Quashed

M.K.Venugopalan v. the Kerala State Electricity Board

Kerala HC29 Aug 2016WP(C)/14627/2009

Case brief

AI extract

What is this about?

Petitioner, retired Deputy Chief Engineer, challenged an order denying his pension and other terminal benefits on grounds of fraudulently obtaining reservation. Court held that while fraud vitiates appointment, lack of proper service of the initial cancellation order rendered subsequent action void, allowing retirement benefits.

What did the court decide?

Ext.P8 order quashed; Respondents directed to sanction and disburse retirement benefits due to petitioner.

M.K.Venugopalan Vs the Kerala State Electricity Board — Caste Atrocities | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE SMT. JUSTICE P.V.ASHA

¶4

MONDAY, THE 29TH DAY OF AUGUST 2016/7TH BHADRA, 1938

¶5

WP(C).No. 14627 of 2009 (W)

¶6

PETITIONER(S) :

¶7

M.K.VENUGOPALAN, DEPUTY CHIEF ENGINEER (RETD.), ELECTRICAL CIRCLE, PALAKKAD, NOW RESIDING AT 15/494(1), SWATHY, KUNNATHOORMEDU, PALAKKAD.

¶8

BY ADV. SRI.P.C.SASIDHARAN

¶9

RESPONDENT(S) :

¶10

1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, TRIVANDRUM.

¶11

2. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, TRIVANDRUM.

¶12

3. THE ACCOUNTS OFFICER, (PENSION SANCTION), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, TRIVANDRUM.

¶13

4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, SC/ST DEVELOPMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM.

¶14

R1 TO R3 BY ADV. SRI.PULIKOOL ABUBACKER, S.C R4 BY SPL. GOVERNMENT PLEADER SRI. K.V.PRAKASH (SC/ST)

¶15

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON 29-08-2016 DELIVERED THE FOLLOWING:

¶16

Msd.

¶17

WP(C).No. 14627 of 2009 (W)

¶18

APPENDIX

¶19

PETITIONER(S)' EXHIBITS :

¶20

EXHIBIT P1: TRUE COPY OF APPOINTMENT ORDER DATED 28.04.1980. EXHIBIT P2: TRUE COPY OF COMMUNITY CERTIFICATE ISSUED BY THE COMPETENT AUTHORITY.

¶21

EXHIBIT P3: TRUE COPY OF THE MEMO OF CHARGES ISSUED TO THE PETITIONER DATED 27.03.2008.

¶22

EXHIBIT P4: TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN DATED 27.06.2008.

¶23

EXHIBIT P5: TRUE COPY OF ORDER DATED 30.03.1995.

¶24

EXHIBIT P6: TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED TO THE PETITIONER DATED 27.02.2009.

¶25

EXHIBIT P7: TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE BOARD DATED 19.03.2009.

¶26

EXHIBIT P8: TRUE COPY OF ORDER ISSUED BY THE CHAIRMEN DATED 17.04.2009.

¶27

RESPONDENT(S)' EXHIBITS :

¶28

EXHIBIT R1(A): TRUE COPY OF THE LETTER DATED 22.11.2007 FROM THE KPSC.

¶29

EXHIBIT R1(B): TRUE COPY OF THE G.O DATED 04.05.2000.

//TRUE COPY//

P.S.TO JUDGE.

Msd.

P.V.ASHA, J.

W.P(C) No.14627 of 2009-W

¶35

Dated this the 29^th day of August, 2016

¶36

JUDGMENT

¶37

The petitioner, who retired from service from the Kerala State Electricity Board (`Board' for short) on 31.10.2008 while working as Deputy Chief Engineer, is challenging the order Ext.P8 by which the Chairman, KSEB declined all the terminal benefits such as DCRG, Commutation and pension except contribution to General Provident Fund due to him.

¶38

The petitioner was appointed as Assistant Engineer (Electrical) in the Kerala State Electricity Board as per Ext.P1 order dated 28.4.1980 on the basis of advice by the Kerala Public Service Commission (`PSC' for short) as per its memo No.CRI(2) 5207/77 dated 22.02.1980. Petitioner's appointment was against a reservation turn for Scheduled Caste Community from the supplementary list of Scheduled Caste candidates in the rank list published by the PSC. The appointment against the reservation turn was made based on Ext.P2 community certificate dated

¶39

W.P(C) No.14627 of 20092

¶40

8.5.1973 issued by the Deputy Tahsildaer, Taluk Office, Palghat in which it was certified that the petitioner belonged to Gavara community which is a Scheduled Caste in Malabar area. The petitioner's case is that he received Ext.P3 memo of charges dated 27.3.2008 in which it was alleged that he secured the job in the Board and availed of benefits by misrepresenting that he belongs to Scheduled Caste community which was found to be false as per G.O.(Rt)159/95/SCST/DD dated 30.03.1995 and thereby he intentionally denied job opportunity to an eligible Scheduled Caste person and cheated the Government and the Board. It was further alleged that he tarnished the image of the Board in the midst of public. He was asked to show cause against the proposal to proceed against him under the KSEB Employees (CC&A) Regulation, 1969; within a period of 15 days. In the statement of allegation attached to the memo of charges it was stated that, the Government had conducted an enquiry through Kerala Institute of Research Training and Development Studies for Scheduled Castes and Scheduled Tribes (`KIRTADS' for short) on the basis of a petition received from one Shri K.V.Kumaran, President of the Kerala Scheduled

¶41

W.P(C) No.14627 of 20093

¶42

Caste/Scheduled Tribe Vigilance in which it was held that the petitioner belonged to Balija Gavara (Naidu community) and his claim that he belonged to Gavara community was false. It was further stated that the Government had as per its order dated 30.03.1995 declared that the petitioner and members of his family did not belong to Gavara community but belonged to Balija Gavara community. The Government further ordered that in case the appointment of the petitioner was against a reservation turn for Scheduled Caste community, action should be taken against him and appointment should be given in his place to a genuine member of Scheduled Caste community. It is further stated that, the Board did not take any action against the petitioner on the assumption that the petitioner had joined in an open quota and it was only as per letter No.R1B (2) 20486/07/GW dt.22.11.2007 that the PSC informed the Board that his appointment was from the supplementary list for Scheduled Caste under reservation quota. Petitioner therefore committed grave misconduct cheating the Government and the Board denying opportunity to an eligible member of the Scheduled Caste community. In answer to the memo of charge,

¶43

W.P(C) No.14627 of 20094

¶44

the petitioner submitted Ext.P4 explanation dated 27.6.2008. He denied the allegations in the memo of charges and stated that he was not served with a copy of the Government Order referred to therein and therefore, he requested to furnish a copy of the said order in order to furnish the explanation. He also sought for a copy of the report which was submitted before the Board on the basis of preliminary enquiry conducted by its Vigilance wing. Further he stated that the community certificate he furnished was the one issued by a competent authority and it was unjust to take action against him at a time when he was due to retire from service after rendering 28 years of service. He submitted a detailed explanation on receipt of a copy of the Government Order referred to in the show cause notice, stating that the said Government Order could not be implemented and therefore the proposed disciplinary proceedings were without any basis. The Board thereafter issued Ext.P6 show cause notice dated 27.2.2009 subsequent to his retirement. Ext.P6 show cause notice referred to the enquiry report of Vigilance, Government Order dated 30.03.1995, letter of the PSC issued on 22.11.2007, legal opinion dated 15.5.2008, memo of charges and explanation

¶45

W.P(C) No.14627 of 20095

¶46

submitted by the petitioner on 18.08.2008. After referring to the memo of charges issued to the petitioner and explanation submitted by the petitioner, the Chairman of the Board stated that the petitioner had secured the employment under the Special Recruitment Quota when the KIRTADS had found that he did not belong to Scheduled Caste community. Therefore, he was not entitled to any further benefit from employment which he obtained through false information. It was therefore proposed to decline all his terminal benefits such as DCRG, commutation and pension except contribution to GPF, as per Rule (3) 2(a) & © of Part III KSR. The petitioner was asked to furnish explanation if any against the proposal. The petitioner submitted Ext.P7 explanation in answer to the show cause notice questioning the authority of the Board to take action under Rule (3) 2(a)(c) of KSR Part III, again denying the allegation that he fraudulently obtained employment. According to the petitioner, the proceedings for withholding or withdrawing of pension could be taken only if a pensioner is found guilty of grave misconduct or negligence during the period of his service and further it provides that such proceedings if not instituted before

¶47

W.P(C) No.14627 of 20096

¶48

retirement shall be instituted only in respect of a cause of action which arose more than 4 years before such institution. In the case of the petitioner, it was stated that there was no such disciplinary action against him. He further stated that his appointment was not under special recruitment and was on the basis of a certificate issued by a competent authority which the PSC accepted and acted upon. Therefore, he cannot be proceeded against for misrepresentation and if at all any mistake was committed by the PSC, it should have been corrected under Rule 3(c) of Part III KSR. According to the petitioner, there is no community by name Balija Gavara and the findings in the Government order were baseless. The petitioner stated that even though a memo of charge was issued to him on 27.03.2008 the Board did not pursue it and he was allowed to retire from service on attaining the age of superannuation. The petitioner further stated that, no action could be taken against him without conducting any enquiry as provided in the KSEB Employees (CC&A) Regulations, 1969. The petitioner was allowed to retire from service when memo of charges which was not pursued thereafter, alone was issued to him. He further stated that as

¶49

W.P(C) No.14627 of 20097

¶50

per the KSEB Employees (CC&A) Regulations, 1969, no action can be initiated or continued once the employee retired from service. Therefore, it was stated that the proposed action against him was unjustified and without authority. He further stated that the KIRTADS had tendered adverse findings without any notice to the petitioner and therefore the findings entered by them cannot be accepted. The petitioner further stated that, in case there was any dispute with respect to the community of a candidate in service, the said matter should have been referred to the scrutiny/screening committee in terms of Act 11 of 1996 and the finding with reference to the community should have been entered into in accordance with Act 11 of 1996. It was his further contention that, there was no provision for denying DCRG and Rule 3(2) (a) or (c) did not apply in his case, as long as he was not convicted of any serious crime or found guilty of grave misconduct. He further stated that the community certificate issued to him was never cancelled by any competent authority and continued to be valid and hence after rendering 28 years of meritorious service, it was unfair and illegal to deny retirement benefits due to him.

¶51

¶52

W.P(C) No.14627 of 2009-

¶53

The Chairman thereafter issued Ext.P8 order seeing that the explanation furnished was not satisfactory and it was found that even though the petitioner had rendered meritorious service in the Board that does not exonerate him from the false information and accordingly confirmed the proposed punishment of declining all the terminal benefits except GPF.

¶54

It is as against Ext.P8 order that the petitioner has approached this Court. The action initiated against the petitioner is on the basis of Ext.P5 Government Order. From Ext.P5 it is seen that the petitioner has participated in the enquiry and the said order was issued after considering his explanation to the show cause notice in which it is also stated that, he had co-operated with the KIRTADS which conducted the enquiry into his caste status. On the basis of the report of the KIRTADS the Government found that the petitioner's mother belonged to Naidu community, father Kallanakrishna Naidu belonged to Naidu community; the petitioner has 6 siblings and all of them were admitted in V.V.Parameswara Ayyar's High School and in the school records their community was entered as `Naidu'. Petitioner was admitted to Jr.Kulapathy Basic School

¶55

¶56

W.P(C) No.14627 of 2009-

¶57

and then he joined P.M.G.H.S, Palakkad. When he was admitted to the first standard, his caste was shown as Nayidu Gavara and his SSLC book did not contain any entry regarding caste. It was further found that the petitioner's wife from Erode is a member of Vadugar community of Tamil Nadu which is not a Scheduled Caste in that State; his son was admitted in the school leaving the column as to caste status blank. It was further found that the petitioner remained in his original status for 20 years and since 1973 he made false claim as “Gavara (SC)” and got false community certificate from the Deputy Tahsildar, Palakkad that he belonged to Gavara community and he got a nativity certificate also on 8.5.1973 in a single form and based on that bogus certificate he got admission for Engineering Course and later secured appointment in the Board. The Government further stated that the petitioner has not submitted any explanation with respect to the geneological report and no material was produced in respect of the caste status as Gavara as also a holder of certificate cannot acquire status of Schedule Caste from the certificate. The Government accepted the report of the KIRTADS which found that he did not belong to Gavara

¶58

¶59

W.P(C) No.14627 of 2009-

¶60

(SC) caste and held that his claim was false and declared that the petitioner who was working as Assistant Executive Engineer, KSEB, Alathur and members of his family did not belong to Gavara (SC) but belong to Balija gavarai community popularly known as Naidus. It was further held that none of the members of his family shall be entitled to any of the benefits of the Scheduled Caste and in case they had availed such benefits, the same shall be stopped and the benefits already availed of shall be recovered. It was further ordered that in case the petitioner’s appointment in the Board was on consideration as a member of Scheduled Caste Community, action shall be taken against him and a member of genuine Scheduled Caste should be given appointment. Further it was held that, the caste entered in the SSLC book of any of the members of his family (Gavara (SC)) shall be got corrected as Naidu. It further ordered that all the Scheduled Caste certificate issued to the members of the petitioner’s family shall be treated as cancelled. The District Scheduled Castes Development Officer, Palakkad was directed to render necessary assistance to the Tahsildar, Palakkad to carry out the above orders and to report compliance in due course.

¶61

¶62

W.P(C) No.14627 of 2009-

¶63

The Board as well as the State of Kerala represented by the Secretary to Government, SC/ST Development Department are parties. The State of Kerala did not file any counter affidavit. In the counter affidavit filed on behalf of the 1^st respondent it was stated that, the Government had as per Ext.P5 order dated 30.03.1995 ordered that, the petitioner did not belong to S.C. It is stated that the Vigilance Wing of the Board had conducted an enquiry and found that the complaint as to misrepresentation regarding his caste status was true and the petitioner or the members of his family did not belong to Gavara caste in the list of Scheduled Caste community and the enquiry officer recommended for registering a vigilance case against the petitioner for conducting an investigation for grave misconduct of lying the caste status at the time of appointment. The Government had in Ext.P5 order found that the petitioner was not a member of the Scheduled Caste, on the basis of the report from KIRTADS. On receipt of Ext.P5 order the Board called for a report from the PSC as to whether the advice of the petitioner was against Scheduled Caste community vacancy. The PSC as per letter dated 22.11.2007 informed that the petitioner was

¶64

W.P(C) No.14627 of 200912

¶65

included in the supplementary list for Scheduled Castes and appointed in the year 1980. Thereafter disciplinary proceedings were initiated against the petitioner as per Ext.P3. The petitioner submitted his explanation only on 18.8.2008 as he requested initially for a period of two months time and thereafter for another one month. The disciplinary authority came to the conclusion that the petitioner obtained employment through false information and accordingly issued the show cause notice proposing to decline the terminal benefits and final orders were passed after considering his explanation. It is further stated that, the Government had in Ext.P5 ordered that action should be taken against the petitioner in case he obtained employment against the vacancy of Scheduled Caste Community. On receipt of information from PSC the matter was reported to the Government and disciplinary action was initiated on the basis of a direction from the Government. Further it was stated that as per Ext.R1(b) Government Order dated 4.5.2000, the Government had issued directions to take action against persons who availed the benefits of Scheduled Caste community by false representation, in terms of Section 16(1) to (4) of the Act 11 of

¶66

W.P(C) No.14627 of 200913

¶67

2006 against persons who availed benefits based on caste certificate obtained before the 1996 Act came into force and it was provided therein that such persons should be removed from service as they are not entitled to any of the benefits and action was initiated and finalized against the petitioner in terms of Ext.R1(a) order.

¶68

The petitioner filed a reply affidavit again challenging the authority of the Board to take acion against him. He reiterated his contention that no action can be taken against him as there were no proceedings conducted against him under Act 11 of 1996.

¶69

I heard Sri P.C.Sasidharan, the learned counsel for the petitioner and Sri Pulikool Aboobacker, the learned Standing Counsel for KSEB, Shri K.V.Prakash, the learned Special Government Pleader for S.C/S.T Department.

¶70

The question to be considered is wither Ext.P8 order declining the retirement benefits of the petitioner is correct. It is an admitted fact that the petitioner got appointment against a

¶71

vacancy reserved for Scheduled Caste community from the supplementary list of the rank list. In other words, the petitioner

¶72

W.P(C) No.14627 of 200914

¶73

did not find a place in main list. It is only due to his inclusion in the supplementary list of SC candidates that he happened to be advised against reservation turn of SC. But for, the community certificate he produced, which Government cancelled as per Ext.P5, a candidate belonging to Scheduled Caste community would have got appointment in his place, at the relevant time. From Ext.P5 Government order, it is seen that Government called for a report from KIRTADS about the caste status of the petitioner and KIRTADS after making an inquiry into it, with notice to the petitioner, furnished a report. Government, on the basis of the report of the KIRTADS, found that the petitioner did not belong to Scheduled Caste community and ordered that the community certificate issued to him shall be treated as cancelled. Even though the petitioner has stated that the order was passed by the Government without issuing notice to him, Ext.P5 shows that the petitioner participated in the enquiry conducted by the KIRTADS as well as the hearing held by the Government subsequent to the report of the KIRTADS. Reference No.4 in Ext.P5 is the petitioner’s letter dated 20.12.1994. The order also says that he did not submit anything

¶74

¶75

W.P(C) No.14627 of 2009-

¶76

regarding the report of the KIRTADS. The contentions raised by the petitioner in his letter are mentioned in Ext.P5 Govt. Order. It is seen that petitioner challenged the authority of the Government to issue a show cause notice saying that, KIRTADS had not given him any notice regarding the enquiry and he stated that he got admission in the Engineering College and appointment in the Board on the basis of the certificate issued by the revenue authority. At the same time, the Government on the basis of the records found that KIRTADS had given him due notice, which he had acknowledged on 8.6.1994 and attended a personal hearing held by the KIRTADS and co-operated with the enquiry. In answer to the notice issued by the Government, the petitioner had submitted his explanation after receipt of the report from the KIRTADS and his argument that he did not receive any notice in respect of the enquiry conducted, can only be factually incorrect and totally baseless.

¶77

Thus from Ext.P5 it can be seen that the Government have after conducting an enquiry through the competent authority at the relevant time, namely KIRTADS, arrived at a finding that the petitioner did not belong to Scheduled Caste

¶78

¶79

W.P(C) No.14627 of 2009-

¶80

community. Govt cacelled the community certificate issued to him and the members of his family.

¶81

The contention of the petitioner that his appointment could have been interfered with only by cancellation of advice within a period of one year, will not arise in a case where appointment is obtained on misrepresentation or by playing fraud. Similarly the contention raised by the petitioner that proceedings under the KSEB(CC&A) Regulations can be initiated only against a Board employee, with reference to the definition of the Board employee contained in Rule 2(c) cannot be accepted because one of the penalties enumerated under Rule 11 is reduction of pension.

¶82

Therefore when the community certificate is cancelled and a person is found to have obtained employment misrepresenting a fact, especially when he obtained employment which was reserved for Scheduled Caste community, the natural and normal consequence is that the entire proceedings would amount to fraud and in that event he should be deprived of all the benefits out of such employment. In this case, therefore, the natural consequence of Ext.P5 should have been removal of the

¶83

¶84

W.P(C) No.14627 of 2009-

¶85

petitioner from service. Such a person cannot have any right to enjoy the benefits on account of the service rendered after obtaining employment by illegal means. In order to deprive of such benefits, enjoyed by playing fraud, it is not necessary that he should be subjected to any disciplinary proceedings.

¶86

The contention of the petitioner is that a community certificate could have been cancelled only by the competent authority and only in accordance with the provisions contained in the Kerala (SC&ST) Regulation of issue of community certificate Act 1996 – Act 11 of 1996 and any proceedings other wise than under the provisions of the said Act cannot dilute the genuineness of the community certificate issued to him by the competent authority. The petitioner relied on the judgment of this Court reported in Prakash v. State of Kerala [2002(2) KLT 580] rendered by a learned Single Judge, in which it was held that, a community certificate can be cancelled only under the provisions of the Act and therefore cancellation of the certificate in the said case was held illegal on being issued without jurisdiction. It was also held, referring to Section 11 that the scrutiny committee has to call for the records and enquire into

¶87

W.P(C) No.14627 of 200918

¶88

the correctness of the certificate and if it comes to the conclusion that the said certificate is obtained fraudulently, then it shall cancel the certificate after affording an opportunity of hearing to the person concerned. Referring to the dictionary meaning of fraud', this Court had found that, production of a community certificate issued by the competent authority and joining service on the basis of the said certificate cannot be termed to be fraud’. It was a case where the proceedings were issued after Act 11 of 1996. However that judgment is overruled in the recent judgment dated 07.04.2016 in W.A. 1954 of 2015- Managing Director SBT V Viswanathan K.G and others [ ILR 2016 (3) Ker 528], which elaborately deals with the cases of obtaining employment on the basis of false certificates.

¶89

In the light of the decision of the Apex Court reported in Viswanatha Pillai v. State of Kerala [2004(1) KLT 708 (SC)], Bank of India V Avinash D. Mandivikar (2005) 7 SCC 690, and in Viswanathan 's case (supra), the contentions raised by the petitioner cannot be sustained. It is now settled law that, any benefit obtained by playing fraud would amount to nullity. Obtaining a community certificate by a person who does not

¶90

W.P(C) No.14627 of 200919

¶91

belong to Scheduled Caste community and obtaining employment on the basis of the said certificate and thereafter when the competent authority namely, KIRTADS finds that the petitioner did not belong to Scheduled Caste community and the Government issued orders treating the community certificate issued to the petitioner and his family members as cancelled, it cannot be said that the petitioner is entitled to the benefit of the community certificate issued by the Tahsildar. The very appointment of the petitioner against a vacancy reserved for Scheduled Caste Community candidate from the supplementary list of the rank list shows that the petitioner enjoyed the benefit of the employment illegally and without any basis, thereby depriving the chance of an eligible candidate belonging to that community.

¶92

In this case, the proceedings are already over and the Government had issued Ext.P5 order well before Act 11 of 2006 was enacted. The contention of the petiitoner that action can be taken for cancellation of certificate only in terms of the provisions contained in Act 11 of 2006, is unsustainable. Act 11 of 2006 does not nullify the cancellation already effected by Govt

¶93

¶94

W.P(C) No.14627 of 2009-

¶95

based on the inquiry made through KIRTADS. Petitioner who participated in the inquiry before KIRTADS and the hearing before Govt cannot pretend ignorance over the proceedings leading to Ext P5. Now he claims that Ext P5 order was not communicated to him, which the both the respondents did not deny. However this court has every reason to doubt the bonafides in the statement because of factually incorrect statements accompanying the said statement to the effect that no notice was given to him by the KIRTADs or Govt before isuing Ext P5, the falsity of which is evident from Ext P5 itself. The petitioner's contention is that the community certificate issued to him is valid unless and until it is cancelled in accordance with the provisions contained in Act 11 of 1996. But the Act 11 of 1996 came into force only w.e.f 29.11.1996. The petitioner's caste status was determined and the community certificate was treated as cancelled as per Ext.P5 Government Order in the year 1995 itself. Therefore, the said contention will not survive.

¶96

Once it is found that the appointment is obtained by

¶97

misrepresentation and fraud, the very foundation for his appointment shatters. Then it is not necessary for the employer

¶98

W.P(C) No.14627 of 200921

¶99

to proceed against the petitioner to initiate disciplinary proceedings under the KSEB (CC&A) Regulation or to proceed under the provisions contained in KSR to deny him retirement benefits. When the very appointment itself is deemed to be a nullity, it is not necessary to cancel his advice or to observe any time limit for cancelling his advice by PSC or to terminate his services. It is true that, as contended by the learned counsel for the petitioner, there is no provision in the KSEB(CC&A) Regulation which permits continuance or initiation of disciplinary proceedings against a person who retired from service. It is also true that, Rule 3 of Part III KSR which permits continuance of the disciplinary proceedings or initiation of disciplinary proceedings is subject to certain conditions. In the case of initiation of proceedings the incident based on which action is initiated should have been within a period of 4 years of retirement. Similarly the continuance of proceedings is only when the proceedings are already initiated. But all these provisions will be applicable only in a case where the appointment is not vitiated by fraud.

¶100

As rightly argued by the learned counsel appearing

¶101

W.P(C) No.14627 of 200922

¶102

for the Board, relying on the judgment of Viswanatha Pillai 's case (supra) and the judgment of this Court in W.P(c) No.31429 of 2006 dated 12.07.2016, the petitioner who obtained employment on misrepresentation furnishing false certificate is not entitled to enjoy the fruits of the fraud any further and the Board had every right to deny the retirement benefits of the petitioner.

¶103

But the case of the petitioner is that Ext.P5 is not served on him. In paragraph 5 and in Ground C of the Writ Petition, the petitioner stated that it is for the first time that the petitioner was given a copy of the Government order.

¶104

The averments to the effect that he was given the copy of the Government Order for the first time after the show cause notice was issued, is not seen denied or disputed by respondents 1 to 3. The Government did not file any counter affidavit even though entire proceedings were taken on the basis of Ext.P5. Nor did they furnish the relevant files. The Special Govt Pleader appearing for the 1^st respondent argued that the Government was competent to cancel the community certificate and that Ext.P5 order was issued after conducting detailed

¶105

W.P(C) No.14627 of 200923

¶106

enquiry through KIRTADS in which the petitioner has participated. The arguments are based on Ext.P5 only. But the contention that Ext.P5 order was not furnished to him is nowhere denied by any of the respondents.

¶107

Moreover, from Ext.P5, it is seen that even though there is a copy marked to the petitioner in his official address, it was to be served through the Secretary, KSEB. Neither the KSEB nor the Government stated that they had served a copy of the Ext.P5, Government Order on the petitioner. It is the contention of the petitioner that in case it was received in time, he would have challenged it in appropriate proceedings. In the absence of any material to show that Ext.P5 order was served on the petitioner, I am unable to accept the contentions of the learned counsel for the Board. At the same time, I find that the respondent Board themselves have to be accused for keeping Ext.P5 without any action till the fag end of the service career of the petitioner and for filing counter affidavit before this Court without disputing the averments of the petitioner that he was not served with a copy of Ext.P5. When Ext.P5 order was to be served through the respondents, it was for the respondents to

¶108

¶109

W.P(C) No.14627 of 2009-

¶110

serve the order and to take action in time. The contention that he could have challenged Ext.P5 in case it was served on him, cannot be discarded. In the absence of an answer to that contention by any of the respondents, I have to presume that Ext.P5 order was not served on the petitioner. In that event, the proceedings initiated at the fag end of his service career merely on the basis of that Government Order alone cannot stand because there is no punishment of declining all the retirement benefits as per the KSEB (CC&A) Regulations.

¶111

In this view of the matter, Ext.P8 order cannot be sustained and the petitioner would be entitled to the retiremet benefits on the basis of the service rendered by him. Therefore, I quash Ext.P8 and direct respondents 1 to 3 to sanction and disburse retirement benefits due to the petitioner.

¶112

The Writ Petition is accordingly disposed of.

¶113

Sd/- (P.V.ASHA, JUDGE)

¶114

rtr/

M.K.Venugopalan v. the Kerala State Electricity Board

Case brief

What is this about?

What did the court decide?

M.K.Venugopalan v. the Kerala State Electricity Board

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Arunkumar P.S. Vs Life Insurance Corporation of India

M.Sreevardas Vs State of Kerala

Vijayappan & Another Vs Returning Officer

B.S.Vsanthi Amma Vs Smt.Nalini Netto

Dr. George Justine v. Vs K.M. Abraham

P.M.Varghese Vs State of Kerala