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2000 DIGILAW 594 (KER)

Pathrose v. State of Kerala

2000-11-10

G.SASIDHARAN, K.S.RADHAKRISHNAN

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Judgment :- Per K. S. Radhakrishnan, J. The appellant was a Tribal Extension Officer. He moved O.P. No. 27832 of 1999 challenging Ext. P9 memo of charges dated 30.11.1998 to show cause why disciplinary action be not taken against him for dereliction of duty, misappropriation of money etc. The short facts leading to the issuance of the said memo of charges are as follows. During the year 1994-95 seven houses were sanctioned by the Project Officer, ITDP, Iddukki for 7 beneficiaries at Elamblassery Tribal Settlement in Iddukki Dist. As per the Scheme, the beneficiaries are eligible for the grant for the construction of houses and also 1.5 cubic metre timber for each house at seniorage rate from the Forest Department. Six houses were completed and on the basis of a completion certificate issued by the Assistant Engineer final and last instalment of housing grant was paid on 20.9.1995 to the beneficiaries. After completion of the houses in all respects, and as per the request of the then Tribal Extension Officer, the appellant petitioner, 10.426 cubic metre of timber was allotted to the 7 beneficiaries by the Conservator of Forests, Iddukki. The Divisional Forest Officer had directed the Range Officer to release the timber to the Project Officer, ITDP, Iddukki who in turn had authorised the Tribal Extension Officer, the appellant, to receive the same. Appellant, instead of receiving the timber, sent a receipt to the Range Officer authorising one of the beneficiaries, namely, T. Ravi Narayanan, to take delivery of the timber, thereby violated the direction given by the superior officer. The appellant was placed under suspension and the matter was referred to the Vigilance Department for investigation. Ext. P5 dated 4.1.1997 is the order by which appellant was placed under suspension. Appellant submitted a detailed representation against the suspension order and sought reinstatement. Since no action was taken he preferred O.P. No. 18233 of 1997, which this Court disposed of on 24.10.1997 directing the Director of Scheduled Tribe Development Department to pass orders on his representation. Without properly considering his application, the same was rejected by order dated 21.11.1997. Aggrieved by the same, appellant preferred an appeal under S. 22 of the Classification, Control and Appeal Rules, 1960. Appeal was rejected by the Government vide its order dated 6.5.1998 without stating any reasons. Without properly considering his application, the same was rejected by order dated 21.11.1997. Aggrieved by the same, appellant preferred an appeal under S. 22 of the Classification, Control and Appeal Rules, 1960. Appeal was rejected by the Government vide its order dated 6.5.1998 without stating any reasons. Appellant then filed O.P. No. 15976 of 1998 challenging the said order, and sought for a direction for reinstatement which was later withdrawn by the appellant, since he was reinstated in service with effect from 28.11.1998. Appellant later retired from service on 30.11.1998.Appellant submits that after his retirement, on 7.1 2.1998 he received Ext. P9 memo of charges, details of which we have narrated in the earlier part of the judgment. Appellant, aggrieved by the memo of charges, filed the Writ Petition. According to the appellant, no departmental disciplinary proceedings were initiated by the authorities while he was in service. According to him, Explanation (a) to R. 3 of Part III K.S.R. says that the departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the employee or pensioner or if the employee has been placed under suspension from an earlier date, on such date. Counter affidavit has been filed on behalf of the second respondent. According to the counter affidavit, Ext. P9 memo of charges is part of departmental proceedings initiated against the appellant. It was pointed out that the appellant was earlier suspended by Ext. P5 order, but he was reinstated at the request of the appellant on 28.11.1998. The reinstatement order stated that he was reinstated subject to completion of disciplinary proceedings. On merits also, it is stated in the counter affidavit that department is justified in initiating disciplinary proceedings. Further it is stated that authority has got power to proceed against the appellant under R. 3 of Part III K.S.R. We heard counsel for the appellant Sri G. D. Panicker and learned Government Pleader Sri K. M. Stalin. In order to appreciate the rival contentions, it is necessary to examine the scope of R. 3 of Part III K.S.R., which is extracted below for easy reference : 3. In order to appreciate the rival contentions, it is necessary to examine the scope of R. 3 of Part III K.S.R., which is extracted below for easy reference : 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; 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 of 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. (b) such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his re-employment. (i) shall not be instituted save with the sanction of the Government; (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the employee during his service; (c) No such judicial proceedings, if not instituted while the employee was in service whether before his retirement or during his re-employment, shall be instituted, save with the sanction of the Government, in respect of a cause of action which arose or an event which took place more than four years before such institution. (d) The Public Service Commission shall be consulted before final orders are passed. (d) The Public Service Commission shall be consulted before final orders are passed. Explanation :- For the purpose of this rule - (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the employee or pensioner or if the employee has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted -(i) in the case of a criminal proceeding on the date on which the complaint at report of police officer on which the Magistrate takes cognizance is made; and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the court: ............. We are of the view that in this case we need not go into the merits of the charges levelled against the appellant. The entire case now centres round the question whether the departmental proceedings were initiated against the appellant while he was in service. Appellant mentioned the stand that no departmental proceedings were initiated against him while he was in service. Learned Government Pleader took up the stand that in fact departmental proceedings were initiated against the appellant on the date of his retirement that is on 30.11.1998. We notice that the memo of charges Ext. P9 is dated 30.11.1998. On that date itself admittedly appellant retired from service. Question arose when Ext. P9 memo of charges was issued from the office of the Scheduled Tribe Development Department to the appellant, who was, on the date of retirement, working as Tribal Extension Officer, Idamalayar. The memo of charges is seen signed by the Director, Scheduled Tribe Development Department, Trivandrum. The order shows that it was typed by the typist on 1.12.1998. Manual of Office Procedure, Chapter XII, under heading "fair copying comparing and despatching" sub paragraph 11 of paragraph 113, reads as follows : The typist should invariably type his initials with date at the left-hand corner at end of a fair copy and should also initial with date in ink on the left hand top corner of the draft (or in the appropriate place in the page, if one is printed there). In Ext. P9 order on the left hand side at the bottom of the order, it is typed as "JK 1.12". According to the appellant, he received the order only on 7.12.1998. In Ext. P9 order on the left hand side at the bottom of the order, it is typed as "JK 1.12". According to the appellant, he received the order only on 7.12.1998. Explanation (a) of R. 3 of Part III K.S.R. says that a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the employee or pensioner or if the employee has been placed under suspension from an earlier date, on such date.We have to examine the question as to when the statement of charges was issued to the appellant. This date assumes importance because clause (b)(i) of the proviso to R. 3 says that departmental proceedings, if not instituted while the employee was in service, whether before his retirement or during his reemployment, shall not be issued save with the sanction of the Government. Admittedly no sanction of the Government was obtained before issuing the memo of charges. Clause (b)(ii) of the proviso to R. 3 also says that departmental proceedings, if not instituted, while the employee was in service, whether before his retirement or during his re-employment, shall not be in respect of any event which took place more than four years before such institution. Counsel for the appellant submitted, if at all there is any basis in the charges, the incident occurred beyond four years. We have already indicated that the memo of charges was typed on 1.12.1998, that is after the date of retirement of the appellant. Let us examine the meaning of the word "issued" that we get in R. 3 of Part III K.S.R. The Apex Court in Union of India v. K. V. Jankiraman, AIR 1991 SC 2010 dealing with the provisions of the Government of India (Department of Personnel and Training) Office memorandum dated 30.1.1982 examined the question as to when the disciplinary proceedings is stated to have been initiated. The Apex Court held it is only when a charge memo in a disciplinary proceedings or a charge sheet in a criminal prosecution is issued to the employee it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The meaning of the word "issued" came up for consideration before the Apex Court in Delhi Development Authority H. C. Khurana, 1993 II CLR 683 SC. The meaning of the word "issued" came up for consideration before the Apex Court in Delhi Development Authority H. C. Khurana, 1993 II CLR 683 SC. The Apex Court was dealing with the disciplinary proceedings initiated by office memorandum dated 12.1.1998, examined the word "issued" and held as follows :The decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge sheet, since issue of the charge sheet is a consequence of the decision of initiate disciplinary proceedings, framing the charge sheet, is the first step taken for holding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge sheet is framed on the basis of the allegations made against the Government servant; the charge sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held into the charges, if the charges are not proved, the proceedings are closed and the Government servant exonerated; but if the charges are proved, the penalty follows. Thus the service of the charge sheet on the Government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge sheet to the Government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the Government servant of the charges framed against him, by service of charge sheet, is not a part of the decision taking process of the authorities for initiating the disciplinary proceedings. The Apex Court while reversing the decision of the Delhi High Court held as follows : Issue of the charge sheet in the context of a decision taken to initiate the disciplinary proceedings must mean, as it does, the framing of the charge sheet and taking of the necessary action to despatch the charge sheet to the employee to inform him of the charges framed against him requiring his explanation; and not also the further fact of service of the charge sheet on the employee. It is so, because knowledge to the employee of the charges framed against him on the basis of the decision taken to initiate disciplinary proceedings, does not form part of the decision making process of the authorities to initiate the disciplinary proceedings, even if framing the charges forms part of that process in certain situations. The meaning of the word 'issued' has to be gathered from the context in which it is used. The issue of a charge sheet, therefore means its despatch to the Government servant, and this act is complete the moment steps are taken for the purpose, by framing the charge sheet and despatching it to the Government servant, the further fact of its actual service on the Government servant not being a necessary part of its requirement.It is evident from the above mentioned proposition laid down by the Apex Court that the word 'issued' means its despatch to the Government servant and this act is complete by framing charge sheet and despatching it to the Government servant, though actual service on the Government servant is not being a necessary part of its requirement. The dictionary meaning of the word "issued" would mean "to send out", "to send out of officially" "to sent forthwith". Ext. P9 was typed only on 1.12.1998 by that time, appellant already retired from service on 30.11.1998. Therefore we are of the view that no departmental proceedings were initiated against the appellant, while he was in service. Further no sanction was also obtained from the Government as required under clause (b)(i) of the proviso to R. 3 before issuing Ext. P9. We therefore declare that the department cannot proceed against the appellant, a retired Government servant. We may in this connection indicate that facts in this case also would not justify initiation of departmental proceedings. It is a case where no loss has been caused to the Government. Admittedly, the amount due to the State at seniorage rate was already been paid by the settlers for whom timber was allotted for construction of seven houses. On going through Exts. P2 to P4, it is seen that settlers had authorised the appellant to receive the items which were ear-marked for them for the construction of houses. Admittedly, the amount due to the State at seniorage rate was already been paid by the settlers for whom timber was allotted for construction of seven houses. On going through Exts. P2 to P4, it is seen that settlers had authorised the appellant to receive the items which were ear-marked for them for the construction of houses. On the basis of the undertaking between the appellant and settlers that the timber was received by one T. Ravi Narayanan, a Tribal settlers who is also a beneficiary. We notice that no settlers had made any complaint against the appellant in respect of charges enumerated in Ext. P9. The amount due to the Government has already been paid by the settlers, when timber was allotted to them at the seniorage rate, and they have no complaint that they have not received the timber. We therefore find no merit in the charges levelled against him.In the said circumstances, we are of the view that learned Single Judge was not justified in not granting the relief prayed for by the appellant. Consequently the judgment of the learned Single Judge is set aside. We declare that no further proceedings be initiated against the appellant on the basis of Ext. P9 which was evidently issued after his retirement. Writ Appeal is allowed as above.