IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 WP(C).No. 10449 of 2008(R) ----------------------------------------- PETITIONER: -------------------- M. MURALI, DEPUTY CONSERVATOR OF FORESTS (RTD), 2/30 C, ASWATHI, EAST HILL, WEST HILL P.O.,CALICUT-673005. BY ADV. SRI.B.V.JOY SANKER RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, FOREST & WILDLIFE DEPARTMENT, THIRUVANANTHAPURAM. 2. CHIEF CONSERVATOR OF FORESTS (ADMINISTRATION), FOREST HEAD QUARTERS, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. P. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/08/2008, THE COURT ON 03/10/2008 DELIVERED THE FOLLOWING: Kss WPC.NO.10449/2008 R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SHOW CAUSE NOTICE DTD. 23/04/2002. EXT.P2: COPY OF THE REPLY DTD. 22/02/2003 SUBMITTED BY THE PETITIONER AGAINST EXT.P1 SHOW CAUSE NOTICE. EXT.P3: COPY OF THE ORDER FINALISING THE DISCIPLINARY ACTION AGAINST THE PETITIONER, DTD. 6/09/2005. EXT.P4: COPY OF THE ORDER DTD. 30/06/2007 OF THE FOREST AND WILD LIFE DEPARTMENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss P.N.Ravindran, J. ===================== W.P(C).No.10449 of 2008 ===================== Dated this the 3rd day of October, 2008. JUDGMENT The petitioner, who retired from service on 30.11.2005 as Deputy Conservator of Forests, has filed this Writ Petition challenging Ext.P4 order dated 30.6.2007 and praying for a writ in the nature of mandamus commanding the first respondent to disburse the retirement benefits due to him. The brief facts of the case are as follows: 2. While the petitioner was working as Assistant Conservator of Forests, Social Forest Division, Wayanad, a departmental jeep allotted to him was stolen. In respect of the said incident, a memo of charges dated 12.7.2001 was issued. Since the petitioner did not submit any reply, the Government issued Ext.P1 show cause notice dated 23.4.2002 informing him that the Government have decided to recover the value of the jeep from his salary and called upon him to show cause why the said decision should not be confirmed. On receipt of Ext.P1 show cause notice, the petitioner submitted Ext.P2 reply. Thereafter, by Ext.,P3 order passed on 6.9.2005, the Government ordered imposition of the punishment of barring of one increment without cumulative effect on the petitioner. Since the petitioner was about to retire from service, it was directed that the monetary value equivalent to the amount covered by one increment shall be recovered from his death cum retirement gratuity. Ext.P3 order WP(C) 10449/08 -: 2 :- was passed on 6.9.2005. However, the terminal benefits were not disbursed to him. While matters stood thus, the Government passed Ext.P4 order dated 30.6.2007, directing a formal enquiry against the petitioner in connection with the theft of jeep. By Ext.P4, an Enquiry Officer was also appointed. This Writ Petition was thereupon filed challenging Ext.P4 and seeking payment of retirement benefits. The petitioner contends that in view of Ext.P3 order dated 6.9.2005, which has become final and by which the punishment of barring of one increment without cumulative effect was imposed on him,the Government cannot order a fresh enquiry after his retirement. The learned counsel appearing for the petitioner relying on the decisions of this Court in Ali v. State - 1976 K.L.T. 29, Namboodiri v. State - 1982 K.L.T. 512, Thankappan Unnithan v. State of Kerala - 1992 (1) K.L.T 263 and Baby v. State of Kerala - 1999(1) K.L.T. 676, contends that the Government cannot after wiping off the earlier proceedings which led to Ext.P3, order a denovo enquiry. 3. I have heard Sri.B.V.Joy Sankar, the learned counsel appearing for the petitioner and Sri.P.Nandakumar, the learned Government Pleader appearing for the respondents. It has been the consistent view of this Court in the decisions referred to above that the disciplinary authority cannot wipe out the enquiry already conducted against an employee and direct a denovo enquiry to be held into the very same charges. It is evident from Ext.P3 that in connection with the theft of the WP(C) 10449/08 -: 3 :- jeep allotted to the petitioner, the punishment of barring of one increment without cumulative effect was imposed on the petitioner. Ext.P3 order was passed on 6.9.2005 while the petitioner was in service and he retired from service on 30.11.2005. Nearly 17 months thereafter, the Government issued Ext.P4 reopening the entire issue and directing a formal enquiry to be conducted against the petitioner. The disciplinary action which led to Ext.P3 was initiated by the State Government itself. By Ext.P3, a punishment was also imposed on the petitioner. Therefore for the very same set of charges, the petitioner cannot be proceeded against afresh. The Government have while passing Ext.P4 relied on Rule 34(ii) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, hereinafter referred to as the “Rules” for short. In my opinion, apart from the fact that the Government have no power to initiate fresh action against the petitioner, reliance placed by the Government on Rule 34(ii) of the Rules is also not tenable. Rule 34(ii) of the Rules applies only in a case where the Government undertakes a review of order passed by a Disciplinary Authority other than the Government. In the instant case, as the Disciplinary Authority was the Government, it could not have exercised the power of review under Rule 34(ii) of the Rules. On that ground also, Ext.P4 is not sustainable in law. 4. For the reasons stated above, I quash Ext.P4 and direct the respondents to disburse the retirement benefits payable to the petitioner, if the same has not been paid so far. The disbursement of WP(C) 10449/08 -: 4 :- terminal benefits shall be made within two months from the date on which the petitioner produces a certified copy of the judgment before the Principal Secretary to Government, Forests & Wildlife Department, Thiruvananthapuram. The Writ Petition is allowed as above. No costs. P.N.Ravindran, Judge. ess 29/9