Dismissed

Secretary to Government, Home Department v. Kerala Administrative Tribunal

Kerala HC5 Nov 2019OP(KAT)/2698/2013

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a petition challenging the Tribunal's decision to grant 80% of pay and allowances as subsistence allowance under Rule 56B. The Bench upheld the Tribunal's discretion as reasonable on the unique facts, noting the applicant retired during suspension without a penalty memo.

What did the court decide?

Original petition dismissed with no order on costs.

Secretary to Government, Home Department Vs… — Pension and Retirement Benefits | Kerala HC (2019)

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941

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OP(KAT).No.2698 OF 2013(Z)

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AGAINST THE ORDER IN TA 92/2012 DATED 11-10-2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONERS/RESPONDENTS 1 TO 3:

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1 SECRETARY TO GOVERNMENT, HOME DEPARTMENT HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DIRECTOR GENERAL OF POLICE KERALA, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM.

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3 THE ACCOUNTANT GENERAL AE KERALA, OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM.

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BY SR.GP SRI.ANTONY MUKKATH

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RESPONDENT/S:

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1 KERALA ADMINISTRATIVE TRIBUNAL THIRUVANANTHAPURAM BENCH, VANCHIYOOR, THIRUVANANTHAPURAM, REPRESENTED BY ITS REGISTRAR.

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2 THOMAS ABRAHAM S/O.ITTY THOMAS, DEPUTY SUPERINTENDENT OF POLICE (RETIRED), SB PATHANAMTHITTA,

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O.P.(KAT) No. 2698 of 2013

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NOW RESIDING AT PUTHUPARAMBIL, NALLANIKUNNU, ELAVANTHITTA.P.O., PATHANAMTHITTA DISTRICT.

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R2 BY ADV. SRI.T.M.CHANDRAN R2 BY ADV. SRI.V.AJAKUMAR R2 BY ADV. SRI.N.S.RAVINDRANATHAN R2 BY ADV. SRI.S.SUJITH

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN

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FINALLY HEARD ON 05.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(KAT) No. 2698 of 2013

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JUDGMENT

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K.VINOD CHANDRAN, J.

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The Government is aggrieved with the fact that despite the Tribunal upholding the authority of the Government under Rule 56B of the KSR, interfered with the same and directed payment of 80% of the pay and allowances as subsistence allowance. Rule 56B empowers the competent authority to decide on the amounts to be paid during the suspension period of an officer, who is reinstated or would have been so reinstated, but for his retirement on superannuation while under suspension, or has retired from service on superannuation before the conclusion of the disciplinary proceedings. The Tribunal looked at the Manual for Disciplinary Proceedings to cause interference to the decision under the said rule.

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In the present case, the applicant along with

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O.P.(KAT) No. 2698 of 2013

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other 8 officers were alleged to have colluded with the activity of brewing of illicit liquor. There was a disciplinary proceeding initiated, which was transferred to the Vigilance Tribunal. The Vigilance Tribunal found that the Police Officers were not guilty, but, however, the Government disagreed with that finding. We are not concerned with the eventual result of the said proceeding since even before the Vigilance Tribunal issued a notice, the respondent herein, who was one of the delinquent employees, retired from service. In fact, before retirement, he was also reinstated along with the others, but however, to a different place. In such circumstances, what came up for consideration before the authority was as to how the suspension period between 8.7.1997 to 25.4.2000 has to be treated. The competent authority treated the period as duty reckoning it for all purposes except for pay and allowances,

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O.P.(KAT) No. 2698 of 2013

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which was confined to the subsistence allowances which is

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in effect is 50% for the first six months.

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The Tribunal upheld the power under Section 56B, but, however, looked at the Manual for Disciplinary Proceedings and adopting what is provided there, determined the quantum of 80% of the pay and allowances as the amounts due to the applicant during the suspension period, as subsistence allowance.

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The objection raised by the learned Senior Government Pleader is that having upheld the authority of the Government under Rule 56B, the Tribunal could not have looked at the Manual for Disciplinary Proceedings. It is also submitted that the Manual for Disciplinary Proceedings to provide for 80% of the pay and allowances, is only in cases of minor penalties and not major penalties, later of which will be the proceedings initiated in the present case.

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O.P.(KAT) No. 2698 of 2013

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We are of the opinion that the apprehension that

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the Tribunal would follow this as a precedent adopting the

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rate in the Manual for Disciplinary Proceedings, is not justified. The Tribunal, after having upheld the power under Rule 56B, looked at the facts of the case and found it to be one in which the applicant was not even served a memo of charges for imposing a major penalty or minor penalty. It was in such circumstances that as a reference; Manual for Disciplinary Proceedings; as pointed out by the learned Counsel for the applicant before the Tribunal, was looked into. Finding that the Manual for Disciplinary Proceedings prescribes 80% of pay and allowances in cases of revocation of suspension where minor penalty alone was proposed, it was found proper to grant the applicant the very same benefit which is on the facts arising in the present case. We also notice that Rule 56B (5) speaks of a discretion

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O.P.(KAT) No. 2698 of 2013

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vested with the competent officer to pay such amounts, not being the whole of the pay and allowances to which the employee would have been entitled, during the period of suspension. This clothes the authority to exercise its discretion to grant even a percentage above the subsistence allowance normally due to a person. The Tribunal also observed that ordinarily they would have remitted the matter to the competent authority, but, however, the applicant having retired in 2000, they themselves exercised discretion in granting the applicant 80% of the pay and allowances during the entire suspension period.

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We do not find any reason to interfere with the above exercise of discretion which we find to be perfectly reasonable. It is trite that, we sitting in judicial review would not substitute our reasonableness for that employed in the impugned order. We dismiss the original petition with the

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O.P.(KAT) No. 2698 of 2013

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above reservation that the measure adopted by the Tribunal

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will only apply on the facts of this case. No order on costs.

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Sd/-

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K.VINOD CHANDRAN JUDGE

Sd/-

V.G.ARUN

JUDGE

Scl/ 6.11 x

O.P.(KAT) No. 2698 of 2013

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 P1- TRUE COPY OF TA NO.92 OF 2012 ALONG WITH THE EXHIBITS.

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EXHIBITS FILED ALONG WITH EXT.P1

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EXHIBIT P1 P1- TRUE COPY OF TA NO.92 OF 2012 ALONG WITH THE EXHIBITS. TRUE COPY OF THE ORDER NO.G.O.(RT)NO.196/97/VIG, DATED 08.07.1997.

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EXHIBIT P2 P2- TRUE COPY OF THE REINSTATEMENT DATED 26.04.2000.

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EXHIBIT P3 P3- TRUE COPY OF THE ORDER NO.G.O. (RT)NO.113/01/VIG, DATED 06.04.2001.

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EXHIBIT P4 P4- TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP NO.29686/01 DATED 03.10.2002.

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EXHIBIT P5 TRUE COPY OF THE ORDER DATED 20.11.2003.

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EXHIBIT P6 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITION DATED 11.12.2003.

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EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 11.12.2003.

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EXHIBIT P8 TRUE COPY OF THE G.O.(RT) NO.B3/04/VIG. DATED 01.03.2004.

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O.P.(KAT) No. 2698 of 2013

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EXHIBIT P2 P2- TRUE COPY OF THE COUNTER AFFIDAVIT WAS FILED ON BEHALF OF THE IST PETITIONER IN RESPONSE TO TA 92 OF 2012. TRUE COPY OF THE REINSTATEMENT DATED 26.04.2000. EXHIBIT P3 P3- TRUE COPY OF THE MISCELLANEOUS APPLICATIONS IN EXT.P2 APPLICATION. TRUE COPY OF THE ORDER NO.G.O. (RT)NO.113/01/VIG, DATED 06.04.2001.

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TRUE COPY OF THE GOVERNMENT OF KERALA ANNEXURE A1 VIGILANCE DEPARTMENT LR.NO.5918/A2/03/VIG.DATED 02.01.2004. ANNEXURE A2 TRUE COPY OF THE ADDITIONAL REPLY DATED 19.01.2004 SUBMITTED BY THE APPLICANT.

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ANNEXURE A3 TRUE COPY OF THE G.O(RT)NO.519/04/HOME, DATED 01.03.2004

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EXHIBIT P4 TRUE COPY OF THE ORDER OF THE TRIBUNAL, T.A.NO.92/12.

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RESPONDENT'S EXHIBITS EXHIBIT R2(a) TRUE COPY OF THE G.O.(RT) NO.519/04/HOME DATED 01.03.2004. EXHIBIT R2(b) TRUE COPY OF THE G.O.(P) 56/86/VIG.DATED 08.04.1986.

Secretary to Government, Home Department v. Kerala Administrative Tribunal

Case brief

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Secretary to Government, Home Department v. Kerala Administrative Tribunal

Case brief

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