Remanded

S Narayana Moorthy v. State of Kerala

Kerala HC18 Jul 2016OP(KAT)/37/2016

Case brief

AI extract

What is this about?

The court examined the grievance regarding the treatment of the petitioner's suspension period as 'eligible leave' without addressing pay and allowances. The court directed the administrative authority to reconsider the matter fresh, considering the Manual of Disciplinary Proceedings, and to determine the appropriate course of action for pay and allowance post suspension.

What did the court decide?

Directed the 1st respondent to reconsider the matter within three months, affording an opportunity to the petitioner, to determine pay and allowance entitlements.

S Narayana Moorthy Vs State of Kerala — Service and Employment | Kerala HC (2016)

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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 P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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MONDAY, THE 18TH DAY OF JULY 2016/27TH ASHADHA, 1938

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OP(KAT).No.37 of 2016 (Z)

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AGAINST THE ORDER/JUDGMENT IN OA 2463/2014 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 27-01-2016

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PETITIONER :

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S.NARAYANA MOORTHY, STATISTICAL ASSISTANT, OFFICE OF THE DIRECTOR OF HEALTH SERVICE, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM PIN 695 035, RESIDING AT VASUDHA T.C.14/1989, CHENNILODE, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM P.O PIN 695 011.

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BY ADVS.SRI.P.SANTHOSH KUMAR SRI.T.P.SAJAN

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RESPONDENTS :

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THE STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, PLANNING & ECONOMIC AFFAIRS DEPARTMNT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM P.O., PIN 695 001.

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THE ADDITIONAL SECRETARY, PLANNING & ECONOMIC AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM P.O, PIN 695 001.

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THE DIRECTOR GENERAL, ECONOMICS AND STATISTICS DEPARTMENT, O/O THE DIRECTOR GENERAL, ECONOMICS AND STATISTICS DEPARTMENT, VIKAS BHAVAN P.O,THIRUVANANTHAPURAM P.O., PIN 695 033.

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OP(KAT).No. 37 of 2016 (Z)

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DEPUTY DIRECTOR, ECONOMICS AND STATISTICS DEPARTMENT,

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O/O THE DEPUTY DIRECTOR OF ECONOMICS AND STATISTICS DEPARTMENT, KESAVADASAPURAM, THIRUVANANTHAPURAM, PIN 695 004.

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TALUK STATISTICAL OFFICER, O/O THE THIRUVANANTHAPURAM TALUK STATISTICAL OFFICE, KESAVADASAPURAM, THIRUVANANTHAPURAM, PIN 695 004.

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THE DIRECTOR,

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OFFICE OF THE DIRECTOR OF HEALTH SERVICE, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM, PIN 695 035.

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P. RADHAKRISHNAN NAIR, RETIRED TALUK STATISTICAL OFFICER, THIRUVANANTHAPURAM TALUK, RESIDING AT ARRATHI , PANIKER'S LANE, T.C 9/975-5, PLRA F 39, SASTHAMANGALAM P.O, THIRUVANANTHAPURAM, KERALA PIN 695 010.

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BY SR.GOVERNMENT PLEADER SRI.K.C.VINCENT

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 18-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(KAT).No. 37 of 2016 (Z)

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APPENDIX

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PETITIONER'S EXHIBITS :-

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P1 A TRUE COPY OF THE ORDER VIDE REFERENCE NO.VG 19105/05 DES DATED 30-12-2005.

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P2 TRUE COPY OF MEMO OF CHARGES VIDE REFERENCE NO. VG 19105/2005 DES DATED 22-2-2006.

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P3 TRUE COPY OF ORDER VIDE REF NO GO(Rt) NO 328/2008 DATED 22-08-2008.

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P4 TRUE COPY OF GOVERNMENT ORDER DATED 9-6-2014 VIDE REFERENCE GO (Rt) No.272/14 PLANNING AND ECONOMIC DEPARTMENT.

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P5 TRUE COPY OF OA No.2463/2014 ALONG WITH THE ANNEXURES.

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P6 TRUE TRUE OF REPLY STATEMENT FILED BY THE FIRST RESPONDENT.

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P7 TRUE COPY OF REPLY STATEMENT FILED BY THE 7TH RESPONDENT.

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P8 TRUE COPY OF THE JUDGMENT DATED 27-1-2016 IN OA No.2463/2014.

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P9 TRUE COPY OF THE GOVERNMENT ORDER GO(P) 56/86 VIG DATED 8-4-1986.

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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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P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

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O.P.(KAT)No.37 of 2016

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Dated this the 18^th day of July, 2016

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JUDGMENT

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Ramachandra Menon, J.

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Ext.P8 order passed by the Kerala Administrative Tribunal in O.A.No.2463/2014, dismissing the Original Application filedchallenging the correctness and sustainability of Exts.P9, P11 and P16 orders, is under challenge in this Original Petition.

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The sequence of events reveals that the petitioner is working as a Statistical Assistant and when he was working as a U.D.Investigator, he was placed under suspension as per Ext.P1 order dated 30.12.2005; alleging some misconduct against him. The petitioner was served with Ext.P2 memo of charges and a domestic enquiry was conducted. Later, he came to be reinstated in service on 8.5.2006. Ultimately, in the enquiry, he was found guilty and punishment of banning of one increment was proposed

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and explanation was sought for. Based on the explanation submitted by the petitioner, the finding in enquiry was set aside and the disciplinary authority ordered a 'de novo' enquiry, on

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O.P.(KAT)No.37 of 2016

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completion of which, the petitioner was again found guilty. Accepting the said finding, a punishment of banning of one increment without cumulative effect was imposed upon him, besides ordering to realise 50% of the cost of a 'litho map' which was found missing; whereas the remaining 50% liability was fixed upon the Statistical Officer, who was heading the Department.

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On being aggrieved by the said order, the petitioner moved the Government by way of appeal, wherein Ext.P3 order was passed on 22.8.2008. The petitioner was exonerated from the charges levelled against him; but the order to recover the loss sustained by the Department (to an extent of 50% as fixed on the petitioner) was sustained. This was subjected to challenge in W.P.(C)No.33163/2008. The said writ petition came to be transferred to the Kerala Administrative Tribunal, where it was re-numbered as T.A.No.3108/2012. After hearing both the sides, Ext.P3 order was set aside as per Annexure A2 verdict passed by the Kerala Administrative Tribunal and the appellate authority

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O.P.(KAT)No.37 of 2016

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was directed to reconsider the matter; particularly with reference to whether the order to realize the cost of the litho map was correct or sustainable in the light of Ext.P21 employment certificate, which, according to the petitioner, was enough to presume that no liability was pending as on that date. The regularization of the period of suspension was also directed to be considered afresh. It was accordingly, that the matter was considered by the 1^st respondent who passed Annexure.A7 order dated 9.6.2014, wherein the liability to satisfy the litho map was upheld and the period of suspension was ordered to be treated as 'eligible leave'. This made the petitioner to approach the Tribunal again by filing O.A.No.2463/2014. After considering the rival contentions, interference was declined and the O.A. was dismissed as per Ext.P8 order dated 27.1.2016, which in turn is under challenge in this Original Petition.

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Heard the learned counsel for the petitioner as well as

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the learned Senior Government Pleader appearing on behalf of the respondents at length.

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O.P.(KAT)No.37 of 2016

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The learned counsel for the petitioner points out that the only grievance now projected before this Court is with reference to the manner in which the grievance as to the treating of the period of suspension was dealt with by the 1^st respondent. It, according to the petitioner, is not in conformity with the mandate of Rule 56B of Part-I of KS & SSR. As per the said Rule, it is quite obligatory to have dealt with how the period of suspension was to be treated and also with regard to the pay and allowance payable during the said period. It is stated that Annexure A7 does not speak anything about the pay and allowance payable and hence the grievance. The learned counsel submits that, if the period is treated as 'eligible leave', the petitioner will be virtually prevented from surrendering the requisite extent of leave (180 days for encashment) and that he will have to reimburse the subsistence allowance already drawn; in turn resulting in huge monetary loss. The learned counsel also points out that, by virtue of the manual of disciplinary proceedings; particularly as contained in paragraph 16 clause

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O.P.(KAT)No.37 of 2016

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(30), three different circumstances are envisaged as to how the matter has to be dealt with; which reads as follows:-

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“ Para 16(30)

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(a) In all cases of major penalties the pay and allowances to be paid for the period under suspension shall be limited to the Subsistence Allowance admissible under the rules.

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(b) In cases of minor penalties the pay and allowances shall be limited to 80% less subsistence allowance admissible under the rules.

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(c) In the case of those whose acquittal or exoneration is on technical ground the question whether the suspension period should be treated as duty or not, has to be decided with reference to the gravity of the offence allegedly committed by the accused officer.”

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The learned counsel submits that even if the stipulation to realize 50% of the cost of litho map (₹2,415) is treated as a 'punishment', he is entitled to get 80% of the pay and allowance, by virtue of sub clause (b) of paragraph 16(30).

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O.P.(KAT)No.37 of 2016

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The learned Government Pleader submits that the idea

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and understanding of the petitioner is not correct, in so far as the petitioner has not been exonerated completely by the competent authorities. The factum of missing of the litho map is sustained; which formed the basis for the order to have the due amount (to an extent of 50%) realised from the petitioner, mulcting the balance 50% upon the head of the Department. The circumstance under which Ext.P21 employment certificate was issued has been specifically adverted to by the Tribunal in Ext.P8 order. It is pointed out that the said certificate was issued to be produced before the BSNL, only to show the status and employment of the petitioner, so as to enable him to apply for and obtain a 'sim card' at a subsidised rate, which facility was given to all employees who are desirous of getting the 'sim card'. Issuance of the said employment certificate in no way does come to support of the case of the petitioner, to the effect that litho map was entrusted back by the petitioner. The receipt of the litho map having been admitted, it was very much obligatory for the

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O.P.(KAT)No.37 of 2016

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petitioner to have it proved that the same was returned by him, though no register was being maintained in the office as to the entrustment/return of the document at the relevant point of time.

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The learned Government Pleader also submits that pursuant to issuance of Annexure A7 seeking for the particulars of the leave so as to finalise how the leave period has to be adjusted/distributed, no such particulars were given by the petitioner, but for submitting Annexure A8 representation, which was rejected as per Annexure A9 insisting to comply with the requirement in Annexure A7. However, this was not acceded to and the petitioner submitted Annexure A10 representation again, which in turn came to be rejected as per Annexure A11. The learned Government Pleader also submits that the version of the petitioner that Annexure A7 order does not deal with the fact as to how the pay and allowance is to be governed is wrong, in so far as there is an order to the effect that the period has to be treated as 'eligible leave' and once it is treated as eligible leave,

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there is no question of any pay and allowance.

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After hearing both the sides, this Court finds that the matter was sought to be finalized after hearing the version of the petitioner as borne by the contents of Annexure A7. It is also seen that the petitioner had submitted a representation on 5.9.2014. It was after making a reference to the said representation, that Annexure A9 order came to be passed on 30.10.2014. At the same time, it is also a matter which requires to be considered as to whether the petitioner is entitled to have the benefit in terms of paragraph 16 Clause 30(b) of the manual of disciplinary proceedings to get 80% of the salary, pay and allowances. It is relevant to note that an act of misconduct committed by an employee may have to face three different situations; firstly, that it may result in disciplinary proceedings so as to impose appropriate punishment considering the gravity of the proven misconduct; secondly, a criminal proceeding, if it involves any offence and thirdly, to recover the loss, if at all any caused to the Department/Employer. In the instant case, after

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O.P.(KAT)No.37 of 2016

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considering the enquiry and the materials on record, the appellate authority/first respondent exonerated the petitioner from all charges as borne by Annexure.A7 order, but for confining the action only to the 3^rd step, i.e., realization of the loss caused to the Government and that is all. However, it is to be noted that the petitioner was given a 'warning' as borne by Annexure.A9 and as such, it amounts to a 'minor punishment'. If the punishment imposed is only a minor punishment, what shall be the course of action to be pursued is spoken to by the 'Manual of Disciplinary Proceedings' as mentioned above. This being the position, it is for the 1^st respondent to consider the matter afresh as to the proper course of action in the given set of facts and circumstances, also taking note of the provisions of the 'Manual of Disciplinary Proceedings' as mentioned above.

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In the above facts and circumstances, there will be a direction to the 1^st respondent to re-consider the matter in the light of the above observations, after affording an opportunity of hearing to the petitioner; which shall be done at the earliest, at

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O.P.(KAT)No.37 of 2016

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any rate, within 'three months' from the date of receipt of a copy of this judgment. Ext.P8 order passed by the Tribunal stands intercepted, so as to facilitate such exercise. The rights and liberties of the petitioner will stand governed by the order to be passed by the Government as aforesaid.

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The Original Petition stands disposed of.

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Sd/- P.R.RAMACHANDRA MENON, JUDGE

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Sd/- ANIL K.NARENDRAN, JUDGE

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skj

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True copy

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P.A to Judge

S Narayana Moorthy v. State of Kerala

Case brief

What is this about?

What did the court decide?

S Narayana Moorthy v. State of Kerala

Case brief

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