IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 WA.No. 1779 of 2009 --------------------- AGAINST THE JUDGEMENT IN WPC.28790/2003 Dated 08/07/2009 .................... APPELLANT: PETITIONER ------------------------ P.R.BHAKTHAVALSALAN NAIR, RETD. ASST. EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.BOARD, PATTANAKAD, (RESIDING AT BHAKTHI, S.N.PURAM P.O., CHERTHALA). BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.V.MADHUSUDHANAN RESPONDENT(S)/RESPONDENTS: --------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), K.S.E.BOARD, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM. 3. THE CHIEF INTERNAL AUDITOR, K.S.E.BOARD, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM. 4. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, K.S.E.BOARD, CHERTHALA. SRI.ASHOK M.CHERIAN, SC FOR KSEB THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A.No.1779/2009 ------------------------------ Dated this, the 11th day of February, 2010 JUDGMENT Balakrishnan Nair, J. The appellant was the writ petitioner. He was an Assistant Executive Engineer under the respondents. While he was working as Assistant Engineer of the Kerala State Electricity Board (for short “KSEB”), Aroor, he was served with memo of charges dated 16.04.1996 and 10.05.1996. Three allegations were raised against him. The first allegation was that he inflated the meter reading of an industrial unit at Aroor. The bogus reading was recorded on the eve of power-cut, to enable the said unit to get more power during the period of power-cut. The second allegation was that he overlooked the priority in giving a domestic connection. The 3rd allegation was that he, overlooking the priority, did certain works for the purpose of giving connection to a consumer. Since the appellant denied the allegations against him, an enquiry officer was appointed. The WA No.1779/2009 - 2 - said officer, after conducting the enquiry, submitted his report, finding the appellant guilty of the first two charges. The Deputy Chief Engineer, by Ext.P1 order dated 2.9.1998, reverted him to the post of Sub Engineer permanently. The said order was challenged before this Court and this Court, by Ext.P2 judgment dated 18.10.2001, set aside Ext.P1 on the ground that the Deputy Chief Engineer was not competent to impose the punishment ordered as per Ext.P1. Only the appointing authority, namely the Chief Engineer was competent to do that. But, this Court gave liberty to the competent authority to take action in accordance with law. In the light of that judgment, the Chief Engineer considered the matter and issued Ext.P3 order dated 15.11.2001, dropping the proceedings against the appellant. Later, he was promoted as Assistant Executive Engineer and while working in that post, he retired from service on 31.3.2002. He was paid all terminal benefits also. While so, on 3.5.2003, he was served with Ext.P4 notice, calling upon him to show cause why the loss of Rs.79,856/- should not be recovered from his pension. The appellant submitted Ext.P5 WA No.1779/2009 - 3 - reply dated 18.6.2003. Among other things, it was specifically contended that once the proceedings against him were dropped as per Ext.P3, based on the same facts, the present impugned notice could not have been issued. Further, such an action relating to certain incidents, which took place in 1996, could not be taken now, it was contended. But, ignoring his contentions, the Board passed Ext.P6 order dated 28.8.2003, deciding to recover Rs.2000/- per month from his pension from September, 2003 onwards, till the amount of Rs.79,856/- is recovered. In the light of Ext.P6 order, the Accounts Officer of the Board issued consequential proceedings Ext.P7 on 1.9.2003, authorising recovery of Rs.2000/- per month from the pension of the appellant from September, 2003. Challenging Exts.P4, P6 and P7, the Writ Petition was filed. The respondents filed a counter affidavit, supporting the impugned orders, relying on Rule 3 of Part III of the Kerala Service Rules. 2. The learned Single Judge, after hearing both sides, dismissed the Writ Petition. The learned Judge took the view that the proceedings against the appellant were not concluded WA No.1779/2009 - 4 - and the action initiated before his retirement was being continued thereafter and therefore, the time limit will not apply. 3. We heard the learned senior counsel Sri.K.R.B.Kaimal for the appellant and the learned standing counsel for the KSEB. The appellant submitted that the proceedings against him were dropped as per Ext.P3. That fact is admitted in Ext.P4 also. Based on Ext.P4, fresh proceedings are sought to be initiated against him after the lapse of about two years from the date of his retirement. In view of Rule 3(b)(ii) of Part III of the Kerala Service Rules, the said proceedings could not be initiated in relation to something which happened four years before such initiation. If that be so, in relation any incident which took place before 3.5.1999, no action could have been taken against him, it is submitted. The learned counsel for the KSEB supported the impugned judgment and prayed for dismissal of the Writ Appeal. 4. We considered the rival submissions made at the Bar and perused the materials on record. The relevant portion of Rule 3 of Part III of the Kerala Service Rules reads as follows: WA No.1779/2009 - 5 - “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 of 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 WA No.1779/2009 - 6 - 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 departmental proceedings in which an order of dismissal from service could be made in relation to the employee during his service.” Admittedly, action is taken under Rule 3(b). That is evident from Exts.P4 and P6. That means, proceedings are instituted for recovery after the retirement of the appellant. So, in view of clause (ii) of sub-rule (b) of Rule 3, such proceedings cannot be instituted in respect of an incident, which took place more than four years before such institution. Admittedly, the allegations, based on which the proceedings are taken, took place in the year 1996. So, the present proceedings are hit by the time limit prescribed in Rule 3(b)(ii). The finding of the learned Single Judge that earlier proceedings were pending and the present proceedings were continuation of the earlier proceedings is unsupportable. Having regard to the above facts, we are of the view that the present action taken against the appellant is WA No.1779/2009 - 7 - clearly unauthorised by the provisions of Rule 3 of Part III of the Kerala Service Rules. It is so declared. In the result, the Writ Appeal is allowed. The judgment of the learned Single Judge is reversed and the impugned orders Exts.P6 and P7 are quashed. K. Balakrishnan Nair, Judge. P.N.Ravindran, Judge. nm.