Research › Browse › Judgment

Kerala High Court · body

1973 DIGILAW 72 (KER)

K. M. RAMACHANDRAN v. STATE OF KERALA

1973-02-28

P.NARAYANA PILLAI

body1973
Judgment :- 1. When the petitioner was working as a lower division clerk in the District Hospital at Palghat internal audit revealed serious irregularities in respect of the collection and accounting of Hospital charges. It was seen from 185 diet sheets of patients that the petitioner had collected an amount of Rs. 1623.75 and that be had not accounted for the same. Then charge was framed against him for taking disciplinary action under the Kerala Civil Services (Classification, Control and Appeal) R.1960, hereinafter referred to as the Rules, and a regular inquiry was conducted in which he was found guilty. The Director of Health Services, the second respondent, by Ext. P6-order dated 19 71967 punished him by stopping his increments for five years with cumulative effect and by ordering recovery of Rs. 792/-from his pay, On 20-8-1968 the Government sent Ext. P-7 notice to him under R.34 of the Rules to show cause why the penalty should not be enhanced and he be removed from service. He submitted his explanation. On 2-2-1970 by Ext. P8-order the Government removed him from service. It is that order that is sought to be quashed here, 2. All appellate authorities under the Rules have got the power of review also under R.37. The appellate authority in some cases is not the Government. In such cases Government has independent power of review under R.34. In respect of Ext. P-6 order Government is the appellate authority under R.34. Therefore in respect of Ext. P6-order the Government can exercise the power of review either under R.37 or under R.34. 3. The argument of the counsel for the petitioner is that when the Government could review Ext. P6-order both under R.34 and 37, R.37 being particular, it should have acted only under that rule and not under R.34 and that as R.37 prescribed a period of one year for initiating review proceedings taken up suo mote and Ext P-7 notice being more than one year after Ext. P-6 order it was clearly barred. Both R.34 and 37 deal with appealable orders passed by subordinate authorities. While there is a period of limitation prescribed in R.37 for the exercise of power under it, there is no such limitation in R.34. P-6 order it was clearly barred. Both R.34 and 37 deal with appealable orders passed by subordinate authorities. While there is a period of limitation prescribed in R.37 for the exercise of power under it, there is no such limitation in R.34. But from the mere fact that a period of limitation is prescribed in R.37 for the exercise of the power under it, it cannot be taken that that Rale is particular and R.34 which prescribes no period of limitation is general. There is nothing in R.34 and 37 to show that while R.34 is general R.37 is particular. R.34 begins by saying: "Notwithstanding anything contained in these rules" That shows that R.37 has to be excluded from consideration in applying R.34 and that Government can exercise the power of review under R.34 independently of the power under and untrammelled by the restrictions in R.37. 4. It was then submitted by counsel appearing for the petitioner that even though there was no period of limitation prescribed in R.34 it was only proper to read in that Rule a provision of limitation of one year for the Government exercising the power of review and he relied upon the decision of the Supreme Court in State of Gujarat v. Patel Raghava Natha & Ors. (AIR.1969(1) SCWR.1106) in support of his position. The facts of that case were peculiar. It was the provision in S.211 of the Bombay Land Revenue Code that arose for consideration in that case. The appellant in that case, who had acquired agricultural lands applied to the Collector under S 65 of that Act for permission to construct buildings there. Under that Section if after the filing of the application no reply was received from the Collector for three months the applicant could proceed on the assumption that the permission applied for had been granted. In the case before the Supreme Court the Collector actually passed an order granting permission but it was set aside in revision by the Commissioner under S.211 of the Act. The proceedings of the Commissioner were quashed by the Gujarat High Court. It was the correctness of that that was considered by the Supreme Court. In the case before the Supreme Court the Collector actually passed an order granting permission but it was set aside in revision by the Commissioner under S.211 of the Act. The proceedings of the Commissioner were quashed by the Gujarat High Court. It was the correctness of that that was considered by the Supreme Court. The Supreme Court upheld the decision of the High Court and stated that the Commissioner's action in setting aside the 0.6f the Collector was not justified and that it was done after the lapse of a year after the passing of the Collector's order. There were reasons for so holding in that case. The permission sought for was for construction of buildings. The appellant had to proceed with the construction of the buildings expeditiously. It was because of the importance of the time involved in such matters that it was provided even in S.65 that if within three months the Collector did not pass an order the applicant could proceed on the assumption that permission bad been granted. It was in such circumstances that the Supreme Court stated that if the Commissioner acted in exercise of the power under S.211 he had to do so within a reasonable time and that reasonable time in that case could be taken to be that mentioned in S.65. That decision has no application to the facts of the present case. To accept the argument of the petitioner's counsel that the period of limitation mentioned in R.37 may be read into R.34 also would be to read into R.34 something which is not there and that is unjustified. 5. There is absolutely no valid ground for interference with Ext. P-8 order. This Original Petition is hence dismissed with costs. A. N. K. Dismissed.