No.57/2021), which read as follows:

“9. The Government of Kerala as per G.O.(RO)No.5167/05/RD dated

27.08.2005 appointed Sri John Mathai, Additional chief Secretary as

Enquiry Officer to conduct a detailed enquiry. It may be noted that

the action against the applicant was not as per the provisions of

KCS(CCEA)Rules, but as per the provisions of Rule 3(a) of Part III of

Kerala Service Rules which does not stipulate a formal enquiry. But

when the Written Statement of Defence was submitted by the

applicant fully justifying his acts and discarding the allegations

against him an enquiry was ordered to ensure natural justice before

taking final decision. It may also be noted that the whole process took

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place after a detailed enquiry by the CBI. The enquiry report

prepared by Sri.John Mathai, Additional chief Secretary said that the

applicant issued a possession certificate falsely stating that the

aforesaid area was covered by Cardamom Registration and that it

was not a surplus land. The enquiry report also says that the

applicant issued sketch to the Forest Ranger Officer, demarcating the

boundaries of the land held by 9 groups of persons knowing that the

demarcation was made not on the basis of the village office records

but on the basis of the documents produced by the party, with a view

to facilitate the issue of NOC by the Forest Department and pattayam

by the Special Tahsildar (LR).

10.xxxxxxxxx

11.xxxxxxxxx

12.xxxxxxxxx

13. The disciplinary proceedings against the applicant were initiated

and concluded under Rule 3 of Part III of KSR. To initiate and

conclude action under Rule 3 Part III KSR, a formal enquiry as

envisaged under Rule 15 of Kerala Civil Service (Classification,

Control & Appeal) Rules, 1960 need not be resorted to. However, in

order to meet the ends of justice and the principles of natural justice

an enquiry was conducted in this matter by the Additional Chief

Secretary and all the reasonable opportunities were given to the

applicant to defend his case. The provisions of Kerala Civil Service

(Classification, Control & Appeal) Rules, 1960 are not binding to the

legal proceedings initiated under Rule 3 of Part III KSR. It may also

be noted that a discreet enquiry by the CBI was also conducted before

initiating action against the applicant on considering the enquiry

report it was ascertained that his service under Government was also

found not wholly satisfactory. The reduction of pension ie. the

penalty No. iv of Rule II (i) of the Kerala Civil Service (Classification,

Control & Appeal) Rules, 1960 was imposed on the applicant after

due process of law. Hence the applicant's contention that imposing of

major penalty without conducting formal enquiry is unsustainable in

the eye of law is baseless. The enquiry report says that the applicant

issued a possession certificate falsely stating that the aforesaid area

was covered by Cardamom Registration and that it was not a

surplus land. The enquiry report also says that the applicant issued

sketch to the Forest Ranger Officer, demarcating the boundaries of

the land held by 9 groups of persons knowing that the demarcation

was made not on the basis of the village office records but on the

basis of the documents produced by the party, with a view to

facilitate the issue of NOC by the Forest Department and pattayam

by the Special Tahsildar (LR).”

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11. Thus it can be seen from a mere reading of the pleadings

of the respondents in the O.A in the respective reply statements that

they have clearly admitted in black and white terms that the detailed

disciplinary enquiry in terms of Rule 15 of KCS (CC&A) Rules has not

been followed in the instant case. Whereas, the specific stand taken

by the respondents in the O.A is that such a detailed disciplinary

enquiry in terms of Rule 15 KCS (CC&A) Rules is not required or

mandatory in terms of the provisions contained in Rule 3 Part III

KSR and that the enquiry envisaged in Rule 3 Part III KSR is only a

summary enquiry and not the one as per Rule 15 of KCS (CC&A)

Rules. It is also relevant to note that the stand of the respondents in

the O.A is also to the effect that Rule 15 of KCS (CC&A) Rules may

apply only in case of in-service employees and that such a mandatory

requirement of Rule 15 detailed disciplinary enquiry is not applicable

in the case of post retiral action envisaged in terms of Rule 3 Part III

KSR and that presumably thereby indicating the stand of respondent

is that only a summary enquiry is required.

12. The Tribunal after noting the admitted facts that the

detailed enquiry in terms of Rule 15 of KCS (CC&A) Rules has not

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been conducted in the instant case, overruled the abovesaid

contentions of the respondents in the O.A and has held in categorical

terms that for finalising action by way of withholding of pension as

envisaged in Rule 3 Part III KSR, conduct of the detailed disciplinary

enquiry as envisaged in Rule 15 of KSC (CC&A) Rules is

mandatory and obligatory. That since the impugned

proceedings have been finalised without conducting such mandatory

detailed departmental/disciplinary enquiry as mandated in Rule 15 of

KCS (CC&A) Rules read with Rule 3 Part III KSR, the proceedings as

per the impugned order issued by the Government as referred to

hereinabove at Exts.P6 & P9 respectively will stand quashed and set

aside. It is this decision of the Tribunal that is under challenge in

these O.Ps.

13. Now it will be pertinent to refer to some of the provisions

contained in the KCS (CC&A) Rules, more particularly, Rule 11, Rule

15 & Rule 16 thereof (hereinafter referred as CC&A Rules). Rules 11 of

the CC&A Rules deals with nature of penalties. Rule 16(1) of CC&A

Rules stipulates that, no order imposing any of the penalties specified

in items (i) to (iv) of Rule 11(1) of the CC&A Rules shall be passed

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except in accordance with the procedure mentioned therein. The

said procedure is not a detailed procedure. The caption of Rule 16

itself manifestly makes it clear that, the said procedure is for

imposing minor penalties. Hence items (i) to (iv) of Rule 11 (1) of

CC&A Rules are broadly classified as minor penalties. Rule 15(1)

mandates that no order imposing on a Government servant any of the

penalties specified in items (v) to (ix) of Rule 11(1) shall be passed

except after an inquiry held as far as may be, in the manner

thereinafter provided. A perusal of the other provision of Rule 15(2)

make it clear that, the said procedure envisaged therein is a detailed

procedure. The caption of Rule 15 itself makes it clear that the said

procedure is one for imposing major penalties. Hence the said

penalties covered therein are broadly classified as major penalties.

Items (i) to (iv) of Rule 11 thereof deals with penalties of censure,

fine, withholding of increments or promotion temporarily for a

specified period, and recovery from the pay of the whole or part of

any pecuniary loss caused to a State Government respectively. Items

(v) to (ix) of Rule 11(1) deals with the penalties of reduction to a lower

rank in the seniority etc, withholding of increment with cumulative

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effect [which is added therein as item V(a)], compulsory retirement,

removal from service, dismissal from service and reduction of

pension respectively.

14. The relevant portion of Rule 3 Part III KSR including its

proviso reads as follows (the explanation thereunder, Notes 1 to 3

thereunder and Rulings Nos.1, 2 & 3 thereunder are omitted as those

provisions may not be very relevant for the present purpose):

“Rule 3. The Government reserve to themselves the right of

withholding or withdrawing a pension or any part of it, whether

permanently or for a specified period, and the right of ordering the

recovery from a pension of the whole or part of any pecuniary loss

caused to Government, if in a departmental or judicial proceeding, the

pensioner is found guilty of grave misconduct or negligence during the

period of his service, including service rendered upon reemployment

after retirement:

Provided that-

(a) such departmental proceeding, if instituted while the employee was

in service, whether before his retirement or during his re-employment,

shall after the final retirement of the employee, be deemed to be a

proceeding under this rule and shall be continued and concluded by the

authority by which it was commenced in the same manner as if the

employee had continued in service;

(b) such departmental proceeding, if not instituted while the employee

was in service, whether before his retirement or during his re-

employment,-

(i) shall not be instituted save with the sanction of the Government;

(ii) shall not be in respect of any event which took place more than four

years before such institution; and

(iii) shall be conducted by such authority and in such place as the

Government may direct and in accordance with the procedure

applicable to departmental proceedings in which an order of dismissal

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from service could be made in relation to the employee during his

service;

[(c) no such judicial proceedings, if not instituted while the employee

was in service whether before his retirement or during his re-

employment, shall be instituted save with the sanction of the

Government, in respect of cause of action which arose or an event

which took place more than four years before such institution; and

(d) the Public Service Commission shall be consulted before final orders

are passed.”

15. A reading of operative portion of Rule 3 Part III KSR

would make it clear that, the Government reserve to themselves the

right of withholding or withdrawing a pension or any part of it,

whether permanently or for a specified period, and the right of

ordering the recovery from a pension of the whole or part of any

pecuniary loss caused to Government, if in a departmental or judicial

proceeding, the pensioner is found guilty of grave misconduct or

negligence during the period of his service, including service

rendered upon re-employment after retirement, etc. We are not

much concerned with the judicial proceedings referred to in that

Rule, in the facts and circumstances of the case. Clause (a) of the

proviso to Rule 3 would further stipulate that, such departmental

proceedings, if instituted while the employee was in service, whether

before his retirement or during his re-employment, shall after the

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final retirement of the employee, be deemed to be a proceeding

under the abovesaid Rule 3 and shall be continued and concluded by

the authority by which it was commenced in the same manner as if

the employee had continued in service. Further Clause (b) of the

proviso stipulates that, such departmental proceeding, if not

instituted while the employee was in service, whether before his

retirement or during his re-employment, then certain other

conditions are also to be satisfied namely that (i) the same shall not

be instituted save with the sanction of the Government, (ii) shall not

be in respect of any event which took place more than four years

before such institution; and (iii) shall be conducted by such authority

and in such place as the Government may direct and in accordance

with the procedure applicable to departmental proceedings in which

an order of dismissal from service could be made in relation to the

employee during his service, etc.

16. In the instant case, the case of the respondents in the O.A

appears to be that memo of charges and Articles of charges and

statement of allegations were duly served against the applicants

before they had retired from service. Further it broadly appears that

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the case of the respondents is that, the said disciplinary proceedings

initiated on the basis of memo of charges issued against the

applicants before the retirement could not be finalised and completed

before their retirement, etc. Therefore broadly it appears that the

case of the respondents in O.A is to the effect that, the said

disciplinary proceedings which has already commenced with the

issue of memo of charges prior to the retirement of the applicants

have now been continued in terms of specific provisions contained in

the operative portion of Rule 3 Part III KSR. Moreover, the said

stand of the Government is also broadly indicated by alleging in

Ext.P1 show cause notice that it is one issued under Rule 3(a) of Part

III KSR presumably thereby meaning that it is one issued in terms of

Rule 3 as well as clause (a) of the proviso thereto. If that be so, then

the mandate of clause (a) of the proviso has to be meticulously

complied with and obeyed by the Governmental authorities

concerned. Clause (a) of the proviso to Rule 3 clearly mandates in no

uncertain terms that such departmental proceeding, if instituted

while the employee was in service, whether before his retirement or

during his re-employment, shall after the final retirement of the

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employee, be deemed to be a proceeding under Rule 3 and shall be

continued and concluded by the authority by which it was

commenced in the same manner as if the employee had continued in

service. If that be so, if the proposed action of the Government for

withholding or withdrawing of pension is the same as reduction of

pension as envisaged in item (ix) of Rule 11 of KCS (CC&A) Rules.

17. Rule 15 (1) of CC&A Rules would mandate in no uncertain

terms that for imposing any of the major penalties envisaged therein

including item (ix) of Rule 11 (1) of the CC&A Rules viz, reduction of

pension can be considered only after strictly and meticulously

observing the requirements of detailed disciplinary enquiry as

envisaged in various Sub rules of Rule 15 of KCS (CC&A) Rules. Since

the pleadings and materials on record are not very clear, even if it is

assumed for a moment that the proposed action was not of

resurrecting the earlier memo of charges but afresh action after

retirement of the petitioner, then the proceedings could be in terms of

clause (b) of proviso to Rule 3, in which case also even if it is assumed

that Sub Clauses (i) & (ii) of Clause (b) of the proviso Rule 3 are

observed, for argument sake, still the Government will have to fully

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comply the mandate of sub clause (iii) of Clause (b) of proviso to Rule

3 of Part III KSR. The mandate of Clause (b) (iii) for the proviso to

Rule 3 is that, such proceedings shall be conducted by such authority

and in such place as the Government may direct in accordance with

the procedure applicable to departmental proceedings in which an

order of dismissal from service could be made in relation to the

employee during his service. As mentioned herein above, the penalty

of dismissal from service is covered in item No.(viii) of Rule 11(1) and

going by the mandate contained in Rule 15 of CC&A Rules, such a

penalty of dismissal from service covered by clause (viii) of Rule 11 (1)

of CC&A Rules can be considered for imposition only after strictly

observing the requirements of the detailed enquiry as envisaged in

various sub rules of Rule 15 of CC&A Rules. In other words, such a

detailed disciplinary enquiry in terms of Rule 15 of KCS (CC&A) Rules

is mandatory and obligatory, irrespective as to whether the case is

covered either by clause (a) of the proviso to Rule 3 or Clause (b) of

the proviso to Rule 3 part III KSR.

18. The rigorous detailed provisions for conducting of such

detailed enquiry are laid down with precision, which are evident by a

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mere reading of the various sub rules of Rule 15 of KCS (CC&A)

Rules. Hence, it is manifestly clear from a mere reading of the

various provisions contained in Rule 15 of KCS (CC&A) Rules that the

enquiry of procedure to be conducted therein is not a summary

procedure or a mere formality and it has to observe the rigour of a

detailed enquiry and the prosecution case being presented by the

presenting officer and the alleged delinquent is given the right of

entitlement to cross examine the witnesses, etc. The applicants have

clearly pleaded that no such procedure has been followed in the

instant case and that such a detailed enquiry was not so conducted, in

terms of Rule 15 and that not even the documents, which are

allegedly marked in the so called enquiry, were not in the presence of

the delinquents and not in accordance with the procedure contained

in Rule 15 of the CCA Rules.

19. We need not dwell into those details for the simple fact

that the respondents in the O.A have clearly and categorically

admitted in the pleadings in the reply statements filed before the

Tribual that such detailed enquiry procedure, in terms of Rule 15 of

the KCS (CC&A) Rules has not been observed in the instant case.

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Whereas the clear case of the respondents is that such a detailed

enquiry is not warranted in terms of Rule 15 of the KCS (CC&A)

Rules, while finalizing the proceedings in terms of Rule 3 proviso to

clause (a) of Part-III KSR. The Tribunal has overruled the said

contention of the respondents.

20. The respondents herein/original applicants have relied on

various materials and documents as produced before the Tribunal as

well as before this Court, to advance their contentions that the

proposed action is bereft of any merit and that even otherwise no

guilt can be fastened on the applicants and that the proposed adverse

action is without any factual foundation, etc. Some of the documents

relied on by the applicant in the first case are produced as

Annexure-A1(b), Annexure-MA 1 to Annexure-MA 20, etc. in T.A

No.6062/2012. Whereas, the applicant in T.A No.6071/2012 has

produced documents as in Annexures-A10, A10(a), A11, A11(a), A12,

A13, A14, A15, A16, etc. There is no necessity for us to assess the rival

contentions in respect of those matters, as we are only now

concerned with the issues decided by the Tribunal.

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21. It has to be borne in mind that it is an elementary

principle in public law that when law requires that a particular thing

should be done in a particular manner, then the same should be done

necessarily in that manner alone or not at all. This proposition has

been laid down in the decision in Taylor v. Taylor {(1875) 1 Ch.D

426} and the same has been followed in a series of rulings of the Apex

Court and various High Courts including this Court.

22. Further, this Rule is also an elementary Rule of public law

in the United States of America, as can be seen from the decision of

the U.S Supreme Court rendered by Mr.Justice Frankfurter in the

celebrated case in Viteralli v. Saton {359 U.S 535 = Law Ed

(second series 1012)}, wherein it has been held as follows :

“An executive agency must be rigorously held by the

standards by which it professes its action to be judged . . . .

Accordingly, if dismissal from employment is based on a

defined procedure, even though generous beyond the

requirements that bind such agency, that procedure must be

scrupulously observed . . . . This judicially evolved rule of

administrative law is now firmly established and, if I may add,

rightly so. He that takes the procedural sword shall

perish with the sword”

(emphasis supplied)

23. The abovesaid principle laid down by Justice Frankfurter

in Viteralli v. Saton {359 U.S 535} has been relied on by the Apex

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Court in decisions as in R.D.Shetty v. International Airport

Authority {(1979) 3 SCC 489}, as can be seen from a reading of

para No.10 thereof, which reads as follows :

“………………It is a well settled Rule of administrative

law that an executive authority must be rigorously held to

the standards by which it professes its actions to be judged

and it must scrupulously observe those standards on pain of

invalidation of an act in violation of them. This Rule was

enunciated by Mr.Justice Frankfurter in in Viteralli v.

Saton where the learned Judge said:

XXXXXXXXX

XXXXXXXXX

This Court accepted the Rule as valid and applicable in India

in A.S.Ahluwalia v. Punjab and in subsequent decision

given in Sukhdev v. Bhagatram , Mathew, J. quoted the

above-referred observations of Mr.Justice Frankfurter with

approval. It may be noted that this rule, though supportable

also as an emanation from Article 14, does not rest merely on

that article. It has an independent existence apart from

Article 14. It is a rule of administrative law which has been

judicially evolved as a check against exercise of arbitrary

power by the executive authority. If we turn to the judgment

of Mr.Justice Frankfurter and examine it, we find that he has

not sought to draw support for the rule from the equality

clause of the United States Constitution, but evolved it purely

as a rule of administrative law. Even in England, the recent

trend in administrative law is in that direction as is evident

from what is stated at pages 540-41 in Prof. Wade's

“Administrative Law”, 4

th

edition. There is no reason why

we should hesitate to adopt this rule as a part of out

continually expanding administrative law. …………………..”

24. Further, it is also now well settled that though right to

property is no longer a fundamental right included in part-III of the

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Constitution of India, the said right is constitutionally protected and

guaranteed, as a constitutional right in terms of Article 300A of the

Constitution of India. Article 300A of the Constitution of India

stipulates that no person shall be deprived of the right to property,

save by authority of law.

25. In this regard, it has to be borne in mind that pension is

no longer a bounty granted by the employer, but is a property of the

pensioner. So pension, which is the right to property of the

pensioner, can be deprived only in accordance with a procedure,

which is established by law and which is just, fair and reasonable. If

the abovesaid contention of the State that the requirement to conduct

detailed enquiry in terms of Rule 15 of the CCA Rules is not

mandatory while taking and finalizing action in terms of Rule 3

Proviso (a) of Part-III KSR is accepted, then the same would amount

to blatant violation of the abovesaid elementary legal principles of

public law, inasmuch as the mandatory requirement of clause (a) or

clause (b) of the Proviso to Rule 3 to conduct a detailed enquiry, as

envisaged in Rule 15 of the CCA Rules in the matter of imposition of

major penalty, will have to be dispensed with. Further, such a

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procedure if permitted, would amount to depravation of pension

which is a right to property of the pensioner in a manner,

which is in blatant violation of procedure mandated in Rule 3 of

Part-III KSR read with Rule 15 of the CCA Rules and such violation of

the procedure will also amount to deprivation of the right to pension

in a manner, which is not only against the statutory procedure, would

also amount to depriving the right to property in a manner, which is

not just, fair and reasonable.

26. For these reasons, we are of the considered view that the

abovesaid plea of the State that for finalizing action under proviso (a)

of Rule 3 Part-III KSR, the mandatory requirement of detailed

enquiry, in terms of Rule 15 of the CCA Rules is not necessary, etc., is

only to be rejected.

27. After hearing both sides, we have no doubt in our minds

that without meticulously observing the detailed disciplinary enquiry

proceedings in terms of Rule 15 of KCS (CC&A) Rules, there is no

question of imposing an order of withholding or withdrawing of

pension, as envisaged in the operative portion of Rule 3 Part-III KSR

by invoking clause (a) of Proviso to Rule 3 Part-III KSR or clause (b)

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of Proviso to Rule 3 Part-III KSR. The Rule making authority has

clearly indicated in no uncertain terms that if the disciplinary

proceedings in question had already been instituted while the

employee was in service, then clause (a) of the Proviso to Rule 3

would apply, in which case, the meticulous procedure for imposition

of the penalty of reduction of pension, should be strictly observed,

inasmuch as clause (a) of the Proviso clearly mandates that such

proceedings then shall be concluded by the authority, by which it was

summoned in the same manner, as if the employee had continued in

service. The impact of clause (b) of the Proviso to Rule 3 is also to the

same effect as far as the obligation to conduct the detailed

disciplinary enquiry in terms of Rule 15 of the KCS (CC&A) Rules

concerned. Since it is the admitted case of the respondents in the

O.A/petitioner herein that no such detailed disciplinary enquiry was

conducted, the decision of the Tribunal that the impugned order at

Exts.P-6 & P-9 respectively in these cases would require no

interdiction at the hands of this Court in exercise of the

extraordinary, discretionary and constitutional remedy in terms of

Articles 226 & 227 of the Constitution of India. As already indicated

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as above, the stand of the respondents in the O.A that no such detailed

disciplinary enquiry proceedings in terms of Rule 15 of CCA Rules is

required in case of finalisation of action in terms of Rule 3 Proviso to

Clause (a) thereto is untenable and unsustainable in law and stands

overruled, as rightly done so by the Tribunal. In other words, the

impugned verdicts of the Tribunal in these cases are not liable for

interdiction at the hands of this Court.

28. A reading of the impugned final order rendered by the Tribunal

in the above Transferred Applications would make it clear that in para

No.15 thereof, the Tribunal after quashing the impugned proceedings has

also ordered that the applicants are entitled to get their period of service as

regularized and the pensionary benefits properly fixed and get the same

released at the earliest, etc. and that the competent authority of the

Government in the Revenue Department has directed to issue necessary

orders in that regard, within three months, etc. The said three months

period given in the final order dated 12.12.2018, has expired a long ago.

The present O.Ps (KAT) filed before this Court on 30.10.2020 &

17.02.2021 respectively.

29. Having regard to the long delay in compliance of the

abovesaid directions issued by the Tribunal, it is ordered that the

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petitioners herein will ensure that the abovesaid directions of the

Tribunal are complied with, without any further delay, at any rate,

within six weeks from the date of receipt of certified copy

of this judgment.

With these observations and directions, the above Original

Petitions will stand dismissed.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

K.BABU, JUDGE

KAS/vgd

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APPENDIX OF OP(KAT) 389/2020

PETITIONER'S/S EXHIBITS:

ANNEXURE-A1 TRUE COPY OF THE MEMORANDUM OF TRANSFERRED

APPLICATION( W.P.C NO.10359/2008) ALONG

WITH EXHIBITS

EXHIBIT-P1 A TRUE COPY OF THE MEMO OF CHARGES AND

STATEMENT OF ALLEGATIONS

EXHIBIT P2 A TRUE COPY OF THE REPLY TO CHARGES

SUBMITTED BY THE PETITIONER DATED

19.05.2004

EXHIBIT P3 A TRUE COPY OF THE SHOW CAUSE NOTICE ON

PUNISHMENT DATED 16.05.2006

EXHIBIT P4 A TRUE COPY OF THE RELEVANT EXTRACT OF THE

ENQUIRY REPORT

EXHIBIT P5 A TRUE COPY OF THE REPLY DATED 17.06.2006

SUBMITTED BY THE PETITIONER BEFORE THE

RESPONDENT

EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 28.12.2007

ISSUED BY THE GOVERNMENT IMPOSING

PUNISHMENT OR REDUCTION OF 1/3RD OF MONTHLY

PENSION PERMANENTLY

ANNEXURE A1(A) TRUE COPY INTERIM STAY ALONG WITH DOCUMENTS

(EXTS P7 AND P8) WITH PETITION

EXHIBIT-P7 A TRUE COPY OF THE ORDER NO. FB(A)

5-22882/2004 DATED 12.03.2008

EXHIBIT P8 A TRUE COPY OF THE INTERIM STAY ORDER DATED

10.04.2008 IN W.P.C NO.12448

ANNEXURE-A1(B) TRUE COPY OF THE MISCELLANEOUS APPLICATION

FOR PRODUCING THE DOCUMENTS ALONG WITH THE

DOCUMENTS PRODUCED BY THE APPLICANT

ANNEXURE MA1 THE TRUE COPY OF APPLICATION FILED BY SAIDU

AND DAVIS DATED 20.07.1998 FOR PURCHASE

CERTIFICATE BEFORE LAND TRIBUNAL,

MANANTHAVADY

ANNEXURE MA2 THE TRUE COPY OF THE FORWARDING NOTE DATED

29.07.1998 OF THE SPECIAL TAHSILDAR (LAND

REFORMS) MANATHAVADY

ANNEXURE MA2(A) THE LEGIBLE COPY OF MA2

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ANNEXURE MA3 THE TRUE COPY OF THE REPORT DATED 09.12.98

OF THE SPECIAL REVENUE INSPECTOR

ANNEXURE MA4 THE TRUE COPY OF THE REPORT OF VILLAGE

OFFICER, PERIYA DATED 20.10.98

ANNEXURE MA4(A) THE LEGIBLE COPY OF MA4

ANNEXURE MA5 THE TRUE COPY OF THE PROFORMA REPORT OF THE

SPECIAL REVENUE INSPECTOR (LAND

REFORMS),MANATHAVADY

ANNEXURE MA6 THE TRUE COPY OF ORDER DATED 24.06.1999 IN

S.M.C.326/98 OF LAND TRIBUNAL, MANATHAVADY

DATED 24.06.1999

ANNEXURE MA7 THE TRUE COPY OF PURCHASE CERTIFICATE

NO.278/1999 ISSUED TO SAIDU AND DAVIS BY

LAND TRIBUNAL, MANATHAVADY DATED 24.06.1999

ANNEXURE MA8 THE TRUE COPY OF THE SALE DEED NO.174/92

EXECUTED BY THE SUB JUDGE, SULTHAN BATHERY

DATED 22.01.1992

ANNEXURE MA9 THE TRUE COPY OF TALUK LAND BOARD ORDER NO.

TLB(K) 489/73 DATED 26.12.1984

ANNEXURE MA10 THE TRUE COPY OF THE CERTIFICATE OF THE

THAHSILDAR MANTHAVADY DATED 03.02.1990

ANNEXURE MA11 THE TRTUE COPY OF THE REPORT OF VILLAGE

OFFICER, PERIYA DATED 02.02.1990

ANNEXURE MA12 THE TRUE COPY OF THE POSSESSION CERTIFICATE

DTED 28.06.95 ISSUED FROM THE VILLAGE

OFFICE, PERIYA

ANNEXURE MA13 THE TRUE COPY OF THE TAX RECEIPT DATED

DATED 28.06.1995

ANNEXURE MA14 THE TRUE COPY OF THE TAX RECEIPT DATED

15.03.1995

ANNEXURE MA15 THE TRUE COPY OF THE PROCEEDINGS DATED

26.11.1977 OF THE DISTRICT COLLECTOR

ANNEXURE MA16 THE TRUE COPY OF THE COUNTER AFFIDAVIT

DATED 12.05.1980 FILE DON BEHALF OF THE

RESPONDENTS IN OP NO.401/1979

ANNEXURE MA17 THE TRUE COPY OF THE CERTIFICATE ISSUED BY

THE DISTRICT FOREST OFFICER TELLICHERRY

DATED 17.01.1979

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ANNEXURE MA18 THE TRUE COPY OF THE COMMUNICATION DATED

14.10.85 OF THE THAHSILDAR, MANANTHAVADY TO

THE ASSISTANT COLLECTOR, MANATHAVADY

ANNEXURE MA19 THE TRUE COPY OF THE CERTIFICATE DATED

23.03.1999 ISSUED BY THE DIVISIONAL FOREST

OFFICER, NORTH WAYANAD DIVISION,

MANANTHVADY

ANNEXURE MA20 THE TRUE COPY OF THE ORDER OF THE LAND

TRIBUNAL, MANATHVADY IN SMC NO.158/96 DATED

27.06.1997

ANNEXURE A2 TRUE COPY OF REPLY STATEMENT

ANNEXURE A3 TRUE COPY OF ORDER DATED 12.12.2018 IN TA

6062/2012

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APPENDIX OF OP(KAT) 57/2021

PETITIONER'S/S EXHIBITS:

ANNEXURE A1 TRUE COPY OF THE TRANSFERRED APPLICATION

ALONG WITH EXHIBITS.

EXHIBIT P1 A TRUE COPY OF ORDER OF SUSPENSION DATED

24.5.2000

EXHIBIT P2 A TRUE COPY OF THE MEMO OF CHARGES ISSUED

BY THE DISTRICT COLLECTOR DATED 30.6.2000

ALONG WITH STATEMENT OF ALLEGATIONS

EXHIBIT P3 A TRUE COPY OF THE REPLY TO THE MEMO DATED

8.8.2000

EXHIBIT P4 A TRUE COPY OF THE SHOW CAUSE NOTICE WITH

STATEMENT OF ALLEGATIONS

EXHIBIT P5 A TRUE COPY OF THE REPLY TO THE CHARGES

DATED 14.5.2004

EXHIBIT P6 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED

16.5.2006

EXHIBIT P7 THE RELEVANT EXTRACTS FROM THE ENQUIRY

REPORT SUBMITTED BY THE ENQUIRY OFFICER

EXHIBIT P8 A TRUE COPY OF THE REPLY DATED 19.6.2005

SUBMITTED BY THE PETITIONER TO THE

GOVERNMENT

EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 18.12.2007

IMPOSING PUNISHMENT ON THE PETITIONER

ANNEXURE A2 TRUE COPY OF THE REPLY STATEMENT

ANNEXURE A3 THE REJOINDER FILED BY THE APPLICANT TO THE

REPLY STATEMENT IN TA

ANNEXURE A10 TRUE COPY OF APPLICATION FOR POSSESSION

CERTIFICATE SUBMITTED BY K K SAYID AND M

DAVIS DATED 21.1.1999

ANNEXURE A10(A) THE TRUE LEGIBLE COPY OF ANNEXURE A10

ANNEXURE A11 TRUE COPY OF REPORT OF VILLAGE OFFICE,

PERIYA DATED 27.01.99 DATED ALONG WITH THE

REPORT OF THE SPECIAL DUTY THAHSILDAR,

FOREST (SDT(F) DATED 18.2.1999

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ANNEXURE A11(A) THE TRUE LEGIBLE COPY OF ANNEXURE A11

ANNEXURE A12 THE TRUE COPY OF THE CERTIFICATE ISSUED BY

THE DIVISIONAL FOREST OFFICER, NORTH

WAYANAD DIVISION, MANATHAVADY DATED

23.3.1999

ANNEXURE A13 THE TRUE COPY OF SALE DEED NO 174/92

EXECUTED BY THE SUB JUDGE, SULATHAN BATHERY

DATED 22.1.1992

ANNEXURE A14 THE TRUE COPY OF JUDGMENT IN CC 61/03 DATED

30.11.2009 OF THE JUDICIAL 1ST CLASS

MAGISTRATE, MANATHAVADY.

ANNEXURE A15 THE TRUE COPY OF THE PROCEEDINGS OF

ASSISTANT COLLECTOR, MANATHAVADY DATED

24.2.87

ANNEXURE A16 THE TRUE COPY OF THE PROCEEDINGS OF THE

DISTRICT COLLECTOR AND DISTRICT ELECTION

OFFICER, WYANADU DATED 31.3.1998

ANNEXURE A4 TRUE COPY OF THE ORDER DATED 12.12.2018 IN

TA 6071/2012

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