MEMORANDUM SUBMITTED BY ADVOCATE N KRISHNA PRASAD, T.C.29/97,GANGA GARDENS, MKKNAIR ROAD, PETTAH, THIRUVANANTHAPURAM TO THE HONOURABLE GOVERNOR OF
THIRU P. SATHASIVAM
At the outset, I pay my respect to you for having shown the benevolence to the people of this small state of Kerala by adorning their Gubernatorial office so far not adorned by any other person of stature higher to you, the former Hon’ble Chief Justice of India. I am proud that the seat of the titular head of my state is adorned by a glittering persona who is blessed with the right qualities to lead the republican governance of my state with excellence without the honorific of “His Excellency” which has been renounced by you, subtly flagging the noble and refined republican spirit within your DNA. In this context, I pray for your success in attaining further excellence in defending the Constitution and upholding the true spirit of our Constitution in a meaningful manner and disprove the prevalent public notion that the post of Governor in a state of our country is only a ceremonial one, with the judicial wisdom imbibed and cultivated by you in the course of delivering justice to the aggrieved citizens of our country during your previous stellar avatar as a leadingfigure of Indian judiciary for about two decades.
I am submitting this memorandum in the context of the reports on the filling up of a vacancy of an Administrative member of the Kerala Administrative Tribunal(hereinafter referred as KAT) and nomination of the name of Sri K Jose Cyriac, Fmr. Chief Secretary of Govt of Kerala by the Selection Committee and thereafter by the state cabinet This is in order to inform my apprehensions, and protest of many in legal profession,, state Government Employees and pensioners, on the selection process mechanically performed by this committee and state cabinet disregarding the direction of the Hon’ble Supreme Court of India in Union of India V R Gandhi (2010) that” when the existing jurisdiction of a Court (in this case High Court) is transferred to a Tribunal, its members should be persons of a rank, capacity and status as nearly as possible equal to the rank, status and capacity of the Court which was till then dealing with such matters” This judgement underscored the importance of having a good, able and impartial adjudicator, and said that even an officer with a lifetime of experience in administration may not have the above qualities”. It was also observed in this case that more than the specialist brain it is judicial wisdom that is important to become a member of a Tribunal. This nominated Ex IAS officer lacks sufficient judicial wisdom and capacity to hold the office of KAT in the light of the scandalous antecedents during his service in Government and also that he is disabled to act with fairness due to the violation of the principles of natural justice in his appointment and these reasons are convincingly narrated below for your appreciation.
(A) It is a fact that the above said Retd. IAS officer Sri K Jose Cyriac, of 1977 batch of Kerala cadre has held offices in the Govt of Kerala as Secretary (Animal Husbandry & Dairy Dept), Secretary (Tourism), Additional Chief (Finance)and also the highest office of the Chief Secretary of Kerala. It is also a fact that in almost all cases before the Hon’ble Kerala Administrative Tribunal the respondents will be the Chief secretary or the concerned secretary related to the cause of action in their representative capacity of Govt. The wrongs or illegalities challenged in the original applications (OAs) and also in the Transferred Applications (TAs) are mostly of the last couple of years. These are due to the incapacity of the above nominated officer Sri K Jose Cyriac and his colleague Secretaries in conducting the administration in a just and lawful manner. The cause of action related to many Original Applications and transferred Applications pending for disposal are mostly fathered by this nominated administrative member for this Tribunal. This appointment will be like entrusting Mr. Godse to preside the trial of
(B) Our country recognises the goal of rule of law, and the apex principle in the pyramid of principles for natural justice which prescribes that no one shall be a judge of his own cause (Nemo Judex in sua causa) and hence this nomination is against law and justice. In the case of this Ex IAS officer, he is the cause of a good number of causes of action against which the aggrieved employees of state Govt have filed Application before the Tribunal for remedies. The institution of Kerala Administrative Tribunal will terribly be ridiculed if this retired IAS officer is allowed to adjudicate on his own acts of wrongs and illegalities committed while he served in the Executive Government in top posts .This will be a travesty of justice and it will massively erode the credibility of this institution. It will also demolish the bedrock principles of natural justice .By this imprudent action our cherished ideals of rule of law and constitutionalism will be rendered a cruel joke
(C) . This nominated officer while in service was the darling and heartthrob of some politicians in power as he acted as a hatchet man to them to execute any dirty trick to further their illegitimate enterprises. It is known to the more than five lakh employees of kerala that it was this wily retired IAS officer who committed the misappropriation of an amount of Rs 427 crores honestly earmarked by the former chief minister of Kerala Sri AK Antony for the purpose of payment of salary for the 32 days of strike period in 2002, of state govt employees in compliance with the undertaking made by him in the Hon’ble High Court in this regard. This dishonest act of misappropriation of public fund was done on behalf the Sri Oomen Chandy, the then Chief minister who came to power in August 2004, ousting a man of high principles in Indian politics-Sri AK Antony. This power-politician from Kerala is believed to be the man behind the curtain who played a key role in the nomination of his henchman, Sri Jose Cyriac, as a member of this Tribunal. The most disturbing fact is that when this issue of misappropriation came before Kerala Administrative Tribunal, a forged counter affidavit was filed by an officer in Finance Department of Kerala impersonating as an authorised agent of the Comptroller& Auditor General of India, the main respondent in the case of misappropriation .This was done by this officer in compliance of the direction of this nominated IAS officer, then in service. Strangely, the present Chairman of this Tribunal treated this mega fraud as a very minor defect and directed the respondents to cure this defect. Emboldened by the kid-glove treatment of this Chairman the delinquent officer of Finance Department, filed a miscellaneous Application marking the signature of the present Chief Secretary with massive audacity and sense of impunity This aggravated transgression also is learnt to be committed with the blessings of the above said nominated member. It is a shame to the nation that this Retd.IAS officer who engineered back to back satanic miracles before the Hon,ble Tribunal to cover up his wrong doing of misappropriation of a huge amount due to the entire state government employees, has been nominated to a body created by central statute for the redressal of their grievances. It is an irony that the Chairman of this Tribunal who was subjected to insult and humiliation by these satanic miracles, was also part of the process of nomination of this officer This unscrupulous Ex.IAS officer is at present slithering around the seat of Administrative member of KAT with venomous intentions of obstructing the course of justice eligible to the govt employees which was his wont during his service before retirement, with voracious appetite for power , lucre and privileges of this seat of authority. This hyper sensational story of the master manipulations orchestrated by this nominee for the vacant seat of administrative member of KAT is narrated in the representation submited to your Excellency dated is appended herewith The revelation of the act of misappropriation was due to the excellent and exemplary piece of investigative journalism by Malayala Manorama, the most popular vernacular daily of kerala which was reported in its edition dated 23 rd March 2010.
(D) The present shockingly painful part of the affairs of the Administrative Tribunals of Kerala is that it has to suffer silently the humiliations and huge embarrassments inflicted upon it by the Finance Department of Kerala (which filed forged documents before this tribunal repeatedly) which provides budgetary provision financial allotment for the facilities and comforts of the members of the Tribunal. Even though the authorities of Govt committed criminal contempt in the case related misappropriation of huge public money, this Tribunal of Kerala tolerated it.This may be due to the fear of reducing the financial allotment by the former if this wrong-doing is taken to its logical conclusion.. Even the movement of the vehicle of the Chairman of this Tribunal, is dependent on allotment from Govt, It was to avoid this unenviable situation Supreme Court of India in Union of India V R.Gandhi directed that “The Administrative support for all Tribunals should be from Ministry of Law & Justice. Neither the Tribunals nor its membersshall seek or provided with facilities from the respective sponsoring or parent ministries or concerned Department”. Since this direction remains unheeded the present Chairman of KAT is suffering the insults and indignities copiously showered by the authorities of Govt-in this from a junior officer of Finance Department. Perhaps it may be due to pragmatic vision that the present Chairman of KAT also proposed/seconded the name of Sri K Jose Cyriac, who was Principal Secretary (Finance) to Govt of Kerala for many years, to fill the vacancy of a member of this Tribunal, to ensure adequate budgetary provision and smooth flow of allotment of money from Govt. for the day today functioning, even though at the cost of justice and fairplay. This action of the present Hon,ble Chairman of Kerala Administrative Tribunal justifies the following observations of the full Bench of the AP High Court in Sakinala Harinath V State of AP(1993(3)ALT471) emphasising the importance of service matter which affect the functioning of civil servants, who are an integral part of a sound Governmental system:
“.............service matters which involve testing the constitutionality of provisions or rules being matters of grave import, could not be left to be decided by statutorily created adjudicating bodies, which would be susceptible to executive influences and pressures.”
(E) This act of compromise of the authorities of KAT also vindicates the following observation in 1989-90) authored by Justice Malimath:
8.63 Functioning of Tribunals
Several Tribunals are functioning in this country. Not all of them however have inspired confidence in the public mind. The reasons are not far to seek. The foremost is the lack of competence,objectivity and judicial approach. The next is their constitution,the power and method of appointment of personnel thereto, the inferior status and casual method of working. The last is their actual composition: men of calibre are not willing to be appointed as presiding officers in view of the uncertainty of tenure, unsatisfactory conditions of service, executive subordination in matters of administration and political interference in judicial functioning. For these and other reasons, the quality of justice is stated to have suffered and the cause of expedition is not found to have served by the establishment of such Tribunals.
(F) It is a fact that while the expenditure of High Court is charged to the Consolidated fund of the state, but the Administrative Tribunals to which the jurisdiction, powers and authority of high courts service matters of government employees by the Administrative Tribunals Act 1985, are dependent upon the appropriate Government for meeting their expenses. It is feared by many that this dependence will jettison the independence of these Tribunals. Since the Administrative Tribunals are created to supplant the power, authority and jurisdiction of the High Courts, the pattern of meeting of its expenditure shall also be logically similar to the High Court’s It will be fair and proper if the expenditure of Tribunals created either under Article 323A or Article323B of our Constitution are met from the charged heads of account of the respective High Courts and allotments are made by the officer of these High Courts, who is the controlling officer of these heads of account, according to the requisition made by the authorities of these Tribunals. If the appropriate legislative procedures are taken up by the Union Government of India in this regard it will further enhance the honour of these Tribunals
(G) It is the opinion of retired senior officers of Kerala Government that the appointment of the nominated Ex IAS officer will further downgrade this Tribunal as another Department of Govt . His appointment will be terribly absurd like appointing a cow slaughterer to the post of a Pediatric surgeon on the ground that both of the jobs are related to animal flesh. This opinion is based on the fact that he very rarely did any public duty in his long official career in a judicial manner but acted always in an arbitrary fashion ,sometimes with scant regard for rules and procedures The most blatant unruly behavior was that as the leader of IAS officers during the year 2007 he masterminded the protests of 40 IAS officers in the Cliff House, the official residence the Chief Minister of Kerala against the Govt action of overlooking the seniority of Sri PJ Thomas,a1975 batch IAS officer, in view of palmolien case in which he was an accused and the then chief minister Sri VS Achuthanandan was the petitioner Though Sri Achuthanandan is usually stubborn and steadfast in his principles, he stooped and crawled in this occasion before the intimidatory tactics orchestrated by this nominated IAS officer.(courtesy The Hindu daily dated September 17,2007) It is a big chapter in the judicial history of our nation that Sri PJ Thomas had to bear the ignominy of being the first Chief Vigilance Commission(CVC)of India to lose his job after Supreme Court of India quashed his appointment as he was an accused in the Palmolien import case of Kerala
(H) Furthermore, there are many Audit paras of the period in which this nominated Ex IAS officer, headed the office of Secretary, Animal Husbandry, Tourism, Finance, and also the pivotal post of Chief Secretary of Kerala still pending settlement. It is learnt that his efforts to cover up the very serious irregularities while he headed the Tourism Department, in which he had personal involvement, has not so far been succeeded .It will scandalise KAT if this retired IAS officer is personally found involved in any of the observations in the innumerable number of Audit Paras of various annual reports of the Comptroller& Audit General of India. There is also a case pending in Court to recover a huge amount unlawfully drawn by this unscrupulous Ex IAS officer from state exchequer and if it is adjudicated against him while he holding office of a member of KAT, it will adversely impact the honour of this Tribunal.It is therefore prayed that the honour and credibility of this Tribunal may be safeguarded by rejecting the nomination of this retired officer of murky antecedents. The honourable body of the selection committee has nominated him as these facts were deliberately concealed by the authorities of Government.
(I) There is no dispute that the nominated Ex IAS officer Sri K Jose Cyriac is eligible to be considered for the vacant office of Administrative member of the Kerala Administrative Tribunal of Kerala as per Administrative Tribunal Act 1985 but unfortunately he is not having the crucial and critical qualities for this office of quasi judicial nature. Another fatalistic aspect is that his appointment will violate the core principles of natural justice. and it will fail the purpose for which this Tribunal is created as this retired officer is incompetent to act with impartiality, independence, fairness, judicial discipline and reasonableness which are essentially required for a member of an Administrative Tribunal, his appointment will fail the purpose for which this Tribunal is created The quasi judicial nature of this Tribunal will be obliterated by appointing this retired officer as he was in the muddy waters of arbitrariness and foulplays of bureaucracy of Kerala for many decades.Therefore it is humbly suggested that some eligible persons from outside the state of Kerala as per law, who are not even remotely related to any cause of action being adjudicated in this Tribunal , may be considered to fill the office of the Administrative member in KAT in accordance with the guidelines laid down by Supreme Court while delivering judgement in Union of India V R Gandhi 2010
In the light of the very pertinent reasons flagged out in the above paras, I pray to you, the republican leader of my state, to allow the following reliefs:
(i) reject the nomination of Sri. Jose Cyriac,the former Chief Secretary for the post of member of Administrative Tribunal of Kerala(KAT)
(ii) Ensure that the post of Administrative member of KAT is filled by considering competent officers from outside state of kerala who are not involved in any cause of actions of any case in KAT
(iii) recommend Union of India to take appropriate legislative procedures to provide funds for the functioning of the Tribunals from the charged heads of account of the state as in the case of High Courts in the manner suggested in para F above.
Dated the 28th day of September 2014
With faith and love
Advocate N Krishnaprasad