IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10449 of 2008(R)
1. M. MURALI,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. CHIEF CONSERVATOR OF FORESTS
For Petitioner :SRI.B.V.JOY SANKER
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :03/10/2008
O R D E R
P.N.Ravindran, J.
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W.P(C).No.10449 of 2008
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Dated this the 3rd day of October, 2008.
JUDGMENT
The petitioner, who retired from service on 30.11.2005 as Deputy
Conservator of Forests, has filed this Writ Petition challenging Ext.P4
order dated 30.6.2007 and praying for a writ in the nature of mandamus
commanding the first respondent to disburse the retirement benefits due
to him. The brief facts of the case are as follows:
2. While the petitioner was working as Assistant Conservator of
Forests, Social Forest Division, Wayanad, a departmental jeep allotted to
him was stolen. In respect of the said incident, a memo of charges dated
12.7.2001 was issued. Since the petitioner did not submit any reply, the
Government issued Ext.P1 show cause notice dated 23.4.2002 informing
him that the Government have decided to recover the value of the jeep
from his salary and called upon him to show cause why the said decision
should not be confirmed. On receipt of Ext.P1 show cause notice, the
petitioner submitted Ext.P2 reply. Thereafter, by Ext.,P3 order passed on
6.9.2005, the Government ordered imposition of the punishment of
barring of one increment without cumulative effect on the petitioner.
Since the petitioner was about to retire from service, it was directed that
the monetary value equivalent to the amount covered by one increment
shall be recovered from his death cum retirement gratuity. Ext.P3 order
WP(C) 10449/08 -: 2 :-
was passed on 6.9.2005. However, the terminal benefits were not
disbursed to him. While matters stood thus, the Government passed
Ext.P4 order dated 30.6.2007, directing a formal enquiry against the
petitioner in connection with the theft of jeep. By Ext.P4, an Enquiry
Officer was also appointed. This Writ Petition was thereupon filed
challenging Ext.P4 and seeking payment of retirement benefits. The
petitioner contends that in view of Ext.P3 order dated 6.9.2005, which
has become final and by which the punishment of barring of one
increment without cumulative effect was imposed on him,the
Government cannot order a fresh enquiry after his retirement. The
learned counsel appearing for the petitioner relying on the decisions of
this Court in Ali v. State – 1976 K.L.T. 29, Namboodiri v. State – 1982
K.L.T. 512, Thankappan Unnithan v. State of Kerala – 1992 (1) K.L.T
263 and Baby v. State of Kerala – 1999(1) K.L.T. 676, contends that the
Government cannot after wiping off the earlier proceedings which led to
Ext.P3, order a denovo enquiry.
3. I have heard Sri.B.V.Joy Sankar, the learned counsel appearing
for the petitioner and Sri.P.Nandakumar, the learned Government
Pleader appearing for the respondents. It has been the consistent view
of this Court in the decisions referred to above that the disciplinary
authority cannot wipe out the enquiry already conducted against an
employee and direct a denovo enquiry to be held into the very same
charges. It is evident from Ext.P3 that in connection with the theft of the
WP(C) 10449/08 -: 3 :-
jeep allotted to the petitioner, the punishment of barring of one
increment without cumulative effect was imposed on the petitioner.
Ext.P3 order was passed on 6.9.2005 while the petitioner was in service
and he retired from service on 30.11.2005. Nearly 17 months thereafter,
the Government issued Ext.P4 reopening the entire issue and directing a
formal enquiry to be conducted against the petitioner. The disciplinary
action which led to Ext.P3 was initiated by the State Government itself.
By Ext.P3, a punishment was also imposed on the petitioner. Therefore
for the very same set of charges, the petitioner cannot be proceeded
against afresh. The Government have while passing Ext.P4 relied on Rule
34(ii) of the Kerala Civil Services (Classification, Control and Appeal)
Rules, 1960, hereinafter referred to as the “Rules” for short. In my
opinion, apart from the fact that the Government have no power to
initiate fresh action against the petitioner, reliance placed by the
Government on Rule 34(ii) of the Rules is also not tenable. Rule 34(ii) of
the Rules applies only in a case where the Government undertakes a
review of order passed by a Disciplinary Authority other than the
Government. In the instant case, as the Disciplinary Authority was the
Government, it could not have exercised the power of review under Rule
34(ii) of the Rules. On that ground also, Ext.P4 is not sustainable in law.
4. For the reasons stated above, I quash Ext.P4 and direct the
respondents to disburse the retirement benefits payable to the
petitioner, if the same has not been paid so far. The disbursement of
WP(C) 10449/08 -: 4 :-
terminal benefits shall be made within two months from the date on
which the petitioner produces a certified copy of the judgment before the
Principal Secretary to Government, Forests & Wildlife Department,
Thiruvananthapuram.
The Writ Petition is allowed as above. No costs.
P.N.Ravindran,
Judge.
ess 29/9