IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 WP(C).No. 28790 of 2003(B) --------------------------------------- PETITIONER: ------------------- P.R.BHAKTHAVALSALAN NAIR, RETD.ASST.EXCUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.BOARD, PATTANAKAD, (RESIDING AT BHAKTHI', S.N.PURAM P.O., CHERTHALA). BY MR. K.R.B.KAIMAL, SENIOR ADVOCATE, ADV. MR.V.MADHUSUDHANAN. RESPONDENTS: ------------------------ 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), K.S.E.BOARD, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM. 3. THE CHIEF INTERNAL AUDITOR, K.S.E.BOARD, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM. 4. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, K.S.E.BOARD, CHERTHALA. R1 TO R4 BY MR. P.P. THAJUDEEN, S.C, KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.28790/2003-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. EB.4/1487/96-97/1165 DTD. 02/09/1998 ISSUED BY THE DY. CHIEF ENGINEER, ELECTRICAL CIRCLE, KSEB, ALAPPUZHA. EXT.P.2: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P. NO. 17600/1998 DTD. 18/10/2001. EXT.P.3: COPY OF THE ORDER NO. EBVS-4/15/96 DTD. 15/11/2001 ISSUED BY THE R.2. EXT.P.4: COPY OF THE SHOW CAUSE NOTICE NO. LAS.1/12076/98 DTD. 03/05/2003 ISSUED BY THE R.1. EXT.P.5: COPY OF THE REPLY DTD. 18/06/2003 SUBMITTED BY THE PETITIONER TO THE R.1. EXT.P.6: COPY OF THE ORDER NO. LAS.1/12076/98 DD. 28/08/2003 ISSUED BY THE R.1. EXT.P.7: COPY OF THE ORDER NO. PA.1/PPO.29202 DTD. 01/09/2003 ISSUED BY THE R.3. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC,J. --------------------- W.P.(C).No.28790 OF 2003 ------------------------ Dated this the 8th day of July, 2009. JUDGMENT Petitioner was an Assistant Engineer in the Kerala State Electricity Board. By order dated 25.6.1996 he was placed under suspension, pending disciplinary action. However, without prejudice to the continuance of the disciplinary action, he was reinstated in service, with effect from 6.8.1996. In the meantime memo of charges were issued with the following 3 charges. “1. While holding charge of Assistant Engineer, Electrical Section, Aroor you committed grave dereliction of duty and misconduct by furnishing bogus meter readings in respect of Consumer Code No.10147 Aroor (M/s.Kolathara Exporting Limited, Aroor) as on 7.1.1996. (2) You overlooked Consumer No.8689 Aroor in giving Service Connection on out of turn priority and thereby committed dereliction of duty and insubordination. WP(c).No.28790/09 2 (3) You executed capital work for giving service Connection to M/s. Lakshmy Marine Products by overlooking priority of M/s. Mecca Ice Industries and thereby committed misconduct and dereliction of duty.” 2. By Ext.P1 order dated 2.1.1998 punishment was imposed and accordingly, the petitioner was reverted as Sub Engineer. This punishment imposed by the Deputy Chief Engineer was challenged before this court in O.P.No.17600/98 and by Ext.P2 judgment, this court quashed Ext.P1 order of punishment, holding that the Deputy Chief Engineer was incompetent to impose the punishment. However liberty was given to the Chief Engineer, being the disciplinary authority, to pass fresh orders in the matter. Chief Engineer accordingly considered the matter afresh and issued Ext.P3 order, the relevant part of which reads as under. “In so far as departmental enquiry is concerned, among the three charges levelled against the accused, charge No.3 has not been proved. Charge No.2 alone has been proved beyond doubt as per the findings in the report of enquiry. In so far as Charge No.1, ie., bogus reading on 07.01.2996 the prosecution could not bring any witnesses or exhibit to prove the bogusness. The disciplinary authority established the Charge No.1 against the WP(c).No.28790/09 3 accused based on circumstantial evidences. The case against the accused has been examined further by the undersigned. It is felt that the punishment imposed by the disciplinary authority is not proportional to the gravity of the charges proved in the departmental enquiry. The action initiated by the disciplinary authority has been set aside by the judgment of the Hon'ble High Court in it's judgment dated 18.10.2001 and hence the departmental charges levelled against him have also become null and void in the light of the judgment of the Hon'ble Court. In the circumstances and in view of the fact that the accused had undergone mental agony during the pendency of the case in the court and that he is due to retire from the service of the board o 31.03.2002 AN, a lenient view is taken in the case of Shri. Bhakthavalsalan Nair on humanitarian grounds. I do not intend to take up the issue at this stage in view of the foregoing facts. Hence the proceedings against him stands dropped. The period spent by him under suspension is treated as duty for all purposes.” 3. It is stated that accordingly the petitioner continued in service and in the meanwhile he got promotion as Assistant Executive Engineer and retired from service on 31.3.2009. Subsequently, Ext.P4 was issued by the first respondent on 3.5.2003, calling upon the petitioner to show cause why WP(c).No.28790/09 4 Rs.79,856/-, loss sustained on account of the misconducts found to have been committed by the petitioner in the enquiry that was held against him. It was also proposed to recover the said liability from the petitioner's monthly pension at the rate of Rs.2000/-. Petitioner filed Ext.P5 explanation. By Ext.P6, the first respondent rejected the explanation and ordered recovery as proposed in Ext.P4. Accordingly, Ext.P7 order was issued to give effect to Ext.P6. It is the said order which is under challenge. 4. The main contention raised is that, the petitioner has retired from service on 31.3.2008 and that Ext.P4 was issued subsequent to the petitioner's retirement, in relation to a misconduct allegedly committed by the petitioner as early as on 7.1.1996. It is stated that, in terms of the provisions contained in Rule 3 Part-III KSR, although it is possible to continue disciplinary proceedings, the same shall not be with respect to any event, which took place more than 4 years before such institution, in terms of clause (b) of the said Rule. The counsel for the petitioner also placed reliance on the judgment rendered by this court in Kuttikrishnan V. State of WP(c).No.28790/09 5 Kerala (1999(2) KLT 313). 5. In my view, neither the rule nor the judgment relied on by the counsel can be any assistance to the petitioner to challenge Exts.P6 and P7. A reading of the rule shows that the Rule only prohibits institution of departmental proceedings against a retired employee, if the event, in relation to which the same is proposed to be instituted, has taken place more than 4 years before such institution. Therefore what is prohibited is institution of departmental proceedings and not recovery. In so far as this case is concerned, admittedly the incident which gave raise to the recovery proposed, occurred on 7.1.1996. In pursuance to the said incident and the misconduct committed therein, departmental proceedings were initiated against the petitioner at the time when he was in service. That culminated in Ext.P3, where, after finding the petitioner guilty of the misconduct in question, showing leniency, taking into account the mental agony suffered and also the impending retirement. Therefore, Rule 3 relied on by the counsel for the petitioner, prohibiting institution of departmental WP(c).No.28790/09 6 proceedings, does not in any manner come in the way of the respondent in ordering recovery, as has been done by Exts.P6 and P7. 6. In so far as the judgment relied on by the counsel for the petitioner, what is referred to is paragraph 2 of the said judgment. A reading of the judgment shows that the petitioner therein had retired on 30.6.1993 and the departmental proceedings were in relation to the misconduct which took place during the year 1985-86. Unlike this case,the departmental action had not concluded and if so the case dealt with in the aforesaid judgment is squarely covered by Rule 3. In my view, the said judgment stands on a different footing. Accordingly, the writ petition is liable to be dismissed and I do so. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.28790/09 7