IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).No. 6868 of 2010(G) -------------------------------------- PETITIONER(S): ---------------------- R.AYYAPPAN PILLAI, LAKSHMINAGAR-11, THEKKEVILA, KOLLAM. BY ADV. SRI.S.ABDUL RAZZAK RESPONDENT(S): ------------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, PATTOM PO, THIRUVANANTHAPURAM-04. 2. THE DEPUTY CHIEF ENGINEER, KSEB, CIRCLE OFFICE, KOLLAM. R1 & R2 BY ADV.SRI. ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.6868/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SUSPENSION ORDER DTD. 21.10.88. P2:- COPY OF THE CHARGE MEMO DTD. 28.6.1997. P3:- COPY OF THE EXPLANATION STATEMENT DTD. 15.7.1997. P4:- COPY OF THE FINAL ORDER DTD. 2.9.1997 BY R2. P5:- COPY OF THE JUDGMENT IN CC. 244/93 DTD. 30.3.2005. P6:- COPY OF THE PENSION PAYMENT ORDER DTD. 8.1.2010. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.6868 of 2010 (G) --------------------------------- Dated, this the 19th day of May, 2010 J U D G M E N T The petitioner was an Overseer in the Kerala State Electricity Board, who has retired from service on 31/07/2009. It is stated that he was posted as a Cashier Trainee during the period 09/01/1987 to 27/09/1988. During the said period, on the allegation that the petitioner had committed certain misconducts, such as broken collection of amounts, maintenance of parallel receipt book, non issue of receipt, double accounting, belated accounting and remittance, presentation and accounting of unauthorised and fictitious cheques, proceedings were initiated against him. In view of this, by Ext.P1 order dated 21/10/1988, he was placed under suspension. Subsequently, without prejudice to the continuation of disciplinary proceedings, he was reinstated in service. Enquiry was ordered by order dated 30/07/1993 and in 1993 itself, C.C.No.244/93 was also charge sheeted against the petitioner before the Judicial Magistrate of First Class, Kollam. The Enquiry Officer conducted a detailed domestic enquiry and WP(C) No.6868/2010 -2- submitted his report dated 28/04/1997 finding the petitioner guilty of the misconducts and holding that the Board had suffered a loss of Rs.36,041.70. It is further stated that even though the petitioner had remitted an amount of Rs.25,538.35, balance amount of Rs.10,503.35 is to be recovered from him. On receipt of the enquiry report, memo was issued calling upon the petitioner to file his explanation, and Ext.P3 explanation was submitted. Thereafter, he was issued Ext.P4 calling upon the petitioner to remit the balance amount of Rs.10,503.35 together with Rs.3,516.60 towards interest etc. Ext.P4 is dated 02/09/1997. It is not in dispute that the petitioner remitted the amount. Subsequently, by Ext.P4 judgment rendered on 30/03/2005 accepting the request of the prosecution for withdrawing the criminal case against the petitioner, the petitioner was acquitted by the Criminal Court. After all these, he was issued Ext.P6 sanctioning provisional pension and its commutation. It was thereupon that this writ petition has been filed. 2. The learned counsel for the petitioner claims that the petitioner is entitled to be paid full pension and DCRG that is withheld. According to the learned counsel, disciplinary action is WP(C) No.6868/2010 -3- concluded by Ext.P4 by which he was called upon to remit the balance amount that was due. It is stated that this amount was recovered by way of penalty and therefore there is no reason for not sanctioning and paying full pension and DCRG that are due. The learned counsel further contends that DCRG can be justifiably withheld only in a case where there is any liability outstanding from an employee. It is argued that with the remittance that he made in pursuance to Ext.P4, no further liability is outstanding and therefore he is entitled to have the DCRG released. It is also contended that unless an order under Rule 59D, Part-III, KSR is passed, there cannot be any recovery from the pension that is due to an employee, and that so far, no such order has been passed. 3. A statement has been filed on behalf of the 1st respondent. After detailing about the misconduct that was alleged against the petitioner and the pendency of the criminal case, it is stated that disciplinary proceedings against the petitioner remains inconclusive. Reason stated by the respondents is the pendency of the criminal case. It is stated that the fact of withdrawal of the case was brought to the notice of the disciplinary authority only on 20/01/2010 and that in order to avoid any hardship to the WP(C) No.6868/2010 -4- petitioner, provisional pension and commuted value thereof was ordered by Ext.P6. It is also stated that the disciplinary authority, the Deputy Chief Engineer, Electrical Circle, Kollam has already initiated steps to finalise the disciplinary action and that once proceedings are concluded by the disciplinary authority, the claim of the petitioner for full pension and other benefits including DCRG will be dealt with in accordance with the Rules. 4. The first contention of the learned counsel for the petitioner is that with Ext.P4, disciplinary action has been come to a close and that therefore, full pension and DCRG ought to have been disbursed. As already seen, very serious charges were levelled against the petitioner. The enquiry officer submitted his report finding the petitioner guilty of all the charges. Simultaneously criminal case was also charged against the petitioner. It was during the pendency of criminal case that Ext.P4 was issued. A reading of Ext.P4 indicates that by this order, all that the Board has done is to call upon the petitioner to remit the balance amount found to have been lost by the Board on account of the misconducts committed by the petitioner. In my view, apart from recouping the loss the Board has suffered, this order does not lead me to infer that the recovery WP(C) No.6868/2010 -5- was as a punishment imposed in conclusion of the disciplinary proceedings. Therefore, I am not prepared to conclude that the disciplinary action has come to a close by Ext.P4 and that therefore, the respondents were not justified in issuing Ext.P6. 5. If that be the situation, the respondents cannot be faulted for the view they have taken in Ext.P6. However, that does not mean that the proceedings should remain inconclusive for long. As already seen, way back in 1997, report of the enquiry had been received, the petitioner had submitted his explanation and final orders were deferred only because of the pendency of the criminal proceedings which is not pending now. Therefore, the disciplinary authority has to conclude the proceedings. This the disciplinary authority should do as expeditiously as possible, at any rate, within eight weeks of production of a copy of this judgment. 6. Although during the pendency of the disciplinary action, normally a delinquent cannot claim payment of the DCRG that is due, such an order withholding DCRG can be justified only if there is atleast a possibility of any loss that is remaining to be recovered from the delinquent concerned. It is seen that an amount of Rs.36,041.70 was found to be the loss caused on account of the WP(C) No.6868/2010 -6- misconducts committed by the petitioner and this has been quantified in the enquiry report itself. Out of that, Rs.25,538.35 is mentioned to have been remitted by the petitioner. Report further says that the balance amount of Rs.10,503.35 has to be recovered from the petitioner. From Ext.P4, it is evident that this amount also has been recovered. Therefore, unless there is some other liability due from the petitioner, there is absolutely no justification for not disbursing DCRG that is due to him. Therefore, it is directed that, if no other liability is outstanding from the petitioner, the DCRG that is due to the petitioner shall be released to him as expeditiously as possible, at any rate, within four weeks of production of a copy of this judgment. 7. The petitioner shall produce a copy of this judgment before the 2nd respondent for compliance. Needless to say that if final orders in the disciplinary proceedings are not passed within eight weeks as directed, further proceedings against the petitioner shall be discontinued and his terminal benefits shall be settled forthwith. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg