IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 724 of 2008()
1. KERALA STATE ELECTRICITY BOARD
... Petitioner
2. THE CHIEF ENGINEER(H R M),
Vs
1. D.JAYACHANDRAN, SENIOR SUPERINTENDENT
... Respondent
For Petitioner :SRI. ASOK M.CHERIYAN, SC, KSEB
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :14/01/2010
O R D E R
K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.
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W.A. No.724 of 2008
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Dated 14th January, 2010.
J U D G M E N T
Balakrishnan Nair, J.
The respondents in the writ petition are the
appellants. The writ petitioner is the respondent.
2. The brief facts of the case are the following: The
respondent was an employee of the Kerala State Electricity Board
(‘KSEB’, for short). He joined service as a Junior Assistant on
30.3.1970, and retired from service as a Senior Superintendent,
on 29.2.2000. He was put in charge of the Store at the Dam
Division-III, Idukki, from 1.8.1980 to 26.10.1982. Thereafter, he
was transferred to the Regional Store Division, Kundara. Later,
the respondent was suspended from service on 29.2.1985, in
contemplation of disciplinary proceedings. The allegation against
him was that he misappropriated store materials on a large scale,
which resulted in a loss of Rs.2,46,853.95 to the KSEB. The said
liability was fixed on 4.2.1986 by the Executive Engineer, Dam
Division No.III, Vazhathoppu, Idukki. Thereafter, recovery was
being made from the salary of the respondent till the date of his
retirement on 29.2.2000. After his retirement, he was served with
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Ext.P4 show cause notice dated 22.6.2000, proposing to recover
an amount of Rs.1,85,790.60 from him, after giving credit to the
recovery already made from his salary. The respondent
submitted his reply on 7.7.2000. After considering his reply, the
Chief Engineer (Human Resource Management) of the KSEB
passed Ext.P5 order on 29.11.2000, ordering to recover
Rs.1,85,790.60 from him. The respondent challenged Ext.P5
decision, by moving the Lok Ayukta. The Lok Ayukta passed
Ext.P6 order, directing fixation of the respondent’s liability, after
notice to him. The said direction was issued based on the finding
that the liability was not finally fixed, after notice to the
respondent. What was acted upon was only a provisional fixation
of liability made in 1986. Pursuant to the order of the Lok Ayukta,
a fresh show cause notice was issued to the respondent, on
6.11.2002, as per Ext.P7. After considering his explanation to the
said notice, a fresh order, Ext.P9 was passed. The respondent
challenged that order before the Appellate Authority. The
Appellate Authority allowed that appeal by Ext.P11 order, on
finding that Ext.P4 show cause notice as well as Ext.P9 final order
were not in tune with Ext.P6 order of the Lok Ayukta. By Ext.P11
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order dated 12.2.2004, the Appellate Authority directed the
original authority to issue a fresh show cause notice regarding the
fixation of liability, and thereafter, to finalise the liability in
accordance with law. Pursuant to the said appellate order, a
fresh notice dated 18.8.2004 was issued to the respondent. The
respondent submitted his reply, on 8.10.2004. Thereafter, by
Ext.P13, the liability of the respondent was finally fixed as
Rs.1,77,058.95. Challenging Ext.P13, the writ petition was filed.
3. The appellants, who were the respondents in the
writ petition, filed a counter affidavit, supporting the impugned
order. Though, several contentions were raised in the writ
petition, the main point that was canvassed before the learned
Single Judge was regarding the time limit contained in Note 3
under Rule 3 Part III Kerala Service Rules (‘KSR’ for short), which
says that the liability against an employee shall be fixed and
intimated to him, within three years of his retirement. In this
case, the respondent retired on 29.2.2000. So, the liability should
have been fixed, at least by 28.2.2003. Therefore, the learned
Single Judge quashed Ext.P13, and directed release of the DCRG.
4. We heard the learned counsel on both sides. The
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appellants submitted that the liability as per Ext.P9 was fixed
within the three years’ period, mentioned in Note 3. But, the
Appellate Authority set aside Ext.P9, and remitted the matter to
the original authority, for fresh determination in accordance with
law. In obedience to that, the liability was fixed afresh.
Therefore, the time limit mentioned in Note 3, has no application
to the facts of this case, it was submitted.
5. We heard the learned counsel, who appeared for
the respondent. The learned counsel supported the judgment of
the learned Single Judge. Note 3 under Rule 3, Part III KSR
mentioned above, reads as follows :
“The liabilities of an employee should be quantified
either before or after retirement and intimated to him before
retirement if possible or after retirement within a period of three
years on becoming pensioner. The liabilities of a pensioner
should be quantified and intimated to him.”
In this case, we notice that the liability was fixed as per Ext.P13,
pursuant to the appellate order, Ext.P11. It was an order passed
in the appeal filed by the respondent. So, the respondent was
bound by that order. Since he has chosen, not to challenge
Ext.P11, on the ground that the direction therein was illegal,
because of the expiry of the time limit mentioned in Note 3, he
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cannot turn round thereafter, and challenge the consequential
order passed, Ext.P13. In that view of the matter, the judgment
under appeal, is liable to be reversed. The learned counsel for the
respondent tried to support the judgment on other grounds also.
It was submitted that the fixation of the liability itself was
untenable, as the finding of shortage of materials, was not
properly made. We think that the said contention falls within the
realm of facts, and this court, under Article 226 of the Constitution
of India, cannot disturb the findings of fact, regarding the liability.
The learned Single Judge interfered with the impugned order, only
on the technical ground that the fixation of liability was made,
after the period of three years, mentioned in Note 3 Rule 3 Part III,
KSR. We have already found that the said view is untenable.
In the result, the Writ Appeal is allowed. The judgment
under appeal is reversed and the writ petition is dismissed.
K.BALAKRISHNAN NAIR, JUDGE.
C.T.RAVIKUMAR, JUDGE.
tgs
K.BALAKRISHNAN NAIR &
C.T.RAVIKUMAR, JJ.
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W.A. No.724 of 2008
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J U D G M E N T
Dated 14th January, 2010.