Point of Law: Natural justice implies a fair opportunity to contradict and to obviate prejudice that may cause to aggrieved consequent upon denial of such opportunity.

JUDGMENT :

A.Muhamed Mustaque, J.

The point that arises for consideration in this original petition is whether in a disciplinary proceedings initiated under the Kerala Civil Services (Classification, Control and Appeal) Rules (for short KCS (CC&A) Rules), a recovery can be effected for the loss sustained by the Government without giving a fullest opportunity to the Government servant to discredit the evidence brought against him. An ancillary question also arises in this case as to the continuation of the proceedings under the KCS (CC&A) Rules for the recovery of loss after the retirement of the Government servant.

2. The disciplinary proceedings were initiated against the party respondent before his retirement invoking Rule 15 of KCS (CC&A) Rules, the procedure for imposing major penalty. However, midway it seems proceedings were converted to Rule 16 proceedings of KCS (CC&A) Rules to impose minor penalties and ordered recovery of loss. No opportunity was given to the respondent to discredit the materials against him. On a challenge made by the respondent, the Tribunal noted that converting the proceedings midway from major penalty to minor penalty was legally unsustainable and a consequent order of recovery was also set aside. It is specifically noted that the procedure under Rule 15 of KCS (CC&A) Rules was not followed for effecting recovery.

3. It is apparent in this case that the procedure under Rule 15 of KCS (CC&A) Rules was not followed for recovery of loss. Arguments have been raised by the learned Government Pleader based on Rule 16 of KCS (CC&A) Rules and argued that rigor of Rule 15 is not applicable. It may be true that rigor of Rule 15 may not as such would apply for a proceedings under Rule 16. However, the court cannot ignore the principles of natural justice. The principles of natural justice will have to be read into the statutory provisions. 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. It is appropriate to refer to famous principles enunciated by Lord Denning in B. Surinder Singh Kanda v. Government of the Federation of Malaya (1962 AC 322) observed as follows:

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.”

Therefore, even in a proceedings under Rule 16 of KCS (CC&A) Rules, full and fair opportunity should be given to the respondent to discredit the materials against him.

4. 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 Rule 3 & 3(a) of the KSR reads as follows:

“3. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension or the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement.

3(a) Such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the f