STATE OF KERALA Vs. P.M. BEERAN

JUDGEMENT

(1.) THESE two writ appeals in different ways raise the question of the applicability of rule 3 of Part III of the Kerala Service Rules in regard to the scope of which,there have been two recent pronouncements of this Court,one,a Full Bench decision in Xavier v.Kerala State Electricity Board(1979 K.L.T.80)and the other,a Division Bench ruling in Vasudevan v. Secretary to Government,Vigilance(B)Department (1979 K.L.T.489 ).The appeals have been filed by the State against the judgment of a learned Judge who allowed the writ petitions in these cases and quashed the proceedings. W.A.No.323 of 1977 " The respondent was a Junior Engineer who was served with Ext.P -1 memo of charge dated 25th September 1973.He submitted Ext.P -2 explanation dated 19th November 1973.He retired from service on 31st January 1975.Ext.P -3 dated 3rd April 1975 was issued to him to show cause why a sum of Rs.57,497 being 40 per cent of the loss caused to the Government of Rs.1,43,742.49 should not be recovered from his death -cum -retirement gratuity.He filed Ext.P -4 objections.He was informed by Ext.P -5 letter that the Government have no objection to sanction a provisional pension for him and that the suggestion to withhold the entire death -cum -retirement gratuity is also agreed to by the Government.Ext.P -6 evidences certain other actions taken or proposed to be taken by the Govern­ment against the respondent.Ext.P -7 representation was filed by the respondent before the Government objecting to the proposed course of withholding pension and death -cum -retirement gratuity and pointing out that the same would not be warranted by the provisions of rule 3,Part III of the Kerala Service Rules.Not receiving any reply thereto,petitioner filed the present writ petition.He prayed for a certiorari to quash Ext.P -3 and also Exts.P -5 and P -6 and for a mandamus to grant the petitioner's pension and gratuity in full.The learned judge held that the disciplinary proceedings even,in the limited and qualified sense for which they have been recognised by rule 3 of Part III of the K.S.R.had not been started before the retirement of the petitioner on 31st January 1975 and therefore cannot be continued even for that limited purpose under the above rule of the Kerala Service Rules.He therefore allowed the writ petition.

(2.) WE think the learned Judge was right.It is true that Ext.P -1 memo of charge and Ext.P -2 explanation had preceded the date of retirement of the petitioner. But what was there proposed was a -full -fledged enquiry and action against the respondent as contemplated by the Civil Services(Classification,Control and Appeal)Rules,1960.Ext.P -1(a)is the statement of allegations which accompanied the charge.In view of the retirement of the respondent on 31st January 1975 these proceedings,as explained by the decisions referred to,stand automatically transmuted into proceedings for the limited purpose of withdrawing or with­holding pension and could be continued for that limited purpose as contemplated by rule 3,Part III of the K.S.R.We are not quoting rule 3,Part III,Chapter I of the K.S.R.which has been fully quoted in the decision in Xavier v. Kerala State Electricity Board (1979 K.L.T.80)and also in the Division Bench ruling in Vasudevan v. Secretary to Government,Vigilance(B)Department (1979 K.L.T.489 ).It was pointed out by the Full Bench that the rule does not authorise continuance of disciplinary proceedings as such against the Government servant after his retirement and both on principle and authority such a position cannot be countenanced.It allows only a limited type of enquiry to be proceeded with,namely,an enquiry in regard to withdrawing or withholding of pension.Under "clause(a)of the proviso to the rule,the departmental proceedings,if instituted during the service of the employee,is to be deemed to be a proceeding under the rule and be continued and completed even after his retirement.In this case,no doubt,Ext.P -1 started the disciplinary proceedings before the retirement of the respondent.Those proceedings had automatically got transmuted into proceedings under rule 3,of Part III of Chapter I of the K.S.R.Note(2)to this rule States: "Note."( 2)The word 'pension 'used in this rule does not include death -cum -retirement gratuity.Liabilities fixed against an employee can be recovered from the death -cum -retirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule,but after giving the employees concerned a reasonable opportunity to explain." It is clear from the above note that before proceedings are taken to adjust liabilities against the death -cum -retirement gratuity payable to the employee,the employee should be afforded a reasonable opportunity to explain.In this case this has not been done.The quantification of liability effected in pursuance of Ext.P -1 charge was sought to be adjusted against the death -cum -retirement gratuity of the respondent.The learned Judge,we think,rightly discounte­nanced this attempt and allowed the writ petition.We agree with him and dismiss the appeal with no order as to costs. W.A.No.209 of 1978 In this case the charge memo was dated 21st May 1972 and the explanation to the charge was dated 30th May 1972.By Ext.P -2 order dated 4th May 1975(after retirement of the respondent)an amount of Rs.4,673.68 was ordered to be recovered from his death -cum -retirement gratuity due to him.Applying the provisions of rule 3,Part III of the K.S.R.the disciplinary proceedings started by Ext.P -1 would get transmuted to and could be continued for the limited purpose of,withholding or withdrawing pension as contemplated by the rule.Adjustment against death -cum -retirement gratuity can only be after affording the respondent an opportunity for explanation.The quantification of liability in this case at Rs.4,673 was not after affording the respondent any such opportunity for explana­tion.It seems to have been only the result of the conclusion drawn from the disciplinary proceedings started and continued in pursuance of Ext.P -1.This was hardly the proper compliance with Chapter I,Part III,rule 3 of the K.S.R.especially is that so,when Ext.P -2 proceedings were quashed by the Government by Ext.P -3 order.The result was that even the findings recorded in Ext.P -3 were not available to be taken advantage of by the Government for the purpose of being put against the respondent in regard to the quantum of liability for the loss occasioned to the Government.The learned Judge was therefore right in allowing the writ petition and quashing Ext.P -8.We see no ground to interfere.We dismiss the writ appeal with no order as to costs.