IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1194 of 2010()
1. R.AYYAPPAN PILLAI,LAKSHMINAGAR-11,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. THE DPEUTY CHIEF ENGINEER,
For Petitioner :SRI.S.A.RAZZAK
For Respondent :SRI. ASOK M.CHERIYAN, SC, KSEB
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :07/10/2010
O R D E R
J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.
------------------------------------------
W.A. No.1194 of 2010
------------------------------------------
Dated this the 7th day of October, 2010
JUDGMENT
J.Chelameswar, C.J.
The petitioner in W.P.(C) No.6868 of 2010 is the
appellant herein. The writ appeal is preferred aggrieved by the
judgment dated 19th May, 2010 in the abovementioned writ petition.
2. The appellant was in the service of the first respondent
Kerala State Electricity Board. He retired from service on 31st July,
2009. During the period between 9.1.1987 and 27.9.1988 he was
working as ‘Cashier trainee’. The further details of his employment
may not be necessary except to state that as part of such a duty the
appellant had to handle certain monies belonging to the first
respondent Board.
3. On 11.10.1988 it was detected that the appellant did
not account for certain amounts of cash. There was shortage of an
amount of `26091/-. Consequent upon the detection of such fact
W.A.No.1194 of 2010
– 2 –
the appellant was kept under suspension on 21.10.1988. An
enquiry was ordered after a long lapse of almost five years on 30th
July, 1993. The appellant continued under suspension until he was
reinstated to service on 11.2.1994.
4. By the proceedings (Ext.P4) of the second
respondent dated 2.9.1997 the appellant was called upon to remit an
amount of `14020.15 along with interest, etc. obviously towards the
recovery of the amount which could not be accounted for by the
appellant. The amounts mentioned in the said document were
remitted by the appellant.
5. However, the respondents could not conclude the
disciplinary enquiry against the appellant. It must be mentioned
that the charge memo itself was issued on 21.6.1997. The enquiry
referred to in Ext.P4 document dated 2.9.1997 appears to be an
administrative enquiry distinct from the disciplinary enquiry
conducted against the appellant.
6. During the pendency of the said disciplinary enquiry,
the appellant retired from the service. After his retirement the
W.A.No.1194 of 2010
– 3 –
appellant approached this Court by W.P.(C) No.6868 of 2010
praying as follows:
“i) issue a writ of mandamus or other appropriate writ,
direction or order directing the respondents to award and release
Superannuation Pension in full reckoning petitioner’s entire
service as qualifying service;
ii) issue a writ of mandamus or other appropriate writ,
direction or order directing the 2nd respondent to release the
salary arrears for suspension period, leave surrender benefits,
commuted value of full pension due along with DCRG
admissible based on emoluments drawn on the date of
retirement;
iii) issue such other writ, direction or order as this
Hon’ble Court may deem fit and proper on the facts and in the
circumstances of the case and to allow this Original Petition with
the petitioner’s costs.”
7. By the judgment under appeal, a learned Judge of this
Court held that the document under Ext.P4 dated 2.9.1997 is not an
order imposing punishment on the conclusion of disciplinary
enquiry. It is held at paragraph 4 as follows:
“…………………… A reading of Ext.P4 indicates that by this
order, all that the Board has done is to call upon the petitioner to
remit the balance amount found to have been lost by the Board
on account of the misconducts committed by the petitioner. In
W.A.No.1194 of 2010
– 4 –
my view, apart from recouping the loss the Board has suffered,
this order does not lead me to infer that the recovery was as a
punishment imposed in conclusion of the disciplinary
proceedings. Therefore, I am not prepared to conclude that the
disciplinary action has come to a close by Ext.P4 and that
therefore, the respondents were not justified in issuing Ext.P6.”
The learned Judge further held as follows:
“Therefore, unless there is some other liability due from the
petitioner, there is absolutely no justification for not disbursing
DCRG that is due to him. Therefore, it is directed that, if no other
liability is outstanding from the petitioner, the DCRG that is due
to the petitioner shall be released to him as expeditiously as
possible, at any rate, within four weeks of production of a copy of
this judgment. ………………..
Needless to say that if final orders in the disciplinary
proceedings are not passed within eight weeks as directed, further
proceedings against the petitioner shall be discontinued and his
terminal benefits shall be settled forthwith.”
8. Hence the appeal.
9. During the pendency of the appeal a further order
dated 14.7.2010 came to be passed by the second respondent herein.
It is recorded in the said order that in the enquiry all the charges
levelled against the accused were proved. Therefore, the second
respondent ordered that the period of suspension undergone by the
W.A.No.1194 of 2010
– 5 –
appellant shall not be counted for any purpose. In other words, a
punishment of suspension from service was awarded. Relevant
portion of the said order reads as follows:
“However taking into consideration of the fact that the accused
is a Pensioner, and more than one punishment is against natural
justice, this authority feels that both barring of increments and
treating of suspension period as L W A at a time are
undesirable, and hence it is hereby ordered to finalize the
proceedings by treating the suspension period as Suspension
itself, and the period will not be counted for any purpose. No
other punishments are ordered.”
10. Sri.S.A.Razzak, learned counsel for the appellant
argued that in view of the fact that the appellant was allowed to
retire from service on 31.7.2009, the legal relationship of employer
and employee between the first respondent and the appellant came
to an end and therefore the appellant is beyond the disciplinary
control of the first respondent except to the extent indicated under
Rule 3 of Part III of the Kerala Service Rules. The said rule reads as
follows:
“3. The Government reserve to themselves the right of
withholding or withdrawing a pension or any part of it, whether
W.A.No.1194 of 2010
– 6 –
permanently or for a specified period, and the right of ordering
the recovery from a pension of 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:
Provided that –
(a) such departmental proceeding, if instituted while the
employee was in service, whether before his retirement or during
his re-employment, shall after the final retirement of the
employee, be deemed to be a proceeding under this rule and shall
be continued and concluded by the authority by which it was
commenced in the same manner as if the employee had continued
in service;
(b) such departmental proceeding, if not instituted while
the employee was in service, whether before his retirement or
during his re-employment.-
(i) shall not be instituted save with the sanction of the
Government;
(ii) shall not be in respect of any event which took place
more than four years before such institution; and
(iii) shall be conducted by such authority and in such place
as the Government may direct and in accordance with the
procedure applicable to departmental proceedings in which an
order of dismissal from service could be made in relation to the
employee during his service;
(c) no such judicial proceedings, if not instituted while the
employee was in service wether before his retirement or during
his re-employment, shall be instituted, save with the sanction of
W.A.No.1194 of 2010
– 7 –
the Government, in respect of a cause of action which arose or an
event which took place more than four years before such
institution; and
(d) the Public Service Commission shall be consulted
before final orders are passed.
Explanation.- For the purpose of this rule –
(a) a departmental proceeding shall be deemed to be
instituted on the date on which the statement of charges is issued
to the employee or pensioner or if the employee has been placed
under suspension from an earlier date, on such date; and
(b) a judicial proceeding shall be deemed to be instituted –
(i) in the case of a criminal proceeding, on the date on
which the complaint or report of police officer on which the
Magistrate takes cognizance is made; and
(ii) in the case of a civil proceeding, on the date of
presentation of the plaint in the Court.”
Admittedly these rules framed under Article 309 of the Constitution
were adopted by the first respondent which is a statutory Board.
11. We do see force in the submission made by the
learned counsel for the appellant. On the termination of
employment, the employer loses disciplinary control over the
employee. Their legal relationship of employer-employee comes to
an end on the termination of the employment. However, in the case
W.A.No.1194 of 2010
– 8 –
of employment under the State, the State by appropriate law may
retain some authority to deal with its erstwhile employees. Rule 3
of Part III of the Kerala Service Rules is such a law which
authorises the State to withhold the pension of a former employee
either totally or partially. Such withholding could be either
permanent or for a specified period in the contingencies mentioned
in the said rule. Such contingencies are (1) the pensioner is found
guilty in a departmental proceeding of grave misconduct or
negligence during the course of his service or (2) in a judicial
proceeding such a finding is recorded. Further it is required under
sub-rule (a) of Rule 3 of the Kerala Services Rules that the
departmental proceedings referred to under Rule 3 need not have
been concluded while the employee was in service. Sub-rule (a) of
Rule 3 authorises the continuation of a pending departmental
proceeding even after the retirement of the employee against whom
proceedings were initiated.
12. In the instant case, admittedly, departmental
proceedings were initiated while the appellant was in the service of
W.A.No.1194 of 2010
– 9 –
the first respondent Board. Therefore, the authority of the first
respondent to continue the pending departmental proceeding against
the appellant is undoubted. But the course of action open to the
first respondent on the conclusion of such an enquiry is limited, i.e.
it could only have ordered the withholding of pension either
partially or totally as already indicated earlier. It may also be
mentioned here that it is a well established principle that in the
matters of employment under the State pension is an amount
payable to the erstwhile employee of the State for the satisfactory
service rendered by such an employee. A principle which found
expression in Rule 59 of Part III of the Kerala Service Rules.
13. In the circumstances, the decision of the first
respondent evidenced by the proceedings dated 14.7.2010 not to
count the period spent by the appellant under suspension for any
purpose, in our opinion, is not sustainable. Therefore, the order
dated 14.7.2010 insofar as it declares that the period of suspension
of the appellant herein will not be counted for any purpose is
declared to be illegal. We make it clear that we are not interfering
W.A.No.1194 of 2010
– 10 –
with the finding of guilt of the appellant recorded in the said order.
It is open to the respondents now to take such other appropriate
action as is permissible to them under law against the appellant.
Writ appeal is disposed of as above.
J.Chelameswar,
Chief Justice
P.R.Ramachandra Menon,
Judge
vns