IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 WA.No. 1225 of 2008() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.24311/2007 Dated 06/12/2007 .................... APPELLANT/RESPONDENT IN WPC ------------------------------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. DIRECTOR OF EMPLOYMENT AND TRAINING, DIRECTORATE OF EMPLOYMENT AND TRAINING, THYCAUD, THIRUVANANTHAPURAM. 3. ACCOUNTS AND AUDITOTR GENERAL, KERALA THIRUVANANTHAPURAM BY GOVERNMENT PLEADER RESPONDENTS/ PETITIONER IN THE WPC -------------------------------------------------------------- S.SUDHARSANAN,, S/O.SIVARAMAN , RETD., SPECIAL OFFICER,/ADDL.DIRECTOR, STATE INSTITUTE FOR STAFF TRAINING KAZHAKUTTOM, THIRUVANANTHAPURAM, RESIDING AT “DEEPAM”, TC.17/871,CNRA 125, POOJAPPURA PO., THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== W.A.No.1225 of 2008 ===================== Dated this the 24th day of June, 2008. JUDGMENT Ravindran,J. The respondents in W.P.(C)No.24311 of 2007 are the appellants in this Writ Appeal. They canvass the correctness of the decision of the learned Single Judge. The brief facts of the case are as follows: 2. The writ petitioner entered service as Lecturer in Government Engineering College, Thiruvananthapuram on 17.5.1974. He joined the Department of Industrial Training on 11.2.1981. He was promoted as Deputy Director with effect from 3.9.1984 and as Joint Director with effect from 1.8.1988. He was promoted as Additional Director on 27.2.1989 and was reverted to the post of Joint Director on 4.6.1990. While the writ petitioner was thus working as Joint Director, he was promoted as Additional Director of Training and posted as Project Co- ordinator of a World Bank Project as per Ext.P3 order dated WA 1225/08 -: 2 :- 5.3.1993. He continued as Project Co-ordinator till the World Bank Scheme came to an end on 31.12.1998. The petitioner retired from service as Additional Director on attaining the age of superannuation on 31.5.2007. 3. While the writ petitioner was in service as Project Co- ordinator of the World Bank Scheme, Ext.P2 memo of charges dated 22.12.1995 was served on him alleging irregularities in the purchase of equipment for various I.T.Is. under the World Bank Project. The allegations in Ext.P2 relate to the period 1988-89 when the writ petitioner was a Joint Director. On receipt of Ext.P2, the writ petitioner submitted Ext.P4 reply contending inter alia that he was not associated with the World Bank Project till he joined as Project Co-ordinator on 10.3.1993 and that during the period 1988-89 he was not the Project Co-ordinator. It appears, no further steps were taken pursuant to Ext.P2 memo of charges. On 7.2.2007, nearly 12 years after Ext.P2 memo of charges was issued, the government issued and served on the writ petitioner Ext.P5 memo of charges alleging the very same charges contained in Ext.P2. On receipt of Ext.P5 memo of charges, the petitioner submitted Ext.P6 reply. By Ext.P7 letter WA 1225/08 -: 3 :- dated 14.3.2007 the writ petitioner was asked to attend a hearing held on 3.4.2007 by the Secretary to Government, Labour Department. Though he attended the hearing, orders were not forthcoming. After the writ petitioner retired from service on 31.5.2007, he filed W.P.(C)No.24311 of 2007 challenging Ext.P5 memo of charges and seeking the following reliefs: "i) Issue a writ of certiorari calling for the records leading to Exhibit P5 memo of charges and to quash the same. ii) Issue a writ of mandamus commanding and compelling respondents to sanction and disburse the pensionary benefits of petitioner without any delay." 4. The learned Single Judge after notice to and hearing the appellants herein disposed of the Writ Petition with the following directions: "3. In the result, the writ petition is disposed of in the following terms: i) On production of a copy of this judgment along with the representation, the second respondent shall take appropriate steps to issue an LC/NLC to WA 1225/08 -: 4 :- the petitioner. This shall be done, as early as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. ii) On the NLC/LC being issued, the amount due to the petitioner by way of DCRG as sanctioned under Ext.P1 less any amount which may be fixed as the liability shall be disbursed to him within one month thereafter. iii) Provisional pension shall be granted to the petitioner in accordance with law. This shall be done within one month from the date of receipt of a copy of this judgment. iv) The disciplinary proceedings as contemplated by Ext.P5 shall be completed without further delay, at any rate, within a period of one year from the date of receipt of a copy of this judgment. v) If disciplinary proceedings are not completed within the aforementioned time frame, provisional pension payable to the petitioner shall be stepped up to the full pension with effect from the date on which the one year period expires. vi) If the petitioner is aggrieved by the determination of any liability, then it will be open to him to challenge the same in appropriate proceedings. WA 1225/08 -: 5 :- The appellants have filed this Writ Appeal aggrieved by the aforesaid directions. 5. We have heard Sri.Benny Gervasis, the learned Government Pleader appearing for the appellants. The main point urged by the learned Government Pleader is that in view of Rule 3A of Part III of the Kerala Service Rules, the writ petitioner is entitled only to provisional pension for the reason that departmental proceedings have been initiated against him prior to his retirement from service and is being continued and therefore the directions issued by the learned Single Judge are not sustainable in law. It was also contended that the government have decided to conduct a vigilance enquiry and that the enquiry is in progress. It was further contended that as the writ petitioner retired from service only on 31.5.2007 the time limit fixed in Note 3 to Rule 3 of Part III of the Kerala Service Rules has also not expired. 6. We have considered the submissions made at the Bar by the learned Government Pleader appearing for the appellants. A mere reading of Ext.P5 would show that it is nothing but a reiteration of the charges contained Ext.P2. Ext.P2 was issued WA 1225/08 -: 6 :- on 22.12.1995, nearly 12 years prior to the date of Ext.P5. The writ petitioner had on receipt of Ext.P2 submitted Ext.P4 reply denying the charges contending inter alia that he was not associated with the World Bank Project during the relevant time. For reasons best known to the disciplinary authority, no enquiry was conducted pursuant to Ext.P2. The reason alleged now is that the files are missing. How the files happened to be lost and who was responsible for the loss of the files, is not specifically pleaded. The only explanation is that therefore a fresh memo of charges evidenced by Ext.P5 was issued. The irregularities alleged in Exts.P2 and P5 are one and the same. They relate to the purchase of certain items for various I.T.Is. during the year 1988-89 under the World Bank Project. The writ petitioner has categorically stated that he was not associated with the World Bank Project prior to 10.3.1993. That aspect is not denied or disputed by the appellants. Further a comparison of Ext.P5 with Ext.P2 would show that the charges are identical. Apart from merely stating that files relating to Ext.P2 are missing, it is not stated when the files were lost and who was responsible for the same. In our opinion the long interval between Exts.P2 and P5 WA 1225/08 -: 7 :- coupled with the admitted fact that the writ petitioner was not associated with the World Bank Project during the period 1988- 89, establishes that there is merit in the writ petitioner's contention that Ext.P5 memo of charges has been issued for extraneous considerations on the eve of his retirement from service. The learned Single Judge has taking note of the totality of the facts and circumstances of the case disposed of the Writ Petition with the directions referred to above. The lethargy on the part of the appellants in completing the proceedings initiated as per Ext.P2 which was issued in December, 1995, cannot in our opinion, visit the writ petitioner with adverse consequences. While the government has every right to proceed against those guilty of misconduct, disciplinary power cannot be misused to find out scapegoats and hold them responsible for lapses, if any, on the part of others. Such an attitude on the part of the government will have a demoralising effect on the officers in its employment. The explanation offered by the appellants for not proceeding with Ext.P2, lacks credence. If files were lost, those responsible ought to have been proceeded against. Ext.P2 originated at the highest level of the government and from the WA 1225/08 -: 8 :- secretariat if files have been lost, that also is a matter which ought to be enquired into. The attempt evidently appears to be to find a scapegoat and to cast the blame on him. We are therefore not inclined to accept the explanation offered by the appellants for their failure to proceed with Ext.P2. In the admitted facts of the case, we find no ground to interfere with the discretion exercised by the learned Single Judge. The directions issued by the learned Single Judge, in our opinion, do not in any way prejudice the rights of the appellants to proceed with Ext.P5 and to complete the proceedings. The Writ Appeal accordingly fails and it is dismissed in- limine. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 27/6