JUDGMENT P. A. Mohammed, J. 1. Two retired officers of the Sales tax Department, M. Viswambharan, Deputy Commissioner and K. J. Francis, Appellate Assistant Commissioner, are the petitioners in these writ petitions. Viswambharan retired from service on 30.6.1989 and Francis retired on 31.5.1983. They are mainly aggrieved by the orders passed by the Government under R.59(b) of Part III of the Kerala Service Rules reducing their monthly pension. Two main common questions are involved in these writ petitions; first is whether any order passed or action taken by an officer while exercising the quasi judicial powers under the provisions of a statute can be made as basis for initiating disciplinary proceedings and the second is whether the grounds taken for initiating disciplinary proceedings can be relied on for taking action under R.59(b) of Part III K.S.R. These two questions are co - related and interdependent. The first question relates to the extent of the quasi judicial powers conferred on the officer and the other, the ambit and scope of the powers under R.59(b) of Part III K.S.R. 2. Sales tax Officer, Appellate Assistant Commissioner and the Deputy Commissioner are the different quasi judicial authorities under the provisions of the Kerala General Sales tax Act, 1963. The powers of these officers have been specified and if the Department or the assessee is aggrieved by the action taken and orders passed by any of the authorities, remedies are provided in the Act. The Deputy Commissioner and the Board of Revenue are authorised to take suo motu actions by calling for and examining any orders passed or proceedings recorded by any officer subordinate to them. Therefore before initiating the disciplinary proceedings against the officers who are conferred with quasi judicial powers under the provisions of the statute, extreme care and caution shall be exercised by the Government. While placing reliance on certain orders passed or actions taken by the officers the enters background of the case must be kept in view. There must be some reasons for not taking suo motu action either by the Deputy Commissioner or by the Board of Revenue against the disputed actions taken or orders passed by the subordinate authorities. It must be known why the Department has not chosen to file appeal in cases wherever the appeals are provided under the Act. There must be some reasons for not taking suo motu action either by the Deputy Commissioner or by the Board of Revenue against the disputed actions taken or orders passed by the subordinate authorities. It must be known why the Department has not chosen to file appeal in cases wherever the appeals are provided under the Act. In the aforesaid background it is necessary to examine the decision of this Court in Kesavan v. State of Kerala (1989 (1) KLT 135). If this court goes by the above decisions, the only course open is to quash the disciplinary proceedings against officers exercising quasi judicial function and as a result, the impugned orders are to be set aside. In the above decision this court observed: "As Deputy Commissioner (Appeals) the petitioner was invested with appellate jurisdiction over orders passed by assessing authorities. In exercise of that judicial function he might have reversed the order passed by the assessing authority. If the order passed in appeal has gone against the interest of the Government the only course that was open to the Government was to challenge the order passed by the appellate authority before the higher forums as per the provisions contained in the Kerala Agricultural Income tax and Sales tax Act. Without recourse to such a step the Government cannot proceed against the Deputy Commissioner (Appeals) and recover the loss from him. Officers invested with quasi judicial powers are to discharge their functions without fear of disciplinary action on account of their free exercise of that power. If the officers invested with such powers are under the threat of disciplinary action on account of orders passed against the interest of the Government, it will interfere with their judicial discretion. It will result in a traversity of justice. Officers entrusted with authority to decide issues arising between citizens and the Government should have the freedom to take independent decisions in accordance with law. If their decisions go against the interest of the Government, the Government have to challenge those orders before the appellate or revisional forums as provided by the statute. The orders passed by such officers cannot subject them to disciplinary proceedings." (emphasis supplied) However, the Supreme Court has discussed this subject in somewhat detail in Union of India and another v. R. K. Desai (1993) 2 SCC 49 ). The orders passed by such officers cannot subject them to disciplinary proceedings." (emphasis supplied) However, the Supreme Court has discussed this subject in somewhat detail in Union of India and another v. R. K. Desai (1993) 2 SCC 49 ). The Supreme Court took the view that it is not as if an officer belonging to the Central Civil Service is totally immune from disciplinary proceedings wherever he discharges quasi judicial functions. The court further added: "If in the discharge of such functions he takes any action pursuant to a corrupt motive or an improper motive to oblige someone or takes revenge on someone, in such a case it is not as if no disciplinary proceedings can be taken at all. As to what would constitute proper exercise of power by a public servant could be discerned from the tests laid down in cases relating to sanction under S.197 CrPC. These principles will constitute the tests for launching disciplinary proceedings as well. The office may occasion the bribe. But it does not mean because the officer is exercising its quasi judicial functions he would not be amenable to judiciary proceedings. It is not intended to lay down precisely in what cases disciplinary proceedings would lie and in what cases they do not lie because embarking upon the task of drawing such a line is cast with peril. It is difficult to draw such a line without taking into account the concrete facts and circumstances of a case. But if there is some degree of culpability in a large sense, disciplinary proceedings can be taken." In other words, what the Supreme Court observed was if there was some sort of culpability on the officer in the exercise of quasi judicial power, disciplinary proceedings can be initiated against the delinquent officer. 3. However, the above decision of the Supreme Court came up for consideration before the three learned judges of the Supreme Court in Union of India v. K.K. Dhawan ( 1993 (2) SCC 56 ). In that case the decision in R. K. Desai's case, supra was explained and its operation had been limited. The Supreme Court in K. K. Dhawan's case ( 1993 (2) SCC 56 ) observed: "When an officer in exercise of judicial or quasi judicial powers acts negligently or recklessly or in order to confer undue favour on a person he is not acting as a Judge. The Supreme Court in K. K. Dhawan's case ( 1993 (2) SCC 56 ) observed: "When an officer in exercise of judicial or quasi judicial powers acts negligently or recklessly or in order to confer undue favour on a person he is not acting as a Judge. There is a great reason and justice for holding in such cases that the disciplinary action could be taken. It is one of the cardinal principles of administration of justice that it must be free from bias of any kind. The observation of the Supreme Court in V. D. Trivedi case that "the action taken by the appellant was quasi judicial and should not have formed the basis of disciplinary action" was made to buttress the ultimate conclusion that the charge framed against the delinquent officer had not been established and therefore, it could not be construed as laying down the law that in no case disciplinary action could be taken if it pertains to exercise of quasi judicial powers." (emphasis supplied) Thus, the position has been well settled by the Supreme Court in the above quoted decision. So what is required when initiating action against an officer who has been conferred with quasi judicial powers is to find out whether such officer acted negligently or recklessly or in order to confer undue benefit on a person. If he has done so, he cannot be said to be a judge who is exercising quasi judicial powers. 4. Before examining the second point, it is necessary to reproduce R.59 of Part III K.S.R. 59. Award of full pension -- (a) The full pension admissible under this rule is not to be given as a matter of course, or unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the Government may make such reduction in the amounts as they think proper. Counsel for the petitioners pointed out that the power under sub-r.(b) of R.59 can be invoked only if it is found that the service of the delinquent officer has not been thoroughly satisfactory. In other words, it is a general power granted to the Government to cut down the full pension. This power, of course, can be exercised only if the service of the government servant has not been thoroughly satisfactory. In other words, it is a general power granted to the Government to cut down the full pension. This power, of course, can be exercised only if the service of the government servant has not been thoroughly satisfactory. If the Government is satisfied of the above requirement, they can make such deduction as they think proper. Invocation of this power does not arise prior to the retirement because the cutting down the pension arises only after the pension has been awarded. This rule has to be read along with the government decision No.2(a), which is as follows: "This rule cannot be used directly to effect a penal recovery, but Government are justified in making proof of a specific instance of fraud or negligence by an employee, the ground for a finding that his service has not been thoroughly satisfactory within the meaning of this rule for the purpose of reducing his pension." This rule provides that if there is a specific instance of fraud or negligence by an employee, that is a reason for holding that his service has not been thoroughly satisfactory. Therefore, when R.59(b) is read along with government decision No.2(a) which ought to be done always so, it would evince the rule is not an independent or general provision and if there is proof of specific instance of fraud or negligence, it can be resorted to. In certain cases disciplinary proceedings have been initiated against the government servant before retirement. In such proceeding there may be specific cases pointing to fraud or negligence. Such instance revealed from the charge memo served on the delinquent prior to the retirement can be treated to be a 'specific instance' coming within the purview of the government decision No.2(a) referred to above. Only because those instances are included in the charge memo it cannot be argued that they will not form as a basis for invoking R.59(b). 5. In the aforesaid legal premise the question raised in each case will have to be examined. O. P. No. 1683 of 1991: Ext. P8 is the order issued by the Government under R.59(b) of Part III K.S.R. It refers to Exts. P1 and P3 charge memos dated 26.6.1989 and 21.7.1989 respectively. The charges contained in Exts. 5. In the aforesaid legal premise the question raised in each case will have to be examined. O. P. No. 1683 of 1991: Ext. P8 is the order issued by the Government under R.59(b) of Part III K.S.R. It refers to Exts. P1 and P3 charge memos dated 26.6.1989 and 21.7.1989 respectively. The charges contained in Exts. P1 and P3 are distinct and separate and with reference to the charge it is averred in Para.5 of the counter affidavit as below: "The Government as per Ext. P8 order G.O. (Rt) No. 561/92/Tx dated 14.9.92 have disposed the disciplinary action mentioned as Ext. P1 initiated against the petitioner by reducing 1/3rd of the monthly pension." This relates to the charges contained in Ext. P1 memo of charges. As far as the second charge is concerned, counter affidavit states that the said disciplinary case initiated against the petitioner has been dropped by the Government. That means, the second charge memo does not exist and the only charge memo now available is the first memo dated 26.6.1989. Para.5 of Ext. P8 reveals as to how the Government have applied the legal position to the facts of this case. "Government have examined the case in detail with reference to connected records. The reports of the Board show that the officer has committed procedural irregularities in the first case and supervisory lapses in the second case. Also Government find that the loss of revenue incurred is due to non recovery of tax arrears from the assessees concerned. Also it is seen that Government is competent to take action against the retired officer under R.59(b) Part III K.S.Rs." What the above passage reveals is there is a report by the Board of Revenue that the officer has committed procedural irregularities and supervisory lapses. There is absolutely no application of the mind by the Government as to how the officer has committed procedural irregularities and supervisory lapses as reported by the Board of Revenue. What is actually required in view of the settled legal position is, there must be proof to show that the officer has acted negligently or recklessly. The negligence or recklessness must be established by cogent proof. There is no such finding in Ext. P8. It is purely on the basis of the report of the Board of Revenue, Ext. What is actually required in view of the settled legal position is, there must be proof to show that the officer has acted negligently or recklessly. The negligence or recklessness must be established by cogent proof. There is no such finding in Ext. P8. It is purely on the basis of the report of the Board of Revenue, Ext. P8 order has been passed invoking the R.59(b) of Part III K.S.R. This order, according to me, is infirm and therefore vitiated and liable to be set aside. It is accordingly set aside. O. P. No. 11735 of 1991: Ext. P1 is the order passed by the Government under R.59(b). In this case charges against the officer as contained in the charge memo dated 23.5.1983 have been narrated in Ext. P1. After considering the written statement, the finding is "the Government have examined the whole matter in detail with reference to connected records and files and find no valid ground to exonerated the delinquent officer from the charges levelled against him.". It appears, Government have proceeded with the matter as if they are deciding the disciplinary proceeding. What was actually deciding was a proceeding under R.59(b). There is no finding that the officer has acted negligently or recklessly. There is no discussion about the merits or demerits of the allegations levelled against the petitioner. This order also does not satisfy the requirements under law as discussed herein before. Ext. P1 order is liable to be and is hereby set aside. 6. Even though the impugned orders are set aside, the entire question is to be reconsidered by the Government afresh after applying the law Governing the question and also in view of the observations made above. Counsel appearing for the petitioners submitted that if the Government propose to take action under R.3 Part III, then the entire proceedings will be barred. That is a matter which can definitely be urged by the petitioners before the Government. Since the impugned orders have been specifically passed under R.59(b) of Part III, I do not propose to examine that question here and the same is left open. The petitioners can urge the same before the Government while reconsidering the entire matter. That is a matter which can definitely be urged by the petitioners before the Government. Since the impugned orders have been specifically passed under R.59(b) of Part III, I do not propose to examine that question here and the same is left open. The petitioners can urge the same before the Government while reconsidering the entire matter. I direct the Government to pass final orders as above within six months from the date of receipt of a copy of this judgment, I further direct that before taking a fresh decision notice shall be issued to the petitioners and they shall be given an opportunity of being heard. The original petitions are disposed of as above.