Viswanathan V. v. Kerala State Electricity Board Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY ,THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941** ## **WP(C).No. 4515 of 2018** ## **PETITIONER/PETITIONER:** ## **VISWANATHAN V.,** **AGED 56 YEARS, RETD. ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., RESIDING AT HOUSE NO. 5 KAIRALI NAGAR P.O., KUSUMAGIRI, KAKKANAD, ERNAKULAM, PIN-682030.** ## **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENTS/RESPONDENTS:** - **1 THE KERALA STATE ELECTRICITY BOARD LTD., VYDUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN, PIN-695 004.** - **2 THE CHIEF ENGINEER HRM, KERALA STATE ELECTRICITY BOARD LTD, VYDUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN-695 004.** - **3 THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., OFFICE OF THE CHIEF ENGINEER (DISTRIBUTION CENTRAL), D.H. ROAD, ERNAKULAM, PIN-682 016. [CORRECTED] [THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD, OFFICE OF THE EXECUTIVE ENGINEER, ALUVA DIVISION, ERNAKULAM. ADDRESS OF R3 IS CORRECTED AS ABOVE AS PER ORDER DATED 03/04/2018 IN IA.5748/2018].** - **4 THE CHIEF ENGINEER DISTRIBUTION CENTRAL, KERALA STATE ELECTRICITY BOARD LTD.,D.H.ROAD, ERNAKULAM , PIN-682 016.** **BY ADV. SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) No.4515 of 2018** ## **-:2:-** ## **JUDGMENT** ## **This writ petition is filed, seeking the following prayers:** - _**“1. Call for the records leading to Ext.P2 and set aside the same by issuing writ in the nature of certiorari;**_ _**2. Writ in the nature of mandamus commanding the second respondent to sanction and disburse pension, DCRG, Commuted Value of pension and Leave surrender amounts immediately;**_ _**3. Writ in the nature of mandamus commanding the second respondent to issue Non Liability certificate to enable the petitioner to draw pension.**_ _**4. Writ in the nature of mandamus commanding the second respondent to pay interest at the rate of 12% for the delayed payment of pension, DCRG, Commuted value of pension with specific direction to recover the same from the persons responsible for the delay.**_ _**5. Declare that the petitioners are entitled get his pension, DCRG, CVP and leave surrender sanctioned and disbursed with interest without any further delay and no proceedings pursuant to Ext.P2 charge memo**_ ## **W.P.(C) No.4515 of 2018** ## **-:3:-** _**is liable to conducted;”**_ **2. Heard the learned counsel for the petitioner and the learned standing counsel appearing for the KSEB.** **3. The petitioner had retired from service as an Assistant Engineer from the Kerala State Electricity Board Limited on 31.05.2017. He submits that pensionary benefits have been withheld, on the ground that departmental proceedings have been initiated against the petitioner, by issuance of Ext.P2 charge memo. It is submitted that Ext.P2 charge memo has been issued without the specific prior approval of the Board and is issued in respect of incidents, which took place in the year 2007.** **4. The learned counsel for the petitioner would contend that the initiation of the disciplinary proceedings against the petitioner, is therefore completely unsustainable. Relying on the provisions of Rule 3(b) of Chapter 1 of Part III of the Kerala Service Rules(KSR). It is contended that, in case proceedings are initiated against the petitioner** **W.P.(C) No.4515 of 2018** ## **-:4:-** **after his retirement, such initiation should have the prior sanction of the Kerala State Electricity Board Limited. It is contended that the initiation of disciplinary proceedings is bad for the additional reason that the proceedings are initiated in respect of incidents, which occurred in the year 2007. The petitioner, having retired from service on 31.05.2017, the incidents based on which the charge memo was issued is relatable to an incident, which took place more than four years prior to the date of retirement, and as such, the departmental proceedings could not have been inititated, it is submitted.** **5. The learned counsel for the petitioner places reliance on the decision of the Full Bench of this Court in** _**Xavier v. Kerala State Electricity Board**_ **[1979 KLT 80(FB)] to contend that the disciplinary proceedings, which were initiated even prior to retirement should have been continued only for the limited purpose of Rule 3 of Chapter 1 of Part III KSR. It is stated that the respondents in spite of having filed a counter affidavit, have not** ## **W.P.(C) No.4515 of 2018** ## **-:5:-** **been able to produce any orders of prior sanction rendered by the Kerala State Electricity Board and that the proceedings are liable to be quashed on the said ground alone. The decision of this Court in** _**K. M. Mohammed v. State of Kerala And Others**_ **[1993 KHC 194],** _**V.M. Shamsuddin v. Union of India and Others**_ **[2007(4) KHC 90] and** _**Kuttikrishnan v. State of Kerala**_ **[1999(2) KLT 313] are also relied on by the learned counsel for the petitioner.** **6. A counter affidavit has been placed on record by respondents 1 to 4. It is contended in the counter affidavit that the petitioner had been issued with Ext.R4(a)communication on 28.11.2015 to which he submitted his reply on 26.12.2015. It is stated that, though the petitioner retired from service on 31.05.2017, provisional pension was sanctioned to him in June, 2018 and the petitioner had not been sanctioned the full retirement benefits on account of the pendency of the departmental proceedings initiated against him. It is stated that as per Rule 3(a), departmental proceedings shall be** **W.P.(C) No.4515 of 2018** ## **-:6:-** **deemed to be continued in the same manner as if the employee had continued in service for the purpose of Rule 3. It is stated that departmental proceedings could be instituted under Rule 3, even after retirement for the purpose of recovering any loss caused to the Government by the Government servant; but with the sanction of the Government and subject to the condition that it shall not be in respect of any event which took place four years prior to such institution. It is stated in the counter affidavit that in the instant case, all conditions of Rule 3, Part III KSR have been adhered.** **7. I have considered the contentions advanced. Rule 3 of Part III KSR permits the continuance of the disciplinary proceedings against a retired Government servant. The scope of the disciplinary proceedings after retirement, is confined to recovering any loss or withdrawing or withholding the whole or part of the pension. The proceedings, if any, initiated against an employee before retirement, can be continued for the limited purpose of Rule 3.** ## **W.P.(C) No.4515 of 2018** ## **-:7:-** **However, Rule 3(b) specifically provides that the departmental proceedings, if not instituted by the employee was in service, shall not be instituted save with the sanction of the Government and shall not be in respect of any event, which took place more than four years before such institution. It is further provided in the explanation to Rule 3 that, a 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.** **8. In the instant case, though the learned standing counsel appearing for the KSEB would contend that a communication had been issued to the petitioner before his retirement, the institution of the departmental proceedings as against the petitioner was apparently only by Ext.P2 memo, which was issued on 13.06.2017. Going by the explanation to Rule 3, Part III KSR, the disciplinary proceedings can be seemed to be instituted only on the date of** **W.P.(C) No.4515 of 2018** ## **-:8:-** **Ext.P2. Ext.P2, memo of charges does not refer to any prior sanction having been issued by the Kerala State Electricity Board Limited for the initiation of disciplinary proceedings as against a retired employee. The memo of charges also reveals that it is issued in respect of an incident, which took place long prior to four years before the petitioner's retirement.** **9. In view of the fact that, Rule 3(b) specifically interdicts the initiation of departmental proceedings against a retired employee without the prior sanction of the Government (to be read as 'KSEBL' in the instant case) and since the proceedings are initiated in respect of incidents, which took place prior to four years of the date of retirement, I am of the opinion that the said proceedings cannot be sustained.** **10. Ext.P2 is therefore, set aside. It is declared that the initiation of the disciplinary proceedings as against the petitioner was incompetent and unsustainable. The petitioner shall be paid his** ## **W.P.(C) No.4515 of 2018** ## **-:9:-** **retirement benefits without reference to the initiation of the disciplinary proceedings as against the petitioner. Appropriate steps shall be taken to release the pensionary benefits due to the petitioner, within a period of four months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly.** **Sd/-** **ANU SIVARAMAN JUDGE** DST ## **W.P.(C) No.4515 of 2018** ## **-:10:-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF NOTICE OF RETIREMENT ISSUED BY EXECUTIVE ENGINEER, KSEB LIMITED ALUVA DATED 31.05.2017.** **EXHIBIT P2 A TRUE COPY OF MEMO OF CHARGES ISSUED BY THE 4TH RESPONDENT DATED 13.06.2017.** **EXHIBIT P3 A TRUE COPY OF EXPLANATION OFFERED BY THE PETITIONER TO EXT. P2 CHARGE MEMO DATED 2.7.2017.** **EXHIBIT P4 A TRUE COPY OF LETTER DATED 28.11.2015 ISSUED BY EXECUTIVE ENGINEER, ERNAKULAM.** ## **RESPONDENTS' EXHIBITS** **EXHIBIT R4(A) TRUE COPY OF THE ORDER NO.EDE/GB1/CDRF/CC NO.234/13/DISCIPLINARY/2015-16/1455 DATED 28.11.2015.** **EXHIBIT R4(B) TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 26.12.2015** **//TRUE COPY//** **P.A.TO JUDGE**