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2006 DIGILAW 316 (KER)

Samuel Mathew Parakkat v. State of Kerala

2006-06-09

K.THANKAPPAN

body2006
Judgment :- K. Thankappan, J. The question involved in these two Writ Petitions is whether the Government is justified in passing Ext.P8 order imposing a penalty of withholding of an amount of Rs.1820/- per month from the monthly pension of the petitioner for a period of 60 months. 2. The allegations against the petitioner is that while he was working as Zilla Sainik Welfare Officer, Kasaragod, he was unauthorisedly absent from office from 21.12.1992 to 31.12.1992 and that he made short payment of the financial grants which were sanctioned to the Ex-servicemen and dependents by deducting Rs.20 to Rs.100/- from the sanctioned amount and making entries in the discharge books and office records to the effect that the amount has been paid and also obtained signature of the beneficiaries for the same. It is further alleged that the petitioner demanded and accepted amounts varying from Rs.100/- to Rs.300/- from widows of Ex-servicemen and thereby failed to maintain integrity and devotion to duty. 3. The petitioner faced vigilance enquiry on the above charges and after a full fledged enquiry, the Vigilance Tribunal submitted its report to the Government. Accepting the report submitted by the Vigilance Tribunal, the Government issued Ext.P2 show cause notice and Ext.P3 revised show cause notice to the petitioner directing him to show cause why a punishment of reduction in stages to the lowest time scale for five years, under Note 6 to sub-r.(v) of R.11 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (hereinafter referred to as "the Rules") should not be imposed on him, as advised by the Public Service Commission. As the explanation submitted by the petitioner was found unsatisfactory, the petitioner was informed of the proposed punishment as pet Ext.P5 communication. Ext.P5 is challenged by the petitioner in O.P.No.32402 of 2001 and this Court as per order dated 30.10.2001 stayed further proceedings in Ext.P5. During the pendency of the above Original Petition, the Government examined the matter further and passed Ext.P8 order Which is challenged in W.P.(C) No.15804 of 2004. 4. This Court heard Sri. P.C. Sasidharan, learned counsel appearing for the petitioner in the two Writ Petitions and also the learned. Government Pleader appearing for and on behalf of the respondents. 5. During the pendency of the above Original Petition, the Government examined the matter further and passed Ext.P8 order Which is challenged in W.P.(C) No.15804 of 2004. 4. This Court heard Sri. P.C. Sasidharan, learned counsel appearing for the petitioner in the two Writ Petitions and also the learned. Government Pleader appearing for and on behalf of the respondents. 5. Learned counsel appearing for the petitioner submits that the penalty imposed as per Ext.P8 is not sustainable on three, grounds: (i) the petitioner retired from service on 31.3.2001 and hence invoking the provisions of Rule 11 of the Rules, the Government is not empowered to impose any penalty after retirement of a Government servant; (ii) even if the punishment imposed as per Ext.P8 can be treated as a liability fixed on the petitioner under Rule 3, Chapter I of Part III of the Kerala Service Rules, the said order is not passed for recovery of any amount to make good the pecuniary loss sustained by the Government and (iii) even if any loss is sustained by the Government, it has to be quantified by separate proceedings and that the amount now ordered to be recovered from the pension of the petitioner is to make good the loss being sustained by the Government to compensate the beneficiaries to whom reduced payments were made by the petitioner. 6. With regard to the first contention, admittedly the petitioner retired from service on 31.3.2001. As per the principles laid down by this Court in the decision reported in Bhaskaran Pillai v. Devaswom Commissioner, 1997 (1) KLT 428, when an employee retires from service, master and servant relationship between the employer and the employee ceases and if that be so, the employer cannot impose any penalty on the employee under R.11 of Rules and even if any action is initiated, it should be completed and the penalty should be imposed as if the delinquent is an employee of the Government. This question was also considered by the Apex Court in the decision reported in Bhagirathi Jena v. Board of Directors O.S.F.C. (1999) 3 SCC 666. In the above judgment, the Apex Court held that there is no provision for conducting disciplinary enquiry against an employee who has retired from Government service. This question was also considered by the Apex Court in the decision reported in Bhagirathi Jena v. Board of Directors O.S.F.C. (1999) 3 SCC 666. In the above judgment, the Apex Court held that there is no provision for conducting disciplinary enquiry against an employee who has retired from Government service. The Apex Court also held that once the employee retires from service, there is, no authority for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the employee. Hence on the above principles, Ext.P8 is not sustainable. 7. Coming to the second, contention, it is a fact that the petitioner faced vigilance enquiry and accepting the enquiry report, the Government issued Exts.P2 and P3 show cause notices and Ext.P5 communication informing the petitioner of the proposed punishment. The proposed punishment as per Ext.P5 was not finalized before the retirement of the petitioner. The Government continued to take up the matter and now as per Ext.P8 an amount of Rs.1820/- was ordered to be withheld from the monthly pension of the petitioner for a period of 60 months. Such a penalty cannot be imposed on the petitioner since there is no finding either by the Vigilance Tribunal or in any other proceedings that the Government sustained pecuniary loss due to the misconduct of the petitioner and recovery of the amount from the monthly pension of the petitioner is to make good the pecuniary loss sustained by the Government. This question is also covered by the judgment of this Court reported in Devassia v. State of Kerala (2004 (2) KLT (SN) Case No.6). This question is also covered by the judgment of this Court reported in Devassia v. State of Kerala (2004 (2) KLT (SN) Case No.6). In the above judgment, this Court held as follows: "Withholding or withdrawing pension is permissible if pensioner is found guilty of misconduct or negligence during service including service on reemployment; whereas for recovery from pension, apart from such finding of guilt, there should also be a finding as to the pecuniary loss caused to the Government as a result of such grave misconduct or negligence." The Apex Court also considered this question in the decision reported in Union of India v. B. Dev (AIR 1998 SC 2709) and the Apex Court held that for ordering recovery from pension, it should be found in departmental or judicial proceedings that the petitioner was guilty of grave misconduct or negligence during the period of his service as a result of which whole or part of any pecuniary loss was caused to the Government. There is no such finding in the present case. Hence, on that score also, Ext.P8 is not sustainable. 8. With regard to the third ground, it is stated in the counter affidavit filed for and on behalf of the first respondent in W.P.(C) No.15804 of 2004 that the petitioner caused pecuniary loss to the Government in as much as the Government has to make good the loss sustained to compensate the beneficiaries to whom reduced payments were made by the petitioner. As a matter of fact, there is no procedure for recovery of un quantified amount from a retired employee and even if the amount is quantified, it should be within the period prescribed in Note 3 to R.3 of Chapter I, Part III of the Kerala Service Rules. Hence, on this ground also, the Government was not justified in ordering recovery of the amount as shown in Ext.P8. From the above legal principles and from the facts revealed, this Court is of the view that Ext.P8 order is not sustainable and it is liable to be quashed. Ordered accordingly. W.P.(C) No.15804/2004 is allowed. In the light of the findings entered in this judgment, the question raised in O.P. No. 32402 of 2001 need not be considered and the Original Petition is closed.