IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 OP.No. 15813 of 2000(G) -------------------------------- PETITIONER(S): ----------------------- G. SADASIVAN, JOINT SECRETARY TO GOVERNMENT ON DEPUTATION AS MANAGING DIRECTOR, KERALA HEALTH RESEARCH WELFARE SOCIETY, THIRUVANANTHAPURAM. BY ADVOCATE MR.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ADDITIONAL CHIEF SECRETARY, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, THIRUVANANTHAPURAM. 5. ALEXANDER GEORGE (ENQUIRY OFFICER), ADDITIONAL SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR . P.K. RAVIKUMAR FOR R1TO4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/02/2009, ALONG WITH OP NO. 16846 OF 1996 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 15813 of 2000(G) C.M.P. NO. 25804/2000 IN OP.No. 15813 of 2000 DISMISSED SD/- K. SURENDRA MOHAN, JUDGE 20.2.2009 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF MEMO OF CHARGES NO. 101415/SPL.B1/93/GAD DATED 7-12-1994 ISSUED BY THE 4TH RESPONDENT. EXT.P2 - TRUE COPY OF MEMO OF CHARGES NO. 2835/SPL.B1/95/GAD DATED 23/26-5- 1995 ISSUED BY THE 2ND RESPONDENT. EXT.P3 - TRUE COPY OF MEMO OF CHARGES NO. 32849/SPL.B1/95/GAD DATED 19.6.1995 ISSUED BY THE 2ND RESPONDENT. EXT.P4 - TRUE COPY OF THE ORDER G.O.(Rt) NO. 2058/97/GAD DATED, 15-3-1997 ISSUED BY THE 4TH RESPONDENT. EXT.P5 - TRUE COPY OF LETTER NO.1/PER/ADDL.SECY/II/LAD(3) DATED, 6-5-1997 ISSUED BY THE 5TH RESPONDENT. EXT.P6 - TRUE COPY OF WRITTEN STATEMENT OF DEFENCE DATED, NIL-08-1997 ADDRESSED TO THE 5TH RESPONDENT. EXT.P7 - TRUE COPY OF DEFENCE STATEMENT DATED NIL-08-97 ADDRESSED TO THE 5TH RESPONDENT. EXT.P8 - TRUE COPY OF DEFENCE STATEMENT OF THE PETITIONER DATED, NIL-08- 1997 ADDRESSED TO THE 5TH RESPONDENT. EXT.P9 - TRUE COPY OF ORDER NO. 2835/SPL.B1/95/GAD DATED, 19-4-2000 ISSUED BY THE 3RD RESPONDENT. // TRUE COPY // PA TO JUDGE rhs K.SURENDRA MOHAN, J - - - - - - - - - - - - - - - - - - - - - - - O.P.No. 15813 of 2000 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of February, 2009 J U D G M E N T This original petition is filed challenging Ext.P9 proceedings of the 3rd respondent imposing penalty on the petitioner. The petitioner was a Joint Secretary to Government on deputation as the Managing Director, Kerala Health Research Welfare Society, Thiruvananthapuram at that time. As per Ext.P9, an amount of Rs.1,91,259.50 (Rupees One lakh Ninety One Thousand Two Hundred and Fifty Nine and Fifty Paise only) has been directed to be recovered from the petitioner being loss caused to the Government in connection with certain irregularities committed by him. The withholding of an increment with cumulative effect for a period of one year has also been ordered in Ext.P9. The petitioner has challenged the above order contending that the order was vitiated for the reason that no sufficient opportunity was given to the petitioner by the enquiry officer to place and prove his case. It is also alleged that there was delay and latches in initiating the disciplinary proceedings for the reason that the alleged O.P.No. 15813 of 2000 -2- irregularities related to the period from March 1986 and July 1987 when the petitioner was working as the Block Development Officer, Chittumala block, Kollam District. 2. Initially, Ext.P1 charge memo dated 7.12.1994 alone was issued to the petitioner. Later on, Ext.P2 charge memo dated 23.5.1995 was issued alleging additional charges against the petitioner. Subsequently, yet another memo of charge dated 19.6.1995 was issued, which is Ext.P3. The petitioner has filed O.P. No. 16846 of 1996 challenging the disciplinary proceedings initiated against him and fixing of a liability of Rs.41.700/- on him on the allegations in Ext.P1 charge memo. The said original petition is still pending. 3. I have heard the learned counsel P. Santhoshkumar appearing for the petitioner and the learned Government Pleader appearing for the respondent. 4. At the time of hearing, it is submitted by the counsel for the petitioner that the petitioner has retired from service on 21.5.2001 as a Joint Secretary to the Government. However, he has been sanctioned only provisional pension and his pensionary benefits have not been disbursed. It is submitted that as per an O.P.No. 15813 of 2000 -3- order dated 20.9.2008, the liability of the petitioner has been fixed and orders have been issued sanctioning his pension and DCRG. Pensionary benefits have been ordered to be disbursed after deducting an amount of Rs. 1,91,260/- being the loss occasioned to the Government as a result of the alleged irregularities on the part of the petitioner. It is submitted that in view of the above, the petitioner does not press his challenge against the disciplinary proceedings initiated against him and the impugned order Ext.P9. 5. It is further submitted that, though the petitioner was entitled to promotion to the post of Additional Secretary, the said promotion was denied to him only for the reason that the disciplinary proceedings were pending against him. In view of the fact that the liability now fixed on him does not disentitle him from promotion to the said post, he contends that denial of the said promotion to him was not justified. In view of his retirement from service during the pendency of this Original Petition, it is submitted that the second prayer in the above Original Petition, which is a direction to promote him as an Additional Secretary may be considered, notionally. It is for the Government to O.P.No. 15813 of 2000 -4- consider this question in the light of the facts and circumstances of the case. The Government Pleader has submitted that if the petitioner makes a proper representation in this regard, the Government shall consider the same. 6. In view of the above this original petition is disposed of with the following directions: (a) The petitioner shall make a representation to the 1st respondent setting out his grievances in detail and praying for the grant of notional promotion to him as submitted above, within a period of two weeks from today. (b) If such a representation is made, the 1st respondent shall consider the same after giving an opportunity to the petitioner to be heard and shall pass final orders on the same within a period of three months therefrom. K.SURENDRA MOHAN JUDGE rhs