A GOPALAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant / petitioner was a Lower Division Clerk under the Mulakkuzha Panchayat. He filed this appeal aggrieved by the dismissal of WP (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 R.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 S.13(2) read with S.13(1(c) and 13(1) (d) of the Prevention of Corruption Act and S.409, S.420, S.465, S.468, S.471 and S.477 A in CC 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 S.409, S.465, S.468, S.471 and S.477A IPC. 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 CC No. 3 of 1994, he was removed from service as per Ext. P2 order dated 05/07/1999. The said order of removal from service was challenged before this Court in OP No.18684 of 1999 and as per order in CMP 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, OP 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.) 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 R.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 R.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 impugned orders is opposed to the principles laid down by this Court in Thankappan Nair v. State of Kerala reported in 2001 KHC 814 : 2001 (3) KLT 855 : ILR 2001 (3) Ker. 464.