Allowed

State of Kerala, Represented by Additional Chief Secretary to Government v. P.M.Nowshad

Kerala HC2 Dec 2020OP(KAT)/190/2020

Case brief

AI extract

What is this about?

The High Court of Kerala allowed this writ petition against an Administrative Tribunal order. The Court held that where punishment was reduced after consultation with the Public Service Commission, consultation was required before finalizing the reduced penalty. The Court upheld the quashing of the penalty order and the direction to convene a promotion committee for the applicant, noting the initi

What did the court decide?

The order imposing barring of increments was set aside by the Tribunal and sustained by this Court; the direction to convene the DPC for promotion is upheld.

State of Kerala, Represented by Additional… — Labour and Industrial Disputes | Kerala HC (2020)

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE GOPINATH P.

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WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942

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OP(KAT).No.132 OF 2020

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AGAINST THE ORDER IN OA 376/2018 DATED 18-07-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONERS/RESPONDENTS 1 TO 3 IN O.A.:

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1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, TAXES (H) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

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2 THE DIRECTOR, STATE LOTTERY DEPARTMENT, DIRECTORATE OF STATE LOTTERIES, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN - 695 033.

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3 THE CONVENER, DEPARTMENTAL PROMOTION COMMITTEE (HIGHER), ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, TAXES (H) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

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BY SRI.B. VINOD SR.GOVERNMENT PLEADER

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RESPONDENTS/APPLICANT/ADDITIONAL 4TH RESPONDENT IN O.A.:

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1 P.M.NOWSHAD, S/O.K.MUHAMMED, AGED 53 YEARS, RESIDING AT PADINJARE UMMAPARAMBIL, NEERKUNNAM, VANDANAM P.O., ALAPPUZHA, PIN - 688 005, WORKING AS DEPUTY DIRECTOR, DIRECTORATE OF STATE

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LOTTERIES, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695 033.

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2 THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION,

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O.P.(KAT)No.132/2020 & con.case

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THULASI HILLS, PATTOM P.O., THIRUVANANTHAPURAM - 695004.

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R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1 BY ADV. SMT.N.SANTHA R1 BY ADV. SRI.V.VARGHESE R1 BY ADV. SRI.PETER JOSE CHRISTO R1 BY ADV. SRI.S.A.ANAND R1 BY ADV. SMT.K.N.REMYA R1 BY ADV. SMT.L.ANNAPOORNA R1 BY ADV. SHRI.VISHNU V.K. R1 BY ADV. KUM.ABHIRAMI K. UDAY

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OTHER PRESENT:

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SRI. B. VINOD- SR.G.P

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 02.12.2020, ALONG WITH OP(KAT).190/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(KAT)No.132/2020 & con.case

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE GOPINATH P.

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WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942

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OP(KAT).No.190 OF 2020

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AGAINST THE ORDER IN OA 481/2019 DATED 18-07-2019 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM

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PETITIONERS/RESPONDENTS 1 AND 2 IN O.A.:

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1 STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT TAXES(H)DEPARTMENT,GOVT.SECRETARIAT, THIRUVANANTHAPURAM,PIN-695001.

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2 THE DIRECTOR, STATE LOTTERY DEPARTMENT, DIRECTORATE OF STATE LOTTERIES, VIKAS BHAVAN.P.O,THIRUVANANTHAPURAM, PIN-695003.

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BY SRI. B. VINOD – SR.GOVERNMENT PLEADER

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RESPONDENT/APPLICANT/3RD RESPONDENT IN O.A.:

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1 P.M.NOWSHAD AGED 53 YEARS S/O.K.MUHAMMED,RESIDING AT PADINJARE UMMAPARAMBIL,NEERKUNNAM,VANDANAM.P.O, ALAPPUZHA,PIN-688005, WORKING AS DEPUTY DIRECTOR,DIRECTORATE OF STATE LOTTERIES,VIKAS BHAVAN,THIRUVANANTHAPURAM,PIN695003.

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2 THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, THULASI HILLS,PATTOM.P.O, THIRUVANANTHAPURAM-695004.

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O.P.(KAT)No.132/2020 & con.case

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 02.12.2020, ALONG WITH OP(KAT).132/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(KAT)No.132/2020 & con.case

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JUDGMENT

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[ OP(KAT)132/2020, OP(KAT)190/2020 ]

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Dated this the 2nd day of December 2020

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Shaffique,J

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These two original petitions have been filed by the State and its officers challenging common order dated 18.7.2019 in O.A.No.376/2018 and O.A.No.481/2019. In O.A.No.376/2018, the applicant sought for a direction to convene a DPC to include him in the Anneuxre-A select list for promotion to the post of Joint Director. In O.A.No.481/2019, the applicant challenged Annexure-A12 order dated 26.2.2019 by which the Government confirmed the order passed by the disciplinary authority barring two increments with cumulative effect.

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The Tribunal, after considering the respective contentions of the parties, issued the following directions:-

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“ (a) Annexure A12 order produced in O.A.481 of 2019 is set aside.

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The first respondent shall take a decision afresh on the review petition submitted by the applicant in the light of the findings above. Orders shall be passed in the matter within two months of receipt of a copy of this order.

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(b) After orders are passed on the review petition submitted by the applicant as directed above, the

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O.P.(KAT)No.132/2020 & con.case

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first respondent shall convene a meeting of the review DPC to consider the applicant's request for inclusion in the select list for promotion as Joint Director. Orders in the matter shall be passed within two months therefrom.”

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The learned Government Pleader, while impugning the aforesaid order passed by the Tribunal, contended that as far as the disciplinary action against the applicant is concerned, the Tribunal committed serious error and observed that the Public Service Commission (Consultation) Regulations, 1957 (hereinafter referred to as the Regulations) do not envisage consultation with the Commission for imposition of minor penalties such as 'censure'. The learned Government Pleader submits that originally major penalty of barring of two increments with cumulative effect was imposed on the delinquent officer after consultation with Kerala Public Service Commission in terms with the Regulations. A review came to be filed before the Government and on the basis of the recommendation of the Director of Lotteries, Government had decided to reduce the punishment to censure. However, upon consultation with the Public Service Commission, they did not agree with the proposal and therefore, the Government issued Annexure-A12 order. The learned Government Pleader submitted that when a major penalty is imposed on a delinquent officer in terms with clause 6(1)(c) of the Regulations, the Government is bound to consult with the Kerala Public Service

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O.P.(KAT)No.132/2020 & con.case

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Commission.

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On the other hand, the learned counsel appearing on behalf of the applicant with reference to clause 6(2)(e) of the Regulations would contend that since the Commission had already been consulted while imposing punishment of barring of two increments with cumulative effect, there is no question of again referring the matter to the Commission which alone the Tribunal had considered.

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Clause 6(1) (c) and Clause 6(2)(e) of the Regulations

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reads as under:-

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"6. (1) It shall not be necessary for the Commission to be consulted on any disciplinary matter affecting a person serving in connection with the affairs of the State, except-

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(a) xx xx xx xx xx (b) xx xx xx xx xx (c) where in an appeal or revision from [or review of] an order which has imposed any of the penalties referred to in sub-clause (a) Government propose to pass any order.

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(2) Nothing contained in clause (1) shall be deemed to make it necessary for the Government to consult the Commission in any case-

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(a) xx xx xx xx xx (b) xx xx xx xx xx (c) xx xx xx xx xx (d) xx xx xx xx xx (e). in which the Commission has, any previous stage given advice in regard to the order to be passed and no fresh question has thereafter arisen for determination.”

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On a close reading of the aforesaid Regulations, we are of the view

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that, in the present set of facts, the Tribunal committed error in observing that the Government need not have consulted with the

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O.P.(KAT)No.132/2020 & con.case

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KPSC when they intended to reduce the punishment of major penalty and for that reason, the Tribunal's order requires to be interfered.

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Now coming to the directions issued by the Tribunal, the Tribunal had set aside Annexure-A12 and also directed convening of the DPC to consider the applicant's request. As far as convening of DPC is concerned, we do not think it necessary for us to interfere with the said direction.

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With reference to Annexure-A12, the Government, after forming an opinion that censure will be proper punishment, consulted with KPSC and since the KPSC did not agree with the said proposal, the same punishment of barring of increment had been imposed. A perusal of the records would indicate that the Director of Lotteries had clearly come to a finding that no loss had been caused to the Lottery Department and there was no deliberate attempt on the part of the officer concerned in not opening the shops for a considerable period. Of course, in Annexure-A12, it is stated that there was a deliberate attempt on the part of the delinquent officer in not opening the shop, despite directions. But the fact remains, and as contended by the learned counsel for the applicant, the person who was to man the said outlet, was on leave for a considerably long time and therefore, the applicant could not have operated the outlet. When it was impossible for the applicant to open the shop, it is improper to

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O.P.(KAT)No.132/2020 & con.case

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arrive at a finding that the applicant had not complied with the directions issued by the superior authority. Therefore, we are of the view that the premise at which the disciplinary action was taken was unjustified, and censure would have been a proper punishment. Tribunal was therefore justified in interfering with Annexure-A12, though for different reasons as stated above.

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We therefore, sustain the order passed by the Tribunal,

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except to the extent of clarification made as mentioned above

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With the above observations, the original petitions (KAT) are

disposed of.

A.M.SHAFFIQUE

JUDGE

GOPINATH P.

JUDGE

acd

O.P.(KAT)No.132/2020 & con.case

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APPENDIX OF OP(KAT) 132/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE ALONG WITH EXHIBI	O.A.NO.376/2018 TS.
EXHIBIT P1(A1)	TRUE COPY OF THE O.A.NO.2469/2016	ORDER IN DATED 25/07/2017.
EXHIBIT P1(A2)	TRUE COPY OF THE NO.77/2018/TAXES	G.O.(RT) DATED 02/02/2018.
EXHIBIT P1(A3)	TRUE COPY OF THE 03/10/2016.	CHARGE MEMO DATED
EXHIBIT P1(A4)	TRUE COPY OF THE CHARGEMEMO.	REPLY TO THE
EXHIBIT P1(A5)	TRUE COPY OF THE 23/06/2017.	ENQUIRY REPORT DATED
EXHIBIT P1(A6)	TRUE COPY OF THE BEARING NO.677341 17/07/2017.	SHOW CAUSE NOTICE /H1/2016/TD DATED
EXHIBIT P1(A7)	TRUE COPY OF THE RESPONDENT DATED	REPLY SUBMITTED BY 03/08/2017.
EXHIBIT P1(A8)	TRUE COPY OF THE NO.36/2017/TD DAT	G.O.(P) ED 24/04/2017.
EXHIBIT P1(A9)	TRUE COPY OF THE DATED 04/04/2017.	MINUTES OF DPC(H)
EXHIBIT P1(A10)	TRUE COPY OF THE NO.597/2017/TD DA	G.O.(RT) TED 19/07/2017.
EXHIBIT P1(A11)	TRUE COPY OF THE THE SECOND PETITI NO.ESTT7/8748/201 24/08/2017.	REPORT SUBMITTED BY ONER BEARING 6/DSL DATED
EXHIBIT P1(A12)	TRUE COPY OF THE NO.SLTY/271/2018/ ALONG WITH PROVIS LISTS OF JOINT DI	ORDER E7 DATED 25/01/2018 IONAL SENIORITY RECTOR, DEPUTY
	DIRECTOR, DISTRIC ASSISTANT DISTRIC	T LOTTERY OFFICER, T LOTTERY

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O.P.(KAT)No.132/2020 & con.case

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		OFFICERS/SENIOR SUPERINTENDENTS OF STATE LOTTERIES AS ON 01/01/2018 APPENDED THERETO.
EXHIBIT	P1(A13)	TRUE COPY OF OBJECTION DATED 14/07/2017 SUBMITTED TO THE FIRST PETITIONER.
EXHIBIT	P1(A14)	TRUE COPY OF THE CIRCULAR NO.1479/ADV.C2/2014/P&ARD DATED 25/09/2014.
EXHIBIT	P2	TRUE COPY OF THE G.O.(RT) NO.564/2018/TD DATED 01/08/2018.
EXHIBIT	P3	TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST PETITIONER ON 11/07/2018 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.
EXHIBIT	P4	TRUE COPY OF THE INTERIM ORDER OF THE TRIBUNAL IN O.A.NO.376/2018 DATED 10/04/2019.
EXHIBIT	P5	TRUE COPY OF THE MISCELLANEOUS APPLICATION NO.798/19 FOR ACCEPTANCE OF ADDITIONAL DOCUMENT ON 01/04/21019 ALONG WITH EXHIBITS.
EXHIBIT	P5(A15)	TRUE COPY OF THE MINUTES DATE4D 26/02/2019 PRODUCED BY THE LEARNED GOVERNMENT PLEADER ON 01/03/2019.
EXHIBIT	P5(A16)	TRUE COPY OF THE ORDER REJECTING THE REVIEW PETITION OF THE RESPONDENT DATED 26/02/2019 BEARING G.O.(RT) NO.126/2019/TAXES.
EXHIBIT	P5(A17)	TRUE COPY OF THE SELECT LIST OF THE DPC HELD ON 21/12/2018, G.O.(P) NO.38/2012/TAXES DATED 08/03/2019.
EXHIBIT	P5(A18)	TRUE COPY OF THE DETAILED STATUTORY REPRESENTATION/OBJECTION TO THE DECISION OF THE DPC DATED 22/03/2019.
EXHIBIT	P5(A19)	TRUE COPY OF THE POSTAL RECEIPT FOR SENDING THE ADVANCE COPY DATED 27/03/2019.

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O.P.(KAT)No.132/2020 & con.case

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EXHIBIT P6 TRUE COPY OF THE MISCELLANEOUS APPLICATION NO.1045/19 FOR ACCEPTANCE OF ADDITIONAL DOCUMENT ON 20/05/2019 ALONG WITH EXHIBIT. EXHIBIT P6(A20) TRUE COPY OF THE MINUTES OF THE ADHOC DPC (HIGHER) HELD ON 06/05/2019. EXHIBIT P7 TRUE COPY OF THE MEMO DATED 03/07/2019 REGARDING THE GOVERNMENT ORDE4R G.O.(RT) NO.381/2019/TAXES DATED 31/05/2019. EXHIBIT P8 TRUE COPY OF THE IMPUGNED ORDER PASSED BY THE TRIBUNAL ON 18/07/2019 IN O.A.NO.376/2018. EXHIBIT P9 TRUE COPY OF THE G.O.(RT) NO.70/2020/TAXES DATED 25/01/2020. EXHIBIT P10 TRUE COPY OF THE G.O.(RT) NO.84/2020/TAXES DATED 30/01/2020.

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O.P.(KAT)No.132/2020 & con.case

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APPENDIX OF OP(KAT) 190/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE O.A.481/2019 ALONG WITH EXHIBITS
ANNEXURE A1	TRUE COPY OF THE G.O.(RT)NO.458/2016/TAXES DATED 23.06.2016
ANNEXURE A2	TRUE COPY OF THE CHARGE MEMO BEARING NO.677341/H1/16/TD DATED 03.10.2016 AND STATEMENT OF ALLEGATIONS
ANNEXURE A3	TRUE COPY OF THE DEFENSE STATEMENT DATED 19.10.2016 SUBMITTED BT THE RESPONDENT
ANNEXURE A4	TRUE COPY OF THE ENQUIRY REPORT DATED 23.06.2017.
ANNEXURE A5	TRUE COPY OF THE SHOW CAUSE NOTICE BEARING NO.677341/H1/2016/TD DATED 17.07.2017
ANNEXURE A6	TRUE COPY OF THE REPLY TO THE SHOW CAUSE NOTICE SUBMITTED BY THE RESPONDENT DATED 03.08.2017
ANNEXURE A7	TRUE COPY OF THE REPORT NO.ESTT 7/8748/2016/DSL DATED 24.08.2017
ANNEXURE A8	TRUE COPY OF THE G.O.(P)NO.68/2018/TAXES DATED 16.05.2018
ANNEXURE A9	TRUE COPY OF THE G.O.(RT)NO.564/2018/TD DATED 01.08.2018
ANNEXURE A10	TRUE COPY OF THE REVIEW PETITION DATED 16.08.2018 TO THE FIRST PETITIONER
ANNEXURE A11	TRUE COPY OF THE ORDER IN O.A.NO.1618/2018 DATED 21.08.2018
ANNEXURE A12	TRUE COPY OF THE G.O(RT)NO.126/2019/TAXES DATED 26.02.2019.
EXHIBIT P2	TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST PETITIONER ON 27.05.2019 ALONG WITH EXHIBIT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL

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O.P.(KAT)No.132/2020 & con.case

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ANNEXURE (R1(A))	TRUE COPY OF THE G.O(RT)NO.415/2018/TAXES DATED 13.06.2018
EXHIBIT P3	TRUE COPY OF THE ORDER OF THE ADMINISTRATIVE TRIBUNAL ON 18.07.2019 O.A.NO.481/2019
EXHIBIT P4	TRUE COPY OF THE MEMO REGARDING THE G.O. (RT)NO.70/2020/TAXES DATED 25.01.2020
EXHIBIT P5	TRUE COPY OF THE MEMO REGARDING THE G.O. (RT)NO.84/2020/TAXES DATED 30.01.2020.

State of Kerala, Represented by Additional Chief Secretary to Government v. P.M.Nowshad

Case brief

What is this about?

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State of Kerala, Represented by Additional Chief Secretary to Government v. P.M.Nowshad

Case brief

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