KERALA STATE ELECTRICITY BOARD v. T.G. DAVID

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941** **WA.No.2202 OF 2016** **AGAINST THE JUDGMENT IN WPC 27341/2003 DATED 27-01-2016 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS IN WP(C):** **1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **2 THE CHAIRMAN KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **BY ADVS. SRI.P.SANTHALINGAM (SR.) SRI.S.SHARAN,SC, K.S.E.BOARD SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED** ## **RESPONDENT/PETITIONER IN WP(C):** **T.G.DAVID EXECUTIVE ENGINEER (RETIRED), ELECTRICAL CIRCLE KASARGODE, THONDANVALIL HOUSE, NEAR N.S.S HIGH SCHOOL, KALPETTA 673 121.** ## **BY ADV. SRI.GEORGE POONTHOTTAM** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.No.2202 OF 2016** 2 ## **JUDGMENT** **Dated this the 3rd day of December 2019** ## Ravikumar, J This intra-court appeal is preferred against the judgment dated 27.01.2016 in WP(C)No.27341/2003. The respondents therein are the appellants. The respondent herein/ the writ petitioner filed the said writ petition on being aggrieved by the reduction of pension under Rule 59(b) of Part III of Kerala Service Rules, 1959 (for brevity 'KSR'). Invoking the power under Rule 59(b) of Part III, KSR after the retirement of the petitioner his pension was reduced as per Ext.P12. In the said circumstances, the respondent herein filed the writ petition seeking quashment of Ext.P8 show cause notice and Ext.P12 order and such further reliefs as hereunder:- “ii) issue a writ declaring that Ext.P7 report of the enquiry officer is contrary to the duties and responsibilities as specifically enumerated through the board orders and the findings against the petitioner is wrong; iii) issue a writ declaring that the punishment imposed through Ext.P12 invoking Rule 59(b) of Part III KSR as against the petitioner is wrong as the conditions mentioned in the said **WA.No.2202 OF 2016** 3 Rule are inapplicable as far as the petitioner is concerned and further that the said rule cannot be applied as against the petitioner; iv) issue a writ declaring that the proceedings initiated against the petitioner as per Ext.P8 and p12 as contrary to G.O. (P)No.185/2002/Fin. Dated 27.03.2002.” 2. The learned single Judge after hearing the learned counsel for the petitioner as also the learned standing counsel appearing for the respondents, considered the contentions on merits. 3. The learned single Judge considered the scope of power under Rule 59(b) and found that it is available for invocation only on entering into a clear finding that the services of the petitioner were thoroughly unsatisfactory. It is further found that in Ext.P12 order a finding to the effect that the services of the writ petitioner were thoroughly unsatisfactory, was conspicuously absent and consequently, held Ext.P12 order as unsustainable. Outcome of such consideration culminated in the dismissal of the writ petition. It is in the said circumstances that the captioned appeal has been filed. **WA.No.2202 OF 2016** 4 4. Heard the learned counsel for the appellants and also the learned counsel appearing for the respondent. 5. The learned counsel for the appellants attempted to get sustained Ext.P12 order by raising contentions unsuccessfully raised before the learned single Judge and also by placing reliance on Government decision No.2(a) under Rule III of Part I KSR. In the context of the contention raised by the learned counsel for the appellants it is appropriate to refer a decision of this Court in **Francis v. State of Kerala** reported in 1997(2) KLT SN 34. It was held therein thus:- “Thus 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 rule 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, the argument is, it can be resorted to. In certain cases disciplinary proceeding 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 **WA.No.2202 OF 2016** 5 those instances are included in the charge memo it cannot be argued that they will not form as a basis for invoking rule 59(b).” In the said circumstances at the first flush it would appear that the contention raised by the appellants based on Rule 59(b) of Part III, KSR read with Government decision No.2(a) under Rule 111 of Part II, KSR is acceptable. We have carefully gone through Ext.P12. Even if the supervisory lapse alleged is treated as a specific instance so long as Ext.P12 order lacks a clear finding to the effect that the services of the writ petitioner were thoroughly unsatisfactory, how can it form as a basis for invoking Rule 59(b) of the Rules. When that particular finding is lacking in an order passed in invocation of Rule 59(b) it cannot be sustained. For considering the merits of the challenge against Ext.P12 it is only proper to refer to Rule 59(b) of Part III, KSR. It reads thus:- “59 (b) If the service has not been thoroughly satisfactory, the Government may make such reduction in the amounts as they think proper. Note 1 – Government may review their orders if the affected employee makes a request within a period of three months from the date of the orders. Note 2 –This rule does not operate to authorize a reduction of **WA.No.2202 OF 2016** 6 ordinary pension either to nothing or to a nominal amount.” If only a clear finding is arrived at to the effect that the services of the person concerned, who retired from the service, were not thoroughly satisfactory, then and then only, the power under Rule 59(b) would become available for exercise. As noticed hereinbefore, the learned single Judge rightfully arrived at the conclusion that such a finding is not there in Ext.P12 and therefore it cannot be sustained. It is also to be noted that as per Ext.P12 the pension of the writ petitioner was reduced to 20%. Reduction of pension is a drastic step and hence it can be invoked only after scrupulously adhering to the enabling provision viz., Rule 59(b) of Part III KSR and subject to the satisfaction of the condition for its invocation. Once it is found that power under Rule 59(b) of Part III, KSR was not properly exercised the order passed in purported exercise of the said power cannot be sustained. That exactly is what was done by the learned single Judge as per the impugned judgment. In Ext.P12 the finding is to the effect that as per Ext.P7 enquiry report in the enquiry initiated against the writ petitioner, who was then working **WA.No.2202 OF 2016** 7 as an Assistant Executive Engineer, two Sub Engineers and an Assistant Engineer in respect of a particular incident the writ petitioner was found guilty of supervisory lapse. Though enquiry was completed almost three years prior to the date of retirement of superannuation of the writ petitioner till his superannuation no order was issued by the disciplinary authority holding him guilty of the charges alleged against him and needless to say that in such circumstances, no proceedings imposing any penalty on him was also issued. It is in this circumstances that the learned single Judge has considered the sustainability of Ext.P12 in the light of the decision in **Chacko v K.S.E.B** [2005(1) KLT 897]. In **Chacko** 's case this Court held that for invocation of Rule 59(b), the consideration which is relevant is the quality of the service rendered by the employees concerned and it would not depend upon the pecuniary loss caused to the Government. The order impugned therein was found not one passed under Rule 59(b) for the absence of a finding that the petitioner's service was thoroughly unsatisfactory. In the light of the said decision the learned single Judge declined to sustain the action in Ext.P12 **WA.No.2202 OF 2016** 8 whereby pension was reduced by 40% under Rule 59(b). We do not find any illegality in the judgment in the said circumstances. Hence, we do not find any reason to interfere with the judgment passed by the learned single Judge. Consequently, this appeal must fail and it is dismissed **Sd/-** ## **C.T.RAVIKUMAR** ## **JUDGE** **Sd/-** **N.NAGARESH** **JUDGE** dlk/03.12.19