V.G. Rajan v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 1ST DAY OF APRIL 2014/11TH CHAITHRA, 1936 WP(C).No. 25480 of 2011 (H) ---------------------------- PETITIONER: ----------- V.G.RAJAN, RETIRED SUPERINTENDENT, KERALA STATE ELECTRICITY BOARD, RESIDING AT RAGAM NIVAS, ADICHIPUZHA POST, RANNI PERUNNAD, PATHANAMTHITTA. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): -------------- 1. KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM TRIVANDRUM-4. 2. THE DEPUTY CHIEF ENGINEER, TRANSMISSION CIRCLE, NALLALAM, KOZHIKODE-673 027. 3. THE DEPUTY TAHSILDHAR(HEAD QUARTERS) TALUK OFFICE, RANNI, PATHANAMTHITTA DISTRICT-689 672. R BY ADV. GOVERNMENT PLEADER R1-R2 BY ADV. SRI.K.S.ANIL, SC, KSEB R BY GOVERNMENT PLEADER SRI SHYSON P.MANGUZHA R BY SRI.K.M.SATHYANATHA MENON,SC,KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25480 of 2011 (H) **A P P E N D I X** ## PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE REPORT DATED 30/9/2004. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 15/12/2004. EXHIBIT P3 TRUE COPY OF THE STATEMENT PREPARED BY THE BOARD. EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WRIT PETITION (CIVIL) NO.18682/2005 DATED 2/3/2010. EXHIBIT P5 TRUE COPY OF THE NOTICE ISSUED UNDER SECTION 7 OF THE REVENUE RECOVERY ACT. EXHIBIT P6 TRUE COPOY OF THE NOTICE ISSUED UNDER SECTION 33 OF THE REVENUE RECOVERY ACT. /TRUE COPY/ P.S TO JUDGE **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.25480 of 2011-H ---------------------------------------------------Dated this the 1[st] April, 2014** ## **J U D G M E N T** The petitioner has filed this Writ Petition challenging Exts.P5 and P6 notices issued under the Kerala Revenue Recovery Act, 1968, against him. The petitioner had retired from the service of the Kerala State Electricity Board as Superintendent on 30.09.2004. The petitioner had, during his service, been the Assistant Store Keeper at Nallalam, Kozhikode. It was found that, during his tenure as the Assistant Store Keeper, there was shortage of materials amounting to Rs.8,24,441/-. A disciplinary enquiry was conducted and it was found that, the said amount was liable to be recovered from the petitioner's pensionery benefits. The enquiry found the petitioner guilty of gross misconduct, dereliction of duty, insubordination and misappropriation of property of the 1[st] respondent amounting to Rs.8,24,441/-. According to the petitioner, Revenue Recovery Proceedings **W.P(c) No.25480 of 2011-H** 2 initiated against him are not maintainable for the reason that they are time barred. 2. The petitioner had earlier approached this Court by fling W.P(c) No.18682 of 2005. The said Writ Petition was filed challenging the report of enquiry that found the petitioner guilty of the charges levelled against him. He had also sought for the issue of appropriate directions for the disbursement of his Gratuity, Provident Fund, Commuted Value of Pension, Terminal Leave Surrender, arrears of Dearness Allowance as well as Full Pension with interest thereon at the rate of 12% per annum. The Writ Petition was contested by the respondents. The said Writ Petition was finally disposed of by Ext.P4 judgment dated 02.03.2010. According to the petitioner, the amount that is sought to be recovered had fallen due on 15.12.2004, on which date Ext.P2 order was passed imposing the liability on the petitioner. The petitioner also places reliance on the decision of this Court reported in **Sriram Engineering Construction Co. v. Kerala State Industrial** **W.P(c) No.25480 of 2011-H** 3 **Development Corporation and another** [2007(1) KHC 974] and **Siddique K. v. Tahsildar & Ors.** [2013 KHC 2736]. 3. According to the Senior Counsel, Sri S.Ramesh Babu, who appears for the petitioner, though this Court has in Ext.P4 found that the entire amount of Gratuity due to the petitioner was liable to be adjusted towards the amount demanded, only a portion of the amount was so adjusted. However, instead of adjusting the entire Gratuity amount to the amount demanded from the petitioner, the Revenue Recovery Proceedings have been initiated without any justification, it is contended. The period of limitation for recovery of the amount being 3 years from the date of Ext.P2, the said period has expired, disentitling the respondents from initiating action under Sections 7 and 33 of the Kerala Revenue Recovery Act, 1968, as sought to be done by Exts.P5 and P6. For the above reasons, it is contended that the impugned proceedings Exts.P5 and P6 are liable to be set aside. **W.P(c) No.25480 of 2011-H** 4 4. Advocate K.S.Anil appears for the 1[st] and 2[nd] respondents. According to the counsel, this Court has in Ext.P4 gone into the question as to whether the liability imposed on the petitioner was justified or not. No proceedings for recovery of any amount was initiated against the petitioner after Ext.P2 for the reason that the petitioner had challenged the enquiry report itself in W.P(c) No.18682 of 2005. The said Writ Petition had remained pending and was finally disposed of only on 02.03.2010. By Ext.P4, it was found that the amount imposed as liability on the petitioner was justified and that the Board was entitled to recover the said amount. The said judgment was passed only on 02.03.2010. It was thereafter that, the Revenue Recovery Proceedings have been initiated. It is contended that since the entire issue was pending consideration of this Court, the respondents were not in a position to initiate Revenue Recovery Proceedings at that time. The issue was finally determined only by Ext.P4. For the above reasons, it is contended that there is no time bar in issuing Exts.P5 and 5 **W.P(c) No.25480 of 2011-H** P6. Though the entire amount of Gratuity was found to be liable to forfeiture by the respondents, only a portion of the said amount was adjusted towards the liability. It is the balance amount that is sought to be recovered according to the learned counsel. It is therefore contended that, the petitioner is not entitled to any of the reliefs sought for. 5. Heard. A perusal of Ext.P2 order shows that the said order represents the culmination of the disciplinary proceedings initiated against the petitioner. Ext.P2 has been passed fixing an amount of Rs.8,24,441/- as liability on the petitioner and ordering that the said amount be recovered from the petitioner as well as from his assets. W.P(c) No.18682 of 2005 was filed by the petitioner challenging the enquiry report that forms the basis of Ext.P2. Though no interim order is stated to have been granted in the said Writ Petition, the respondents cannot be found fault with for not having recovered the entire amount at that time for the reason that, the enquiry report that forms the basis of Ext.P2 itself was under challenge in ## **W.P(c) No.25480 of 2011-H** 6 W.P(c) No.18682 of 2005, at the instance of the petitioner himself. Ext.P2 was Ext.P7 in the said Writ Petition. As already noticed above, the said Writ Petition was finally disposed of only on 02.03.2010. 6. In Ext.P4, this Court has gone into the question as to the justifiability of the liability that has been imposed on the petitioner. The enquiry report was considered and has been found to be justified. Ext.P2 order that was produced as Ext.P7 has also been found to be justified. This Court has concluded the issue as follows: “Hence it is ordered that Sri.V.G.Rajan, formerly Assistant Store Keeper, Transmission Circle, Nallalam is found guilty of gross misconduct, dereliction of duty and have misappropriated Board's property amounting to Rs.8,24,441/- (Rupees eight lakhs twenty four thousand four hundred and forty one only). It is again ordered that the above amount has to be recovered from the amounts due to the delinquent officer from the Board as well as from his assets. The subject case against the delinquent is finalised accordingly.” **W.P(c) No.25480 of 2011-H** 7 7. It is clear from the above that this Court had sustained the enquiry report as well as Ext.P2 order, only by the above finding on 2.3.2010. The petitioner is bound by the said finding, Ext.P4 being a judgment that was rendered inter parties and at his instance. Thereafter, this Court has gone on to consider whether the amount imposed as liability was liable to be recovered from the retirement benefits of the petitioner. It has been held that the entire amount of gratuity of Rs.3,50,000/- payable to the petitioner could be adjusted towards the amount sought to be recovered by Ext.P2. It has also been found that the pension as well as the Commuted Value of Pension payable to the petitioner cannot be proceeded against for recovery of the amount due to the respondents. It has therefore been finally held by this Court as follows: “However, this would be without prejudice to the right of the Board to recover the balance amount due from the petitioner out of Rs.8,24,441/- after adjusting those terminal benefits found to be liable to be adjusted as above, by resorting to other 8 **W.P(c) No.25480 of 2011-H** remedies available to them under law.” Therefore, this Court has held that the respondents were at liberty to recover the balance amount due by taking resort to other remedies available to them under law. Exts.P5 and P6 are dated 27.08.2011 and 02.08.2011 respectively. 8. The liability imposed on the petitioner as per Ext.P2 having been found to be justified by this Court only on 02.03.2010 as per Ext.P4 judgment, issue of Exts.P5 and P6 cannot be said to be beyond the period of 3 years therefrom. In Ext.P4, the entitlement of the respondents to recover the balance amount from the petitioner by taking resort to other remedies available to them also has been recognized. Therefore, the right of the respondents to recover the amount by initiating proceedings under the Revenue Recovery Act cannot be questioned. The said finding, rendered inter parties, at his instance, is also binding on the petitioner. Admittedly, the petitioner has not challenged Ext.P4 in any other proceedings. The above being the position, I am not satisfied that the decisions in 9 **W.P(c) No.25480 of 2011-H** **Sriram Engineering Construction Co. v. Kerala State Industrial Development Corporation and another** (supra) and **Siddique K. v. Tahsildar & Ors.** (supra) have any application to the facts of the present case. For the foregoing reasons, I find no grounds to interfere with Exts.P5 and P6 or to grant any of the reliefs sought for. This Writ Petition fails and is accordingly dismissed. Sd/- _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/