Disciplinary Proceedings Under KCS Rules Will Discontinue On Retirement Of Govt Servant If Proceedings Primarily About Loss Recovery: Kerala High Court

Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen added that the new proceedings must conform to Rule 3 with a requisite adherence to the principles of natural justice.

“However, in the light of the fact that the proceedings have been confined to the recovery of loss as the respondent had retired from the service, the proceedings already initiated under Rules 15 and 16 of KCS (CC&A) Rules would vanish and the proceedings will have to be in accordance with the Rule 3 part III of the Kerala Service Rules (for short, 'KSR').”

The Court was considering an original petition filed by the government challenging the order of the Tribunal quashing the entire disciplinary proceedings against the respondent, a retired government servant. The Tribunal also set aside the order of recovery which was initiated by the government for recovery of loss sustained by it.

The Court considered two legal issues, firstly, whether recovery of loss can be effected by the government against a retired government servant under KCS (CC &A) Rules without giving him an opportunity of hearing to discredit evidence against him. Secondly, whether proceedings for recovery of loss can continue under the KCS (CC &A) Rules after the retirement of the government servant.

The Court noted that the disciplinary proceedings were initiated against the government servant before his retirement under Rule 15 of KCS (CC &A) Rules and were later converted to proceedings under Rule 16.

Rule 15 provides for the procedure for imposition of major penalties and Rule 16 provides the procedure for imposition of minor penalties. The Court noted that even though the rigour under Rule 15 will not apply in Rule 16 proceedings for imposition of minor penalties, the principles of natural justice cannot be violated. It referred to the decision in B.Surinder Singh Kanda v. Government of the Federation of Malaya (1962) to state that even in a Rule 16 proceeding, full and fair opportunity of should be given to the government servant to discredit the evidence against him. The Court found that the principles of natural justice were violated when the hearing opportunity was not provided to a government servant to discredit the evidence brought against him.

“Natural justice implies a fair opportunity to contradict and to obviate the prejudice that may cause to the aggrieved consequent upon the denial of such opportunity. If the recovery of loss is effected without giving an opportunity of hearing to the respondent to discredit the materials collected which are relied on for fastening the liability, that proceedings will be vitiated.”

The Court stated that as the government servant retired during the continuation of the disciplinary proceedings, the disciplinary proceedings initiated under Rules 15 and 16 cannot continue.

It noted that after the retirement of a government servant, only recovery of loss can be effected by the government under Rule 3 Part III of the Kerala Service Rules (KSR). Rule 3 Part III of KSR provides that the government can withhold or recover the loss from the pension of a retired government servant if they were found guilty of misconduct or negligence in a departmental proceeding.

Thus, the Court noted that after the retirement of the government servant, the government has to initiate steps for recovery of loss under Rule 3 Part III of KSR for recovery of loss. It noted that principles of natural justice will also have to be followed.

The Court noted that the Tribunal set aside the entire disciplinary proceedings and the order of recovery against the government servant on his retirement.

It held that the Tribunal should have permitted the government to continue proceedings under Rule 3 Part III of KSR as the proceedings were intended for the recovery of loss alone.

With these observations, the Court noted that the government can continue the proceedings for recovery of loss against the government servant.

Counsel for the petitioner: Senior Government Pleader Vinitha B

Counsel for the respondent: Advocates Pushparajan Kodoth, K.Jayesh Mohankumar and Vandana Menon

Citation: 2023 LiveLaw (Ker) 614

Case title: State of Kerala v P.K Radhakrishnan

Case number: OP(KAT) No.418 of 2019

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