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M. Murali vs State Of Kerala on 3 October, 2008

Kerala High Court
M. Murali vs State Of Kerala on 3 October, 2008
       

  

  

 
 
  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.
                       =====================
                        W.P(C).No.10449 of 2008
                       =====================

                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

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