Kerala High Court
Travancore Devaswom Board vs Rajasekharan Nair on 26 May, 2003
Equivalent citations: 2003(2)KLT882, (2004)ILLJ737KER
Author: K.K. Denesan
Bench: K.K. Denesan
JUDGMENT S. Sankarasubban, J.
1. Both these Writ Appeals are filed against the judgment of a learned single Judge in O.P. Nos. 27551 and 27889 of 2001. O.P. No. 27551 of 2001 was filed challenging Ext.P 19 order of the Travancore Devaswom Board directing the petitioner to remit the entire arrears of salary received by him, while he was out of service.
2. So far as the other Original Petition is concerned, it was filed by one P.C. Vijayakumar, who was suspended from service along with the petitioner in the other Original Petition. Here also he challenges the order passed by the Travancore Devaswom Board to recover the arrears of salary. Facts in both these cases are as follows.
3. Both the petitioners were working in the Travancore Devaswom Board. They were suspended pending disciplinary proceedings against them. The Enquiry Officer found that the allegations against the petitioners were proved. The Devaswom Board dismissed the petitioner in O.P. No. 27551 of 2001 while compulsory retired the petitioner in the other Original Petition. The above orders were challenged before this Court. This Court by common judgment found that the enquiry was vitiated for non-complianceof the principles of natural justice and in violation of the Rules of the Kerala Civil Services (Classification, Control & Appeal) Rules. Thus, the entire proceedings were quashed. Subsequently, the petitioners were taken back in service. It appears that subsequent to the reinstatement, the petitioners were paid the entire arrears of salary for the period they were out of duty. According to the Devaswom Board, it was a mistake on their part to have allowed the petitioners to recover the entire arrears of salary. Hence, notices were issued for recovering the arrears. It is this order that is challenged before this Court.
4. The learned single Judge after going through the facts and circumstances of the case, held that so far as the petitioners are concerned, there was a declaration that their termination was bad. It was held that the matter was disposed of on merits and hence, the petitioners were entitled to salary.
5. Learned counsel for the Devaswom Board submitted that when a dismissal order or compulsory retirement from service is set aside by Court, Rule 56A of the Kerala Service Rules (hereinafter referred to as 'the K.S.R. Rules') applies. Rule 56A of the K.S.R. Rules consists of Sub-rules 1, 2 and 3, which are as follows:
"56A(1). Where the dismissal, removal or compulsory retirement of an officer is set aside by a Court of Law and such officer is re-instated without holding any further inquiry the period of absence from duty shall be regularised and the officer shall be paid pay and allowances in accordance with the provisions of Sub-rule (2)or Sub-rule (3) subject to the directions if any, of the Court.
(2) Where the dismissal, removal or compulsory retirement of an officer is set aside by the Court solely on the ground of non-compliance with the requirements of Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the pay and allowances to be paid to the officer for the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of re-instatement shall be determined by the competent authority and the said period shall be regularised; in accordance with the provisions contained in Sub-rules (4), (5) and (7) of Rule 56.
(3) If the dismissal, removal or compulsory retirement of an officer is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be; and the date of re-instatement shall be treated as duly for all purposes and he shall be paid the full pay and allowances for the period to which he would have been entitled, had he not been dismissed, removed or compulsorily retired, or suspended prior to such dismissal, removal or compulsory retirement, as the case may be".
6. Question for consideration is as to whether it is Rule 56A(2) or Rule 56A(3) of the Rules that applies. Rule 56A(2) of the Rules says that where a dismissal order is set aside by the Court solely on the ground of non-compliances with the requirements of Clause (2) of Article 311 of the Constitution and where he is not exonerated on merits, the pay and allowances to be paid to the officer for the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be and the date of reinstatement shall be determined by the competent authority and the said period shall be regularised in accordance with the provisions contained in Sub-rules (4), (5) and (7) of Rule 56, while Rule 56A(3) of the K.S.R. says that if the dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period to which he would have been entitled. Thus, Rule 56A(3) of the K.S.R. applies in the facts of these cases. The question is whether it is Rule 56A(2) of the K.S.R. or Rule 56A(3) of the K.S.R. applies. If the punishment is set aside on the basis of violation of Clause (2) of Article 311 of the Constitution and where he is not exonerated on merits, then Rule 56A(2) of the K.S.R. that applies. A perusal of the order passed by this Court will clearly show that the Court did not go into the merits of the matter as to whether the allegations made against the petitioners were not proved. What the Court held was that there has been violation of the principles of natural justice in conducting theenquiry. It is on that basis that the order of punishment was set aside.
7. Learned Judge took the view that since the Court was exercising the power under Article 226 of the Constitution of India, the decision rendered by this Court can be said to be on merits. According to the learned Judge, under Article 226 of the Constitution of India, this Court is not expected to find out whether the evidence given by the Authorities is correct or not. The enquiry is only to find out whether the decision making process was correct or not. Thus the question to be considered is only whether there was compliance of the principles of natural justice. The Court never went into the question as to whether in the circumstances the findings arrived at is correct or not. It is true that under Article 226 of the Constitution of India, this Court is only concerned with the decision making process. If it is passed in violation of the principles of natural justice or against the rules, it cannot be said that the findings arrived at by the Authorities are wrong. But can we say because of that this Court has held that the findings given by the Authorities on the basis of the evidence are not correct? What this Court held was that there was violation of principles of natural justice and hence, the order passed by the Authorities was set aside. It is now found out by this Court that on the basis of the evidence, the findings given by the Authorities were not correct. There was no finding by this Court that the allegations against the respondents were not proved. On the other hand what this Court said was that because of the violation of the principles of natural justice, the order has become illegal. Such a decision cannot be said to be a decision on merits. Hence, according to us, the learned Judge was not correct in holding that merely because it was decided under Article 226 of the Constitution of India, it may be deemed as a finding on merits coming under Rule 56A(3) of the K.S.R.
8. Rules 56A(2) and (3) speaks of interference by Court. Interference may be by way of under Article 226 of the Constitution or by way of suit or any other remedy. What the Court has to look into is whether the order of punishment has been set aside on merits. If it is on merit, then the employee will be entitled to the entire arrears of salary or wages. If it is not on merits, then it has to be fixed in accordance with the provisions of Rule 56 of the K.S.R.
9. As already stated, the punishment was set aside in violation of the principles of natural justice and in violation of the provisions under the Kerala Civil Services (Classification, Control & Appeal) Rules. A perusal of the judgment will show that the Court did not go into the merits and held that the enquiry was conducted in such a speedy manner and there was no sufficient opportunity given to the employee to adduce evidence. Thus, it is on technical plea of violation of natural justice that the order has been set aside. We cannot say that it is on merits on the ground that there is finding that the charges levelled against the petitioners have not been proved. Further we don't find that now a declaration is given stating that the petitioners continue in service. There is a direction to reinstate the petitioners. This means that there is no declaration that the petitioner continues in service. In the above view of the matter, we are of the view that Sub-rule (2 ) of Rule 56A of the K.S.R. applies.
10. Learned counsel for the respondents submitted that the petitioners were reinstated in service and were given all arrears of salary with the knowledge of the Board and the Board cannot now turn round and say that the orderpassed is not correct. According to us, even if there was an order and if it is a mistake or against the provisions of law, the Administrative Authorities are entitled to review the order. The Devaswom has filed an affidavit stating that there is no order passed by the competent authority in exercise of the power under Rule 56A(2) or Rule 56A(3) of the K.S.R. The Devaswom Board is right in stating that the amount was paid illegally. A perusal of the case will show that no order has been passed by the Board till now under Rule 56A(2) or Rule 56A(3) of the K.S.R. What is issued is a notice directing the petitioners to return the arrears of pay. According to us, this is not correct. Notice should have been issued by the competent authority to the petitioners and action should be taken under Rule 56A(2) or Rule 56A(3) of the K.S.R. inviting objections from the officers. Such notice has hot been issued to the petitioners. In the above view of the matter, we don't agree with the reasoning of the learned single Judge. Hence, notice has to be issued under Rule 56A(2) of the K.S.R. as to how the amount should be adjusted.
11. In the above view of the matter, we direct the Devaswom Board to issue notice to the petitioners under Rule 56A(2) of the K.S.R. regarding the payment of arrears of salary. Such notice shall be issued within three weeks from today. The competent authority can decide as to how much amount has to be paid as arrears of salary. Till then, there can be no recovery of amount from the petitioners.
Writ Appeals are disposed of as above.