IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WA.No. 724 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33502/2004 Dated 10/08/2007 .................... APPELLANT(S): -------------- 1. KERALA STATE ELECTRICITY BOARD (KSEB IN SHORT), REP. BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER(H R M), KERALA STATE ELECTRICITY BOARD, VYDYUTHIY BHAVANA, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB RESPONDENT(S): --------------- 1. D.JAYACHANDRAN, SENIOR SUPERINTENDENT (RTD),FORMER STORE KEEPER UNDER DAM DIVISION NO.III,IDUKKI, RESIDING AT C2-4/656, SREEVILASAM LANE, AMBALAMUKKU, KAWDIAR, THIRUVANANTHAPURAM. (DIED) ADDL.RESPONDENTS IMPLEADED :- 2. P.SANTHAKUMAR, W/O.LATE D.JAYACHANDRAN, PRASADAM, KPA 124-C, GREEN VALLEY, KARAKULAM P.O., THIRUVANANTHAPURAM. 3. CHIPPY, D/O.LATE D.JAYACHANDRAN, ALLAMIN QUARTERS, KOUSALYA NAGAR, NEAR GOVERNMENT PRESS, PODI KAINDU, KANNUR. 4. PINKY, D/O.LATE D.JAYACHANDRAN, TRA - 147, REVATHY, MEDAYIL, THEVALLY, KOLLAM. (IMPLEADED AS PER ORDER DT. 3.6.2008 IN I.A.466/08) ADV.SRI.K.P.SATHEESAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14.01.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------- W.A. No.724 of 2008 ---------------------------------------------- Dated 14th January, 2010. J U D G M E N T Balakrishnan Nair, J. The respondents in the writ petition are the appellants. The writ petitioner is the respondent. 2. The brief facts of the case are the following: The respondent was an employee of the Kerala State Electricity Board ('KSEB', for short). He joined service as a Junior Assistant on 30.3.1970, and retired from service as a Senior Superintendent, on 29.2.2000. He was put in charge of the Store at the Dam Division-III, Idukki, from 1.8.1980 to 26.10.1982. Thereafter, he was transferred to the Regional Store Division, Kundara. Later, the respondent was suspended from service on 29.2.1985, in contemplation of disciplinary proceedings. The allegation against him was that he misappropriated store materials on a large scale, which resulted in a loss of Rs.2,46,853.95 to the KSEB. The said liability was fixed on 4.2.1986 by the Executive Engineer, Dam Division No.III, Vazhathoppu, Idukki. Thereafter, recovery was being made from the salary of the respondent till the date of his retirement on 29.2.2000. After his retirement, he was served with WA NO.724/08 2 Ext.P4 show cause notice dated 22.6.2000, proposing to recover an amount of Rs.1,85,790.60 from him, after giving credit to the recovery already made from his salary. The respondent submitted his reply on 7.7.2000. After considering his reply, the Chief Engineer (Human Resource Management) of the KSEB passed Ext.P5 order on 29.11.2000, ordering to recover Rs.1,85,790.60 from him. The respondent challenged Ext.P5 decision, by moving the Lok Ayukta. The Lok Ayukta passed Ext.P6 order, directing fixation of the respondent's liability, after notice to him. The said direction was issued based on the finding that the liability was not finally fixed, after notice to the respondent. What was acted upon was only a provisional fixation of liability made in 1986. Pursuant to the order of the Lok Ayukta, a fresh show cause notice was issued to the respondent, on 6.11.2002, as per Ext.P7. After considering his explanation to the said notice, a fresh order, Ext.P9 was passed. The respondent challenged that order before the Appellate Authority. The Appellate Authority allowed that appeal by Ext.P11 order, on finding that Ext.P4 show cause notice as well as Ext.P9 final order were not in tune with Ext.P6 order of the Lok Ayukta. By Ext.P11 WA NO.724/08 3 order dated 12.2.2004, the Appellate Authority directed the original authority to issue a fresh show cause notice regarding the fixation of liability, and thereafter, to finalise the liability in accordance with law. Pursuant to the said appellate order, a fresh notice dated 18.8.2004 was issued to the respondent. The respondent submitted his reply, on 8.10.2004. Thereafter, by Ext.P13, the liability of the respondent was finally fixed as Rs.1,77,058.95. Challenging Ext.P13, the writ petition was filed. 3. The appellants, who were the respondents in the writ petition, filed a counter affidavit, supporting the impugned order. Though, several contentions were raised in the writ petition, the main point that was canvassed before the learned Single Judge was regarding the time limit contained in Note 3 under Rule 3 Part III Kerala Service Rules ('KSR' for short), which says that the liability against an employee shall be fixed and intimated to him, within three years of his retirement. In this case, the respondent retired on 29.2.2000. So, the liability should have been fixed, at least by 28.2.2003. Therefore, the learned Single Judge quashed Ext.P13, and directed release of the DCRG. 4. We heard the learned counsel on both sides. The WA NO.724/08 4 appellants submitted that the liability as per Ext.P9 was fixed within the three years' period, mentioned in Note 3. But, the Appellate Authority set aside Ext.P9, and remitted the matter to the original authority, for fresh determination in accordance with law. In obedience to that, the liability was fixed afresh. Therefore, the time limit mentioned in Note 3, has no application to the facts of this case, it was submitted. 5. We heard the learned counsel, who appeared for the respondent. The learned counsel supported the judgment of the learned Single Judge. Note 3 under Rule 3, Part III KSR mentioned above, reads as follows : “The liabilities of an employee should be quantified either before or after retirement and intimated to him before retirement if possible or after retirement within a period of three years on becoming pensioner. The liabilities of a pensioner should be quantified and intimated to him.” In this case, we notice that the liability was fixed as per Ext.P13, pursuant to the appellate order, Ext.P11. It was an order passed in the appeal filed by the respondent. So, the respondent was bound by that order. Since he has chosen, not to challenge Ext.P11, on the ground that the direction therein was illegal, because of the expiry of the time limit mentioned in Note 3, he WA NO.724/08 5 cannot turn round thereafter, and challenge the consequential order passed, Ext.P13. In that view of the matter, the judgment under appeal, is liable to be reversed. The learned counsel for the respondent tried to support the judgment on other grounds also. It was submitted that the fixation of the liability itself was untenable, as the finding of shortage of materials, was not properly made. We think that the said contention falls within the realm of facts, and this court, under Article 226 of the Constitution of India, cannot disturb the findings of fact, regarding the liability. The learned Single Judge interfered with the impugned order, only on the technical ground that the fixation of liability was made, after the period of three years, mentioned in Note 3 Rule 3 Part III, KSR. We have already found that the said view is untenable. In the result, the Writ Appeal is allowed. The judgment under appeal is reversed and the writ petition is dismissed. K.BALAKRISHNAN NAIR, JUDGE. C.T.RAVIKUMAR, JUDGE. tgs K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------- W.A. No.724 of 2008 ---------------------------------------------- J U D G M E N T Dated 14th January, 2010.