IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WA.No. 2940 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.18854/2006 Dated 29/11/2006 .................... APPELLANT(S): RESPONDENTS: -------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. THE CHAIRMAN, KSEB, VIDYUTHI BHAVANAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, (HRMO KSEB, VYDHUTHI BHAVAN, PATTOM PALACE P.O., THIRUVANANTHAPURAM. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB RESPONDENT(S): PETITIONERS: --------------------------- P.NEELAKANTA PILLAI, (ASSISTANT EXECUTIVE ENGINEER RETIRED FROM KSEB, SUB REGIONAL STORE, ELECTRICAL CIRCLE, PALAI) RESIDING AT PERUMBRAKUNNEL HOUSE, CHIRAKKADAVU EAST P.O., KOTTAYAM DISTRICT. ADV. SRI.WILSON URMESE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 7.8.2009 , THE COURT ON 07/08/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ```````````````````````````````````````````````````` W.A. No. 2940 OF 2007 ```````````````````````````````````````````````````` Dated this the 7th day of August, 2009 J U D G M E N T Balakrishnan Nair, J. The appellants were the respondents. Respondent herein was the 1st petitioner in the writ petition. The brief facts of the case are the following:- The respondent was an Assistant Executive Engineer of the KSEB, who retired from service on 31.5.2004. Disciplinary proceedings were initiated against him, while he was in service, by serving Ext.P2 memo of charges dated 21.11.2001. The allegation was concerning the excess connected load of three consumers which resulted in financial loss to the Board. The respondent submitted Ext.P4 explanation denying the allegations against him. The disciplinary authority was dissatisfied with the reply and, therefore, an enquiry officer was appointed to enquire into the charges. The enquiry officer submitted his report on 29.5.2003 finding the respondent guilty of the charges levelled against him. He was served with a show cause notice dated 10.11.2003 calling upon to show cause why one increment due to WA.2940/07 : 2 : him should not be barred with cumulative effect and also recovery of an amount of Rs.67,500/- towards the loss suffered by the Board should not be made from him. He submitted a detailed reply on 9.12.2003. Six months thereafter, the respondent retired from service on 31.5.2004. Three months after his retirement, on 3.8.2004, the disciplinary authority, the 3rd appellant herein, passed Ext.P9 order imposing the punishment of barring the respondent’s last increment and also ordering to recover the loss of Rs.67,500/- from his DCRG. The relevant portion of the order reads as follows:- “Therefore, the undersigned confirm the proposed punishment and Sri.P.Neelakanda Pillai, Assistant Executive Engineer is hereby awarded a punishment of barring his last one increment with cumulative effect and recovery of an amount of Rs.67,500/- being the proportionate loss sustained by the Board. Since Shri.P.Neelakanda Pillai, Assistant Executive Engineer has retired from service on superannuation on 31.5.2004, it is hereby ordered that the amount WA.2940/07 : 3 : equivalent to barring his last increment with cumulative effect plus the loss of Rs.67,500/- may be recovered from his DCRG. The period spent under suspension by him, will be treated as eligible leave if he so desires or as Leave Without Allowance which will not count for any other purpose.” 2. The respondent, challenging Ext.P9, filed an appeal before the appellate authority. By Ext.P12, the appeal was allowed in part by reducing the amount to be recovered.. Challenging Exts.P9 and P12, the writ petition was filed. The respondent contended that two of the punishments provided under Regulation 11 of the KSEB Employees (Classification, Control and Appeal) Regulations have been imposed on him by Ext.P9. Since he has already retired, the imposition of said punishment was without jurisdiction, it was submitted. The appellants tried to sustain the action by referring to Rule 3 of Part III KSR. But the learned single Judge found that the action taken was not one under Regulation 11 of the KSEB Employees (Classification, Control and Appeal) Regulations and, therefore, quashed the impugned orders. The appellants, feeling aggrieved by the said WA.2940/07 : 4 : judgment, have preferred this appeal. 3. We heard learned counsel on both sides. Regulation 11 of the KSEB Employees (Classification, Control and Appeal) Regulations reads as follows:- “ 11. The Nature of Penalties (1) The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Board employee, namely, (i) Censure (ii) Fine (The penalty of fine as such shall be imposed only on members of the subordinate services holding posts, the starting pay of which is Rs.75 or less. The infliction of very heavy fines and frequent infliction of small fines shall be avoided.) (iii) Withholding of increments or promotion. NOTE : (1) Withholding of increments or promotion referred to may be either permanent or temporary for a specified period. (2) Temporary period of withholding WA.2940/07 : 5 : of increments or promotion shall not be less than six months and not more than three years. if the period is not specified in the order, it will be deemed to be six months. (3) Withholding of promotion shall not entail loss of seniority in that grade. (4) An Officer whose promotion is withheld, shall, if and when promoted to a higher grade or higher time scale subsequently, on promotion, take his place at the bottom of the higher grade or higher time scale. (iv) (a) Recovery from pay of the whole or part of any pecuniary loss caused to the Board or a State Government or the Central Government or to a local authority by negligence or breach of orders. (b) Recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld where such an order cannot be given effect to.” 4. Withholding of increment is one of the punishments WA.2940/07 : 6 : enumerated in Regulation 11. Recovery of pecuniary loss to the Board is another punishment. Those punishments have been imposed in this case. But, learned counsel for the appellants would submit that it should be treated as the recovery of a liability fixed against the respondent and, therefore, the same is saved by Notes 2 and 3 of Rule 3 Part III KSR. Those notes read as follows: “ Note 2:- The word 'pension' used in this rule does not include death-cum- retirement gratuity. Liabilities fixed against an employee or pensioner can be recovered from the death-cum-retirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule, but after giving the employee or pensioner concerned a reasonable opportunity to explain. Note 3:- The liabilities of an employee should be quantified either before or after retirement and intimated to him before retirement if possible or after retirement within a period of three years on WA.2940/07 : 7 : becoming pensioner. The liabilities of a pensioner should be quantified and intimated to him.” 5. What is recovered is a liability and it was fixed after issuing notice. So, the recovery of the liability fixed against the respondent was justified, it is submitted by the appellants. 6. We considered the contentions raised by the appellants. It is not in dispute that what is recovered from the respondent is the pecuniary loss caused by his commissions and omissions to the Board. For recovery of pecuniary loss from a pensioner, provision is made in the first part in Rule 3 which reads as follows:- “ 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; WA.2940/07 : 8 : 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 or 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.” 7. So, pecuniary loss is separately dealt with in Rule 3 and those words are not used as a synonym for liability. We feel that in the setting of Rule 3, the liabilities mentioned in Notes 2 and 3 cannot be equated with any pecuniary loss caused by the employee to the Board. Otherwise, there was no necessity for making separate provision for recovering from the DCRG the liabilities of the petitioner. We feel that the liabilities mentioned in Notes 2 and 3 are similar to excess salary paid to him or unaccounted cash received in advance etc. Pecuniary loss can be recovered in consultation with the PSC only from the monthly WA.2940/07 : 9 : pension going by the scheme of Rule 3. So, the contention of the appellants that the impugned orders can be treated as orders deemed to have been passed under Notes 2 and 3 of Rule 3 Part III KSR cannot be accepted. Going by Ext.P9 order, we are satisfied that in fact the disciplinary authority has passed an order under Regulation 11 of the KSEB Employees (Classification, Control and Appeal) Regulations which cannot be sustained after the retirement of the employee. In the result, writ appeal fails and it is dismissed. The rights, if any, of the appellants to proceed against the respondent under Note 2 of Rule 3 will not be affected by this judgment but, on that ground, the DCRG due to him cannot be withheld. If any amount is deducted from the DCRG based on the impugned orders, the same shall be released to him within one month from the date of production of a copy of this judgment. Sd/- (K.BALAKRISHNAN NAIR, JUDGE) Sd/- (C.T.RAVIKUMAR, JUDGE) aks