IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WA.No. 232 of 2006() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.2253 9/1998 Dated 29/09/2005 .................... APPELLANTS/ RESPONDENTS: ---------------------- 1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. LEGAL ADVISOR AND DISCIPLINARY ENQUIRY OFFICER, KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.P.SANTHALINGAM, SC, KSEB SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT/ PETITIONER: -------------------------- C.P.THOMAS, RETIRED CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, RESIDING AT CHIRAKADAVIL HOUSE,THURUTHY P.O CHANGANASSERY. ADV. SRI.J.JULIAN XAVIER FOR R1 SRI.FIROZ K.ROBIN FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2009, ALONG WITH WA NO. 282 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------------- W.A.Nos.232 & 282 OF 2006 ------------------------------------- Dated this, the 20th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. W.A.Nos.232 OF 2006: The respondents in the Writ Petition are the appellants. The brief facts of the case are the following: The writ petitioner was a retired Chief Engineer of the Kerala State Electricity Board. He was suspended from service on 3.7.1987 in contemplation of disciplinary proceedings. The allegation against him was that certain imprudent purchases made by him caused a loss of Rs. 25 lakhs to the Board. Later, he was reinstated in service on 30.9.1987 and he was promoted on 1.12.1987. He was due to retire on 30.9.1988. On the eve of his retirement, he was issued with a memo of charges on 6.9.1988. Since the writ petitioner declined to accept it, the same was sent by registered post. But, it was returned with an endorsement that the addressee is not seen. So, till the date of his retirement on 30.9.1988, the memo was not served on him. W.A.Nos.232 & 282/2006 2 Later, a show cause notice was served on him on 28.3.1989 proposing to recover an amount of Rs. 2,04,426/-. It was decided to recover the said amount from his DCRG and also from pension. Therefore, he filed O.P.No.3626/1990 challenging the above steps. There was a stay against further proceedings. Finally, the Original Petition was disposed of on 23.7.1993 quashing the notices and orders served on him proposing recovery, but, giving liberty to the KSEB to take fresh action in accordance with law. The disciplinary authority appointed an Enquiry Officer on 23.11.1993, as per Ext.2. Thereafter, the petitioner was served with a notice on 29.6.1994 proposing to commence the enquiry. After a few sittings, last of which was on 15.6.1995, nothing was heard in the matter. So, the petitioner filed a representation, Ext.P3, before the Government on 15.6.1996 pointing out the illegalities in the conduct of the enquiry. Since the petitioner took the stand that no memo of charges was ever served on him, as per Ext.P4, on 26.11.1996, a copy of memo of charges was served on him. The petitioner submitted Ext.P5 reply on 6.1.1997. By Ext.P6, a formal enquiry was ordered into the charges. The petitioner filed a petition before the Inquiring Authority in the form of a preliminary objection pointing out the W.A.Nos.232 & 282/2006 3 alleged illegality in continuing the enquiry. This Court by Ext.P7 judgment dated 27.5.1998 directed the Inquiring authority to take a decision on the preliminary objection. The Inquiring Authority passed Ext.P8 order on 11.9.1998 overruling the objections of the petitioner and deciding to proceed against him. The petitioner again moved this Court by filing the present Writ Petition, challenging Ext.P8, and obtained stay of further proceedings. Finally, the said Original Petition was heard and allowed by the judgment under appeal on 29.9.2005. The learned Single Judge disposed of the Writ Petition giving the following directions. “Technically, at least the petitioner is entitled to succeed. I quash Ext.P8 and direct that all proceedings as against the petitioner will stand set aside. If the monetary benefits of the petitioner are yet to be settled, steps should be taken as to settle such claims forthwith. However, as the delay in disbursement was principally arising of the conduct of the petitioner and pendency of these proceedings, I direct that he will not be entitled to any interest for the sums due. Amounts should be paid however within a maximum period of three months.” W.A.Nos.232 & 282/2006 4 2. It is not clear from the above judgment, what is the technical point based on which the writ petitioner is entitled to succeed. But, both sides submitted that it was the time frame fixed by Rule 3 Part III of the Kerala Service Rules. Since Ext.P4 was served only in 1996, after about 8 years of the retirement of the petitioner, the proceedings cannot be continued in view of the stipulations in Rule 3. This was a point decided by the Inquiring Authority in Ext.P8 and it was the point mainly canvassed before the learned Single Judge, it is submitted by both sides. Therefore, the technical point, which weighed with the learned Single Judge, was that the charge sheet was served on the petitioner beyond the four year time limit contained in Rule 3. But we notice that the charge sheet was sent to the petitioner on 6.9.1988 before his retirement. He managed not to accept it by keeping away and it was returned with the endorsement that the addressee is not seen. We feel that the issuance of charge sheet on 6.9.1988 can be taken as serving charge sheet on him. By deliberately refusing to accept the charge sheet, the petitioner cannot claim the benefit of time limit of four years prescribed in Rule 3 of Part III K.S.R. If that be so, the bar of limitation will not apply to the proceedings against the petitioner. W.A.Nos.232 & 282/2006 5 3. It is true, there was some delay from the part of the K.S.E.B. to proceed against the petitioner. But, the main delay was occasioned by the deliberate action of the petitioner. In 1990 he moved this Court and obtained stay of proceedings against him for three years. Again in 1998 he moved this court and obtained stay of the proceedings against him for seven years. So, atleast for 10 years delay, he alone is responsible. So, he cannot be allowed to take advantage of his own conduct. In the result, we reverse the judgment of the learned Single Judge and dismiss the Writ Petition. The appellant can proceed with the enquiry against the respondent/writ petitioner. But, the enquiry shall be completed within six months from the date of production of a copy of this judgment. The Writ Appeal is allowed as above. W.A.No.282/2006: In view of the judgment in W.A.No.232/2006, this Writ Appeal is also dismissed. (K. BALAKRISHNAN NAIR, JUDGE) (C.T. RAVIKUMAR, JUDGE) ps