Research › Browse › Judgment

Kerala High Court · body

1998 DIGILAW 606 (KER)

State of Kerala v. Moideen

1998-12-15

A.R.LAKSHMANAN, K.NARAYANA KURUP

body1998
Judgment :- A.R. Lakshmanan, J. The appellants are the respondents in O.P.No. 2970 of 1993 filed by the respondent herein seeking to declare that no disciplinary proceedings on Exts. P1 and P8 are possible against the petitioner/respondent herein either under the provisions of the Kerala Civil Services (Classification, Control and appeal) Rules, 1960 read with Note 3 to R.3 Part III of the Kerala Service (Amendment) Rules, 1986. He also sought to quash Exts. P6, P8, P10 and P11 orders of the 2nd respondent (2nd appellant herein) and for a mandamus compelling the appellants herein to regularise his services from 20.2.1998 to 31.5.1989 as duty and consequently to disburse his salary and other allowances for that period. 2. The case of the respondent herein, in short, is as follows. The respondent attained the age of superannuation on 31.5.1989. At that time he was an Assistant Executive Engineer. On 31.1.1979, Ext. P1 memo of charges was issued to the respondent alleging that while holding the post of Junior Engineer Regional Stores of the Rural Development Board, Calicut, during the year 1975-76 the respondent had defalcated the store materials, as a result of which the Rural Development Board sustained a loss of Rs. 31,337.28. The respondent was, therefore, directed to show cause as to why disciplinary action as contemplated under the Kerala Civil Services (Classification, Control and appeal) Rules, 1960 should not be taken against him and why the loss sustained should not be recovered from him. While so, the respondent was prosecuted before the Court of the Enquiry Commissioner and Special Judge, Thrissur for offences punishable under S.5(1)(c) read with S.5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947 read with S.409,466,467 and 477AA of the Indian Penal Code. By judgment dated 23.12.1987 the Special Judge found the respondent guilty of the offences charged against him and convicted and sentenced him. On his conviction by a Criminal Court, the Chief Engineer, Public Works Department Trivandrum, by Ext. P3 order dated 11.2.1988, removed the respondent from service with effect from the date of service of the order. In Crl. Appeal No. 4 of 1988 this Court, by judgment dated 29.8.1989 (Ext. R2(a)), set aside the conviction and sentence entered against the respondent and acquitted him of all the charges framed against him. P3 order dated 11.2.1988, removed the respondent from service with effect from the date of service of the order. In Crl. Appeal No. 4 of 1988 this Court, by judgment dated 29.8.1989 (Ext. R2(a)), set aside the conviction and sentence entered against the respondent and acquitted him of all the charges framed against him. That judgment was confirmed by the Supreme Court by dismissing SLP (Crl.) No. 399 of 1990 filed by the appellants herein by judgment dated 6.4.1990. Since no orders were passed by the appellants consequent on his acquittal in the criminal case, the respondent requested for his reinstatement in service by representation dated 20th October, 1989, following Ext. R2(a) judgment of this Court. By Ext. P4 dated 3.3.1990 the 2nd appellant Chief Engineer informed respondent that no reinstatement was possible in view of the contemplated disciplinary action against him. By Ext. P5 dated 16.12.1991 the Chief Engineer ordered that the respondent be placed under suspension with effect from the date of removal from service till the date of retirement, viz. from 11.2.1988 to 31.5.1989. Subsequently by Ext. P6 order dated 28.5.1992 the Chief Engineer set aside Ext. P3 order dated 11.2.1988 removing the respondent from service and further ordered that the respondent shall be deemed to have been placed under suspension from 20th February, 1988, the date of removal from service, till 31.5.1989, the date of retirement. 3. By Ext. P8 dated 28.5.1992, the Chief Engineer, Public Works Department (Administration), Thiruvananthapuram fixed the liability of the respondent for the shortage of cement and M.S. rods during the period of the respondent's incumbency at Rs. 31,337.28 and proposed to recover the loss from the respondent. Explanation was called for from the respondent within thirty days from the date of receipt of Ext. P8. The respondent submitted his explanation on 27.6.1992. By Ext. P9 dated 23.11.1992 the first appellant State of Kerala informed the respondent that necessary directions have been issued to the Chief Engineer to finalise the departmental proceedings initiated against him pursuant to Ext. P8. Thereafter, by Ext. P10 order dated 10.3.1993 the Chief Engineer ordered recovery from the respondent the sum of Rs. 31,337/- from his pensionary benefits. By Ext. P11 order dated 28.4.1993 while according sanction for payment of pensionary claims of the respondent it was ordered to recover a sum of Rs. 31,337/- from the death-cum-retirement gratuity of the respondent. 4. P8. Thereafter, by Ext. P10 order dated 10.3.1993 the Chief Engineer ordered recovery from the respondent the sum of Rs. 31,337/- from his pensionary benefits. By Ext. P11 order dated 28.4.1993 while according sanction for payment of pensionary claims of the respondent it was ordered to recover a sum of Rs. 31,337/- from the death-cum-retirement gratuity of the respondent. 4. The appellants herein filed a statement in the Original Petition, wherein it was contended that the show cause notice was issued within the permissible time, as early as in 1979, and thereafter, Ext. P8 show cause notice was issued on 28.5.1992, which was well within the three years period mentioned in Note 3 to R.3 Part III of the Kerala Service Rules. The circumstances under which the action was taken, the disciplinary proceedings initiated against, him, the conviction in the criminal proceedings on the same set of allegations and the acquittal of the respondent by this Court giving the benefit of doubt were pointed out in the statement. It was also stated that this Court had observed in the judgment in Criminal appeal that the department was entitled to proceed with the departmental action initiated against the respondent in view of the glaring mistakes in the records kept by him. 5. C.S. Rajan, J. by his judgment dated 13th February, 1998 allowed the Original Petition filed by the respondent herein. Before the learned single judge it was argued on behalf of the respondent that in view of the mandate contained in Note 3 to R.3 Part III of the Kerala Service Rules, the liability against a pensioner cannot be fixed beyond three years from the date of retirement. Obviously Ext. P10 and P11 orders have been passed after three years of the retirement of the respondent. On the other hand, the learned Government Pleader submitted before the learned single judge that though the respondent's date of superannuation is 31.5.1989, he was removed from service by order dated 11.2.1988 and the order of removal was set aside only after acquittal of the respondent. Still thereafter, the respondent was under deemed suspension pending departmental action. In view of all these circumstances, the computation of three years from the date of retirement is not possible in the peculiar facts and circumstances of the case. C.S. Rajan, J. on a consideration of the rival contentions, passed the following order: "6. Still thereafter, the respondent was under deemed suspension pending departmental action. In view of all these circumstances, the computation of three years from the date of retirement is not possible in the peculiar facts and circumstances of the case. C.S. Rajan, J. on a consideration of the rival contentions, passed the following order: "6. I do not think such an argument is possible in this case. When the date of retirement of a pensioner is a constant factor, no other circumstance can alter the above date. The subsequent or earlier proceedings taken against the petitioner cannot have any impact on his date of retirement. Therefore, the consistent factor, being the date of retirement, has to be taken into consideration while computing the three years period in Note 3 R. 3 Part III K.SR. There fore, I do not find any justification in ordering recovery of the amount beyond three years period mentioned in Ext. P-10 order. Therefore, I quash Exts. P-10 and P11. The respondents are directed to disburse the D.C.R.G. due to the petitioner within three months from the date of receipt of a copy of this judgment." The learned judge disposed of the Original Petition accordingly. Being aggrieved by the above judgment, the State has preferred the writ appeal. 6. We have heard the arguments of the learned Government Pleader Mr. Alexander Thomas and Mr. E. Subramany appearing for the respondent. 7. Mr. Alexander Thomas invited our attention to Note 3 to R.3 Part III of the Kerala Service Rules, which reads as follows: "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 becoming pensioner. The liabilities of a pensioner should be quantified and intimated to him." According to the Government Pleader, what is stipulated in Note III is not that the liability is to be quantified and intimated within a period of three years from the date of attainment of superannuation age. He pointed out that the rule making authority has very guardedly used the terms "within a period of three years on becoming a pensioner". He pointed out that the rule making authority has very guardedly used the terms "within a period of three years on becoming a pensioner". He submitted that since the outer time limit fixed in Note 3 is within a period of three years on becoming a pensioner, the liabilities are to be fixed only within a period of three years of the incumbent becoming a pensioner. In the instant case, the respondent was removed from service as per order dated 11.2.1988 and he attained the age of superannuation on 31.5.1989. The removal order was set aside only by Ext. P6 order dated 28.5.1992. Thus according to the learned Government Pleader, by virtue of Rr. 29 and 30 of Part III of Kerala Service Rules relating to pension, the respondent was not entitled for pension upto 28.5.1992 since the valid order of removal was in operation against him upto 28.5.1992. Hence, it is submitted, the respondent became a pensioner only on 28.5.1992 on the issuance of Ext. P6, and therefore, the outer time limit of three years on becoming a pensioner stipulated in Note 3 has to be reckoned from the date on which the respondent became a pensioner, ie. 28.5.1992. Based on the above submission, the learned Government Pleader contended that Ext. P10 order finalising the liability of the respondent has been issued on 10.3.1993, which according to him, is well within the period stipulated in Note 3 to R.3 Part III of the Kerala Service Rules. 8. On the other hand, Mr. E. Subramani, learned counsel for the respondent contended that the outer time limit under Note 3 to R.3 Part III of the Kerala Service Rules is to be reckoned from the date of attainment of the age of superannuation, and in the instant case, Ext. R2(a) judgment dated 29.8.1989 reversing the criminal conviction would automatically lead to the effacing of Ext. P3 removal order and the outer time limit stipulated in Note 3 will relate back. According to the Government Pleader, the above contention of counsel for the petitioner/respondent herein is bereft of any merit and, if it is accepted, it would amount to re-writing the rule itself. P3 removal order and the outer time limit stipulated in Note 3 will relate back. According to the Government Pleader, the above contention of counsel for the petitioner/respondent herein is bereft of any merit and, if it is accepted, it would amount to re-writing the rule itself. According to the Government Pleader, since there was a valid order or removal against the respondent, which was in force for the period from 11.2.1988 to 28.5.1992, the respondent became a pensioner only on 28.5.1992 on the issuance of Ext. P6 and the three year period under Note 3 is to be reckoned from 28.5.1992 only. Alternatively he submitted that it was only by the order of the Supreme Court dated 6.4.1990 that the reversal of the conviction became a permanent feature and, in case the aforesaid contention of the State is not accepted, the three years period is to be reckoned from 6.4.1990 viz. the date of the order of the Supreme Court confirming the reversal of the conviction and in which case, the outer time limit is upto 5.4.1993 and the impugned order Ext. P10 has been issued on 10.3.1993, well within the three years' outer time limit. 9. The Government Pleader further submitted that the contention of Mr. E. Subramani that Exts. P8 and P10 are not relatable to the departmental proceedings envisaged in the operative portion of R.3 Part III of the Kerala Service Rules is bereft of any merit. In the instant case, it is submitted, the memo of charges as per Ext. P1 was issued as early as on 31.1.1979 and in Ext. P6 order dated 28.5.1992 it has been specifically held that the departmental proceedings under R.3 Part III of the Kerala Service Rules is to be continued. He submitted that Ext. P1 charge memo was pending since 31.1.1979 and under Ext. P6 it is ordered that R.3 proceedings are to continue, which led to Ext. P8, and after considering the respondent's contentions in the written explanation submitted on 27.6.1992 and after the personal hearing held on 31.10.1992, the final order was issued as per Ext. P10 dated 10.3.1993. It is also the contention of the learned Government Pleader that the respondent's contention that the adjustment of the liability by effecting recovery from the gratuity cannot relate to the departmental proceedings provided in the operative portion of R.3 has no merit. P10 dated 10.3.1993. It is also the contention of the learned Government Pleader that the respondent's contention that the adjustment of the liability by effecting recovery from the gratuity cannot relate to the departmental proceedings provided in the operative portion of R.3 has no merit. In R.3 A Part III of the Kerala Service Rules it is stipulated that where departmental/ disciplinary proceedings are initiated under R.3, then provisional pension alone can be paid until the conclusion of the said proceedings and that no gratuity or DCRG shall be paid to the said person until the conclusion and issuance of final orders in R.3 proceedings. Thus, it is submitted that under clause (a) of R.3A, during the currency of R.3 proceedings, the gratuity is to be withheld. The Government Pleader's further contention is that as per ruling No. 2 under R.116 of Part III of the Kerala Service Rules it is stipulated that if disciplinary proceedings are being continued against an officer under R.3 as on the date of retirement, the existing provision under R.3A of paying provisional pension withholding the entire DCRG will be operative. He submits that R.12(24) of Part I of the Kerala Service Rules clarifies that pension includes DCRG. Thus, it is submitted, under R.3A and Ruling No. 2 of R.116 Part III K.S.R. the entire death-cum-retirement gratuity can be withheld until conclusion of R.3 proceedings, and after issuance of the final orders under R.3, if it is found that the pensioner was guilty of misconduct or for causing pecuniary loss of the Government, the authorities can withhold the pension including DCRG in a manner which is commensurate with the charges proved. It is contended that if it is established that the person has caused pecuniary loss, then certainly, the department can recover the said loss from the pensionary benefits including DCRG on the conclusion of R.3 proceedings, and that in the absence of Notes 2 and 3 to R.3 Part III of the Kerala Service Rules, even for ordinary liabilities which can be easily identified by issuing a mere show cause notice without conducting detailed departmental proceedings, the department was bound to observe the rigorous provisions of the operative portion of R.3 Part III of the Kerala Service Rules by conducting detailed departmental proceedings, which according to the Government Pleader, would have resulted in time consuming process and caused avoidable inconvenience both to the department as well as the pensioner. It is contended that it is to avoid this difficulty that Note 2 was appended under R.3 so that in respect of liabilities which can be easily identified by the issuance of a show cause notice and after reasonable opportunity to the pensioner, then in the case of such liabilities the department is given liberty not to take recourse to detailed departmental proceedings under the operative portion of R.3 Part III and as per Note 2 all that the department has to do is to issue show cause notice and afford reasonable opportunity and then finalise such liabilities. That does not mean, where after conducting departmental proceedings under the operative portion of R.3 Part III, the department cannot effect recovery of the liabilities from the DCRG. He submitted that when, after taking recourse to R.3 proceedings, it is established that pecuniary loss is sustained, then such liabilities can be adjusted as against the DCRG also, and that a combined reading of Rr. 3,3 A and Ruling No. 2 of R.116 of Part III of the Kerala Service Rules clearly shows that recovery from DCRG can also be on the basis of R.3 proceedings. 3,3 A and Ruling No. 2 of R.116 of Part III of the Kerala Service Rules clearly shows that recovery from DCRG can also be on the basis of R.3 proceedings. He further pointed out that in the operative portion of R.3 Part III no outer time limit has been fixed for the finalisation or conclusion of R.3 proceedings, and it is clear from the fact that even under proviso (b)(ii) of that rule, the outer time limit for instituting departmental proceedings which are not instituted by the Government while the employee is in service is a period of four years between the date of occurrence of the event and the date of the said institution. Therefore, the Government Pleader submitted that the contention of the respondent that the period of limitation for concluding and finalising the proceedings under R.3 Part III of the Kerala Service Rules is three years from the date of retirement cannot at all be accepted. 10. We have carefully considered the rival submissions made by the Government Pleader as well as counsel for the respondent and also perused the rules and the pleadings. Under R.3 Part III of the Kerala Service Rules the Government reserves to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period. The Government also reserves to themselves the right of ordering the recovery from a pensioner of the whole or part of any pecuniary loss caused to the Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service; including service rendered upon re-employment. It has to be noted that for the application of R.3 Part III that the petitioner is found guilty of grave misconduct or negligence during the period of his service. Note2toR. 3 clarifies tat the word' pension' used in that rule does not include death-cum-retirement gratuity. By the applicability of Note 2 to R.3, it is not possible for the Government to withhold the death-cum-retirement gratuity or order recovery of the whole or any part of a pecuniary loss caused to the Government from the death-cum¬retirement Gratuity, even if the pensioner is found guilty in a departmental or judicial proceeding of grave misconduct or negligence during the period of his service. However, Note 2 to R.3 provides that 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 R.3, after giving the employee or pensioner concerned a reasonable opportunity to explain. Note 3 to R.3 enjoins that the liability of an employee should be quantified either before or after retirement and intimated to him, if possible before retirement, or after retirement but within a period of three years on becoming a pensioner. The date of becoming a pensioner, in our opinion, is a constant factor viz, the date of attaining the age of superannuation. An ordinary pension apart from special orders, is payable from the date on which the pensioner ceases to be borne on the establishment as per R.119 Part III of the Kerala Service Rules. A person ceases to be borne on the establishment on the date of his superannuation. In the instant case, the respondent ceased to be borne on the establishment on 31.5.1989, the date of his attaining the age of superannuation. The respondent, therefore, became a pensioner on 31.5.1989. Ext. P8 dated 28.5.1992 required the respondent to show cause as to why the amount of Rs. 31,337/- shall not be fixed as liability of the respondent to be recovered from his death-cum-retirement gratuity. After considering the explanation of the respondent, the liability to the recovered from his death-cum-retirement gratuity was fixed and intimated to the respondent only by Ext. P10 dated 10.3.1993 and by Ext. P11 dated 28.4.1993. Therefore, the quantification and intimation of the liabilities of the respondent to be recovered from his death-cum-retirement gratuity was well beyond the period of three years contemplated by Note 3 to R.3 Part III of the Kerala Service Rules. Once Ext. P3 order removing the respondent from service was set aside by Ext. P6 order dated 28.5.1992, the respondent is deemed to have retired from service on 31.5.1989 and thus he became a pensioner on 31.5.1989. Ext. P6 directs that the respondent shall be deemed to have been placed under suspension under R.10(5) of the Kerala Civil Services (Classification, Control and appeal) Rules, 1960 with effect from 20.2.1988, the date of his removal from service, till 31.5.1989 the date of retirement. Ext. P6 directs that the respondent shall be deemed to have been placed under suspension under R.10(5) of the Kerala Civil Services (Classification, Control and appeal) Rules, 1960 with effect from 20.2.1988, the date of his removal from service, till 31.5.1989 the date of retirement. Once the Government servant attained the age of superannuation, he ceases to be a government servant and, therefore, cannot continue to remain under suspension until further orders as contemplated by R.10(5) of the Kerala Civil Services (Classification, Control and appeal) Rules, 1960. We are, therefore, of the opinion that it is not possible to enlarge the period fixed under Note 3 to R.3 of Part III of the Kerala Service Rules to any date other than the date of attaining the age of superannuation. The contention of the Government Pleader that the period of three years contemplated by Note 3 to R.3 Part III of the KSR should be reckoned only from 6.4.1990 the date of dismissal of the SLP (Criminal) by the Supreme Court or from 28.5.1992 the date of Ext. P6 order by which Ext. P3 order removing the respondent from service was set aside, cannot be accepted. A government servant becomes a pensioner squarely on attaining the age of superannuation. The date of becoming a pensioner is always constant, viz. the date of attaining the age of superannuation and no other date is contemplated by Note 3 to R.3 of Partner of the Kerala Service Rules. This is what is held by the learned single judge. The judgment of the learned single judge, therefore, calls for no interference. The writ appeal, therefore, fails and is hereby dismissed. The appellants are hereby directed to disburse the death-cum-retirement gratuity due to the respondent within one month from the date of receipt of a copy of this judgment.