STATE OF KERALA Vs. MOIDEEN

JUDGEMENT

(1.) The appellants are the respondents in O.P.No. 2970 of 1993 filed by the respondent herein seeking to declare that no disciplinary proceedings on Exts. P1 and P8 are possible against the petitioner/respondent herein either under the provisions of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 read with Note 3 to R.3 Part III of the Kerala Service (Amendment) Rules, 1986. He also sought to quash Exts. P6, P8, P10 and P11 orders of the 2nd respondent (2nd appellant herein) and for a mandamus compelling the appellants herein to regularise his services from 20.2.1998 to 31.5.1989 as duty and consequently to disburse his salary and other allowances for that period.

(2.) The case of the respondent herein, in short, is as follows. The respondent attained the age of superannuation on 31.5.1989. At that time he was an Assistant Executive Engineer. On 31.1.1979, Ext. P1 memo of charges was issued to the respondent alleging that while holding the post of Junior Engineer Regional Stores of the Rural Development Board, Calicut, during the year 1975-76 the respondent had defalcated the store materials, as a result of which the Rural Development Board sustained a loss of Rs. 31,337.28. The respondent was, therefore, directed to show cause as to why disciplinary action as contemplated under the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 should not be taken against him and why the loss sustained should not be recovered from him. While so, the respondent was prosecuted before the Court of the Enquiry Commissioner and Special Judge, Thrissur for offences punishable under S.5(1)(c) read with S.5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947 read with S.409, 466, 467 and 477-A of the Indian Penal Code. By judgment dated 23.12.1987 the Special Judge found the respondent guilty of the offences charged against him and convicted and sentenced him. On his conviction by a Criminal Court, the Chief Engineer, Public Works Department Trivandrum, by Ext. P3 order dated 11.2.1988, removed the respondent from service with effect from the date of service of the order. In Crl. Appeal No. 4 of 1988 this Court, by judgment dated 29.8.1989 (Ext. R2(a)), set aside the conviction and sentence entered against the respondent and acquitted him of all the charges framed against him. That judgment was confirmed by the Supreme Court by dismissing SLP (Crl.) No. 399 of 1990 filed by the appellants herein by judgment dated 6.4.1990. Since no orders were passed by the appellants consequent on his acquittal in the criminal case, the respondent requested for his reinstatement in service by representation dated 20th October, 1989, following Ext. R2(a) judgment of this Court. By Ext. P4 dated 3.3.1990 the 2nd appellant Chief Engineer informed respondent that no reinstatement was possible in view of the contemplated disciplinary action against him. By Ext. P5 dated 16.12.1991 the Chief Engineer ordered that the respondent be placed under suspension with effect from the date of removal from service till the date of retirement, viz. from 11.2.1988 to 31.5.1989. Subsequently by Ext. P6 order dated 28.5.1992 the Chief Engineer set aside Ext. P3 order dated 11.2.1988 removing the respondent from service and further ordered that the respondent shall be deemed to have been placed under suspension from 20th February, 1988, the date of removal from service, till 31.5.1989, the date of retirement.

(3.) By Ext. P8 dated 28.5.1992, the Chief Engineer, Public Works Department (Administration), Thiruvananthapuram fixed the liability of the respondent for the shortage of cement and M.S. rods during the period of the respondent's incumbency at Rs. 31,337.28 and proposed to recover the loss from the respondent. Explanation was called for from the respondent within thirty days from the date of receipt of Ext. P8. The respondent submitted his explanation on 27.6.1992. By Ext. P9 dated 23.11.1992 the first appellant State of Kerala informed the respondent that necessary directions have been issued to the Chief Engineer to finalise the departmental proceedings initiated against him pursuant to Ext. P8. Thereafter, by Ext. P10 order dated 10.3.1993 the Chief Engineer ordered recovery from the respondent the sum of Rs. 31,3 37/- from his pensionary benefits. By Ext. P11 order dated 28.4.1993 while according sanction for payment of pensionary claims of the respondent it was ordered to recover a sum of Rs. 31,337/- from the death cum retirement gratuity of the respondent.