Kerala High Court
N.Balan vs Kseb on 7 January, 2025
2025:KER:1230
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.M.MANOJ
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
WP(C) NO. 39466 OF 2015
PETITIONERS:
1 N.BALAN (DIED)
ASSISTANT ENGINEER 9RETD),
KERALA STATE ELECTRICITY BOARD,66 KV SUB STATION,
CHANGANASSERY,RESIDING AT PATHIVILAYIL,
P.O.VADEKKEDATHKAVU,PATHANAMTHITTA DISTRICT-691 526
*2 ADDL.P2.SUSEELA.C.A
AGED 62 YEARS
W/O.N BALAN, AGED 62 YEARS, PATHIVILAYIL,
VADAKKEDATHUKAVU P.O.,
PATHANAMTHITTA DISTRICT-691 526.
*3 ADDL.P3. BECHU B.
AGED 29 YEARS
S/O.N BALAN, PATHIVILAYIL,
VADAKKEDATHUKAVU P.O.,
PATHANAMTHITTA DISTRICT-691 526.
*4 ADDL.P3.BINDHUJA S.
AGED 28 YEARS
D/O.N BALAN, PATHIVILAYIL,
VADAKKEDATHUKAVU P.O.,
PATHANAMTHITTA DISTRICT-691 526.
[SOLE PETITIONER DIED AND LEGAL HEIRS ARE IMPLEADED AS
PER ORDER DATED 10-08-2021 IN IA 1/21].
BY ADV SRI.P.M.PAREETH
W.P.(C) No.39466 of 2015
2
2025:KER:1230
RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY ITS SECRETARY,
VIDYUTHI BHAVANAM,PATTOM,
THIRUVANANTHAPURAM-695 004
2 CHIEF ENGINEER (HRM),
KERALA STATE ELECTRICITY BOARD,VIDYUTHI
BHAVANAM,PATTOM,THIRUVANANTHAPURAM-695 004
3 DEPUTY CHIEF ENGINEER,
TRANSMISSION CIRCLE,KERALA STATE ELECTRICITY
BOARD,POOVANTHURUTH,KOTTYAM-686 012
4 ACCOUNTS OFFICER,
PENSION AUTHORIZATION,OFFICE OF THE CHIEF ENGINEER
(HRM),KERALA STATE ELECTRICITY BOARD,VIDYUTHI
BHAVANAM,PATTOM,THIRUVANANTHAPURAM-695 004
5 EXECUTIVE ENGINEER,
KERALA STATE ELECTRICITY BOARD,ELECTRICAL
DIVISION,ADOOR,PATHANAMTHITTA DISTRICT-691 523.
BY ADV SRI.K.S.ANIL, SC, KSEB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.39466 of 2015
3
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" C.R."
P.M. MANOJ, J
------------------------------
W.P.(C) No.39466 of 2015
--------------------------------------------------
Dated this the 7th day of January, 2025
JUDGMENT
The writ petition is preferred challenging Exts.P6 and P6(a) orders of the 1st respondent and Exts.P7 and P8 consequential orders, whereby the pension of the petitioner is reduced by 20%.
2. It is the case of the petitioners that the petitioner retired on superannuation from the service of the 1 st respondent. While he was in service, he was placed under suspension on 16.12.2005 consequent to arrest and detention in connection with the vigilance case No. 4/2005/PTA registered under Sections 7, 13(2), read with 13(1)(d) of the Prevention of Corruption Act, 1988. The alleged incident was that he was caught red handed while accepting bribe of Rs.250/- from a prospective consumer. Consequent to that, a memo of charges and statement of allegations were served on the petitioner, that culminated in Ext.P3, whereby punishment of barring three increments was confirmed with cumulative effect. W.P.(C) No.39466 of 2015 4
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3. In the light of Ext.P3, a value of three increments with cumulative effect was recovered from the DCRG of the petitioner which comes to an amount of Rs.2,44,080/-. Subsequent to that, by judgment dated 30.05.2014 in C.C. No.22/2008, the Enquiry Commissioner and Special Judge, Kottayam convicted and sentenced the petitioner for simple imprisonment for a period of six months and directed to pay a fine of Rs.5,000/- under Section 7 of the Prevention of Corruption Act, 1988 and also sentenced to suffer simple imprisonment for a period of one year and pay a fine of Rs.10,000/- under Section 13(1)(d) read with Section 13(2) of the same Act, as per Ext.P4.
4. The petitioner had preferred an appeal against Ext.P4 judgment before this Court, which is pending. While the things being so, a show cause notice was issued to the petitioner on 19.03.2015 proposing to reduce his pension by 20% for ten years invoking Rule (2) of Part III of KSR. Though the petitioner has preferred his reply and an order was passed as per Ext.P6 dated 07.09.2015 whereby directed to reduce 20% of the pension in respect of the petitioner for ten years from 30.11.2008 invoking Rule 2(a) of Part III of KSR, the effective date of recoveries was W.P.(C) No.39466 of 2015 5 2025:KER:1230 subsequently corrected from 30.11.2008 to 01.12.2008 as per Ext.P6(a), since the date of effecting recoveries was prior to his retirement.
5. It is submitted by the petitioners that Exts.P6 and P6(a) orders are illegal and arbitrary, since the offence was committed by the petitioner while in service and he was imposed with a punishment as per Ext.P3. Thereafter, the parallel proceedings under the Prevention of Corruption Act, 1988 has culminated in Ext.P4 in the year 2014. Since an action was already taken on the same set of facts, the initiation under the provision of Rule 2 of Part III of KSR will amount to double jeopardy under Article 20 of the Constitution of India. It is also contended that the said initiation is against Rule 2(d) of Part III of KSR. This is the background in which the writ petition is preferred on the strength of Full Bench decision of this Court in Ravindran Nair v. State of Kerala [2007 (1) KLT 605].
6. In response to that a counter affidavit has been filed, wherein it is contended that the petitioner was convicted and sentenced by the Vigilance Court, Kottayam. But as per Rule 2(a) and 90(12) of Part III KSR, future good conduct shall be an implied W.P.(C) No.39466 of 2015 6 2025:KER:1230 condition of every grant of pension and Government may, by order in writing, withhold or withdraw a pension or part thereof whether permanently or for a specified period. Therefore, consequent to the conviction and sentence by the Vigilance Court as per Ext.P4 judgment, a show cause notice was issued to the petitioner proposing to reduce the pension by 20% for ten years invoking Rule 2 Part III of KSR. The petitioner has resisted the same by stating that he already preferred an appeal petition against the judgment in C.C. No.22 of 2008 dated 30.05.2014 and was waiting for final verdict. However, declining the contentions, the board has taken a decision to confirm the proposal to reduce 20% of pension for ten years by Ext.P6 with effect from 01.12.2008.
7. It is also contended that Rule 2(a) of Part III of KSR clearly stipulates that the Government has ample power to withhold or withdraw a pension or part thereof whether permanently or for a specified period, if the petitioner is convicted of a serious crime or is found guilty of grave misconduct. Here in the case on hand, the Vigilance Court found the petitioner guilty and convicted him and sentenced him for the serious offence of bribe which tarnished the image of the institution. Therefore, W.P.(C) No.39466 of 2015 7 2025:KER:1230 issuance of Exts.P6 and P6(a) are perfectly justified. In the light of said findings, Exts.P7 and P8 consequential orders were issued.
8. In order to refute the contention of the petitioner in the light of Full Bench decision of this Court in Raveendran Nair (supra), the respondents have come up with reported decision of the Hon'ble Apex Court in State of Rajastan v. B.K.Meena [(1996) 6 SCC 417], wherein it was held that the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the petitioner is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be. Whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act are established and, if established, what sentence should be imposed upon him. In the case on hand, the petitioner was convicted by the Vigilance Court and sentenced to undergo simple imprisonment with fine under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The departmental proceedings culminated earlier in the punishment of W.P.(C) No.39466 of 2015 8 2025:KER:1230 barring his three increments with cumulative effect which was recovered from the gratuity of the petitioner. Since the judicial proceedings sentenced him for punishment under the Prevention of Corruption Act, 1988, it is a sufficient ground to invoke the provision under Rule 2 of Part III of KSR. Accordingly, steps have been initiated and culminated in Exts.P6 and P6(a) and consequential orders were issued by the Board as per Exts.P7 and P8.
9. The counsel for the respondents also brought my attention to two more decisions; Union of India v. Sunil Kumar Sarkar [2001 KHC 573], in which the issue of double jeopardy was considered, where an Army personnel was proceeded under the Army Act as well as the Central Act, which was upheld by the Hon'ble Apex Court. Similarly, another decision in Life Insurance Corporation of India v. Mukesh Poonamchand Shah [(2020) 12 SCC 144], pertains to Regulation 39(4) of the Life Insurance Corporation of India (Staff) Regulations 1960, wherein disciplinary proceedings can be initiated against an employee of LIC, in which the Regulation 39(4)(i) empowers the Life Insurance Corporation to impose punishment on an employee W.P.(C) No.39466 of 2015 9 2025:KER:1230 on the ground of conduct which had led to a conviction on a criminal charge. In that case, it was held by the Apex Court that the LIC is sufficiently empowered to proceed independently against the employee irrespective of the criminal proceedings. On the strength of these judgments, the counsel for the respondents try to establish that there is no element of double jeopardy, as contended by the petitioner.
10. In response to that the learned counsel for the petitioners submitted that, that is not an answer to the contentions of the Full Bench in Raveendran Nair(supra), wherein Rule 2 of Part III of KSR is specifically considered, where it is explained by the court that the Government has power to withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of a grave misconduct even after retirement. When the Government has power to impose punishment of withholding or withdrawing pension of a pensioner in respect of grave misconduct committed after he became a pensioner, there would be no logic in the interpretation that the Government does not have the right of withholding or withdrawing the pension or any part of it, of the W.P.(C) No.39466 of 2015 10 2025:KER:1230 pensioner on he being found guilty of grave misconduct committed by him while he was in service unless the misconduct involved pecuniary loss to the Government. The Government has the right to impose on a pensioner the punishment of withholding or withdrawing pension or any part of it either permanently or for a specified period, if in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, even if the misconduct and negligence do not involve pecuniary loss to the Government and that in a case of grave misconduct involving pecuniary loss to the Government, Government can exercise both the rights of withholding/withdrawing pension as punishment and recovering the pecuniary loss from the pension.
11. I have heard Sri.P.M.Pareeth, the learned counsel for the petitioner and Sri.K.S.Anil, the learned Standing Counsel for the respondents.
12. I have considered the arguments raised on both sides. On considering the facts involved in this case it appears that while the petitioner was in service he was caught red handed by the Vigilance Department on alleged charges of bribe of Rs.250/-. On W.P.(C) No.39466 of 2015 11 2025:KER:1230 the basis of that he was charge sheeted under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, and he was arrested and remanded. In the light of such arrest and remand, the respondent-Board proceeded under the disciplinary action contemplated under the provisions of Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations 1969, which culminated in Ext.P3, whereby a punishment of barring three increments with cumulative effect was confirmed and in the light of said imposition of punishment, initiation of disciplinary proceedings was issued on 22.11.2011. By the time, the petitioner retired from service in the year 2008.
13. Accordingly, three increments which were granted has been recovered with cumulative effect which comes to an amount of Rs.2,44,080/- from the DCRG. Thereafter, the criminal proceedings initiated under the provisions of the Prevention of Corruption Act, 1988 has culminated in Ext.P4, whereby the petitioner was convicted and sentenced with simple imprisonment for a period of six months and to pay Rs.5,000/- under Section 7 of the Prevention of Corruption Act and also sentenced to suffer simple imprisonment for a period of one year and pay a fine of W.P.(C) No.39466 of 2015 12 2025:KER:1230 Rs.10,000/- under Section 13(1)(d) read with Section 13(2) of the said Act. The said proceedings were culminated only in the year 2014. This is the circumstance in which the Board has proceeded against the petitioner by invoking Rule 2 of Part III KSR. In these circumstances, it is apposite to reproduce the said provision under Rule 2 Part III of KSR;
2. (a) Future good conduct shall be an implied condition of every grant of a pension.- The Government may, by order in writing, withhold or withdraw a pension or part thereof whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct.
(b) Where a pensioner is convicted of a serious crime by a Court of Law action under clause (a) shall be taken in the light of the judgment of the court relating to such conviction.
(c) In a case not falling under clause (b), if the Government under clause (a) considers that the pensioner is prima facie guilty of grave misconduct, it shall, before passing an order under clause (a),
(i) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which W.P.(C) No.39466 of 2015 13 2025:KER:1230 it is proposed to be taken and calling upon him to submit within fifteen days of the notice or such further time not exceeding fifteen days as may be allowed, his explanation for such misconduct.
(ii) take the explanation, if any, submitted by the pensioner under sub-clause (i) into consideration.
(d) The Public Service Commission shall be consulted before final orders are passed.
The said provision contemplates to initiate action in future on the background that the pension is granted on a condition that the pensioner is bound to maintain future conduct good while receiving pension.
14. It is the case of the Board that when he was imposed with a punishment by the Vigilance Court, they are entitled to invoke the said provision. But, I cannot agree with the said view held by the Board in the premises that they have already proceeded parallelly against the petitioner and culminated in imposing punishments of barring his next three increments with cumulative effect and treated the period he spent under suspension as suspension itself as per Ext.P3. The petitioner has no challenge against Ext.P3. The petitioner has not raised any W.P.(C) No.39466 of 2015 14 2025:KER:1230 challenge against the parallel proceedings on the same set of facts by the department as well as the Vigilance Court under the provisions of Prevention of Corruption Act, 1988.
15. Later, when the criminal proceedings culminated in Ext.P4, it is taken by the Board that it is a misconduct occurred after the retirement. Therefore, they are entitled to proceed under Rule 2. I cannot agree with that view as well, because by the very heading of the said provision it appears that future good conduct shall be an implied condition of every grant of a pension, i.e., in cases where the pensioner is involved in any subsequent criminal activity and has been charged under the provisions of criminal proceedings which culminate in some punishment, the Government can invoke the said provision. Here, what happened is that the petitioner was already proceeded under the disciplinary action which culminated in Ext.P3. Due to some delay occurred in the criminal proceedings on the same set of facts the judgment came a bit late, i.e., after his retirement. That may not be a reason to invoke Rule 2 of Part III of KSR, because, he was already imposed with a penalty under the provisions of the Kerala State Electricity Board Employees (Classification, Control and Appeal) W.P.(C) No.39466 of 2015 15 2025:KER:1230 Regulations 1969 and punished under the provisions of Prevention of Corruption Act as per Ext.P4 judgment. The petitioner preferred an appeal against the said judgment which is pending even on today.
16. The other fact which is brought to my attention is that while the appeal is pending before this Court, the petitioner expired on 24.12.2020. Under such circumstances, the legal heirs of the petitioner have been impleaded as additional petitioners 2 to 4.
17. Now, the questions remain to be answered are that whether (1) The imposition of punishment as per Ext.P6 amounts to double jeopardy as contended by the petitioners, (2) While invoking the punishment under sub-rule (d) of Rule 2 of Part III KSR consultation with the Public Service Commission is done before final orders were passed.
18. The primary question to be answered is whether the element of double jeopardy is existing in this case or not. In this case, the petitioner was proceeded parallelly under the provisions of disciplinary action, as contemplated under the Kerala State Electricity Board Employees (Classification, Control and Appeal) W.P.(C) No.39466 of 2015 16 2025:KER:1230 Regulations 1969 and as well as under the provisions of the Prevention of Corruption Act, 1988.
19. In both the cases parallel proceedings are completed as per Exts.P3 and P4. The petitioner has challenges not against Ext.P3 order, but against the subsequent initiation of proceedings under Rule 2 in the light of Ext.P4. The initiation of proceedings under Rule 2 of Part III of KSR is on the same set of facts where Exts.P3 and P4 proceedings were culminated except the appeal pending against Ext.P4. Even then they issued fresh show cause notice dated 19.03.2015, that too after almost 4 years of Ext.P3 and more than one year after Ext.P4. But the cause of action and the facts involved is one and the same, that amounts to double jeopardy in the case of Ext.P3. As the petitioner retired from service, the monetary value of three increments with cumulative effect for ten years was recovered from DCRG and the petitioner had not preferred to challenge the same. Thereby the entire matter would have been put to an end by Ext.P3 itself. The 2 nd initiation of punishment merely by issuing a show cause notice and passing Ext.P6 order on the same set of facts amounts to double jeopardy. W.P.(C) No.39466 of 2015 17
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20. The afore view is fortified by the judgment of Hon'ble Apex Court in Lt. Governor, Delhi and others v H.C Narinder Singh [(2004) 13 SCC 342], wherein the respondent Narinder Singh , appointed as a constable in the Delhi police was promoted out of turn by invoking Rule 19(ii) of the Delhi Police Promotion and Confirmation Rules, 1980 for outstanding devotion to duty. However, in the year 1990, disciplinary action was initiated against him for dereliction of duty and resulted in imposition of penalty of reduction of pay by one stage without cumulative effect. The appeal to that order was dismissed. Thereafter, the appointing authority issued a second show cause notice on 08.01.1992 proposing to remove his name from the promotion list to which he was brought under the above Rules. The second proposed action, based on the same cause of action, to deny promotion or reversion as contemplated under the impugned show-cause notice amount to double jeopardy. Thus the view taken by the Tribunal was upheld.
21. Similarly, in the case in hand, the petitioner's punishment under the disciplinary actions culminated in Ext.P3. Since he retired from service the monetary value of the increments W.P.(C) No.39466 of 2015 18 2025:KER:1230 with cumulative effect, was recovered from the DCRG of the petitioner as per order dated 22.11.2011. Thereafter further proceedings were initiated as per show cause notice dated 19.03.2015 and the order culminated in impugned Ext.P6 dated 07.09.2015, whereby it was decided to reduce his pension by invoking Rule 2(a) and 90(12) of part III KSR. That is nothing but double jeopardy.
22. The Rule 2(a) and Rule 90(12) of Part III KSR by the words itself conveys, future good conduct shall be an implied condition of every grant of pension. The Government reserve the rights to withhold or withdraw such pension, or any part of it, if the recipient is convicted of serious crime or is guilty of grave misconduct in the future i.e., after granting of pension. In this case Ext.P4 is issued on an offence committed prior to his retirement for which already he has undergone departmental proceedings which culminated in Ext.P3.
23. In case where a pensioner, after his retirement, is convicted of a serious crime by a court of law, action under Rule 2(a) and Rule 90(12) shall be taken in the light of judgment of the Court relating to such conviction. That is not with respect to the W.P.(C) No.39466 of 2015 19 2025:KER:1230 past proceedings in which an incumbent had already undergone punishment. In this case, the proceedings initiated against the petitioner culminated in Ext.P3, under the principles of Administrative law and in Ext.P4, under the provisions of Prevention of Corruption Act. The appeal is pending before the appellate forum i.e., this Court and the pensioner is deceased. Though appeal petition is pending against Ext.P4 that has not been considered by the Board. Therefore, it appears that there is some force in the contentions raised by the petitioners and I also consider the circumstance that the petitioner expired in the year 2020.
24. With respect to the 2nd question to be answered, though detailed counter affidavit is filed, nowhere it is stated that the Board has consulted the Public Service Commission under sub-rule
(d) of Rule 2 of Part III of KSR. Therefore, I am of the view that the statutory prescription under the provisions of Rule 2 is not completed while issuing Ext.P6.
25. Hence, I prefer to allow this writ petition by setting aside Exts.P6 and P6(a) and consequential orders as per Exts.P7 and P8. Needless to clarify that the amount which is deducted from the W.P.(C) No.39466 of 2015 20 2025:KER:1230 pension already granted has to be restored. Deduction of pension from 01.12.2008 has to be restored till 31.11.2018 and the consequential amount has to be refunded to the legal heirs. The refund shall be effected within a period of three months from the date of receipt of a certified copy of the judgment. The failure to comply with the direction will carry an amount of interest at the prevailing Bank rate.
The writ petition is allowed.
Sd/-
P.M.MANOJ JUDGE sss W.P.(C) No.39466 of 2015 21 2025:KER:1230 APPENDIX OF WP(C) 39466/2015 PETITIONER EXHIBITS EXHIBIT P1: A TRUE PHOTO COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DATED 28.10.2006.
EXHIBIT P2: A TRUE PHOTO COPY OF THE REPLY TO THE MEMO OF CHARGES AND STATEMENT OF ALLEGATION.
EXHIBIT P3: A TRUE PHOTO COPY OF THE PROCEEDINGS DATED 22.11.2011 ISSUED BY THE 3RD RESPONDENT FINALIZING THE DISCIPLINARY PROCEEDINGS.
EXHIBIT P4: A TRUE PHOTO COPY OF THE JUDGMENT DATED 30.05.2014 IN CC NO.22/2008 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOTTAYAM.
EXHIBIT P6: A TRUE PHOTO COPY OF THE B.O. (CMD)NO.2178/2015 (ESTT,VIII/5071/2014).
EXHIBIT P6(A): A TRUE PHOTO COPY OF THE B.O. (CMD)NO.2421/2015 (ESTT,VIII/5071/2014) DATED 01.10.2015.