T.G. David vs Kerala State Electricity Board and Others

K. Vinod Chandran, J.—1. The petitioner is aggrieved with the reduction of pension made under Rule 59(b) of Part III Kerala Service Rules, 1959{for brevity KSR}. The petitioner admittedly retired on 31.8.2000 and the proceedings were taken first by Ext. P8 show cause notice dated 19.3.2003. The cause of action for the proceedings were also long prior to the retirement of the petitioner i.e. in the period 1992-93.

The petitioner had been working as an Assistant Executive Engineer in the Electricity Major Section, Bathery. Pursuant to a theft of the Board''s properties, the petitioner himself made a report to the Deputy Chief Engineer who issued Ext. P1 against the Assistant Engineer who was working under the petitioner. The Assistant Engineer is said to have replied by Ext. P2, on the basis of which, proceedings were taken against the Sub Engineer also.

The petitioner was not alleged to have any involvement in the matter. Proceedings were eventually initiated against the Assistant Executive Engineer, two sub Engineers and an Assistant Engineer on allegations of irresponsible conduct of the officers when the Deputy Superintendent of Police, Wayanad conducted record check of the store transaction in the Sulthan Bathery Major Section and the failure to produce the connected records before such officer. The enquiry report of the Legal Advisor is produced as Ext. P7. Ext. P7 found that all the officers had been responsible for such conduct and the same was held to be failure to discharge their official duty correctly and diligently. The Assistant Executive Engineer, the petitioner herein, was found to be not in custody of the documents. The allegation against him which was found to have been proved was supervisory lapses, since, all the other three officers were working under him.

The enquiry report at Ext. P7 was dated 8.4.1997. Obviously, no proceedings were taken after the enquiry report and no action was taken to punish the petitioner or other delinquent employees found to have been guilty of misconduct. The petitioner retired on 31.8.2000 and after about three years, Ext. P8 order dated 19.3.2003 was issued under Rule 59 (b). The petitioner submitted his explanation at Ext. P9 which was considered and orders passed at Ext. P12. It is to be found that neither Ext. P8 show cause notice nor Ext. P12 discloses any reasons for finding the petitioner''s services to be unsatisfactory. The action under Rule 59(b) is said to be for the reason of the misconducts alleged and proved against the petitioner as per Ext. P7. No explanation comes forth, as to why the petitioner was not proceeded against for imposing punishment when the petitioner was in service for about three years after Ext. P7.

In this context, the decision of this Court in , 2005 (1) KLT 867 (Chacko V. K.S.E.B) and , 2011(2) KLT 277 (Ponnamma V. Secretary to Government) assumes significance. This Court in Chacko (supra) found that for invocation of Rule 59 (b), the relevant consideration is the quality of the service rendered by the employee and the same would not depend upon any pecuniary loss caused to the Government. The order in the said writ petition though styled as one passed under Rule 59 (b), the Court found that there is no finding that the petitioners service was unsatisfactory and the order could be only deemed to be one passed under Rule III Part III KSR. What assumes relevance is the finding of the Court that Rule 59 (b) can be invoked only in circumstances when there is a clear finding that the petitioner''s services were unsatisfactory. Ext. P12 order passed does not show such finding. The finding is that in the detailed enquiry all the charges leveled against the petitioner were proved beyond doubt.

The enquiry was completed almost three years prior to the date of superannuation of the petitioner and no proceedings were taken to punish him nor is there any order by the disciplinary authority that the petitioner is found to be guilty of the charges alleged against him. True the enquiry report, on the basis of the evidence adduced, found the petitioner to be guilty of supervisory lapses. But however, that does not absolve a further finding by the disciplinary authority on the basis of the report and evidence adduced that too after affording a proper opportunity to the petitioner to object to the findings at the enquiry. In such circumstances, going by the decision of Ponnamma N.J (supra), the order at Ext. P12 reducing 40% of the pension of the petitioner cannot be sustained.

Ext. P12 does not indicate a finding that the service of the petitioner was unsatisfactory and relies on the enquiry report in a disciplinary proceeding initiated and concluded, while the petitioner was in service which was not taken to its logical conclusion. Ext. P12 hence would stand set aside. The entire arrears if any, due to the petitioner shall be computed and paid within a period of two months from the date of receipt of a certified copy of this judgment. This writ petition is allowed. No costs.