IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 WP(C).No. 27817 of 2007(J) ---------------------------------- PETITIONER: ---------------- SANKARANARAYANA PILLAI, S/O. KRISHNA PILLAI, KAVUMKALVEEDU, MANNADI KARA, KADAMPANADU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI. ANCHAL C. VIJAYAN RESPONDENTS: ------------------ 1. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, DEVASWOM BOARD OFFICE, NANDANCODE, THIRUVANANTHAPURAM. 2. THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN, SC, TDB FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27817/2007 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE REPORT OF THE ASSISTANT DEVASWOM COMMISSIONER, KOTTAYAM VIDE NO. 411 DATED 17.05.97 TO the 2ND RESPONDENT. EXT. P2 : COPY OF THE APPLICATION DATED 30.05.1997 SUBMITTED BY THE PETITIONER TO THE ASSISTANT DEVASWOM COMMISSIONER, KOTTAYAM. EXT. P3 : COPY OF the APPLICATION DATED 14.06.97 SUBMITTED BY THE PETITIONER TO the 2ND RESPONDENT. EXT. P4 : COPY OF THE ORDER OF SUSPENSION VIDE NO. ROC 8935/97/EST.1 DATED 20.06.97 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT. P5 : COPY OF the SHOW CAUSE NOTICE DATED 16.02.1999 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT. P6 : COPY OF THE ROC NO. 8935/97/EST. 1 DATED 27.02.99 ISSUED BY THE 1ST RESPONDENT. EXT. P7 : COPY OF THE PROCEEDINGS VIDE ROC NO. 8935/97/EST. 1 DATED 15.02.2007. EXT. P8 : COPY OF THE JUDGMENT DATED 06.10.2005 IN C.C. NO. 177/99 ON THE FILES OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS III, KOTTAYAM. EXT. P9 : COPY OF the PETITION DATED 21.03.2007 SUBMITTED BY THE PETITIONER BEFORE the 2ND RESPONDENT. 1ST RESPONDENT'S EXHIBITS: EXT. R1(a) : COPY OF THE ENQUIRY REPORT DATED 30.1.99. EXT. R1(b) : COPY OF the LETTER ISSUED BY THE DEVASWOM COMMISSIONER DATED 17.3.99. EXT. R1(c) : COPY OF THE SHOW CAUSE NOTICE ISSUED TO THE PETITIONER DATED 26.4.99. WP(C).No. 27817/2007 EXT. R1(d) : COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 5.11.99. EXT. R1(e) : COPY OF the SHOW CAUSE NOTICE DATED 8.7.99. EXT. R1(f) : COPY OF the REPLY STATEMENT SUBMITTED BY THE PETITIONER DATED 9.8.99. EXT. R1(g) : COPY OF THE NOTICE ISSUED TO THE PETITIONER DATED 14.9.99. EXT. R1(h) : COPY OF the REPLY SUBMITTED BY THE PETITIONER DATED 25.9.99. // True Copy // P.A. to Judge. smp V.GIRI, J ------------------- W.P.(C).27817/2007 -------------------- Dated this the 21st day of May, 2008 JUDGMENT Petitioner, while working as Sub Group Officer in Parippu Devaswom in Kottayam, was placed under suspension on the basis of a report filed by the Assistant Devaswom Commissioner to the effect that on a festival day, ie, on 8.5.1997, he absconded from office without permission and misappropriated an amount of Rs.40,000/-, which was to be utilized for payment of salary and dearness allowance to the employees. An enquiry was held and as per Ext.R1(a) report, the petitioner was found to be guilty of the charges levelled against him and a show cause notice was issued to the petitioner with a proposal of barring two increments. In a reply given by the petitioner, he practically admitted the lapse on his part in paying the salary and dearness allowance to the employees at the appropriate time. But he pleaded that it was due to an illness which he met with on the way back from the treasury that he could not pay the amount. Apparently, he was given an opportunity to deposit the W.P.(C).27817/2007 2 said amount. There is a conflict between the parties as to whether the petitioner actually brought the amount to deposit the same, but was not permitted to do so, which is the version given by the petitioner and the version of the Devaswom Board to the effect that despite the opportunity, petitioner did not deposit the amount. Therefore, an amount of Rs.71,693.64 was found to be payable by the petitioner. 2. It seems that apparently, in these circumstances, a second show cause notice, Ext.R1(e), was issued proposing to dismiss the petitioner from service. Ext.R1 (e) also proposed imposition of liability of Rs.74,443.64/-. Petitioner filed Ext.R1(f) reply dated 9.8.1999, in which he reiterated his willingness to pay the balance amount due from him and pleaded for mercy. 3. It seems that the petitioner ultimately retired from service on 31.12.1999 and thereafter, by Ext.P7 order, the proposal contained under Ext.R1(e) was confirmed W.P.(C).27817/2007 3 and an order was passed removing the petitioner from service with effect from the date of suspension. Ext.P7 order is dated 15.2.2007 and the same has been challenged in this writ petition. 4. The Board has filed a counter affidavit resisting the writ petition as such. It is inter alia pointed out that the writ petition is filed more than seven years after the passing of Ext.P7 order. It is further pointed out that the very premise on which the writ petition is filed namely that the petitioner was not afforded a notice or an opportunity of hearing, before the passing of Ext.P7 order, is patently wrong and it amounts to a deliberately false submission. It is further contended that the petitioner has practically admitted the lapse on his part and he only pleaded for mercy. Since the allegations were grave, the Board thought it fit to remove the petitioner from service. 5. I heard learned counsel for the petitioner Mr. W.P.(C).27817/2007 4 Anchal Vijayan and Mr.Nagaraj Narayanan, learned Standing Counsel for the Devaswom Board. 6. The contention of the petitioner that he was not afforded a notice or an opportunity of hearing before the passing of Ext.P7 order, does not seem to be correct. Ext.R1(e) which was responded to by Ext.R1(f) clearly belies it. 7. There is also subsistence in the contention taken up by Mr.Nagaraj Narayanan that there is latches and negligence on the part of the petitioner in as much as there was a delay on the part of the petitioner in challenging Ext.P7 order within a reasonable time. I would have normally accepted this contention except for the fact that I find that there is illegality in Ext.P7 order and it would not be justified for this Court to shut its eyes to the said infirmity as such. Apparently, petitioner was waiting for the completion of the proceedings before the Criminal Court which happened only after passing of W.P.(C).27817/2007 5 Ext.P8 judgment dated 6.10.2005. He seems to have approached the Board again, as evidenced by Ext.P9, citing his acquittal in the Criminal Court as a reason for getting his retirement benefits and arrears of salary. Since the petitioner is a retired person and also seems to be a senior citizen, I am inclined to consider the contention of the petitioner on merits. 8. By Ext.P7 order, petitioner has been removed from service. An amount of Rs.71,693.64/- is treated as the petitioner's liability as well. There does not seem to have any serious dispute on the part of the petitioner regarding his liability to pay the said amount as is evidenced by Ext.R1(e) and therefore, to the extent to which Ext.P7 order purports to treat the said amount as a liability of the petitioner, I do not find any reason to interfere with the same. Petitioner is liable to pay the amount of Rs.71,693.64/-. But in so far as Ext.P7 order purports to impose a punishment of dismissal from service, I am afraid, the order is unsustainable. W.P.(C).27817/2007 6 Admittedly, the petitioner retired from service on 31.12.1999. As held by the Full Bench in Xavier v. Kerala State Electricity Board (1979 KLT, 80), there cannot be an order removing the petitioner from service subsequent to his retirement from service as such. Of course, it was open to the Board to decline permission to the petitioner to retire from service. That was not done. Ext.P7 order to the extent of imposing a punishment of removing the petitioner from service is unsustainable. 9. Learned Standing Counsel for the Board submits that the effect of an interference of Ext.P7 order would be to make the Board liable to pay the petitioner the pension due to him and he further submits that in this context, this Court should take note of the fact that the petitioner had approached this Court challenging Ext.P7 only after a period of seven years. As per the rule adopted by the Supreme Court in Shiv Dass v. Union of India (2007 (9) SCC 274), this Court would be W.P.(C).27817/2007 7 justified in declaring that the petitioner would be entitled to draw pension only from the date of this judgment and not from the date of retirement as such. 10. Mr.Nagaraj Narayanan further submits that the petitioner should also be called upon to pay the interest for the amount treated as liability under Ext.P7 as he has still not paid the amount. Learned counsel for the petitioner Mr.Vijayan submits that larger amount is lying with the Devaswom Board by way of DCRG due to the petitioner and therefore, it may not be equitable to require the petitioner to pay the interest for the amount determined as liability under Ext.P7. 11. In my view, petitioner would be entitled to draw pension only with effect from the date of this judgment and since as a consequence of Ext.P7, petitioner would also be entitled to DCRG, it would be appropriate that the petitioner be required to pay the amount fixed as liability within a time frame, with a provision for payment W.P.(C).27817/2007 8 of interest on the said amount, if he does not pay it within the prescribed time. 12. In the result, writ petition is disposed of in the following terms:- (i). Ext.P7 order passed by the Board is quashed to the extent to which it imposes a punishment of removal from service on the petitioner. It is upheld in so far as it treats the petitioner as liable to pay the amount of Rs.71,693.64/-. (ii). It is declared that the petitioner would be entitled to pension only from the date of this judgment. (iii). The amount due to the petitioner by way of DCRG shall be computed within a period of two months from the date of receipt of a copy of this judgment. If the said amount is higher than the amount of Rs.71,693.64/-, then the difference shall be paid by the Devaswom Board to the W.P.(C).27817/2007 9 petitioner, within a period of three months from the date of receipt of a copy of this judgment. If the amount is lesser than Rs.71,693.64/-, the difference to make up the aforesaid amount shall be paid by the petitioner, within a period of one month from the date of intimation from the Devaswom Board in the manner aforementioned. V.GIRI, Judge mrcs