Kerala High Court
Unknown vs By Advs.Sri.R.Lakshmi Narayan on 28 June, 2018
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE A.M.BABU
FRIDAY, THE 29TH DAY OF JUNE 2018 / 8TH ASHADHA, 1940
OP(KAT).No. 238 of 2018
----------------------------
AGAINST THE ORDER IN OA 1075/2018 of KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM DATED 28-06-2018
PETITIONER(S)/APPLICANT IN O.A 1075/2018.
----------------------------------------------------
T.U.JOHN
S/O LATE. ULAHANNAN, AGED 56, RESIDING AT THAICKAL
PUTHANPURA HOUSE, K.R PURAM P.O, CHERTHALA,
MOB:NO-8547142417.
THAHSILDAR (LAND RECORDS), CHERTHALA (UNDER SUSPENSION)
BY ADVS.SRI.R.LAKSHMI NARAYAN
SMT.R.RANJINI
SRI.M.ASHOK KINI
RESPONDENT(S)/RESPONDENTS IN O.A:
--------------------------------------------
1. THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
LAND REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2. THE DISTRICT COLLECTOR,
ALAPPUZHA, COLLECTORATE, CIVIL STATION, ALAPPUZHA-680001.
3. THE SUB COLLECTOR,
OFFICE OF THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA-688001.
4. THE REVENUE DIVISIONAL OFFICER,
OFFICE OF THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA DISTRICT-688001.
5. THE LAND REVENUE COMMISSIONER,
COMMISSIONERATE OF LAND REVENUE, MUSEUM JUNCTION,
KANAKANAGAR, NANDANCODE, THIRUVANANTHAPURAM-695033.
6. VILLAGE OFFICER, MARARIKULAM NORTH VILLAGE,
MARARIKKULAM, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688533.
BY GOVERNMENT PLEADER SRI.ANTONY MUKKATH
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION
ON 29-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No. 238 of 2018 (Z)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 :THE TRUE COPY OF THE ORDER DATED 28.06.2018 IN O.A NO.1075/2018.
EXHIBIT P2 :THE TRUE COPY OF THE O.A NO.1075/2018 ALONG WITH ANNEXURES.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P.A.TO JUDGE
C.T. RAVIKUMAR
&
A.M.BABU, JJ.
==========================
O.P.(KAT) No.238 OF 2018
==========================
Dated this the 29th day of June, 2018
JUDGMENT
Ravikumar, J.
The challenge in this original petition is against the order dated 28.6.2018 passed by the Kerala Administrative Tribunal in O.A.No.1075 of 2018. The grievance of the petitioner is that by passing the said order, the Tribunal had virtually deferred the decision on the interim prayer sought by the petitioner who is due to retire from service on 30.6.2018. It is the contention of the petitioner that he commenced his service under the Land Revenue Department on 16.3.1989 and hitherto, had an unblemished service. At the fag end of his career, he was placed under suspension as per Annexure A1 order dated 21.6.2018 based on certain allegations, which according to the petitioner are absolutely untenable. The grievance of the petitioner is that the hollowness of the said allegations was not at all looked into by O.P.(KAT).238/2018 2 the Tribunal while declining to consider the prayer for interim relief. In such circumstances, according to the petitioner, the disinclination shown by the Tribunal to order for his reinstatement or to direct the respondents to permit him to resume duty, would lead to an unceremonious end of his career. It is in such circumstances that this original petition has been filed seeking to set aside Ext.P1 order passed by the Tribunal and to set aside Annexure A1 order.
2. We have heard the learned counsel for the petitioner and also the learned Government Pleader.
3. In the contextual situation, it is only appropriate to refer to the relief sought for in this original petition and also in the original application, by the petitioner. The following reliefs are sought for in this O.P.:-
i) Set aside Ext.P-1 order, by which the Kerala Administrative Tribunal, declined to interfere with Annexure A1 order in O.A.No.1075/2018, and grant the interim relief of stay of Annexure A1, sought for by the petitioner herein as applicant.
ii) Set aside Annexure A-1 order, produced by the O.P.(KAT).238/2018 3 petitioner herein in O.A.No.1075/2018, before the Kerala Administrative Tribunal, Thiruvananthapuram.
iii) Direct the respondents 1 to 3 to permit the petitioner to resume to his service as Tahsildar (Land Records) Cherthala, with immediate effect.
Ext.P2 which is the copy of the O.A would reveal that the petitioner had sought for the following reliefs:-
a. Set aside Annexure A-1 order.
b. Direct the respondent 1 to 3 to permit the
petitioner to resume to his service as
Tahsildar (Land Records) Cherthala, with
immediate effect.
c. Issue such other order or direction which this
Hon'ble Court may deem fit and proper in the
facts and circumstances of the case and also in the interest of justice.
4. Evidently, the O.A is still pending before the Tribunal. The nub of the contentions of the petitioner is that various documents produced along with original petition, if scanned, would reveal the absolute unsustainability of the allegations levelled against him. While appreciating the said contention, we are of the considered view that we should keep reminded of the jurisdiction vested with this O.P.(KAT).238/2018 4 Court in a matter like this. Evidently, after the constitution of the Kerala Administrative Tribunal, in view of the provisions under the Administrative Tribunals Act, 1985, in respect of service matters pertaining to the Government Departments fall within its purview, the original jurisdiction lie with the Administrative Tribunal. Needless to say that the scope of High Courts jurisdiction is settled by the Hon'ble Apex Court in the decision in L.Chandra Kumar v. Union of India [(1997) 3 SCC 261] and going by the said decision, this Court is having only the power of judicial review over the orders of the Tribunal. We are not holding that the power of judicial review is not available to this Court merely because an order passed by the Tribunal is an interim order.
5. In the case on hand, we do not find fault with the petitioner in rushing to this Court on being denied of a favourable interim order taking into account the fact that the petitioner is due to retire from service on 30.6.2018. True that a person served a Department for decades would feel and take it as a humiliation if he is to end his O.P.(KAT).238/2018 5 career in an unceremonious manner. But, when a person who was placed under suspension in contemplation of disciplinary proceedings based on a serious allegation, the Tribunal as also this Court would be loath to interfere with the same in the absence of compelling reasons and circumstances. Evidently, the petitioner was placed under suspension based on the allegation of action and omission in relation to reclamation of a puramboke thodu. True that, in this case, the contention is that even after issuing Annexure A2, no memo of charges was issued so far and therefore, taking into account the fact that he is due to retire on 30.6.2018, there would be little chance to complete and conclude disciplinary proceedings much less to issue a memo of charges. We are of the considered view that at this stage, we cannot delve into such issues for obvious reasons. Issuance of memo of charges cannot be said to be an impossibility and once it is issued, it could be proceeded with, in law, for the purpose of recovering loss, if any, sustained and also, it is not impermissible in law to extend the service of an employee for the purpose of O.P.(KAT).238/2018 6 completing and concluding the proceedings.
6. True that the grievance of the petitioner is that even after noting the fact that he is due to retire from service on 30.6.2018, the interim prayer of the petitioner was not at all considered and decided by the Tribunal, on merits. At the same breath, the petitioner contended that he was heard by the Tribunal on the issue and thereafter, the respondents were directed to produce the records. In fact, the impugned order would also virtually reveal the said position. The said factual submission made by the learned counsel for the petitioner and the learned Government Pleader and also the aforesaid position obtained from the impugned order would reveal that passing of an order, as required, without examining the entire records was found not feasible or expedient, by the Tribunal. Though the said view was not made specifically in words, the order to produce the report of the Sub Collector would make the position clear lest the Tribunal would not have ordered for the production of the said report and then the disinclination to pass an order would make the said O.P.(KAT).238/2018 7 position explicit. In this proceedings, apart from the documents produced along with the original petition, no material whatsoever is available before us. When that be so, without perusing the entire records, we will not be justified in passing an interim order for the reinstatement of the petitioner. That apart, taking into account the nature of the contentions, the reliefs sought for, the fact that the forum to decide the matter at the first instance is the Tribunal and also the fact that for considering whether the interim relief sought for by the petitioner is grantable or not this Court will have to make, at least, some observations or opinion and we are afraid, in such eventuality it may hamper the prospects one or other of the parties to this original petition, before the Tribunal. In this context, it is to be noted that the situation where an employee has to attain the age of superannuation while under suspension, is envisaged by the legislature and it has to be dealt with in terms of the provisions under Rule 56B of Part I, Kerala Service Rules.
7. The learned counsel for the petitioner submitted that this O.P.(KAT).238/2018 8 Court is having ample power to pass an order for reinstatement even in such circumstances and to buttress the said contention, the learned counsel relied on the decision of the Hon'ble Apex Court in Union of India and Anr. v. Ashok Kumar Aggarwal [(2013) 16 SCC 147]. The submission is that the circumstances under which an order of suspension could be interfered were elaborately considered by the Hon'ble Apex Court. According to the learned counsel for the petitioner, the case of the petitioner evidently falls within the purview of the said decision. That was a case where the respondent therein approached the Tribunal seeking quashment of the order of suspension. The order quashing the order of suspension was taken up by the respondent therein viz., Union of India, before the Apex Court after judicial review by the High Court concerned. Needless to say, the High Court had affirmed the order passed by the Tribunal. It is to be noted that the respondent therein had been under suspension for 14 years by the time the matter reached the Hon'ble Apex Court. Obviously, the Apex Court found that the earlier order passed in the O.P.(KAT).238/2018 9 matter was contravened by the appellant therein and add to it there was contravention of the relevant office memorandum and statutory rules. The very fact the Tribunal had quashed the order of suspension itself would reveal that the Tribunal as also the High Court had ample opportunity to consider the merits of the matter. But, in the case on hand, the original petition was moved as 'today motion', by the petitioner who would attain the age of superannuation on 30.6.2018. In such circumstances, we are of the view that the date on which petitioner would attain the age of superannuation by itself cannot be taken as a reason to order for reinstatement considering the nature of the allegation that led to his suspension. A perusal of the decision in Ashok Kumar Aggarwal's case itself would tend us to think that in a case where no conclusion could be arrived at without examining the entire records interference is not justified. Above all, in the decision in Supreme Court Bar Association and Ors. v. B.D.Kaushik and Ors. reported in [(2011) 13 SCC 774], the Hon'ble Apex Court held that interim relief which has the tendency to allow the final relief O.P.(KAT).238/2018 10 claimed in the proceedings should not be granted lightly. To put it briefly, we do not find any merit in this original petition. We may hasten to add that we shall not be understood to have held that there is no merit in the contention of the petitioner and its tenability, of course, is a matter to be decided later, by the Tribunal taking into account the relevant records and the rival contentions. Subject to the above observation, this original petition is dismissed.
Sd/-
C.T. RAVIKUMAR (JUDGE) Sd/-
A.M.BABU (JUDGE) spc/ O.P.(KAT).238/2018 11 C.T. RAVIKUMAR, J.
O.P.(KAT).238/2018 12 JUDGMENT September, 2010