IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 31114 of 2003(D) -------------------------- PETITIONER(S): -------------------- A.M.BALAN, RETIRED ADDL.TAHSILDAR, HOSDURG REVENUE DEPARTMENT GOVT. OF KERALA, MADHAVI SADANAM, CHETTAMCOON, THALASSERY, KANNUR DIST. BY MS.VIDHYA. A.C -ADV. RESPONDENT(S): --------------- 1. THE SECRETARY TO THE GOVT. OF KERALA, REVENUE (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KANNUR. 4. THE ACCOUNTANT GENERAL (A & E) AUDIT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MS. SMITH SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31114 of 2003 EXT.P1: COPY OF MEMO OF CHARGES NO.LR(D)1-23387/95 DTD 1.4.1996 ISSUED TO THE PETITIONER BY THE BOARD OF REVENUE (LR) THIRUVANANTHAPURAM. EXT.P2: COPY OF WRITTEN STATEMENT OF DEFENCE DTD 25.5.1996 SUBMITTED BY THE PETITIONER IN REPLY TO EXT.P1. EXT.P3: COPY OF MEMO OF CHARGE REF.NO.C2-49113/96(2) DATED NIL RECEIVED BY THE PETITIONER ON 2.9.96 FROM THE DISTRICT COLLECTOR KANNUR. EXT.P4: COPY OF REPLY DATED 10.9.1996 SUBMITTED BY THE PETITIONER TO EXT.P3. EXT.P5: COPY OF SHOW CAUSE NOTICE REF.NO.24606/D3/99/RD DATED -10-2001 (RECEIVED BY THE PETITIONER ON 8.11.2001 ISSUED BY THE GOVT. OF KERALA. EXT.P6: COPY OF REPLY DATED 16.11.2001 SUBMITTED BY THE PETITIONER TO EXT.P5. EXT.P7: COPY OF ORDER NO.G.O.(Rt)/2650/03/RD DATED 30.8.2003 OF THE GOVT. OF KERALA, REVENUE (D) DEPARTMENT. EXT.P8: COPY OF PROCEEDINGS REF. NO.A3.61415/03 DATED 31.1.2004 OF THE DIST. COLLECTOR KANNUR. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.31114 OF 2003 ---------------------------------------- Dated this the 30th day of January, 2009 JUDGMENT The petitioner retired from the service of the Government of Kerala as an Additional Tahsildar on 31.3.2001. Prior to his retirement from service, two memos of charges namely, Ext.P1 dated, 1.4.1996 and Ext.P3 dated nil, stated to be received by the petitioner on 2.9.1996, were served on the petitioner under the Kerala Civil Services (Classification, Control and Appeal) Rules, to which the petitioner filed Exts.P2 and P4 replies. No further proceedings were taken in respect of the said proceedings till the petitioner retired from service. After his retirement, Ext.P5 show cause notice dated nil/10/2001 was issued to the petitioner under Rule 3(a) of Part III of Kerala Service Rules. The petitioner filed detailed objections, Ext.P6. However, by Ext.P7 order, the Government directed recovery of an amount of Rs.1,65,330/- from the DCRG of the petitioner and the balance amount of Rs.6,47,490/- by invoking the provisions of the Kerala W.P.(c)No.31114/03 2 Public Accountants Act, 1963 and deduction of Rs.300/- per month permanently from his pension under Rule 3(a) of Part III of KSR. The petitioner is challenging Ext.P7 order in this writ petition. 2. The petitioner contends that after having issued the memo of charges under the Kerala Civil Service (Classification, Control and Appeal) Rules, without finding him guilty of the charges of misconduct taking that proceedings to its logical conclusion as contemplated under the Kerala Civl Service (Classification, Control and Appeal) Rules, no amount can be recovered from the petitioner as loss due to the Government on account of any misconduct. He further submitted that the petitioner is not guilty of any misconduct at all, in so far as the allegations in the memo of charges do not constitute any misconduct. According to the petitioner, the alleged misconduct is in relation to certain land acquisition cases. The first allegation is that the petitioner in collusion with some claimants in a land acquisition appeal got the decree in a land acquisition reference corrected by the Court so as to enable the claimants to get enhanced compensation. The second W.P.(c)No.31114/03 3 charge is that the petitioner allowed applications under Section 28A of the Land Acquisition Act, although the claimants did not receive the compensation amounts under protest, which was a condition precedent for entertaining applications under Section 28A of the Act. According to the petitioner, as held by the Supreme Court in the decision of Union of India and another V. Hansoli Devi and others [AIR 2002 SC 3240] for becoming eligible for benefits under Section 28A, receipt of compensation under protest is not a condition precedent and even when compensation is received without protest an application under Section 28A would be maintainable. Therefore, according to the petitioner, both on lack of power and on merits, the petitioner is not liable to be proceeded with for recovery of the amounts in question. 3. No counter affidavit has been filed in this case. But the learned Government pleader seeks to sustain the impugned order on the basis of Rule 3 of Part III of KSR. 4. I have considered the rival contentions in detail. 5. As is clear from the impugned order namely, Ext.P7, the same has been passed under Rule 3(a) of Part III of KSR. W.P.(c)No.31114/03 4 Therefore, the first question to be decided is whether Ext.P7 can be justified under Rule 3 of Part III of KSR. The relevant portion of Rule 3 reads thus: “3. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right or ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service; including service rendered upon re- employment after retirement. Provided that- (a) Such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service. (b) such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his re-employment; (i) shall not be instituted save with the sanction of the Government; (ii) shall not be in respect of any event which took place more than four years before such institution and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to W.P.(c)No.31114/03 5 departmental proceedings in which an order of dismissal from service could be made in relation to the employee during his service; (c) No such judicial proceedings, if not instituted while the employee was in service whether before his retirement or during his re-employment, shall be instituted, save with the sanction of the Government, in respect of a cause of action which arose or an event which took place more than four years before such institution. (d) the Public Service Commission shall be consulted before final orders are passed. xxxx xxxx xxxx xxxx” On the very face of Rule 3, it is abundantly clear that pecuniary loss caused to the Government can be recovered from a retired employee under that Rule, if in a departmental or judicial proceeding, a Government servant is found guilty of grave misconduct or negligence during the period of his service. Rule 3(a) further provides that the departmental proceeding, if instituted while the employee was in service shall after the final retirement of the employee be deemed to be a proceeding under that rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service. Ruling No.2 to Rule 3 reads thus: W.P.(c)No.31114/03 6 “According to proviso (a) under this rule, departmental proceedings, if instituted while the employee or pensioner was in service, whether before his retirement or during his re- employment, shall after the final retirement of the employee be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee or pensioner had continued in service. A doubt was raised as to whether in the case of an employee or pensioner whose case falls within the purview of the proviso and proceedings against whom were instituted by an authority subordinate to Government, order for withdrawal/withholding of pension can be passed by the subordinate authority on the conclusion of the proceedings. The function of the Disciplinary Authority is only to reach a finding on the charge and to submit a report recording its findings to the Government. Government decide to take further action under Rule 3 the Government will serve the person concerned with a show-cause notice specifying the action proposed to be taken under this rule and the person concerned will be required to submit his reply to the show-cause notice within such time as may be specified by the Government. The Government will consider the reply in consultation with the Public Service Commission and pass necessary orders in the name of the Governor. The above procedure in regard to the issue of show-cause notice will also apply to a case where the Governor functions as the Disciplinary Authority (G.O.(P) 523/67/Fin. Dated 5 th December, 1967)”. W.P.(c)No.31114/03 7 This ruling puts the issue beyond any doubt to the effect that before the Government can take action under Rule 3, the disciplinary authority has to reach a finding on the charge and submit a report recording its findings to the Government. Such finding can only be after continuing the proceedings as contemplated in Rule 3(a). Therefore, it is abundantly clear that for recovery of pecuniary loss caused to the Government, the employee must be found guilty of grave misconduct or negligence in a departmental or judicial proceedings. In the case of departmental proceedings, the same has to be in accordance with the Kerala Civil Service (Classification, Control and Appeal) Rules. The said rule contemplates an enquiry with opportunity to the delinquent to defend himself in the case of major penalty proceedings. 6. Going by the tenor of the memos of charges namely, Exts.P1 and P3, the proceedings have been initiated for major penalty. Further, the allegations therein certainly, by its very nature require evidence to be taken for proving the same, which can be done only in an enquiry. Admittedly, in this case, no enquiry whatsoever had been conducted against W.P.(c)No.31114/03 8 the petitioner, on the memos of charges in which he had been found guilty of any misconduct as provided under Rule 3(a) of Part III of KSR. Therefore, the procedure prescribed under Rule 3 has not been complied with in this case at all, without which no pecuniary loss could have been recovered from the petitioner. 7. In any event, I find considerable merit in the contentions of the petitioner on merits also. No misconduct could have been proved against the petitioner on the basis of Exts.P1 and P3 memo of charges. First charge against the petitioner is that the petitioner colluded with the then Special Tahsildar (LA), Thalassery in filing an I.A. in L.A.R.No.122/1987 to get the decree in that L.A.R. amended wrongly thereby causing loss to the Government to the tune of Rs.2,43,114.99/-. It is now admitted before me that, that order has later been reversed and as such, no loss was actually caused to the Government consequent thereby. That being so, even if the petitioner has been found guilty, no pecuniary loss could have been recovered on account of that misconduct. The second charge is that the petitioner had entertained W.P.(c)No.31114/03 9 applications under Section 28A of the Land Acquisition Act, although the claimants had not received the compensation amount under protest. As rightly pointed out by the learned counsel for the petitioner, in the decision of Hansoli Devi' s case (supra), the Supreme Court had held that receipt of compensation with or without protest is of no consequence for the purpose of making the application under Section 28A. Therefore, on that ground also, the petitioner could not have been found guilty of any misconduct so as to be liable to make good any pecuniary loss caused to the Government thereby. For all the above reasons, I am satisfied that Ext.P7 order is unsustainable. Accordingly, Ext.P7 order is quashed. Consequently all retirement benefits due to the petitioner without any deduction shall be disbursed to him as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.31114/03 10