IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2702 of 2009()
1. A.GOPALAN, (FORMER L.D.CLERK,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR OF PANCHAYATS,
3. THE DEPUTY DIRECTOR OF PANCHAYATS,
4. THE SECRETARY, PANDANAD GRAMA
For Petitioner :SRI.M.V.BOSE
For Respondent : No Appearance
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :22/12/2009
O R D E R
C.R.
KURIAN JOSEPH & C.T. RAVIKUMAR, JJ.
---------------------------------------------
W.A. NO. 2702 OF 2009
---------------------------------------------
Dated this the 22nd day of December, 2009
JUDGMENT
Ravikumar, J.
The appellant/petitioner was a Lower Division Clerk under the
Mulakkuzha Panchayat. He filed this appeal aggrieved by the dismissal of
W.P.(C) No.32309 of 2009 whereby the learned Single Judge declined to
interfere with Exts.P7 and P9 orders passed by the Government. As per
the said orders, the request of the appellant/petitioner for compassionate
allowance under Rule 5 of Part III of the Kerala Service Rules (for short
“KSR) was declined by the Government. The relevant facts necessary
for the purpose of deciding this appeal are as follows:
2. While working as Lower Division Clerk under the Mulakkuzha
Panchayat, Crime No.4 of 1992 was registered against the appellant
alleging misappropriation of Panchayat funds collected as tax. Thereupon,
he was indicted under Section 13(2) read with Sections 13(1(c) and 13(1)
(d) of the Prevention of Corruption Act and Sections 409, 420, 465, 468,
W.A. NO. 2702/2009 2
471 and 477 A in C.C. No.3 of 1994 of the Indian Penal Code before the
Court of the Enquiry Commissioner and Special Judge,
Thiruvananthapuram. Earlier, pending the vigilance enquiry, the appellant
was placed under suspension. Later, he was convicted and sentenced to
undergo rigorous imprisonment for a period of one year and to pay a fine
of Rs.50,000/- and in default of payment of fine, to undergo rigorous
imprisonment for a further period of four months for the offences under
the Prevention of Corruption Act. He was also sentenced to undergo
simple imprisonment for a period of one year each for the offences under
Sections 409, 465, 468, 471 and 477 A I.P.C. He had unsuccessfully filed
Crl. Appeal No. 218 of 1996 before this Court. Initially, the sentence
imposed on him was suspended. In the meanwhile based on his
conviction in C.C. No.3 of 1994, he was removed from service as per
Ext.P2 order dated 5.7.1999. The said order of removal from service was
challenged before this Court in O.P. No.18684 of 1999 and as per order in
C.M.P. No. 30684 of 1999 therein Ext.P2 order was stayed. During the
pendency of the said Original Petition, Crl. Appeal No. 218 of 1996 filed
by him was dismissed by this Court. Consequently, O.P. No. 18684 of
1999 filed by him was also dismissed by this Court as per Ext.P4
judgment. Against the dismissal of the Crl. Appeal, the appellant/
petitioner had approached the Honourable Apex Court by filing SLP(Crl.)
W.A. NO. 2702/2009 3
No.5704 of 2004, but the same was also dismissed. Thereafter, he had
remitted the fine imposed on him and had undergone the imprisonment.
Subsequently, the appellant had filed a representation before the
Government requesting for compassionate allowance, as provided under
Rule 5 of Part III of the KSR. After considering his claim, it was rejected
as per Ext.P7. The appellant had attempted for a reconsideration of the
decision in Ext.P7 by filing Ext.P8 representation. However, that was also
dismissed by the Government as per Ext.P9. It was challenging the said
orders passed by the Government, viz. Exts.P7 and P9, that the Writ
Petition was filed. The learned Single Judge after considering the claims
and contentions of the petitioner found that the reasoning assigned by the
Government is not perverse or arbitrary warranting interference with
Exts.P7 and P9 and accordingly dismissed the Writ Petition. Hence, this
appeal.
3. The learned counsel for the appellant reiterated all the
contentions which were unsuccessfully urged before the learned Single
Judge. It was contended that the discretionary power vested with the
Government under Rule 5 of Part III of the KSR was exercised in an
arbitrary and perverse manner and, therefore, Exts.P7 and P9 are liable to
the set aside. Yet, another contention raised was that the view taken in the
W.A. NO. 2702/2009 4
impugned orders is opposed to the principles laid down by this Court in
Thankappan Nair v. State of Kerala, reported in 2001(3) K.L.T. 855.
4. For a proper and profitable consideration of the case, it is
relevant to refer to Rule 5 of Part III of KSR which in so far as it is
relevant reads thus:
“5. Misconduct or inefficiency:- (a) No pension
may be granted to an employee dismissed or
removed for misconduct, insolvency or
inefficiency, but to employees so dismissed or
removed, compassionate allowances may be
granted when they are deserving of special
consideration; provided that the allowances
granted to any employee shall not exceed two-
thirds of the pension which would have been
admissible to him if he had retired on the date of
dismissal or removal.”
(emphasis supplied)
A scanning of the above extracted provision would reveal that it confers
discretionary power on the authority competent to sanction compassionate
allowance to decide whether the concerned dismissed/removed employee
deserves special consideration or not. It is a settled position of law that
even when such discretion is vested with an authority competent or the
Government, it cannot be exercised in an arbitrary or perverse manner. Its
fair exercise lies in deciding the deserver according to the rules of reason
W.A. NO. 2702/2009 5
and justice. The salutory maxim “Discretio est discernere per legam quid
sit justum” (Discretion consists in knowing what is just in law) shall be
borne in mind while invoking that power. At any rate, no court will
accept or acknowledge the indiscriminate exercise of the said power
without due regard to the relevant factors.
5. In this case, the very charge against the appellant was that he
had misappropriated the Panchayat funds collected as tax. The Enquiry
Commissioner and Special Judge, Thiruvananthapuram convicted and
sentenced him to undergo rigorous imprisonment and to pay fine under
the provisions of the Prevention of Corruption Act besides convicting and
sentencing him to undergo simple imprisonment for the offences
punishable under the Indian Penal Code. As held by this Court in
Thankappan Nair’s Case (supra), the power conferred under Rule 5 of
Part III of the Kerala Service Rules is a power coupled with a duty to be
exercised fairly according to the rules of reason and justice on an
application made by an employee who was dismissed/removed from
service. In the light of the same, the first contention raised by the appellant
that the discretionary power under Rule 5 was exercised in an arbitrary and
perverse manner has to be looked into.
W.A. NO. 2702/2009 6
6. It is not the volume of the order that weighs while making such a
scrutiny, but the factor as to whether any relevant aspects were omitted to
be taken into account or whether irrelevant factors were taken into
account. In other words, the question to be considered is whether the
power under Rule 5 was exercised fairly while holding the appellant
undeserving for compassionate allowance. The appellant is not a person
removed from service pursuant to a disciplinary proceeding initiated for a
mere misconduct. He has committed misappropriation of Panchayat funds
collected as tax. It is the conviction and the sentence imposed on him by
the Court of Enquiry Commissioner and Special Judge,
Thiruvananthapuram for offences punishable under Section 13(2) read
with Sections 13(1)(c) and !3(1)(d) of the Prevention of Corruption Act
and under Sections 409, 465, 468, 471 and 477 of the Indian Penal Code
that culminated in his removal from service. When that fact was taken
into consideration for rejecting his request for compassionate allowance,
Ext.P7 cannot be considered as an order passed without proper application
of mind. When an authority vested with a discretionary power exercised
that power with due consideration of the facts in the light of the relevant
law, such a decision does not call for any interference. In short, a
scanning of Ext.P7 order would reveal that the discretion under Rule 5 of
Part III KSR has been exercised fairly and in accordance with the rules of
W.A. NO. 2702/2009 7
reason and justice. Since no ground was made out to reconsider the
decision in Ext.P7, the request of the appellant/petitioner on that behalf
was rejected as per Ext.P9 order. Therefore, Ext.P9 also cannot be said to
be smacked of arbitrariness or perversity. A bare reading of Rule 5 of
Part III of the Kerala Service Rules would reveal that compassionate
allowance cannot be granted for the mere asking. The entitlement for such
allowance depends on the satisfaction by the Government that the
concerned employee deserves special consideration and, therefore, eligible
to get the same. In this case, it is upon such consideration that the
appellant was found to be disentitled to get compassionate allowance.
7. The other contention raised by the appellant was that the view
taken by the first respondent in Exts.P7 and P9 are opposed to the
principles laid down by this Court in Thankappan Nair’s Case (supra).
We cannot comprehend the said contention. In fact, a scanning of the
impugned orders in the light of the said decision would reveal that they
are passed in tune with the said decision. The said decision cannot be
understood to have laid down a dictum that all Government servants
dismissed/removed from service for serious misconducts are entitled to
compassionate allowance. It was held therein that “the power under Rule
5 has to be exercised sparingly. Its indiscriminate use can cause great
W.A. NO. 2702/2009 8
harm to public interest. It is not to be doled out to every dismissed
employee.” It was also held that the power under Rule 5 of Part III KSR
is a power coupled with a duty to act when the circumstances warranting
the exercise of that power are shown to exist. In short, it is obvious from
Thankappan Nair’s Case (supra) that emphasis has been given to the
necessity of application of mind while exercising the power under the
said rule. There cannot be any doubt with respect to that position. In
order to decide whether a claim of compassionate allowance deserves
special consideration or not, as contemplated under the rule, application of
mind is essential with regard to the facts and circumstances obtained in
each case. In Thankappan Nair’s Case (supra), the appellant was a
police constable dismissed from service for accepting an illegal
gratification of Rs.43/-. In the case on hand, the appellant was found to
have misappropriated Panchayat funds collected as tax. In C.C. No.3 of
1994, the Enquiry Commissioner and Special Judge, Thiruvananthapuram
found the appellant/petitioner guilty for offences punishable under the
Prevention of Corruption Act and the Indian Penal Code and accordingly
convicted and sentenced him as mentioned earlier. He had
unsuccessfully taken up the matter before this Court and also before the
Honourable Apex Court. He had undergone rigorous imprisonment and
had also remitted the fine in terms of the trial court judgment. Therefore,
W.A. NO. 2702/2009 9
the said contention also cannot be countenanced. In the circumstances, the
judgment of the learned Single Judge calls for no appellate interference.
The appeal is, therefore, devoid of merits and it is accordingly
dismissed.
(KURIAN JOSEPH)
JUDGE
(C.T. RAVIKUMAR)
JUDGE
sp/
W.A. NO. 2702/2009 10
C.R.
KURIAN JOSEPH
&
C.T. RAVIKUMAR, JJ.
W.A. NO.2702/2009
JUDGMENT
22nd December, 2009
W.A. NO. 2702/2009 11