Allowed

L.Mamachan v. Registrar of Co-Op. Societies and Others

Kerala HC17 Nov 2011WP(C)/22918/2010

Case brief

AI extract

What is this about?

A retired Assistant Registrar filed a writ petition challenging a government order reducing his pension. The Kerala High Court observed that the inquiry report was prepared behind his back and he was not given an opportunity to be heard before his tenure ended, violating procedural justice.

What did the court decide?

The impugned order reducing pension is quashed. Respondents directed to pay full pension with arrears.

L.Mamachan Vs Registrar of Co-Op. Societies… — Pension and Retirement Benefits | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM

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THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933

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WP(C).No. 22918 of 2010(L)

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PETITIONER(S):

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------------------------

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L.MAMACHAN, RETD. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, THUNDUVILA PUTHENVEEDU, KARAVALLUR P.O., PUNALUR.

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BY ADV. SRI.G.D.PANICKER SMT.JEENA JOSEPH

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RESPONDENT(S):

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---------------

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1. GOVERNMENT OF KERALA, REPRESENTED BY ADDITIONAL SECRETARY TO CO-OPERATIVE (A) DEPARTMENT, KERALA, SECRETARIAT, THIRUVANANTHAPURAM.

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2. REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.

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3. ACCOUNTANT GENERAL (A & E), THIRUVANANTHAPURAM.

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GOVERNMENT PLEADER SMT. ROSE MICHAEL FOR R1-3

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 22918 of 2010(L)

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APPENDIX:

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PETITIONER'S EXHIBITS:

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EXT.P1:	A TRUE PHOTOCOPY OF THE SHOW CAUSE NOTICE No.16183/A1/08, CO- OPERATIVE DATED 13/11/2009.
EXT.P2:	A TRUE PHOTOCOPY OF THE REPLY DATED 7.12.2009.
EXT.P3:	A TRUE PHOTOCOPY OF THE MINUTES, DATED 14/12/2007.
EXT.P4:	A TRUE PHOTOCOPY OF THE COMPLAINT AGAINST THE PETITIOENR GIVEN BY THE SECRETARY AKS BATHERY TALUK DATED 5.9.2008.
EXT.P5:	A TRUE PHOTOCOPY OF THE REPORT OF THE ADDITIONAL REGISTRAR DATED 24.10.2008.
EXT.P6:	A TRUE PHOTOCOPY OF THE STATEMENT DATED 22.2.2010.
EXT.P7:	A TRUE PHOTOCOPY OF THE ORDER No.385/10/CO-OP., DATED 4.6.2010.

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RESPONDENTS' EXHIBITS: NIL

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TRUE COPY

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P.A. TO JUDGE.

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C.K. ABDUL REHIM,J.

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W.P.(C) No. 22918 OF 2010

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Dated this the 17th day of November, 2011

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JUDGMENT

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Challenge in this writ petition is against Ext.P7 order

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issued by the 1^st respondent effecting reduction in the amount of pension sanctioned to the petitioner, in exercise of power under Rule 59 (b) of part 3 of the Kerala Service Rules (KSR). Petitioner retired from service as Assistant Registrar of Co-Operative Societies, with effect from 31.10.2008. After retirement he was given all terminal benefits and monthly pension was sanctioned to him at the rate of Rs.7,604/- (Rupees Seven thousand six hundred and

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four only) per month. After more than one year, the petitioner was issued with a show cause notice as contemplated under Rule 59(b) with a proposal to effect reduction of his monthly pension, to the extent of Rs.25/(rupees twenty five only) per month on a permanent basis.

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W.P.C. No. 22918 OF 2010 -2-

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Allegation in Ext.P1 is to the effect that while the petitioner was working as Assistant Registrar (SC/ST) in the office of the Joint Registrar of Co-Operative Societies, Wyanad, he failed in submitting reports of inspection conducted at various Co-operative Societies and failed in reporting the irregularities noted at the time of such inspections. It is also alleged that he had failed to participate in meetings of the Secretaries of Co-operative Societies convened by him at Taluk level. But he had received TA with respect to such meetings, endorsing such participation in the Tour Diary. Therefore, it is alleged that the service rendered by the petitioner was not at all satisfactory.

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In Ext.P2 reply submitted, the petitioner refuted all the allegations. He also contended that, without revealing the basis on which the allegations are made, the petitioner is not in a position to submit specific reply. However, it is specifically contented that, at the relevant time, out of the

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W.P.C. No. 22918 OF 2010 -3-

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52 SC/ST Co-operative Societies situated in the District concerned, only 15 Societies were functioning and that no irregularities were detected through such inspections conducted. The allegation regarding the non attendance of meetings convened at Taluk level was also stoutly denied. He had produced Ext.P3 series minutes of such meetings as proof of his participation.

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On the basis of the objections submitted, a personal hearing was afforded by the Additional Secretary to the Government. The petitioner submitted detailed statement as per Ext.P6. But Ext.P7 order was issued stating that the relevant records revealed that, the petitioner had not submitted the reports of inspections to the higher officials and he had failed to participate in meetings convened at the Taluk level. However, deviating from the proposal, the reduction in pension proposed was ordered to be limited only for a period of 15 years.

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According to the petitioner, it was revealed on

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W.P.C. No. 22918 OF 2010 -4-

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enquiry made under the Right to Information Act that, the proceedings in question was initiated on the basis of a complaint received by the then Honourable Minister for Cooperative, a copy of which is produced as Ext.P4. The petitioner contended that Ext.P4 does not contain identity of its signatory. On the other hand, it reveals only an address as, “Secretary, AKS, Bathery Taluk Committee”. According to the petitioner even such an organization is not in existence. However, such aspects were not considered by the Additional Secretary who had issued Ext.P7 proceedings, in spite of specific objections raised. But it is evident from Ext.P4 that the Honourable Minister had made an endorsement therein calling for a report of the Registrar of the Co-operative Societies. The Registrar had conducted an enquiry into the matter through the Additional Registrar (ICDP) Thiruvananthapuram. In the report (Ext.P5) it is stated that there was failure on the part of the petitioner in submitting reports of inspections conducted in the Co-

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W.P.C. No. 22918 OF 2010 -5-

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operative Societies, to the Joint Registrar (General). It is also stated that the petitioner failed in participating in meetings of the Secretaries of Co-operative Societies, convened by him at Taluk level. But it is specifically stated that the Tour Diary was approved and TA was alloted by the Joint Registrar, after being satisfied that the petitioner had discharged his duties. Even though Ext.P5 report reveals that at the time of enquiry the petitioner was present in the office of the Joint Registrar in the post of the Assistant Registrar(Audit), there is no mention in the report to the effect that any notice was given to the petitioner nor any statement or explanation was sought for from him.

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Under the above mentioned circumstances, contention of the petitioner is that there is no circumstance warranting any proceedings under Rule 59(b) in view of the fact that no steps was initiated at the time when he was in service on the basis of any such complaint or enquiry. It was further argued that the petitioner was never given any

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W.P.C. No. 22918 OF 2010 -6-

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notice regarding any such allegations and the records alleged to have been relied upon by the first respondent as mentioned on Ext.P7 are not disclosed or made available for perusal of the petitioner. The petitioner was not given any opportunity to dispute correctness of such records, is the contention. It is also contended that the first respondent was not justified in effecting reduction of pension taking a solitary incident regarding unsatisfactory service rendered by the petitioner.

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In the counter affidavit of the first respondent, reliance is placed on the report of enquiry conducted through the Additional Registrar. It is stated that the reduction imposed in Ext.P7 is because of unsatisfactory service and bogus claims of TA/DA made through falsification of the Tour Diary. It is further stated that eventhough the findings were grave, only a very lenient view was taken against the petitioner considering that he had already retired from service.

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W.P.C. No. 22918 OF 2010 -7-

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Rule 59(b) provides that if the Government is of the opinion that the service rendered by the incumbent has not been thoroughly satisfactory, it could make such reduction in the amount of pension, as they think proper. The Rule in question is very bold in its nature. But the approach should be always taking into consideration of the background that, there is an available right which normally accrues to the service of a person that he is entitled for full pension. Exercise of the provisions is an exemption into the normal expectation of the employee. Though it is not an automatic procedure by which in all cases he should get his full pension, the exercise of the power in this regard should be indicative of the basis of which a reasonable cause exists.

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Of course, if there is any proof of specific incident of fraud or negligence committed by the incumbent during his service, the Rule can be invoked. But the authority while passing an order under Rule 59(b) should decide the measure of deduction to be effected after considering the

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W.P.C. No. 22918 OF 2010 -8-

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extent to which service of the employee as a whole had failed to reach the standard of “thoroughly satisfactory”. Under normal circumstance such failure of standard cannot be on the basis of a particular incident, but it should be on the basis of an opinion formed regarding the entire service of the employees as a whole, and on a satisfaction to the effect that his service as a whole had failed to reach the standard of “thoroughly satisfactory”. Even a specific instance may be sufficient to reach such a conclusion. But such instance should be to the gravity of having committed a fraud or negligence which is of serious nature, established through sufficient materials. The dictum laid prescribing the parameter in this regard in the decision of this Court in Joseph Vs. State of Kerala 1994(1) KLT 746 is of importance. In the case at hand it is undisputed that the impugned proceedings was initiated on the basis of Ext.P4 complaint. In spite of specific allegation of petitioner regarding anonymous nature of the complaint, no attempt

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was seen made to evaluate genuineness and authority of such a complaint. However, the first respondent had relied on Ext.P5 report received from the Additional Registrar. The report does not reveal any particulars of the documents relied on for arriving the conclusions therein. Admittedly, such a report was prepared behind back of the petitioner, in spite of the fact that he was available in service at the very same station during the time of such enquiry. However, it is evident that the enquiry report was submitted at a time when the petitioner was in service. But no disciplinary action was seen initiated on the basis of such report, during his tenure of service. Even after his retirement, all his terminal benefits including monthly pension was allowed. Therefore, the proceedings initiated invoking Rule 59(b) after the lapse of more than one year, based on the report of enquiry in which the petitioner was denied of due participation, cannot be held as a valid reason for invoking Rule 59(b). Going by the dictum laid by this Court in the

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case cited above, it is evident that there was failure on the part of the first respondent in considering the issue based on standards or specifications regarding his entire service for the purpose of arriving at conclusion that the service was not 'thoroughly satisfactory'.

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The conclusions arrived in Ext.P7 are based on certain official records, the details of which are not seen mentioned either in the enquiry report or in the show cause notice issued to the petitioner. Without disclosing the details of any such records, the petitioner could not be put on blame regarding the allegations based on such records. In other words, there was no effective opportunity given to the petitioner to answer the allegations, in a reasonable manner.

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For the reasons mentioned as above, I do not find any reason to hold that the conclusion arrived by the first respondent to the effect that the service rendered by the petitioner was not “thoroughly satisfactory” is legally

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W.P.C. No. 22918 OF 2010 -11-

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sustainable. In my considered opinion no circumstance has been established to effect any reduction in the monthly pension, on the basis of any findings that the petitioner's service was not “thoroughly satisfactory”. Accordingly, the writ petition is allowed and Ext.P7 order of the first respondent is here by quashed.

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Needless to say that the respondents should take necessary steps to make payment of the full monthly pension to the petitioner, without any deduction, along with arrears if any due, immediately.

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C.K. ABDUL REHIM, JUDGE

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Kp/-

L.Mamachan v. Registrar of Co-Op. Societies and Others

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L.Mamachan v. Registrar of Co-Op. Societies and Others

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