MADHAVAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner commenced service as Full Time Menial on 1.8.1963 in the aided school managed by the 4th respondent. He was due for promotion on 1.4.85 as a clerk. The manager appointed his son, instead of the petitioner. The petitioner objected to it. Finally the petitioner succeeded and he was appointed as per Ext. P1 as the clerk. Immediately thereafter, the person who was defeated in the matter of appointment became the Manager of the School. He placed the petitioner under suspension on 22.12.93 and initiated disciplinary action for misappropriation of amounts during the period from 1.4.85 to 30.11.93. A charge sheet was issued. Disciplinary enquiry was proceeded with. The petitioner could not attend, according to the petitioner, the enquiry proceedings as he was ill and hospitalised. The petitioner was by that time due to retire on superannuation on 31.3.95. But immediately before that, on 29.3.95 by Ext. P2 order, based on advice from the District Educational Officer, the service of the petitioner was terminated with effect from 31.3.95 subject to final orders in the disciplinary action. The petitioner was allowed to retire from the date of his superannuation while continuing under suspension without prejudice to the disciplinary action. In the meantime, the petitioner filed a revision before Government against Ext. P2. That is disposed of by Ext. P4. It was found by Government that Ext. P2 order was not in accordance with the procedure contemplated under R.75 Chap.14A KER. Accordingly that order was set aside. The petitioner has by the time retired from service. It was further ordered as follows:

(2.) R.3 of Part III Kerala Service Rule is one among the conditions regarding grant of such benefits. Therefore, that shall be applied to the non teaching staff of aided school teachers as well. The said rule enables continuance of a departmental proceedings initiated while in service, even after retirement, for the purpose of reducing pension or recovering from pension any loss caused to the department. By Ext. P4 the Government has now empowered the Deputy Director of Education concerned to conduct the proceedings. The proceedings envisaged in Ext. P4 is for recovery of the alleged dues from pension. Therefore, there is no illegality in Ext. P4 as it is in tune with R.3 Chap.22B read with R.8 Chap.24B of K.E.R. and R.3 Part III of the KSR. Therefore the Deputy Director is perfectly competent as there was initially a disciplinary action against the petitioner even before the date of retirement to take appropriate action as directed by Government.

(3.) While initiating such action, the petitioner will get ample opportunity as the Deputy Director has to conduct a fresh proceedings in the same manner as is to be conducted in a departmental action which may result in dismissal. So there will be full-fledged enquiry again by the Deputy Director where the petitioner will get ample opportunity. Such proceedings shall not be merely relying on the finding already entered into. Therefore, whether the petitioner did participate in the enquiry conducted earlier or not is immaterial.