Partly allowed

State of Kerala v. Asoka Kumar.S

Kerala HC19 Dec 2019OP(KAT)/538/2019

Case brief

AI extract

What is this about?

The Court addressed petitions challenging exoneration and promotion delays. In Ex.Petitioner 1, the challenge to the review order exoneration was rejected with all contentions left open. In Ex.Petitioner 2, promotion consideration was allowed subject to sealed cover procedure pending the unresolved vigilance case.

What did the court decide?

O.P. No.533 rejected. O.P. No.538 allowed; Government directed to convene review DPC with recommendations in sealed cover pending vigilance outcome.

State of Kerala Vs Asoka Kumar.S — Pension and Retirement Benefits | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

¶4

¶5

THE HONOURABLE MR.JUSTICE V.G.ARUN

¶6

THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941

¶7

OP(KAT).No.533 OF 2019

¶8

AGAINST THE ORDER/JUDGMENT IN OA 2469/2019 DATED 06-12-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

¶9

PETITIONERS/RESPONDENTS 1 TO 6:

¶10

1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF EXCISE/TAXES, SECRETARIAT, THIRUVANANTHAPURAM- 695001, KERALA.

¶11

2 COMMISSIONER OF EXCISE, EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM, KERALA- 695033.

¶12

3 ADDITIONAL COMMISSIONER OF EXCISE (ADMINISTRATION), EXCISE COMPLEX, NANDAVANAM, THIRUVANANTHAPURAM695033, KERALA.

¶13

4 DEPUTY COMMISSIONER OF EXCISE, KOLLAM- 690 001, KERALA.

¶14

5 DEPARTMENT OF VIGILANCE AND ANTI CORRUPTION BUREAU, REPRESENTED BY ITS DIRECTOR, DIRECTORATE, PMG, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM- 695033, KERALA.

¶15

6 DIRECTOR OF VIGILANCE AND ANTI-CORRUPTION BUREAU, DEPARTMENT OF VIGILANCE AND ANTI-CORRUPTION BUREAU, DIRECTORATE, PMG, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM- 695 033, KERALA.

¶16

BY SR.GP SRI.ANTONY MUKKATH

¶17

OP(KAT).No.533 & 538 OF 2019 2

¶18

RESPONDENT/APPLICANT:

¶19

ASOKA KUMAR.S AGED 41 YEARS S/O.SIVADHASAN PILLAI, EXCISE INSPECTOR, MURUGHAN PHARMA, PUNALOOR, KOLLAM- 690518, RESIDING AT NELLIPARAMBIL, KALLELI BHAGOM P.O., KARUNAGAPPALLY, KOLLAM, KERALA- 690519, MOBILE- 9447860219.

¶20

R1 BY ADV. SRI.KALEESWARAM RAJ R1 BY ADV. KUM.A.ARUNA

¶21

OTHER PRESENT:

¶22

THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 19.12.2019, ALONG WITH OP(KAT).538/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶23

OP(KAT).No.533 & 538 OF 2019 3

¶24

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶25

PRESENT

¶26

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

¶27

¶28

THE HONOURABLE MR.JUSTICE V.G.ARUN

¶29

THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941

¶30

OP(KAT).No.538 OF 2019

¶31

AGAINST THE ORDER/JUDGMENT IN OA (EKM) 307/2018 DATED 30-09-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM

¶32

PETITIONERS/RESPONDENTS 1 TO 6:

¶33

1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF EXCISE, SECRETARIAT, THIRUVANANTHAPURAM-695001, KERALA.

¶34

2 COMMISSIONER OF EXCISE, EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM, KERALA-695033.

¶35

3 ADDITIONAL COMMISSIONER OF EXCISE (ADMINISTRATION), EXCISE COMPLEX, NANDAVANAM, THIRUVANANTHAPURAM, KERALA-695033, KERALA.

¶36

4 DEPUTY COMMISSIONER OF EXCISE, KOLLAM-690 001, KERALA.

¶37

5 DEPARTMENTAL PROMOTION COMMITTEE (LOWER), REPRESENTED BY ITS CONVENOR (FOR PROMOTION TO THE POST OF CIRCLE INSPECTOR), DEPARTMENT OF EXCISE, THIRUVANANTHAPURAM, KERALA-695001.

¶38

6 CONVENOR, DEPARTMENTAL PROMOTION COMMITTEE (LOWER), REPRESENTED BY ITS CONVENOR (FOR PROMOTION TO THE POST OF CIRCLE INSPECTOR), DEPARTMENT OF EXCISE, THIRUVANANTHAPURAM, KERALA-695001.

¶39

BY SR.GP SRI.ANTONY MUKKATH.

¶40

OP(KAT).No.533 & 538 OF 2019 4

¶41

RESPONDENTS/APPLICANT/RESPONDENT NO.7:

¶42

1 ASOKA KUMAR.S AGED 39 YEARS S/O.SIVADHASAN PILLAI, EXCISE INSPECTOR, EE AND ANSS, IDUKKI-685603, RESIDING AT NELLIPARAMBIL VEEDU, KALLELIBHAGOM, KARUNAGAPPALLY, KOLLAM, KERALA-690519.

¶43

2 NAUSHAD I., EXCISE CIRCLE INSPECTOR, EXCISE CIRCLE OFFICE, VARKALA-695141, KERALA.

¶44

R1 BY ADV. SRI.KALEESWARAM RAJ R1 BY ADV. KUM.A.ARUNA R1 BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE

¶45

OTHER PRESENT:

¶46

THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 19.12.2019, ALONG WITH OP(KAT).533/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶47

OP(KAT).No.533 & 538 OF 2019 5

¶48

JUDGMENT

¶49

[ OP(KAT).533/2019, OP(KAT).538/2019 ]

¶50

Dated this the 19th day of December 2019

¶51

K. Vinod Chandran, J.

¶52

The petitioner in both the original petitions is the State of Kerala. O.P.(KAT)No.533/2019 arises from an order of the Tribunal which stayed Annexure A10 order, reviewing the earlier order, exonerating the respondent who was the applicant before the Tribunal from the charges alleged and proceeded with in a disciplinary enquiry. The question is as to whether Rules 34 and 35 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960, would apply or not.

¶53

The question is debatable and is pending before the Tribunal and the Tribunal, according to us, has rightly stayed the order pending the O.A. In such circumstances, we do not find any reason to interfere with the order and O.P.(KAT)No.533/2019 stands rejected, leaving open all contentions of both parties before the Tribunal.

¶54

OP(KAT).No.533 & 538 OF 2019 6

¶55

In O.P.(KAT)No.538/2019, the challenge is against the interim order dated 30.09.2019, which directed consideration of the petitioners' case for promotion in a review DPC since he was superseded for reason only of two disciplinary proceedings, as on the date of convening the DPC. In fact, after the DPC, both the disciplinary proceedings ended in exoneration of the respondents. The order in one of the disciplinary proceeding was reviewed by the Government which has been stayed in O.A.No. 2469/19 by an interim order. We have today dismissed the O.P. (KAT) against that interim order. In the other disciplinary proceeding, on the basis of exoneration, there is already an order by the Tribunal directing consideration in a review DPC convened. In such circumstances, we are of the opinion that, as of now, the disciplinary proceedings which culminated in exoneration of the respondents do not result in any impediment for consideration of promotion by the DPC.

¶56

In O.P.(KAT)No.538/2019, the State had taken up two contentions to resist the claim for consideration in a DPC as directed in O.A.(EKM)No.307/2018. One contention is that the order of exoneration passed in one of the disciplinary proceedings has been reviewed by the Government. We reiterate

¶57

OP(KAT).No.533 & 538 OF 2019 7

¶58

that that ground as of now does not survive, since the order in review has been stayed by the Tribunal. There was one other contention that, with respect to the very same allegations in the other proceeding, a vigilance case was registered.

¶59

The learned counsel appearing for the respondents would submit that in the vigilance case a final report has been filed finding no further action required. However, it is submitted by the learned Senior Government Pleader that the matter is still pending before the Vigilance Court and it is posted for hearing the complainant. The learned counsel appearing for the respondents submits that the respondent has moved this Court for reason of undue delay caused in the finalisation of the vigilance proceedings. There is also a report called for by a learned Single Judge of this Court in Crl.M.C.No.8893/2019. In any event, as of now, since the vigilance case has not culminated in the acceptance of the Final Report by the Court, it is only proper that the recommendations of the DPC be not implemented thus promoting the respondent herein. However, the respondent would be entitled to move the learned Single Judge and get an order for expeditious disposal as also approach the Vigilance Tribunal for such expeditious disposal. If the

¶60

OP(KAT).No.533 & 538 OF 2019 8

¶61

matter is disposed of in his favour, definitely, the respondent could approach the Tribunal too. As of now, we are of the opinion that the impugned order cannot be sustained. We make it clear that we have not commented on the merits and that if the procedure of sealed cover has not been resorted to in the DPC, necessarily, the DPC would have to be convened and the recommendations kept in a sealed cover which could be given effect to if the vigilance case also ends in favour of the respondent. If no sealed cover procedure has been resorted to, we direct the Government to immediately convene the review DPC and keep the recommendations in a sealed cover.

¶62

O.(KAT)No.538/2019 would stand allowed with the above directions.

¶63

Both the Original Petitions are ordered accordingly. There is no order as to costs.

Sd/-

K.VINOD CHANDRAN

JUDGE

Sd/-

V.G.ARUN

SHG

JUDGE

OP(KAT).No.533 & 538 OF 2019 9

¶72

APPENDIX OF OP(KAT) 533/2019

¶73

PETITIONER'S/S EXHIBITS:

¶74

EXHIBIT	P1	TRUE COPY OF THE O.A.NO.2469/2019 ALONG WITH ANNEXURES.
EXHIBIT	P1(A1)	TRUE COPY OF THE CHARGE MEMO NO.538546/F2/16/T.D AND STATEMENT OF ALLEGATIONS DATED 12.07.2018 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT	P1(A2)	TRUE COPY OF THE REPLY DATED 09.10.2018 SUBMITTED BY THE APPLICANT TO THE 1ST RESPONDENT.
EXHIBIT	P1(A3)	TRUE COPY OF ORDER DATED 30.05.2019 IN O.A.NO.925/2019.
EXHIBIT	P1(A4)	TRUE COPY OF G.O.(RT)NO.619/2019/T.D DATED 02.09.2019.
EXHIBIT	P1(A5)	TRUE COPY OF G.O.(P)NO.65/92/VIG. DATED 12.05.1992 ISSUED BY COMMISSIONER AND SECRETARY (HOME AND VIGILANCE DEPARTMENT).
EXHIBIT	P1(A6)	TRUE COPY OF THE RELEVANT PAGES OF FINAL REPORT IN V.C.02/2017 DATED 24.06.2019 SUBMITTED BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE), THIRUVANANTHAPURAM.
EXHIBIT	P1(A7)	TRUE COPY OF G.O.(RT)NO.546/19/TAXES DATED 02.08.2019 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT	P1(A8)	TRUE COPY OF THE ORDER DATED 01.12.2017 IN O.A(EKM)NO.2764/2017.
EXHIBIT	P1(A9)	TRUE COPY OF THE ORDER DATED 30.09.2019 IN O.A.(EKM)NO.307/2018.
EXHIBIT	P1(A10)	TRUE COPY OF THE G.O.(MS)NO.890/2019/TD DATED 28.11.2019 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT	P1(A11)	TRUE COPY OF THE CIRCULAR NO.03/03/16 DATED 07.03.2016 ISSUED BY DIRECTOR, CENTRAL VIGILANCE DEPARTMENT.

¶75

OP(KAT).No.533 & 538 OF 2019 10

¶76

APPENDIX OF OP(KAT) 538/2019

¶77

PETITIONER'S/S EXHIBITS:

¶78

EXHIBIT P1 TRUE COPY OF THE O.A.(EKM) NO.307/2018 ALONG WITH ANNEXURES. EXHIBIT P1(A1) TRUE COPY OF THE COMPLAINT DATED 24.04.2016 FILED BY SMT.SEEMA SATHYANESAN BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT. EXHIBIT P1(A2) TRUE COPY OF THE RELEVANT PAGES OF THE ENQUIRY REPORT DATED 30.07.2016 SUBMITTED BY THE VIGILANCE OFFICER (EXCISE). EXHIBIT P1(A3) TRUE COPY OF THE ORDER DATED 01.08.2016. EXHIBIT P1(A4) TRUE COPY OF THE MEMO OF CHARGES DATED 09.08.2016 TOGETHER WITH CHARGE SHEET. EXHIBIT P1(A5) TRUE COPY OF THE REPLY DATED 01.10.2016. EXHIBIT P1(A6) TRUE COPY OF THE ORDER DATED 18.01.2017. EXHIBIT P1(A7) TRUE COPY OF THE ORDER DATED 18.02.2017. EXHIBIT P1(A8) TRUE COPY OF THE REPORT BY THE ENQUIRY OFFICER ISSUED TO VIJAYADAS G. TOGETHER WITH COVERING LETTER DATED 09.10.2017. EXHIBIT P1(A9) TRUE COPY OF THE REPLY OBTAINED BY THE APPLICANT UNDER THE RIGHT TO INFORMATION ACT ON 29.08.2011. EXHIBIT P1(A10) TRUE COPY OF THE INTERIM ORDER DATED 16.11.2017 IN CRL.M.A.NO.1651/2017 IN CRL.M.C.NO.8026/17. EXHIBIT P1(A11) TRUE COPY OF THE SHOW CAUSE NOTICE DATED 31.08.2017 ISSUED BY THE 2ND RESPONDENT IN OA. EXHIBIT P1(A12) TRUE COPY OF THE REPLY DATED 21.10.2017. EXHIBIT P1(A13) TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE JOINT EXCISE COMMISSIONER ON 16.10.2017. EXHIBIT P1(A14) TRUE COPY OF THIS CIRCULAR NO.1479/ADV.C2/2014/P&ARD DATED 25.09.2014. EXHIBIT P1(A15) TRUE COPY OF THE BIO-DATA OF THE APPLICANT

¶79

OP(KAT).No.533 & 538 OF 2019 11

¶80

TOGETHER WITH DETAILS OF CASES.

¶81

EXHIBIT P1(A16)	TRUE COPY OF THE LETTER OF APPRECIATION DATED 27.06.2016.
EXHIBIT P1(A17)	TRUE COPY OF THE REPRESENTATION DATED 18.11.2017 FILED BEFORE THE CONVENOR OF THE 5TH RESPONDENT.
EXHIBIT P1(A18)	TRUE COPY OF THE ORDER DATED 01.12.2017 IN O.A.(EKM) NO.2764/2014.
EXHIBIT P1(A19)	TRUE COPY OF THE NOTIFICATION DATED 06.12.2016.
EXHIBIT P1(A20)	TRUE COPY OF THE ORDER NO.XD3-29638/2017 DATED 13.12.2017.
EXHIBIT P1(A21)	TRUE COPY OF THE ORDER DATED 12.01.2018 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P1(A22)	TRUE COPY OF THE ORDER DATED 06.01.2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P1(A23)	TRUE COPY OF THE ORDER DATED 06.12.2017 IN CRL.M.C.NO.8026/2017.
EXHIBIT P2	TRUE COPY OF THE M.A.(EKM)NO.682/2018 IN OA (E) NO.307/2018 DATED 16.03.2018.
EXHIBIT P3	TRUE COPY OF THE ORDER DATED 19.03.2018.
EXHIBIT P4	A TRUE COPY OF THE ABOVE M.A.NO.1089/18.
EXHIBIT P4(A24)	TRUE COPY OF THE SELECT LIST FOR PROMOTION TO THE CADRE OF CIRCLE INSPECTOR, EXCISE.
EXHIBIT P4(A25)	TRUE COPY OF THE ORDER NO.XD3-29638/17 DATED 22.05.2018.
EXHIBIT P5	A TRUE COPY OF THE M.A. DATED 08.08.2018.
EXHIBIT P4 (A26)	TRUE COPY OF THE ORDER NO.XD3-29638/2017 DATED 01.08.2018 ISSUED BY THE 2ND RESPONDENT IN OA.
EXHIBIT P6	TRUE COPY OF THE ABOVE M.A.NO.1739/18 DATED 13.08.2018.
EXHIBIT P7	TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT IN OA.
EXHIBIT P8	TRUE COPY OF THE M.A.NO.2159/2018 DATED 17.10.2018.

¶82

OP(KAT).No.533 & 538 OF 2019 12

¶83

EXHIBIT	P8(A27)	TRUE COPY OF THE ORDER DATED 27.09.2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT	P8(A28)	TRUE COPY OF THE APPEAL DATED 13.10.2018 PREFERRED BY THE APPLICANT BEFORE THE 1ST RESPONDENT IN OA.
EXHIBIT	P9	TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT.
EXHIBIT	P10	A TRUE COPY OF THE MEMO DATED 20.09.2019.
EXHIBIT	P11	TRUE COPY OF THE M.A. DATED 30.09.2019 FILED BY THE APPLICANT.
EXHIBIT	P11(A28)	TRUE COPY OF THE G.O.(P) NO.619/2019/TD DATED 02.09.2019 ISSUED BY THE 1ST RESPONDENT IN OA.
EXHIBIT	P11(A29)	TRUE COPY OF THE FINAL REPORT SUBMITTED IN VC 2/2017.
EXHIBIT	P12	A TRUE COPY OF THE INTERIM ORDER DATED 30.09.2019 PASSED BY THE TRIBUNAL.
EXHIBIT	P13	A TRUE COPY OF THE ORDER DATED 28.11.2018 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT	P14	A TRUE COPY OF THE INTERIM ORDER DATED 06.12.2019.
EXHIBIT	P15	A TRUE COPY OF THE GOVERNMENT ORDER DATED 12.05.1992.

State of Kerala v. Asoka Kumar.S

Case brief

What is this about?

What did the court decide?

State of Kerala v. Asoka Kumar.S

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

The Union of India Vs P.Venu

P.Venu Vs Union of India

The General Manager Vs a.Shanmughan

A.S. Graceamma Vs State of Kerala

State of Kerala Vs Asoka Kumar.S

All India BSNL Casual Workers Union (Intuc), Vs the Chief General Manager