IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 OP.No. 15575 of 2000(D) -------------------------------- PETITIONER(S): ------------------------ P. RAMACHANDRAN, S/O. PADMANABHAN, AGED 60 YEARS, RESIDING IN KONNOKOTTU HOUSE, KOTTAMPALLI MURI, MADATHIL KARAZHMA.P.O., KOLLAM BY ADV. SMT.R.MEERADEVI SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) RESPONDENT(S): ------------------------- KERALA STATE FINANCIAL ENTERPRISES LTD., REGUSTERED OFFICE, BHADRATHA, P.B.NO. 510, MUSEUM ROAD, THRISSUR REPRESENTED BY ITS MANAGING DIRECTOR. BY SRI.A.M.SHAFFIQUE SRI.ANTONY DOMINIC SRI.E.K.NANDAKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 15575 of 2000(D) CMP NOS. 17953 OF 2000 & 25405 OF 2000 IN O.P. NO. 15575 OF 2000 DISMISSED. SD/- S.SIRI JAGAN, JUDGE 10.12.2008. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - A TRUE COPY OF THE MEMO DATED 02.08.1994 ISSUED BY THE BRANCH MANAGER OF THE RESPONDENT TO THE PETITIONER. EXT.P2 - A TRUE COPY OF THE REPLY DATED 05.08.1994 GIVEN BY THE PETITIONER TO EXHIBIT P1 MEMO. EXT.P3 - A TRUE COPY OF THE PETITIONER RECEIVED ANOTHER LETTER DATED 05.08.1994 ISSUED BY THE MANAGER OF THE RESPONDENT TO THE PETITIONER. EXT.P4 - A TRUE COPY OF THE LETTER DATED 28.12.1995 ISSUED BY THE INTERNAL AUDIT OFFICER OF THE RESPONDENT TO THE PETITIONER. EXT.P5 - A TRUE COPY OF THE MEMO DATED 17.7.1999 ISSUED BY THE MANAGING DIRECTOR OF THE RESPONDENT TO THE PETITIONER. EXT.P6 - A TRUE COPY OF THE REPLY DATED 3.8.1999 ISSUED BY THE PETITIONER THROUGH COUNSEL. EXT.P7 - A TRUE COPY OF THE JUDGMENT DATED 26.11.1999 IN O.P. NO. 27759 OF 1999-D EXT.P8 - A TRUE COPY OF THE PETITIONER SUBMITTED A DETAILED REPRESENTATION BEFORE THE RESPONDENT DATED 6.12.1999. EXT.P9 - A TRUE COPY OF THE COMMUNICATION NO. 36206 DATED 10.01.2000 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.P10 - A TRUE COPY OF THE REPRESENTATION DATED 17.2,2000 MADE BY THE PETITIONER TO THE RESPONDENT. / TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ================== O.P.No.15575 of 2000 ================== Dated this the 10th day of December, 2008. J U D G M E N T The petitioner was an employee of the 1st respondent company. It is a fully owned Government company. On allegation of dereliction of duty, Ext.P1 memo of charges dated 2.8.1994 was issued to the petitioner. The petitioner filed Ext.P2 reply to the same. Again another notice Ext.P3 was issued to the petitioner on the same subject matter. However, Exts.P1 and P3 had not been taken by the respondent to its logical conclusion in a disciplinary proceedings. The petitioner was actually examined as a witness in a parallel proceedings as evidence by Ext.P4. While so, the petitioner retired from service on 27.2.1999. Thereafter by Ext.P5 dated 17.7.1999, the petitioner was directed to show cause why certain amounts alleged to be the loss sustained by the respondent Management on account of the misconduct committed by the petitioner which is the same as in Exts.P1 and P2, should not be recovered from him. The petitioner filed O.P. No. 27759 of 1999, in which this court passed Ext.P7 judgment directing the petitioner to file a reply to O.P.No.15575 of 2000 - 2 - Ext.P5 show cause notice and directing the respondent to pass appropriate orders on the same. Subsequently, petitioner filed Ext.P8 reply to Ext.P5 show cause notice. Thereafter Ext.P9 order was passed by the respondent directing that the petitioner is liable to make good an amount of Rs.31,954/- alleged to be 50% of the loss sustained by the respondent on account of the misconduct committed by the petitioner. Ext.P9 order is under challenge before me. The contention of the petitioner is that the petitioner is not guilty of any misconduct causing loss to the respondent company. He further submits that no enquiry worth the name has been conducted in respect of the alleged misconduct against the petitioner culminating in an order imposing penalty and recovery of loss before his retirement without which no loss can be recovered form the petitioner. The petitioner therefore submits that impugned orders are liable to be quashed. 2. With the help of a counter affidavit, the counsel for the respondent stoutly opposes the contentions of the petitioner. According to him, as is evident from the exhibits produced in the original petition, the act constituting the misconduct is not denied by the petitioner, the respondent is entitled to recover O.P.No.15575 of 2000 - 3 - the loss sustained by the company on account of that misconduct, which only has been directed by Ext.P9 order. He further submits that having challenged Ext.P5 and sufferred Ext.P7 judgment the petitioner cannot now challenge the validity of Ext.P5 or the order passed pursuant to that in so far as that order has been passed pursuant to the judgment of this court. Regarding the contention as to whether the respondent could have passed the impugned order, after retirement of the petitioner, the counsel for the respondent would contend that Ext.P9 order is not an order in a disciplinary proceedings, but only an order seeking to recover certain amounts suffered as loss by the respondent on account of certain acts of the petitioner, for which the respondent is perfectly competent under law. 3. I have heard the rival contentions in detail. 4. The respondent has not produced any enquiry report before me pursuant to Exts.P1 and P3. Of course they refer to some report, but nothing is produced before me to show that disciplinary proceedings against the petitioner has culminated in the findings of guilt and fixation of liability on the petitioner till his retirement from service. It is settled law that the disciplinary proceedings can be continued against the employee by the O.P.No.15575 of 2000 - 4 - employer after retirement of the employee only if the service rules applicable to that employee provides for the same. In the counter affidavit there is no case that as per service rules applicable to the petitioner, disciplinary proceedings could have been continued against the petitioner after retirement. Further nothing has been brought on record to prove that an enquiry with notice and opportunity to defend to the petitioner has been given which culminated in an order fixing the liability on the petitioner and the quantum thereof, without which no amount can be recovered from the petitioner, that too after his retirement, an alleged loss caused by any misconduct committed by the petitioner. Before retirement no order of imposition of penalty has been issued to the petitioner, based on which alleged loss can be recovered from the petitioner. 5. I do no find any merit in the contention of the counsel for the respondent, that in view of Ext.P7 judgment the petitioner cannot now challenge the order passed as directed in that judgment wherein this court has not interfered with Ext.P5. I do not find any such sanction in Ext.P7 judgment. P7 judgment only to the effect that since Ext.P5 is only a show cause notice, the petitioner can file reply to the same and the respondent is to O.P.No.15575 of 2000 - 5 - pass appropriate orders in accordance with law. That does not mean that the proceedings initiated by the respondent has been approved by this court and therefore the order passed pursuant thereto cannot be challenged by the petitioner. Everything depends on the objections of the petitioner and the legality of the proceedings. While contesting Ext.P5 the petitioner is entitled to challenge the legality of the proceedings after his retirement, which he has. It is settled law that after retirement of the petitioner no disciplinary proceedings can be continued against him. That being so, without having been found guilty in a disciplinary proceedings for the alleged misconduct causing loss, before his retirement, no liability could have been fixed on the petitioner. In the above circumstances, Ext.P9 order is clearly beyond the competence of the employer namely the respondent herein. Accordingly the same is quashed. The original petition is allowed as above. S.SIRI JAGAN, JUDGE rhs