Allowed

The Director, State Water Transport Directorate v. R.Shaji

Kerala HC22 Jan 2020OP(KAT)/219/2018

Case brief

AI extract

What is this about?

This judgment corrects a Kerala Administrative Tribunal order that set aside a service penalty. The High Court ruled that the penalty of barring an increment was not a major penalty requiring a formal enquiry under the applicable 1960 Rules. Relying on precedents and Article 227, the court set aside the Tribunal's decision and restored the penalty.

What did the court decide?

Set aside the Tribunal order and restore the penalty of barring an increment as imposed by the authority; original petition allowed.

The Director, State Water Transport Directorate Vs… — Service and Employment | 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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941

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OP(KAT).No.219 OF 2018(Z)

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TA 943/2012 DATED 07-06-2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONERS/RESPONDENT IN OA

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1 THE DIRECTOR, STATE WATER TRANSPORT DIRECTORATE ALAPPUZHA.

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2 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, WATER TRANSPORT DEPARTMENT, THIRUVANANTHAPURAM.

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BY GOVERNMENT PLEADER

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RESPONDENT/APPLICANT IN OA

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R.SHAJI DRIVER C.C.NO.2091, DOCK AND REPAIR SECTION, ALAPPUZHA, RESIDING AT KAYALIL PARAMBIL, NEHRU TROPHY WARD, AVOLOOKKUNNU, ALAPPUZHA - 688 006.

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BY ADV. V.A. MUHAMMED BY ADV. V. RAJASEKHARAN NAIR

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OTHER PRESENT:

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SR.GP SRI.P.N.SANTHOSH

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 22.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(KAT).219/2018

JUDGMENT

Dated : 22^nd January, 2020

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K.Vinod Chandran, J.

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1.The State is aggrieved by the order of the Tribunal which set aside the penalty of barring of one increment with cumulative effect. The setting aside of the penalty order was only on the ground that the penalty imposed is a major penalty under the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (Kerala). The learned Government Pleader points out that the said penalty has been included as a major penalty under the KCS (CCA) Rules only from 27.05.2002. The penalty was imposed on the applicant before the Tribunal as early as on 21.11.1997 as per Ext.A1. There was no requirement at that point of time, for a formal enquiry before imposing such penalty.

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OP(KAT).219/2018

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2.The learned Government Pleader relied on the

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decision of a Division Bench of this Court in Nandakumar v. Chief Conservator of Forests (2003 (3) KLT 1155). The learned counsel for the respondent/applicant relied on a decision of the Hon'ble Supreme Court reported in Kulwant Singh Gill v. State of Punjab (1991 Suppl (1) SCC 504) .

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3.The Division Bench had considered the judgment of the Hon'ble Supreme Court and held that the KCS (CCA) Rules in Kerala was different from the Punjab Civil Service (Punishment of Appeal Rules), 1970. Therein, a case arising from Punjab was dealt with and it was held that the penalty imposed as per the Rules was a major penalty which required a formal enquiry to be conducted. As far as the KCS (CCA) Rules of Kerala is concerned, at the time when the penalty was imposed, it was not a major penalty as per the Rules.

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OP(KAT).219/2018

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4.We notice that the ground was not raised before the Tribunal by the State; nor was the ground accepted by the Tribunal, raised in the memorandum of Original Application. In any event, this being a legal ground, we do not think that the State is precluded from raising it at this stage; when we are exercising supervisory jurisdiction under Article 227 of the Constitution of India. We necessarily have to look at the mistake committed by the Tribunal.

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5.We, hence, set aside the order passed by the Tribunal restoring the penalty as imposed by the authority and affirmed in appeal. We also respectfully follow the very same course adopted by the Division Bench in Nandakumar (supra) and do not look at the merits of the matter especially since we are not sitting in appeal over the order either on the misconduct alleged or on the penalty imposed which decision is within the exclusive premise of

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OP(KAT).219/2018

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the employer. The Original Petition allowed. No

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order on costs.

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Sd/-

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K.VINOD CHANDRAN Judge

V.G.ARUN

Mrcs/22.1.

OP(KAT).219/2018

APPENDIX

EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED 21.11.1997. EXHIBIT P2 TRUE COPY OF THE NO. 407/2000 PASSED BY THE 2ND RESPONDENT DATED 09.10.2000. EXHIBIT P3 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT NO. 308/2007 DATED 23.08.2007. EXHIBIT P4 TRUE COPY OF THE EXPLANATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 08.10.1997. EXHIBIT P4 (IN IA) TRUE COPY OF THE JUDGMENT IN OP 1945-2001. EXHIBIT P5 (IN IA) TRUE COPY OF THE APPEAL. ANNEXURE A1 TRUE COPY OF THE TRANSFER APPLICATION ALONG WITH EXHIBITS P1 TO P4 ANNEXURE A2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST PETITIONER DATED 21.7.2016. ANNEXURE A3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT DATED 18.11.2016 ANNEXURE A4 TRUE COPY OF THE ORDER DATED 7.6.2017 IN T.A.NO.943/2012. ANNEXURE A5 TRUE COPY OF THE PETITION TO ACCEPT DOCUMENTS IN T.A.NO.943/12. ANNEXURE R-1(A) TRUE COPY OF THE DECISION REPORTED IN 1991 KHC 1065 DATED 13.09.1990.

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TRUE COPY

The Director, State Water Transport Directorate v. R.Shaji

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The Director, State Water Transport Directorate v. R.Shaji

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