K. GOPALAKRISHNAN Vs. STATE OF KERALA AND ANOTHER

JUDGEMENT

(1.) The petitioner is a retired Deputy Chief Engineer of Generation Circle from the Kerala State Electricity Board. He retired on 31.5.2001. The petitioner was sanctioned pensionary benefits. However, DCRG payable to him was completely withheld. This is on account of the fact that the petitioner had a liability of Rs. 4,90,786/-. The petitioner submitted that no proceedings were initiated against him to fasten such liability and he was never given an opportunity to contest the matter. It seems that after withholding the DCRG payable to the petitioner for balance amount, the Board has filed a suit as O.S. No. 116 of 2007 on the file of the 1st Additional Sub Court, Ernakulam. The petitioner in this writ petition seeks for a relief of the DCRG payable to him and also seeks a W.P.(C) No. 34242 of 2009 2 declaration that he is not liable to pay any amount as claimed in the suit.

(2.) The Board is competent to institute a suit. In the suit, it has to be decided whether the petitioner is liable to pay the loss or not. The petitioner cannot demand stay the proceedings of the civil court through a writ petition. It is for the Board to establish before the civil court by evidence to prove the loss suffered by them. However, the departmental proceedings, fastening the liability on the petitioner stands in a different footing. If the proceedings initiated against the employee without complying the principles of natural justice, certainly, that proceedings will have to be impeached on that ground alone. It does not mean that the employee is exonerated from the liability. If the employee is answerable for any loss to the Board, that loss can be recovered through the process of adjudication in the civil court. I am not entering into the controversy as W.P.(C) No. 34242 of 2009 3 to right of the Board to recover through the civil suit. As of now, the liability fastened on the petitioner, according to me, is legally unsustainable in as much as that the decision was taken without giving an opportunity of hearing to the petitioner to put forward any defence. Accordingly, impugned demand as against the petitioner is set aside. In that view of the matter, the DCRG payable to the petitioner should be released to him. However, it is made clear that the civil court can proceed with the suit and the same shall be concluded at the earliest. If the Board wants to retain this amount, the Board will have to move the civil court for appropriate relief. Anyhow, the DCRG now withheld shall be paid to the petitioner within two months.

(3.) The petitioner is claiming interest. The petitioner moved the civil court with an application under section 10 of the Civil Procedure Code to stay all further proceedings in view of the pendency of the writ petition W.P.(C) No. 34242 of 2009 4 before this Court and taking note of the pendency of the writ petition, the court below stayed the suit. In fact, the petitioner had sought a prayer in the writ petition itself to stay the proceedings. This Court had not granted any stay against the proceedings in the suit. The petitioner cleverly moved the civil court and obtained an order of stay under section 10 of the Civil Procedure Code. It is to be noted that the suit was of the year 2008. This Court called for a report. The report shows that on account of the pendency of the writ petition, the suit was stayed invoking the power under section 10 of the Civil Procedure Code.