Dismissed

The State of Kerala v. Sri.v.K.Balagopala Marar

Kerala HC13 Mar 2018OP(KAT)/96/2018

Case brief

AI extract

What is this about?

The State challenged the KAT order granting arrears of pay to a retired employee via notional promotion. The Division Bench dismissed the petition, holding that the claimant was entitled to back wages to restore losses caused by invalid disciplinary proceedings, overriding Service Rule restrictions.

What did the court decide?

Relief was denied to the petitioner; the order of the Kerala Administrative Tribunal in T.A.No.4534 of 2012 was upheld.

The State of Kerala Vs Sri.v.K.Balagopala Marar — Pension and Retirement Benefits | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN

¶3

THE HONOURABLE MRS. JUSTICE ANNIE JOHN

¶4

TUESDAY, THE 13TH DAY OF MARCH 2018 / 22ND PHALGUNA, 1939

¶5

OP(KAT).No. 96 of 2018

¶6

AGAINST THE ORDER/JUDGMENT IN TA 4534/2012 of KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM DATED 20-02-2017

¶7

PETITIONER(S)/RESPONDENTS 1 & 2 IN T.A.

¶8

1 THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM, KERALA.

¶9

2 THE DIRECTOR OF AGRICULTURE, THIRUVANANTHAPURAM, KERALA.

¶10

BY GOVERNMENT PLEADER SRI A J VARGHESE

¶11

RESPONDENT(S)/APPLICANT & 3RD RESPONDENT IN T.A.:

¶12

1. SRI.V.K.BALAGOPAL MARAR, NEELIMA, KODUKKATHURUTHIL HOUSE, PALLANTHURUTHU, NORTH PARAVUR, ERNAKULAM DISTRICT, ASSISTANT DIRECTOR OF AGRICULTURE (RETIRED), POOVATHUSSERY, KERALA.

¶13

2. THE ACCOUNTANT GENERAL, A&D (AUDIT), THIRUVANANTHAPURAM, KERALA.

¶14

R BY SRI.M.P.ASHOK KUMAR

¶15

THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 13-03-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

kkj

¶17

OP(KAT).No. 96 of 2018 (Z)

¶18

APPENDIX

¶19

PETITIONER(S)' EXHIBITS

¶20

ANNEXURE A1:	TRUE COPY OF THE W.P(C) NO.23120/2004 WITH ITS EXHIBITS T.A.4534/2012
EXHIBIT P1	THE PHOTOCOPY OF THE JUDGMENT IN O.P.2073/93 DATED 03.06.2003.
EXHIBIT P2	THE PHOTOCOPY OF THE ORDER NO.GO(RT) NO.356/04/AD DATED 10.03.2004.
EXHIBIT P3	THE PHOTOCOPY OF THE GO(P) NO.1016/2000/FIN DATED 12.07.2000.
EXHIBIT P4	THE PHOTOCOPY OF THE ORDER DATED 19.01.2004 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P5	THE PHOTOCOPY OF THE GRATUITY PAYMENT ORDER ISSUED BY THE 3RD RESPONDENT DATED 11.06.2004.
AANNEXURE A2:	TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE FIRST RESPONDENT IN TA 4534/2012
ANNEXURE A3:	TRUE COPY OF THE ORDER DATED 20.02.2017 IN T.A.NO.4534 OF 2012
ANNEXURE A4: RESPONDENTS'	TRUE COPY OF THE ORDERR NO.TO(P) 5 DATED 03.02.2015 EXHIBITS

NIL

// TRUE COPY //

PA TO JUDGE

K.SURENDRA MOHAN & ANNIE JOHN, JJ.

¶25

O.P.(KAT) No.96 of 2018

¶26

Dated this the 13^th day of March, 2018

¶27

J U D G M E N T

¶28

Surendra Mohan, J.

¶29

This Original Petition is filed by the State challenging the order of the Kerala Administrative Tribunal, Thiruvananthapuram (KAT for short) in T.A.No.4534 of 2012 dated 20.02.2017. As per the impugned order evidenced herein by Annexure A3, the Tribunal has found that the first respondent was entitled to back wages on being notionally promoted to the post of Deputy Director of Agriculture with effect from 26.11.1994 and the arrears due to him from 26.11.1994 to 10.11.1997.

¶30

The first respondent was charge sheeted alleging grave irregularities and was proceeded against departmentally. A punishment of compulsory retirement from service was imposed on him. The punishment was the subject matter of challenge before this Court in O.P.No.2073 of 1993. The said Writ Petition was

¶31

-:2:-

¶32

O.P.(KAT) No.96 of 2018

¶33

considered along with two Writ Appeals filed by the State and was allowed by exhibit P1 judgment. This Court found that the first respondent had been imposed with the punishment for an offence for which he was not charge sheeted. No opportunity to file explanation against the charge or to contest the same had been afforded. For the above reason, this Court found that there was violation of the principles of natural justice as well as the relevant statutory Rules. Therefore, the punishment was set aside. Since the first respondent had been denied the promotion that was rightfully due to him, he was directed to be paid all the benefits, as though he had been promoted. Thereafter, he was issued exhibit P2 order dated 10.03.2004 granting notional promotion to the cadre of Deputy Director of Agriculture with effect from 26.11.1994. However, it was ordered that no arrears of pay or other benefits would be given to him. It was aggrieved by the said proceedings that, he had approached the Kerala Administrative Tribunal.

¶34

-:3:-

¶35

O.P.(KAT) No.96 of 2018

¶36

It was contended that since he had been denied the promotion that was rightly due to him, it was only appropriate that he was granted all the benefits as though he had been promoted. The claim of the first respondent was contested by the petitioners herein. According to them, Rule 23(c), Part I Kerala Service Rules (KSR for short) disentitles the first respondent from claiming back wages.

¶37

The KAT considered the respective contentions and found that the first respondent was entitled to the arrears of pay. This Original Petition is filed by the State aggrieved by the said order of the KAT.

¶38

According to Advocate A.J. Varghese who appears for the petitioners, the KAT has gone wrong in not finding that Rule 23(c), Part III KSR governs the situation in so far as the facts of the present case are concerned. All the benefits to which the first respondent was entitled have been given to him as per exhibit P2 Government Order. In view of Rule 23(c) referred to above, it is contended that the

¶39

-:4:-

¶40

O.P.(KAT) No.96 of 2018

¶41

first respondent was not entitled to anything more. In view of the above, it is contended that the order of the KAT requires to the interfered with and set aside.

¶42

This Original Petition comes up before us for admission. Having considered the contentions advanced before us on behalf of the petitioners anxiously, we are not satisfied that there are any grounds to admit this Original Petition. The first respondent had been proceeded against departmentally for various acts of misconduct. However, the various acts of misconduct alleged against him were found to be unsubstantiated and therefore he was exonerated. As per exhibit P1 judgment, a Division Bench of this Court has directed that he should be paid all his benefits on the basis of the permission to which he would have been entitled. Therefore, it was incumbent on the petitioners to have complied with the direction contained in the said judgment, in letter and the spirit. The present attempt to grant him only the notional promotion without

¶43

-:5:-

¶44

O.P.(KAT) No.96 of 2018

¶45

any arrears of pay is not sufficient. The direction to pay the arrears of salary and other benefits was intended to restore to him as far as possible, all the losses caused by the disciplinary proceedings initiated against him. Therefore, unless he is paid the back wages, it cannot be said that he was put back to the position that he was legitimately entitled to.

¶46

In view of the above, the action of the authorities in issuing exhibit P2 order denying to him the arrears of pay on the basis of the notional promotion granted cannot be countenanced. Exhibit P2 also cannot be accepted as one issued in compliance with the direction of this Court contained in exhibit P1. Therefore, the KAT has rightly allowed the application filed by the first respondent. Rule 23(c) on which reliance is placed by the learned Government Pleader has no application to the facts of the present case in view of the positive direction issued by a Division Bench of this Court in exhibit P1 judgment.

¶47

-:6:-

¶48

O.P.(KAT) No.96 of 2018

¶49

For the foregoing reasons, this Original Petition fails

¶50

and is accordingly dismissed.

¶51

Sd/-

¶52

K.SURENDRA MOHAN JUDGE