Dismissed

V.Purushothaman v. Union of India and 2 Others

Kerala HC17 Jun 2016WP(C)/15205/2009

Case brief

AI extract

What is this about?

This judgment dismisses a writ petition challenging a reduction in rank by two years (later modified to one year) for an employee who concealed a remarriage while drawing family pension. The court held that the department had sufficient evidence of the marriage and that disciplinary action for fraud involving pension was distinct from cases of non-payment of maintenance.

What did the court decide?

The writ petition filed to quash the punishment order and intercept further proceedings was dismissed.

V.Purushothaman Vs Union of India and 2 Others — 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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FRIDAY, THE 17 TH DAY OF JUNE 2016/27TH JYAISHTA, 1938

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WP(C).No. 15205 of 2009 (S)

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OA 734/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONER:

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V.PURUSHOTHAMAN, AGED 46 YEARS, S/O.KANDAN VAVA, V.S.S.C HOUSING COLONY,, QUARTER NO.7/22, PALLITHURA P.O., THIRUVANANTHAPURAM.

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BY ADV. DR.GEORGE ABRAHAM

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RESPONDENTS:

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1. UNION OF INDIA, REPRESENTED BY THE CONTROLLER, VIKRAM SARABHAI SPACE CENTRE, DEPARTMENT OF SPACE, THIRUVANANTHAPURAM.

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2. THE SENIOR HEAD, PERSONNEL AND GENERAL ADMINISTRATION, VIKRAM SARABHAI SPACE CENTRE, THIRUVANANTHAPURAM.

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3. ADMINISTRATIVE OFFICER, ENQUIRY OFFICER,, MECHANISMS AND VEHICLE INTEGRATION TESTING, VIKRAM SARABHAI SPACE CENTRE, THUMBA, THIRUVANANTHAPURAM.

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R1-3 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL ADV.SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR ADV.SMT. S.KRISHNA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-06-2016. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 15205 of 2009 (S)

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APPENDIX

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PETITIONER'S EXIHIBITS:

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EXHIBIT P1 : TRUE COPY OF THE ORDER BY THE HON'BLE FAMILY COURT, TRIVANDRUM IN MC 371/2002

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EXHIBIT P2 : TRUE COPY OF THE MEMORANDUM DATED 05.04.2006 EXHIBIT P3: TRUE COPY OF O.A. NO.734/2007 EXHIBIT P4: TRUE COPY OF THE JUDGMENT IN O.A.NO.734/2007 DATED 18.12.2008.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R1: TRUE COPY OF THE LETTER DATED 06.03.2003 RECEIVED FROM SMT.AJITHA S.

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EXHIBIT R2: TRUE COPY OF THE LETTER DATED 09.07.2003. EXHIBIT R3: TRUE COPY OF THE OFFICE MEMORANDUM DATED 14.09.1992. EXHIBIT R4: TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS BEFORE THE HONOURABLE CAT IN ORIGINAL APPLICATION NO.734/2007. EXHIBIT R5. TRUE COPY OF THE MEMORANDUM DATED 25.03.2009.

// TRUE COPY //

P.A. TO JUDGE

rmm

P.R.RAMACHANDRA MENON &

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ANIL K.NARENDRAN, JJ.

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

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W.P.(C)No.15205 of 2009

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--------------------------------Dated this the 17^th day of June, 2016

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JUDGMENT

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P.R.Ramachandra Menon, J.

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Imposition of punishment by reduction in rank by a period of 'two years' ordered by the Disciplinary Authority as per Annexure-A4, but modified by the Appellate Authority to 'one year' as per Annexure-A6 and affirmed by the Central Administrative Tribunal declining interference with the challenge raised in this regard is the subject matter of consideration in this Writ Petition.

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The petitioner joined service of the Vikram Sarabhai Space Centre, (V.S.S.C for short) as a 'Safaivala' way back in the year 1983. In the course of time, pursuant to acquisition of driving licence, he was appointed as Driver-Grade A and was later promoted as DriverGrade B. The petitioner's wife by name Ambika was also working in the V.S.S.C as 'Safaivala', who unfortunately bid

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W.P.(C)No.15205 of 2009 2

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farewell to this world on 10.10.1998. She was survived

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by the petitioner and three minor children.

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The case of the petitioner is that, pursuant to sudden demise of the wife, it became extremely difficult for him to manage the affairs in the family consisting of three minor children. Accordingly, a person by name Ajitha was engaged as a maid servant to look after the affairs. Based on the eligibility of the petitioner to obtain family pension in respect of the demise of his wife Ambika, the same was applied for and it was sanctioned by the Employer. It was being disbursed to the petitioner, which was being utilised by him, particularly for the welfare of the children. Subsequently, the maid servant left the residence of the petitioner and was living of her own.

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Quite after a long while, the petitioner was stated as shocked to obtain a show-cause notice from his Employer, proposing to initiate a disciplinary action against him, based on a complaint preferred by the aforesaid maid servant by name Ajitha. It was alleged

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that the petitioner had contracted remarriage with Ajitha and without intimating the position to the Employer, he was continuing to draw family pension in respect of the deceased wife, thus defrauding the Government and involving violation of the provisions of Rule 3(1)(i) and (iii) of the CCS (Conduct) Rules, 1964. Annexure A1 is the charge sheet, which was accompanied by the statement of allegations. The insinuation levelled against the petitioner was rebutted by the petitioner by filing a reply, contending that he had never contracted any remarriage and that no misconduct involving violation of Rule 3(1)(i) and (iii) had been conducted by him in any manner. Despite this, the Employer proceeded with steps to proceed with the disciplinary proceedings, which in turn was sought to be intercepted by filing O.A.No.468/2004 before the Central Administrative Tribunal. It was also brought to the notice of the Tribunal that the person by name Ajitha was only a maid servant and that she had also filed a false case before the Family

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Court, Thiruvananthapuram, by way of M.C.No.371/2002

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claiming maintenance. The disciplinary proceedings, if permitted to be proceeded further during the pendency of the above proceedings before the Family Court, would adversely affect the rights and interests of the petitioner and it was accordingly, that a prayer was made to intercept the disciplinary proceedings, till the proceedings before the Family Court were finalised. After hearing both the sides, the Tribunal passed Annexure-A2 order in O.A.No.468/2004 intercepting the disciplinary proceedings and ordering the same to be kept in abeyance till the disposal of the M.C.No.371/2002 filed before the Family Court, Thiruvananthapuram.

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The case of the petitioner is that the matter was not pursued by the person by name Ajitha before the Family Court; by virtue of which the M.C was dismissed for default, as per Annexure-A3 order dated 28.01.2006. Since there was no declaration as to the marital status of the petitioner with reference to the person by name Ajitha, but for dismissal of the proceedings for default, no further disciplinary action was liable to be pursued

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W.P.(C)No.15205 of 2009 5 against the petitioner, more so, in view of the

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observations made by the Tribunal in Annexure-A2. Still, the Department did not pay any heed to the submission made by the petitioner in this regard and proceeded with steps, ultimately leading to the enquiry report finding the petitioner guilty of the alleged misconduct. This led to Annexure-A4 order dated 14.03.2007 passed by the disciplinary authority, whereby the rank of the petitioner was reduced to the next lower level for a period of 'two years' (as per Annexure-A4 order), from the date of the order, with further direction that during the period of reduction, he shall earn increment of pay on completion of 'one year' from the date of the order. It was further stipulated that the petitioner would be ineligible to draw family pension, as a consequence of finding in the enquiry, which however could be passed on to the next eligible person in the family, as per the CCS (Pension) Rules, 1972.

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Feeling aggrieved by the said order, the

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petitioner took up the matter by way of appeal and after

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considering the entire facts and circumstances, the Appellate Authority passed Annexure-A6 order; whereby the rigour of punishment was reduced by 'one year', instead of two years. It is borne out by the records that, on completion of the period of one year as ordered by the Appellate Authority, the grade of the petitioner has been restored.

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The petitioner sought to challenge Annexures

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A4 and A6 orders, in so far as they involved the reduction of rank by filing O.A. No.734/2007 before the CAT, Ernakulam raising many a ground. The relief was opposed from the part of the Department. The main contention raised by the petitioner/applicant was that the status of the parties concerned; especially in relation to the marriage, was never a subject matter to be decided by the Management/Employer in the course of disciplinary proceedings and as such, the punishment was liable to be intercepted. Inadequate evidence was also projected as another ground. Reliance was placed on the decision rendered by a learned Judge of this Court in Jaladharan

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W.P.(C)No.15205 of 2009 7

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v. District Transport Officer Trivandrum and Others

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(1966 KLJ 673).

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The stand of the Department was sought to be justified with reference to the specific instance of misconduct in getting Family Pension without bringing the contract of marriage to the notice of the Employer. Reliance was placed from the part of the Department on the verdicts passed by the Apex Court in State of W.B. and Others v. Prasenjit Dutta [(1994) 2 SCC 37] and in State of Karnataka And Another v. T.Venkataramanappa [(1996) 6 SCC 455] . After hearing both the sides, the Tribunal passed Ext.P4 order whereby the punishment imposed upon the petitioner/applicant was upheld. It was however added that the withdrawal of Family Pension as a consequence to the Enquiry report was never to be a part of the punishment order and that the same could be separately issued. Interference was made only to that extent and this made the petitioner to approach this Court challenging the said Order.

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W.P.(C)No.15205 of 2009 8

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Dr.George Abraham, the learned counsel appearing for the petitioner submits that the proceedings are liable to be intercepted in view of the ruling rendered by this Court in Jaladharan v. District Transport Officer Trivandrum and Others (supra). It is stated that there is absolutely no evidence to hold that the petitioner had contracted any marriage with a person by name Ajitha. It is also stated that the Tribunal had already arrived at a finding, as borne by Ext.P4, that the steps taken by the Disciplinary Authority when the issue was pending consideration before the Family Court was quite premature and that further proceedings could be pursued only based on the outcome of the proceedings before the Family Court. Since the proceedings before the Family Court ended up in dismissal of the case as borne by Ext.P1, no further proceedings could have been pursued against the petitioner under any circumstances. It is also pointed out that marital status between the parties, is a matter to be established before the Family Court or Civil Court and that the Disciplinary Authority

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does never have any power, jurisdiction or competence to decide the said aspect, which unfortunately escaped

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proper appreciation by the Tribunal.

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In response to the said submission, Ms.S.Krishna learned counsel on behalf of the respondents submits that the idea and understanding of the petitioner is quite wrong and misconceived. The proceedings before the Family Court were not decided on merits and even otherwise, it is not having any relevance in so far as the issue involved herein is concerned. The proceeding before the Disciplinary Authority was with respect to the misconduct of contracting a second marriage and continuing to draw family pension without informing the same to the Department. As per the relevant provisions of the CCS (Pension) Rules the eligibility of the person who is drawing Family Pension in respect of the service of the deceased spouse, is only till his/her remarriage. In the said circumstances, the factual position has to be ascertained whether any misconduct was committed by the petitioner/employee with reference

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W.P.(C)No.15205 of 2009 10

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to the alleged marriage with Ajitha. After collecting the relevant particulars, pursuant to Annexure-A1 complaint, the Department wrote a letter to the SNDP Yogam, Vadakkumbhagam, Kulathoor to clarify the authenticity of the marriage stated as committed with the involvement of the said Yogam, between the petitioner and the person by name Ajitha. On receipt of the said letter, the records were verified and the factual position was reported as per Ext.R2 dated 09.07.2003, certifying it point blank that marriage between the petitioner and the person by name Ajitha (having the address of Lakshamveedu Colony No.19, Station Kadavu, Kazhakuttam P.O.) was solemnized on 9.5.2000. The particulars of the witnesses, who attended the marriage on that date, were also given in the said letter. It was after ascertaining the factual particulars as above, that a finding was rendered by the Enquiry Authority that the petitioner had contracted marriage with Ajitha, which however was not reported by the petitioner to the Department, who still was continuing to draw Family Pension; thus establishing the misconduct.

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The learned counsel further submits that, by virtue of the ruling rendered by the Supreme Court in State of W.B. and Others v. Prasenjit Dutta and in State of Karnataka And Another v. T.Venkataramanappa (supra), it is quite possible to enquire into the factual aspect in relation to the marriage as above, since it is incidental to the disciplinary proceedings involving the misconduct of continuing to draw the Family Pension even after contracting a marriage.

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The submission made on behalf of the petitioner that no further proceedings could have been pursued by the Department, in view of the observations made by the Tribunal in Ext.P4 (with reference to the proceedings before the Family Court and its outcome) does not impress this Court. The observation as contained in paragraph 9 of Annexure-A2 order passed by the Tribunal in O.A.No.468/2004 is reproduced below for convenience of reference.

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“9. In view of the above facts and circumstances of the case, the action of the respondents to initiate disciplinary proceedings against the applicant on the

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W.P.(C)No.15205 of 2009 12

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allegation or re-marriage is premature. It has to wait for the outcome of the case pending before the Family Court. If the decision of the Family Court goes against the Applicant, of course it goes without saying that he will have to face the consequences and the respondents will have the jurisdiction to recover the loss, if any, occurred on that account and also to take appropriate departmental proceedings against him under the rules. Therefore, the OA succeeds. The impugned A1 Memorandum shall be kept in abeyance till the disposal of the petition for maintenance No.M.C.371/2002 by the Family Court, Thiruvananthapuram. It would be in the interests of both the parties that the case pending before the Family Court is finalized at the earliest. There is no order as to costs.”

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Obviously, the relief sought for by the petitioner before the Tribunal was to intercept the disciplinary proceedings till the proceedings before the Family Court claiming maintenance were finalised, which alone has been granted by the Tribunal, ordering the memorandum of charges to be kept in abeyance till disposal of the petition for maintenance, ie. M.C.371/2002 by the Family Court, Thiruvananthapuram. Nothing more was said as to the further course of action legally permissible; considering the limited extent of

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pleadings and prayers sought for. It is true that the proceedings of the Family Court were over, having the maintenance case dismissed for default and this by itself is enough to conclude that there is no declaration by any competent court of law to the effect that there was no valid marriage between the petitioner and the person by name Ajitha.

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The next point is with regard to the adequacy of evidence as to the alleged marriage between the petitioner and the person by name Ajitha. As mentioned already, documents were made available before the Employer as to the marriage, which was sought to be enquired into by the SNDP Yogam who affirmed solemnization of the marriage on 09.05.2000 as per Ext.R2 dated 09.07.2003. It was also stated that the marriage was witnessed by two persons by name Smt.Padmini S. and Sri.Ramesan U.P. These factual particulars, which were brought in evidence before the Enquiring Authority and forming part of the materials before the Disciplinary Authority had been

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analysed/discussed by the said authority while passing Annexure-A4 order, as given in the last paragraph of the discussion of evidence and other particulars. It was thereafter, that the Disciplinary Authority concurred with the findings of the Enquiry Officer; in turn ordering the punishment of reduction in rank by two years, which stands modified by the Appellate Authority by reducing the same to one year.

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With regard to the reliance sought to be placed on the decision reported in Jaladharan v. District Transport Officer Trivandrum and Others (supra), it was a case where punishment of removal in the service was ordered by the departmental authority, based on the complaint given by the wife, that no maintenance was being paid to her. How non payment of maintenance, if at all be so, would constitute a 'misconduct' was not discernible and it was accordingly, that interference was made by the learned Single Judge of this Court. It is not discernible from the said judgment, as to whether any other charge was there presumably nothing else was

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there and hence the interference was made. The said judgment does not support the case of the petitioner, as the misconduct herein is not with regard to the payment of maintenance; but with regard to continued drawal of Family Pension without bringing the aspect of marriage to the notice of the Employer. It was incidental to such misconduct, that it became necessary for the Department to arrive at a finding on marriage, before denying the benefit to the petitioner. This alone has been done by the Department, which is perfectly within the four walls of the law, in view of the dictum laid down by the Supreme Court as per the verdicts cited supra.

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Another aspect to be noted is that the effect of reduction in rank is already over and the petitioner has been put back in the Higher level of 'Driver-Grade B'. It is also conceded by the learned counsel for the petitioner that, pursuant to the order passed by the Tribunal, though the Family Pension drawn by the petitioner was put an end to, a fresh order has been passed as 'Ext.R5' dated 25.03.2009; whereby the next eligible member in

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W.P.(C)No.15205 of 2009 16

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the Family is enabled to draw the same adding that the eldest daughter of the petitioner is thus receiving the Family Pension. In other words, the eligibility to obtain Family Pension in so far as the petitioner is concerned is declared against him and another member of his family (eldest daughter) has been found eligible as per Exhibit-R5. The petitioner has not chosen to challenge Exhibit-R5 in any manner.

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With regard to the authenticity of the documents procured or produced by the Management to inflict the punishment of reduction, it is settled law that 'preponderance of probabilities' is sufficient to arrive at a finding on misconduct. The degree of proof under such circumstance, involving contracting a second marriage and the disciplinary proceedings pursued and finalised, based on photocopy of the relevant documents was considered at length, (with reference to the verdicts passed by the Apex Court) in the decision reported in Birendra Kumar Singh v. Commandant, Central Industrial Security Force, Tvm. and Others [2014

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W.P.(C)No.15205 of 2009

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(3) KHC 208] [by one of us – PRRM(J)]. The submission made on behalf of the petitioner as to the inadequacy of the evidence/proof for arriving at the guilt/misconduct does not impress this Court in any manner. This Court finds that the petitioner has not established any tenable ground to call for the interference with the verdict passed by the Tribunal.

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The Writ Petition fails and the same is dismissed accordingly.

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Sd/- P.R.RAMACHANDRA MENON, JUDGE

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Sd/- ANIL K.NARENDRAN, JUDGE

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MJL

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W.P.(C)No.15205 of 2009 18

V.Purushothaman v. Union of India and 2 Others

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V.Purushothaman v. Union of India and 2 Others

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